KAZEEM BELLO V. SURAJU AGORO KARIMU
(2011)LCN/4987(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of December, 2011
CA/I/82/2005
RATIO
DECLARATION OF TITLE TO LAND: THE ONUS RESTING ON THE PLAINTIFF IN A CASE OF DECLARATION OF TITLE TO LAND
The onus is on the Plaintiff in a case of declaration of title to land to prove with cogent and credible evidence that he is entitled to judgment based on the evidence adduced by him in connection with the declaration sought. He can only rely on his own evidence and not on the weakness of the Defendant’s case. See ADESANYA VS. ADERONMU (2000) 9 N.W.L.R. PART 672 at 370, BANKOLE VS. OLADELE (2010) 34 W.R.N. at 15 and GBADAMOSI VS. TOLANI (2011) 5 N.W.L.R. Part 1249 Page 352 at 370 Paragraphs A – C. PER MODUPE FASANMI J.C.A.
SALE OF FAMILY LAND: CONDITIONS THAT MUST BE FULFILLED FOR A SALE OF A FAMILY LAND TO BE VALID
A sale of family land to be valid has its incidents. See SOLOMON VS. MOGAJI (1982) 11 S.C page 1 at 10. The following conditions must be fulfilled: (a) The head of the family together with the principal members must participate in the exercise. (b) There must be payment of money or agreed consideration. (c) The transaction must take place in the presence of witnesses or rather must be witnessed. (d) The actual handing over of the land to the purchaser must take place in the presence of the same witnesses. See the cases of COLE VS. FOLAMI (1956) SCNLR at 180; ERINOSHO VS. OWOKONIRAN (1965) N.M.L.R. at 479 and OBI VS. ONYEMECHUKWE (2011) 1 N.W.L.R. Part 1228 Page 400 at 428 – 429 Paragrpahs H -B; ELEMA VS. AKENZUA (2000) 6 S.C. Part 3 at 26 and AGBOOLA VS. U.B.A. PLC. (2011) Vol. 31 W.R.N. PAGE 1 at 37 lines 5 – 20. PER MODUPE FASANMI J.C.A.
ADMISSIBILITY OF EVIDENCE IN PREVIOUS PROCEEDINGS: CIRCUMSTANCE IN WHICH EVIDENCE IN PREVIOUS PROCEEDINGS CAN BE ACCEPTED AS EVIDENCE IN A LATER CASE
I agree with the learned trial Judge that evidence in previous proceedings can never be accepted as evidence in a later case except where Section 34(1) of the Evidence Act applies and which is not the case here. See ILUYOMADE VS. OGUNSAKIN (2001) 8 N.W.L.R. Part 716 Page 559 or to discredit the witness in the latter case. See JOHNSON VS. OSAYE (2001) 9 N.W.L.R. Part 19 at 729; BIDA VS. ABUBAKAR (2011) Vol. 25 W.R.N. page 79 at 124 – 126 and Section 209 of the Evidence Act. PER MODUPE FASANMI J.C.A.
TRESPASS TO LAND: WHETHER IN A CLAIM FOR TRESPASS WHAT IS PRIMARILY IN ISSUE IS THE POSSESSION OF THE LAND IN DISPUTE
In a claim for trespass, what is primarily in issue is the possession of the land in dispute. See the case of AKEEM VS. OKUMADE (1978) 3 S.C. 129 at 137. Any form of possession so long as it is clear and exclusive and exercised with intention to possess is sufficient to support an action against a wrong doer. A mere trespasser as the Appellant in this instance who goes into occupation cannot however by the very act of trespass and without acquiescence give himself possession against the person whom he has ejected. See KOPEK VS. EKISOLA (2010) 41 N.S.C.Q.R. Page 553 at 575 Per OGUNTADE J.S.C. PER MODUPE FASANMI J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA (OFR) Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
KAZEEM BELLO Appellant(s)
AND
SURAJU AGORO KARIMU Respondent(s)
MODUPE FASANMI J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of an Ota High Court, Ogun State delivered on the 11th of November 2004 in suit No. HCT/265A/98.
The brief facts culminating in this appeal are as follows:
The Appellant is the first Defendant in the Court below and the 2nd Defendant is said to have died during the proceedings.
The Plaintiff now Respondent in this court claims against the Defendants at the lower court for:
(a) Declaration that the Plaintiff is entitled to a Statutory Right of Occupancy over a plot of land situate, lying and being at Ajala Close, Temidire, Sango Ota, Ogun State which is more particularly described on survey plan number GRA1322 of 13th October, 1979 drawn by Alhaji R. Kadiri Licensed Surveyor;
(b) N194,800.00 (One Hundred and Ninety Four Thousand Eight Hundred Naira) as special, general and consequential damages for trespass committed by the Defendants on the Plaintiff’s land;
(c) Perpetual injunction restraining the Defendants, their agents, servants, successors in title or privies from further trespass on the plaintiff’s property.
The Plaintiff/Respondent in his statement of claim of 10/12/98 stated that the one(1) plot of land in dispute situate at Ajala Close, Temidire, Sango Ota, Ogun State was bought by him from the entire Olunloye family of Ota vide receipts Nos. 392 and 475 dated 6/7/77 issued by the family accredited representatives/attorneys. Plaintiff/Respondent further stated to have exercised acts of possession and ownership on the land until 1995 when the Defendants trespassed on the land, destroyed his corner-piece and demarcation he made on the land and used the blocks he deposited on the land in erecting structure on the same land.
Appellant who was the Defendant at the lower court by the amended Statement of defence dated 27/3/03 stated that the land in dispute is at Ajala Close, Temidire, Sango Ota, Ogun State which he bought in August, 1988. He stated that same portion of the family land had been partitioned as shown in suit no. AB/29/71 exhibit ‘B’ which also confirmed the title of the family and that the land in dispute is part of the land partitioned to Karimu Okoosi, a family member. On the death of Karimu Okoosi, the land was sold by one of the children of Karimu Okoosi that is Saminu Okoosi to him as a virgin land of which he did not meet any structure whatsoever on the land. He did his survey plan and he was building on the land.
After reviewing the case of both parties and their addresses the learned trial Judge in a considered judgment delivered on the 11th of November, 2004 gave judgment in favour of the Respondent. Dissatisfied with the decision, Appellant appealed to this court through an amended Notice of Appeal dated 19th January, 2006 containing four grounds of appeal.
As allowed by the rules of the court, Appellant’s brief of argument is dated 24th April, 2006, and filed on the 2nd of May, 2006. Deemed properly filed and served on the 20th of March, 2007. Appellant filed an application on the 23rd of December, 2010 seeking for the appeal to be heard on the Appellant’s brief alone for the failure of the Respondent to file his brief. The application was granted on the 22nd of March, 2011.
At the hearing of the appeal, the court’s record showed that the Respondent was served with the hearing notice on 20th of July, 2011 through his Counsel Opeyemi Gbadebo & Co. In view of the grant of the application and the fact that the Respondent was served with the hearing notice, the court proceeded to hear the appeal.
Appellant distilled two issues for determination from the four grounds of appeal filed. They are:
(1) Whether having regard to the pleadings and evidence before the court below, the court was right in giving title in favour of the Plaintiff;
(2) Whether the court below was right in awarding the sum of N134,800 as special damages in favour of the Plaintiff against the Defendant.
On issue one, learned Counsel for the Appellant submitted that from the evidence and pleadings in the suit, Respondent did not establish his claim through any of the five ways in which title to land could be established. Counsel referred to the case of IDUNDUN VS. OKUNMAGBA (1976) 9 – 10 SC at 227. He argued that the evidence of the Respondent does not disclose that he bought the land under native law and custom as decided by the learned trial Judge. The evidence of the Plaintiff did not make allusion to the fact that he purchased the land in dispute under native law and custom. Submitted further that it is the law to specifically plead the nature of the land transaction and that fact not pleaded does to no issue. Learned Counsel referred to the case of OLABANJI VS. OMOKEWU (1992) 6 N.W.L.R. Part 250 page 671 at 686 Paragraphs G – H. He contended that the issue of native law and custom is a fact not pleaded and of which no evidence was led. Learned counsel submitted that the antecedent which makes a land transaction to be valid under native law and custom was lacking in the case. Title to land under native law and custom is proved thus:
(1) A buyer of land under native law and custom must show that the sale of the land in question is with the consent of the entire family;
(2) That a purchase price was paid;
(3) That the transaction took place before witnesses and
(4) That he was led into possession by the family.
Learned Counsel relied on the case of COLE VS. FOLAMI (1956) S.C.N.L.R. Page 180 at 182 to 184 Paras. G – A. He submitted that all the above conditions must co-exist before a valid transaction of land under native law and custom could exist.
It is the contention of the Appellant that there is evidence on record that the land is partitioned to Karimu Okoosi branch of the Olunloye family. The evidence of D.W.1. Rafiu Okoosi is that the land in dispute is not covered by exhibit ‘C’.
Learned Counsel for the Appellant submitted that the issue of payment of a purchase price could be deduced through the issuance of a receipt. Respondent duly pleaded the issuance of two separate receipts Nos 392 and 475. The evidence of the Respondent who was Plaintiff at the lower court never mentioned the date he bought the land in particular. He only said he bought the land in 1977. He went further to state that the evidence of 2nd P.W. Raji Aboleja, the former family secretary did not say that the Respondent paid a purchase price. He only said exhibit “A” to “A1” are the receipts issued to the Plaintiff when he bought the land at page 66 lines 26 – 28 of the record.
He submitted that the Respondent never paid any purchase price on the land claimed to have been bought by him and that the transaction never took place before witness could be imagined. Learned Counsel for the Appellant submitted that since the criteria for the sale of land under native law and custom must co-exist, it could not be validly said that the Respondent validly purchased a land from the Olunloye family under native law and custom. From the evidence of the Respondent, the land he bought has an interrelationship with the Olunloye family land as contained in exhibit ‘B’, the judgment in suit no. AB/39/71 between Raji Aboleja and Another vs. Saula Anibire & Ors.
Learner Counsel for the Appellant submitted that the Appellant pleading and evidence stated that the land in dispute belonged to Karimu Okoosi having been partitioned by the Olunloye family and that it was his son Saminu Okoosi that sold the land to him. The portion not partitioned is still held jointly by the family. The fact of the partition has been confirmed in exhibit “B, the judgment in suit No. AB/39/71. Submitted further that the judgment exhibit ‘B’ after being tendered becomes evidence before the court below of which it is competent to make use of, as a court of law is competent to refer to its own record and case file and make use of any relevant evidence. He placed reliance on the case of ONAGORUWA VS. ADENIJI (1993) 5 N.W.L.R. Part 293 Page 317 at 331 Paras G – H.
He contended that the onus is on the Respondent claiming title to land to resolve the seeming mystery of identity and uncertainty of the land in issue. He submitted that the Appellant and the Respondent are not claiming from the same root of title. The Appellant is claiming root of title from the Okoosi branch of the Olunloye family while the Respondent is claiming from the entire Olunloye family. Submitted that the lower court erred in law to have given judgment in favour of the Respondent in view of the loopholes in the pleadings and evidence of the Respondent. He submitted that a plaintiff seeking a declaration of title in his favour must succeed on the strength of his case. Counsel placed reliance on the case of AKINOLA VS. OLUWO (1962) 7 SC.N.L.R. Page 352 at 504 Paragraph C and AWOFOLAJU VS. ADEDOYIN (1992) 8 N.W.L.R. Part 260 page 492 at 504 paragraphs E – F. Counsel urged the court to resolve issue one in favour of the Appellant.
Going through the pleadings and evidence of the parties, it is clear that parties have joined issue on the title to the land in dispute. Where issues are joined in the/pleadings and oral evidence, the court cannot resolve them without evaluating the available evidence on record so as to be able to ascribe value to them. See the cases of MOBIL PROD. NIG. UNLIMITED VS. MONOKPO (2003) 18 N.W.L.R. (PART 852 Page 346 at 436 and OSAZUWA VS. ISIBOR (2004) 3 N.W.L.R. Part 859 Page 16 at 39.I have carefully studied the proceedings in relation to the pleadings, evidence adduced by the parties and their witnesses. I have also scrutinized the trial Judge’s findings and his decision.
The Respondent’s claim in his evidence in line with his pleadings was that he bought the land from the accredited representatives of the Olunloye family sometime in 1977 and put in evidence exhibits ‘A’ to ‘A1’ of Olunloye family receipts dated 6/7/77 respectively. At page 59 of the record, he stated thus:
“I know the land in dispute. It is at Ajala Close, Temidire, Sango Ota. It is one plot of 60 x 120ft in size. I bought the land in 1977 from the Olunloye family of Iga Mugba Compound Ota. I know the representative of the family who sold the land to me. The representatives are Raji Aboleja, Karimu Okoosi, Yaya Aboleja Suberu Okoosi and Jimoh Aboleja who was the family secretary.”
This evidence was confirmed by 2nd P.W Jimoh Aboleja at pages 64 – 65 of the record thus:
“I am aware of the Olunloye family sold to the Plaintiff. It was in 1977. Exhibits ‘A’ to ‘A1’ are the receipts issued to the Plaintiff when he bought the land. I was a signatory to the exhibits. I signed as the secretary”.
At page 65, the witness continued thus:
“The Plaintiff did the survey with the consent of the family. The family took the Plaintiff to the land before he surveyed the land. The land was sold to the Plaintiff with the approval of the entire family…” There was no time any part of the family land was granted to any member of the family. The land belongs to the family as a unit and they sold as such. The land in dispute does not belong to the 1st Defendant …The family land was never partitioned nor shared among the family members”‘
On the other hand, the Appellant agreed that the land originally belonged to the Olunloye family. His contention is that the land in dispute had ceased to be a family property, when he pleaded in paragraph 4 of the Defence thus:
“The defendant further avers that some portions of the said vast tract of land including the land in dispute has been partitioned over the years among members of Olunloye family”.
Appellant claimed title through the children of one of the Attorneys Karimu Okoosi contending in paragraph 6 of his amended statement of defence that the land had been partitioned to the said Karimu Okoosi by the family during his life time.
The learned trial Judge having reviewed the evidence and in his assessment made these far-reaching findings of fact:
“A common ground in the pleadings of the parties is that the land in dispute situate at Ajala Close, Temidire, Ota forms a portion of a vast tract of land adjudged belonging to the Olunloye family Ota. Both parties made allusion to exhibit ‘B’ judgment in suit No. AB/29/71 which confirmed the title of the Olunloye family, they are therefore claiming from a common root of title which fact obviates the need for the parties particularly the Plaintiff to prove the radical title of the Olunloye family since both are claiming title though one whose title to the ownership is established.”
It is clear from the pleadings that while the Respondent traced his title to the entire Olunloye family, the Appellant traced his title to Karimu Okoosi, a member of the family.
The onus is on the Plaintiff in a case of declaration of title to land to prove with cogent and credible evidence that he is entitled to judgment based on the evidence adduced by him in connection with the declaration sought. He can only rely on his own evidence and not on the weakness of the Defendant’s case. See ADESANYA VS. ADERONMU (2000) 9 N.W.L.R. PART 672 agt 370, BANKOLE VS. OLADELE (2010) 34 W.R.N. at 15 and GBADAMOSI VS. TOLANI (2011) 5 N.W.L.R. Part 1240Page 352 at 370 Paragraphs A – C.
Respondent’s pleadings and evidence with his witness dealt with a sale of family land.
A sale of family land to be valid has its incidents. See SOLOMON VS. MOGAJI (1982) 11 S.C page 1 at 10. The following conditions must be fulfilled:
(a) The head of the family together with the principal members must participate in the exercise.
(b) There must be payment of money or agreed consideration.
(c) The transaction must take place in the presence of witnesses or rather must be witnessed.
(d) The actual handing over of the land to the purchaser must take place in the presence of the same witnesses.
See the cases of COLE VS. FOLAMI (1956) SCNLR at 180; ERINOSHO VS. OWOKONIRAN (1965) N.M.L.R. at 479 and OBI VS. ONYEMECHUKWE (2011) 1 N.W.L.R. Part 1228 Page 400 at 428 – 429 Paragrpahs H -B; ELEMA VS. AKENZUA (2000) 6 S.C. Part 3 at 26 and AGBOOLA VS. U.B.A. PLC. (2011) Vol. 31 W.R.N. PAGE 1 at 37 lines 5 – 20.
In the instant case, the Respondent pleaded exhibit ‘C’ the power of attorney dated 20th August 1976 and registered as No. 22 at page 22 in volume 3 of the Land’s Registry, Abeokuta wherein the principal members and elders of Olunloye family of Ota appointed Raji Aboleja, Karimu Okoosi, Suberu Okoosi and Yaya Aboleja as the family lawful attorneys in respect of a vast area of farm land at Ota, more particularly described on the plan in suit No. AB/39/71 between Raji Aboleja and Anor. v. Saula Anibire & Anor.
He gave evidence in court mentioning all the names in exhibit ‘C’. His witness confirmed this in his evidence. Respondent pleaded and tendered exhibits ‘A and A1, respectively as the receipts for the payment of money or agreed consideration. PW2 Raji Aboleja confirmed the actual handing over of the land to the Respondent. The family consented to the survey plan of the land prepared by the Respondent. The family took him to the land and put him in possession. Exhibits ‘A’ and A1′ were signed by all the representatives of Olunloye family. He exercised acts of ownership on the land. He cleared the land, erected four corner pieces on the four corner pillars on the land. Respondent has proved his ownership through production of documents.
Appellant did not produce any document showing the partitioning of the land from the vast track of Olunloye land. His witnesses did not help his case either. At page 63 of the record DW1 Rafiu Okoki, under cross examination said:
“I don’t know when the land in dispute was sold to the Defendant …..I have not seen exhibit ‘C’ before I am just seeing it in court today.”
DW2 Ishola at page 69 of the record said:
“It was about 1982 that the land in dispute was sold to the defendant.”
This is contrary to the Appellant’s pleading and evidence that he bought the land in 1988. The onus of proving partition is on the Appellant setting it up and the burden of proving partition rests squarely on the Appellant which he has failed woefully to discharge. Since Karimu Okoosi does not have any land exclusive of the family on his death, no land can devolve on his children as family property as alleged. Hence Saminu Okoosi, Karimu’s son cannot and does not have any land to transfer to the Appellant. Nemo dat qui non habet meaning he who hath not cannot give. In the final analysis, Appellant bought nothing in 1988 as alleged in paragraph 10 of his defence. The impression of the court of the persons of DW1 and DW2 and their evidence that they do not know anything concerning the land of the Olunloye family is quite apt. The court said by their appearance and demeanor in the witness box turned out with premeditated intention to prevaricate and to waste the time of the court with the result that the allegation raised in the statement of defence were not supported by evidence.
I agree with the learned trial Judge’s findings at page 88 of the record when he said as follows:
“There is no evidence to support paragraphs 4 and 5 of the defence that not all the entire land of the Olunloye family was held and managed jointly by the family. There is also no evidence of the portion of the family land that was partitioned, the mode of the partition and those involved in the partition as a result of which according to the Defendant the land became vested in Karimu Okoosi”.
At page 90, the court held:
“Exhibit ‘C’ read together with exhibit ‘A1’ showed that exhibit ‘A1’ was signed by the lawful attorney of the Olunloye family. The piece of evidence was not challenged, leading to the conclusion that the head and principal members of the Olunloye family consented to the sale of the land in dispute to the Plaintiff. Plaintiff further led evidence, corroborated by P.W.2 that he was put in physical possession of the land and surveyed same with the consent and approval of the Olunloye family. The evidence was also not challenged. By acknowledging the receipt of payment of money by the Plaintiff vide exhibits ‘A’ – ‘A1’ coupled with the actual delivery of possession, the Olunloye family are deemed in law to have transferred a valid title in the land in dispute to the Plaintiff under native law and custom. See ODUSOSA VS. RICKETTS (1997) 7 SCNJ Page 135 at 145. I therefore find and hold that the Plaintiff, having obtained a valid title to the land in dispute is entitled to the declaration sought”.
The findings of the learned trial Judge are based mainly and substantially on its assessment of the quality and credibility of witnesses who testified before the court. To reverse the decision based on such perimeter, an Appellate Court must not only entertain doubts that the decision of the trial court is right but must also be convinced that it is wrong. See NEPA VS. ROLE (2000) 7 N.W.L.R. Part 663 at 69 and OGUEJIOFER VS. NWAKALOR (2011) Vol.34 W.R.N. Page 135 at 160 lines 15 – 20.
I cannot but comment on the argument of the Appellant’s Counsel on the provision and purport of Section 34 of the Evidence Act whereby he urged the lower court to hold that there was partition. I agree with the learned trial Judge that evidence in previous proceedings can never be accepted as evidence in a later case except where Section 34(1) of the Evidence Act applies and which is not the case here. See ILUYOMADE VS. OGUNSAKIN (2001) 8 N.W.L.R. Part 716 Page 559 or to discredit the witness in the latter case. See JOHNSON VS. OSAYE (2001) 9 N.W.L.R. Part 19 at 729; BIDA VS. ABUBAKAR (2011) Vol. 25 W.R.N. page 79 at 124 – 126 and Section 209 of the Evidence Act.
The decision in my opinion is sound and right in the circumstance. The arguments of the Appellant in his brief are of no moment and I hold the view that the lower court rightly gave judgment in favour of the plaintiff who is now the Respondent before this court. Issue one is hereby resolved against the Appellant.
ISSUE 2
Whether the court below was right in awarding the sum of N134,800 as special damages in favour of the Plaintiff against the Defendant.
Learned Counsel for the Appellant submitted that there must be actual and exclusive possession by the Plaintiff to be rooted in law before a Defendant could be said to be liable in trespass. Placed reliance on the case of EKRETSU VS. OYOBEBERE (1992) 9 N.W.L.R. Part 266 Page 438 at 455 Para F. Submitted further that trespass consists of any unjustifiable intrusion or interference upon land in possession rf another. See the case of ABHULIMHEN VS. NAMME (1992) 8 N.W.L.R. Part 258 page 202 at 210. Submitted further that could the Appellant have trespassed on the land of which the Respondent was not in possession? Could it be possible that the Appellant trespassed on his own land? Submitted that since trespass is injurious to possession, a person which is not in possession could not be trespassed upon. Thus since the Respondent was not in possession, no trespass could have been committed against him in the Appellant.
Appellant’s Counsel agreed that the item of special damages was pleaded in the Statement of Claim at paragraph 20 page 9 of the record of appeal. However he contended that the pleaded special damages was not proved strictly according to law. He contended that the Appellant was wrongly adjudged to have been liable in special damages since the Respondent was not in actual and exclusive possession of the land in dispute and thus the Appellant would not have trespassed on the land. The court below acted on wrong premises of law in the award of special damages which ought to have been strictly proved according to law by according probative value to exhibits ‘E’ and ‘F’ which are ‘invoices’ instead of ‘receipts’ and thereby came to a wrong decision’ Learned counsel for the Appellant urged the court to resolve this issue in favour of the Appellant
It is the Respondent’s evidence that the Appellant entered the land and destroyed the blocks and the corner piece thereon about 1995 and that despite his challenge and the pendency of a case’ the Appellant did not heed but went ahead to erect a structure on the land.
The learned trial Judge found at page 92 – 93 of the record of appeal as follows:
“On the pleading, the Defendant did not join issue with the Plaintiff on the above allegation. In fact, in paragraph 12 of his amended defence, he admitted that the Plaintiff challenged him on the land in 1995. The evidence of the Plaintiff on the alleged acts of trespass was controverted under cross-examination…” As stated earlier, the Defendant admitted both in his pleading and evidence that he entered the land in dispute…. He did not only entered the land, he erected a structure thereon, also having not denied the allegation and the evidence of destruction to corner piece demarcation and blocks, the Defendant is hereby deemed to have admitted that the Plaintiff was in possession of the land and that he disturbed his possession and caused damage to him. I therefore find the Defendant liable in damages for trespass’ I find and hold that the Plaintiff has proved his entitlement to the sum of N134,800 as special damages which is hereby awarded”
Respondent pleaded his acts of possession in paragraphs 8, 9, 10 of his claim and led evidence in support that on been put in possession of the land he surveyed same vide exhibit ‘D’ and caused four corners piece demarcation to be erected thereon in 1994 on which he spent N14,800 and for which he tendered exhibit ‘E’, an invoice of Topas Builders for N14,800.00k. He further testified to have bought in 1995 and put on the land 3000 blocks for which he tendered exhibit ‘F’ in the sum of N120,000.00k. There is also a receipt for N10,000.00k exhibit ‘B’ to ‘B2’ issued by Layori Hospital for treatment for high blood pressure.
In a claim for trespass, what is primarily in issue is the possession of the land in dispute. See the case of AKEEM VS. OKUMADE (1978) 3 S.C. 129 at 137. Any form of possession so long as it is clear and exclusive and exercised with intention to possess is sufficient to support an action against a wrong doer. A mere trespasser as the Appellant in this instance who goes into occupation cannot however by the very act of trespass and without acquiescence give himself possession against the person whom he has ejected. See KOPEK VS. EKISOLA (2010) 41 N.S.C.Q.R. Page 553 at 575 Per OGUNTADE J.S.C.
Appellant did not challenge the evidence of the Respondent on damages. The law is certain that where evidence before a trial court is unchallenged, it is the duty of the court to accept and act on it as it constitutes sufficient proof of a party’s claim in proper cases. See KOPEK VS. EKISOLA Supra at Page 609.
Damages are in essence a question of fact rather than of law. Appeals on damages are therefore generally confirmed to rare cases where either the court applies the wrong measure of damages or where further findings were not open to the Judge on the facts. As a matter of general principle, an Appellate Court would not interfere with an award of damages by a trial court simply because faced with a similar situation and circumstances, it would have awarded a different amount. An appeal court will however interfere with an award by a trial court where it is clearly shown:
(a) That the trial court acted upon wrong principle of law;
(b) That the amount awarded by the trial court is ridiculously too high or too low;
(c) That the amount was entirely erroneous and unreasonable estimated having regard to the circumstances of the case.
See ODUWOLE VS. TAM DAVID WEST (2010) 42 N.S.C.Q.R. Page 259 at 279 Per FABIYI J.S.C.
I am in tandem with the award on special damage by the trial court as it has been specifically proved. The trial court ascribed possession to the Respondent because he has a better title than the Appellant to put it mildly.
A person who has title over a piece of land though not in de facto physical possession is deemed in the eyes of the law to be the person in possession. See OGUEJIOFOR VS. NWAKALOR (2011) 34 W.R.N. Page 135 at 160. Issue 2 is also resolved against the Appellant.
Finally, the appeal lacks merit and it is accordingly dismissed. The judgment of the lower court delivered on the 11th of November 2004 by Hon. Justice O. A. Onafowokan is hereby affirmed. The cost of N30,000.00k is hereby awarded against the Appellant.
STANLEY SHENKO ALAGOA, J.C.A.(OFR): I read before now the judgment just delivered by my brother Modupe Fasanmi (JCA) and I am also of the view that the appeal lacks merit and should be dismissed. I also dismiss same and affirm the judgment of the lower court delivered on the 11th November 2004. I abide by the order on costs contained in the lead judgment.
ADZIRA GANA MSHELIA, J.C.A.: I had a preview of the judgment just delivered by my learned brother Fasanmi, J.C.A, I agree with the reasoning contained therein and the conclusion arrived thereat. For the reasons set out in the lead judgment which I adopt as mine, I too find no merit in the appeal and it is dismissed. I would abide by the order of costs made in the lead judgment.
Appearances
Chief B.A. Sulemon AwoniranFor Appellant
AND
Respondent was served but absentFor Respondent
