MAVOLO v. MAWHEL (2020)

MAVOLO v. MAWHEL

(2020)LCN/14573(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Friday, September 18, 2020

CA/J/301/2018

RATIO

PLEADINGS: THE ILLITERATE JURAT

It is trite that the illiterate jurat is for the protection of the illiterate and meant to be a shield to the Deponent and not a weapon to the deponent or any other person. SeeDAVIS OBINNA EGBUCHULAM AND ANOR V. LUKU EGBUCHULAM AND ANOR (2014) LPELR – 22831. The purpose of a jurat column again can be said to fulfill the requirement of the illiterate protection Law. See OLUSOLA FATUNBI AND ANOR V EBENEZER O. OLANLOYE AND ORS (2004) 6-7 SC 68. It is also the law that the fact that the provision of the Illiterate Protection law is not complied with could not mean that the document in issue for that reason is void, of no effect and inadmissible. See the case of IRO EZERA V INYIMA NDUKWE (1961) 1 ALL NLR 564, ANYABUMSI V UGWUNZE (1995) 6 NWLR (Pt. 401) 255, T.A.O. WILSON A. AND ANOR V A.B. OSHIN AND ORS (2000) 6 SCNJ 371 at 397, ADEYEMI OGUNLEYE V MATHEW IGE SAFEJO (2009) LPELR – 8081.
From the foregoing, it therefore suffice to say that the argument of the learned Counsel to the Appellant is not only unfounded but devoid of any substance therefore the learned trial judge was right in evaluating PW2’s evidence as contained in his witness statement on Oath dated 24th day of September, 2014. Per MUDASHIRU NASIRU ONIYANGI, J.C.A.

RATIO

PLEADINGS: COUNTER CLAIM.

Let me first ask the question, what is a counter claim? In the case of NSEFIK V MUNA (2007) 10 NWLR (Pt. 1043) 502, a counter claim is described as an action in law that allows the Defendant to maintain an action against the Plaintiff where in the counter claim is directly related to the principal claim, see A.G. KWARA STATE V. OJULARI (2007) 1 NWLR (Pt. 1016) 551 at 581. Further to this, a Plaintiff’s claim and a Defendant’s counter-claim are two independent actions wherein the Court gives separate judgment both in the original claim and the counter claim. It is also trite that a Defendant in an action who allege that he has any claim or entitled to any relief against a Plaintiff in an action may instead of bringing a separate action, make a counter-claim in respect of that matter. He does so by adding a counter claim to his defence, see SHEMAR NIG. LTD V MOKT INDUSTRIES LTD (2009) LPELR – 8871. For all intent and purposes, a counter claim is raised by a Defendant in opposition to or deduction from the Plaintiff claim. It is distinct, separate, and exclusive to the action by the Plaintiff from which it emanates. See AIR VIA LTD V ORIENTAL AIRLINE LTD (2004) 9 NWLR (Pt. 878) 298, ODUWOLE V L.S.D.P (2004) 9 NWLR (Pt.878) 383, NBN LTD V A.T. ENG. CO. LTD (2006) 16 NWLR 210 at 223. It is also settled that a counter claim is a cross and independent actions completely distinct from the action brought by the original Plaintiff but tried in the original Plaintiff’s claim. Hence the Defendant counter Claimant stands as Plaintiff while the original Plaintiff becomes a Defendant. On nature of counter claim seeALHAJI H.A. OGIREN V MRS OLUFUNMILAYO AND ORS (2015) LPELR – 24295, DABUP V KOLO (1993) 3 NWLR (Pt. 317) 254, OBMIAMI BRICK AND STONE (NIG) LTD V A.C.B. LTD (1992) 3 NWLR (Pt. 229) 260.

From all the foregoing, it is clear as crystal water that, it is only the Defendant in an action that can counter claim against the Plaintiff who initiated the original suit. That procedure is not open to the Plaintiff who filed the original suit to counter claimed against the Defendant by filing a counter claim against the counter claim of the Defendant. What the Plaintiff/Appellant did by his so called counter claim, in my humble view is an abuse of Court process. It could again be a misunderstanding or lack of knowledge of the procedure Rules. He is trying to talk from both sides of his mouth. This should not be allowed. It is outrightly condemned. All his arguments in support of that plight are hereby discountenanced. Being a void process, the Defendant counter claimant ought not file any process in response to such void process and hence all argument by the Appellant on unchallenged evidence and admission are of no moment. Both questions are therefore answered in the negative and hence issue two is resolved against the Appellant Per MUDASHIRU NASIRU ONIYANGI, J.C.A.

RATIO

PLEADINGS: PROLIFERATION OF ISSUES

Presenting the two issues which are meant to achieve the same objective goal in the end is like “killing an ant with a sledge hammer”. This amounts to nothing but a proliferation of issues. This Court and the Apex Court in a chain of decided cases has made pronouncements against proliferation of issues. It has been condemned in an unequivocal terms. It is ideal and proper to formulate an issue from more than one ground of appeal. But it is wrong and highly deprecated to formulated same issue from different grounds of appeal. Issue three is sufficient to take care of the complaint of the Appellant in issue 4. Therefore, issue 4 constitutes a proliferation of issues. See LAWAL V SALAMI (2002) 2 NWLR (Pt. 752) 658, UNILORIN V. OLUWADARE (2003) 3 NWLR (Pt. 808) 557, BENDEL STATE V AIDEYAN (1989) 4 NWLR (Pt. 118) 646, AGU V IKEWIBE (1991) 3 NWLR (Pt. 180) 385, CHIEF EMMANUEL EYO ETA AND ANOR V ELDER CHIEF OKOH H. A. DAZIE (2013) LPELR – 20136. It is rather preferable to frame an issue from a combination of grounds but not to formulate similar and same issues from several ground. See NWUDENYI AND ORS V ALEKE (1996) 4 NWLR (Pt. 442) 349, LABIYI V ANRETIOLA (1992) 10 SCNJ 1 at 2.
In consequence of the foregoing, I discountenance issue 4 and strike same out with the argument thereto. Per MUDASHIRU NASIRU ONIYANGI, J.C.A.

RATIO

PLEADINGS: WHAT IS FORFEITURE

Before that, I ask the question “What is forfeiture” In the case of AKINLAGUN V. OSHOBOJA (2006) 12 NWLR (Pt. 993) 60 at 89, Tobi JSC of blessed memory in providing meaning to forfeiture in Customary Tenant Relationship said thus:
“Forfeiture is a mantra in customary tenancy relationship. “Forfeiture is a punishment annexed by law to some illegal act or negligence, in the owner’s land, tenements or hereditaments, whereby he loses all his interest therein, as a recompense for the wrong which either he alone, or the public together with himself, has sustained.”
The Black’s Law Dictionary, Seventh Edition at page 661 define forfeiture as follows:-
“Forfeiture is the loss of a right, privilege, or property because of a crime, breach of obligation or neglect of duty.”
It is trite that acts of misbehavior that will ground or attract forfeiture of customary tenancy amongst others include: (a) Refusal to pay rent or tribute;
(b) Refusal to provide the customary services stipulated;
(c) Use of land for a different purpose; or
(d) Denial of title of the overlord;
See the following case AKINLAGUN VS OSHOBOJA (2006) 12 NWLR (Pt.993) 60 at 89, OGUN V AKINYELU (2004) 18 NWLR (Pt. 905) 362, ELEGUSHI V OSENI (2005) 14 NWLR (Pt. 945) 348, ADEDEJI VS OLOSO (2007) 5 NWLR (Pt. 1026) 133, IROAGBARA V UFOMADU (2009) 11 NWLR (Pt. 1153) 587.

The case of the Appellant is that he has not committed any act of misbehavior. He also asserted that he did not ask for ownership of the land in his suit against the Respondent at the Upper Area Court Pankshin or the Customary Court of Appeal or any other Court.

Looking through this record of Appeal, at page 64, it can be seen from the judgment of the Upper Area Court Pankshin that the claim of the Appellant before the Court is as follows (see page 64 paragraph 25:-
“The Plaintiff is claiming against the Defendant a piece of farm which he claim is situate at Fakos in Tarangol – Bokko of Mangu L.G.A….”

The trial Upper Area Court Pankshin in the end concluded as follows:- (see page 69 of the record, paragraphs 13- 20) thus:-
“I believe that the farm belong to the first Defendant who loaned it to the 2nd and 3rd Defendants and that it was through the grace of the Defendants that the Plaintiff got the part of the place to build on, one is really surprise that the Plaintiff now turned round to want to send away his benefactors from the area. The claim of the Plaintiff is hereby dismissed. Appeal is within 30 days from today.”

The Appellant was not happy with the outcome of the trial hence appealed to the Customary Court of Appeal Plateau State holding in Jos. His complaint before that Court as can be gleaned from pages 71-72 of the record goes thus (see page 77, paragraphs 25 45):-
“The trial Court erred in law and on fact when it declared the whole of the disputed land for the Respondent, including the house of the Appellant and this has occasioned a serious miscarriage of justice.”
PARTICULARS OF ERROR
(i) Whereas the Appellant tendered a site plan and a certificate of occupancy in respect of the said land, the trial Court without making any comment on the site plan, erroneously held that the certificate of occupancy is in respect of a residential area and not a farmland, the trial Court ought to have declared the place covered by the said certificate of occupancy (C of O) for the Appellant, but the trial Court failed to so do and thus has occasioned a miscarriage of justice.
(ii) Whereas, the Appellant had been on the disputed land for quite a length of time and developed greatly the disputed land the trial Court failed to take this into consideration in its judgment and this has occasioned a miscarriage of justice.”

In the end, the learned judges of the Customary Court Plateau State concluded as follows:- (see page 76 of the Record of Appeal).
“On the whole, ground three of this appeal cannot succeed and therefore fails. And the Plaintiff/Appellant’s title having been knocked out of the bottom, it will not serve any useful purpose for us to consider the remaining ground of this appeal. Accordingly, the appeal has failed and it is hereby dismissed with N80 cost awarded against the Plaintiff/Appellant.”

Dissatisfied with the foregoing decision of the Customary Court of Appeal the Appellant filed an appeal at the Court of Appeal Jos Division. In the opening paragraph of its judgment the Court said (see page 77 of the Record):
“This appeal is on title to land… The Appellant as Plaintiff claimed against three Respondent as Defendants a piece of farmland situated at Fokos Tarangon in Bokkos District of Mangu Local Government Area……” In the considered judgment of the Court of Appeal Jos Division, the Appellants appeal was dismissed for lacking in merit.Miffed by the outcome of the appeal, the Appellant appealed to the Supreme Court vide appeal No. SC.181/1999. On the 12th day of May, 2003, the appeal was withdrawn by the Appellant and same was dismissed (see page 96 of the Record of Appeal)
The cumulative effect of the foregoing is that the Appellant is laying claim to the piece of farm land located at Fokos in Tarangol – Bokkos of Mangu L.G.A. The foregoing negates the argument of the Appellant that he was not claiming ownership of the land in issue. By the claim of the Appellant and the reliefs sought therein in the respective Courts, it is clear, certain and unambiguous that the bid and pursuit of the Appellant is for the ownership of the piece of land herein before described. There is that undisputed finding of the trial Court that the Appellants are customary tenants. That finding is still subsisting and affirmed by both the Customary Court of Appeal Plateau State and the Court of Appeal Jos Division. Their decisions are subsisting and valid. If the bid of the Appellant is to claim ownership of the land in dispute, then by that course of litigation undertaken by the Appellant, it could be said that the Appellant as a customary tenant has breached one of the conditions that could amount to act of misbehavior of a customary tenant which could attract an order of forfeiture as in this appeal at hand. The respective litigation by the Appellant against the Respondent constitutes a positive step and pursuit by the Appellant being a customary tenant to deny his overlord the title to the land in dispute. That is to say that the Appellants claim at the Upper Area Court Pankshin and his subsequent appeal to the Customary Court of Appeal, Plateau State, and the Court of Appeal Jos Division is a clear manifestation of his desire to divest the Respondent of the ownership of the land. The finding and conclusions of the respective Courts and appellate Court are sufficient in the circumstance to warrant the grant of the order of forfeiture in favour of the Respondent. On that note, I have no justifiable reason to disturb the finding of the trial Court on the order of forfeiture against the Appellant. Accordingly, I resolve this issue against the Appellant. See BELLO MUSA MAGAJI V ALHAJI ISHOLA ARE OGELE (2012) LPELR – 9476, PILLARS NIG. LTD V MRS HANNAH DESBORDES AND ORS (2009) LPELR – 8204. Per MUDASHIRU NASIRU ONIYANGI, J.C.A.

RATIO

PLEADINGS: AWARD OF DAMAGES

It is trite that the main object of award of damages is to compensate the Plaintiff for the damages, loss or injury suffered by him. This is described as “restitution in integrum”. The object of this is that a party which has been damnified by the act complained of must be put in the position which he would have been had he not suffered the wrong for which he is being compensated. See the case of Chief S. I. AGU V GENERAL OIL LIMITED (2015) LPELR – 24613, NEPA V R. O. ALLI AND ANOR (1992) 10 SCNJ 34, ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY AND ANOR V EKWENEM (2009) 6-7 (Pt. 11) SC. 5.

It is the case of the Respondent even at the trial Upper Area Court in defending the case of the Appellant against him that the Appellant is a customary tenant. It is trite that in order to award damages in a case of trespass, the Defendant must be found liable for trespass. See ALHAJI ISIYAKU YAKUBU V IMPRESIT BAKOLORI PLC AND ORS (2010) LPELR – 5110. What I am saying is that in a claim for damages for trespass and an injunction to retrain further trespass, once there is a finding of trespass, the claim for damages and injunction must be awarded. See MR. EDWARD DALOBA V ESTHER S. RIPIYE & ORS (2010 LPELR – 4014, OGUNYOMBO V OOKOYA (2002) 16 NWLR (Pt. 793) pg. 224. It is also the law that a claim for damages for trespass lies at the suit of the party in possession or that party who is entitled to possession. See ANIMASHAUN V OLOJO (1990) 10 SCNJ 43 at 49, MORENIKEJI V ADEGBOSIN (2003) 4 SCNJ 105, CHIEF OKEY MBANASO V DAVIDSMITH OFFOR AND ORS (2012) LPELR – 19683. Therefore, it is also the law that trespass is actionable perse and once proved, a Plaintiff is entitled to damages even without the proof of actual injury resulting from the wrongful act complained off constituting the trespass. See OKHUAROBO V AIGBE (2002) 9 NWLR (Pt. 771) 29, AJAYI V JOLAOSHO (2004) 3 NWLR (Pt. 856) 89; ZENITH BANK PLC V MRS ELIZABETH UMOM (2013) LPELR – 22001.
I have said somewhere before now that misconduct or misbehavior render the tenancy of a customary tenant liable to forfeiture. Conversely, it is also trite that an overlord who is not in possession of a piece of land occupied by his tenant as in this appeal at hand cannot sue the tenant for trespass. Where therefore, such an overlord cannot sue his tenant for trespass other than for forfeiture, it therefore stand to reason that such tenant who has the authority of his overlord to enter the land cannot be held liable for trespass. See OBA AFOLAYAN ABIOYE V OBA FELIX ABIDOYE (2012) LPELR – 19694; ATTABOH IDIH V DR. ALIYU OCHEJA OBAJE (THE ATTAH OF IGALA) AND ANOR (2011) LPELR – 3816, EJEZIE ANENE AND ORS V THEOSOPHY THEOCRAT OKOYE (2013) LPELR – 21877, OGUNSANYA V DADA (1992) 4 SCNJ 162 AT 168, ADESOKAN V ADETUNJI (1994) 6 SCNJ 1 (Pt. 1) 123 at 146.
In the light of the foregoing, it is my ardent view that since the Appellant is a customary tenant of the Respondent and who was put on the land to farm by the Respondent overlord, the Respondent cannot turn round to accuse such tenant of entering the land without his permission nor accused such tenant of trespass. Where issue of trespass is not in existence or found to have been committed, then the claim to damages cannot stand. It will amount to putting something upon nothing. It will not and it cannot stand. You cannot place something upon nothing and expect it to stand. See MACFOY V UAC (1962) AC 152, ONAYEMI V IDOWU (2008) 9 NWLR (Pt. 1092) 306, BILANTE INT. LTD V NDIC (2014) ALL FWLR page 598 at 825. Therefore, it is my conclusion that the finding of the trial Court for trespass and leading to the award of damages of N2,000,000.00 (Two Million Naira) for trespass has no base to stand on. Per MUDASHIRU NASIRU ONIYANGI, J.C.A.

Before Our Lordships:

Adzira Gana Mshelia Justice of the Court of Appeal

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Between

JOSEPH MAPUR MAVOLO APPELANT(S)

And

SAMUEL ELISHA MAWHEL RESPONDENT(S)

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): At the High Court of Justice Plateau State, Jos judicial Division, the Appellant as Plaintiff vide his Writ of Summons dated 27th day of June, 2014 and filed on the 18th day of June, 2014 sought for the following reliefs against the Respondent as Defendant. (See the endorsed Writ of Summons and paragraph 29 of the Statement of Claim on pages 35 and 41 of the Record of Appeal respectively:
“PARAGRAPH 29
WHEREOF the Plaintiff claim against the Defendants jointly and severally is as follows:
(a) A declaration that all that land situate at Fakkos Tarangol, Bokkos L.G.C of Plateau State is in the Plaintiff possession and that they thus can farm or used the land.
(b) A declaration that the Defendants have trespassed unto the land situate at Fakkos Tarangol, Bokkos L.G.C of Plateau State which is in the Plaintiff possession.
(c) An order of perpetual injunction restraining the Defendants by themselves or through their agents or privies from entering into all the land situate at Fakkos Tarangol, Bokkos L.G.C of Plateau State which is in

the Plaintiff’s possession.
(d) N10,000,000.00 damages for trespass to land situate at Fakkos Bokkos L.G.C of Plateau State which is in the Plaintiff’s possession.”

The fact of the case briefly is that the Plaintiffs claimed the ownership of the parcel of land situate at Fakkos Tarangol, Bokkos L.G.C of Plateau State and being in occupation, they can farm on it. In defence, the Defendant joined issues with the Plaintiff and also laid claim to the land in dispute and stating that the Plaintiffs are customary tenant on that land. Not this alone, the Defendant after filing his defence to the Plaintiff’s case, also filed a notice of preliminary objection dated 10th November, 2014 wherein he sought an order of Court striking out the Plaintiffs’ suit for lack of jurisdiction (see pages 33-96 of the record of appeal). In addition, he filed a counter claim. The ground of the preliminary objection to the competence of the suit is that Plaintiff’s suit is caught by the principle of “Res – Judicatam” in that the Plaintiff had earlier challenged the title of the Defendant to

the land before the Upper Area Court Pankshin in Suit No. PUACP/VS/97/86 and wherein after a full trial, the said Upper Area Court dismissed the claim of the Plaintiff. Dissatisfied with the decision of the Upper Area Court, the Plaintiff appealed to the Customary Court of Appeal Jos vide Appeal Number CCA/124A/89. The appeal was dismissed and the judgment of the Upper Area Court Pankshin was affirmed. Pained with the outcome of the appeal, the Plaintiff appealed to the Court of Appeal Jos vide appeal number CA/J/113/1993. In its judgment, the concurrent finding of the Upper Area Court Pankshin and the Customary Court of Appeal Jos was affirmed and the appeal was dismissed. The matter did not end there, the Plaintiff also approached the Supreme Court in appeal No. SC.181/1999 on the 12th day of May, 2003, the appeal haven being withdrawn was dismissed (see pages 64-96 of the Record of Appeal).

Based on the forgoing, the trial Court upheld the objection and dismissed the suit by the Plaintiff/Appellant No. PLD/J306/2014 and called on the Respondent/Defendant to prove his counter claim. Again after a full trial, the learned trial judge in his considered

judgment in favour of the Defendant/counter Claimant/Respondent concluded as follows (see page 240 of the Record of Appeal):
“From the entire circumstances of the case, it is my view that the counter claim has merit. The issue for determination is hereby resolved in favour of the counter claimant, Elisha Mahwel and against the Defendants Joseph Mapur Mavolo and Istifanus Mapur Mavolo. Consequently, judgment is accordingly entered in favour of the counter claimant as per the reliefs in his counter claim for forfeiture. The claim by the Defendants against forfeiture is dismissed. It is ordered as follows:
(1) Forfeiture of the land in dispute by the Plaintiffs/Defendants.
(2) Perpetual injunction restraining the Plaintiffs/Defendants, their privies, servants, agents and whosoever from trespassing on the land in dispute.
(3) N2,000,000.000 (Two Million) damages.”

Miffed by the foregoing outcome of his case, the Plaintiff before the trial Court now Appellant in this Court vide his amended notice of appeal filed on 18th day of November, 2019 containing six grounds sought for the following reliefs:

RELIEFS SOUGHT
“An Order setting aside the decision of the High Court of Justice, Plateau State holding at Jos as contained in the judgment of the High Court of Justice Barkin Ladi, Plateau State dated 16th January, 2018 in suit No. PLD/J306/2014, and in its place an order dismissing the Respondent’s claims and entering judgment in favour of the Appellant in relation to his claims before the said High Court of Justice.”

Consequent upon the transmission of the record of Appeal on 13th July, 2018, the Appellant filed his brief of argument dated 31st October, 2019 on 12th November, 2019. Therein he presented the following issues for determination of the appeal:
APPELLANT’S ISSUE FOR DETERMINATION.
(1) Whether the lower Court was right in evaluating PW2’s evidence whereas his witness statement offended the provisions of Section 119 of the Evidence Act (Ground 2)
(2) Whether the Appellant’s counter claim was not a separate action in response to the only existing claims of the Respondent, and whether in view of the deemed admission of the Respondent to it and the evidence adduced before the lower Court the Appellant was not entitled to

a relief against forfeiture. (Ground 1)
(3) Whether the Appellant’s initial claim before the lower Court was an attempt to divest the Respondent of ownership of the land in issue and whether the Respondent proved his case to be entitled to the relief of forfeiture and other reliefs sought in his counter-claim. (Grounds Nos. 3 and 6)
(4) Whether the Respondent proved that the Appellant by his initial claims before the lower Court committed an act of misbehavior which may entitle him to an order of forfeiture. (Ground No. 4)
(5) Whether the Respondent was entitled to the sum awarded as damages by the lower Court. (ground No. 5)

The Respondent’s brief of argument is dated and filed on the 20th day of December, 2019. He also presented the following issues for determination.
RESPONDENT’S ISSUES FOR DETERMINATION
(1) Whether the persistent challenge of the Title of Respondent through various Court actions by the Appellant from Upper Area Court Pankshin to the Supreme Court amounts to acts of misconduct warranting forfeiture as ordered by the lower Court against the Appellant.
(2) Whether the trial Court was right

when it dismissed the Appellant’s counter claim.
(3) Whether the lower Court properly evaluated the evidence before it.
(4) Whether the trial Court was right when it awarded damages in the sum of Two Million against the Appellant.

Both Counsel adopted their respective brief. Consequent upon that, I have carefully read and consider the respective issues presented by Counsel, and in my view adopting the issues formulated by the Appellant for the determination of this appeal will be proper having regard to the grounds of appeal therein.

ISSUE ONE
“Whether the lower Court was right in evaluating PW.2’s evidence whereas his witness statement offended the provision of Section 119 of the Evidence Act.

It is the argument of the Appellant that the Plaintiff as PW1 abandoned his witness statement and that the only witness statement remaining are only those of Mai-chibi Makau and Istifanus Mapis. He added that while the statement on Oath of Istifanus Mapis was signed and had no illiterate jurat that of Mai-chibi Makau has an illiterate jurat confirming that the witness is an illiterate. He submitted that the PW2’s

witness statement on Oath Offends against the provisions of Section 119 of the Evidence Act, 2011. He added that the jurat column in the PW’s witness Statement on Oath was not signed by the person (Joel Pam) before whom it was taken and no date and place is inserted. He argued that it stands to reason that the content of the statement was not interpreted to the deponent, hence there is no witness statement on oath before the Court to act on. He submitted that where the evidence by law is inadmissible, it is not within the competence of parties in the case to consent to it and where evidence is by law inadmissible, it should never be acted upon by the Court either at trial or on appeal. He relied on the case of ABUUL V BENSU (2003) 16 NWLR Part 81-82 paras. A-F. He added that the lower Court erred in acting on PW2’s witness statement on Oath which is inadmissible in law having regard to Section 119 of the Evidence Act. He urge the Court to hold that the Plaintiff failed to adduce evidence in support of his claim and thus not entitled to any grant.

The Respondent in nowhere reacted to this issue in his brief of argument. Therefore, the issue will

be considered based on the argument proffered by the Appellant on this issue.

The question that agitates the mind is whether or not the witness statement on Oath of PW2 of the Respondent is competent and the Court can act on it?

The complaint of the Appellant is against the witness statement on Oath of PW2 of the Cross Appellant in person of Mai-Chibi Makau and who is listed as the 6th Defendant. The said statement on Oath can be found on pages 27-28 of the Record of Appeal. A proper look at page 28 of the record which contain the jurat column left me in no doubt that the said statement was thumb printed and on the Thumb print, it is written “R.T.I” meaning “Right Thumb Impression”. Even though it is faint but it can be seen as such. Not this alone, there is the jurat column which reads:
“JURAT
This affidavit was read and translated from English to Hausa and vice versa to the deponent by Joel Pam, Legal Practitioner and he appeared perfectly to understand before affixing his tomb. Sworn to at the High Registry Barkin Ladi this 24th Day of Sept., 2014.
Before me
“stamped and signed”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

24/9/2014
Commissioner for Oath.”

The complaint of the Appellant in the main is that the jurat is not signed by Joel Pam.
My understanding of Section 119 of the Evidence Act, 2011 is that there should be a jurat column wherein it should be stated that the content of the document in issue has been read over to the deponent and interpreted to him in the language the deponent understands and that this should be done before the officer before whom the declaration was taken. In my humble view, what that provision is after is to ensure that the content of the document in issue has been read and explained to the illiterate deponent and he understands same before affixing his signature. There is nothing requiring such interpreter to sign. But the jurat column should indicate the name of such interpreter and it should be clear from the document the venue where the Oath taking took place. In this document in issue, it can be seen that the Oath taking took place at the High Court of Justice Barkin Ladi Jos, and before a Commissioner for Oath on 24/9/2014 and it was duly signed. As I said, before, there is the “Jurat column” in the said

Statement on Oath. It is trite that the illiterate jurat is for the protection of the illiterate and meant to be a shield to the Deponent and not a weapon to the deponent or any other person. SeeDAVIS OBINNA EGBUCHULAM AND ANOR V. LUKU EGBUCHULAM AND ANOR (2014) LPELR – 22831. The purpose of a jurat column again can be said to fulfill the requirement of the illiterate protection Law. See OLUSOLA FATUNBI AND ANOR V EBENEZER O. OLANLOYE AND ORS (2004) 6-7 SC 68. It is also the law that the fact that the provision of the Illiterate Protection law is not complied with could not mean that the document in issue for that reason is void, of no effect and inadmissible. See the case of IRO EZERA V INYIMA NDUKWE (1961) 1 ALL NLR 564, ANYABUMSI V UGWUNZE (1995) 6 NWLR (Pt. 401) 255, T.A.O. WILSON A. AND ANOR V A.B. OSHIN AND ORS (2000) 6 SCNJ 371 at 397, ADEYEMI OGUNLEYE V MATHEW IGE SAFEJO (2009) LPELR – 8081.
From the foregoing, it therefore suffice to say that the argument of the learned Counsel to the Appellant is not only unfounded but devoid of any substance therefore the learned trial judge was right in evaluating PW2’s evidence as contained

in his witness statement on Oath dated 24th day of September, 2014. Accordingly, I resolve this issue against the Appellant.

ISSUE (2) TWO
Whether the Appellant’s counter claim was not a separate action in response to the only existing claims of the Respondent, and whether in view of the deemed admission of the Respondent to it and the evidence adduced before the lower Court the Appellant was not entitled to a relief against forfeiture.

The contention of the Appellant is that as at the time the Defendants filed their counter claim their claim as contained in their Writ of Summons had been struck out by the lower Court and as such there was in existence only the Plaintiff’s claim as contained in their counter claim. He added that with the Defendants’ counter claim there existed only two claims before the Court. According to him, the Plaintiff’s counter claim translated to be the only claim before the Court while the Defendant/Appellants counter claim translated to be the only counter claim before the Court. He argued that there was no breach whatsoever of the provision of Order 25 of the High Court (Civil Procedure) Rules of Plateau State 1987

and that the Defendant/Appellant’s counter claim to the Respondent/Defendant counter claimant was properly before the Court. He submitted that a Defendant counter claim is a distinct claim from the Plaintiff’s counter claim. He relied on the case of ANOZIA V A. G. LAGOS STATE (2010) 15 NWLR (Pt. 1216) 207 at 242, PRIME MERCHANT BANK LTD V MAN-MOUNTAIN COMPANY (2000) FWLR (Pt. 9) pg. 1587 at 1593.

Further he argued that the Plaintiff failed to file a defence to the Defendant’s counter claim, therefore the claim of 19th October, 2014 was not challenged and hence the Defendant was entitled to judgment. He relied on the unreported case of this Court in Appeal Number CA/J/113/2017 between Okechukwu Ezeoke (Trading under the name and style KERRY AND CO. ENT. V FIRST BANK NIG. PLC) delivered on 19th June, 2019 per Habeeb Adewale Olumuyiwa Abiru JCA. Relying on Order 27 Rules (1) of the High Court (Civil Procedure) Rules of Plateau State 1987 which permits the entry of judgment in favour of the Plaintiff in the absence of service of a defence on him, he urged the Court to hold in that circumstance that the lower Court

erred in failing to enter judgment to the Plaintiff/Defendant’s counter claim for a relief against forfeiture in relation to the land in issue.

In the alternative as it regards the evidence adduced before the lower Court, he submitted that the evidence led by the Defendants to the Plaintiff’s counter claim and as contained in the witness statement on Oath of the 1st Defendant Mr. Joseph Mapur Mavolo dated 19th October, 2015, the Plaintiff did not file any process in form of a defence or reply to the Defendants counter-claim or a witness statement in response to DW1’s witness statement of 19th October, 2015. He added that evidence that is unchallenged is deemed to have been admitted. He relied on the case of ERESI-EKE V ORIKOHA (2010) 8 NWLR (Pt. 1197) page 421 at 444, OBINECHE V AKUSOBI (2010) 12 NWLR (Pt. 1208) pages 416. He urged the Court to hold that the Defendant (Appellant’s) counter claim is unchallenged but admitted by the counter claimant (Respondent). He urged the Court to set aside the finding of the trial Court. He added that the Defendant (counter claimant) is guilty of larches, standing by and acquiescence with

respect to the Plaintiff’s usage over the years of the land in issue as burial site for their love ones, farming and living thereon. He recounted names of ten demised relations of the Plaintiff (counter Respondent).

On defence of estoppel raised by the Appellant (Cross Respondent) against the claim of the Cross Appellant for forfeiture, he argued that the Cross Appellant did not plead any fact to show that he was not estoppel from obtaining a forfeiture order against the Cross Respondent/Appellant and did not adduce any evidence to show that he was not estopped. He referred to the evidence of DW2 to the counter claim to the effect that the failure of the Cross Appellant to remove the Cross Respondent/Appellant from the land made the Cross Respondent to belief that he was no longer interested in removing or evicting them from possession. He relied on Section 169 of the Evidence Act, 2011. He cited the case of IGBINOKPOGIE V OGEDEGBE 8 NSCQR page 522 at page 531 to 532. He urge the Court to hold that the Cross Appellant has not taken steps to show that the Cross Respondent/Appellant’s usage of the land to bury their relations was unacceptable to

him and hence bound by the Custom of Ron people in relation to burial and that the Cross Appellant failed to take the necessary and timely stapes to enforce his right of forfeiture for any perceived misconduct.

It is also his contention that reliefs against forfeiture is granted when undue hardship will be occasioned. He relied on the case of ARE AND ORS V IPAYE AND ORS (1986) 3 NWLR (Pt. 29) page 416 at 433. He urged the Court to hold that Cross Appellant is bound by the Customary Law of the Ron people and therefore is estopped from obtaining a forfeiture order against the Cross Respondent who are entitled to an order against forfeiture.

On the order of forfeiture, it is the argument of the Cross Appellant that it is trite law and backed up by litany of decided cases that action by customary tenants challenging the title of the overlord amount to misconduct that warrants forfeiture of the tenant’s right to continue to occupy the customary land. He relied on the case ofIDOWU ADEAGBO AJAO AND 4 ORS V ARASI OBELE AND 1 OR (2005) 5 NWLR 400 at 406. He argued that the action of the Appellant (Cross Respondent’s) against the Cross Appellant

at the Upper Area Court Pankshin and subsequent appeals to the Customary Court of Appeal, Jos the Court of Appeal Jos Division and the Supreme Court are clear indication of a claim to ownership of the disputed land. It is also a direct denial of the Cross Appellant’s Right over the disputed land. He relied on the case ofBISIRIYU AND 3 ORS V TAIWO OSHOBOJA AND 1 OTHER (supra). He urge the Court to hold that the learned trial judge was right in granting the relief of forfeiture against the Appellant Cross Respondent. He added that the Cross Respondent/Appellant by his conduct had consistently continued to challenge the Cross Appellant’s title to the disputed land and as such broken the tenant landlord relationship. He relied on the case of OGUNOLA V EIYEKOLE (1990) 4 NWLR (Pt. 146) 632, BISIRIYU AKINLAGUN 3 ORS V TAIWO OSHOBOJA AND 1 OR (2006) 12 NWLR, 60 at 87-88. He urge the Court to consider the conduct of the Appellant who had claimed title to the disputed land in the Upper Area Court Pankshin and when he lost proceeded on appeal to the Customary Court of Appeal, Jos, Court of Appeal Jos Division and the Supreme Court. Not that alone, he

again instituted another fresh action after losing in all the aforementioned Courts making same claim.

The contention of the Appellant simplicita by this issue distilled from ground one of the Grounds of Appeal is that the Court failed to consider his counter claim as a Cross Respondent to the counter claim by the Defendant counter claimant. Secondly, he contended that the failure of the Cross Appellant to respond by filing any counter process to his “Plaintiff” counter claim to the “Respondent’s” counter claim constitutes an admission warranting a grant of an order against forfeiture. The question is whether Plaintiff/Respondent to the counter claim by a Defendant counter claimant can again file a counter claim against the counter claim by the Defendant/counter Claimant and whether the failure of the Defendant Counter Claimant to respond to the “Counter claim” by the Plaintiff constitutes an admission that would entitle the Plaintiff Counter Respondent to an order against forfeiture order to be made against him?

Let me first ask the question, what is a counter claim? In the case of NSEFIK V MUNA (2007) 10

NWLR (Pt. 1043) 502, a counter claim is described as an action in law that allows the Defendant to maintain an action against the Plaintiff where in the counter claim is directly related to the principal claim, see A.G. KWARA STATE V. OJULARI (2007) 1 NWLR (Pt. 1016) 551 at 581. Further to this, a Plaintiff’s claim and a Defendant’s counter-claim are two independent actions wherein the Court gives separate judgment both in the original claim and the counter claim. It is also trite that a Defendant in an action who allege that he has any claim or entitled to any relief against a Plaintiff in an action may instead of bringing a separate action, make a counter-claim in respect of that matter. He does so by adding a counter claim to his defence, see SHEMAR NIG. LTD V MOKT INDUSTRIES LTD (2009) LPELR – 8871. For all intent and purposes, a counter claim is raised by a Defendant in opposition to or deduction from the Plaintiff claim. It is distinct, separate, and exclusive to the action by the Plaintiff from which it emanates. See AIR VIA LTD V ORIENTAL AIRLINE LTD (2004) 9 NWLR (Pt. 878) 298, ODUWOLE V L.S.D.P (2004) 9 NWLR (Pt.878) 383, NBN LTD V A.T. ENG. CO. LTD (2006) 16 NWLR 210 at 223.

It is also settled that a counter claim is a cross and independent actions completely distinct from the action brought by the original Plaintiff but tried in the original Plaintiff’s claim. Hence the Defendant counter Claimant stands as Plaintiff while the original Plaintiff becomes a Defendant. On nature of counter claim seeALHAJI H.A. OGIREN V MRS OLUFUNMILAYO AND ORS (2015) LPELR – 24295, DABUP V KOLO (1993) 3 NWLR (Pt. 317) 254, OBMIAMI BRICK AND STONE (NIG) LTD V A.C.B. LTD (1992) 3 NWLR (Pt. 229) 260.

This should not be allowed. It is outrightly condemned. All his arguments in support of that plight are hereby discountenanced. Being a void process, the Defendant counter claimant ought not file any process in response to such void process and hence all argument by the Appellant on unchallenged evidence and admission are of no moment. Both questions are therefore answered in the negative and hence issue two is resolved against the Appellant.

My next consideration will be on issues 3 and 4. I herein under reproduce the two issues:
ISSUE 3
Whether the Appellant’s initial claim before the lower Court was an attempt to divest the Respondent of ownership of the land in issue and whether the Respondent proved his case to be entitled to the relief of forfeiture and other reliefs sought in his counter-claim (Grounds No. 3)
ISSUE 4
Whether the Respondent proved that the Appellant by his initial claims before the lower Court committed an act of misbehaviour which may entitle him to an order of forfeiture (Ground No. 4)

A sober reading of the foregoing issues 3 and 4, suggests to me that, they both are challenging the validity

and appropriateness or otherwise of the order of forfeiture made by the trial Court. Presenting the two issues which are meant to achieve the same objective goal in the end is like “killing an ant with a sledge hammer”. This amounts to nothing but a proliferation of issues. This Court and the Apex Court in a chain of decided cases has made pronouncements against proliferation of issues. It has been condemned in an unequivocal terms. It is ideal and proper to formulate an issue from more than one ground of appeal. But it is wrong and highly deprecated to formulated same issue from different grounds of appeal. Issue three is sufficient to take care of the complaint of the Appellant in issue 4. Therefore, issue 4 constitutes a proliferation of issues. See LAWAL V SALAMI (2002) 2 NWLR (Pt. 752) 658, UNILORIN V. OLUWADARE (2003) 3 NWLR (Pt. 808) 557, BENDEL STATE V AIDEYAN (1989) 4 NWLR (Pt. 118) 646, AGU V IKEWIBE (1991) 3 NWLR (Pt. 180) 385, CHIEF EMMANUEL EYO ETA AND ANOR V ELDER CHIEF OKOH H. A. DAZIE (2013) LPELR – 20136. It is rather preferable to frame an issue from a combination of grounds but not to formulate similar and same issues from

several ground. See NWUDENYI AND ORS V ALEKE (1996) 4 NWLR (Pt. 442) 349, LABIYI V ANRETIOLA (1992) 10 SCNJ 1 at 2.
In consequence of the foregoing, I discountenance issue 4 and strike same out with the argument thereto. Issue 3 will therefore be considered.

The argument of the Appellant on issue 3 is that his initial claim before the lower Court was not an attempt to divest the Respondent of ownership as found by the lower Court. He argued that they never claim for possession in their claims against the Defendant/Respondent. It is also their contention that the Respondent failed to prove his case to be entitled to an order of forfeiture on the balance of probabilities as required by law. He relied on Section 131(1) of the Evidence Act, 2011 (as amended). He referred to the claims before the Upper Area Court, Customary Court of Appeal, and the Court of Appeal to justify his argument that Appellant never asked for ownership of the land in issue. It is his argument that the Exhibits 1, 2 and 3 which are judgments of the Upper Area Court Pankshin, Customary Court of Appeal Jos Plateau State, and Court of Appeal Jos Division are not proof of forfeiture.

He argued that to prove forfeiture, the claimant is expected to show by evidence that there are circumstances which have now arisen that necessitates his reclaiming of the land which has been awarded to him but which he was yet to recover. He relied on the case of MAKINDE V AKINWALE 1 SCNQR (supra). He submitted that the Plaintiff failed to show any circumstances whatsoever that will impress on the lower Court the need for an order of forfeiture of possession of the land. On need to adduce evidence on pleaded facts and consequence of failure to adduce evidence on pleaded facts, he relied on the case of KAYDEE VENTURES LTD V MIN. FCT (2010) 7 NWLR (Pt. 1192) page 171 at 204, S.F.P. LTD V NDIC (2012) 10 NWLR (Pt. 309) pg. 522 at 549, SPL INTERS (NIG) LTD V OASIS FINANCE LTD (2013) 8 NWLR (Pt. 1385) page 188 at 226, BALOGUN V E.O.C.B (NIG LTD) (2007) 5 NWLR (Pt. 1028) pg. 584 at 602. He urged the Court to hold that the Plaintiff/Respondent failed to prove his averment as to his entitlement to forfeiture relief as pleaded. He urge the Court to set aside the judgment of the lower Court and dismiss the claims/reliefs sought by the Defendant/Counter Claimant.

On behalf of the Respondent, it is submitted that it is trite law backed by litany of decided cases that action by customary tenants challenging the title of the overlord amount to misconduct that warrants forfeiture of the tenant’s right to continue to occupy the customary land. He relied on the case of IDOWU ADEAGBO AJAO AND 4 ORS V ARASI OBELE AND 1 OR (2005) 5 NWLR, 400 at 406. He added that the action of the Appellant against the Respondent in the Upper Area Court Pankshin and the subsequent appeals to the Customary Court of Appeal Plateau State, the Court of Appeal Jos Division, and the Supreme Court are clear indications of a claim to ownership of the disputed land and a direct denial of the Respondent’s right over the said land. It is their case that the punishment for forfeiture attached to an act or acts of misbehavior or misconduct on the part of a tenant in which denial of the title of the overlord has been held to be most serious and grievous. He relied on BISIRIYU AKINLAGUN AND 3 ORS V TAIWO OSHOBOJA AND 1 OR (2006) 12 NWLR 60 at 87-88, IDOWU ADEAGBO AJAO AND 4 ORS V ARASI OBELE AND 1 OR (supra). He urged the Court to so hold.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the light of the foregoing, the pertinent question is whether or not the Respondent is entitle to an order of forfeiture against the Appellant having regard to the facts and circumstance of this appeal?

(a) Refusal to pay rent or tribute;
(b) Refusal to provide the customary services stipulated;
(c) Use of land for a different purpose; or
(d) Denial of title of the overlord;
See the following case AKINLAGUN VS OSHOBOJA (2006) 12 NWLR (Pt.993) 60 at 89, OGUN V AKINYELU (2004) 18 NWLR (Pt. 905) 362, ELEGUSHI V OSENI (2005) 14 NWLR (Pt. 945) 348, ADEDEJI VS OLOSO (2007) 5 NWLR (Pt. 1026) 133, IROAGBARA V UFOMADU (2009) 11 NWLR (Pt. 1153) 587.

Pankshin in the end concluded as follows:- (see page 69 of the record, paragraphs 13- 20) thus:-
“I believe that the farm belong to the first Defendant who loaned it to the 2nd and 3rd Defendants and that it was through the grace of the Defendants that the Plaintiff got the part of the place to build on, one is really surprise that the Plaintiff now turned round to want to send away his benefactors from the area. The claim of the Plaintiff is hereby dismissed. Appeal is within 30 days from today.”

any comment on the site plan, erroneously held that the certificate of occupancy is in respect of a residential area and not a farmland, the trial Court ought to have declared the place covered by the said certificate of occupancy (C of O) for the Appellant, but the trial Court failed to so do and thus has occasioned a miscarriage of justice.
(ii) Whereas, the Appellant had been on the disputed land for quite a length of time and developed greatly the disputed land the trial Court failed to take this into consideration in its judgment and this has occasioned a miscarriage of justice.”

Customary Court of Appeal the Appellant filed an appeal at the Court of Appeal Jos Division. In the opening paragraph of its judgment the Court said (see page 77 of the Record):
“This appeal is on title to land… The Appellant as Plaintiff claimed against three Respondent as Defendants a piece of farmland situated at Fokos Tarangon in Bokkos District of Mangu Local Government Area……”

In the considered judgment of the Court of Appeal Jos Division, the Appellants appeal was dismissed for lacking in merit.

Miffed by the outcome of the appeal, the Appellant appealed to the Supreme Court vide appeal No. SC.181/1999. On the 12th day of May, 2003, the appeal was withdrawn by the Appellant and same was dismissed (see page 96 of the Record of Appeal)

The cumulative effect of the foregoing is that the Appellant is laying claim to the piece of farm land located at Fokos in Tarangol – Bokkos of Mangu L.G.A. The foregoing negates the argument of the Appellant that he was not claiming ownership of the

land in issue. By the claim of the Appellant and the reliefs sought therein in the respective Courts, it is clear, certain and unambiguous that the bid and pursuit of the Appellant is for the ownership of the piece of land herein before described. There is that undisputed finding of the trial Court that the Appellants are customary tenants. That finding is still subsisting and affirmed by both the Customary Court of Appeal Plateau State and the Court of Appeal Jos Division. Their decisions are subsisting and valid. If the bid of the Appellant is to claim ownership of the land in dispute, then by that course of litigation undertaken by the Appellant, it could be said that the Appellant as a customary tenant has breached one of the conditions that could amount to act of misbehavior of a customary tenant which could attract an order of forfeiture as in this appeal at hand. The respective litigation by the Appellant against the Respondent constitutes a positive step and pursuit by the Appellant being a customary tenant to deny his overlord the title to the land in dispute. That is to say that the Appellants claim at the Upper Area Court Pankshin and his subsequent

appeal to the Customary Court of Appeal, Plateau State, and the Court of Appeal Jos Division is a clear manifestation of his desire to divest the Respondent of the ownership of the land. The finding and conclusions of the respective Courts and appellate Court are sufficient in the circumstance to warrant the grant of the order of forfeiture in favour of the Respondent. On that note, I have no justifiable reason to disturb the finding of the trial Court on the order of forfeiture against the Appellant. Accordingly, I resolve this issue against the Appellant. See BELLO MUSA MAGAJI V ALHAJI ISHOLA ARE OGELE (2012) LPELR – 9476, PILLARS NIG. LTD V MRS HANNAH DESBORDES AND ORS (2009) LPELR – 8204.

ISSUE 5
Whether the Respondent was entitled to the sum awarded as damages by the lower Court, (ground No. 5).

It is the argument of the Appellant in respect of this issue that the trial Court played the role of father Christmas by setting up a different case for the Plaintiff by assuming that the Respondent cross Appellant’s claim is for general damages and also failed to make a finding as to what the general damages is for.

He submitted that it is wrong for a Court to set up a case different from the case of the party in his pleading. He relied on the case of OGUNDELE V AGIRI (supra). He added that all the precedent cases relied on by the Court on general damages inclusive of the case of UNION BANK V AJABULE (2011) 12 SCNJ 331 are not applicable simply because the Respondent’s claim was not stated to be for general damages. Therefore the ward of N2,000,000.00 made by the Court in favour of the Respondent in absence of proof of any inconvenience or damages suffered by the Plaintiff was not in line with the principles of Law on damages. He urge the Court of set aside the award of damages made by the trial Court. Alternatively, he argued that the damages awarded was excessive especially for a customary land in Fokkos. He added that the Appellant had been staying in the land in issue and the delay in asking him to leave the premises was occasioned by the Respondent who failed to apply to the Court for forfeiture having regard to the decision of the Court of Appeal. He relied on the case of ORHUNHUR V IVEVER (2015) 1 NWLR (Pt. 1439) page 192 at 207-208 on the power of the appellate

Court to interfere with award of damage where the Court consider the award to be too low or too high.

He urge the Court to consider the fact that the Appellant is a peasant farmer and has lost relations who were buried on the land and has even lost his father and excuse the Appellant from paying any damages in that the award was made based on wrong principle. In another breath, he sought for the reduction of the amount of damages awarded to an amount of N50, 000.00. In all, he urged the Court to set aside the judgment of the lower Court and dismiss the counter claim and enter judgment for the Appellant.

On behalf of the Respondent, it was submitted that General Damages are such as the law will presume to be the direct natural probable consequence of the act complained of. He argued that the trial Court was right in awarding the sum of N2Million in favour of the Respondent. He added that based on Exhibits 1, 2 and 3, the judgment of the Upper Area Court, Customary Court of Appeal and the Court of Appeal, and which are not respected by the Appellant, the Appellant clearly is a trespasser on the land. It is his contention that trespass to land in law

automatically attracts general damages and that trespass is actionable perse. He added that the Appellant having challenged the title of his overlord in these Courts renders the Respondent to be entitled to damages. He relied on the case of AJIBADE V PEDRO (1992) 5 NWLR (Pt. 241) 257 at 272.
He urge the Court to uphold the decision of the lower Court and dismiss the appeal.

The contention of the Appellant by this issue is that the Court awarded the damages under a heading that was not claimed and hence the award should be set aside. In another breath, he complained of the excessiveness of the award of N2 Million damages in favour of the Respondent and lastly that if the Court consider the award to be proper, it should be reduced to N50,000.00 Naira. On the part of the Respondent, it is contended that the awarded damages of N2 Million was not excessive because the Appellant is a trespasser having regard to the judgment of the three Courts exhibited at the trial.

The question I consider germane in this circumstance is whether or not the Court can award the damages as accessed and whether or not the awarded damages of N2 Million is excessive.

See MR. EDWARD DALOBA V ESTHER S. RIPIYE & ORS (2010 LPELR – 4014, OGUNYOMBO V OOKOYA (2002) 16 NWLR (Pt. 793) pg. 224. It is also the law that a claim for damages for trespass lies at the suit of the party in possession or that party who is entitled to possession. See ANIMASHAUN V OLOJO (1990) 10 SCNJ 43 at 49, MORENIKEJI V ADEGBOSIN (2003) 4 SCNJ 105, CHIEF OKEY MBANASO V DAVIDSMITH OFFOR AND ORS (2012) LPELR – 19683. Therefore, it is also the law that trespass is actionable perse and once proved, a Plaintiff is entitled to damages even without the proof of actual injury resulting from the wrongful act complained off constituting the trespass. See OKHUAROBO V AIGBE (2002) 9 NWLR (Pt. 771) 29, AJAYI V JOLAOSHO (2004) 3 NWLR (Pt. 856) 89; ZENITH BANK PLC V MRS ELIZABETH UMOM (2013) LPELR – 22001.
I have said somewhere before now that misconduct or misbehavior render the tenancy of a customary tenant liable to forfeiture. Conversely, it is also trite that an overlord who is not in possession of a piece of land occupied by his tenant as in this appeal at hand cannot sue the tenant for trespass. Where therefore, such an overlord cannot sue

his tenant for trespass other than for forfeiture, it therefore stand to reason that such tenant who has the authority of his overlord to enter the land cannot be held liable for trespass. See OBA AFOLAYAN ABIOYE V OBA FELIX ABIDOYE (2012) LPELR – 19694; ATTABOH IDIH V DR. ALIYU OCHEJA OBAJE (THE ATTAH OF IGALA) AND ANOR (2011) LPELR – 3816, EJEZIE ANENE AND ORS V THEOSOPHY THEOCRAT OKOYE (2013) LPELR – 21877, OGUNSANYA V DADA (1992) 4 SCNJ 162 AT 168, ADESOKAN V ADETUNJI (1994) 6 SCNJ 1 (Pt. 1) 123 at 146.
In the light of the foregoing, it is my ardent view that since the Appellant is a customary tenant of the Respondent and who was put on the land to farm by the Respondent overlord, the Respondent cannot turn round to accuse such tenant of entering the land without his permission nor accused such tenant of trespass. Where issue of trespass is not in existence or found to have been committed, then the claim to damages cannot stand. It will amount to putting something upon nothing. It will not and it cannot stand. You cannot place something upon nothing and expect it to stand. See MACFOY V UAC (1962) AC 152, ONAYEMI V IDOWU (2008) 9 NWLR

(Pt. 1092) 306, BILANTE INT. LTD V NDIC (2014) ALL FWLR page 598 at 825. Therefore, it is my conclusion that the finding of the trial Court for trespass and leading to the award of damages of N2,000,000.00 (Two Million Naira) for trespass has no base to stand on. Accordingly, I resolve this issue against the Respondent. In consequence, the award of N2,000,000.00 as damages for trespass granted in favour of the Respondent and against the Appellant is hereby set aside.

In conclusion, I find some merit in the appeal and it is allowed in part and dismissed substantially on issues 1, 2, 3 and 4. The judgment of the High Court of Plateau State delivered on the 16th day of January, 2018, Coram Hon. Justice S. P. Gang is hereby affirmed, save for the sum of N2,000,000.00 awarded as damages for trespass which is set aside.
Parties to bear their respective costs.

ADZIRA GANA MSHELIA, J.C.A.: I read in advance the lead Judgment of my learned brother Oniyangi, J.C.A just delivered. I am in complete agreement with his reasoning and conclusion arrived thereat. My learned brother had adequately considered and resolved the issues raised

for determination by the Appellant. I have nothing useful to add. I too allow the appeal in part and abide by consequential orders contained in the lead Judgment inclusive of costs.

TANI YUSUF HASSAN, J.C.A.: I read in draft the judgment just delivered by my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA. I agree with the conclusion reached therein. Parties to bear their respective costs.

Appearances:

O. Omohwo Esq. For Appellant(s)

P. Oguche Esq. For Respondent(s)