MR. BAYO MAYAKI V. MR. NURUDEEN ISSA & ANOR
(2012)LCN/5441(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of June, 2012
CA/IL/79/2010
RATIO
LAND LAW: WHO HAS PRECEDENCE WHERE TITLE IS TRACED TO THE SAME AND COMMON VENDOR BY CONTENDING PARTIES
The law is trite that where title is traced to the same and common vendor by contending parties, the one with the better title takes precedence.
Again, in the case of Adole V. Gwar (2008) All FWLR (pt.423) 1217 @ 1232 paras a-d, it was held thus:
“It is trite that where there exist at the same time valid rights of occupancy to different persons in respect of the same land as in this case, one must of necessary be valid. The invalid one must be the latter right granted without first revoking the former one under section 28 of the Act. See Nigeria Engineering Works V. Denap (supra) Per Oguntade JSC @ 292.” PER TIJJANI ABDULLAHI (PJ), J.C.A.
COURT: WHETHER COURTS ACT ON SPECULATION
It is trite that courts of law do no act on speculation. PER TIJJANI ABDULLAHI (PJ), J.C.A.
JUSTICES
TIJJANI ABDULLAHI (PJ) Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
Between
MR. BAYO MAYAKI Appellant(s)
AND
(1) MR. NURUDEEN ISSA
(2) ILORIN-SOUTH LOCAL GOVERNMENT COUNCIL Respondent(s)
TIJJANI ABDULLAHI (PJ), J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice Mahmud Abdul-Gafar (J), of Kwara State High Court, Ilorin, in Suit No. KWS/34/2008 delivered on 25/6/2010, whereof the learned Judge found for the Respondent (who was the claimant at the court below), and dismissed the counter-claim of the 1st Defendant, now Appellant.
At the lower court, the Respondent had claimed the total sum of One Million Naira (N1, 000,000.00) as general damages and N752, 000.00 special damages against the Appellant and 4 other defendants for alleged destruction of his property at Alagbado along specialist Hospital Road, Ilorin, Kwara State. The Appellant had denied the claim and rather counter-claimed for possession of the land, covered by the customary right of occupancy No. 1508 issued/granted by Ilorin South Local Government on 12/11/2006 declaration that he was bonafide owner of the land and an order setting aside the “Deed of agreement” between the 2nd Respondent and the claimant and the annexure attached to the claimant’s statement of claim titled Residential/Commercial Layout at Alagbado Specialist Hospital Road dated 10/3/2002 and 15/5/2007 respectively. The Appellant also sought an order mandating the claimant (Respondent) to remove his structure, building materials, gravel, sand and any other things placed on the land by him, his agents, privies and workmen, and for perpetual injunction.
The Claimant, as per his amended statement of claim filed on 12/1/2009, claimed as follows from the 5 Defendants of which the Respondent was the first:
“(I) claim of special damages in the sum of N752, 000.00 being the cost of the following items:
(1). Land N110, 000.00
(2). Blocks 500 N70, 000.00 N350, 000.00
(3). 50 Bags of cement N1, 400.00 each N70, 000.00
(4). 4 Loads of gravel N7000.00 each N28, 000.00
(5). 4 Loads of shaft (sic) sand N3, 500.00 each N14, 000.00
(6). 4 Load of soft sand N3000.00 each N12, 000.00
(7). Workmanship N150, 000.00
(8). Water. N18, 000.00
N752 000.00
(II). Claim for general damages of N1,000.000.00 (One Million Naira) only being the cost of additional expenses as a result of increment in prices of material to reconstruct the building and left over blocks destroyed.”
After hearing the witnesses on both sides and taking the addresses of counsel the learned trial court held that the special damages in respect of:
(1). 50 bags of cement N70, 000.00
(2). 500 blocks at N350, 000.00
(3). 4 loads of shaft (sic) sand N28, 000.00
(4). 4 loads of soft sand N14, 000.00
(5). 4 loads of gravels N 12, 000.00
(6). water N 18, 000.00
N492, 000.00
had been proved, having not been challenged he awarded the same to the Respondent as well as N50,000.00 as general damages for – making a total of N542, 000.00 damages to the Claimant (Respondent) against the 1st Defendant (Appellant).
The Court dismissed 1st Defendants’ Counter claim and said:
“It is unfortunate that the 1st Defendant resorted to such crude and barbaric act to assert what he considered was his right Judgment is therefore entered for the claimant against the 1st defendant in the sum of N542, 000.00.”
That is the decision the Appellant appealed against being dissatisfied. The Respondent too has cross appealed not also being satisfied, on the claims on workmanship (which the trial court refused) and on the general damages which only fifty thousand naira (N50, 000.00) was awarded 6 the Cross Appellant. The Appellant filed his Notice and grounds of Appeal on 19/7/2010 (as per pages 222 to 227 of the Record of Appeal) and raised 7 grounds of Appeal as follows:
GROUND 1
The Honourable learned trial judge erred in law when his Lordship held that DEED OF AGREEMENT- Exhibit 5 and 1st Defendant’s LAND AGREEMENT – Exhibit 6 adequately confer title on the claimant.
PARTICULARS OF ERROR
(a). The 1st Defendant’s Land Agreement Exhibit 6, was tendered to support the evidence of DW1 and DW – 2 consequently it cannot be used to confer title on the alleged original owner who is not a party.
(b). The prayer of the Claimant/Respondent centered on damages and it is improper to award the claimant what he did not pray for.
(c). The claimant/Respondent relied solely on Deed of Agreement to prove title and the said Agreement-Exhibit 5 lacks sufficient traditional evidence required by the law.
(d) The claimant/Respondent by documentary and oral evidence acknowledged that the land in dispute had been acquired by Ilorin South Local Government and regardless of the acknowledgement; the Honourable trial judge found that the Deed of Agreement – Exhibit 5 conferred title.
GROUND 2
The learned trial judge erred in law when he treated Customary Right of Occupancy – Exhibit 7 – as revoked or nonexistent when the claimant did not pray for its revocation.
PARTICULARS OF ERROR
(a). The Claimant/Respondent admitted that the Land in dispute had been acquired by Ilorin South Local Government and prayed only for damages.
(b). No evidence before the Honourable trial Court about the revocation or annulment of the Customary Right of Occupancy-Exhibit 7.
(c). The Ilorin South Local Government refused the claimant/ Respondent Customary Right of Occupancy consequently Exhibit 7 subsists.
(d). The Customary Right of Occupancy – Exhibit 7 extinguished all existing rights or interests over the land on which it was granted.
(e). The grant of Exhibit 7 to the 1st Defendant/Appellant by Ilorin South Local Government was made in exercise of her statutory power vested in the chairman of the Local Government.
(f). The Claimant/Respondent did not advance facts that could warrant the Honourable trial Court to treat the Customary Right of Occupancy as non-existent.
GROUND 3;
The learned trial judge erred in law when he held that 1st Defendant/Appellant failed to establish the precise time the land in dispute was acquired by Ilorin south Local Government.
PARTICULARS OF ERROR
(a). Parties by oral and documentary evidence agreed that Ilorin South Local Government had acquired the land in dispute therefore the actual time of acquisition is uncalled for.
(b). The Honourable trial judge who was saddled with responsibility to do justice had discretionary power to ask or inquire from any of the parties or third party for the actual date of the acquisition if he considered it necessary in the interest of justice
(c). The Honourable trial court had the discretionary power to require the admitted fact – of acquisition – to be proved by any other means other than the admission.
GROUND 4.
The Honourable trial judge misapprehended the facts when his Lordship concluded that the 1st Defendant/Appellant accepted Daudu Amule as the title owner of the land in dispute.
PARTICULARS OF ERROR
(a). The 1st Defendant/Appellant treated the said Daudu Amule as gadfly and throughout the records of the Honourable Court insisted that his recognition of him was to avoid unnecessary trouble.
(b). That Exhibit 6 relied on by the Honourable trial Court was made to avoid unnecessary troubles that people like Amule could cause and not as a rightful owner.
(c). The 1st Defendant/Appellant pleaded and testified that his relationship with the said Daudu Amule was to ward off troubles.
(e). It would be misapprehension of facts to conclude that the 1st Defendant/Appellant agreed that the said Daudu Amule was a traditional owner.
GROUND 5;
The learned trial judge erred in fact when his Lordship held that 1st Defendant/Appellant did not challenge the claims for special damages.
PARTICULARS OF ERROR
(a). The 1st Defendant/Appellant testified that he stated before the Head of Department, Ilorin South Local Government and made statement with police that he did not destroy the claimant’s / Respondent’s building.
(b). The denial of the 1st Defendant/Appellant that he did not destroy the Claimant/Respondent’s structure is a challenge to the claim for damages.
(c). The claim for special damages was not specifically pleaded nor strictly proved.
GROUND 6
The learned trial judge erred in law when he held that there was no material contradiction in the evidence of PW2 and PW5 to exonerate the 1st Defendant/Appellant from the scene of the alleged destruction.
PARTICULARS OF ERROR
(a). PW 2 testified that he met the 1st Defendant/Appellant for the first time when the seven (7) people destroyed the Claimant’s/Respondent’s building.
(b). PW 2 testified that when the building in dispute was under construction somebody came to lay claim to the land in dispute and the person left behind his address.
(c). PW 5 testified that PW 2 had, known 1st Defendant/Appellant in the past before the alleged day the destruction was carried out.
(d). The Records of the Honourable Court showed that PW 2 was literate but when he was asked to identify the cards allegedly left behind by the 1st Defendant he claimed to be illiterate.
GROUND 7:
The judgment of the lower Court is against the weight of evidence. (More grounds of appeal to be filed on receipt of Record of Appeal).
RELIEF(S) SOUGHT FROM COURT OF APPEAL
AN ORDER of the Court of Appeal allowing the Appellant’s appeal and set aside the lower Court’s judgment in its entirety.
Appellant filed his Brief on 28/9/2010 (and included the name of ILORIN SOUTH LOCAL GOVERNMENT as the 2nd Appellant strangely and, I think, erroneously). In the Brief Appellant distilled 3 Issues for determination namely:
(1). Whether the Claimant/Respondent proved better title or better right to be in possession of the land in dispute as against the 1st Defendant /Appellant who also claimed to be in possession of the same land (Grounds 1, 2, 3, and 4)
(2). Whether partial appraisal and evaluation of the 1st Defendant/Appellants evidence by the trial Court did not occasion a miscarriage of justice (Grounds 6 and 7).
(3). Whether the learned trial judge applied correct principles of law in assessing the damages having regard to the circumstances of this matter (Grounds 5 and 7).
The Respondent’s brief deemed filed on 12/10/2011 by order of Court granted on that date, adopted the issues for determination as formulated by the Appellant.
The Respondent also filed his Cross Appellants’ Brief, which was deemed duly filed on the same 12/10/2011 and therein distilled one Issue for determination that is:
“Whether the Court properly consider (sic) the evidence before it in rejecting the evidence of special damage on amount expended on workmanship and whether the Court consider (sic) the unchallenged evidence of additional cost of material to be used in constructing the type of structure destroyed by the Cross-Appellant (sic) in the award of general damages to the Cross Appellant.” (Grounds 1 and 2 of the Cross Appeal).
The Appellant filed a Reply on points of law and Appellant/Cross-respondent’s brief in one document on 28/11/2011.
ARGUMENT OF ISSUES
ISSUE ONE
Issue number one is whether the claimants/Respondents proved better title or better right to be in possession of the land in dispute as against the 1st Defendant/Appellant who also claimed to be in possession of the same land? (The issue relates to Grounds 1, 2, 3 and 5).
In arguing this issue, learned counsel for the Appellant contended that the learned trial judge found that Exhibit 6 and the evidence of DW1 and DW2 established that the Claimant hereinafter called the Respondent had better title. With respect to the trial judge, the evidence of DW1 and DW2 pointed to a fact: i.e. Daudu Amule, the purported traditional owner was a troublemaker to be avoided and pacified. The Appellant pleaded the above fact and led evidence to support the averment. See paragraphs 9 and 10 of the aforesaid DW 1 evidence statement on Oath dated and filed on 12th day of November, 2008. See page 79 of the records. Similarly, see the oral testimony of Dw2 on 25th day of June, 2010, on page 201-201 of the records.
It is the contention of the learned counsel that the learned trial judge captured the intention of the 1st Defendant, hereinafter called the Appellant when he observed that:
“First defendant would appear to have treated the said Daudu Amule as more of an irritant he had to appease such that it is second defendant (Ilorin South local Government) that has been accepted by the first defendant as source of his title” (Bracket ours). See pg 218 of the records.
Learned counsel further contended that the Respondent also accepted the Ilorin South Local Government as a source of his title as well. He pleaded and testified that Ilorin south Local Government acquired the land in dispute and he adopted and paid for Customary Right of Occupancy.
However the trial judge instead of the quoted above passage and the position of Respondent, placed weight on the relevance of Exhibit 6 with the attached affidavit and evidence of Dw1 and Dw2 which explained above and held that the Respondent’s title is better!
Learned counsel submitted that in the light of the piece of evidence adumbrated above the conclusion of the trial judge that Daudu Amule was recognized as traditional owner was misplaced and occasioned miscarriage of justice.
It is submission of the learned counsel that even if the learned trial judge considered Exhibit 6 a documentary evidence that could be taken whole hog, though not conceding, the Exhibit 6 with the affidavit would be exempted from the effect of section 132 of Evidence Act see Savanah v. Salami (1996) 9-10 MAC 159 @ 171. The presumption of genuineness, with respect, could not even prevent the learned trial Court to have a second look at the said Exhibit 6.
Learned counsel contended that assuming without conceding that the time of acquisition- i.e. before or after 6/10/2006 as found by the trial Court is of essence, the trial Court is empowered by the law and its Rules to call further evidence on the fact as required by the provisions of Evidence Act (section 223) rather that shifting the evidential burden on the first Defendant who neither joined issue nor objected to the piece of evidence on acquisition. See Narindex & Anor V. Nigeria Inter Cont. Marchant Bank Ltd. (2007) 4 SC (pt. 11) 25 @ 33; Nwanko V. Nwanko (1995) 5 SCNJ 44 @ 62-63; Eke V. Okwanoyia (2001) 4 SC (Pt. 11) 71 @ 93; Arch. Reg. Concil V. Fassasi (1987) 5 SCNJ 195 @ 197-6; and section 223, Evidence Act. The misapplication of this evidence occasioned miscarriage of justice and the Respondent who was bound by law to establish the fact of acquisition was found for and the evidential burden unjustly placed on the Appellant who impliedly admitted the acquisition. We were urged to intervene.
Learned counsel further contended that the 1st Defendant pleaded and testified how he applied and paid for Customary Right of Occupancy from Ilorin south Local Government and how he was allocated the plot in February, 2002 and immediately took up possession. In the light of the admission that Ilorin south Local Government had acquired the land, learned counsel submitted that the Appellant has done all what was required to obtain the rights over the land in dispute. See Madu V. Madu (2008) 6 MJSC 213 @ 233.
Learned counsel contended that the trial Court unjustly ignore the acknowledgment of radical title of Ilorin South local Government. The dispute was first taken to the local Government for settlement and Local Government offered the Respondent another plot and monetary compensation. The Respondent did not reject the offer not because the Local Government was not in control but what was given to him was “too small”. See pages 205, 179 and 74 of the records. The learned trial judge wrongly applied the law and misapprehended the facts from inception. We were called upon to do justice in the matter. The live or vital issue between the parties, with respect, is/was who is entitled to the Customary Right of Occupancy?
Learned counsel urged us to resolve this issue in favour of the Appellant and against the Respondent herein.
ISSUE TWO
Issue number two is whether partial appraisal and evaluate of 1st Defendant’s evidence by the trial court did not occasion a miscarriage of justice. (Relates to Grounds 6 and 7).
Learned counsel began his consideration of this issue by X raying the evidence adduced by them as it relates to the description of the land in dispute as can be seen on page 12 of their brief. Learned counsel contended that if the trial judge had adverted his mind to Exhibits 7 and 9-he would have found that Ilorin South local Government exercised her Constitutional power to acquire and to grant Exhibit 7. And the equitable right he harped on to award better title could not have defeated possessionnary or legal rights of the Appellant. He relied on the cases of Olagunju V. Adesoge (2009) 4 MJSC (Pt.1) pg 77 @ 115-116 and. Teniola v. Olohunkun (1999) 4 SCNJ 92 @ 103. See also section 7(1) 1999 Constitution of Federal Republic of Nigeria and fourth schedule of the Constitution. And Supreme Court also held among other things in the case.
Again, learned counsel referred us to the case of Dabub as Kolo (1993) 12 SCNJ 1 @ 21 where our erudite Justice of the apex Court, Ogundare JSC (of blessed memory) held thus:
“In the course of appeal in this court the effect of grant of Statutory Right of Occupancy an existing rights came up for consideration, Obaseki JSC held on page 416 of the report…upon a proper interpretation of subsection 5 of land Use Act, a later Statutory Right of occupancy extinguishes all rights created by earlier grant. To save earlier grant of Statutory Right of Occupancy that later right must be expressly set aside” pg 21.
It is the contention of the learned counsel that justice Ogundare of blessed memory agreed in toto with the above interpretation of the law. More so the above interpretation of law involved two Statutory Rights of Occupancy not equitable right versus legal right as we have in the matter at hand, equitable right in the circumstance of this case, learned counsel submitted. We were urged to be guarded by the above authorities and intervene in the interest of justice. If the learned trial judge had examined the aforesaid Exhibits as required, he would have decided the matter differently. The Appellant, with respect cannot therefore be regarded a trespasser to be penalized, learned counsel submitted and he relied on I.T.L V. Aderemi (1999) 6 SCNJ 46 @ 73.
Learned counsel urged us to resolve this issue in favour of the Appellant and against the Respondent.
ISSUE THREE
Issue number three is whether the learned trial judge applied the correct principle of law in assessing the damages having regard to the circumstances of this matter and the contradictory evidence of the witnesses, particularly those who claimed to have witnessed the alleged destruction. (Relates to Grounds 5 and 7).
In arguing this issue, as can be seen from the brief of the counsel, the evidence adduced by the parties in relation to this issue is extensively reviewed and analyzed. Learned counsel at the end of the said exercise, contended that there are material inconsistencies and he urged us to so hold.
Learned counsel relied on the case of Ezemba V. Ibeneme (2007) 7SC (pt.1) Pg 45 @ 45 and further contended that PW2 Munmini Amadu under cross-examination admitted that the Appellant dropped his complementary card when the construction was about to start and in another affidavit evidence he claimed to know the Appellant for the first time when group of seven (7) people went to destroy the Respondent’s purported building. See paragraph 3 of his Statement on Oath on pg. 152 of the records. This, with respect is another material contradiction. He relied on Ezemba V. Ibeneme (2004) 7 SC (pt.1), pg. 45 @ 56. We were urged to so hold.
It is the contention of the learned counsel that in addition to the inconsistencies and contradictions above, the learned trial judge misapprehended the facts of the matter when he concluded that the Appellant destroyed the said building and erroneously based the findings, among other things, that Appellant knows pW2 and pW2 knows him. Appellant never admitted he knew PW2 but (Baba) Amadu who happened to be the father of PW2. DW1 referred to the said Baba Amadu as well. See pages 201-220 of the records. Learned counsel urged us to intervene and reverse the findings.
Again, learned counsel contended that the Respondent admitted that the Appellant was reported at police station and parties made statements with the police but failed to call the evidence or statement made with the police. In the same vein evidence made before the Head of Department (H.O.D) works within Ilorin was not also made available to the trial court. The Respondent chose not to call the evidence of the H.O.D and the police because it would go against him. See section 149(d) of Evidence Act.
It is the submission of the learned counsel that based on the foregoing, the alleged wrongs against 1st Defendant was not established by the Respondent, and damages awarded him, with respect, by the trial court was unjust. See Provost, LACOED V. Edun (2004) 2 SC (pt. 11) 17 @ 25-26; Ezeokonkwo v. Okeke (2002) 5 SCNJ 1 @ 19. And he prayed this court to so hold and reverse the decision.
Learned counsel contended that the learned trial judge misconceived the stand of the Appellant when he (the Appellant) denied that he did not destroy the Respondent’s or ant body’s structure. The trial judge therefore concluded that the head claims were unchallenged; it is trite law that any allegation in pleadings that a party has suffered damages and any allegation as to amount of damages is deemed to be traversed unless specifically admitted. Nigilari v. Mothercat Ltd. (1999) 12 supra @ 122. The Appellant did not admit the claims, therefore challenged same. He commended the case to this court.
Learned counsel submitted that the court by law can interfere with the award of damages if the trial judge acted under a mistake of law, misapprehension of facts and if injustice would result if the court does not interfere. He relied on the case of Union Bank V. Odusote (1995) 12 SCNJ 175 @ 202-3 and Oyeneyin v. Akinkugbe (2010) 1 MJS (pt.11) 1 @ 23, to buttress his submission on this point.
In the instant case the Respondent failed to specifically plead the claims for damages and the proof of the said special damage was not strictly proved. Contrary to the principle of law the trial judge- estimated the special damage for Respondent, particularly claims 3-6 on page 121 of the records, consequently injustice would result if the Court does not intervene. We were urged to intervene and dismiss the special and general damages awarded the Respondent by the trial court. He relied on Sommer as F.H.A (1992) 1 SCNJ 73 @ 83-84.
The Respondent’s counsel as earlier stated in this judgment adopted the issues as distilled by the Appellant as the issues calling for determination in this appeal.
On the first issue for determination, learned counsel submitted that the trial court rightly considered the evidence led before it and ascribed probative value to same in awarding damages in favour of the Respondent and as such the argument of the Appellant is not in line with the evidence led before the court.
In reply to paragraphs 1.01-1.04 of the Appellant’s brief of argument, the Respondent submits that the learned trial judge properly evaluated the evidence of the parties before the court and ascribed probative value to same to hold that the claimant proved better title to the land in dispute.
On who has a better title to the land in dispute, learned counsel contended that the Appellant admitted under cross-examination that Daudu Amule is the traditional owner but that the land had been acquired. See also line 20 to 22 of page 199 of the record.
Learned counsel in reply to paragraphs 1.05 and 1.06 of the Appellant’s brief submitted that the trial court validly considered and ascribed probative value to Exhibit 6 and such could not be negatively construed by the Appellant. As can be gleaned from the records of the lower court, the Appellant tendered Exhibit 6 in this case to establish the fact that he also paid to Daudu Amule, having utilized that to his benefit, he cannot now complained of negative effect of certain paragraph of the affidavit in Exhibit 6.
Learned counsel submitted that the appellant having admitted that Daudu Amule was the traditional owner through whom the Respondent is claiming and in the face of the evidence of the Appellant that the land had been acquired from the said Daudu Amule, and then the burden of establishing that acquisition rests on the Appellant.
Learned counsel submitted that the learned trial judge critically appraised the evidence of the parties before it and ascribed probative value to same and we were urged to uphold the decision of the lower court, resolve the issue in favour of the Respondent and dismiss the appeal on this ground.
On issue number two, learned counsel submitted that the Appellant in paragraph 2.01 of his brief misconceived the trial court’s and that was why he was claiming partial appraisal of evidece.
It is the submission of the learned counsel that if the court holds that there is evidence of acquisition of the land in dispute then any document including Exhibits 6, 7, 8 and 9 will be relevant with all their potency, however with the holding in paragraph 26 page 218 of the record, lines 25 to 31, something cannot be put on nothing and be expected to stand, the basis for the issuance of either letter of allocation, certificate of Customary Right of Occupancy and or receipt has been knocked off, then there is no basis again for their effect or assume effect on the case of the Appellant.
On issue number three, learned counsel submitted that the Respondent had proved this head of damages before the court and same was rightly award by the court to the Respondent.
Learned counsel contended that it must be noted that pW4 on page 186 of the record identified the only complimentary card that was given to them by the villagers after destruction, PW4 is the head of the workers that worked on the land, but pW4 never admitted that he was given any complimentary card while digging foundation. See page 186 lines 19 and 20 of the record.
“I see exhibit 4. It is the card that was given to us by villagers after the destruction of the building.”
Learned counsel submitted that the Appellant did not at anytime say that he gave his complimentary card at 2 different times.
Contrary to the submission in paragraph 3.04 of the Appellant’s brief the Respondent submits that the offence of mischief which is criminal was not the foundation of the Respondent’s case before the lower court, so that was why the Respondent did not allege or prove mischief though it was stated that the Appellant destroyed the Respondent’s building in such a situation, the provision of section 138(1) of the Evidence Act will not be applicable to the case of the Respondent so as to require proof beyond reasonable doubt. He relied on the case of Arowolo V. Folawiyo (2005) 2 SCNJ 65, 81 @ 167 to buttress his submission on this point.
It is the contention of the learned counsel that the trial court based his decision on the evidence of the parties before it particularly evidence of PW2 who met the Appellant at the scene of the incident which was confirmed by the PW5. See line 20 – 22 of page 183, where the witness stated thus:
“I can recognize the complimentary card I was given. I see exhibit 4. I’m not sure if it is exhibit 4. It is the person claiming to own the land that gave me the card. He did not tell me his name.” and paragraph 9 of the evidence of PW2 on page 152
RESOLUTION OF ISSUES
The 1st issue for determination is whether the claimants/Respondent proved better title or better right to be in possession of the land in dispute as against the Defendant/Appellant who also claimed to be in possession of the same land?
A good starting point in resolving this issue is evidence adduced by both parties in respect of their claims. As can be gleaned from the record, the 2nd 3rd and 4th Defendants whose evidence as per their statements on oath can be found on pages 43-46 and 49-50 of the record of the trial court have clearly shown that when the claimant was allocated, the said land, there was no third party interest therefrom. All the three witnesses were unanimous on this.
That aside, the three witnesses were also unanimous in their evidence which is contained in their statement on oath that there was unconfirmed report that the claimant’s building was pulled down by the 1st Defendant. It is also to be observed that evidence by DW1 and DW2 acknowledged 2nd Defendant as the traditional owner of the land sold to them (Claimant and the 1st Defendant) and that the Head of Department of the Local Government played a role in the troubles with regard to the allocation of the plots which the Local Government sold again to the parties.
More importantly, despite the involvement of the local Government in selling of the plots to individuals, the Local Government as the 5th Defendant did not file any defence and in fact did not defend the action. This needless to say is an admission of the plaintiffs claim!
A hard look at the evidence adduced before the learned trial court would reveal the fact that under cross-examination, DW1 admitted that Magaji Amule is the traditional owner of the land in the area but the land has been acquired by Ilorin South Local government Council. He also admitted that acquisition of land is always documented by the Local Government. However, as I stated earlier in this judgment, the Local Government, the 5th Defendant in this suit did not file any defence to this action. What is more, they did not defend the action.
In the light of the above adumbration, I hold with ease that the land in dispute had not been acquired by the Local Government as canvassed by DW1. It is also crystal clear that Claimant had a better title. The law is trite that where title is traced to the same and common vendor by contending parties, the one with the better title takes precedence.
Again, in the case of Adole V. Gwar (2008) All FWLR (pt.423) 1217 @ 1232 paras a-d, it was held thus:
“It is trite that where there exist at the same time valid rights of occupancy to different persons in respect of the same land as in this case, one must of necessary be valid. The invalid one must be the latter right granted without first revoking the former one under section 28 of the Act. See Nigeria Engineering Works V. Denap (supra) Per Oguntade JSC @ 292.”
In the light of all that has been said, this issue is resolved in favour of the Respondent and against the Appellant.
ISSUE NUMBER TWO AND THREE
The 2nd issue for determination is whether partial appraisal and evaluation of 1st Defendant’s evidence by the trial court did not occasion a miscarriage of justice. And issue 3 is whether the learned trial judge applied the correct principles of law in assessing the damages having regard to the circumstances of this matter.
In resolving these issues, my first port of call is the evidence adduced by both parties with a view of finding out how the learned trial judge appraised and evaluated the evidence. It is only when that is done; one would be in a position to know how the evidence was appraised and evaluated.
A close look at the evidence adduced in support of the parties respective positions would leave no one in any doubt that there was no partial appraisal and evaluation of the evidence by learned trial judge. As can be seen from the records, the 1st Defendant admitted in his statement on oath on pages 68-69 of the record that he went to the site of Claimant’s building; quarreled about removal of his broken stones; shifted some broken blocks out of his beacon stones e.t.c. It can also be seen that he left his address/ card for the Claimant to be contacted, fumed that he was not contacted by the Claimant! All these pieces of evidence can be seen in paragraphs 14-19 and 24-28 of the statement of the Respondent’s statement of defence and counter-claim on oath. He even acknowledged claimant’s deed of agreement. This can be seen in paragraph 27 of the 1st Respondent’s statement of defence and counter-claim!
In view of all that has been said supra, I am of the view that the evidence weighed against the 1st Respondent especially as the 5th Respondent (local Government) failed to defend the suit. I am of the further view that the learned trial judge had a duty to consider the evidence on both sides which he had creditably discharged. These issues are resolved in favour of the Respondent/Claimant and against the Appellant.
In conclusion, the three issues having been resolved in favor of the Respondent/ Claimant the appeal fails and it is hereby dismissed with N40, 000.00 cost in favour of the Respondent/Claimant and against the Appellant. The judgment of the court below is hereby affirmed.
CROSS APPEAL
A hard look at the cross-appeal of the cross-Appellant would reveal the fact that there was no iota of evidence to sustain the claim for workmanship. No receipts were tendered by the workman for any of the services alleged to have been rendered.
It is my candid view that the N50, 000.00 general damages was for trespass. No evidence was led to establish differential in cost of material for re-constructing the building and that in any case was in the realm of speculation as it only anticipated that there would be arise in cost! It is trite that courts of law do no act on speculation.
The cross-appeal in view of all that has been said supra is completely devoid of any merit and same is hereby dismissed. The judgment of the lower court is hereby affirmed. Parties to this cross-appeal shall bear their respective costs of prosecuting it.
IGNATIUS IGWE AGUBE, J.C.A.: I have had a privilege of reading in advance the Judgment just delivered by my learned brother Tijjani Abdullahi, PJ, in this appeal. In the Judgment, my Lord has assiduously and painstakingly considered all the points that arose for scrutiny in the Briefs of the learned counsel for the parties.
I entirely concur with the reasoning and conclusions reached in the Judgment and I have nothing useful to add. In the result, I also find no merit in the appeal and cross appeal and I dismiss them accordingly.
The Judgment of the lower Court is hereby affirmed. I make the same consequential orders inclusive of those as to costs.
OBANDE OGBUINYA, J.C.A.: I have had a preview of the leading judgment delivered by my learned brother Tijjani Abdullahi, JCA. My noble Lord dealt with all the issues in controversy and resolved them in the manner required by law. I agree with his reasons and conclusions therein. Consequently, I, too, dismiss the appeal and the cross-appeal. I abide by the consequential orders made in the leading judgment.
Appearances
A.B JimohFor Appellant
AND
Mr. Idris A. AbdullahiFor Respondent
