MR. HENRY ENUDI & ANOR v. MR. CHUKWUNWEIKE OSUMILI
(2012)LCN/5814(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of July, 2012
CA/B/210/2010
RATIO
LAND LAW: CIRCUMSTANCES WHERE PROVE OF IDENTITY OF LAND WILL BE UNNECESSARY
Where the issue before the court is damages for trespass and the court is satisfied that both parties know the land the subject matter of the dispute, it will be unnecessary for the claimant to prove the identity of the land. PER RAPHAEL CHIKWE AGBO, J.C.A.
LAND LAW: DUTY OF A CLAIMANT SEEKING A DECLARATION OF TITLE TO ESTABLISH THE IDENTITY OF THE LAND
Where however the claimant is seeking a declaration of title as in this case, he must establish the identity of the land –
Okochi vs. Animkwoi (2003) 18 NWLR (Pt’ 551) 1; Baruwa vs. Ogunsola (1938) 4 WACA 159; Udeze vs. Chidebe (1990) 1 NWLR (Pt.125) 141; Aboyeji vs. Momoh (1994) 4 NWLR (Pt.341) 646; Thompson vs. Arowolo (2003) 109 LRCN 1345; Ekpemupolo vs. Edremoda (2009) 176 LRCN 235. This is so because a person claiming to be entitled to a declaration of title has to satisfy the court by evidence even where the other party has admitted in his pleadings that he is so entitled – see Lawson vs. Ajibulu (1997) 6 SCNJ 1. PER RAPHAEL CHIKWE AGBO, J.C.A.
EVIDENCE: DUTY OF A PARTY RELYING ON DOCUMENTS IN PROOF OF HIS CASE
A party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered – see Awuse vs. Odili (2005) 16 NWLR (Pt. 952) 417; Terab vs. Lawan (1992) 3 NWLR (pt.231) 569; Rotimi vs. Fatoriji (1999) 6 NWLR (pt.606) 305 where there is oral and documentary evidence, the documentary evidence is used as a hanger to assess the oral testimony – see Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at 473; Fashanu vs. Adekoya (1974) 6 SC 83; Olujinle vs. Adeagba (1988) 2 NWLR (Pt.75) 238. PER RAPHAEL CHIKWE AGBO, J.C.A.
Before Their Lordships
RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYEJustice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria
Between
1. MR. HENRY ENUDI
2. MR. SUNDAY O. UKWADEAppellant(s)
AND
MR. CHUKWUNWEIKE OSUMILIRespondent(s)
RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment): The appellant was the 2nd defendant and counter claimant at the High Court of Delta State while the respondent was the plaintiff and defendant to the counter-claim. The 2nd defendant had purportedly purchased land along Umuebu Road, Obiaruku from the defendant’s family known as Okwudi or Umuegusu in 2004. The plaintiff was absent during this transaction. The defendant proceeded to survey this property and planted survey beacons thereon. When the plaintiff got home he saw these beacons on the land and uprooted them. The 2nd defendant caused the plaintiff to be arrested and detained by the police. On plaintiffs release on bail he took out a writ of summons in the High court. He claimed thus at paragraph 14 of the amended statement of claim –
“14. WHEREOF the plaintiff claims against the defendants jointly and severally as follows:
(a) A DECLARATION that ownership and Title to all that large tract of land measuring approximately 130 feet by 986 feet-by 868 feet on the rear side (bounded by the land property of Mr. Egwunatum, Chief Frank and Mr. Ishekwene) situate along Umuebu Road (opposite Ukwani Local Government Secretariat Obiaruku within the jurisdiction of this Honourable Court, vested in the plaintiff and he is entitled under Ukwani Land Law and Custom to validly transfer part of all of this said land unilaterally.
(b) A declaration that ownership and title to the remaining unsold portion of the said land measuring approximately 235 feet by 118 feet, 215 feet by 237 feet bounded by the land property of Mr. Augustine Okpala, Mr. Egwunatum, Chief Frank and Mr. Ishekwene vests in the plaintiff and he is entitled to apply for and be granted Certificate of Occupancy over same.
(c) N5,000,000.00 (Five Million Naira) being damages against the defendants for their wanton acts of continuing trespass on the said plaintiffs land.
(d) Perpetual injunction restraining the defendants, their agents, servants, privies, heirs and chronies from continuing to commit wanton acts of trespass or disturbing the plaintiff’s exercise of rights over his said land.”
The 2nd defendant counter-claimed thus –
“WHEREFORE the 2nd defendant claimed as follows:
(a) A declaration that the 2nd defendant is entitled to the statutory right of occupancy over all that piece or parcel of land lying and situate off Umuebu Road in Obiruku which is shown and delineated in Survey Plan No.SC/DT/BH/201/2004, prepared by Surveyor O. to Dabiri with pillar nos. SC/DT B7884H, SC/DT B7883H, SC/DT B7882H, SC/DT B7881, SC/DT B7859H, SC/DT 87894H, SC/DT 87893H, SC/DT B7892H., SC/DT B7891H, SC/DT B7890H, SC/DT 7889H SC/DT7888H, SC/DT7887H, SC/DT B7886H and SC/DT B7885H.
(b) N10,000,000.00 (Ten Million Naira) being damages for trespass on the said land.
(c) Perpetual injunction restraining the plaintiff, his agents, servants, and privies from further trespassing on/over all that piece or parcel of land lying and situate off Umuebu Road in Obiaruku which is shown and delineated in survey Plan No. SC/DTBII/201/2004, prepared by Surv. O. T. Dabiri with Pillar Numbers SC/DT B7884H, SC/DT B7883H, SC/DT B7882H, SC/DT B7881, SC/DT B7859H, SC/DT B7894H, SC/DT B78893H, SC/DT B7892H, SC/DT B7891H, SC/DTB7890H, SC/DT B7889H, SC/DT B7888H, SC/DT B7887H, SC/DT B7886H and SC/DT B7885H.”
Issues were joined and the court proceeded to hear the case. In a considered judgment the trial court dismissed all the plaintiff’s claims. The court then proceeded to deal with the 2nd defendant’s counter-claim and concluded as follows:
“Even thought the precise or definite boundaries of the said land sold to the 2nd defendant have not been proved specifically in this trial, I hold the firm view that the plaintiff is the one in possession of a substantial part of the said land. Even if the plaintiff is a trespasser on the land, his possession can only be displaced by someone with a better title. A person who has possession of a thing has the support and strength of the law to protect that thing subject to the right of a person with better proof of title. The 2nd defendant failed to prove a better title to the land he claimed he bought. See Salami & Anor. v. Lawal (2005) LRCN 1 @ 17 where Oguntade JSC said:
“It is to be emphasized here that the trial court found that the appellants were in possession of the land, Even if the appellants were not able to show a good title to the land they were still entitled to remain thereon unless and until someone with a better title challenged their possession”.
So the plaintiff is entitled to remain in the area of land where he is presently rampaging until someone or group of people with a better title catch up with him.
Subject to the foregoing, both the claim of the plaintiff and the counter claim of the 2nd defendant are hereby dismissed. I make no order as to costs.”
Dissatisfied with the part of the decision dealing with the counterclaim the defendant/counter-claimant filed this appeal. The notice of appeal contained the following grounds of appeal –
1. “The learned trial Judge erred in law when His Lordship held:
“I do not however think learned counsel for the defendants can put exhibits ‘A’ and ‘A1’ into use as postulated by him in this address that exhibits ‘A’ and ‘A1’ destroys the case for the plaintiff that he did not inherit the land in question from his father. Learned counsel did not specifically draw the attention of the plaintiff to the particular passage or sentence in exhibits ‘A’ and ‘A1’ before putting them in as exhibits during cross-examination nor did he do such thing thereafter. It is not for this court to now peruse exhibits ‘A’ and ‘A1’ to fish out the area to use against the plaintiff”
2. The learned trial Judge erred in law when His Lordship held that the case of the defendants as to the land being family land was dented by DW1 because he said the family gave plaintiff another land.
3. The learned trial Judge erred in law when His Lordship held:
“Now, the state of the law is that to transfer an Absolute title under customary law, it ought to be pleaded and proved that the sale was concluded in the presence of witnesses and the names of those witnesses should also be pleaded as the fact they witnessed the actual delivery or handing over of the land to the purchaser. See Folarin vs. Durojaiye (1988) 1 NWLR (Pt.70) 351”.
4. The learned trial Judge erred in law when His Lordship held that the 2nd defendant did not establish the identity of the land claimed.
5. The learned trial Judge erred in law when His Lordship held as follows:
“So the plaintiff is entitled to remain in the area of land where he is presently rampaging until someone or group of people with a better title catch up with him”.
The parties exchanged briefs of argument. From the grounds of appeal the appellant distilled three issues for determination to wit:
“(i) Whether from the pleadings and the totality of the evidence led by the parties, the identity of the land claimed by the 2nd appellant is known to the parties, clear and or ascertainable? (Ground 4).
(ii) Whether the learned trial Judge was right when after dismissing the respondent’s claim in its entirety, proceeded to grant to the respondent possessory rights over the land in dispute? (Ground 5)
(iii) Whether the learned trial Judge was right having regard to the pleadings and the totality of the evidence led in the case to have dismissed the counter claim of the 2nd appellant (Grounds 1, 2 and 3).”
On the other hand the respondent distilled the following issues for determination –
1. Whether from the entire circumstances of the case the trial court’s finding of fact in respect of failure of the 2nd appellant to establish the identity of the land claimed in his counterclaim can be disturbed or interfered with by the appellate court.
2. Whether the chance remark on possession complained about in ground 5 amounted to grant of possessory right giving rise to an appealable decision and issue worthy of consideration by the appellate court.
3. Whether the judgment of the trial court dismissing the counter-claim of the 2nd appellant is right or justified in law.”
Appellant’s issue No. 1 relates to the identity of the land the subject matter of the counter claim. He argues that he had tendered the survey plan and that was sufficient to establish the identity of the land in dispute. He further argues that because both parties knew the land in dispute, it was unnecessary establishing the identity of the land in dispute. The appellant seems to have ignored the clear and unchallenged finding of the court that the respondent as plaintiff failed to establish the identity of the land he was claiming. That finding binds both parties. Where the issue before the court is damages for trespass and the court is satisfied that both parties know the land the subject matter of the dispute, it will be unnecessary for the claimant to prove the identity of the land. Where however the claimant is seeking a declaration of title as in this case, he must establish the identity of the land –
Okochi vs. Animkwoi (2003) 18 NWLR (Pt’ 551) 1; Baruwa vs. Ogunsola (1938) 4 WACA 159; Udeze vs. Chidebe (1990) 1 NWLR (Pt.125) 141; Aboyeji vs. Momoh (1994) 4 NWLR (Pt.341) 646; Thompson vs. Arowolo (2003) 109 LRCN 1345; Ekpemupolo vs. Edremoda (2009) 176 LRCN 235. This is so because a person claiming to be entitled to a declaration of title has to satisfy the court by evidence even where the other party has admitted in his pleadings that he is so entitled – see Lawson vs. Ajibulu (1997) 6 SCNJ 1.
It was therefore incumbent on the counter claimant to establish before the trial court the identity of the land in dispute. In the instant case the only evidence placed before the court was the survey plan which formed part of exhibit B. Exhibit B was pleaded and tendered as the receipt issued to the appellant by the vendors. A party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered – see Awuse vs. Odili (2005) 16 NWLR (Pt. 952) 417; Terab vs. Lawan (1992) 3 NWLR (pt.231) 569; Rotimi vs. Fatoriji (1999) 6 NWLR (pt.606) 305 where there is oral and documentary evidence, the documentary evidence is used as a hanger to assess the oral testimony – see Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at 473; Fashanu vs. Adekoya (1974) 6 SC 83; Olujinle vs. Adeagba (1988) 2 NWLR (Pt.75) 238.
In the instant case, exhibit “B” is the hanger to be used to assess the appellant’s testimony that he was issued a receipt upon payment for the land. It is incumbent on a party tendering a document before the court to demonstrate to the court the use he proposes to put it – see Awuse vs. Odili supra.
In the instant case exhibit “B” spoke to paragraph g of the appellant’s pleadings where he pleaded payment of money and receipt issued and to no other paragraph of the said pleadings. Appellant’s issue 1 is resolved against the appellant. Also resolved against the appellant is his issue 3. Having failed to establish the identity of the land in dispute, the trial court was right in dismissing his counter claim.
Appellant’s issue (ii) is whether the learned trial Judge was right when after dismissing the respondent’s claim in its entirety he proceeded to grant to the respondent possessory rights over the land in dispute. The respondent’s answer is that the statement by the trial court about his possessory right to the property in issue was a mere obiter dictum and does not really effect the substance of the judgment. I beg to disagree. The trial Judge, after his disquisition on the respondent’s possessory rights, concluded as follows:
“subject to the foregoing, both claim of the plaintiff and the counter claim of the 2nd defendant are hereby dismissed.
In other words, the dismissals are subject to the possessory rights of the respondent he, the Judge, had established. It is strange that having earlier dismissed all the respondent’s claims as plaintiff including claims for damages for trespass and injunction, he could turn round to award possession to the plaintiff. He cannot. Where a trial court hears two cases together as in this case, it is wrong for the court to deliver judgment in one suit which contradicts and has the effect of nullifying its judgment in the other suit – see Balonwu vs. Ikpeazu (2005) 13 NWLR (Pt. 942) 479.
What the trial court has done has been to substantially nullify its earlier judgment refusing all the plaintiff’s prayers. This issue is resolved in favour of the appellant. Ground 5 from which it is distilled is hereby allowed.
This appeal is partially allowed. The dismissal of the respondent’s suit and the appellant’s counter claim subsists. The portion of the judgment of the trial court vesting possession on the respondent is hereby quashed.
No order as to costs.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading in draft the leading judgment prepared and just read by my learned brother, R. C. Agbo, J.C.A. I agree that this appeal is partially meritorious and is hereby allowed. I abide by the consequential orders made in the said leading judgment.
CHIOMA EGONDU NWOSU-IHEME (PH.D), J.C.A.: I read in advance the lead judgment delivered by my learned brother AGBO JCA. I agree with the reasoning and conclusion that this appeal succeeds in Part.
The trial judge was wrong to have earlier dismissed all the respondent’s claims as plaintiff including claims for injunction and trespass and thereafter somersaulted by awarding the same plaintiff possession. The effect is like giving judgment on one hand and nullifying the same judgment with the other hand.
I agree with the lead judgment that the dismissal of the respondent’s suit and the appellant’s counter-claim subsists. The portion of the judgment of the trial court vesting possession on the respondent is quashed. I also make no order as to costs.
Appearances
R. A. S. OvwamudoFor Appellant
AND
C. J. EnegideFor Respondent
