MRS. ANGELINA ANOZIE & ANOR v. MRS. JOSEPHINE IROEGBU
(2014)LCN/7493(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of October, 2014
CA/OW/173/2011
RATIO
TORT: TORT OF TRESPASS LAND; WHETHER TRESPASS TO LAND IS A VIOLATION OF POSSESSORY RIGHT AND IT DOES NOT GENERALLY INVOLVE TITLE TO LAND
Trespass to land is an infraction against the right of possession and for Appellant to succeed with his claim regarding the issue of trespass then it must be clear from the evidence presented at the lower court that the Appellant had exclusive possession of the parcel of land in dispute. See the case of OMONI and 16 ORS v. BIRIYAH and 2 ORS (1976) 6 SC (REPRINT) 34 at 37 paragraph 30 where the Supreme Court said that; “trespass is a violation of a possessory right and does not generally involve title to land”. See also the case of ADEGBITE v. OGUNFAOLU (1990) 7 SC. (Pt. 1) 100 at 114-115; also AKINKUGBE v. EWULUM HOLDINGS NIG. LTD. and ANR. (2008) 4 SC 125 at 163. per. FREDERICK O. OHO, J.C.A.
LAND LAW: TITLE TO LAND; WHETHER JUDGMENT MUST BE FOR THE PERSON WHO PROVES A BETTER TITLE WHERE BOTH PARTIES CLAIM TO BE IN POSSESSION
It is settled point of law, however, that where both parties claim to be in possession as has been done in the instant case, judgment must be for the person who proves a better title. per. FREDERICK O. OHO, J.C.A.
COURT: DUTY OF THE COURT; THE DUTY OF THE COURT TO ENSURE IT DOES NOT MAKE AN ORDER IN VAIN
A court of law will not indulge in the making of useless and unenforceable orders. It has a duty to ensure that it does not make an order in vain. See the case of MAKINDE v. AKINWALE (1995) 6 NWLR (Pt. 399) 1 and legion of decided cases on this issue. per. FREDERICK O. OHO, J.C.A.
COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL DISTURB THE FINDINGS OF A TRIAL COURT THAT IS NOT PERVERSE
It must be stated with all amount of clarity that this is an appellate court and that unless it is clearly shown that the findings of the lower court in respect of damages are perverse or unjustified by the evidence placed before the court, then there is nothing this court can to disturb the findings of fact made by the trial court on the issue of damages. This is even more so when the Appellants have been unable to demonstrate that the lower court proceeded from wrong principles not supported by evidence. Here is a matter in which the court’s finding on the issue of damages was to the effect that the Respondent’s evidence before it was not challenged in any way. This court simply has no powers to disturb that finding of the learned trial court and the matter remains that way. See the case of CALABAR EAST CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD. & ORS. v. IKOT (1999) 14 NWLR (Pt. 638) 225 and legion of other decided cases on the issue. per. FREDERICK O. OHO, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
1. MRS. ANGELINA ANOZIE
2. SAMUEL ANOZIE Appellant(s)
AND
MRS. JOSEPHINE IROEGBU
(Suing by her Attorney Mr. Victor Ihezuo) Respondent(s)
FREDERICK O. OHO, J.C.A. (Delivering the Leading Judgment): Before the High Court of Imo State, sitting at Owerri in Suit with numbers HOW/421/2004 and HOW/286/2005, which were later consolidated on the orders of Court, the Appellant as Claimant in the said suit No. HOW/421/2004 claimed against the Respondent as follows:
“(a) N10,000,000.00 (Ten Million Naira) being damages for trespass against the Defendant for willful destruction of Plaintiffs house under Construction and forcefully entering upon the land k nown as and called Plot 747 Housing Area “L” New Owerri otherwise called Plot L/747 site and services scheme (World Bank Housing Area) which is covered by statutory certificate of occupancy No. 43 page 43 volume 175 of 21/8/87.
(b) Perpetual Injunction restraining the Defendant, her agents, servants or privies or those claiming through her or under her from further entry into the said piece.”
In the meantime,in the second matter, with Suit No. HOW/286/2005 the Respondent claimed against the Appellants jointly and severally as follows:
(1) Possession of the property and appurtenance known as and described as Plot No. OL/R/747 Area “L” World Bank Assisted, Urban Housing Umuguma, Owerri and situate and being at Umuguma Owerri.
(2) The sum of N10,000,000.00 (Ten Million Naira) being special and General damages for trespass and malicious and criminal destruction of the said Plaintiff property at Plot No. OL/R/747 Area “L” as aforesaid.
(3) Injunction permanently restraining the Defendants their agents, privies, servants and workmen from further destroying or damaging the Plaintiff’s property or from howsoever interfering with the Plaintiffs construction work on the aforesaid described property.
Pleadings were duly filed and exchange and after the consolidation, trial commenced on the 31st day of May, 2007. Four witnesses gave evidence for the Appellant while the Respondent called three witnesses. At the conclusion of the trial the learned trial Judge N. B. Ukoha, awarded the sum of N492,270.00 as special damages and the sum of N1,000,000.00 as General damages, against the Appellants in the consolidated suit.
It is against that decision that the Appellant’s appealed to this court on the following grounds, shorn of their particulars:
GROUNDS:
(1) The learned trial Judge erred in Law by holding that the Appellants did not prove their claim in Suit No. HOW/421/2004.
(2) The trial court erred in Law by holding that the Imo State Government (as the revoking authority) complied adequately with the provisions of the law in the revocation of 1st Appellant’s property and properly re-allocated same to the Respondent.
(3) The trial court erred in law holding that non-joinder of the Governor Imo State or Imo State Government as a party in the suit was fatal to the claims of the Appellants.
(4) The trial court erred in law by holding that the Appellants failed to prove damages as claimed.
(5) The trial court erred in law granting special damages claimed by Respondent when there was no proof required.
Briefs of arguments were filed and learned counsel to the parties made oral submissions in the course of adopting their briefs before court. Before I deal with the issues distilled from the grounds and argued before court, it may be desirable to put briefly the facts as disclosed in the pleadings and the evidence adduced before the lower court, The 1st Appellants case was that she applied for an allocation of land in the World Bank Urban Development project site and services in Owerri and was allocated a piece of land in 1984 which she developed up to lintel level. She was granted a Certificate of occupancy registered as No. 43 page 43 Volume 175 of the lands Registry, Owerri. Sometimes in 2004 when the 2nd Appellant visited the site he discovered that the 1st Appellant’s building and been pulled down and a new building was being constructed thereon. A report was lodged with the police and following police Investigations a letter was written by one Theophilus Iwunze, Coordinator of Project Implementation Unit on the 22-11-2004, informing the 1st Appellant that her allocated piece of land was revoked and Re-allocated to the Respondent for failure to comply with the conditions of the allocation.
On the part of the Respondent, the disputed parcel of land was allocated to her in 1993 by the Government of Imo state and was put into possession in 1994 after complying with the formalities and requirements of the allocation and with the assistance of her Attorney, one Victor Ihezuo, she commenced construction of her building which she had taken to roof-top before the 2nd Appellant destroyed the building and carried away the materials and equipment used in constructing the building. According to Respondent investigation by the police and information supplied by the project implication unit showed that the land was allocated to 1st Appellant in 1984 and revoked in 1992 due to non-compliance with the conditions of the allocation, while the piece of land was re-allocated to the Respondent in 1993 by the Government of Imo State.
The Appellant’s brief of argument settled by Ezeohiri Fred Njemanze, Esq. nominated four (4) issues for the court’s determination of this Appeal to wit:
1. Whether the lower court was right to hold that Appellants did not prove their case.
2. Whether the Respondent proved or showed that 1st Appellant’s rights of occupancy was validly revoked.
3. Whether the lower court was right to hold that non-fatal to the case of Appellants.
4. Whether the Respondent proved or is entitled to the sum awarded as special damages to her by the lower court.
The Respondents brief of argument, settled by E. C. Ekechukwu, Esq. adopted the four (4) issues as well for the determination of this Appeal. At the hearing of this Appeal on the 24-9-2014, Learned Appellant’s counsel, Ezeohiri Fred Njemanze adopted and relied on the Appellant’s brief of argument dated 9th day of July, 2012 and filed the same date. He urged the court to allow the Appeal.
The Respondent’s counsel E. C. Ekechukwu, Esq. adopted and relied on the Respondent’s brief of argument dated and filed on the 4th day of October, 2012 and urged the court to dismiss the appeal. Having adopted the issues as formulated by learned Appellants’ counsel, I shall now consider the entire issues in one fell swoop at the end of the review of arguments and submissions of learned counsel for the parties.
ISSUES ONE AND TWO:
In responding to the lower court’s findings that the Appellants did not proved that Respondent entered into the disputed piece of land unlawfully, learned counsel contended that the Respondent never denied entering the land in dispute but that what she relied upon as her authority for doing so was the purported revocation of the right of occupancy of the 1st Appellant by the Imo State Government. Having established this position, counsel further contended that the onus of establishing that she did not go over the land in dispute unlawfully falls on the Respondent under Section 139 of the Evidence Act. In other words, that the onus to prove that there was indeed a revocation of the Appellant’s allocation rests on the Respondent. Learned counsel said that the Appellants proved their case at the lower court and that they are entitled to damages for trespass. Counsel further said that the evidence of the PW2 to the effect that Appellant had erected her structure to D.P.C. level was not challenged by Respondent.
Learned Appellant’s counsel further contended that the Respondent and her witnesses having admitted going over the land in dispute, it was certainly not with the permission of the Appellant who was obviously in possession. He said that an entry based on an illegal act of the acquiring and allocating authority cannot be a defence to trespass.
Counsel also contended that the reliance on the defence of JUS TERTI to ground and justify Respondent’s unlawful entry and damages to the property of the Appellant does not avail the Respondent in the circumstance. Counsel said that the element of exclusive possession in a case of unjustifiable interference is enough to attract the injunctive reliefs of damages for trespass to land. Counsel referred to the case of OWHONDA v. EKPECHI (2003) 9-10 SC. See also the case of SHOTAYO ARO & ORS v. BABAYEMI & ORS (2004) ALL FWLR (Pt. 204) 61 AT 73. It was his contention in addition that the Appellants, both in their pleadings and evidence established Appellant’s exclusive possession of the land in dispute and which was admitted by the Respondent. He buttressed Appellants submission on this with the decision of UGOJI v. EZE (DR.) ONUKOGU (2005) ALL FWLR (Pt. 271) 66 AT 78. See also the case of DANTSHO v. MOHAMMED (2003) 6 NWLR (Pt. 817) 457 AT 488-489.
Learned Appellant’s counsel further contended that the Respondent having claimed to have gone over the disputed parcel of land because they were so justified, can only be valid if the purported revocation of the Appellants’ interest was done in accordance with law. Counsel further said that in purporting to revoke Appellants interest in the land, the Government failed to comply with a number of conditions precedent, one of which is that the requisite Notice was not served on the Appellant in compliance with the enabling law. Counsel buttressed his arguments with the case of BOYE INDUSTRIES LTD v. SOWEMIMO (2009) NMLR (Pt. 3) 267. See also the case of PROVOST, LAGOS COLLEGE OF EDUCATION v. EDUN (2004) ALL FWLR (Pt. 201) 1628 RATIO 6 and also the case of MACFOY v. UAC (1962) AC 152.
Still on the issue of requisite Notice of revocation learned counsel referred to the evidence of DW2 who said that Notice of the revocation was published in the Newspapers, Radio announcements and Gazette. It was his contention that under Section 28 of the Land Use Act, the evidence of the DW2 cannot seriously be taken as amounting to enough steps provided by the law in this regard. Learned counsel referred court to the case of NIGERIAN ENGINEERING WORKS LTD. v. DENAP LTD. (2001) 18 NWLR (Pt. 746) 726 AT 757. Learned counsel also referred court to the provisions of the Land Use Act providing for the processes by which a right of occupancy could be revoked, and none of which had been complied with. Counsel referred to the cases of ABACHA v. EKE SPIFF (2009) 2 KINGS L.R. 197 AT 215; ONONUJU v. A-G ANAMBRA (2009) 5 KINGS L.R. 1357 AT 1377; A-G BENDEL v. AIDEYAN (1989) 4 NWLR (Pt. 118) 646; OLATEJU v. COMM. L.H. KWARA STATE (2010) 14 NWLR (Pt. 1213) 302; OLATUNJI v. MILITARY GOV. OF OYO STATE & ORS (1995) 5 NWLR (Pt. 397) 586; JEGEDE v. CITCON NIG. LTD. (2004) 4 NWLR (Pt. 702) 112. Learned counsel finally urged the court to resolve the issues one and two in favour of Appellant.
On the part of the Respondent, Learned Counsel began by addressing the issue of the validity of the revocation of the allocation of land to the 1st Appellant. He referred court to Section 28 of the Land Use Act and contended that the Governor of a State has extensive powers to allocate and/or revoke land to any person under the Land Use Act. Counsel referred to the case of NETWORK SECURITY LTD. v. ALHAJI UMARU DAHIRU & ORS (2008) FWLR (Pt. 419) 475 AT 492. He said that it has been demonstrated in this case, that the Governor of Imo State in exercise of his powers under Section 28 of the Land Use Act revoked the right of occupancy in respect of Plot No. OL/R/74 World Bank Housing Area Owerri and allocated same to the Respondent. Learned counsel referred to the case of BUHARI v. OBASANJO (2005) ALL FWLR (Pt. 258) 1604 AT 1641 and Section 150 (1) of the Evidence Act regarding the question of substantial conformity of official or Judicial Acts shown to have been done in a manner that is substantially regular and strong enough to presume that formal requisites were complied with.
Learned Respondent’s counsel further argued that the complaint by Appellant that the Governor did not give proper notice of revocation, before revoking 1st Appellant’s interest on the land in dispute, should be directed at the Governor and not against the Respondent who has no powers of allocation and/or revocation of right of occupancy.
Learned counsel contented that the Respondent justified her right of occupancy and entry into the land in dispute by Exhibits “K” and “L” which are documents evidencing the allocation of the land in dispute to her. He referred to pages 133 to 136 of the Records of Appeal. It was his further contention that by entering into the land in dispute and building thereon, the Respondent acted under the authority of the Governor of Imo state and therefore cannot be liable in trespass.
Learned counsel conceded that a claim for trespass is rooted in exclusive possession and is maintainable at the instance of the person in possession or the owner of the property. Learned counsel referred to the case of CHIME v. UDE (1993) 3 NWLR (Pt. 279) 78 AT 91 and submitted that 1st Appellant’s legal and possessory right to the disputed land were extinguished in 1992 by virtue of Exhibit “N” which contains the order revoking the 1st Appellant’s right of occupancy to the disputed parcel of land. That revocation, counsel contented has not been set aside by any court and that the Appellants cannot therefore claim to have any possessory right to the disputed land after 1992.
It was counsel’s contention that the cases cited by learned Appellant’s counsel, though good law, are however not applicable to this case as they deal with cases where there is a claim to set aside the revocation of a right of occupancy for non-compliance with laid down procedure. Learned counsel urged the court to uphold the revocation of the right of occupancy of the 1st Appellant and to resolve the issues 1 and 2 in favour of the Respondent.
ISSUE THREE:
On the issue of non-joinder of the Governor of Imo State and also on the issue of cause of action which Respondent raised in their statement of Defence, learned Appellants’ counsel contended that the action is one that is grounded on trespass and that it is for the Respondent to justify its action of trespass by showing that it has a superior title to that of Appellant, to oust the possession by Appellant, learned counsel for this cited the of ADUA v. ESSIEN (2010) 14 NWLR (Pt. 1213) 144.
Counsel added that the non-joinder of a party against whom there is no complaint will not affect the proper determination of the issues. He cited the case of DANTSOHO v. MOHAMMED (2003) 6 NWLR (Pt. 817) 457 AT 487-488 in support and contended that the non-joinder of the Governor or government of Imo state cannot defeat the claims of the Appellants. The non-joinder of a necessary party at best is only procedural irregularity which does not affect the competence or jurisdiction of court to entertain the matter before it. Counsel referred court to the case of UTHMAN DAN FODIO UNIVERSITY SOKOTO v. PROF. BALOGUN & ANOR (2006) FWLR (Pt. 325) 166 AT 186. Counsel further said that under the law, the court can sue motu or on an application by either party to a suit join any party considered necessary whose presence shall lead to a proper resolution of the case. It was his submission that Respondent, if not being clever by half ought to have discharged the duty placed upon it to apply to join the person she claims gave her title to the land in dispute. He cited the case of NNORODIM v. EZEANI (2001) FWLR (Pt. 40) 1696 AT 1699 and also the case of EFFIOM v. IRONBAR (2000) FWLR (Pt. 53) 137 AT 153.
Learned Appellants’ counsel further contended that as long as the Appellants’ case at the lower court was not predicated on a declaration of entitlement to statutory right of occupancy, then the non-joinder of the Government of Imo state at the lower court was not fatal to the case of the Appellant as concluded by the trial court, at pages 65 to 69 of the Record of Proceedings. Learned counsel also referred court to the cases of ALHAJA R. AYORINDE v. ALHAJA ONI A. (2000) FWLR (Pt. 3) 445 AT 464 and also the case of MARTNS v. FED. ADMINISTRATOR – GEN. (1962) 1 ALL NLR 120.
Learned counsel further contended that the Appellants, case at the lower court was properly constituted and that at no time before or at the hearing of this suit did the Respondent ever mode any objection with regard to the issue of joinder or non-joinder of the Government of Imo state in this matter. He cited the case of SUPO v. SUNMONU (2010) ALL FWLR (Pt. 531) 1412 and a host of other authorities on the subject and he urged the court to resolve the issue 3 in favour of the Appellant.
In his response on this issue learned Respondent’s counsel submitted that the issue of joinder of the Government of Imo state is pivotal to the success or otherwise of this suit. He said that the Appellants tendered in Evidence, the Exhibits “D” and ‘H” in proof of the grant of allocation of land in dispute, while the Exhibit “N” was tendered as proof of revocation of Appellants’ interest on the land in dispute. Counsel contended that in view of the pleadings of the parties, evidence and claim, the Government of Imo State is inevitably a necessary party to this case. He also added that to grant Appellant’s Relief in this matter is another way to strike down revocation order of Appellants’ interest in the land in dispute and not recognizing the latter re-allocation made to Respondent, without hearing the author of the Exhibits “K” and “L”. Counsel referred court to the case of ONABANJO v. EWETUTA (1993) 4 NWLR (Pt. 288) 445 AT 458 on the need to bring all persons to court who are necessary to the proper adjudication of a matter. Learned counsel urged the court to resolve the issue 3 in favour of Respondent.
ISSUE FOUR:
Learned Appellant’s counsel told court that the trial court erred in law in granting special damages to the Respondent when there was no proof thereof of special damages. Counsel contended that special damages are to be strictly proved and that the mere ipse dixit evidence by a party cannot be proof as in the instant case. He said special damages must be proved with qualitative and credible evidence. He referred to the case of TOLOFARI v. SPDC (2009) 1 NWLR. It was further contention by counsel that no receipts were tendered or documents evidencing the items claimed. Learned counsel urged the court to resolve issue in favour of the Appellant.
In his response, Learned Respondents counsel contended that the learned trial court made no awards of special damages in this suit even when Respondent pleaded and gave evidence in support of same. What the lower court awarded, counsel said is general damages which court rightly granted as a matter of its discretion. Counsel referred to the case of OYADEJI v. ADENIE (1993) 9 NWLR (Pt. 316) 224 AT 239 in support and urged the court to resolve the issue four in favour of the Respondent and dismiss the Appeal.
RESOLUTION OF ISSUES:
I have taken a very careful consideration of the arguments of counsel to the parties with regards to the entire issues nominated for the court’s determination in this case. However, in order to be well guided this court must take its bearing from the nature of the reliefs claimed by the parties against the other in their respective suits even though consolidated, otherwise a proper diagnosis of the real issues at stake may be muddled up and lead to a miscarriage of justice. The settled rule of law is that a party should not get from the court, that which he has not claimed, the court not being a Father Christmas. See the case of ETAJATA v. OLOGBO (2007) 16 NWLR (Pt. 1061) 554; See also the case of EDEBIRI v. EDEBIRI (1997) 4 SCNJ 177; See also the case and a host of other decided cases in that light. It would be recalled that the main claim of Appellant before the lower court in his suit no, HOW/421/2004 is one that is grounded in the tort of trespass. Coincidentally, the main claims of the Respondent in the Respondent’s own suit against the Appellant in suit No. HOW/286/2005 in the Reliefs one and two, are Possession and trespass as well. These claims, it should be pointed out have been reproduced in this judgment for the avoidance of any doubts.
Perhaps, common to the claims of both sides herein, is the issue of trespass. Let me say straight away that the issue of whether the Respondent was on the land in dispute is not denied. The Respondents case is that she was on the disputed parcel of land lawfully. Her case is that the parcel of land was allocated to her by Government at a time she knew nothing about the Appellants’ interest on the land. As far as the Respondent is concerned, she applied for and was granted land by the Government of Imo State and that she met and fulfilled all the requirements and formalities appertaining thereto before going over the land.
In view of this state of affairs, to therefore establish claims of the Appellant against the Respondent, Appellants must prove that they had possession of the land in dispute otherwise the tort of trespass would fail.
Trespass to land is an infraction against the right of possession and for Appellant to succeed with his claim regarding the issue of trespass then it must be clear from the evidence presented at the lower court that the Appellant had exclusive possession of the parcel of land in dispute. See the case of OMONI and 16 ORS v. BIRIYAH and 2 ORS (1976) 6 SC (REPRINT) 34 at 37 paragraph 30 where the Supreme Court said that; “trespass is a violation of a possessory right and does not generally involve title to land”. See also the case of ADEGBITE v. OGUNFAOLU (1990) 7 SC. (Pt. 1) 100 at 114-115; also AKINKUGBE v. EWULUM HOLDINGS NIG. LTD. and ANR. (2008) 4 SC 125 at 163.
What should nevertheless, be borne in mind in this Appeal, is that both parties through their witnesses gave copious evidence before the lower court, concerning the question of possession and in which each side claimed to have exclusive possession of the land in dispute. This of course, was done for very obvious reasons going by the strategic position of advantage which it portends to a party suing for trespass. To therefore resolve what may seem like a logjam in the trial, what must court therefore do?
It is settled point of law, however, that where both parties claim to be in possession as has been done in the instant case, judgment must be for the person who proves a better title.
In other therefore, to resolve the present dispute it will be necessary to carefully take a look at the state of the parties’ pleadings and evidence in this case. I have earlier reproduced the brief facts of this case.
Without having to mince words, the Appellant herein cannot feign ignorance of the fact that the allocating Authority, that is the Governor of Imo State, in exercising its authority under Sections 28 and 44 of the Land Use Act revoked Appellant’s allocation and interest on the parcel of land in dispute and re-allocated it to Respondent. That situation, since the act of the Governor in revoking the Appellants’ interest in the land in dispute, has not changed. At page 47 of the printed records, one Samuel Anozie who testified as the PW1 in this case, in his evidence in chief told court that by the contents of Exhibit “B”, which was a letter addressed to the Appellants by the P.I.U., it was stated therein, that his mother’s property, the said parcel of rand in dispute, had been revoked and re-allocated.
This court, in taking its bearing from the claims of the parties, and by which they are inexorably bound, whether the revocation of the Appellant’s interests in the land in dispute was right or wrong in law is neither the business of this court nor is it that of the Respondent. The entire position of this matter, it must be properly and strictly observed, has nothing to do with whether the revocation and/or re-allocation of the land in dispute was rightly or wrongly done.
It should be noted however at this point, that what learned Appellant’s counsel did mostly in this matter, was not so much in seeking to establish Appellant’s title, but rather though strenuously in contesting the validity of the revocation of the Appellant’s interest in the land in dispute, which happens to be an exercise not backed by the claims or reliefs of the parties before court.
In the case of ADETOUN OLADEJI v. N.B. PLC. (2007) 5 NWLR (Pt. 1027) 415, the Supreme Court per, Tobi,JSC (as he then was) on this issue has this to say;
“… it is good law that parties, the owners of their cases, are in the best position to know their claims or reliefs and the courts cannot go outside the claims or reliefs in search for other claims or reliefs not before them. The role of court is to adjudicate on the claims or reliefs placed before it by the parties…”
If indeed, the Appellant had the intention of contesting the validity of the revocation of its interests in the disputed parcel of land it should have filed an appropriate suit to that effect with the parties clearly and distinctly made out and the reliefs claimed also specifically stated for that purpose. In agreeing with the learned trial judge, to declare the revocation order of Government wrongful in a suit in which the Government of Imo State has deliberately not been made a party is not only cowardly in the estimation of court, but also an exercise in futility, if the purpose is merely to achieve some victory over the Respondent who knew nothing about the when, where and have the revocation decision was taken. A court of law will not indulge in the making of useless and unenforceable orders. It has a duty to ensure that it does not make an order in vain. See the case of MAKINDE v. AKINWALE (1995) 6 NWLR (Pt. 399) 1 and legion of decided cases on this issue.
All said and done, I simply cannot find myself disagreeing with the lower court, that of the two parties, the one who parades a better title is the Respondent, to whom the interest in the land in dispute was re-allocated upon its revocation by the Government of Imo State. In the same vein, I still cannot see myself in disagreeing with the learned trial judge when he held and rightly so, that the proper person in possession is the Respondent, and I so hold.
On the issue of damages, learned counsel for the Appellant, contended that the learned trial Judge awarded special damages when none was proved strictly by the production of receipts of payment and that the lower court had relied on the ipse dixit evidence of a party in awarding damages. It is, perhaps, instructive to note what the lower court had to say on the issue at page 105 of the printed records as follows;
“… the defendant/claimant at paragraph 20 of her Statement of Claim pleaded special damages. DW1 also gave same in evidence in his written deposition on what was spent on materials for the said construction which the defendant claimed as special damages. This evidence was neither controverted nor contradicted. It therefore means that the defendant/claimant not only proved her special damage but also proved that she constructed a building on the land in dispute. The sum of N492,270 claimed by the defendant/claimant as the grand total of what was spent on the building before it was destroyed and was therefore proved…”
It must be stated with all amount of clarity that this is an appellate court and that unless it is clearly shown that the findings of the lower court in respect of damages are perverse or unjustified by the evidence placed before the court, then there is nothing this court can to disturb the findings of fact made by the trial court on the issue of damages. This is even more so when the Appellants have been unable to demonstrate that the lower court proceeded from wrong principles not supported by evidence. Here is a matter in which the court’s finding on the issue of damages was to the effect that the Respondent’s evidence before it was not challenged in any way. This court simply has no powers to disturb that finding of the learned trial court and the matter remains that way. See the case of CALABAR EAST CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD. & ORS. v. IKOT (1999) 14 NWLR (Pt. 638) 225 and legion of other decided cases on the issue.
In the final analysis, this Appeal fails and it is accordingly dismissed with cost assessed as N50,000.00 against the Appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I have had the opportunity of reading the lead Judgment of my learned brother, F. O. Oho, JCA before now and I totally agree with him that the Appeal lacks merit. My Lord has adequately and comprehensively dealt with the Issues that fell for determination before coming to the inevitable conclusion that the Appeal lacks merit. I adopt his judgment into to and also dismiss the Appeal with N50,000.00 costs against the Appellant.
ITA GEORGE MBABA, J.C.A.: I have read the draft of the lead judgment just delivered by my learned brother, F. O. Oho, JCA. I agree with him, completely, and also dismiss the appeal for lacking in merit. I abide by the consequential orders in the lead judgment.
Appearances
Ezeohiri Fred Njemanze Esq.For Appellant
AND
E. C. Ekechukwu Esq.For Respondent
