OKONKWO v. UNION HOMES SAVINGS AND LOANS PLC
(2020)LCN/15342(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, July 03, 2020
CA/L/1198/2016
RATIO
LAND LAW: TRESPASS AND POSSESSION: WHETHER WHERE A PLAINTIFF FOUND HIS CLAIM FOR DAMAGES FOR TRESPASS TO LAND ON PRESENT POSSESSORY TITLE ALONE HIS POSSESSION OF THE LAND IN DISPUTE IS GOOD AGAINST THE WHOLE WORLD
An action in trespass is tied to possession and a claim for trespass does not swim or sink with a claim for declaration of ownership or title to real property vide Ayinde v. Salawu (1989) 3 NWLR (pt. 109) 297 following Oluwi v. Eniola (1967) NMLR page 339 to the effect that the fact that a plaintiff fails in his claim of ownership of land does not mean that his claim for damages for trespass must necessarily fail.
For emphasis, it was stated in Ayinde v. Salawu (supra) at 316 — 317 that –
“And in Awoonor Renner v. Anan 2 W.A.C.A. 28 the Old West African Court of Appeal said as regards a claim for damages for trespass to land –
“A trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing a trespass is to say that the defendant broke and entered the plaintiffs’ close and did damage, and it follows that in order to maintain an action for trespass the plaintiff must have a present possessory title – an owner of land who is legally entitled to possession not being competent to maintain an action for trespass before entry (Wallis v. Hands (1 93) 2 Ch. 75). Where indeed both parties are in a field claiming possession the possession being disputed, trespass will be at the suit of that one who can show that the title is in him”.
It is also the law that where a plaintiff found his claim for damages for trespass to land on present possessory title alone his possession of the land in dispute is good against the whole world except the true owners of the land or anyone claiming through them. (See (1) Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 67 at 75, 76; (2) Shell B.P. Ltd. v. Abedi (1974) 1 All N.L.R. F 1). PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
DECLARATORY ORDER: WHETHER A DECLARATORY RELIEF CAN BE REFUSED IF THE EVIDENCE HAS BEEN DISCREDITED
A declaratory relief can be refused if the evidence has been discredited as in this case where the pattern of cross-examination demonstrated that the appellant had not paid up the total sum to be entitled to ownership of the two shops and the shops were merely allotted to him turning him into licensee vide the cases of Ogundairo and Ors. v Okanlawon (1963) NSCC at 287 B, Awomuti v. Salami and Ors. (1978) 11 NSCC 180 at 186 where the Supreme Court held inter alia that the making of a declaratory order is within the discretion of the trial Court and that the discretion should not be too readily exercised, especially where the evidence by the defendant including evidence extracted in cross-examination, as in this case, discredited the claimant’s case with respect to the declaratory relief which, I think, was rightly withheld by the Court below which refused to grant the declaratory relief in question. The Court below was, therefore, right to refuse to grant the declaratory relief (supra) that the appellant was the owner of the two shops in question. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
DISCRETION OF COURT: CONDITIONS TO BE SATISFIED BY THE CLAIMANT TO BE ENTITLED TO THE EXERCISE OF A COURT’S DISCRETION
The success or failure of a declaratory relief is dependent on the judicious and judicial exercise of discretion by the Court. See: Ladoja v. INEC (2007) 12 WLR (Pt. 1041) 115; Odofin v. Ayoola (1984) 11 SC 72; Ogolo v. Ogolo (2003) 18 NWLR (Pt. 852) 494; A declaratory relief will only be granted on the strength of the claimant’s case. It will not be granted in default of defence or even on admission. See: Kwajaffa & Ors. V.B.ON. Ltd. (2004) 13 WLR (pt. 889) 149; Maja v. Samouris (2002) 7 WLR CPt. 765) 78; (2002) LPELR -1824 (SC) 19 – 20 F – B: Alao v Akano & Ors. (2005) 11 WLR (Pt. 935) 160. The Court must be satisfied when all the facts are considered, that the claimant is fully entitled to the exercise of the Court’s discretion in his favour.
His Lordship, Augie, J.S.C., added in his judgment contained in pages 530 — 531 of the law report thus —
“But in arguing as they did, the appellants lost sight of the fact that they claimed two declaratory reliefs, and it is basic law that a plaintiff has the onus of proof to show that in a declaratory action he is entitled as per his claim. To this end he has to succeed on the strength of his own case, and not on the weakness of the defendant’s case, and where he defaults in discharging this onus, his case will be dismissed.
The burden of proof in establishing a declaratory relief is heavy – See A.G., Rivers State v. A.G., Bayelsa State (2012) LPELR -9336 (SC), (2013) 3 NWLR (Pt. 1340) 123 and Dumez (Nig) Ltd. v. Nwakhoba (2008) 18 WLR (Pt. 1119) 361; wherein this Court per Mohammed, JSC (as he then was) observed –
The law on the requirement of the plaintiff to plead and prove his clams for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory Reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his evidence.”
See also Fabunmi v. Agbe (1985) 1 NWLR (pt.2) 299
Consequently, I agree with the respondent that even where admissions are made in the pleadings, declaratory reliefs cannot be granted on the admission on the ground that a Court called upon to make a declaration of a right demands that it be incumbent on the party claiming to be entitled to the declaration to satisfy it by credible evidence, not by admission in the pleadings of the defendant, that he is entitled. The Court insists on evidence because it has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends exclusively on the strength of his own case and not on the weakness of the defence vide the case of Ifediora and ors. v. Okafor and Ors. (2019) 16 NWLR (pt. 1698) 322 at 341 following Mohammed v. Wammako (2018) 7 NWLR (pt. 1619) 573. The Court below was, accordingly, right to hold that it would not grant the declaratory relief on the pleadings. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
Before Our Lordships:
Mohammed Lawal Garba Justice of the Court of Appeal
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
ENGR. CHRISTOPHER OKONKWO APPELANT(S)
And
UNION HOMES SAVINGS AND LOANS PLC. RESPONDENT(S)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering The Leading Judgment): The appeal is against the judgment of the High Court of Justice of Lagos State (the Court below) by which it dismissed the appellant’s claim for a declaration that he is the rightful and lawful owner of the shops known as B7 51/52 located at Abuie-Ado Market near Trade Fair Complex, Lagos, for an order restoring the appellant to the said shops with the award of the sum of N7,460,000.00 being the value of the goods and money carted away by the respondent and for loss of earnings occasioned by the forceful takeover of the said shops by the respondent as well as the sum of N5 million for trespass on the shops in question; and for an order of perpetual injunction restraining the respondent from trespassing on the said shops.
In a nutshell, the appellant’s case was that he became the owner of the disputed shops by virtue of a transfer made to him in writing by his father-in-law on 19.07.2012, that as the subsequent owner of the shops he instructed the respondent in writing to commence monthly deduction of the sum of N15,000 towards liquidation of the mortgage outstanding on the shops which the respondent obliged as documented in the statement of account kept by the respondent.
It happened that along the line, the respondent engaged the services of an auctioneer to collect monies outstanding from the allottees of the shops; that in the process, the auctioneer “purported” to have swapped the appellant’s shops B7 51/52 for B10 51/52 which the appellant rejected to no avail; hence the action now on appeal.
On the other hand, the respondent’s case in compressed mode as stated in the statement of defence which was deemed abandoned as evidence was not led in support thereof was that as a mortgage bank it entered into an agreement with Agric Coker Building and Plumbing Materials Dealers Association (Dealers Association) to build shops for the Dealers Association for the latter to allot to her members at the cost of N 1,250, 000 per shop; thereafter, a Mr. Sir M.N. Ifezue, one of the members of the Dealers Association, subscribed and was allotted shops No. B 751/52, later through a letter addressed to the respondent, a Mr. Sir M.N Ifezue, “inappropriately” transferred his shops No. B751/52 to the appellant, his son-in-law, to take over and operate his account, then account No. 2470700290, but subsequently changed to account No. 2500701193 with the respondent; it was also agreed that the appellant would also be running the shops on the said arrangement; and that all the signatories and documents on the account were changed to the name of the appellant to reflect the new arrangement.
According to the respondent, a Mr. Sir M.N. Ifezue was yet to fully pay for the cost of the shops at the time he issued the letter of transfer of the allotment, therefore the appellant had to give a standing order for the deduction of the sum of N15,000.00 per month towards payment of same from his account, which standing order the appellant, however, later revoked after 13 months without full payment for the shops.
Meantime, a dispute arose between the respondent and the Dealers Association which was eventually settled amicably in Court with terms of settlement executed between the parties giving members of the Dealers Association between 01.01.2006 and 300 2006 to pay up to N500,000 to retain their shops and thereafter approach the respondent to execute a contract for the unpaid balance which the appellant failed to comply with and thereby lost his right to retain the shops upon which the shops were listed among those to be sold on auction by the respondent.
It was also the respondent’s case that the appellant completed payment of the N500,000 only 8 months after the deadline by which period of time the shops No. B751/5 were auctioned to one Mr. Okoli N. Ejike who completed payment of the N500,000 on 24.11.2006 and was allotted the said shops No. B751/52 on 11.12.2006, hence the shops were no longer available for allotment or allocation to the appellant who decided to file the action now on appeal.
The appellant filed a brief of argument on 26.07 18. The appellant argued in the brief that as his ownership of the two shops pleaded in paragraphs 3 — 4 of the statement of claim in page 103 of the record of appeal (the record) was admitted by the respondent in paragraphs 1 and 9 of the statement of defence and the respondent failed to call evidence in the case, the Court below should not have held that the appellant failed to prove ownership of the two shops as no issues were joined on it; and that the principle that declaratory reliefs are not granted on admission in pleadings would not apply to the case as wrongly held by the Court below as the case presented by the appellant that he is the owner of the shops was admitted on the pleading citing in support the cases of Ajibulu v. Ajayi (2013) LPELR – 21860 SC), Sanni v. Ademiluyi (2003) LPELR 3004 (SC) and Section 123 of the Evidence Act 2011 (Evidence Act).
The appellant further argued that by his oral evidence and Exhibits A, A3, A5, A6 and B, he established that he was the owner of shop B751/52 or BIO 51/52, consequently the Court below which had held rightly that the incomplete evidence of the witness fielded by the respondent who could not be cross-examined was no evidence to act upon should have held on the unchallenged evidence of the appellant that he had proved his case as the owner of the shops in question citing in support the cases of James v. INEC (2013) LPELR – 20322 (CA), Isiaku v. State (2011) ALL FWLR (pt. 583) 1966 at 1983, Iriri v. Erhurhobara (1991) LPELR – 1536 (SC), Nigerian Army v. Yakubu (2013) LPELR – 20085 (SC), Fasoro v. Beyioku (1988) 2 NWLR (pt. 76) 263.
The appellant argued that as it was unchallenged on the pleadings and the evidence adduced especially Exhibit A3 and B that he was in possession of the said shops at the material time the respondent’s agent had trespassed on the shops which caused him to be prosecuted at the Magistrate Court for breaking and stealing vide the statement of defence contained in pages 88 — 92 of the record, the Court below should not have held that trespass was not established on the premise that the appellant did not establish ownership of the two shops when possession was all that the appellant needed to establish trespass which he established on the unchallenged evidence citing in support the cases of Nigerian Army v. Yakubu (supra), Dantsoho v. Mohammed (2003) LPELR – 926 (SC); Stirling Civil Engineering Lt. v. Yahaya (2005) LPELR – 3118 (SC), Idesoh v. Ordia (1997) LPELR – 1421 (SC), Omoni v. Biriyah (1976) LPELR – 2651 (SC)
The appellant argued that as his right to own property is guaranteed by Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) assuming his stay on the property without authority or consent of the owner of the property was established, it should not have given rise to the deprivation of his proprietary right by the respondent on account on which the appellant advocated that the appeal should be allowed and the judgment of the Court below set aside and the reliefs sought by the appellant in his action at the Court below be granted.
The respondent filed its own brief on 26.02.19. It was deemed as properly filed on 26.02.19. The respondent contended in the brief that had the appellant considered the statement of defence together he would have discovered that the respondent did not admit that the appellant was the owner of the shops in dispute as ‘ownership’ is not synonymous with ‘control’ or to ‘manage’, therefore the Court below did not misconceive the issues in the case when it considered the evidence, particularly Exhibit 6, a document which speaks for itself, to hold that the appellant did not establish his case on the evidence which was properly evaluated by the Court below citing in support the cases of Ubreye v. Esievo (2014) ALL FWLR (pt. 759) 1103 at 1127, Bernard v. Mobil Producing Nig. Unltd. (2013) ALL FWLR (pt. 677) 665, Mandilas and Karaberi’s Ltd. v. Otikiti (1963) 1 ALL NLR 22, Anyanwu v. Uzowuaka (2009) ALL FWLR (pt. 499) 411 at 431, High Grade Maritime Services Ltd. v. First Bank Ltd. (1991) 1 NWLR (pt. 167) (no pagination), R.V. Iroegbu (1938) 4 WACA 32, Agbareh v. Mimra (2008) ALL FWLR (pt. 409) 559 or (2008) 2 NWLR (pt. 1071) 378, Woluchem v. Gudi (1981) NSCC (vol. 12) 214, Mogaji v. Odofin (1978) 4 SC 91 at 93 – 94, Nneji v. Chukwu (1996) 9 SCNJ 399 at 395, Izuoji v. Ajukwara (1998) 1 NWLR (pt. 533) 255, Uka v. Irolo (2002) 14 NWLR (pt. 786) 467, 195, Balogun v. Akanji (2005) 10 NWLR (pt. 933) 394.
The respondent also contended that the claim as postulated automatically put ownership of the shops in issue and that the Court below properly evaluated the evidence before it and cannot be said to have raised and decided suo motu what was in the evidence before it citing in support the cases of Olohunde v. Adeyoju (2000) 10 NWLR (pt. 676) 562, Akintola v. Lasupo (1991) 3 NWLR (pt. 180) 508, Okorie v. Udom (1960) SCNLR 326, The Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 NWLR (pt. 158) 514, lge v. Fagbohun (2001) 10 NWLR (pt. 721) 468, Olom v. The State (2013) ALL FWLR (pt. 684) 167, Dawa v. The State (1980) 1 PLR 305, Ekanem v. The King 13 WACA 108, APGA v. AL Makura and Ors. (2016) 1 AC (pt. 1) 123, Olorunkunle v. Adigun (2012) 6 NWLR (pt. 1297) 407, Omokuwajo v. F.R.N. (2013) 9 NWLR (pt. 1359) 300 at 332 and Section 122 (2) of the Evidence Act as well as the definition of the phrase ‘allotment’ in Black’s Law Dictionary, (8th Edition) 83 with reference to Exhibit 5 in page 14 of the record which referred to the appellant as an allottee.
The respondent contended that in view of the fact that the appellant did not lead credible evidence to warrant the award of damages as the evidence and pleadings did not particularise the damages allegedly suffered, coupled with the fact that the respondent’s agent was discharged and acquitted in the criminal case of breaking and stealing at the Magistrate Court in Charge No. MIK/D/55/2009; and ownership or possession of the shops in question was not established by the appellant, the Court below was right to hold that the appellant was not entitled to damages citing in support the cases of Oshinjinrin v. Elias (1970) 1 ALL NLR 158, SPDC (Nig.) Ltd. v. Tiebo VII (2005) 9 NWLR (pt. 931) 439. Neka B.B.B. Manufacturing Nig. Ltd. v. A.C.B. Ltd. (2004) 2 NWLR (pt. 858) 521 at 540, Zik Press Ltd. v. Ikoku 13 WACA 188, Akinola v. Anyiam (1961) 1 ANLR 508, WAEC v. Koroye (1977) 2 SC 45, Dumez (Nig.) Ltd. v. Ogboli (1972) 3 SC 196, Int’l Messengers Nig. Ltd. v. Nwachukwu (2004) 6 — 7 SC 55, Akoledowo v. Ojubutu (2012) 16 NWLR (pt. 1325) 1, Okoye v Kpajie (1973) 1 NMI-R 84 read with Black’s Law Dictionary 6th Edition (no pagination).
The respondent then proceeded to formulate its own issue for determination as follows —
“Whether having regard to the circumstances of this case, the Learned Trial Judge was right to dismiss the suit.”
The respondent argued on the issue (supra) that the Court below arrived at the right decision and which should be affirmed as its reasoning in arriving at the decision which it did not lead to a miscarriage of justice; or, the mistake, if any, was immaterial as it is not every mistake or error in the judgment that would lead to its reversal, especially in this case where the Court below rightly withheld its discretion and refused to grant the declaratory relief on the pleadings citing in support the cases of Ojengbede v. Esan (2001) 18 NWLR (pt. 746) 771, Integrated Timber and Plywood Products v. Union Bank of Nigeria Plc. (2006) 5 SC (pt. 11) 52, Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157, Bello v. Eweka (1981) 1 SC 101, Motunwase v. Sorungbe (1988) 4 NWLR (pt. 92) 90, Kodilinye v. Odu (1935) 2 WACA 336; upon which the respondent urged that the appeal should be dismissed and the judgment of the Court below upheld.
The reply brief of the appellant was filed on 21.02.19, but deemed as properly filed on 27.02.19, in which it was argued that the respondent had admitted paragraphs 1, 2, 3 and 4 of the statement of claim by its paragraphs 2, 3, 10, 13 and 17 of the statement of defence on ownership of the shops by the appellant, therefore the respondent should not be allowed to change course by presenting a different case on appeal as it has done by contesting the appellant’s ownership of the said shops citing in support the cases of Osuji v. Ekeocha (2009) LPELR – 2816 (SC), Hamanda v. Ojuekun (2018) LPELR – 44858 (CA) read with Section 169 of the Evidence Act
The reply brief pointed out that the case of the appellant that he was in lawful possession of the shops was unchallenged and remained uncontroverted which was enough to maintain the action in trespass and entitled the appellant to damages for the carting away of his goods by an agent of the respondent citing in support the cases of Aguocha v. Aguocha (2004) LPELR -7357 (CA), Okafor v. Okafor (2014) LPELR – 23561 and Procter and Gamble Nig. Ltd. v. Nwanna Trading Stores Ltd. (2011) LPELR – 4880 (CA).
The reply brief complained that the issue for determination (supra) raised by the respondent did not arise from any of the grounds of appeal and; that, since the respondent did not cross appeal, or file respondent’s notice, it cannot be raised as an issue outside the appellant’s grounds of appeal, therefore the said issue should be struck out citing in support the case of Aliyu v. Dikko (2012) ALL FWLR (pt. 632) 1714 at 1733, upon which the reply brief concluded by urging that the appeal should be allowed and the prayers contained in the appellant’s brief be granted.
The respondent did not file a cross appeal nor respondent’s notice to vary or affirm the decision of the Court below on other ground(s). The issue (supra) formulated by the respondent which is not derived from any of the grounds of the notice of appeal is on that premise incompetent and is hereby struck out together the arguments proffered thereon vide the case (supra) cited by the appellant read with the cases of Salisu v. Mobolaji (2016) 15 NWLR (pt. 1535) 242, Onwubuariri v. Igboasoiyi (2011) 3 NWLR (pt. 1234) 357.
The Court below evaluated the evidence before it and made some observations on what was contained in the record and cannot be said to have raised any Issue suo motu and decided on it without affording the parties the opportunity to be heard on the issue(s) vide Omokuwajo v. F.R.N. (supra), Usi Enterprises Ltd. v. Kogi State Government and Ors. (2005) 1 NWLR (pt. 908) 494 t 517 – 518, Gbagbariga v. Toruemi (2013) 31 W.R.N. 35, West African Breweries Ltd. v. Savannah Ventures Ltd and Ors. (2002) SCNJ 269, Arabambi v. Advance Beverages Ind. Ltd. (2005) 19 WLR (pt. 959) 1.
It was stated in the course of arguments for the appellant that the Court below was right when it held that it would not rely on the evidence of a witness who could not be cross-examined when the record shows the respondent’s efforts to have the witness attend the Court below to complete his evidence and be cross-examined upon was check-mated or blocked by the appellant vide page 137 of the record. Although the appeal does not turn on this point, it is rewarding to refer in passing to part of the decision of the Supreme Court in the case of Okwa v. lwerebor and Ors. (1969) N.S.C.C. 73 at 75 where the Apex Court held inter alia that —
“The law as to the position of evidence of a witness who died before cross-examination on his evidence in chief appears to be settled. It is clear that it is accepted that such evidence is local but the weight to be attached to such evidence should depend upon the circumstances of each case. In Rex v. Doolin: Jebb C.C. 123 where a prosecution witness was taken seriously ill whilst under cross-examination his evidence was taken into consideration and the conviction based on it was held good. And in Davies v. Otty (1865U 34 L.J. Ch. 252 where a witness gave her evidence on 28th August and she died two or three days afterwards so that it was not possible to cross examine her on her evidence, Lord Romilly Master of the Rolls said:-
“…but as there was no improperly and nothing wrong in examining her and as she was not kept out of the way to prevent cross-examination. I must receive her evidence and treat it exactly as I should the evidence of any other witness who from any other cause whatever either had not been or could not have been cross-examined.
All English authorities as well as Indian authorities on this point were referred to in the Indian case Kuer v. Rajab Ali, All LR (1936) Patna 34.
In our judgment therefore, the learned Judge was in error when he held that it was fatal for the plaintiffs case that the learned Magistrate relied on the evidence of the witness who died without being cross examined on his evidence in chief”.
(My emphasis).
A holistic appraisal of the pleadings must be taken to determine whether an admission is made on the pleadings vide the cases (supra) cited by the respondent on the issue. The respondent’s statement of defence comprising 17 paragraphs is contained in pages 88 — 92 of the record. The paragraphs of the statement of defence harmoniously read boiled down to the fact that the respondent did not admit that the appellant as the owner of the shops in controversy. The ownership of the said shops was therefore put in issue in the pleadings filed and exchanged by the parties at the Court below
The 2nd further amended statement of claim contained in pages 103 — 105 of the record pleaded a declaratory relief in respect of ownership of the shops in paragraph (a) thereof (unedited) as follows —
“WHEREFORE the claimant claims against the defendant jointly and severally as follows —
a. A DECLARATION that the claimant is the rightful owner of the shops known as B7 51/52 Abule-Ado Market neat Trade Fair Complex, Lagos State.”
That declaratory reliefs are not granted on pleadings but on evidence was restated by the Supreme Court in the recent case of Adama and Ors. v. Kogi State House of Assembly and ors. (2019) 16 NWLR (pt. 1699) 501 at 518 — 519 per the lead judgment prepared by His Lordship, Kekere-Ekun, J.S.C., thus –
“l have given careful consideration to the submissions of learned counsel on both sides. The reliefs sought by the appellants and other plaintiffs at the trial Court have been reproduced earlier in this Judgment. They sought declaratory reliefs. It was held in International Textile Industries Nig. Ltd. v. Dr. A.D. Aderemi & Ors (1999) 8 NWLR (Pt. 614) 268; (1999) LPELR – 1527 (SC) @ 34-35 F- B, per UWaifo JSC, that:
“A declaratory relief is merely a confirmation of what is already the state of affairs or what is likely to be, in connection with the subject matter of the declaration. In other words, a declaration claimed must relate to some legal right to a legal interest of which the law will take cognizance.
…A plaintiff who seeks a declaratory relief must show that he has an interest or right which forms a foundation for that declaration See: Olawoyin v. Attorney General Northern Nigeria (1961) 2 SCC 165 @ 169 Reported as Olawoyin v. A.G., Northern Region (1961) 2 SCNLR 5.”
See also: Western Steel Works Lld. & Anor v. Iron & Steel Workers Union of Nig. & Anor. (1987) 1 WLR (Pt. 49) 284; Chukwumah v. Shell Petroleum (Nig.) Ltd. (1993) 4 WLR (Pt. 289) 572.
The success or failure of a declaratory relief is dependent on the judicious and judicial exercise of discretion by the Court. See: Ladoja v. INEC (2007) 12 WLR (Pt. 1041) 115; Odofin v. Ayoola (1984) 11 SC 72; Ogolo v. Ogolo (2003) 18 NWLR (Pt. 852) 494; A declaratory relief will only be granted on the strength of the claimant’s case. It will not be granted in default of defence or even on admission. See: Kwajaffa & Ors. V.B.ON. Ltd. (2004) 13 WLR (pt. 889) 149; Maja v. Samouris (2002) 7 WLR CPt. 765) 78; (2002) LPELR -1824 (SC) 19 – 20 F – B: Alao v Akano & Ors. (2005) 11 WLR (Pt. 935) 160. The Court must be satisfied when all the facts are considered, that the claimant is fully entitled to the exercise of the Court’s discretion in his favour.
His Lordship, Augie, J.S.C., added in his judgment contained in pages 530 — 531 of the law report thus —
“But in arguing as they did, the appellants lost sight of the fact that they claimed two declaratory reliefs, and it is basic law that a plaintiff has the onus of proof to show that in a declaratory action he is entitled as per his claim. To this end he has to succeed on the strength of his own case, and not on the weakness of the defendant’s case, and where he defaults in discharging this onus, his case will be dismissed.
The burden of proof in establishing a declaratory relief is heavy – See A.G., Rivers State v. A.G., Bayelsa State (2012) LPELR -9336 (SC), (2013) 3 NWLR (Pt. 1340) 123 and Dumez (Nig) Ltd. v. Nwakhoba (2008) 18 WLR (Pt. 1119) 361; wherein this Court per Mohammed, JSC (as he then was) observed –
The law on the requirement of the plaintiff to plead and prove his clams for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory Reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his evidence.”
See also Fabunmi v. Agbe (1985) 1 NWLR (pt.2) 299
Consequently, I agree with the respondent that even where admissions are made in the pleadings, declaratory reliefs cannot be granted on the admission on the ground that a Court called upon to make a declaration of a right demands that it be incumbent on the party claiming to be entitled to the declaration to satisfy it by credible evidence, not by admission in the pleadings of the defendant, that he is entitled. The Court insists on evidence because it has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends exclusively on the strength of his own case and not on the weakness of the defence vide the case of Ifediora and ors. v. Okafor and Ors. (2019) 16 NWLR (pt. 1698) 322 at 341 following Mohammed v. Wammako (2018) 7 NWLR (pt. 1619) 573. The Court below was, accordingly, right to hold that it would not grant the declaratory relief on the pleadings.
The respondent did not give evidence in the case. Its pleadings are therefore deemed abandoned vide Military Governor of Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 219. The appellant upon whom the burden of proof rested to establish his case gave evidence and tendered documentary evidence towards proof of his claim. The appellant had deposed to a written statement on oath on 19.10.2007 which he had adopted as his evidence-in-chief in his testimony in the witness-box as CW 1 on 15029012 vide pages 121 – 122 of the record where he stated on oath that he took over the shops after his father-in-law transferred the mortgage to him over shops known as B7 51/52 in 2002.
The appellant admitted under cross-examination in page 125 of the record that the shops in question are mortgage shops; that he stopped making payments of N15,000 per month on the mortgage from April, 2003 — December, 2006; that prior to that he had given a standing order that deductions of N15,000 be made every month from his account with the respondent but that in April, 2003 he gave a counter order that the deduction be stopped and the deduction was stopped according to his letter to that effect.
According to the appellant he paid the mortgage as requested by the respondent and even paid the sum of N200,000 demanded by the respondent through its agent as auctioneer and that when a man started coming to the shops to lay claim thereto he told him that he had paid the mortgage for the shops, but that the man kept coming and later threatened to evict him from the shop so he complained in writing through his solicitors to the respondent who promised to investigate the matter; that the respondent did not inform him of the outcome of its investigation and refused to reply his solicitor’s letter of reminder over the issue; that the respondent did not inform him that it had sold the shops to a third party; and that the respondent had no right to sell the shops to a third party.
The additional written statement on oath of the appellant dated 13.02.12, as the CW1, which is contained in page 106 of the record stated that —
“ADDITIONAL WRITTEN STATEMENT ON OATH
l, Engineer Christopher Okonkwo, Male, Christian, Citizen of Nigeria and a civil servant now residing at 12/14 Ayo Ajilore Street, Liberty Estate, Idimu, Lagos State do hereby make oath follows:
“1. That I am the claimant/appellant herein.
2. That in addition to the statement I made in this matter on the 19th day of October, 2007 1 state as follows:
3. That on the 28th day of November 2007, the defendant broke into my shops subject matter of this suit and carted away my goods valued a N6,350,000 (Six Million, Three Hundred and Fifty Thousand Naira) cash kept in the same shops subject matter of this suit.
4. That on the same day and at the same time the defendant also removed my N150,000 (One Hundred and Fifty Thousand Naira) cash kept in the same shops subject matter of this suit.
5. That sequel to the breaking into my shops by the defendant I made a report to the police and after a thorough investigation and admission by one Adeola Adesina (an agent of the defendant), the police instituted a criminal proceeding against Mr. Adeola Adesina.
6. That since 28th November, 2007 when the defendant trespassed on to the shops subject matter of this suit, the defendant has remained therein and has denied me access to the shops.
7. That the annual rental value of each of the two shops is N120, 000 (One Hundred and Twenty Thousand Naira) and the defendant has ever since deprived me the use of the shops and I have been occasioned loss of earning from 2007 till date
8. And that I make this deposition in good faith and in accordance with the Oaths Law of Lagos State 2003.”
The appellant by his own showing under cross-examination conceded that he had stopped payment of the mortgage at his own instance before the dispute arose. Nowhere did the appellant establish that he had completed payment of the mortgage and the ownership of the shops made in his favour by the respondent. Exhibit 5 contained in page 14 of the record referred to the appellant as an allottee of the shops. In ordinary English Parlance allotment means a small area of land in a town which a person can rent in order to do something on it vide Oxford Advanced Learner’s Dictionary (6th Edition) 28. Allotment carries with it limited or occupational use without conferring ownership or transferring ownership vide Olorunfemi and Ors. v. Asho and Ors. (2000) FWLR (pt. 20) 654 at 673.
The Supreme Court took the pains to explain the import of ‘allotment’ in the case of Bamgbose and Ors. v. Oshoko and Ors. (1988) 1 N.S.C.C. (pt. 1) 899 at 904 — 905 placing reliance on the earlier cases of Lengbe v. Imale (1959) WRNLR 235, Shelle v. Asajon (1957) 2 F.S.C. 65 at 67 and Adegun v. Fagbola (1932) 11 NLR 110 that an allotment does not in any way vest ownership in the allottee in that an allotment is no more than permission or licence to use the thing allotted giving the allottee only the right to occupy and use what has been allotted to him, therefore no matter how long the allottee may have stayed, for instance, on the land allotted to him or what improvement he has carried out on it, the occupational right granted him can never ripen into full ownership. Ownership of the shops was therefore not proved by the appellant.
A declaratory relief can be refused if the evidence has been discredited as in this case where the pattern of cross-examination demonstrated that the appellant had not paid up the total sum to be entitled to ownership of the two shops and the shops were merely allotted to him turning him into licensee vide the cases of Ogundairo and Ors. v Okanlawon (1963) NSCC at 287 B, Awomuti v. Salami and Ors. (1978) 11 NSCC 180 at 186 where the Supreme Court held inter alia that the making of a declaratory order is within the discretion of the trial Court and that the discretion should not be too readily exercised, especially where the evidence by the defendant including evidence extracted in cross-examination, as in this case, discredited the claimant’s case with respect to the declaratory relief which, I think, was rightly withheld by the Court below which refused to grant the declaratory relief in question. The Court below was, therefore, right to refuse to grant the declaratory relief (supra) that the appellant was the owner of the two shops in question.
The other heads of claim are for an order re-instating the appellant to the shops B7 51/52 Abule Ado Market near Trade Fair Complex, Lagos; the sum of N7,460,000 being value for the goods and money carted away by the respondent and loss of earning occasioned by the forceful take-over of the shops; and an order of injunction restraining the respondent from trespassing on the said shop vide page 105 of the record.
Having regard to the fact that the appellant did not prove ownership of the shops the relief for re-instating him to the said shops cannot be granted and the refusal of the Court below to grant it was aright, in my opinion, property rejected which is hereby affirmed.
The monetary claim of N7,460,000 jumbled together the claim for the goods and the money carted away and loss of earning. The quantity of the goods and the value attached to the said goods were not itemized and/or particularized in the statement of claim and strictly proved by the evidence given by the appellant in the case. Being a specie of special damages, the failure to allege it with particularization in the statement of claim and to strictly/specifically prove same by evidence doomed the leg of claim which was rightly dismissed by the Court below Vide Imana v. Robinson (1979) 3 — 4 S.C. 1, Usman v. Abubakar (2001) 12 NWLR (pt.728) 685 read with the cases of Neka v. ACB (2004) 3 MJSC 118, Gonzee v. NERDC (2005) 12 MJSC 179 and Reynolds v. Rockonoh (2005) 10 MJSC 159 relied upon by the Court below in part of its judgment contained in page 181 of the record.
The leg of claim of loss of profit was prospective in nature and thus at large and/or speculative with no estimate or statistical data attached to it and could not have been granted in the amorphous condition it was barely laid in the pleadings. The claim for loss of anticipated profit is by its nature prospective in that the loss has not actually occurred. The specie of claim is based on mere estimates which suggests something that is not final or something to be ascertained with exactitude at a later date but does not mean the expenses had been incurred as it is a preliminary statement of the probable cost of proposed undertaking and is as good as an exercise in mere conjecture or guess-work which is the opposite of precise calculation of damages vide Ajigbotosho v. Reynolds Construction Co. Ltd. (2019) 3 NWLR (pt.1659) 287, U.B.N. Plc. v. Nwankwo (2019) 3 NWLR (pt. 1660) 474 at 483.
The claimant must also establish by evidence loss of business or customers as a result of the breach before the claim for anticipated profits will lie vide Uwa Printers (Nig.) Ltd. v. Investment Trust Company Ltd. (1988) 5 NWLR (pt.92) 110 at 127 (para. C), and 132 (para G and H).
The appellant did not plead the amount or sum of money that was carted away but he deposed in paragraph 4 of the additional statement that the sum of N150,000 was removed from his shop by the respondent without any piece of pleading supporting the evidence therefore the piece of evidence in question goes to no issue vide National Investment and Properties Co. Ltd. v. The Thompson Organisation Ltd. and Ors. (1969) NSCC (vol.6) 161 at 164 — 165 and is hereby disregarded. Moreover, the appellant prevaricated in cross-examination in page 126 of the record that it was the sum of N 180,000 that he left in his shop not N150,000 stated in his written statement on oath without explanation for the prevarication thus tendering that aspect of the claim illusory. The Court below was thus right to hold that this limb of the claim was not proved and dismissed it aright, in my view.
Since the appellant unilaterally ceased payment of the mortgage money which was yet to run its full course and lost occupation of the shops to a third party and did not establish ownership of the shops, it will be inappropriate to grant the relief of perpetual injunction.
Whilst it is true that an averment of ownership in a claim of trespass postulates an averment of possession and on that ground the claimant need not prove ownership but possession to maintain an action for trespass vide England v. Palmer (1955) 15 WACA 659 at 660 followed by the Supreme Court in Badejo and Ors. v. Sawe (1984) NSCC 481, it would follow that in a claim for trespass, ownership may not be put in issue unless there are rival claimants ownership; accordingly, a claimant is not expected to take upon himself a larger amount of proof or a higher onus of proof than the law requires for the purpose of an action in trespass which is based on possession and that was how the issue stood in the Court below when pleadings were filed and exchanged and the matter went to trial vide the apt old English case of Heath v. Milward 132 Engl. R. 30 relied upon by the Court in England v. Palmer (supra).
Further, it was held by the Supreme Court in the case of Ozuzu v. Emewu (2019) 13 NWLR (pt. 1688) 143 at 157 – 158 following Owhonda v. Ekpechi (2003) 17 NWLR (pt. 849) 326 that a person in possession without a valid title or with defective title can sue in trespass; that a declaration of title to land and trespass to land are two distinct and separate claims; that in a claim for trespass, one need not necessarily be the owner of the land; that, what is required is that the claimant proves his exclusive possession and not title; and that mere actual or exclusive possession is enough to maintain an action in trespass.
An action in trespass is tied to possession and a claim for trespass does not swim or sink with a claim for declaration of ownership or title to real property vide Ayinde v. Salawu (1989) 3 NWLR (pt. 109) 297 following Oluwi v. Eniola (1967) NMLR page 339 to the effect that the fact that a plaintiff fails in his claim of ownership of land does not mean that his claim for damages for trespass must necessarily fail.
For emphasis, it was stated in Ayinde v. Salawu (supra) at 316 — 317 that –
“And in Awoonor Renner v. Anan 2 W.A.C.A. 28 the Old West African Court of Appeal said as regards a claim for damages for trespass to land –
“A trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing a trespass is to say that the defendant broke and entered the plaintiffs’ close and did damage, and it follows that in order to maintain an action for trespass the plaintiff must have a present possessory title – an owner of land who is legally entitled to possession not being competent to maintain an action for trespass before entry (Wallis v. Hands (1 93) 2 Ch. 75). Where indeed both parties are in a field claiming possession the possession being disputed, trespass will be at the suit of that one who can show that the title is in him”.
It is also the law that where a plaintiff found his claim for damages for trespass to land on present possessory title alone his possession of the land in dispute is good against the whole world except the true owners of the land or anyone claiming through them. (See (1) Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 67 at 75, 76; (2) Shell B.P. Ltd. v. Abedi (1974) 1 All N.L.R. F 1).
As I have said the 1st defendant has no title at all to the land in dispute. So in my judgment the Court of Appeal correctly directed itself when it held as per the lead judgment of Onu, J.C.A.
“Now, in Christopher Okolo v. Eunice Uzoka (1979) S.C. 77 at 87 the Supreme Court stated:
‘It is the law and this Court has so held times without number that trespass to the land is actionable at the suit of the person in possession of the land. The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title”.
In this regard too I refer to the following passage in the opinion of the Privy Council in the case of Wuta-Ofei v. Danquah (1961) 3 All E.R. 596 at 600 per Lord Guest-
“Their Lordships do not consider that, in order to establish possession, it is necessary for a claimant to take some active step in relation to the land such as enclosing the land or cultivating it.
The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unendorsed land which is not being cultivated, there is little which can be done on the land to indicate possession. Moreover, the possession which the respondent seeks to maintain is against the appellant who never had any title to the land. In these circumstances, the slightest amount of possession would be sufficient. In Bristow v. Cormican (3), Lord HA THERLEY said:
“There can be no doubt whatever that mere possession is sufficient, against a person invading that possession without himself having any title whatever – as a mere stranger; that is to say, it is sufficient as against a wrongdoer. The slightest amount of possession would be sufficient to entitle the person who is so in possession, or claims under those who have been or are in such possession, to recover as against a mere trespasser.”
See in addition England v. Palmer (supra) at 660
It is not necessary for a claimant to take some active step in relation to the land to establish possession and the type of conduct which indicates possession must vary with the type of land vide Alatishe v. Sanyaolu (1964) N.S.C.C. 294 at 296 following the Privy Council case of Wuta-Ofei v. Danguah (1961) 1 W.L.R. 1238. And in this case, the appellant gave unchallenged evidence that he kept some goods of unspecified value in the shops which by conduct established that he was in possession of the shops at the material time.
The question is whether the true owner, as in this case the respondent, can forcibly eject appellant who was lawfully put in the shops, though in default of his financial obligation to pay the mortgage as and when due. Now the unchallenged evidence of the appellant showed that it was while he was in occupation of two shops that the respondent caused him to be forcibly ejected therefrom.
There is evidence that the appellant complained to the respondent that someone was disturbing his quiet occupation of the two shops vide the letter from the solicitors of the appellant contained in page 18 of the record. The respondent’s reply was contained in a letter dated 10.08.2007 vide page 19 of the record where the respondent assured the appellant that the matter would be fully investigated and the result made known to the appellant and that the appellant should “tarry a little” with the action he intended to file pending the conclusion of the respondent’s investigation which the respondent assured the appellant would be prompt.
The respondent did not make anything known to the appellant who wrote another letter dated 18.09.2007 to the respondent reminding it of its promise to investigate the matter and revert back to the appellant vide page 19 of the record. At no time did the respondent raise any defence that the appellant had stayed over in the shops and/or that he was by an agreement expected to vacate the shops within any given period of time.
Had the respondent given evidence in the case that the appellant automatically lost his right to hold or occupy the shops after he ceased payments and/or there was a clause in an agreement for automatic loss of occupation of the shops the respondent would have been entitled to evict the appellant from the shops summarily. That was what happened in the case of Odufuwa and Anor. v. Johnson (1971) 1 A.N.L.R. 144 where a by-law had stipulated that an occupier of a market stall would forfeit it if in one month arrears of rent and the respondent who had been in occupation of the stall for 25 years fell in rear of advance payment of fee or tolls or stallage for one month and thus fell foul of the by-law and was evicted by the 2nd appellant, the Lagos City Council, the Supreme Court held reversing the trial High Court that since the respondent had not paid either by way of fees or tolls or stallages for the month of January, 1967, in advance, she had contravened by law 4 and therefore she was liable to be ejected as a trespasser.
The Supreme Court further held that the trial Judge was in error in holding that she was “wrongfully ejected” because by-law 4 was quite specific that failure to pay a stallage in advance makes the holder of the stall liable to be ejected as a trespasser; that whatever moral claims the respondent may have had to be allowed to continue to occupy the stall in question after having done so for 25 years could not affect the legal rights; that the finding that the 2nd appellant acted mala fide in declaring the stall vacant because the respondent was in arrears and was therefore wrongful was based upon a misconception as no question of mala fides could arise as to whether by-law 4 was or was not in fact complied with and therefore the respondent was rightly ejected from the stall. Therein lies the distinguishing elements from Odufuwa and Anor. v. Johnson (supra) and this case.
Going by the Supreme Court decision in Bamgbose v. Oshoko (supra) that an allottee such as the appellant who was an allottee of the shops was a licensee, should not have been evicted brevi manu by the respondent. For the Supreme Court held in the case of Oyekoya v. G. B. Ollivant (Nig.) Ltd. (1969) N.S.C.C. 69 at 72 – 73 thus –
Apart from agreement a licensee is entitled to a reasonable time before the licence is determined and if it is determined earlier the licence is revoked but if the licensor ejects the licensee prior to the expiration of a reasonable time then he must’ pay damages. See Minister of Health v. Bellotti (1944) 1 All E.R.238 where Goddard LJ. (as he then was) said at page 245-
“On the other point, it seems to me the position is this: If a licensor determines the licence, he is bound to give a reasonable time within which the determination is to take effect, so that the licensee can collect himself, his property or whatever it may be, he premises in respect of which the licence has been withdrawn. He is bound to give a reasonable time, and if he does not and takes proceedings before the reasonable time has elapsed, he loses his action. But although he may not give a easonable time, it seems to me that that does not put an end to the withdrawal of the licence. The licence has been withdrawn and the withdrawal becomes effective when a reasonable time has expired. The fact that he may have limited a time which, as in this case, was unreasonable, and in this case wholly unreasonable does not justify the licencee in sitting down and doing nothing. He should have begun to make arrangements, or attempted to make arrangements to remove himself, and by the time the proceedings had staffed on September 22, he had had ample time.
Had there been no agreement in this case, we cannot see on any score that 45 days would have been an unreasonable period of notice, but by the agreement he was entitled to one month’s notice….”
Also, in the case of Yaskey v. The Freetown City Council (1933) 1 WACA 297, the respondent took the law into his hands by summarily determining a licence granted the appellant to erect a stall and operate a tea shop upon which it seized the goods of the appellant and drove him out of the place he was operating his tea business on a small scale. The Court held, reversing the trial Court, that the respondent acted wrongfully by arbitrarily determining the licence brevi manu without giving the appellant reasonable notice of at least one month to vacate or quit the site. The Court relied on the cases of The Canadian Pacific Railway v. R (1931) A. C. 414, Cornish v. Stubbs (1870) L. R. 5 C. P. 334, Mellor v. Waikins L. R. 9 Q. B. 400, Wilson v. Taverner (1901) 1 Ch. 578, Cobbett v. Clutton 172 E. R. 213 to further hold that although the licence to use the site in the Victoria Park for a tea shop was revocable, it had to be revoked lawfully.
Let me elaborate on the Issue with some few examples. I will start with the worse case scenario of a squatter. A squatter is one who, even if his identity is unknown, without any semblance of right, enters and occupies a vacant house or land intending to be there as long as possible. Allowing the owner to take the remedy into his own hands and turn out the squatter might lead to disturbance. In any civilized society, judicial remedy should be the way out. The owner would be entitled to go to Court and obtain an order to recover the shop, house or land from the squatter, so explained the Supreme Court in the case of Persons Name Unknown v. Sahris Int’l Ltd. (2019) 13 NWLR (pt.1689) 203 relying on the English case of Mcphail v. Persons unknown (1973) 3 All ER 393 at 395 — 399 before striking out the appeal for having been filed by a non-juristic person.
In the case of a landlord, the remedy is to sue for trespass against the trespasser. In other words, the legal step a landlord should take against a trespasser is to sue for trespass and claim for mesne profit not to take the law into his lands by forcible ejectment of the trespasser vide the case of Duncan Maritime Ventures Nigeria Limited v. Nigeria Ports Authority (2019) 1 NWLR (pt. 1652) 163.
The famous case of Military Governor, Lagos State v. Ojukwu (1986) 1 NWLR (pt. 18) 621 where Lagos State Government tried to use self-help to eject the respondent from property he was occupying at the material time is a classic example of rule against self-help where the attempt made by the appellant to eject the respondent from the land without due process or resort to the Court was condemned by the Supreme Court. Similarly, the Supreme Court re-emphasised in the case of A.P.C. and Ors. v. Karfi and Ors. (2018) 6 NWLR (pt. 1616) 479 relying on the case of D.P.C.C. Ltd v. B.P.C. Ltd. (2008) 4 NWLR (pt. 1077) 376 that self-help should be deprecated.
The common denominator or silver thread running and/or woven through these cases is the imperative to observe and adhere to the rule of law by parties engaged in disputes that are justiciable by submitting such disputes to adjudication in Court which has the judicial powers to do so under Section 6(6) of the 1999 Constitution: The law abhors self-help. I think the respondent should have resorted to judicial remedy to get the appellant out of the shops
Forcible re-possession of property is an act of trespass. The Court below was, accordingly, wrong to hold that the appellant did not establish the claim for trespass which is actionable per se without proof of damage vide Stirling Civil Engineering Ltd. v. Yahaya (supra).
Consequently, I find the appeal meritorious only on the issue of trespass and hereby allow it and reverse the decision of the Court below on trespass and find the respondent liable for trespass and considering the use of self-help and the circumstances of the case as well as the consistent dwindling in the value of money. I assess and award general damages of N1 Million (N1,000,000) to the appellant against the respondent.
At the risk of repetition, I conclude that the appeal has merit only on the issue of trespass and is hereby allowed in part on the issue of trespass; there being no merit on the other issues, I would dismiss the appeal on the said issues; and having regard to the fact that the appeal partially succeeds,
I order parties to bear their costs vide Gariba v. Ibrahimah 13 WACA 171.
MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the leading judgment written by my learned brother Joseph Shagbaor Ikyegh, JCA, in this appeal, I agree that it is meritorious on the issue of the claim for trespass only. Since by the pleadings and evidence, the Appellant had established legitimate possession of the shops at the time of the forceful ejection by the Respondent, the law entitles him to damages without the need to prove any. Ajayi vs. Jolaosho (2004) 2 NWLR (Pt. 856) 89 Balogun vs. Akanji (2005) 10 NWLR (Pt. 933) 394 Okhuarobo vs. Aigbe (2002) 9 NWLR (Pt. 771) 29, UBA Plc vs. Samba Petroleum company Limited (2002) 16 NWLR (Pt. 793) 361.
I allow and dismiss the appeal (in part) in terms of the leading judgement.
BALKISU BELLO ALIYU, J.C.A.: I have had the privilege of reading in draft the judgement just delivered by my learned brother Joseph Shagbaor Ikyegh, JCA. I am in agreement with his lordship that the appeal has merit in respect of the claim of trespass only.
I also allow the appeal in part for the reasons stated in the leading judgement.
Appearances:
Mr. C. Ekemezie For Appellant(s)
Mbiamnozie Esqr. For Respondent(s)
