OTUNBA SAMUEL TAIWO ODUMADE V. MR. OSULADE OGUNNAIKE & ANOR.
(2010)LCN/3635(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of March, 2010
CA/I/196/07
RATIO
EVIDENCE: EFFECT OF A DOCUMENT THAT IS CHALLENGED AND IMPUGNED AS UNAUTHENTIC
Where a document is challenged and impugned as unauthentic as in this instance, the maker of the document should be called to support the document otherwise no weight or probative value should be attached to it. In LAMBERT VS. NIGERIAN NAVY (2007) 14 W.R.N page 136 at 189-190 lines 35-15 it was held:
It is certainly the law that the proper person through whom a document is tendered is the maker of such document. PER MODUPE FASANMI J.C.A.
EVIDENCE: HOW IS A CIVIL CASE DECIDED
A civil case is decided on the preponderance of evidence. The only way to arrive at a final decision is by determining on which side the weight of evidence tilts. PER MODUPE FASANMI J.C.A.
JUDGMENT: WHERE IS A DECISION HELD TO BE PERVERSE
A decision will be held to be perverse where:
(a) It is speculative and not based on any evidence
(b) The Court took into account matters which it ought not to have taken into
account or
(c) The Court shut its eyes to the obvious. See ATOLAGBE VS. SHORUN (1985) 1 N.W.LR Part 2 at 360, IHEWUEZI VS. EKENYA (1989) 1 N.W.LR Part 96 at 239 and OSUJI VS. EKEOCHA (2002) 52 W.R.N Page 1 at page 33 lines 35-45. PER MODUPE FASANMI J.C.A.
LAND LAW: EFFECT OF ACTUAL POSSESSION
Actual possession is good against all except those who can show a better right to possession in themselves. PER MODUPE FASANMI J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
OTUNBA SAMUEL TAIWO ODUMADE Appellant(s)
AND
(1) MR. OSULADE OGUNNAIKE
(2) MR. SALIU RAJI Respondent(s)
MODUPE FASANMI J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice Ogun State sitting in Shagamu which was delivered on the 12th of December, 2006.
The brief facts culminating in this appeal are as follows: By paragraph 17 of the Appellant’s Statement of Claim dated the 22nd of July 2005, the Plaintiff now Appellant before this Court claimed against the Respondents jointly and severally as follows:-.
(1) The sum of five hundred thousand naira (N500,000.00 as) special and general damages for the acts of trespass being committed on the landed properties of the Plaintiff situated, laying and being at Akuro Umeji Family Land, Ogere-Remo measuring eight plots of sixty feet by one hundred and twenty feet each (60 feet x 120 feet each) and bounded on the East by Alimi Isikalu Farmland; on the South by the road leading to the excavated borrow pit; on the West by excavated borrow pit and on the North by Alii Farmland.
(2) An order of perceptual injunction restraining the Defendants, their servants, agents, workers and or their privies from further acts of trespass on the land in dispute.
The Appellant claimed that the land in dispute situate along Lagos-Ibadan Expressway at the Ogere Toll gate, Ogun State which forms part of Akuro Umeji farmland owned by Umeji family was purchased by him from the 1st Respondent (Osunlaja Ogunnaike) and the purchase agreement exhibit B was witnessed by the 2nd Respondent. Appellant contended that the purchase of the land in dispute was in 1977 and he was put in possession by the 1st Respondent. The purchase agreement was tendered as exhibit B. He contended that sometimes in year 2004, the respondents trespassed and damaged his crops. Hence he instituted this suit. Appellant led evidence by calling a witness and himself as P.W2 testified at the lower court.
The Respondents in their defence contended that there was no outright sale to the Appellant but that the Appellant was a tenant on the land in dispute which the 1st Respondent asserted that he borrowed the Appellant just for the purpose of planting of arable crops on the land and that was before exhibit B was executed. 1st Respondent admitted executing exhibit B and was witnessed by the 2nd Respondent. Both Respondents claimed that Exhibit B was never interpreted to them before they thumbprinted same. Before the execution of exhibit B, Appellant had borrowed from the 1st Respondent the land in dispute for planting of arable crops thus put into possession only for that purpose. It is worthy to note that Exhibit B was prepared by a letter-writer on the instruction of the Appellant.
1st Respondent admitted collecting the sum of N3,200 (three thousand, two hundred naira) as rent from the Appellant and that the Appellant brought exhibit B to him for execution.
The Respondents consequently disturbed the possession of the Appellant when he decided to use the land in dispute other on for the purpose for which he borrowed the land which was for farming of arable crops. The Respondent denied that they destroyed anything on the land in dispute.
Appellant led evidence by calling a witness and himself as P.W.2 testified while the Respondents called three witnesses in defence of the Respondent’s case. The learned trial Judge after reviewing the case of both parties and addresses of Counsel dismissed the claims of the Appellant in its entirety. Dissatisfied with the decision, Appellant filed notice of appeal at pages 75-78 of the record of proceedings containing six grounds of appeal.
As allowed by the rules of Court, parties filed their respective briefs. Appellant distilled (6) six issues from the six grounds of appeal.
The issues are stated thus:-
(1) Whether in relying on the strength of his own case, the Plaintiff can rely on admissions in the Defendants case in further support of his own (Plaintiff’s) case
(la) If issue (1) is resolved in the positive, whether trial Court adheres to that principle
(2) Whether the documentary evidence to wit: Exhibit B tendered by the Plaintiff/Appellant formed part of the evidence of Plaintiff at the trial.
(2a) If issue 2 above is resolved in the positive, whether the trial Court can rightly hold that the Plaintiff did not lead evidence of that which is contained in the admitted exhibit.
(3) Whether from the totality of evidence adduced there was a subsisting contract between the Plaintiff/Appellant and 1st Defendant/Respondent as at the time the cause of action arose in this case.
(3a) If issue 3 is resolved in the positive whether the Court can re-write such an agreement for the parties or set aside same without any prayer to that effect from either side.
(4) Whether Defendants pleaded and led evidence of title to the land in dispute being vested in them
(4a) If issue 4 is resolved in the negative whether the trial Court was not wrong in comparing the title which the Defendants did not claim with the title claimed by Plaintiff/Appellant.
(5) Whether there were material mis-directions on the trial Court that led to miscarriage of justice.
(6) Whether there was any proper and or fair evaluation and appraisal of the evidence led at the trial.
In reply, the Respondents through their Counsel filed a sole issue for determination. The sole issue distilled for determination by the Respondent is:
Whether the Appellant who relied on purchase of the land in dispute by tendering exhibit B has discharged the burden placed on him that exhibit B was properly executed and thus entitled to the reliefs claimed at the lower court.
Let me state here straight away that the law has condemned the practice by some Counsel in formulating more issues than the grounds of appeal. The practice has always been to have less number of issues than the grounds of appeal as the purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity: I commend the case of ANIE & ORS VS. CHIEF UZORKA & ORS (1993) 8 N.W.L.R Part 309 at page 1where the Supreme Court observed:
…. it is wrong for Counsel to formulate issues for determination in excess of the grounds of appeal filed. Indeed it is now a very well established principle of law that except in special cases where the grounds of appeal so dictate it is undesirable to formulate an issue in respect of each ground of appeal.
Learned Counsel should please take cue from this voice of wisdom.
As it is, Appellant formulated 10 issues out of six grounds but however hiding under the guise of six issues. The issues are tautology and or proliferation of issues which this Court as a matter of practice frowns at. See the cases of AJUEBOR & ANOR VS. THE ATTORNEY GENERAL, EDO STATE OF NIGERIA (2001) FWLR part 52 page 2138-2144 ratio 12 and YADIS (NIG) LTD VS. G.M.LC. LTD (2007) 14 N.W.LR Part 1055 page 584 at 612 paras D-F.
The issues formulated by the Appellant appear prolix and verbose but they can be narrowed down to the sole issue formulated by the Respondents and issue 6 of the Appellant. The appeal will be determined on these two main issues.
They are:
(1) Whether the Appellant who relied on purchase of the land in dispute by tendering exhibit B has discharged the burden placed on him that exhibit B was properly executed and thus entitled to the reliefs claimed at the lower Court.
(2) Whether there was any proper and or fair evaluation and appraisal of the evidence led at the trial.
On Issue 1
Learned Counsel for the Appellant submitted that evidence can be oral, documentary or both and in practice it appears that documentary evidence carry more weight. Exhibit B which was tendered by the Appellant and admitted by the lower Court formed part of the evidence of the Appellant at the trial. Learned Counsel referred to Section 93 of the Evidence Act which provides thus:
The contents of documents may be proved either by primary or secondary evidence.
In the instant appeal, Appellant proved Exhibit B by primary evidence in compliance with Section 96 of the Evidence Act. He argued further that there was a contract/agreement between the Appellant and the 1st Respondent under the native law and custom as the parties agreed on the identity of the land, price was placed on the land by the 1st Respondent which was three thousand, two hundred naira i.e (N400.00) per plot of eight plots. Appellant paid the money to the 1st Respondent who then put the Appellant into the possession of the land in dispute. He submitted that 1st Respondent received money on a family landed property that had been granted to him and in respect of which he had been in exclusive possession long before 1977. Learned Counsel for the Appellant contended that parole evidence cannot be admitted to add to, vary or contradict written instrument such as Exhibit herein. He cited the cases OLANLEGE VS. AFRO CONTINENTAL (1996) 7 S.C.N.J page 145 at 155 lines 26-32. OLATUNDEVS. O.A.U (1998) 4 S.C.N.J page 59 at 74 lines 31-44 and 75 lines 1-7 and BUNGE VS. RIVER STATE (2006) 6 S.C.N.J page 48 at 82 lines 11-14. Learned Counsel for the Appellant urged the Court to hold that Appellant has discharged the burden placed on him and that exhibit B was properly executed. He urged the Court to resolve this issue in his favour.
Learned Counsel for the Respondents submitted that Exhibit B was not registered as an instrument of title and thus defective in every nature of it. He referred to the cases of WEST AFRICAN COTTON LTD VS. ALHAJI BAKO MAIWADA (2008) 9 W.R.N 142 at 157-158 (b) WEST AFRICAN COTTON LTD VS. HARUNA (2008) 13 W.R.N page 130 at 144-150 AND OGUNNAMEH VS. ADEBAYO (2008) 25 W.R.N. PAGE 168 AT 188 for the effect of registrable but unregistered instrument. He contended that the Appellant failed to establish the genuineness and validity of Exhibit B. Exhibit. B was neither duly executed nor authenticated. He referred to the case of DEBO VS. ABDULLAHI (2005) 29 W.R.N Page 1 at 36- 37 lines 20-20. He submitted that exhibit B is not only weak but also structurally defective. He argued that the Respondents maintained in their pleadings and oral evidence in Court that the purport of Exhibit B was hidden from them before execution and when 1st Respondent inquired from the Appellant the contents of the documents, he was told that it was to verify that he borrowed from him. Learned Counsel for the Respondents contended that in this instance, it is not a question of the Court re-writing the document for the parties. It is whether Exhibit B was duly executed and or authenticated for all its purposes having read the said document.
Learned Counsel referred to paragraph 15 of the Respondents Statement of Defence. Page 19 lines 15-19 of the record is in line with paragraph 15 of the statement of defence.
Appellant filed no reply to rebut the pleadings of the Respondents and it is trite law that facts alleged in the Statement of Defence and not rebutted stand admitted. He cited ALHAJI IBRAHIM J MOHAMMED VS. KLARGESTER NIG. LTD. (2003) 7 S.C.N.J PAGE 443 AT 455 AND AGBI VS. OGBEH (2005) VOL. 25 W.R.N PAGE38 AT 103. Learned Counsel urged the Court to disregard the Appellant Counsel’s submissions in reading into Exhibit B its contents and purports which are outside the pleadings in terms of reply to the Respondents Statement of Defence. Learned Counsel to the Respondents urged the Court to resolve the issue against the Appellant.
There is no doubt that the claim of the Appellant to the land in dispute is derived from Exhibit B and that is his only piece of evidence to the land in dispute. The onus is therefore on the Appellant to establish his title on the strength of his own case. It is trite law that the onus is on a Plaintiff seeking a declaration of title to a land in dispute to establish his title on the strength of his own case and not on the weakness of the defendant’s case although the weakness of the Defendants case may in some cases assist the Plaintiff’s case. The onus remains on the Appellant until he has completely and successfully discharged the onus on him in this regard. Where he fails to discharge the burden of proof on him in this regard successfully, the onus does shift to the Respondent. Until the onus is successfully discharged by the Appellant, the Court is not obliged to look at the Respondent’s case. See the cases of OKULATE VS. AWOSANYA (2000) 2 N.W.L.R. Part 646 at 530; ACHIBONG VS. ITA (1953) 14 W.A.C.A AT 520 AND DIM VS. ENEMUO (2009) 10 N.W.L.R Part 1149 page 353 ) particularly at 377 paras E-H 380 paras A-C and 386 paras B-D per Chukwuma Eneh J.S.C.
Appellant at page 34F lines 27-30 under cross examination stated thus:
I admit that the Umeji family have a large expanse of land in area of the land in dispute which includes the land in dispute. The defendants are members of the Umeji family.
This piece of evidence is admissible. It also shows that the land in dispute is a family land. It is therefore incumbent on the Appellant to show that the 1st & 2nd Respondents are the accredited heads and representatives of their family. Appellant did not tell the Court what investigations he made prior to the purchase of the land in dispute to find out how the 1st Respondent came about the land and if he had the requisite authority to sell. It is not sufficient for the Appellant to merely trace his root of title to the 1st Respondent. He must plead and prove that the previous ownership of the land by his vendor had been established. It is the law that a sale or grant or lease of family land carried out by the head of the family in which the principal members do not consent is voidable and if carried out by the principal members without the concurrence or consent of the head of the family is void ab initio because they cannot pass any good title without the concurrence or consent of the head of the family see EKPENDU VS. ERIKA (1959) 4 S.C. at 79 and ESSIEN VS. ETUKUDO (2009) All F.W.L.R Part 496 page 1886 at 1902 paras F-H. In the instant appeal, Appellant merely tracing his root of title on a land which he admitted is situated within Umeji family land to the 1st Respondent who is just a member of the family confers no title. It is settled law that a sale of family land (if any in this instance) by a member of the family without the consent of the head and the principal members of the family is void ab initio see ONISERE VS. OYELEYE (2008) 21 W.R.N page 43 at 96 lines 5-30 and ODUKWE VS. MRS. OGUNBIYI (1998) 6 S.C.N.J at 102. He must plead and prove that the previous ownership of the land by the 1st Respondent or his vendor had been established or put in another way, where an Appellant places ownership by sale and purchase of land owned by a family, under Customary law the onus is on him to trace the devolution of title from that family to that of individual title of his vendor.
The Appellant during examination in chief stated thus:
The land was originally owned by Ogunaike the settler on the land.
See page 34 B lines 21 and 22 of the Record. Prior to 1977 the land was owned and used by Osulaja Ogunaike, the 1st Defendant/Respondent here.See page 34 lines 28-30 of the record.
The above evidence is contrary to para 5 of the Appellant’s Amended Statement of Claim which is to the effect that the 1st Respondent was earlier granted the land in dispute by the head and accredited representatives of the Umeji family to have gotten the right and power to dispose of family land. See page 21 lines 20-24 of the record.
Production of title document no doubt is one of the recognized methods of proving title to land see IDUNDUN VS. OKUMAGBA (2002) 20 W.R.N page 127 at 142-144 lines 25-25. Exhibit B qualifies as an instrument by virtue of Section 2 of the Land Instrument, Registrations Laws of Ogun State Section 2 says:
An instrument is a document affecting land whereby one party called the grantor confers, transfers, limits, changes or extinguishes in favour of the grantee any right or title to or interest in land.
In other words once a document purports to transfer and/or confer any interest in land, it becomes an instrument which must be registered. See NIGER CONSTRUCTION LTD VS. RAPHEAL WAKA OGBIMI (2001) 18 N.W.L.R. Part 744.
The Supreme Court per Nnaemeka Agu J.S.C in the case of OREDOLA OKEYA TRADING COY. VS. A. G. KWARA STATE & ANOR (1992) 9 S.C.N.J observed that:
The fact that a document is called an agreement or estate contract will not exempt it from the requirement of registration if from its contents it is an instrument of grant. What matters is the true import of the document.
Exhibit B was not registered and as rightly submitted by the Respondent’s Counsel which I am inclined to is for the Court to consider whether once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own? In the consideration of this poser, the Court has to inquire into:
(a) Whether the document is genuine or valid
(b) Whether it has been duly executed, stamped and registered
(c) Whether the grantor had the authority and capacity to make the grant
(d) Whether the grantor had in fact what he purported to grant and
(e) Whether it has the effect claimed by the holder of the instrument
See the case of DEBO VS. ABDULLAHI (2005) 29 W.R.N page 1 at 36-37. Relying on the evidence on the record, my answers to the questions raised above are:
(a) That the document is not valid because the Respondents denied the contents of the document. The parties were not ad idem on the contents.
(b) The document was not registered as required under Section 2 of the Land Instruments Registrations Law of Ogun State. However I am mindful of the law that in appropriate cases, a registrable instrument which is unregistered can be admissible to create an equitable interest which will be good as a legal interest. In this instance the geniuness of exhibit B is in doubt and as such it cannot be admissible to prove Appellant’s title to the land in dispute.
(c) 1st Respondent does not have the authority and capacity to make the grant in the absence of the head and principal member of Umeji family land.
(d) The 1st Respondent does not have what he purported to grant assuming the 1st Respondent ever made any grant and which will even be assuming two much
(e) Appellant does not have title on the disputed land as claimed by him. Exhibit B failed the above tests.
Appellant claimed that exhibit B was prepared for him by a letter writer who endorsed same as the maker and it was before the said letter writer that the document was executed by both parties. The Respondents contended that though they thumbprint exhibit B they did so under the illusion that it was to reflect the Appellant’s temporary use of the land and not an outright sale. Appellant is literate while the Respondents are illiterate. As rightly held by the learned trial Judge the Respondents are entitled to have the document read over and explained to them prior to the document being signed by virtue of Section 3 of the Illiterate Protection Law Cap 47 Laws of Ogun State 1978. Apart from the 2nd Respondent, there was no independent witness to the document even on the part of the Appellant. Appellant did not testify at the trial Court that the letter writer is dead. The Appellant’s Counsel submission that the letter writer is dead cannot replace or be a substitute for evidence.
Where a document is challenged and impugned as unauthentic as in this instance, the maker of the document should be called to support the document otherwise no weight or probative value should be attached to it. In LAMBERT VS. NIGERIAN NAVY (2007) 14 W.R.N page 136 at 189-190 lines 35-15 it was held:
It is certainly the law that the proper person through whom a document is tendered is the maker of such document. In the instant case neither P.W1 the person detailed to investigate the P.W2 who simply called himself writer in the course of his testimony, authored any of the documents apart from Exhibit 1 the cautionary statement of the Appellant. And it is the law that if as in the instant case, a person who was not the maker of the document tendered the document the trial Judge should not attach any probative value to the document. This is so because the person tendering the document not being the maker of the document cannot answer questions arising from any cross-examination.
See also G. CHUTEX IND. LTD. VS. OCEANIC BANK INTERNATIONAL (NIG.) LTD (2005) 14 N.W.L.R Part 945 at 392 and N.B.C. PLC VS. UBANI (2009) 3 N.W.L.R Part 1129 page 512 at 541 paras C-D.
I must again say that the provisions of Section 3(b) of the Illiterates Protection Law are not for fancy neither are they for the benefit of the literate party. The protection afforded by that provision singularly enures for the illiterate party. Where as in this instance there exists or a denial as to the correct statements made by an illiterate in a document, the provision will avail the illiterate and the doubt must be resolved in his favour. See FATUNBI VS. OLANLOYE (2004) 6 S.C.N.J Page 34 at 49, ANYABUNSI VS. IGWUNZE (1995) 6 N.W.L.R Part 401Page 225 at 272, U.B.N PLC VS. IDRISU (1999) 7 N.W.L.R Part 607 at 105 and LAWAL VS. AKANDE (2009) 2 N.W.L.R Part 1126 page 425 at 454 para B.
Appellant contends that the sale of the land to him is under customary law. I disagree with his contention. Sale of land under Customary Law is valid where there is sufficient evidence of payment of purchase price coupled with the delivery of possession of the land to a purchaser in the presence of witnesses. Again under customary law there is a complete sale only if the purchase price was paid to the real owners of the land.
It cannot be said to have the same effect if the purchase price was not paid to the real owners or a price paid when the supposed vendors have nothing to pass on to the purchaser. The 1st Respondent is not the head or accredited representative of Umeji family land. 1st Respondent therefore has no title to pass to the Appellant. Exhibit B though stamped but not registered is therefore not admissible in evidence to prove title. See DEBO VS. ABDULLAHI Supra and ADESANYA VS. ADEROUMU (2000) 6 S.C.N.J page 242 at 254.
In ADESANYA VS. ADEROUMU supra Iguh J.S.C had this to say:
I have carefully studied exhibit A and it is clear to me that it is an un-registered instrument and as such, is not admissible to prove Plaintiff’s title to the land sold to him. It is however admissible as a receipt or an acknowledgment of the payment of money in respect of the land by the Plaintiff and coupled with the delivery of possession of the land in dispute by the Ayoade family to the Plaintiff, gave rise to an equitable interest which is capable of being converted into a legal estate by specific performance.
Learned Counsel for the Appellant submitted that a registrable instrument which is unregistered can be admissible to create an equitable interest which will be good as a legal interest.
I say yes in appropriate cases. In this instance the genuineness of exhibit B is in doubt and it cannot be regarded as a land purchase receipt since both parties to the agreement were not ad idem on its contents. The question of altering or varying exhibit B does not arise as submitted by the Appellant’s Counsel. Exhibit B conveys no title because it is void and I so hold. Issue one is hereby resolved against the Appellant.
Issue 2
Learned Counsel for the Appellant submitted that there was no fair or proper appraisal and evaluation of the case. He referred to the evidence of D.W1 at page 37 lines 25-28 and the evidence of D.W2 at page 41 lines 21-23. He submitted that the contradiction in their evidence is material. The contradiction goes to the root of the case before the trial court as to whether the land in dispute was the personal property of the 1st Respondent which he sold to the Appellant or otherwise. Learned Counsel also submitted that D.W.2 & D.W.3 contradicted each other and gave evidence that was at variance with the facts pleaded. He contended that the trial court made wrong and or improper evaluation of the evidence before the Court where it held at page 74 lines 29-30 of the record thus:
The bare assertions of damage done by the defendants on the land in dispute cannot amount to evidence. In sum the plaintiff’s claim for damages for trespass cannot be sustained.
He submitted that the trial Court came to a wrong conclusion. The Respondents admitted in evidence that they disturbed the possession of the Appellant when he wanted to construct a shed on the land in dispute. Facts admitted by the respondents need no further proof. Any form of disturbance of possession of a Plaintiff/Appellant in possession is actionable and he is entitled to recover damages.
Learned Counsel for the Appellant urged the Court to invoke its power under Section 15 of the Court of Appeal Act 2004 to set aside the whole Judgment and enter judgment in favour of the Appellant.
In reply, learned Counsel for the Respondents submitted that the evidence of both parties were properly and adequately evaluated as there were no material contradictions between the evidence of the defence. He submitted that the issue as to contradiction regarding when the land in dispute was given to the Appellant and when Exhibit B was executed are of no moment as they relate to different situations of an alleged act and another act. He submitted further that there is no misdirection or miscarriage of justice. The evidence as to acts of disturbing the possession of the Appellant by the Respondents is clear and that is when he decided to use the land in dispute other than for what it was granted. He referred to the evidence of D.W2 & D.W3 on page 40 lines 22-27 and page 42 at lines 13-17 of the record.
Learned Counsel urged the Court to dismiss the appeal with substantial cost in favour of the Respondents.
I have perused the record of proceedings and the Judgment of the learned trial judge. A civil case is decided on the preponderance of evidence. The only way to arrive at a final decision is by determining on which side the weight of evidence tilts. A decision will be held to be perverse where:
(a) It is speculative and not based on any evidence
(b) The Court took into account matters which it ought not to have taken into
account or
(c) The Court shut its eyes to the obvious. See ATOLAGBE VS. SHORUN (1985) 1 N.W.LR Part 2 at 360, IHEWUEZI VS. EKENYA (1989) 1 N.W.LR Part 96 at 239 and OSUJI VS. EKEOCHA (2002) 52 W.R.N Page 1 at page 33 lines 35-45.
On a thorough examination of the evidence of the parties and the judgment of the trial Court, I observed that the trial Court has carried out satisfactorily its function of proper and dispassionate appraisal of evidence given in support of each party’s case. The contradiction that will effect upturning a judgment must be substantial. The contradictions in the evidence of the witnesses are minor and do not go to the root of the case.
The contradictions as to when the land was given to the Appellant and when exhibit B was executed are of no moment as rightly submitted by the Respondents Counsel as they relate to different situations of an alleged act and another act.
The learned trial Judge at page 73 lines 41-43 and 74 lines 1-2 found thus:
I am not unaware that a Plaintiff can succeed in his claim for damages for trespass and injunction even if title fails because in law trespass to land constitutes the slightest disturbance to the possession of land by a person who cannot share a better right to possession. In other words, to succeed in trespass, a claimant must prove exclusive possession of the land. Exclusive in the sense that he does not share his right of possession with any other person. While it can be argued that the 1st Defendant let the Plaintiff into possession as I have earlier found, the Plaintiff is a temporary occupation license. Thus he may be given notice to quit at anytime and he does not have exclusive possession of the land. Actual possession is good against all except those who can show a better right to possession in themselves.
Appellant has not established his actual Possession of the land since there was no outright sale to him by the 1st Respondent if at all there was any sale. The Respondents therefore have not trespassed on their family land.
Appellant is seeking for special & general damages in his claim. He must lead credible evidence in support of special damages as would suggest that indeed, he is entitled to the award under that head. The rule requires anyone asking for special damage to prove strictly that he did suffer such special damages. See IMANA VS. ROBINSON (1979) 3 & 4 S.C AT page 1 and AMADI VS. CHIDA (2009) 10 N.W.LR Part 1148 page 107 at 131 paras G-H. The learned trial Judge rightly found that the Appellant was not in actual possession. See ANYANWUVS. UZOWUAKA (2009) 49 W.R.N page 1 at 40-41 lines 45-10 per Adekeye J.S.C where his Lordship held:
In an action where the claim is for trespass, two separate and independent issues must be considered and they are:
(a) Whether the Plaintiff established his actual possession of the land and
(b) Whether the Defendant trespassed on it
The learned trial Judge also found that the Appellant did not proffer any credible evidence say for instance, photographs of the damage done on the land. An assertion will remain as an assertion unless it is proved by evidence. A Court must not speculate. See OLALOMI INDUSTRIES LTD VS. N.I.D.B LTD (2009) 16 N.W.LR Part 1167 page 266 at 303-304 paras H-B.
The learned trial Judge rightly found that the Appellant’s claim for damages cannot be sustained. The claim of the Appellant for an order of injunction is dependent on his other reliefs. Where as in this case, a claim of trespass to land fails, the relief of injunction to restrain further trespass would fail.
Since the trial Court has carried out a satisfactory appraisal of the evidence given in support of each party’s case, an appeal court will be left with no option but to affirm such a decision. See OSUJI VS. EKEOCHA (2009) 52 W.R.N page 1 at 34 lines 5-25. An appellate court will also not interfere for the sheer fancy of substituting its view for the view of the trial Court when that Court has properly evaluated the evidence and made findings of fact. See AWOYALE VS. OGUNBIYI (1986) 2 N.W.L.R. Part 24 at 626 and ADEMOLAJU VS. ADENIPEKUN (1999) NWLR Part 587 at 440. Issue two is also resolved against the Appellant.
On the whole, this appeal has no merit at all and same is accordingly dismissed. The judgment of the trial Court is hereby affirmed by me. There shall be N50, 000.00 cost to the Respondents against the Appellant.
CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment of my learned brother M. Fasanmi, J.C.A.
I agree entirely with the reasoning and conclusions arrived at. I also hold that the appeal has no merit and same is dismissed by me. I affirm the judgment of the lower trial court and abide by the order made as to costs.
SIDI DAUDA BAGE, J.C.A.: I have had the preview of the Judgment just delivered by my learned brother, M. Fasanmi, J.C.A.
I entirely agree with the reasonings and conclusions reached in the lead Judgment. I adopt same as mine; the appeal fails for lacking in merit and same is accordingly dismissed by me. I bide by the order made in respect of costs.
Appearances
O.A. Akinsanya holds Otunba Ola OyefesFor Appellant
AND
A.T. Talib holds Otunba Rotimi OnafadejiFor Respondent
