SUNDAY CHUKWUANU v. VICTOR UCHENDU & ORS (2016)

SUNDAY CHUKWUANU v. VICTOR UCHENDU & ORS

(2016)LCN/8122(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of January, 2016

CA/E/289/2008

RATIO

COURT: POWER OF THE COURT; WHETHER A COURT OF COMPETENT JURISDICTION HAS THE POWER TO AWARD DAMAGES
Generally, a Court of competent jurisdiction has the inherent power to award damages, both special and general damages in respect to a wrong done to a party by an opposing party. See the case of UBA Plc v. BTL Industries Ltd. (2006) 19 NWLR (Pt. 1013) 61. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

DAMAGES: SPECIAL AND GENERAL DAMAGES; WHTHER A PLANTIFF IS ENTITLED TO BOTH SPECIAL AND GENERAL DAMAGES WHEN HE SUCCEEDS IN ACTION FOR TRESPASS

Also, in action for trespass, the plaintiff if he succeeds on his case is entitled to both special and general damages.
Special damages are damages awarded in respect of a specific injury suffered by the successful party through the act or instrumentality of the opposing party. This type of damages are required to be specifically pleaded strictly and proved by the party claiming same in order to be entitled to it. See UBA Plc. v. BTL Industries Ltd. (2006) 19 NWLR (Pt. 1013) 61.
General damages on the other hand are awarded for the natural loss or probable consequences of the act of the opposing party which caused injury to the winning party. See Jija v. Shande (2005) 9 NWLR (Pt. 931) 543 @ 570. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

COURT: WHETHER THE APPELLATE COURT CAN INTERFERE WITH THE ASSESSMENT OF DAMGES AND COST AWARDED BY A TRIAL COURT

It is a trite principle of law that an appellate Court will not readily interfere with the finding of a trial Court is fully satisfied that the trial Court had acted on a wrong principle of law as to make it an erroneous estimate of damages to which the claimant would be entitled to. See Charlie v. Gudi (2007) 2 NWLR (Pt. 1017) 91/111. The above stated position was equally and previously too, enunciated upon by the Supreme Court in the case of UBA Plc v. BTL Industries Ltd. (2006) 19 NWLR (Pt. 1013 ) 61 @ 143- 144. Where the apex Court per Tabai, JSC stated as follows:
It is settled law that general damages, usually awarded to assuage loss suffered by a plaintiff from the acts of a defendant, is a matter of inference based on the trial Courts discretion. And an appellate Court ought not to interfere with such award of damages unless:
a. Where the trial judge has acted under a mistake of law; or
b. Where he has acted in disregard of principles;
c. Where he has taken into account irrelevant matters or failed to take into account relevant matters or
d. Where he has acted under a misapprehension of facts;
e. Where injustice would result if the appellate Court does not intervene;
f. Where the amount awarded is either ridiculously low or ridiculously high that it must have been a whole erroneous estimate of the damage. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

JUSTICES:

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

SUNDAY CHUKWUANU – Appellant(s)

AND

1. VICTOR UCHENDU
2. AFAM UZOWULU
3. ALFRED OFFOR
4. JOHN EJELIOGU
(For themselves and on behalf of all the members OGBUOKWE family of Isu Village Oba) – Respondent(s)

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice J. I. Nweze delivered on the 30th day of May, 2008 at the Anambra State High Court, Idemili Judicial Division sitting at Ogidi, Nnewi (hereinafter called the Lower Court). The parties had a dispute over the ownership of a piece or parcel of land.

HISTORY OF THE CASE.
The suit was originally commenced at the Anambra State High Court, Idemili Judicial Division, sitting at Ogidi, vide a writ of summons dated and sealed on the 3rd day of May, 2004 on behalf of the plaintiffs (now respondents in this appeal). The plaintiffs/respondents by the said action prayed the Lower Court for the following reliefs:
(a) An order of the Court ordering the defendant to forefeit the land given to his father on which his father built a home for the refusal of the defendant to pay tributes (IruAni) as a customary tenant.
(b) A declaration of the Court that the plaintiffs are the owners of the piece or parcel of land lying, situate and being at Isu Village Oba in Idemili South Local Government Area of Anambra State of Nigeria shown

on Survey Plan No. FALS/AN/DL27/2005.
(c) A declaration of the Court that the plaintiffs are entitled to the statutory right of occupancy over the piece or parcel of land lying, situate and being at Isu Village Oba in Idemili South Local Government Area of Anambra State of Nigeria shown, described, delineated and verged GREEN in Survey Plan No. FALS/ DL27/2005.
(d) An order of the Court for the defendant to pay Special and General damages of 2,000,000.00 (Two Million Naira Only) to the plaintiffs for the defendants trespass on the plaintiffs land
(e) An order of perpetual injunction restraining the defendant by himself, his servants, heirs, agents, and privies from entering into, remaining on or otherwise interfering in any with the plaintiffs right or interest over the land in dispute lying, situate and being at Isu Village Oba, which land is the property of the plaintiffs.

The respondents case was supported by a 42 paragraph statement of claim and nine (9) witnesses were called to testify on their behalf. The defendant (now appellant in the instant appeal matter) on his own part, filed a twelve (12)

paragraph statement of defence and counter – claim, wherein the appellant prayed the Lower Court for the following reliefs:
1. A declaration that he is the person entitled to statutory right of occupancy over the piece and parcel of land situate at Isu Umuabu Village, Oba in Idemili South Local Government Area of Anambra State which is more particularly verged red and shown in plan No. E EO/AN/D018/2006, made by one E. E. Okafor a Registered Surveyor and filed along with this statement of defence and counter- claimant’s land.
2. A perpetual injunction restraining the plaintiffs, their servants agents and assigns, however called, from in any manner or form trespassing into the defendant/counter claimant’s land.

The appellant on his part called three (3) witnesses in his defence and bid to prove his counter-claim. The respondents in response to the statement of defence and counter-claim filed an amended reply and defence to the counter-claim.

Having given considerations to the facts of the case, issues formulated by the parties as well as all the evidence presented to the Lower Court, the said court proceeded,

entered judgment in favour of the plaintiffs (albeit in part) and made orders to the following effects:
In the final analysis, the plaintiffs case succeeds in part. It is declared that the plaintiffs are the persons entitled to a statutory right of occupancy over the piece or parcel of land lying situate and being at Isu Village Oba in Idemili South Local Government Area of Anambra State of Nigeria shown, described and delineated and verged pink on survey plan No. FALS/AN/DL27/2005.
The defendant is restrained by himself, his servants, heirs, agents and privies from entering into or remaining or otherwise interfering in any way with the plaintiffs right or interest over the land verged pink on survey plan No. FALS/AN/DL27/2005.
The claim for forefeiture of the portion verged blue on survey plan No. FALS/AN/DL27/2005 fails and is hereby dismissed.
There shall be general damages of 100,000 in favour of the plaintiffs against the defendant for trespass.
On the issue of costs there were a total of 11 appearances made in this suit. As prescribed by the Rule of this Court there be cost of 82,000.00 in favour of the

plaintiffs against the defendant.

The defendant was dissatisfied with the above judgment of the trial Court. He appealed against it through a notice of appeal dated 30th June, 2008 and filed on 1st July, 2008. The notice of appeal contained four (4) grounds of appeal; andhe then sought for the following reliefs:
(i) An order setting aside the decision of Hon. Justice J. I. Nweze and the cost awarded against the Appellant and dismissal of the case of the Plaintiffs/Respondents.
(ii) Entering judgment in favour of the Appellant in terms of the counter – claim.

In prosecution of this appeal, the appellant filed his appellant’s brief of argument. It was dated 15th day of January, 2008. The said brief was deemed by this Court to have been properly filed and duly served on the 2nd day of March, 2009. The respondents equally filed their respondents brief of argument dated the 3rd day of November, 2010. The brief was also deemed as having been properly filed and duly served with leave of this Court granted on the 1st day of November, 2010.

The appellant and the respondents through their counsel adopted their

respective briefs of arguments on the 28th day of October, 2015. The appellant in his appellant’s brief formulated four (4) issues for the determination of this appeal. The issues are as follows:
(i) Whether or not the learned trial judge was right to choose one out of the conflicting reliefs of the plaintiff, which he granted while, remaining silent on the other. (See para 3(C) of Notice of Appeal)
(ii) Whether or not the learned trial judge was right to shift the onus of proof on the surrounding land to the appellant’s father on the appellant. (See para 3 (A) of Notice of Appeal)
(iii) Whether or not the learned trial judge was right in awarding a cost of 182,000.00 (One Hundred and Eight Two Thousand Naira only) against the Appellant. (See para 3E and F of the Notice of Appeal)
(iv) Whether or not the learned trial judge was right in according credibility to plaintiffs witnesses P. W. 2, PW.4, P.W.8 and P.W.9 (See para 3D of Notice of Appeal).

The respondents also formulated four (4) issues in the respondents brief of argument. The issues are reproduced below:
1. Whether there was a

conflict or contradiction between the reliefs No. 42 (b) and No. 42 (c) of the Plaintiffs Statement of Claim and whether the trial Court was right when it granted one of the two (2) reliefs (No. 42 (c)) and refused to grant the other (No. 42 (b)).
2. Whether the Learned Trial Judge was right when he held that there are two aspects of the dispute and whether or not there was a miscarriage of justice by the Court when it held that the aspect which deals with the ownership of the surrounding land around the defendant’s house was the aspect presented by the defendant for determination.
3. Whether there were good and convincing reason upon which the Court of Appeal could interfere with the Assessment of Damages and cost made by the Trial Court.
4. Whether the trial Court properly evaluated the evidence before it and whether on the preponderance of evidence the trial Court ought to have entered judgment in favour of the respondents.

A careful perusal of the two sets of issues raised by the learned counsel for the parties, clearly shows that the issues are more or less the same in substance with a bit of difference in the

wordings. However, the core issues which this Court considered germane in determination of this appeal are as follows:
1. Whether or not an appellate Court can interfere with the evaluation of facts done by the trial Court.
2. Whether or not a declaration that the respondents are entitled to the Statutory Right of Occupancy is tantamount to declaring that the respondents are entitled to the exclusive possession of the land in dispute, which is understood to amount to ownership of the land by an ordinary layman.
3. Whether the learned trial judge was right when he held that there are two aspects of the dispute and whether or not there was a miscarriage of justice by the Lower Court when it held that the aspect which deals with the ownership of the surrounding land around the appellant’s house was the aspect presented by the appellant for determination, to which onus of proof rested on him.
4. Whether or not this appellate Court can interfere with the damages and costs awarded in favour of the respondents/plaintiffs against the appellant/defendant.

These issues are materially the same with those formulated by the counsel to the

parties and this Court will consider the issues seriatim .
ISSUE 1
Whether or not an appellate Court can interfere with the evaluation of facts done by the trial Court.

The learned counsel for the appellant in the appellant’s brief of argument strongly argued that the evidence or testimonies of P.W1., P.W.2, P.W.4, P.W.8 and P.W.9 are contradictory and not credible. He graphically reproduced the portions of their evidence which he considered not credible enough and contradictory and to which the Lower Court held otherwise and went ahead, to place reliance on the said pieces of evidence in delivering judgment in favour of the respondents. This argument is contained at pages 22 – 27 of the appellant’s brief. He further went ahead to contend that the evidence given by the said witnesses are unreliable and urged this Court to resolve this issue in the appellants favour.

The learned counsel for the respondent on his own part argued in the respondents brief, that the standard of proof in civil cases is on the preponderance of evidence or balance of probabilities. In this vein, he placed reliance on the Supreme Court case

of Ezenmba vs. Ibeneme (2004) 7 SCNJ 136. He argued further, relying on the same judgment, that in determining either preponderance of evidence or balance of probabilities, the Court is involved in some weighing, by having recourse to the imaginary scale of justice in its evaluation exercise. Accordingly, proof by preponderance of evidence simply means that the evidence adduced by the plaintiffs should be put on one side of the imaginary scale and the evidence adduced by the defendant should be put on the other side of that scale and weighed together to see which side preponderates.

In addition, the learned counsel for the respondents after giving a detailed illustration of evidence given at the trial with a demonstration of the evaluation done by the Lower Court in arriving at its decision, went further and placed reliance on the Supreme Court decision in the case of Anyegwu vs. Onuche (2009) 1 SCNJ 91 @ 101-102 wherein the apex Court held, that certainly a trial court has the primary duty in a trial, whether civil or criminal, to listen to, watch and observe the demeanour of witnesses. It has the duty to admit or reject documents, or other materials or

objects tendered in evidence as exhibits. It has a duty finally at the close of trial, to weigh and ascribe probative value to all the pieces of evidence placed properly before it.

The learned counsel stated further, that what must influence the Lower Courts mind is the quality of evidence or document tendered, and in achieving that, the learned trial judge has to have regard to, among other things, the ones mentioned in the case of Anyegwu (supra). Such things include the followings:
(i) Admissibility of the evidence.
(ii) Relevancy of the evidence.
(iii) Credibility of the evidence.
(iv) Conclusivity of the evidence.
(v) Probability of the evidence in the sense that it is more probable than the evidence of the other party.
(vi) Finally, after having satisfied himself that all the above have been complied with, he shall then apply the law to the situation presented in the case before it in order to arrive at a conclusion in one way or the other.

He supported the above exposition with the cases of Anyegwu v. Onuche (supra); Mogaji v. Odofin (1978) 4 SC 91; Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432. Also,

relying on the case of Oyadiji v. Olaniyi (2005) 5 NWLR (Pt. 919) 561 @ 576, per Ibiyeye JCA, wherein my noble Lord stated as follows:
Evaluation of evidence and the ascription of probative value to such evidence are the preserve and/or primary functions of a trial Court. This is so because the trial court had the opportunity of seeing and hearing the witnesses who appeared in a given case and even watched their demeanour.

Also, he reproduced the dictum of Justice Adekeye, JCA (as he then was), in Oyadiji v. Olaniyi (supra) @ 577 as follows:
Where a trial Court unquestionably evaluates the evidence and justifiably appraises the facts, the appellate Court cannot interfere to substitute its own views. Once there is sufficient evidence on record from which the trial Court made its findings, the appellate Court cannot interfere – in that the trial Court havng had the opportunity of hearing the witnesses at the trial, and watching their demeanour in the witness box is entitled to select witnesses to believe on facts established. An appellate Court shall not ordinarily interfere with such findings of fact except in certain

circumstances as:-
a. Where the trial Court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial.
b. Where the trial Court has drawn wrong conclusion from accepted credible evidence.
c. Where the trial Court has taken erroneous views of the evidence adduced before it, or
d. Where the trial Court’s findings are perverse in the sense that they are unsupported by evidence or do not flow from evidence accepted by it.
See also Maja v. Stocco (1968) 1 All NLR 141.

Learned respondents counsel submitted finally on this issue, that taking a cursory look at the facts of this case, the findings of the trial Court and its judgment, show that the trial court made the right assessment of the case when it entered judgment in favour of the respondents, since none of the exceptions enumerated above can apply in this case. He urged this Court to uphold the decision of the Lower Court and resolve the issue in favour of the respondents.

After taking a proper analysis of the argument of the counsel to both parties, this Court will proceed to resolve this issue vis-a-vis the

court processes placed before it. It is trite principle of law, that the main court saddled with the responsibility of taking, evaluating, analysing and making findings on evidence adduced before it, is the trial Court. Thus, an appellate court is generally enjoined not to interfere with the findings of the trial court which were arrived at, after a proper evaluation of the evidence presented to it by the parties; both oral and documentary. The Lower Courts findings is generally deemed to be proper, correct and acceptable, because it has the opportunity of observing the demeanour of the witness or witnesses that appeared before it, assimilate the arguments of the counsel to both parties in respect of evidence adduced before the court and after a proper analysis and evaluation arrives at its decision. The above stated position of the law is rightly supported by the dictum of Justice Ibiyeye, JCA, in the case of Oyadiji v. Olaniyi (supra). Indeed, the position of the law was equally re-affirmed by the Supreme Court in the case of Oyadare v. Keji (2005) 7 NWLR (Pt. 925) 571; Nteogwuile v. Otuo (2001) 16 NWLR (Pt.738) 58.

As earlier stated, it is the

contention of the appellant that the pieces of evidence adduced by P.W1., P.W.2, P.W.4, P.W.8 and P.W.9 are not credible and self-contradictory which render the said pieces of evidence unreliable, for any reasonable Court of justice to rely upon in arriving at its decision.

It is an established principle of law that he who alleges must prove and the burden of proof is squarely on the shoulders of any party who alleges the existence of any fact. See Section 135 & 137 (1) of the evidence Act, 2011. See also the case of Owie v. Ighiwi (2005) S (Pt. 917) 184.

The appellant at pages 22 – 27 of the appellants brief, made a detailed analysis of the testimonies of the witnesses; both their evidence-in-chief together with their testimonies under the heat of cross-examination. In his analysis, he made several references to the records before this honourable Court and concluded by urging this honourable Court to hold that the testimonies given by the aforementioned witnesses are unreliable and resolve the issue in favour of the appellant.

It is also important to state here that, the appellant who urged this Court to interfere with the finding of

facts made by the Lower Court, has the burden of placing this case under one of the circumstances of the exceptions mentioned above. See Section 135, 136 & 137 (1) of Evidence Act; See also the case of Akinloye vs. Eyiloye (1968) NMLR 92; Ogologo v. Uche (2005) 14 NWLR (Pt. 945) 226.

To my mind, the point has been duly settled, that the power of this Court to interfere with the evaluation of evidence done by the trial Court is discretionary, which discretion must be exercised judicially and judiciously. See the cases of Oyadiji v. Olaniyi (2005) 5 NWLR (Pt. 919) 561; Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; Olarewaju v. Governor of Oyo State (1992) 9 NWLR (Pt. 265) 335.
For the purpose of emphasis, I find it necessary to re-state the exceptional circumstance as under the law in which an appellate Court can interfere with the findings of facts done by the trial Court, the circumstance are.
1. Where the trial Court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial
2. Where the trial Court has drawn wrong conclusion from accepted credible evidence
3. Where the trial Court has taken

erroneous views of the evidence adduced before it, or
4. Where the trial Courts findings are perverse in the sense that they are unsupported by evidence or do not flow from evidence accepted by it.
See Maja v. Stocco (supra); Oyadiji v. Olaniyi (supra) Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101; Odongi v. Oyeleke (2001) 6 NWLR (Pt. 708)12.

It is thus my firm viewpoint that, the appellant is expected not to only prove the unreliability of the evidence adduced by the witnesses, he must place his case under any or all (as the case maybe) of the above exceptions. Additionally, that the appellant has failed in this regard, for not sufficiently placing his case under any of the above exceptions which in that circumstance will enable this Court to exercise its discretion in his favour. See the case of Kojo II v. Bonsie (1953) 9 WACA 242 @ 243.

Additionally, in order for contradictions to have negative impact and change the fortunes of an appeal in favour of the appellant, they must be material and not marginal, See Owie v Ighiwi (2005) 5 NWLR (Pt. 917) 184 @ 218; Ezekwesili vs.. Onwuagbu (1998) 3 NWLR (Pt. 541) 217. Therefore, from

the above analysis, it is issue be resolved against the appellant.

ISSUE 2
Whether or not a declaration that the respondents are entitled to the Statutory Right of Occupancy is tantamount to declaring that the respondent/plaintiff are entitled to the exclusive possession of the land in dispute, which is understood to amount to ownership of the land by an ordinary layman.

The respondents at the Lower Court, sought for the following reliefs among other reliefs:
42(b). A declaration of the Court that the plaintiffs are the owners of the piece or parcel of land lying and being at Isu Village Oba, Idemili South Local Government Area of Anambra State shown on Survey Plan No. FALS/DL27/2005
42(c). A declaration of the Court that the plaintiffs are entitled to the statutory Right of occupancy over the piece or parcel of land lying, situate and being at Isu Village, Oba in Idemili South Local Government Area of Anambra State of Nigeria shown, described, delineated and verged GREEN in Survey Plan No. FALS/DL27/2005.

The appellant’s counsel contended that the two (2) prayers above are conflicting and

contradicting. He argued that the plaintiffs cannot be the owners of the land and at the same time be entitled to the Certificate of Occupancy. He argued further, that the law makes a clear distinction as to who is the owner of the land and who is entitled to Certificate of Occupancy. That, it is the owner of the land that has the discretion to grant a certificate of occupancy over the land. He supported his position and placed heavy reliance on Sections 1 and 5 (2) of Land Use Act, Cap. 202, Laws of the Federation of Nigeria, 1990, which placed the ownership of all the land in each state in the hands of the Governor.

Also, the learned appellants counsel argued that, it is not the appellant/defendants case that the whole of the respondent plaintiffs case be dismissed by the Lower Court, that the appellant simply prayed the Court to strike the said reliefs 42 (b) and 42 (c) for being contradictory. The learned counsel submitted finally on this issue and stated that under our adversary system of administration of justice, the Lower Court cannot choose one of the reliefs and remain silent on the other; and that the Lower Court cannot set

for the parties a case not brought before the said Court. Therefore, it was urged that this Court should resolve the issue in favour of the appellant.

The respondents counsel on the other hand, contended that the statement of claim contained five (5) reliefs each being independent and are neither conflicting nor contradicting. The learned counsel further argued that the learned trial judge after considering and evaluating all the evidence before him together with the arguments of the counsel to both parties, correctly granted the reliefs which he believed and found that the respondents/plaintiffs are entitled to, while he refused to grant the relief he felt from the evidence before the Court, that the respondents do not deserve.

The respondents counsel on his own part equally relied on the provisions of Sections 1 and 5 (1) of the Land Use Act, supra, which vests all the lands in each State of the Federation in the hands of the State Governors who shall hold them in trust and administer them for the use and common benefits of all Nigerians. The Governor is empowered by the provision of Section 5 (1) of the Land Use Act to grant Statutory Right

of Occupancy to any person for lawful purposes. The learned counsel to the respondents argued further, that every citizen in accordance with the above provisions, is only entitled to right of occupancy as the ownership of the lands has been vested in the State Governors. He supported his position with the case of Eleran v. Aderonpe (2008) 11 NWLR (Pt. 1097) 50 @ 76, where it was held that:
Ownership of land or title is vested in the Governor of the State under the Land Use Act. A person can only acquire possessory title otherwise known as Right of Occupancy under S. 40 of the Land Use Act.

He also supported his contention with the case of Kachala v. Banki (2006) 8 NWLR (Pt. 982) 364, where the Court held as follows:
The maximum interest in the land that is therefore preserved in the hands of private individuals is a right of occupancy. He submitted that the law is clear on the two (2) issues above; that claim for ownership cannot be granted by the Court to a private individual as that right is vested in the Governor, hence relief 42 (b) was not granted by the Lower Court to the respondents. Additionally, that the

Lower Court on the other hand granted relief 42 (c) by virtue of the provisions of Section 5 (1) of the Land Use Act. He submitted finally maintained that the Court can grant one of the reliefs while refusing to grant the other, hence it granted relief 42 (c) while refusing to grant 42 (b). He therefore urged this Court to resolve this issue in favour of the respondents.

Now, this issue will be considered vis-a-vis the arguments of the counsel to both parties. It is settled law that under the Nigeria legal regime, no single individual is vested with the ownership of any land in Nigeria, by virtue of Sections 1, 5 (1) and 40 of the Land Use Act, supra. For the purpose of emphasis, these provisions will be reproduced below Section 1 of the Act provides thus:
Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.
Section 5 (1) provides thus:
It shall be lawful for the

Governor in respect of land, whether or not in an urban area;
(a) To grant statutory rights of occupancy to any person for all purposes;
The implication of the above quoted provisions is that no individual or group of individuals is capable of claiming ownership over any land in Nigeria, but are only entitled to possessory right in accordance with the terms of the Right of Occupancy granted. This position has been given judicial recognition in numerous cases. See the case of Kachalla v. Banki (supra) (cited by the respondents counsel) where the apex court unequivocally held that: The maximum interest in the land that is therefore presents in the hands of private individuals is right of occupancy. This position has, equally been affirmed in plethora of cases.

Interestingly, in the instant case, both parties are in agreement on the issue of state ownership of all lands in Nigeria. However, their point of divergence lies as the appellant alleged, that relief 42 (b) touches on the declaration that the plaintiff own the land in dispute; and 42 (c) which borders on the declaration that the respondents are entitled to

Statutory Right of Occupancy are conflicting and inter dependent. I am of the firm and humble viewpoint that both prayers are independent of each other and not contradictory.

The appellant is completely at loss with respect to this issue, in fact, in my humble opinion, his arguments are self-defeating. The appellants counsel having opined that all lands are vested in the State and individuals are only entitled to right of occupancy, and citing the relevant provisions of the law in this, request has admitted, albeit, indirectly that of relief 42 (b) is ungrantable and the respondents are only entitled to the grant relief 42 (c), to which the Lower Court accordingly held. Thus, his alleged contradiction found no place of reckoning with me. It is a settled principle of law, that a judge to which a case is brought for adjudication has the discretional power to formulate issues along the line of the evidence adduced before as well as the legal arguments of both parties, in order to properly arrive at the justice of the case. Thus, the Lower Court acted properly within its power when that; On this issue it is important to note that even

through the parties claim to own the land, the issue is really who is entitled to the Right of Occupancy over the land. This is so elementary that it came as surprise to me when the defendant urged that the plaintiffs case be dismissed because they claim to be the owners of the land and also claim to be entitled to the right of Occupancy over the land See page 172 of the record of appeal.

I agree with the submission of the learned counsel to the respondents that, the Lower Court rightly dwelt on the two (2) reliefs in contention, and rightfully made its decision by indirectly dismissing the relief 42 (b) and went ahead to make its decision on relief, 42 (c). The Lower Court had the benefit of appreciating the evidence adduced before it, first hand, evaluate the same and reached a decision by declaring that the plaintiffs/respondents are the parties entitled to the Statutory Right of Occupancy. See pages 172 – 175, of the record of appeal.

Thus, having declared as done above, it gives without saying that the only party who is entitled to the exclusive possession of the land in dispute are the respondents, subject to the relevant provisions of

the Land Use Act, especially the provisions bordering on compulsory acquisition by the State Governor for public interest and common good. Therefore, the plaintiffs/respondents are deemed owners of the land in accordance with the laymans language. Flowing from the above, this issue is resolved against the appellant and in favour of the respondents.

ISSUE 3
Whether the learned trial judge was right when he held that there are two aspects of the dispute and whether or not there was a miscarriage of justice by the Lower Court when it held that the aspect which deals with the ownership of the surrounding land around the appellants house was the aspect presented by the appellant for determination, to which onus of proof is rested on him.

It was the contention of the appellants counsel that the issue of the land in dispute together with all the surrounding lands were all introduced by the respondents. He went further and reproduced the relevant portions of the respondents statement of claim, which introduced all the lands in dispute. The learned counsel further argued that the claim itself and counter – claim are both

regarded as separate actions and each party is expected to either succeed or fail on the strength of his own case. He cited the following cases in support of his argument,
1. General Yakubu Gowon v. Mrs. Edith Ike Okongwu (2003) 6 NWLR (Pt. 815) 38/48 – 49.
2. General Oil Ltd. & Ors. v. F. S. B. International Bank Plc (2005) 5 NWLR (Pt. 919) 579/591.
3. Dala Air Services Ltd. v. Sudan Airways Ltd. (2005) 3 NWLR (Pt. 912) 394/410.

Again, he argued, that the onus is squarely on the respondents to prove their title to the said land in dispute, the burden of which they have failed to properly discharge, in the light of their conflicting, contradictory and unreliable evidence. He went further to submit that, the respondents having admitted and with the said admission being in evidence, that the appellant was in possession, the presumption of ownership should have been invoked in the appellants favour in accordance with the provisions of Section 146 of the Evidence Act, 2011. The learned counsel submitted finally, that where in a claim for declaration of title to land the onus is on the plaintiff where the plaintiff and the

defendant are both claiming title to the same land. He supported his submission with the case of Ortserga Jija v. Tabithal Shande (2005) 9 NWLR (Pt. 931) 543/564.

The respondents counsel on his own part contended, that both the respondent and the appellants in their respective statement of claim and counter – claim sought for a declaration that they are the party entitled to the Statutory Right of Occupancy, with each tendering a survey plan in support of their diverse claims. The learned counsel to the respondents concurred with the appellants counsel that a claim and counter – claim are both separate and independent, each not depending on the other for survival. He cited the case of Jeric (Nig.) Ltd. v. Union Bank of Nigeria Plc (2000) 12 SCNJ 184 @ 201 where the Court held as follows;
A counter-claim is a separate, independent, and distinct action and the counter – claimant like all other plaintiffs in an action must prove his claim against the person counter – claimed against before obtaining judgment on the counter-claim

Relying on the cited authority, the learned counsel thereby submitted that both the

respondents and the appellant have the burden to prove their title to the land to which they are claiming.

The learned respondents counsel after a systematic analysis of the process in which the Lower Court reached its decision, submitted that the Lower Court duly considered the plaintiffs statement of claim and the appellants evidence in support of his counter – claim before it reached its decision, so that there was no miscarriage of justice resulting from the minor err of the Court saying that the aspect of ownership of the land was presented by the defendant. The learned counsel argued and submitted further, with reliance being placed on the case of Oyedeji v. Oyeyemi (2008) 6 NWLR (Pt. 1084) 484/493 – 494, that errors in judgment of a final court which are not substantial and fundamental as to lead to a miscarriage of justice cannot vitiate the judgment See Alli v. Aleshinloye (2000) 6 NWLR (Pt. 660) 177. Furthermore, he relied on the dictum of Justice A. G. Karibi Whyte, JSC, in the case of E. C. C. Amadi v. NNPC (2000) 6 SCNJ 1 @ 34, where he stated thus:
It seems to me that not all

errors result in miscarriage of justice. This miscarriage of justice only where there are substantial errors in adjudication with the resulted effect that the party relying on such errors may likely have a judgment in his favour

The learned respondents counsel on the strength of the above cited decision thereby submitted, that from the fact of this case and evidence led by the parties, there is no likelihood that the appellant can have judgment in his favour even without error. He submitted finally, that both the respondents and appellant have the burden to prove their acclaimed title to the respective land to which they are laying claims and the respondents having discharged their burden, the onus falls on the appellant to discharge his own, which he failed to discharge. The learned counsel thereby urged this Court to resolve this issue in favour of the respondents and uphold the judgment of the Lower Court.

Now, this issue will be duly resolved with consideration being given to all the salient arguments from the learned counsel on both sides together with the authorities cited thereon. It is a trite principle of law that parties are

bound by their pleadings. Thus, the pleadings of the parties form the basis or bastion upon which the Court will adjudicate upon the case as presented by the parties. The appellant in paragraph 6 (1) of his statement of defence pleaded as follows:
6:1 Sometime in the past Ejeliogu the ancestor of the plaintiffs lost all his children in infancy. When he consulted an oracle he was told that unless he move to another town his children will continue to die.
He approached the defendants grand father with whom he had established some friendship. The defendants grand father agreed to give him land. He then stayed with the defendants grand father and had the following children Uzowulu, Uchendu, Ejeliogu and Ofor.
Later Ogbuekwes children went back to their village but did not surrender the land.
One of Ejeliogus sons married a woman from Isu Umuabu from Aniedus compound. When she got to Umunnakwa and start having children. All her children started dying. An oracle was again consulted, and the husband was asked to take her to go and live with her people. The defendants grand father gave them the front of his

compound for farming purposes. In accordance with Oba Native law and custom female members of the family married outside is known as Nwaokpu and everything is done to satisfy Nwaokpu when ever she is in difficulty. This land was given on the condition that when ever the defendants family needs the land they are entitled to reclaim it. By letter written under his hand the contents of which are so clear dated 31st December, 1995 and head QUIT NOTICE, the defendant asked the Ejeliogu family to please kindly gave up their possession of his fathers land. They quietly left without any incident.
The defendant before delivering the notice to the said Ejeliogu family made photo copies of the document. A photo copy of the document is hereby pleaded and will be relief upon at the trial of this suit

Also, at page 118 of the record of appeal, the defendant affirmed the contents of the above paragraphs of the statement of defence and counter claim during his evidence-in-chief. The evidence was equally reiterated by the appellant under crossexamination. See page 120 of the record of appeal.

From the points illustrated above, it can be

seen without equivocation that the area of land in dispute to which the appellant sought to claim title, is the compound in front of his grand fathers house. The claim of the appellant was contained in paragraph 12 of the statement of defence and counter – claim and supported with Survey Plan No. EEO/AN/DO18/2006.
On this score, the learned trial judge made salient observations and stated thus:
there are two aspects of this dispute. The first has to do with the failure of the defendant to pay tributes on the land where his father built. That is the case presented by the plaintiffs. The other aspect deals with the ownership of the surrounding land around the defendants house. That is the dispute presented by the defendant for determination.
See page 172 of the record of appeal.

Also, by virtue of the averments contained in paragraph 3 (iii) of the statement of defence and counter – claim, which said paragraph inter- alia states as follows:
3 (iii) The Anyadiegwu family, the family of the defendant, the family of ANYADIKE and the family of Okafor who own property around the land in dispute, belong to

the same kindred and are related by blood otherwise called OFU IME NNE in Isu Village Oba

The combined reading of the various portions of the statement of defence and counter claim, together with the illustrated evidence on the record. It is glaring that the aspect presented for adjudication by the appellant before the trial court centered squarely on the surrounding land. Thus, at this juncture, I am in agreement with the submissions of the respondents counsel, that there was no injustice occasioned upon the appellant, who presented only the aspect of the ownership of the surrounding land around his house for adjudication.

In this vein and having earlier held that the claim and counter – claim are separate and independent actions, with each party having the burden to prove his case, I am thus of the considered view point, that the appellant failed to sufficiently discharge the onus placed on him when he had the opportunity. Thus, he is not and cannot lay claim to any miscarriage of justice having been meted against him based on his own failure to do the needful.

Furthermore, I totally disagree with the

submission of the learned counsel to the appellant, that the onus was on the respondents to solely prove their ownership of the land, in the instant case, where both the respondents and the appellant are claiming title to the same land. It is now a settled principle of law, that where the plaintiff and the defendant are claiming title to the same piece or parcel of land, the onus is on each party to prove his title on the preponderance of evidence or balance of probabilities. See Oyedeji v. Oyeyemi (2008) 6 NWLR (Pt. 1084) 484. I thereby also disagree with the submission of the learned counsel to the respondents that the onus is on the appellant to prove his ownership of the land, where the plaintiff and the defendant are both claiming title to the same land.

It is also worth reiterating, that the Courts have equally established various ways by which a party can prove his ownership or title to land. The ways are as follows:
1. By traditional evidence.
2. By production of documents of title.
3. By acts of person or persons claiming the land such as selling, leasing, renting out, or farming on it.
4. By acts of long possession and

enjoyment of the land, and
5. By proof of possession of connected or adjacent land.
See Christian Ewo & 7 Ors. v. Ogbodo Ani & 4 Ors. (2004) 3 NWLR (Pt. 861) 610/627.
The respondents have succeeded in establishing their ownership by acts of recent possession in accordance with the established position of the law See Kojo II v. Bonsie (supra). The appellant on his own part has failed to discharge the onus placed on him by law. Thus, in the instant case, there was no miscarriage of justice by the Lower Court when it held that the aspect which deals with the appellants house is the part presented by the appellant to which the appellant failed to successfully prove that he is entitled to. Therefore this issue is resolved in favour of the appellant.

ISSUE 4
Whether or not this appellant can interfere with the assessment of damages and cost awarded against the appellant in favour of the respondents.
Generally, a Court of competent jurisdiction has the inherent power to award damages, both special and general damages in respect to a wrong done to a party by an opposing party. See the case of UBA Plc v. BTL Industries

Ltd. (2006) 19 NWLR (Pt. 1013) 61.

With regards to this present case, Order 49 Rule 1 of High Court Civil Procedure Rules of Ananmbra State, 2006 Provides the criteria in which costs are to be awarded. It provides as follows:
Rule 1. (1) In fixing the amount of costs, the

principle to be observed is that the party who is in the right shall be indemnified for the expenses to which he has been necessarily put in the proceedings as well as compensated for his time and effort in coming to Court. The judge may take into account all the circumstances of the case including filing fees payable in the High Court and professional fees payable to the Legal Practitioners of the successful party.
Rule 1 (2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of delivering the judgment or making the order.

As can be seen from the above, the power of the trial judge to award general damage, and costs are discretionary. And the judge in exercising his discretion is expected to take into account the peculiar circumstances of each case.

There is no doubt from the record of appeal that twelve (12) witnesses testified on behalf of the parties respectively during the hearing or trial of this case at the Lower Court. A case of trespass was equally established before the Lower Court. See pages 177-178 of the record of appeal. Thus,

the respondent/plaintiffs were entitled to general damages under the law. And the Court in awarding the general damages made a proper analysis of the events that led to the acts of trespass and the loss suffered by the respondents before awarding the damages in the sum of 100,000.000. Thus, I hereby reject the contention of the learned counsel to the appellant that there was no basis upon which the damages were awarded in favour of the respondents.

Also, the learned trial judge while awarding costs gave consideration to all the efforts and expenses incurred by the respondents in prosecution this the case at the Lower Court, especially taking into cognizance the number of witnesses called and relying on the aforesaid provisions of the Anambra State Civil Procedure Rules, 2006 awarded the respondents costs in the sum of 82,000.00 against the appellant.

Gudi (2007) 2 NWLR (Pt. 1017) 91/111. The above stated position was equally and previously too, enunciated upon by the Supreme Court in the case of UBA Plc v. BTL Industries Ltd. (2006) 19 NWLR (Pt. 1013 ) 61 @ 143- 144. Where the apex Court per Tabai, JSC stated as follows:
It is settled law that general damages, usually awarded to assuage loss suffered by a plaintiff from the acts of a defendant, is a matter of inference based on the trial Courts discretion. And an appellate Court ought not to interfere with such award of damages unless:
a. Where the trial judge has acted under a mistake of law; or
b. Where he has acted in disregard of principles;
c. Where he has taken into account irrelevant matters or failed to take into account relevant matters or
d. Where he has acted under a misapprehension of facts;
e. Where injustice would result if the appellate Court does not intervene;
f. Where the amount awarded is either ridiculously low or ridiculously high that it must have been a whole erroneous estimate of the damage.

The learned counsel to the respondent alleged that there was no basis

upon which the general damages was awarded and thereby urged, that this Court should set aside the damages awarded by the Lower Court. It is my humble standpoint that, in line with section of the Evidence Act, 2011 which stipulates that a party who alleges or asserts a position is saddled with the responsibility of establishing the same. Thus, the onus on the appellant to establish that his case falls under any of the exceptions enumerated by the Supreme Court in the case referred to above.

After a careful perusal of the record of appeal, together with the arguments of counsel of both parties, I am of the humble opinion that the appellant has failed to discharge the onus placed on him and establish that his case falls under any of the exceptions mentioned above, thus enabling him to be deserving of this Courts exercise of discretion, which must be done judicially and judiciously. It is therefore my humble and firm viewpoint, that this issue too, should be resolved against the appellant.

Having resolved the four (4) issues crafted for determination of this appeal in favour of the respondents, it is therefore the resultant position that this

appeal lacks merit and it is accordingly dismissed. The decision of the Lower Court in Suit No. HID/5/2004 delivered on the 30th day of May, 2008 is thereby affirmed and or upheld by me. 50,000.00 costs is hereby awarded in favour of the respondents.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have seen the judgment just delivered by my learned brother MASSOUD ABDULRAHMAN OREDOLA JCA. I completely agree with him that the appeal has no merit and should be dismissed. I also abide by the order as to costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have had a preview of the judgment just delivered by my learned brother HON. JUSTICE MASSOUD ABDULRAHMAN OREDOLA, JCA. I agree with the reasons therein advanced to arrive at the conclusion that the appeal has no merit and it is hereby dismissed. I abide by the consequential orders made therein.

Appearances

Chief Ikenna Egbuna, with him, Mrs. Patricia Egbuniwe-Omatah, Chike Egbuna Esq. and Miss Chinelo Nkemnele For Appellant

AND

Emeka Anyaeletu, Esq. For Respondent