TAJUDEEN SULEMAN & ORS v. ADE UKANA & ORS
(2019)LCN/12674(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/B/339/2013
RATIO
COURT AND PROCEDURE: PRELIMINARY OBJECTION
“The law is that a preliminary objection not argued orally, or to which no reference is made, before the hearing of an appeal is deemed abandoned. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248; Onochie v. Odogwu (2006) 6 NWLR (pt. 975) 65; Agagu v. Mimiko (2009) 7 NWLR (pt. 1140) 342 and Fayemi v. Oni (2010) 17 NWLR (pt. 1222) 326. The rationale for hearing a preliminary objection before the substantial appeal is because ‘a preliminary objection seeks to provide an objection before the actual commencement of the thing objected to. In other words, the primary purpose of every preliminary objection is to determine the proceedings in limine and thereby dispense with the need to go into the suit, application or appeal?. Per Augie, JSC in Peoples’ Democratic Party & Anor. v. Chief (Sir) Victor Umeh & Ors. (2017) 12 NWLR (pt. 1579) 272 at 293 – 294. See also Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439) 637; Onyemeh v. Egbuchulam (1996) 5 NWLR (Pt. 448) 255; Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166; Abiola v. Olawoye (2006) 13 NWLR (Pt. 996) 1 and Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
COURT AND PROCEDURE: JUDGMENT WRITING
“Judgment writing is a matter of style of an individual Judge. The fact that in his style, the learned trial Judge decided to quote some of the arguments contained in the respondents’ written address did not, by that reason alone, deprive the appellants of their right to fair hearing.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
EVIDENCE: WHETHER COUNSEL’S ADDRESS CAN SUBSTITUTE EVIDENCE
“This is very important, especially as it is settled law that an address of counsel is not a substitute for evidence and/or it cannot take the place of evidence in any judicial proceedings. On the principle that the address of counsel is not a substitute for evidence, see Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt. 67) 787; Mallam Yusuf Olagunju v. Chief E.O. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Sikiru Olaide Okuleye v. Alhaji Rasheed Adeoye Adesanya (2014) 12 NWLR (Pt. 1422) 221 and Karimu Sunday v. The State (2018) 1 NWLR (Pt. 1600) 251.
Without much ado, I resolve this issue in favour of the respondents against the appellants.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1.TAJUDEEN SULEMAN
(Substituted for Alhaji Sadiku Suleman (Alias Alade) (deceased)
2. NASIRU SULEMAN
3. SIKIRA SULEMAN
4. PETER SUNDAY AJAROSE
(Substituted for Sunday Abanita (Deceased)
(For himself and on behalf of and on the authority of Eziakuta (Ireshiogbani Branch) Family of Uffah Quarters, Igarra) Appellant(s)
AND
1. ADE UKANA
(Substituted for Chief Ukana Ogarashi deceased)
2. CHIEF MAJEBI AGUMAGU
3. FOLUNSHO UKANA
(Substituted for John Ukana
(deceased)
(FOR THEMSELVES AND ON BEHALF OF ESHIMOZOKO FAMILY OF UFFAH QUARTERS, IGARRA) Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment):
The respondents were the claimants in Suit No. HIG/2/1990 instituted in the High Court of Edo State, Igarra Judicial Division, but determined in Benin Judicial Division, sitting at Benin City.
In their 4th amended statement of claim (spanning pages 22 to 31 of the record of appeal), the respondents claimed against the appellants the following reliefs:
(1) A declaration that the plaintiffs are entitled to the statutory right of occupancy in the said land the dimensions and abuttals whereof are shown on plan No. VPS/BD90/004 dated 8th May, 1990 filed in this suit by the plaintiffs.
(2) N500,000.00 general damages for the defendants’ trespass to the said land.
(3) Perpetual injunction restraining the defendants whether by themselves, their agents or servants or otherwise howsoever from continuing or repeating any acts of trespass on the said land.
The 1st, 2nd and 3rd appellants (as the 1st, 2nd and 3rd defendants) filed a joint statement of defence and counter-claim in which the 1st appellant counter-claimed as follows; the 1st defendant counter-claims against the plaintiffs jointly and severally (in the capacities stated above) the sum of N400,000.00 (Four Hundred Thousand Naira) as special and general damages.
The 4th appellant filed a separate statement of defence. The 1st, 2nd and 3rd appellants’ joint statement of defence and counter-claim is on pages 11 to 14 of the record of appeal; while the 4th appellant’s amended statement of defence covers pages 18, 19 and 20 of the record. All the appellants’ denied the respondents’ claim.
The trial Court heard the case and, in a reserved judgment delivered on 17//05/2013, it made a declaration in favour of the respondents, granted an order of perpetual injunction against the appellants, and the sum of N100,000.00 was awarded as general damages for trespass in favour of the respondents and against the appellants. The 1st appellants’ counter-claim was dismissed. This appeal is against that decision.
In the amended appellants’ brief filed on 23/01/2018, 8 (eight) issues were formulated for determination:-
(i) Whether the failure of the learned trial Judge to give any consideration whatsoever to the Appellants’ counsel’s Written Address at the close of evidence before him did not amount to denial of fair hearing which resulted in miscarriage of justice to the Appellants.
(ii) Whether the learned trial Judge did not demonstrate a complete misapprehension of the issues joined in the pleading and the evidence adduced before him with regard to the identity of the land in dispute, when he held that the parties were ad idem in respect thereof and consequently failed to consider and determine the common boundary between the Respondents and the 4th Appellants, which on the pleadings was the main issue in dispute between the parties in this regard.
(iii) Whether the learned trial Judge was not in error in failing to consider and/or accept as proved 4th Appellant’s pleadings, which was not denied by the Respondents, that the common boundary between them (4th Appellant and the Respondents) was determined and agreed in 1983 to be the Igarra/Auchi Road.
(iv) Whether the learned trial Judge was right in granting the Respondents all, or any of, the reliefs sought by them without evaluating the evidence adduced before him at all.
(v) Whether the learned trial Judge was right in holding that the Respondents properly pleaded and proved their root of title to the disputed land.
(vi) Whether the learned trial Judge was right, in the circumstances of this case, in relying on the rule in Kojo v. Bonsie to hold that the Respondents had proved their title to the disputed land.
(vii) Whether the learned trial Judge was right in awarding N100,000.00 general damages against the Appellants in favour of the Respondents.
(viii) Whether, having regard to the pleadings and evidence in this case the judgment is supported by the totality of the evidence and not perverse.
The respondents filed an amended brief on 24/01/2018 in which they raised and argued a preliminary objection. The respondents also framed four issues for determination of the appeal as follows: –
1. Whether the appellants are not in error in complaining that the learned trial Judge did not consider at all their counsel’s written address.
2. Whether the learned trial Judge did not properly consider and resolve the issues of the identity and boundaries of the land in dispute to warrant the appellants’ complaint that there was no evaluation of evidence and/or that the decision is perverse.
3. Whether the respondents did not prove the ownership of the land in dispute.
4. Whether the award of N100,000.00 general damages by the learned trial Judge for trespass to the land in dispute is not justifiable.
When this appeal was heard on 13/11/2018, the respondents did not move the Court in respect of their preliminary objection. The said preliminary objection, having not been argued before the appeal was heard, is deemed abandoned by the respondents and it is hereby struck out.
The law is that a preliminary objection not argued orally, or to which no reference is made, before the hearing of an appeal is deemed abandoned. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248; Onochie v. Odogwu (2006) 6 NWLR (pt. 975) 65; Agagu v. Mimiko (2009) 7 NWLR (pt. 1140) 342 and Fayemi v. Oni (2010) 17 NWLR (pt. 1222) 326.
The rationale for hearing a preliminary objection before the substantial appeal is because ‘a preliminary objection seeks to provide an objection before the actual commencement of the thing objected to. In other words, the primary purpose of every preliminary objection is to determine the proceedings in limine and thereby dispense with the need to go into the suit, application or appeal?. Per Augie, JSC in Peoples’ Democratic Party & Anor. v. Chief (Sir) Victor Umeh & Ors. (2017) 12 NWLR (pt. 1579) 272 at 293 – 294. See also Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439) 637; Onyemeh v. Egbuchulam (1996) 5 NWLR (Pt. 448) 255; Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166; Abiola v. Olawoye (2006) 13 NWLR (Pt. 996) 1 and Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421.
In respect of the substantive appeal, I have carefully considered the issues identified by the parties and I am of the view that the issues framed by the respondents adequately encompass the issues distilled by the appellants and the germane issues in this appeal. Therefore, I adopt the four issues formulated by the respondents to determine this appeal. However, the respondents? first issue will be reframed to be as follows:
‘1. Whether the trial Court failed to consider the written addresses of the appellants’ counsel and the failure amounted to a denial of fair hearing occasioning a miscarriage of justice.’
Learned counsel for the appellants referred to the written addresses of the appellants’ counsel on pages 32 – 35 and 61 – 72 of the record, the written reply address of counsel on pages 87 – 92 of the record of appeal and the written address filed by the respondents’ counsel which is on pages 73 – 86 of the record of appeal. Learned counsel contended that while the trial Court quoted, with approval, arguments from the respondents’ counsel’s written address, it ‘simply ignored those arguments’ in the written addresses of the appellants’ counsel. Referring to the case of Obodo v. Olomu (1987) 18 NSCC 824 at 831, learned counsel for the appellants submitted that the trial Court ?is bound to hear and consider the final addresses of the appellants and the failure by the trial Court to consider the final written addresses of the appellants ‘will amount to denial of fair hearing to the appellants’ and a violation of the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The learned counsel for the respondents, however, disagreed with the submissions of the learned counsel for the appellants. He contended that the trial Court adopted the two issues formulated in the written address of the learned counsel for the 4th appellant in its judgment and duly considered all written addresses of the parties. He further submitted that since all parties filed their final written addresses in the trial Court, there was no breach of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that the case of Obodo v. Olomu (supra) is not applicable to this case.
The record of appeal shows that: –
(i) The trial Court concluded hearing or taking of evidence on 25/10/2011. page 59;
(ii) The counsel for the 4th defendant, (now 4th appellant) filed his written address on 27/01/2012. pages 61 – 72;
(iii) The plaintiffs’ counsel (now respondents) filed a written address on 07//11/2012 pages 73 – 86.
(iv) The 4th defendant (now 4th appellant) filed his written reply on 10/12/2012. pages 87 – 92;
(v)The 1st – 3rd defendants (now 1st – 3rd appellants) filed their written address on 19/04/2012. pages 32 – 35; and a written reply on 09/01/2013. pages 95 – 96;
(vi) Parties adopted their respective written addresses on 13/02/2013 and, thereafter, the case was adjourned to 07/05/2013 for judgment. pages 59 – 60;
(vii) Judgment was however delivered on 17/05/2013. pages 97 – 127.
In its judgment, after summarizing the evidence adduced by the parties, the trial Court stated on pages 113 to 114 of the record of appeal, inter alia, as follows:
‘I will identify two from the issues framed by all counsel in the matter issues for determination through their written addresses, to wit
(a) Whether the claimants established and proved sufficiently the identity of the land in dispute.
(b) Whether the claimants have established their title to the land in dispute on a preponderance of evidence to justify their claims before the Court.(Underlining mine for emphasis)
The underlined portion of the judgment of the trial Court, reproduced above, shows that the trial Court considered the written addresses of ‘all counsel in the matter’ before arriving at the two issues which it finally resolved in favour of the respondents.’ The mere fact that the trial Court laid more emphasis on the arguments contained in the written address of the respondents’ counsel does not mean, and should not be taken to mean, that it ignored the arguments contained in the written addresses of the appellants’ counsel. The emphasis of the trial Court was merely to justify its conclusions and not to deprive the appellants of their right to fair hearing.
The trial Court gave all the parties the opportunity to file and exchange their written addresses, and the parties duly exercised their rights by filing their respective written addresses, which the trial Court eventually considered in the manner it deemed fit.
Judgment writing is a matter of style of an individual Judge. The fact that in his style, the learned trial Judge decided to quote some of the arguments contained in the respondents’ written address did not, by that reason alone, deprive the appellants of their right to fair hearing.
This is very important, especially as it is settled law that an address of counsel is not a substitute for evidence and/or it cannot take the place of evidence in any judicial proceedings. On the principle that the address of counsel is not a substitute for evidence, see Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt. 67) 787; Mallam Yusuf Olagunju v. Chief E.O. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Sikiru Olaide Okuleye v. Alhaji Rasheed Adeoye Adesanya (2014) 12 NWLR (Pt. 1422) 221 and Karimu Sunday v. The State (2018) 1 NWLR (Pt. 1600) 251.
Without much ado, I resolve this issue in favour of the respondents against the appellants.
ISSUE NO. 2
‘Whether the learned trial Judge did not properly consider and resolve the issues of the identity and boundaries of the land in dispute to warrant the appellants’ complaint that there was no evaluation of evidence and/or that the decision is perverse.’
This issue covers Issues 2 and 3 distilled by the appellants.
The kernel of the appellants’ argument on this issue is that the natural features of the boundaries of the land in dispute were not pleaded by the respondents and that the respondents’ ‘description of the land in dispute is most inadequate and clearly devoid of any precision’.
Learned counsel for the respondents, on the other hand, submitted that the respondents? ?copiously proved the identity and boundaries of the land in dispute.”
The law is settled that the identity of land in dispute can be proved by: –
(1) The plaintiff adducing such oral description of the land that a surveyor, acting on the strength of that description, can make a plan of the land; or
(2) The plaintiff filing a plan showing the land with its boundaries.
See Udofia v. Afia (1940) 6 WACA 216; Kwadzo v. Ajei (1944) 10 WACA 274 and Odunze v. Nwosu (2007) 12 NWLR (Pt. 1050) 1.
It is also settled law that before the identity of land in dispute can be raised as an issue, the party raising it must have denied knowledge of the location of the land in his pleading. See Adenle v. Olude (2002) 18 NWLR (Pt. 799) 413 and Ogunyanwo v. Oluwole (2009) 16 NWLR (pt. 1167) 391.
In this case, the respondents, as the plaintiffs in the trial Court, pleaded in paragraphs 14, 15, 16 and 17 of their 4th amended statement of claim as follows:-
14. The Plaintiffs aver that part of their said land which has been vested in them and in their possession and control over the years is the land in dispute in this case.
15. The Plaintiffs aver that the land in dispute together with its abuttals and dimensions is more particularly delineated in plan No. VPS/BD90/004 dated 8th May, 1990 filed in this suit by the plaintiffs with their statement of claim. The Plaintiffs shall rely on the plan at the hearing of this case.
16. The Plaintiffs aver that the land in dispute is but part of their vast land at Uffah Quarters in Igarra within the jurisdiction of this Honourable Court which land the Plaintiffs have occupied, held and controlled peaceably under the customary law of Igarra as owners thereof.
17. Side by side with the land in dispute is an uncompleted petrol station owned by one Edward Leramah, a member of the plaintiffs’ family. The said piece of land containing the uncompleted petrol station was granted to the said Edward Leramah by the elders of Eshimozoko family of Uffah Quarters, acting on behalf of that family, several years ago and is verged blue and marked ?C? in the Plaintiffs? plan No. VPS/BD/90/004 filed in this suit.
In their statements of defence spanning pages 11 to 14 and 18 to 20, respectively, the appellants did not deny knowledge of the location or boundaries of the land in dispute. As a fact, it is on record that in the joint statement of claim covering pages 11 to 14 of the record of appeal, the 1st ? 3rd appellants merely averred generally in paragraphs 2, 3, 4, 5 and 6 as follows:
2. That paragraphs 4, 5, 6, 7, 8, 8 (sic), 10,11,12,13 and 14 of the statement of claim are denied by 1st – 3rd Defendants, and Defendants put the plaintiffs on the strictest proof thereof.
3. 1st – 3rd Defendants admit paragraph 15 of the plaintiff’s Statement of Claim.
4. The 1st Defendant shall adduce evidence at the trial of this action that he is the absolute owner of all that land situate and lying along Etuno Grammar School Road Igarra verged Green on survey plan N. MWC/791/77 of 11/6/77 filed along with this statement of Defence.
5. 1st Defendant avers that he is also the owner in possession and occupation of all that land situate and lying along Igarra/Auchi Road Igarra and Verged Green in Survey plan N. MWC/790/77 dated 11/6/77.
6. The 1st – 3rd Defendant deny paragraphs 16, 17,18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, and 29 of the plaintiffs statement of claim, and shall at the trial require very strict proof of these averments from the plaintiffs.
It is also on record that in the 4th appellant’s amended statement of defence, on pages 18, 19 and 20 of the record of appeal, he made a general averment in paragraph 4 thereof as follows:
4. 4th Defendant denies paragraphs 1, 4, 10, 11, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 23(a), 24, 25, 26, 27, 33, 34, 34(a), 34(b), 35, 36, 37, 38, 39, 41, 42, 43, 45, 46,47, 49, 49(d), 49(e), 49(f), and 49(g), 50 and 51 in so far as any facts therein averred relate to him and will at the trial put the Plaintiff to strictest proof thereof.
At the trial, the respondents tendered in evidence Plan No. VPS/BD90/004 made on the 8th day of May, 1999, which was pleaded in paragraph 15 of their 4th amended statement of defence, as Exhibit ‘A’.
In Exhibit ‘A’, the area of land in dispute is clearly delineated with its boundaries duly marked.
The law, as settled by decisions of this Court and the Supreme Court, is that where a plaintiff pleads and serves a survey plan showing clearly the boundaries and features of the land in dispute, a defendant who disputes either the boundaries or the features must make a clear and specific traverse. A mere general traverse by the defendant is not enough or sufficient. By the Court admitting in evidence a survey plan pleaded by a plaintiff, where there is no clear and specific traverse, the boundaries and features of the land in dispute are deemed to have been sufficiently proved. See Elias v. Omo-Bare (1982) 5 SC 25; Omoregie v. Idugienwaye (1985) 2 NWLR (Pt. 41) 60 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.
Having regard to the pleadings and the evidence before it, the trial Court was absolutely right in its decision in respect of the identity of the land in dispute.
I hereby resolve this issue in favour of the respondents and against the appellants.
ISSUE NO. 3
Whether the respondents did not prove the ownership of the land in dispute.
This issue takes of issues 4, 5, 6 and 8 of the issues identified by the learned counsel for the appellants.
I have read the arguments of the parties on this issue, just as I have done in respect of all the other issues in this appeal. For the sake of brevity, the summary of the appellants’ arguments on this issue is as follows:
‘That the learned trial Judge, without evaluating and making any findings of fact on the evidence before him, and suo motu raising issues not pleaded or canvassed before him on the traditional history of Respondents root of title, was also wrong in arbitrarily holding that the Respondents adequately proved same notwithstanding that they did not plead the name of their alleged founding fathers and the devolution of the land down to them; and notwithstanding that the Respondents did not prove the native law and custom of Igarra under which they claimed ownership and possession of the land in dispute.’
On behalf of the respondents, it was contended that the respondents established their title to the land in dispute, as required by law, and that the trial Court properly evaluated the evidence before it in arriving at its decision.
The ways of proving title to land have been stated and settled in a litany of decided cases. It is now well-settled that there are five judicially recognized ways of proving title to land. The five ways, which are disjunctive, of proving ownership of land are:-
(i) By traditional evidence.
(ii) By production of documents of title.
(iii) By proving acts of ownership, numerous and positive enough to warrant an inference that the person is the true owner.
(iv) By proving acts of long possession and enjoyment of the land.
(v) By proof of possession of adjacent or connected land.
See Idundun v. Okumagba (1976) 9 ? 10 SC 224; (1976) 1 NMLR 200; Piaro v. Tenalo (1976) 12 SC 31; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460; Salisu v. Mobolaji (2016) 15 NWLR (Pt. 1535) 242.
The burden on a plaintiff in an action for declaration of title to land is to establish his claim by preponderance of evidence. See Dr. Samuel U. Isitor v. Mrs Margaret Fakarode (2018) 10 NWLR (Pt. 1628) 416.
A plaintiff in a case of declaration of title to land is entitled to the declaration sought on the strength of his case and not on the weakness of his opponent’s case. See Kodilinye v. Odu (1935) 2 WACA 336; Atilade v. Atilade (1968) 1 All NLR 27; O.K.O. Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393 and Mr. Moses Benjamin v. Mr. Adokiye Kalio (2018) 15 NWLR (Pt. 164) 38.
As stated earlier in this judgment, the trial Court identified two issues for determination of the action before it. The second of the two issues, for the avoidance of doubt, was:
‘(b) Whether the claimants have established their title to the land in dispute on a preponderance of evidence to justify their claims before the Court.’
In respect of the above issue, it is necessary to quote the trial Court, per Hon. Justice A.N. Erhabor, where His Lordship stated on pages 120 to 123 of the record of appeal, inter alia, as follows:
‘In paragraphs 17, 18, 19, 20 and 21 of the 4th further amended statement of claim, the claimants pleaded the numerous acts of ownership they have exercised, grants to various persons for housing and farming carried out by their numerous grantees on their vast land of which the land in dispute forms a part. Particularly in paragraph 17 of the aforesaid statement of claim, claimants averred that side by side with the land in dispute is an uncompleted petrol station owned by one Edward Leramah a member of the claimants’ family. The said piece of land containing the uncompleted petrol station was granted to the said Edward Leramah by the elders of Eshimozoko family of Uffah Quarters acting on behalf of the family several years ago and marked ‘C’ in the plaintiffs’ plan No. VPS/BD/90/004 filed in this suit. The 3rd plaintiff who testified as P.W.1 mentioned various person to whom parcels of land were granted like Chief Imasealu, Sunday Egure, Dr. Rex Ajayi and so on. One of the ways of proving ownership of land as earlier highlighted is poof of contiguous land to the land in dispute that would warrant the inference that ownership of the contiguous land is also the owner of the disputed land. There is evidence claimant family have been harvesting various crops like cashew and mangoes and selling them.
P.W. 3 can be regarded as an independent witness. He is Okumagu Sunday. He is from the Andibba family of Igarra; which is not the claimant’s family. He said they have common boundary with the claimants. He was quite unequivocal that the disputed land is on claimant;s land and he was not shaken during cross-examination. Proof of issues in a Court case is on a balance of probabilities or preponderance of evidence. The standard applied is usually the imaginary scale and the part to whom the pendulum or scale tilts. This is not determined by the quantum of evidence or number of witnesses called but by the quality, relevance, potency, cogency and significance of the adduced evidence in Court. See Mogaji v. Odofin (1978) 4 SC 01 at pp. 94 – 96 Nwabuoku V. Ottih 1961 1 ANLR p. 487, Odulaja V. Haddad 1973 11 SC 357, Boshali V. Allied commercial Exporter Ltd. 1961 AWLR p. 917. The traditional history pleaded by the claimants was not as regards to their particular Eshiniozoko family but in respect of the entire Igarra people. This can be deciphered from paragraphs 2 to 9 of the 4th amended statement of claim. See also paragraphs 11 – 13 of the aforesaid statement of claim. The defendants did not join issues on this general history of the Igarra people especially on the issue of being uphill before they came down from the hill to farm. See paragraph 7 and 8 of the 4th defendant’s amended statement of defence. Thus, the few averments on traditional history with regard to Igarra people made by the 4th defendants affirms, validates, support and endorses the claimants pleading on that issue.
The above findings and decision of the trial Court, which I accept as correct, show clearly that the trial Court adequately evaluated the evidence before it and that the respondents proved their claim as required by law.
The evidence on record also shows that the respondents also proved their entitlement to the land in dispute by acts of enjoyment and possession of the land, for example, as stated by the trial Court on page 124 of the record of appeal, by ‘the granting of pieces or parcel (sic) of lands to various grantees as pleaded and stated in evidence.’
To save time, I resolve this issue against the appellants.
ISSUE NO. 4
‘Whether the award of N100,000.00 general damages by the learned trial Judge for trespass to the land in dispute is not justifiable.’
The trial Court found that the appellants, particularly the 1st appellant, trespassed on the land in dispute. Since there was trespass to the land, which had been rightly found by the trial Court to belong to the respondents, the award of N100,000.00 as general damages for trespass was justified in the circumstances.
Without any ado, I also resolve this issue against the appellants.
CONCLUSION
Having resolved all the issues in this appeal against the appellants, I hold that this appeal lacks merit and it ought to be dismissed.
For all the reasons given in this judgment, this appeal is hereby dismissed.
The sum of N150,000.00 (One Hundred and Fifty Thousand Naira Only) is hereby awarded as costs against the appellants and in favour of the respondents.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the advantage of a prior perusal of the leading judgment just delivered by my learned brother, MOORE A.A. ADUMEIN JCA.
I agree with the judgment and the reasons adduced therein by his Lordship. I also hold that this appeal lacks merit and it is hereby dismissed.
I abide by the consequential orders made in the leading judgment including that of costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, JCA. I am in full agreement with the reasoning and conclusion therein.
I also resolve all the issues in favour of the Respondent and dismiss this appeal. I abide by the order as to cost in the leading judgment.
Appearances:
J. O. Umakhihe, Esq. For Appellant(s)
C. D. Bello, Esq.For Respondent(s)
