THINK VENTURES LTD & ORS v. SPICE AND REGLER LTD & ANOR (2020)

THINK VENTURES LTD & ORS v. SPICE AND REGLER LTD & ANOR

(2020)LCN/15598(CA)

In The Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, March 24, 2020

CA/A/657/2014

Before Our Lordships:

Abdu AbokiJustice of the Court of Appeal

Emmanuel Akomaye AgimJustice of the Court of Appeal

Mohammed Baba IdrisJustice of the Court of Appeal

Between

1. THINK VENTURES LIMITED 2. PAULAD CONTINENTAL MANAGEMENT LIMITED 3. PAUL ADAMS APPELANT(S)

And

1. SPICE AND REGLER LIMITED 2. DR. ADEDOTUN POPOOLA RESPONDENT(S)

RATIO:

When the court can be accused of raising issues suo motu

Principle of possession between two or more conflicting parties

It is settled that where two persons claim to be in possession of the same piece of land, the persons with the superior title is ascribed by law to be in possession. See ONIAH & ORS V. ONYIA [1989] 1 NWLR (PART 99) 514 AT 529; ODUBEKO V. FOWLER & ANOR [1993] 1 NWLR (PART 308) 637 AT 657; MOGAJI V. ODOFIN [1978] 4 SC.91 AT 96; ABDU ABOKI, J.C.A.

Principle of Trespass

Principle guiding counter claim

Although a counter claim is a separate or cross action from the main action, the two are usually heard together for convenience, with a defendant including a counter claim in his statement of defence, as permitted by Rules of Court, instead of filing an independent action against the same plaintiff. The parties in the counter claim would change sides; the plaintiff in the main suit becomes the defendant in the counter claim while the defendant in the main suit becomes the plaintiff in the counter claim. A counter claim may arise from the same transaction as in the main action and can for convenience, be determined together from the same set of facts and circumstances. In which event, main claim and the counter claim are heard together, with each respective party in the reversed role leading evidence in proof or in defence of the claim, the parties having joined issues in their pleadings. See OROJA & ORS V. ADENIYI & ORS (2017) LPELR41985(SC).
The whole purpose is to ensure speedy trial and to minimize the cost of litigation in order to enable the Court to pronounce a final judgment in the same proceedings. See NWAENANG V. NDARAKE & ORS (2013) LPELR-20720(CA).
A trial Court in this circumstance is not expected to consider the same question(s) arising for determination in the main claim and counter claim separately. See AGO V. FEDERAL MORTGAGE FINANCE LIMITED (2013) LPELR 22820 (CA); DIGITAL SECURITY TECHNOLOGY LTD & ANOR V. ANDI (2017) LPELR-43446 (CA). The trial Court is however expected to make separate pronouncements in respect of the main claim and the counter claim. ABDU ABOKI, J.C.A.

Award of Damages

Exemplary damages has been described as an intermix of general and punitive damages. While speaking on the nature of exemplary damages, the Supreme Court in ELIOCHIN (NIG) LTD & ORS V. MBADIWE (1986) LPELR-1119 (SC) held as follows:
“…The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit; exemplary damages, punitive damages; vindictive damages, even retributory damages can come into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.”
This Court in KABO AIR LTD V. MOHAMMED (2014) LPELR 23614 (CA), also said:
“Punitive damages which are also referred to as exemplary damages are intended to punish and deter blame worthy conduct and thereby prevent the occurrence of the same act in the future. They are awarded whenever the conduct of the defendant is sufficiently outrageous to merit punishment as where, for instance, it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law.”
Exemplary damages, otherwise known as punitive damages is usually awarded to meet the end of punishment. A claim for exemplary damages need not be expressly pleaded. It is sufficient if the facts pleaded supports the award of exemplary damages, and it is shown to have resulted from the malicious acts of a party. See CBN & ORS V. OKOJIE (2015) LPELR-24740 (SC). ABDU ABOKI, J.C.A.

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons and a Joint Statement of Claim, filed on the 30th of April 2012, the Respondents herein, as Plaintiffs at the High Court of the Federal Capital Territory, holden at Abuja, claimed the following reliefs, against the Appellants, as itemized at pages 11- 13 of the Record:
a. A DECLARATION that by virtue of grant and approval of Customary Right of Occupancy or Right of Occupancy dated 2nd February 1995 granted by the Abuja Municipal Area Council, in respect of the parcel of land lying and situate at Plot No. 152 Cadastral Zone 07 — 05 at Kubwa Commercial Layout, Kubwa Abuja, measuring 3,790.28 square meters, the 1st Plaintiff is the rightful and beneficial owner/allottee of all the interest in the accordance with the 1st Plaintiff’s extant right over Plot No. 152 Cadastral Zone 07 — 05 at Kubwa Commercial Layout, Kubwa Abuja, measuring 3,790.28 square meters.
b. A DECLARATION that the Plaintiffs vide the grant and approval of Right of Occupancy dated 2nd February 1995 granted by the Abuja Municipal Area Council over Plot No. 152 Cadastral Zone 07 — 05 at Kubwa Commercial Layout, Kubwa Abuja, measuring 3,790.28 square meters, the 1st Plaintiff is entitled to the peaceable and quiet enjoyment of all the parcel of land known and particularly described as Plot No. 152 Cadastral Zone 07 — 05 at Kubwa Commercial Layout, Kubwa Abuja, measuring 3,790.28 square meters.
c. A DECLARATION that the acts of the Defendant in demolishing and/or removing the fence and gate erected by the Plaintiffs’ as well as the unlawful entry and/or trespass into the land known and particularly described as Plot No. 152 Cadastral Zone 07 — 05 at Kubwa Commercial Layout, Kubwa Abuja, measuring 3,790.28 square meters, without the consent and authority of the Plaintiffs, constitutes unlawful entry and trespass and have occasioned damage on the Plaintiffs’ property.
d. AN ORDER OF PERPETUAL INJUNCTION directing the Defendant, to remove all structures unlawfully and illegally erected on the 1st Plaintiff’s property situate at Plot No. 152 Cadastral Zone 07 — 05 at Kubwa Commercial Layout, Kubwa Abuja, and/or for the Defendant to bear all costs directly and incidental to the removal of all such structures.
e. AN ORDER OF PERPETUAL INJUCTION restraining the Defendant, his officers, agents, servants, workmen, privies or howsoever called from entering or further entering and/or doing any acts or otherwise dealing with the Plaintiffs’ property situate at Plot No. 152 Cadastral Zone 07 — 05 at Kubwa Commercial Layout, Kubwa Abuja, measuring square meters, in violation of the affirmed, vested, extant and subsisting rights of the 1st Plaintiff over the parcel of land.
f. AN ORDER OF THE HONOURABLE COURT directing the Defendant to pay the sum of Fifty Million Naira only to the Plaintiffs on the footing of exemplary, aggravated and general damages for trespass as well as for the destruction of the Plaintiffs’ fence and gate on the land and for the exercise of power and discretion to the detriment and violation of the 1st Plaintiff’s extant right to interest over the 1st Plaintiff’s parcel of land situate at Plot No. 152 Cadastral Zone 07 — 05 at Kubwa Commercial Layout, Kubwa Abuja, measuring 3,790.28 square meters.
g. The full taxed costs of this action.

Upon receipt of the originating processes, the Defendants, by leave of the Trial Court, filed a Joint Statement of Defense and a counter claim, on the 1st of November, 2012, stating inter alia, that they were in undisturbed possession of Plot 152 Cadastral Zone 07-05, Kubwa commercial layout since 1995, that the Defendants applied and secured a building approval from development control, FCDA in August 2003, and commenced fencing thereon, and put a gate on the land. In 2011, the Defendants erected, out of the 6 units of 3 bedroom approved for them, two units of 3 bedroom up to lintel level, that the Development Control came to the plot, pasted a notice thereon and demolished the fence and the gate the same date, without any previous notice nor warning, that the 2nd Defendant was then a Staff of Development Control, and that the demolition was willfully carried out. Wherefore they counterclaimed against the Plaintiffs, as follows:’
a. The sum of Two million, Seven Hundred and Sixty Thousand Naira (N2, 716, 000.00) as special damages
b. General Damages of N5 million

Issues being joined, the matter proceeded to trial, and in its judgment delivered on the 22nd of May 2014, the Trial Court, per Hon. Justice Y. Halilu, entered judgment in favour of the Respondents. At Pages 135 — 137 of the Record, the Trial Court held inter alia:
a. A declaration that the acts of the Defendants in entering into Plot No. 152 Cadastral Zone 07-05 at Kubwa Commercial Layout, Kubwa Abuja measuring 3,790.28 square meters without the consent and authority of the Plaintiffs, as well as the Defendants’ acts of demolishing and/or removing the fence and gate erected by the Plaintiffs as well as the unlawful entry and/or trespass into the land known as Plot No. 152 Cadastral Zone 07-05 at Kubwa Commercial Layout, Kubwa Abuja measuring 3,790.28 square meters without the consent and authority of the Plaintiffs, constitutes unlawful entry and trespass and have occasioned damage on the Plaintiffs’ property, is hereby granted.
b. An Order of mandatory injunction directing the Defendants to remove all structures unlawfully and illegally erected on the 1st Plaintiff’s property situate at Plot No. 152 Cadastral Zone 07-05 at Kubwa Commercial Layout, Kubwa Abuja, and/or for the Defendant to bear all the costs directly and incidental to the removal of all such structures, is hereby granted.
c. An injunction restraining the Defendants, their officers, agents, servants, workmen, privies or howsoever called from entering or further entering and/or doing any acts or otherwise dealing with the Plaintiffs’ property situate at Plot No. 152 Cadastral Zone 07-05 at Kubwa Commercial Layout, Kubwa Abuja measuring 3,790.28 square meters, in violation of the affirmed, vested, extant and subsisting right of possession of the 1st Plaintiff over the parcel of land is hereby granted.
d. The sum of Three Hundred Thousand naira only, as exemplary damages in favour of the Plaintiffs.
The counter claim fails in view of the disconnected nexus vide the registered Power of Attorney and is hereby dismissed.”

The Appellants, dissatisfied with the judgment of the Trial Court, appealed to this Court, vide an Amended Notice of Appeal filed on the 10th of October 2014, upon Eight (8) Grounds.

In line with the Rules and practice of this Court, parties filed and exchanged briefs of arguments. At the hearing of this appeal on the 29th of January, 2020, VICTOR I. NNAJI ESQ., Counsel to the Appellants, in urging this Court to allow the appeal, adopted and relied on Appellants’ Amended Brief of Argument, filed on the 16th of April 2018, but deemed properly filed on the 3rd of October 2018. VICTOR JAMES ABASIAKAN-EKIM ESQ., Counsel to the Respondents, in urging this Court to dismiss the appeal, adopted and relied on the Respondents’ Brief of Argument, dated the 10th of October 2018, and filed on the 12th of October.

In the Appellants’ brief, learned counsel formulated four issues for this Court’s determination. They are:
1. Whether the trial Judge was right when he raised suo motu, the issue whether or not the Abuja Municipal Area Council has power to grant land in the FCT, and did not invite parties to address him on the issue and relied on same and resolved that the Defendants’ title is null and void and unconstitutional.
2. Whether from the totality of the evidence before the Court, the Plaintiffs have proved their case.
3. Whether the learned trial Judge was right when he struck out the Defendant’s counter claim.
4. Whether the learned trial Judge was right when he awarded exemplary damages of the sum of Three Hundred Thousand Naira (N300,000.00) against the Defendants.

Learned Counsel for the Respondents in the Respondents’ Brief of argument, adopted the four issues distilled by the Appellants. Parties are ad idem on the issues calling for determination. I also adopt same and shall be so guided.
ISSUE ONE
Whether the trial Judge was right when he raised suo motu, the issue whether or not the Abuja Municipal Area Council has power to grant land in the FCT, and did not invite parties to address him on the issue and relied on same and resolved that the Defendants’ titte is null and void and unconstitutional.

It is submitted for the Appellants that neither the Appellants nor the Respondents raised or pleaded any issue as to whether the Area Council has the capacity to allocate land in the FCT.

Learned Counsel argued that the trial Judge on its own raised the issue as to whether the Area Council has the authority to do anything with the lands within the FCT and without calling on parties to address him thereon, and based his judgment thereon and held that the title held by both the Appellants and the Respondents are null/void and unconstitutional.

He stated that Courts of law are enjoined not to raise issues that were not joined as issues in the pleadings, without asking the parties to address them on the issue. He called in aid the following cases, amongst others:
MOHAMMED v. HUSSEINI (1998) 11 – 12 SC 135;
ORIZU v. ANYAEGBUNAM (1978) 5 SC 21;
IBORI v. AGBI 2 SC (PT 1) 51;
CHITRA KNITTING & WEAVING MANUFACTURING CO LTD v. G.O AKINGBADE (2016) 5 SC 156.

Learned counsel maintained that the act of the Trial Court declaring null and void, both the Appellants’ and the Respondents’ title in respect of the land in issue, extricated their rights to the legal title in the suit, and thus occasioned a miscarriage of justice.
He urged this Court to so hold and resolve this issue in favour of the Appellants.

In their response, it is submitted for the Respondents that the contention of the Appellants, that the Trial Court raised the issue of the powers of the Abuja Municipal Area Council to grant land within the FCT is not only false, but unfair, taking into consideration, the totality of the evidence and the judgment of the Trial Court.

Learned counsel for the Respondents stated that the position taken by the Trial Court could be gleaned from the judgment of the Trial Court at pages 121 — 126 of the Record. He posited that it was the Appellants who raised the issue of whether or not the AMAC has power to make a grant of land in the FCT and that the issue was not raised suo motu by the trial Judge, as alleged by the Appellants. He invited this Court’s attention to the Appellants’ written address at page 89 of the Record.

It is the view of learned counsel for the Respondents that a party’s written address forms part of the proceedings of a Trial Court and the learned trial Judge was right in relying on the legal arguments as well as the judicial authorities brought to him by counsel, in arriving at his decision.
These cases were relied on:
RE HOLD INDUCTRIES LTD v. MAGREOLA & 2 ORS (2015) 3 4 SC (PT 11) 146;
IKENTA BEST NIG LTD v. ATTORNEY GENERAL, RIVERS STATE (2008) 6 NWLR (PT 1084) 612;

Conversely, learned counsel for the Respondents argued that the mere fact that an issue is raised suo motu by the Court without giving the adverse party an opportunity to react does not necessarily vitiate proceedings on appeal, as an appellate Court will declare proceedings a nullity, where the issue raised suo motu by the trial Court affects its jurisdiction and competence to adjudicate before it. He maintained that an appellate Court will feel reluctant to nullify proceedings, or set aside a particular process, where the issue raised is merely procedural and does not affect the jurisdiction and competence of the Court to adjudicate on the matter before it. He called in aid, these cases:
EHWRUDJE v. WARRI LOCAL GOVERNMENT COUNCIL & ANOR (2005) 7 NWLR (PT 924) 334;
CARIBBEAN TRADING & FIDELITY CORP. v. N.N.P.C (1992) 7 NWLR (PT 252) 161
He therefore urged this Court to resolve this issue in favour of the Respondents.

The settled position of the law is that a Court should not under our adversarial jurisprudence deal with issues or arguments not raised by the parties. The litigation process under our system remains that of the parties and not the Court and in this position, the Court also cannot grant relief not claimed by the parties in the pleadings. There are several decided cases on this issue. In the same token, a Court is duty bound to confine its decisions to issues raised by the parties as the Court has no power to formulate cases for the parties or to speculate on the evidence parties ought to proffer otherwise it might find itself entangled in the thicket of the dispute and from which it may be difficult to extricate itself. This notwithstanding, under our adjectival laws, a Judge can only be accused of raising issues suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising an issue suo motu if the issue, was raised by both parties or by any of the parties in the proceedings.
In the case ofENEKWE vs. INTERNATIONAL MERCHANT BANK OF NIGERIA LTD & ORS (2006) LPELR- 1140 (SC) the Supreme Court had this to say on the subject;
“A Judge has the right in our adjectival law to use particular words and phrases which, in his opinion are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for Counsel to castigate him or accuse him of raising issues suo motu. A Judge can only be accused of raising issues suo motu if the issue was never raised by any of the parties in the litigation…it is the position of the law that an Appellate Court is bound by the record of Appeal. It cannot go outside the record and raise issue suo motu. If the Court raises an issue suo motu parties must be invited to address the Court on the issue.”
See also
ALI v. SULE (2017) LPELR 42139 (CA), OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT. 684) 298;
In the case of UKAEGBU vs. NWOLOLO (2009) LPELR-3337 (SC), the apex Court also opined:
“It is now firmly established that an Appellate Court, will and can on its own motion, consider a substantial point of law arising on the records, even though it is/was not included as one of the Grounds of Appeal, nor referred to by/an Appellant at the hearing before a lower Court.”
In the instant case, the Trial Court at page 121 paragraph 2 of the Record had this to say:
“As aptly stated by both Counsel for the Plaintiff and the Defendant, and the enduring evidence and title documents, both Plaintiff and Defendant came about the subject matter of litigation by virtue of allocation of conveyance of provisional approval given by the Abuja Municipal Area Council… The question of urban and non urban land does not apply to land within the Federal Capital Territory Abuja (FCT) and I must state on the authority of ONA Vs ATENDA (2000) 1 NWLR (PT 656) 244 that no area council within the FCT has the authority to do anything with the lands within the Federal Capital Territory, unless and until the Act of the National Assembly is passed to truly define the administrative and political structure of the Area Councils within the Federal Capital Territory….From the foregoing therefore, it is clear that no Area Council Chairman/Administrator within the Federal Capital Territory has the power to allot land to any person or group of persons as no land within the Federal Capital Territory exists as non urban land where customary title could be conferred…”
The Appellant herein has vigorously argued that the Trial Court, in the above excerpts of its judgment, raised the issue of whether the area councils in the FCT can allot land in the FCT. With due respect to learned counsel for the Appellant, this issue was raised in its written address at page 89 of the Record, to wit:
“It is only the Minister of the Federal Capital Territory that has been delegated by the President to allocate and vest interest in land within the Federal Capital Territory… lt shows then that parties are in pari delicto and that the defendants have been in possession of Plot No 152 Kubwa Commercial Layout to the exclusion of other claimants. Black’s Law Dictionary 6th Edition defines pari delicto as when parties are in equal rights in an illegal affair…”
It is clear that by their own making the Appellants had brought the issue of who can allocate land in the FCT, into the arena in their written address and so are not in a position to query the Trial Court in referring and considering them. This is because a judge can only be accused of raising an issue suo motu if the issue was never brought up by any of the parties or both parties in the litigation. The Trial Court in evaluating the evidence before merely observed that no area council can allocate land in the FCT, except the Minister of the FCT. This much the Appellants herein stated in their written address.
They cannot now be heard to complain. A trial Court is entitled to evaluate the evidence before it and give it any probative value it deserves. See NWANCHOR & ANOR v. AMIARA & ORS (2018) LPELR 44672 (CA)
The Appellants in the present appeal raised the issue that it is only the Minister of the FCT that has been delegated by the President to allocate and vest interest in land within the FCT. The Trial Court was entitled to refer to that issue and pronounce on it, which it did. This did not amount to the Trial Court taking raising an issue suo motu.
Consequently, this issue is resolved against the Appellants.

ISSUE TWO
Whether from the totality of the evidence before the Court, the Plaintiffs have proved their case.
In their submissions on this issue, learned counsel for the Appellants referred this Court to Paragraphs 8, 11, and 13, of the Statement of Claim, and Paragraphs 5, 12, 13 and 14 of the Joint statement of Defence and Paragraph 4 of the Counter claim and argued that from Paragraph 8 of the Plaintiff’s joint statement of claim, the Respondents did not plead any act of exclusive possession on the plot of land.

Learned counsel for the Appellants restated the trite principle of law that exclusive possession is at the heart of all actions in trespass, seeking injunction and unless a Plaintiff is in actual possession of the land, his action cannot succeed, and can be struck out in limine. He relied on the case of ABOTCHE KPONUGLO v. ADJA KODADJA (1931) 2 WACA 24, and submitted that the Respondents did not plead nor adduce any element of exclusive possession on the land, neither did they plead their acts of possession, how, when it put any fence or gate on the land, having admitted that at the time of filing their processes, the Appellants had built a fence, a gate and two units of two bedroom on the land.

Learned counsel for the Appellants made reference to Paragraphs 5 and 11 of the Respondents’ joint statement of claim and maintained that it is the Respondents’ duty to discharge and make such proof strong enough to support their pleadings. He relied on these authorities:
SECTIONS 135, 136, 137(1) OF THE EVIDENCE ACT, 2011;
AJANI v. LADEPO (1986) 3 NWLR (PT 28) 276;
SAMUEL v. ADEDEJI (1997) 8 NWLR (PT 517) 447; ADEPOJU v. OKE (1999) 3 NWLR (PT 594) 154;
OJOMO v. IBRAHIM (1992) 12 NWLR (PT 631) 415

He submitted that the Respondents were never on the land, and built nothing whatsoever on the plot of land, and that the Appellants were first on the land and that the Trial Court failed to properly evaluate the evidence of the Respondents. He invited this Court’s attention to Paragraphs 3, 8, 12 and 13 of the Respondents’ joint statement of claim.

It is further contended for the Appellants that in a case for the declaration of title, the Plaintiff is expected to succeed on the strength of his own case, and not on the weakness of the Defendant’s case. He argued that there was no prima facie case made out by the Respondents for the Court to hold on to, nor was there any supporting evidence to their claim, to entitle them to judgment. He placed reliance on these cases:
(PT 586 KODILINYE v. ODU (1935) WACA 336; WEST CONSTRUCTION CO. LTD v. BATALHA (2006) 4 SC (PT 1) 1;
AKPORIAYE v. OKUMAGBA (1999) 1 NWLR) 271.

He maintained that the Trial Court did not properly evaluate the evidence adduced at the trial by the Respondents, to ascertain whether or not the Respondents made out a prima facie case of possession before it suo motu raised the issue of whether AMAC has a right to issue allocation of Area Council Land, and ruled that the title documents of the Appellants are null and void, thus shutting out the Appellants.

It is his view that there is a duty on a Court to examine all evidence before it, as the Court cannot pick and choose which evidence to evaluate. The case of SANUSI v. AMEYOGUN (1992) 4 NWLR (PT 237) 527-8, was relied on.
This Court is urged to resolve this issue in favor of the Appellants.

In response to the above, it is submitted for the Respondents that the Respondents led credible and uncontroverted evidence to establish exclusive possession. Learned counsel for the Respondents referred this Court to Paragraphs 1 – 11 of the Plaintiff’s Joint statement of claim, where it was averred unequivocally that the Respondents have always been in exclusive and undisturbed possession of the subject matter without any disturbance until the Appellants unlawfully entered the land. He also invited this Court’s attention to a portion of the Trial Court’s judgment at pages 128 — 129 of the Records, and stated that the judgment of the Trial Court established the fact that the Trial Court arrived at its decision after it had considered all the evidence tendered before it and resolved the issue in accordance with the law.

Finally, learned counsel for the Respondents, while relying on the case of MILITARY GOVERNOR OF ONDO STATE & 5 ORS v. KOLAWOLE & ORS (2008) 4 — 5 SC 158, urged this Court resolve this issue in favour of the Respondents, and hold that this Court cannot set aside the decision of the Trial Court or interfere with its findings, as the Appellants herein have failed to show from the Records, the errors of law committed by the Trial Court to warrant and interference of the decision of the Trial Court.

It is settled that where two persons claim to be in possession of the same piece of land, the persons with the superior title is ascribed by law to be in possession. See ONIAH & ORS V. ONYIA [1989] 1 NWLR (PART 99) 514 AT 529;
ODUBEKO V. FOWLER & ANOR [1993] 1 NWLR (PART 308) 637 AT 657;
MOGAJI V. ODOFIN [1978] 4 SC.91 AT 96;

In the appeal at hand, both parties claim to be in possession of the land in dispute.

Paragraph 8 of the Respondents’ joint statement of claim:
The Plaintiffs aver that some persons unknown to the Plaintiffs without lawful authorization and/or consent of the Plaintiffs entered into the 1st Plaintiff’s land lying at Plot No.152 Cadastral Zone 07 -05 at Kubwa Commercial Layout, Kubwa, Abuja measuring 3,790.28 square meters in line with the survey plan and demolished the fence and gate already constructed on the land by the Plaintiff’s as well as started digging the earth and constructing a residential structure/building on the land, contrary to the purpose for which the parcel or plot of land was allocated to the 1st Plaintiff and without the consent and authority of the Plaintiffs.
Paragraph 9
The Plaintiffs aver that on the discovery that some persons have entered and/or trespassed into the land without the consent and authority of the Plaintiffs, the Plaintiffs immediately wrote the Director, Development Control of the Federal Capital Development Authority by the Plaintiffs’ letter dated 1 st February 2012, titled “NOTICE OF TRESPASS ON SPICE & PEGLER LTD PLOT 152, CAD ZONE 07 – 05 KUBWA COMMERCIAL LAYOUT”. The Plaintiff shall at the hearing rely on the acknowledged copy of the letter, showing evidence of receipt by the Director, Development Control of the Federal Capital Development Authority. A copy of the acknowledged copy of the letter is annexed as Annexure SPL.
Paragraph 10
The Plaintiffs aver that by the content of the Plaintiffs letter dated 1st February, 2012, the Plaintiffs complained to the Director, Development Control of the Federal Capital Development Authority of the trespass into the Plaintiffs’ property and as well sought the assistance of the Department of Development Control to remove the illegal developers and trespassers on the land, the subject matter of this suit.
Paragraph 11
Consequent on the foregoing, the Plaintiffs aver that the officials of the Department of Development Control of the Federal Capital Development Authority visited the Plaintiffs’ land and removed the fence erected by the Defendants and placed a STOP WORK ORDER on the land. The Plaintiffs, through the 2nd Plaintiff also laid a complaint at the Kubwa Divisional Police Headquarters respecting the unlawful entry and trespass into the Plaintiffs’ land.

In response to the above, the Appellants in Paragraphs 12, 13 and 14 of their joint statement of defence stated as follows:
12. The Defendants deny demolishing any of the Plaintiffs’ fence and gate and states that the Defendants were never reported for such criminal acts to any law enforcement agency.
13. The Defendants state that they were the 1st to enter the plot lawfully, dredged the site and fenced the entire plot.
14. The Defendants further aver that they have equally commenced development and have built and roofed two structures in the said plot 152 Kubwa commercial layout Cadastral Zone 07 — 05 Abuja, before the demolition of the Defendants’ property.

The oral evidence adduced at the trial from both sides is as follows:
PW1 (Dr. Adetolan Popoola), is the 2nd Respondent herein. It is his story during the examination in chief, that the 1st Respondent, represented by the 2nd Respondent, was granted conveyance of provisional approval by the Abuja Municipal Area Council in respect of all the land situate and lying at Plot No. 152 Cadastral Zone 07 -05 at Kubwa Commercial Layout Kubwa, Abuja measuring approximately 3,600 square meters. That the issuance of the Right of Occupancy was captured as Right of Occupancy No. FCT/BZTP/LA/1339, Top measure 3, 290.28 square meters on ground as land was demarcated by beacons PB 7921, PB 8229, PB 8022 and PB 2982. That the Respondents on the 6th April, 2007, submitted all relevant documents to Abuja Geographical Information Systems, for regularization. That unknown persons trespassed into the land, and that on the discovery, the 1st Respondent and other Directors of the 1st Respondent immediately wrote the Director, Development Control of the Federal Capital Development Authority and the letter was duly acknowledged. That acting on the letter of the Respondents, the officials of the Department of the Development Control of the Federal Capital Development Authority visited the land and removed the fence erected by the Defendants and placed a “Stop Work Order”‘. That the Respondents suffered a great loss as a result of the acts of the Appellants. The following documents were tendered and admitted in evidence:
1. Conveyance of provisional approval dated the 2/2/95, as Exhibit A;
2. TDP in respect of Right of Occupancy No. FCT/B2TP/LA/MISC/1339, as Exhibit B;
3. AGIS acknowledgement dated the 6/4/07, as Exhibit C
4. Photocopy of a letter written to FCDA by the Respondents as Exhibit D.

During cross examination, he stated thus:
Q: Are you aware that Kubwa Commercial Layout has a lot of allottees?
A: I am not aware
Q: Was the land allocated to you directly?
A: lt was not allocated to me but to Spice and Pegler Ltd.
Q: I then will be correct to say that the 1st Plaintiff name ought to be in the list of the allottees?
A: The list of allottees should not take precedence over the allotment
Q: Did you report the demolition of your fence to the Police?
A: No

For the Appellants, Paul Adams 3rd Appellant adopted his witness statement on oath and stated that the 1st Appellant is the original allottee of Plot No. 152 situate at Kubwa Commercial Layout, Kubwa Abuja by virtue of a conveyance of the provisional approval issued by the Abuja Municipal Area Council, Abuja. That the said allocation to the 1st Appellant was transferred to the 2nd Appellant for a consideration of (Three Million Naira) only. That the Appellants did not enter the said plot 152 illegally and had no cause to seek for the consent of the Respondents as the said Plot 152 Cadastral Zone 07 – 05 Kubwa Commercial Layout Abuja rightly and lawfully belongs to the Appellants. That the Appellants fence was demolished by the Department of Development Control and Resettlement, prompted by the false alarm raised by the Respondents. That the Respondents have not fulfilled the requirements of both the Abuja Municipal Area Council for grant of Statutory Right of Occupancy, and that the name SPICE & PEGLER LTD is not in the list of allot-tees in Kubwa Commercial Layout Cadastral Zone 07 — 05. That the signature of the Secretary, Rural Land Use Adjudication Committee, contained in the Respondents annexure is not genuine. That the Appellants have commenced development and have built and roofed two structure in the said plot. The following documents were tendered by the Appellants:
1. Document dated 15th June, 1995, as Exhibit DA, rejected
2. Conveyance of provisional Approval dated 15th June, 1995 admitted as Exhibit DB
3. AGIS acknowledgement letter dated the 31st December 2009, admitted in evidence and marked Exhibit DC;
4. Receipt No. 12146 issued in favour of Paul admitted in evidence and marked Exhibit DD;
5. Form CAC 7 admitted in evidence and marked Exhibit DE
6. Three Nos. receipts dated 15th November, 2011, 6th November 2011 and 16th November 2011 tendered and admitted as Exhibit DF.
Under cross examination, he stated thus:
Q: What is the date on Exhibit DB
A: 15th June, 1995
Q: When was 2nd Defendant incorporated?
A: 2009
Q: You claim Dev. Control of the FCDA came to demolish some of the property?
A: Yes
Q: And you said in your evidence that it is the same development control that gave you approval to build on the land?
A: Yes
Q: Was there any correspondence between you and development control complaining about what they did?
A: Non before the demolition

It is indisputable that the Respondents’ suit was founded in trespass and injunctions. The evidence before the Trial Court amply shows that whereas the Respondents claimed their title to the land through Exhibit A (a conveyance of provisional approval dated the 2nd February 1995), and Exhibit B, (a TDT in respect of Right of Occupancy No FCT/BZTP/LA/MISC/1339), the Appellants claimed their title to the land through a Power of Attorney donated to them by the 1st Appellant, which was rejected in evidence by the Trial Court as being inadmissible to prove title, having not been registered.

In a claim for trespass, what is primarily in issue is the possession of the land in dispute. Any form of possession, so long as it is clear and exclusive and exercised with intention to possess, is sufficient to support an action of trespass against a wrongdoer. A mere trespasser who goes into occupation cannot however, by the very act of trespass and without acquiescence give himself possession against the person whom he has ejected. See KOPEK CONSTRUCTION LTD V. EKISOLA (2010) LPELR 1703.
In the old case of AMAKOR V. OBIEFUNA [1974] 3 S.C 67, the apex Court at pages 75-76, said:
“It is trite law that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession on the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrong-doers except a person who could establish a better title. Therefore, anyone other than the true owner, who disturbed this possession of the land can be sued in trespass and in such an action it is no answer for the defendant to show, that the title to the land is in another person.”
The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title. See NWOSU V. OTUNOLA [1974] 1 ALL NLR. (PART 1) PAGE 533.
The Respondents pleaded that they were in possession of the Plot in dispute at the time the Appellants came and demolished their fence and gate and proceeded to illegally put up some structures in the said plot. (See Paragraphs 1 — 11 of the Joint Statement of Claim). The Respondents, having shown their prior possession of the land in dispute, the onus shifted to the Appellants to show that they had better title. They failed to do that. The Trial Court was therefore right when it held the Appellants liable in trespass. At page 134 of the Record, the Trial Court had this to say:
“The law is trite that a trespasser who takes legal possession of land can maintain an action in trespass against the whole world except the original owner who has the valid title to the land. The Plaintiffs’ title documents having not emanated from the authority required, could not have conferred any valid title on the Plaintiffs. However, in view of the Plaintiffs’ evidence of possession, having constructed a fence and gate which were demolished by the Defendants, and in view of the fact that the Defendants did not have any better title to the said land, the Plaintiffs, who though are also trespassers in law are legally grounded to be protected…”
I endorse this decision of the Trial Court and resolve this issue against the Appellants.

ISSUE THREE
Whether the learned trial Judge was right when he struck cut the Defendants’ counter claim.
It is submitted for the Appellants that a counter claim is a separate and independent claim and that where a counter claim is attached and/or incorporated to a statement of defence, a Plaintiff is duty bound to file a reply in defence to it otherwise the Court in an appropriate case can enter judgment for the defendant. The case of YAHAYA v. CHUKWURA (2002) FWLR (PT 87) 732, was relied on.

Learned counsel for the Appellants argued that the Trial Court’s rejection of the Appellants’ power of attorney does not extricate the hearing and determination of any of the equitable rights in the Appellants’ counter claim.

This Court is urged to hold that the refusal of the trial Judge to hear the Appellants’ counter claim occasioned a serious miscarriage of justice on the Appellants, and resolve this issue in favour of the Appellants.

In their response, it is submitted for the Respondents that the Trial Court was right to have struck out the counter claim of the Appellants.

Learned counsel for the Respondents contended that the filing of a counter claim and the failure of the Respondents to file a defence will not automatically propel the Trial Court to give judgment in favor of the Appellants, as counter claimants, unless and until a party has led credible evidence to establish his claim.

He stated that in the instant case, the Appellants’ witness at the Trial Court was fully cross examined and it became clear that the purported allocation was done in 1995, while the 2nd Appellant, a limited liability company, was incorporated in 2009.

He maintained that the 2nd Appellant was not in existence, when the subject matter was purportedly allocated to it by the AMAC, and the Appellants were therefore unable to prove their counter claim.
This Court is urged to so hold, and resolve this issue in favour of the Respondents.

It is established law, and in consonance with fair hearing that where a defendant counter claims, the counter claim must be adequately considered in the judgment of the trial Court, and the trial Court must either uphold or dismiss it. See EBIBOKEFIE & ORS v. TUME & ORS (2018) LPELR 45620 (CA), ALHAJI & ORS. VS. NYAKO (2018) LPELR 44482 (CA)
In the instant appeal, the Counter claim was dismissed by the Trial Court. The Appellants’ complaint is that the Counter claim was not independently considered on its merit and pronounced upon by the trial Court, occasioning a miscarriage of justice.
Although a counter claim is a separate or cross action from the main action, the two are usually heard together for convenience, with a defendant including a counter claim in his statement of defence, as permitted by Rules of Court, instead of filing an independent action against the same plaintiff. The parties in the counter claim would change sides; the plaintiff in the main suit becomes the defendant in the counter claim while the defendant in the main suit becomes the plaintiff in the counter claim. A counter claim may arise from the same transaction as in the main action and can for convenience, be determined together from the same set of facts and circumstances. In which event, main claim and the counter claim are heard together, with each respective party in the reversed role leading evidence in proof or in defence of the claim, the parties having joined issues in their pleadings. See OROJA & ORS V. ADENIYI & ORS (2017) LPELR41985(SC).
The whole purpose is to ensure speedy trial and to minimize the cost of litigation in order to enable the Court to pronounce a final judgment in the same proceedings. See NWAENANG V. NDARAKE & ORS (2013) LPELR-20720(CA).
A trial Court in this circumstance is not expected to consider the same question(s) arising for determination in the main claim and counter claim separately. See
AGO V. FEDERAL MORTGAGE FINANCE LIMITED (2013) LPELR 22820 (CA);
DIGITAL SECURITY TECHNOLOGY LTD & ANOR V. ANDI (2017) LPELR-43446 (CA). The trial Court is however expected to make separate pronouncements in respect of the main claim and the counter claim.
In the instant case on appeal, the main claim and the counter claim arose out of a dispute over ownership of the same piece of land. At page 137 of the Record, the Trial Court held thus:
“Counter claim fails in view of the disconnected nexus vide the unregistered Power of Attorney, and is hereby dismissed.”
The question is: Was the learned trial Judge right in dismissing the Appellants counter claim having regard to the appellants’ pleadings and evidence?
I will answer this issue without equivocation in the positive. Having considered my holding above, particularly on issue 1 where I pronounced that the learned trial Judge was right in holding that the Respondents can maintain an action in trespass against the Appellants. Since it is the same land the Appellants are laying claim to in their counter claim I cannot hold that the Respondents can maintain an action in trespass against the Appellants and then turn round to uphold the Appellants counter claim.
In UWAGBOE OSAGIE & ORS V IGBINOSUN OBAZEE & ORS (2013) LPELR – 21994 (CA) this Court while pronouncing on whether a counter-claim would fail where the main claim succeeds held, as follows: –
“As already stated by me, Appellants are very correct regarding their analysis of a counter-claim. The Appellants would however appear to have seriously misapprehended the manner of a trial in an action with a counter claim to the extent that they would appear to believe that evidence adduced in a case with a counter claim is compartmentalized or categorized into “evidence in the main suit” and “evidence in the counter claim” as it were. All that is required in a trial on pleadings is for the trial Court to identify the matters on which parties have joined issues and call for resolution and used the evidence adduced before it on the said issues… to resolve the issues in dispute…”
The evidence adduced before the Trial Court in respect of the main claim is the same evidence used in the resolution of the counter-claim since the land in dispute is the same. The evidence adduced in the main claim is not separate from the evidence used in the counter claim. They are not compartmentalized into evidence for the main claim and evidence for counter claim. Therefore since the evidence adduced in the main claim is upheld then it follows that the counter-claim (though a separate claim that can stand on its own) is left bereft of evidence to support it. Therefore it is my finding on this issue that the learned trial Judge was right in dismissing the Appellants’ counter claim. I find also that the dismissal of the Appellants’ counter claim by the Trial Court did not occasion a miscarriage of justice.
I therefore resolve this issue against the Appellants.

ISSUE FOUR
Whether the learned trial Judge exercised his discretion well when he awarded exemplary damages of the sum of Three Hundred Thousand Naira (N300,000.00) against the Defendants.
It is submitted for the Appellants that exemplary damages, being punitive in nature, is at the discretion of the Judge, after the Judge has considered the nature of the acts and conducts of the defendants and the oppressiveness and recklessness involves, and which facts must be pleaded and proved. The case of ELIOCHIN NIG LTD v. MBADIWE (1986) 1 NWLR (PT 14) 47, was relied on.

Learned counsel for the Appellants posited that the Respondents’ evidence before the Trial Court was not sufficient to warrant the exercise of the discretion of the learned trial Judge in awarding exemplary damages, against the Appellants.
This Court is urged to so hold, and resolve this issue in favour of the Appellants.

In conclusion, this Court is urged to resolve all the issues raised in this appeal in favour of the Appellant, set aside the decision of the Trial Court and grant all the reliefs sought by the Appellants.

For the Respondents, it is submitted that the Trial Court rightly awarded exemplary damages to the Respondents. Learned counsel for the Respondents listed the instances where a Court can award exemplary damages against a Defendant, and stated that the Respondents herein met with all the conditions to entitle them to the award of exemplary damages.
Commended this Court to the following cases: OBINNA v. COP (2007) 11 NWLR (PT 1045) 411;
ODIBA & ANOR v. MUEMUE (1999) 10 NWLR (PT 622) 174;
ODIBA v. AZEGE (1998) 9 NWLR (PT 566) 370;
ONAGORUWA v. IGP (1991) 5 NWLR (PT 193) 593

This Court is urged to hold that the finding of the Trial Court is not perverse, and resolve this issue in favour of the Respondents.

In conclusion, this Court is urged to resolve all the issues raised in this appeal against the Appellants, dismiss the appeal with costs, and affirm the decision of the Trial Court.

In the final analysis, having resolved the four issues distilled by the Appellants against them, I find no merit in this appeal and it is hereby dismissed. The judgment of the Trial Court delivered on the 22nd of May, 2014, is hereby affirmed.
I make no order as to costs.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE ABDU ABOKI, PJCA, I agree with the reasoning, conclusions and orders therein.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Abdu Aboki, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

V. I. Nnaji For Appellant(s)

Victor Abasiakan Ekim, with him, Florence Etukakpan, Esq. For Respondent(s)

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