THOMAS v. KORKOR & ANOR
(2021)LCN/15630(CA)
In The Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, November 25, 2021
CA/PH/477/2015
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Muhammed Lawal Abubakar Justice of the Court of Appeal
Between
OYEINMIEBI THOMAS APPELANT(S)
And
1. GESIKEME DANNY KORKOR 2. INIEBI GLOBAL LIMITED RESPONDENT(S)
RATIO
FACTORS TO BE ESTABLISHED BY A PARTY WHO RELIES ON TRADITIONAL HISTORY TO PROVE HIS TITLE TO LAND
However, a party who relies on traditional history to prove his title must plead and lead evidence to establish the following, namely:
i. Who founded the land,
ii. How the land was found; and
iii. Particulars of intervening owners.
See Alli vs. Alesinloye (2000)6 NWLR (Pt. 660) 177 at 220-221, paras. H-D; Mogaji vs. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) 393 at 429.
In addition, the pleadings and evidence must not only make a consistent sense but must link the party affirmatively with the traditional history relied upon. See Owoade vs. Omitola (1988) 2 NWLR (Pt. 77)413. PER ELECHI, J.C.A.
WHETHER OR NOT A NOTICE OF APPEAL MUST BEAR THE NAMES OF THE PARTIES CONTAINED IN THE JUDGEMENT APPEALED AGAINST
It is trite that a Notice of Appeal must bear the correct names of parties as stated in the judgment appeal against. See Total Upstream (Nig) Ltd vs. A.I.C. (2016) 2 NWLR (Pt. 149)467 at 489, Odedo vs. Oguebu (2015) 13 NWLR (Pt. 1476) 220. PER ELECHI, J.C.A.
THE POSITION OF LAW ON FACTOR THAT MUST BE SATISFIED BEFORE A COURT ASSUMES JURISDICTION OVER A MATTER
It is trite that before a Court assumes jurisdiction over a cause or matter, the subject matter of the case must be within its jurisdiction and there must be no feature in the case which prevents the Court from exercising its jurisdiction. See Prof. A.D Olutola vs. University Of Ilorin (2003) 3 M.J.S.C. P. 151@ P.169, Paras C-F. (S.C). In the instant appeal, the 1st respondent on record was not a party in the suit at the lower Court. PER ELECHI, J.C.A.
THE POSITION OF LAW ON WHERE A RESPONDENT GIVE NOTICE OF PRELIMINARY OBJECTION IN HIS BRIEF OF ARGUEMENT
On the Preliminary Objection, this Court in Olagbaju vs. Fatai Abaas (2011) LPELR-5721 (CA) that restated the law and held that: the law is that where a Respondent gives Notice of Preliminary Objection in his brief of argument, he must at the hearing before the appellant adopts his brief, ask and obtain the leave of Court to raise his Preliminary Objection. If he fails to do this and the Appellant adopts his brief, the appeal has been heard and the issue of Preliminary Objection no longer arises. That is the law and the same equally applies to cases of applications made by way of motion on notice, the person giving the notice of objection must ensure that the same is raise and argued in limine without giving his opponent the chance to first argue his motion and adopting the written address. But this unfortunately is not the position taken in this matter when counsel for the Respondent on the 23/9/21 “acquiesced” so to say and sat down there and watched the application being moved argued and the written address of the applicant being adopted. It is too late at this point in time to raise and argue the points received by the Preliminary Objection and he will be deemed to have abandoned his objection. See Ajibade vs. Pedro (1992)5 NWLR (PT. 241) 257; Etukudo & Anor vs. Akpan (2013) LPELR-20414 (CA). PER ELECHI, J.C.A.
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Bayelsa State, Oporoma Judicial Division in Suit No: OHC/25/2013 delivered on the 24th June, 2015 by Honourable Justice M.A. Ayemieye wherein, the learned trial judge granted the 1st Respondent’s claim for declaration for trespass and damages against the Appellant and the 2nd Respondent.
Being dissatisfied with the said judgment, the Appellant filed a notice of appeal on 8th July, 2015 containing four grounds of appeal.
The case of the Appellant as disclosed both in his statement of defence/counter-claim, his testimony as DW5 and evidence of his other four witnesses (DW1-DW4) and the documents tendered in support are as follows that:
a. The land allegedly trespassed on was a fallow land that belongs to Tumubiri compound which the Appellant is a co-head with one Chief Kingboy Appah and that the Appellant leased the land to the 2nd Respondent on behalf of himself and other members of Tumubiri Compound.
b. Appellant denied that 1st Respondent is from Tumubiri compound but rather traditionally 1st Respondent is from Oweikorogha but he is residing at Otuobiri Compound in Anyama Ijaw and had no land in Tumubiri Compound.
c. Appellant denied the existence of any custom in Tarakiri native law that entitles an individual family to enter into an area of land standing in the name of his family or compound and lay exclusive claim to it without the family or compound partitioning same to the individual. Even when an individual is farming on any portion of the family or compound land, the individual cannot lay exclusive and absolute claim to the said portion of the family land except the portion is partitioned to him by the family or compound. CW2 evidence supports this position.
d. Appellant stated that the land in dispute was not partitioned to the 1st Respondent by the Tumubiri compound and 1st Respondent admitted this fact but rather claimed that the land was partitioned to him by Tumubiri compound through his deforestation and cultivation of the land.
e. Appellant counter-claimed for general damages and the professional fee agreed to be paid to his counsel and tendered the receipt issued to him for the part payment he made which was admitted and marked Exhibit “DE 1”.
The case of the 1st Respondent (Claimant at the lower Court) as captured both in his Amended Statement of Claim, evidence in Court through his six witnesses (CW1-CW6) and documents tendered in support of the evidence is that:
a. He is the owner of the land in dispute held to have been trespassed upon having deforested and cultivated on Tumubiri compound/family land in consonance with Tarakiri custom, tradition and practice that any portion of a virgin family land deforested and cultivated by any member of that family becomes the excusive and bonafide owner of the portion of the family land so deforested and cultivated. Tumubiri family is in Anyama Ijaw which is one of the five (5) towns in Tarakiri clan in Southern Ijaw Local Government Area of Bayelsa State.
b. He is a member of Tumubiri Family in Anyama Ijaw and stated that he is the great, great grandson of Tumu, the Progenitor of Tumubiri family of Anyama Ijaw and founder of the land in dispute. He later put forward another version in his reply that he is from both Anyama and Oweikorogha in Tarakiri clan.
c. He traced his genealogy on how he became a member of Tumubiri but did not make any attempt to give detailed history on how the land devolved on him from the settled founder, Tumu, including the particulars of intervening owners to prove his title.
d. He called CW1, HRH. King George Agbabou Week, to testify on his behalf that the is from Anyama Ijaw and Oweikorogha, and the existence of the alleged Tarakiri custom that any portion of a virgin family land deforested and cultivated by any member of the family becomes the exclusive owner of the portion of the family land so deforested and cultivated but CW1 admitted being a relative of the 1st Respondent and admitted the Appellant’s history of the 1st Respondent being a member of Oweikorogha and Tumubiri compound /family.
e. He called CW2, living Ikissa, to give evidence on the alleged Tarakiri custom that family lands are not shared but family members acquire their individual portions by deforestation and cultivation; but under cross-examination, CW2 admitted that his land which he claimed to have acquired in consonance with the said Tarakiri custom and practice of deforestation and cultivation as applicable to Anyama Ijaw was actually very recently shared or partitioned to him by his family and he does not have boundary with the Claimant.
The case of the 2nd Respondent as seen both in its Statement of Defence and evidence of its only witness DW6 and Exhibit “DE3” is that:
a. It had a contract to dredge sand and stock pile along Anyama Ijaw axis and its representative, DW6, met the Community Development Committee Chairman of Anyama Ijaw Community to assist them secure a piece of land to be used as its sand dump site. The Community Development Committee (CDC) Chairman of Anyama Ijaw community the 2nd Respondent’s representatives met was Seidogha Sariki, a brother of the 1st Respondent and son of the original Claimant.
b. The CDC Chairman, Sediogha Sariki, took from the 2nd Respondent’s Representative the sum of N1,200,000.00 (One Million, Two Hundred Thousand Naira) only as Anyama community homage and directed the DW6 to a member of Tumubiri compound for the payment of the money for the lease of the land the 2nd Respondent identified to be used as the dump site, the land held to have been trespassed upon. The CDC Chairman, Seidogha Sariki, did not know that his father owns the said land and did not tell the 2nd Respondent’s representative, DW6, that his own father owns the land.
c. DW6 confirmed from an elder of Tumubiri Compound, B.S. Jonah that Tumubiri compound owns the land and consequently negotiations and consultations were had with the representatives of Tumubiri compound and N3,000,000.00 (Three Million Naira) only was paid to the Appellant on behalf of Tumubiri Compound for the lease of the land based on which Exhibit “DE3” was executed.
d. DW6 denied that there were crops on the land, rather, the land was an abandoned farmland.
At the trial, the 1st Respondent, as Claimant called (6) witnesses and tendered exhibits. The Appellant called (5) witnesses and tendered two (2) exhibits marked Exhibits DE-1 and ”DE-2”. The 2nd Respondent called one witness and tendered one exhibit marked Exhibit “DE3”. At the conclusion of trial and addresses of counsel to the parties, judgment was entered in favour of the 1st Respondent on 24/6/2015. It is this judgment Appellant lodged this appeal against.
ISSUES FOR DETERMINATION.
It is submitted that arising from the grounds of appeal lodged against the judgment of the lower Court, are the following issues for determination, namely:
i. Whether, considering the pleadings and the totality of the evidence adduced by the parties in this case, the learned trial judge of the lower Court was not wrong in law in declaring the Appellant liable for trespass and thereby set aside the lease agreement (Exhibit “DE3”) and award damages against the Appellant? (Ground 1,2,3,5, and 6).
ii. Whether the Appellant is not entitled to his counter-claim? (Ground 4).
ARGUMENT
ISSUE ONE
“WHETHER, CONSIDERING THE PLEADINGS AND THE TOTALITY OF THE EVIDENCE ADDUCED BY THE PARTIES IN THIS CASE, THE LEARNED TRIAL JUDGE OF THE LOWER COURT WAS NOT WRONG IN LAW IN DECLARING THE APPELLANT LIABLE FOR TRESPASS AND THEREBY SET ASIDE THE LEASE AGREEMENT (EXHIBIT “DE3”) AND AWARD DAMAGES AGAINST THE APPELLANT?” (GROUNDS 1, 2, 3, 5 AND 6).
It is the Appellant’s main contention that the admissible evidence on record clearly did not justify the conclusion and decision of the lower Court and the learned trial judge was therefore wrong in law in entering judgment in favour of the 1st Respondents as he did. Learned Appellant counsel stated that the 1st Respondent Principal claim is for a declaration for trespass, According to him, trespass to land is the slightest disturbance to the possession of land by a person who cannot show a better right to possession, though trespass to land is hinged on exclusive possession, once a defendant as in this case, claims to be the owner of the land alleged to have been trespassed upon title is put in issue and the claimant must show a better title for him to succeed in a declaration for trespass. See Adeyefa vs. Bamigboye (2014) All FWLR (Pt. 755)259 at 270, Amakor vs. Obiefuna (1974) ALL NLR (Pt.1)109.
It was then contended that title was therefore put in issue in this case when the 1st Respondent pleaded in paragraph 13 of his Amended Statement of Claim that the subject of this suit is part of his land which he deforested and cultivated at Oruama Bush. While the Appellant pleaded in paragraph 6 of his Statement of Defence that the said land belongs to Tumubiri Compound which he is co-head. The 1st Respondent must therefore prove a better title to the land for him to succeed.
Obviously, the parties replied traditional history to prove title in this case and traditional history is one of the ways of proving title. See Idundun vs. Okumagba (1976) 9-10 SC 227; Eze vs. Atasie (2000)10 NWLR (PT.676)470) at page 487, Paras. F-H.
However, a party who relies on traditional history to prove his title must plead and lead evidence to establish the following, namely:
i. Who founded the land,
ii. How the land was found; and
iii. Particulars of intervening owners.
See Alli vs. Alesinloye (2000)6 NWLR (Pt. 660) 177 at 220-221, paras. H-D; Mogaji vs. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) 393 at 429.
In addition, the pleadings and evidence must not only make a consistent sense but must link the party affirmatively with the traditional history relied upon. See Owoade vs. Omitola (1988) 2 NWLR (Pt. 77)413.
In this case, parties are in agreement that the land was founded by TUMU, the progenitor of Tumubiri compound that inherited same as family property. However, while Appellant’s case is that the land has not been partitioned or shared to any member of the compound but still remain as a family property. The 1st Respondent’s case is that the property has ceased to be a family property and it is now his individual property. The 1st Respondent therefore has the burden duty to prove how title left the Tumubiri compound or family and became vested in him. He has the onus to prove that he is infact entitled to the family land as his personal land against all other family members. See Ndukwe vs. Acha (1998) 6 NWLR (Pt. 552) 25 at page 40, para. G; Onobruchere vs. Esegine (1986) 1 NWLR (Pt. 19) 799 at page 807, para. C.
1st Respondent’s pleading in paragraph 5 of his Amended Statement of Claim is deficient of the requirement to plead and lead evidence to show particulars of intervening owners. In fact, what 1st Respondent pleaded was his relationship with TUMU, the founder of the said land, and not a chronology of how the land devolved from the founder to him. The pleading did not disclose the fact that the person 1st Respondent listed were at one point or the other in charge of the land or that the land devolved on them before the 1st Respondent allegedly deforested and cultivated on it to become the owner as he claimed.
Moreover, there is no pleading in the entire Amended Statement of Claim that linked the 1st Respondent to the traditional history he relied on. The lower Court observed this vacuum in the pleading and in its judgment at page 369 of the Record, without the agreement of the parties, went outside of the pleading and evidence adduced by the parties to prove their pleadings and relied on the facts contained in an affidavit filed in support of a motion to fill in the gap. This was not proper as an affidavit used in a motion cannot be used for the purpose of establishing a fact at the hearing of the cause except by the agreement of the parties. See Waziri vs. State (1997) 3 NWLR (Pt. 496) 689 at page 720, para. B.
In Eze vs. Atasie (2000)10 NWLR (Pt. 676)470 at page 488, paras A-B, the Court held that the evidence that would uphold a case of traditional history must in the first place be in accordance with the pleading, and secondly, it must be credible and reliable.
The requirement of the law therefore is that the pleading and evidence must link the 1st Respondent and even where, as in this case, the lower Court had to rely on facts contained in affidavit evidence, those facts in the affidavit evidence must be facts pleaded in the Amended Statement of Claim otherwise they go to no issue and should be disregarded. It is clear that the 1st Respondent did not plead facts linking him to the founder of the land, Tumu, and the particulars of intervening owners of Tumubiri family who inherited the land and the affidavit evidence relied on is of no moment at all as it is at variance with the pleading. See Adeleke vs. Iyanda (2001)13 NWLR (Pt. 729)1 at page 21, para G.
The Appellant on the other hand listed in paragraph 9 of his Statement of Defence the Tumubiri family heads who had held the land on behalf of the family or compound over time is intervening owners before him and Chief Kingboy Appah who are the co-heads now and further prove that the Tumubiri family has not partitioned the land to any member of the Tumubiri compound and the 1st Respondent admitted this fact.
The 1st Respondent, rather than leading and producing evidence of the particulars of intervening owners and his link to the traditional evidence he relied upon, put forward an alleged Tarakiri custom he pleaded in paragraphs 8, 9,10,11,12 and 13 of his Amended Statement of Claim that allows for a family member ownership of family or compound land through deforestation and cultivation of the family land.
Appellant denied the said Taraki Custom and pleaded in paragraphs 21 and 27 of his Statement of Defence that no individual has the right under Taraki custom to enter into a family land and lay exclusive claim to it and even if such individual is farming on the family land, he cannot exclusively lay claim to the land.
CW1, HRH. King George Agbabou Week, testified on behalf of the 1st Respondent affirming the facts pleaded by the 1st Respondent as the custom of Taraki Clan.
However, under cross-examination at page 303 of the Record, CW1 admitted to be related to the 1st Respondent and also admitted the history of the 1st Respondent as stated in paragraph 10 of the 1st Defendant’s Statement of Defence to the effect that traditionally, the 1st Respondent is from Oweikorogha and not Tumubiri compound as confirmed by Exhibit “DE-2”.
CW2, Living Ikissa, also testified on behalf of the 1st Respondent to also confirm the Taraki Custom that family lands are not shared but family members acquire their individual portions by deforestation and cultivation.
Curiously, CW2 under cross-examination, admitted that his land which he alleged shared boundary with the land of the 1st Respondent in question and which he later denied was actually shared(partitioned) to him by the family very recently even though he has been farming on the land for a long time. This evidence is very fatal to the case of the 1st Respondent and indeed supports the case of the Appellant to the effect that family land is never owned exclusively by an individual member of the family even if the individual has been farming on the land.
However, inspite of the inconsistencies in the evidence of the 1st Respondents witnesses and the conflicting versions of the custom of the Tarakiri clan, put forward by the parties, learned Appellant’s counsel stated that the learned trial judge still gave favourable consideration to the CW1 evidence in the judgment as could be seen on page 366 of the record of appeal, and entered judgment in favour of the 1st Respondent. It is submitted that custom must be proved on corroborated evidence of independent witnesses and the reason is that no one can claim an exclusive knowledge of a long standing tradition said to be prevailing in an area such as to entitle the learned trial judge of the lower Court to solely and completely rely on his evidence to enter judgment in favour of the 1st Respondent. See Oyediran vs. Alebiosu II (1992) 6 NWLR (Pt. 249) 550 at 558, Lambe vs. Jolayemi (2002) 13 NWLR (Pt. 784) 343 at 357.
It is contended that the peculiar facts of this case require a proper evaluation of the evidence adduced by the parties at the trial before reaching a decision one way or the other. The learned trial Judge failed to do so which failure has occasioned a miscarriage of justice. The 1st Respondent did not testify in the case and the question will be, “who is asserting the custom that requires evidence to corroborate it?”
In the circumstances of his case, since 1st Respondent did not testify, CW1 can as well be considered as the person asserting the custom having admitted that he is a relative of the 1st Respondent. Therefore, it would be necessary that the evidence of CW1 be corroborated. The lower Court ought not to just believe the evidence of CW1 merely because CW1 alleged that he is the custodian of the custom and tradition of Tarakiri clan. However benevolent the evidence of CW1 is, it ought to be corroborated and tested with other evidence before the Court to find out if it is probable and the importance of testing the evidence of CW1 becomes more apparent in the face of the conflicting versions of the custom of Tarakiri clan put forward by the parties. Customs, like traditional histories, being hearsay, conflicts cannot be resolved by mere believe. Rather, conflicts in customs, like traditional histories are resolved by resort to facts in recent times and this the lower Court ought to do but failed to do and rather relied on mere believe. See Okoko vs. Dakolo (2006) 14 NWLR (1000) 401 at page 423, paras. F-G
CW1 evidence on the custom of individual family member ownership of family land deforested and cultivated by the individual family member could not have been applicable here where the 1st Respondent membership of Tumubiri compound is an issue. Clearly if 1st Respondent is not a member of Tumubiri compound as has been shown by the admissible evidence before the Court cannot, possess or deforest and cultivate the Tumubiri family land in line with the alleged custom. See Ndukwe vs. Acha (1998) 6 NWLR (Pt. 552) 25 at page 36, para. B.
The lower Court ought to make a finding whether the 1st Respondent is a member of Tumubiri compound in the light of the pleadings of the parties and the admissible evidence adduced by the parties before holding as it did that 1st Respondent is the owner of the land that only Tumubiri compound/family members can deforest and cultivate in line with the custom CW1 alleged. Appellant denied that 1st Respondent is a member of Tumubiri compound and further stated that 1st Respondent claimed in Exhibit DE-2 that he is from Oweikorogha even though CW1 had stated otherwise at paragraph 3 of his written statement on the oath at page 138 of the records. Learned Appellant counsel posed the following question that if 1st Respondent’s paternal family is Otuobiri family and his maternal family is Tumubiri family, how did 1st Respondent become an indigene of Oweikorogha which he admitted he is Exhibit “DE-2”?’ The answer to this simple question cannot be found in the pleadings of the 1st Respondent or the evidence of his witness, particularly the evidence of CW1 which the lower Court solely relied on completely to enter judgment in favour of the 1st Respondent. This may be a mystery. 1st Respondent’s pleading in paragraph 2(a) of his Reply to the Appellant’s Statement of Defence captured at page 118 of the Record did not resolve the mystery at all. This is further made worse by CW4 admitting at page 313 of the Record that 1st Respondent resides at Otuobiri compound in Anyama Ijaw and not Tumubiri compound. It is submitted that 1st Respondent must be a member of Tumubiri family/compound to be entitled to own part of Tumubiri family land by the custom of deforestation and cultivation of family land as stated by CW1, if the said custom exist and ought to be applicable in this case. Therefore, on 1st Respondent’s own showing through his pleadings and evidence of his witnesses, the lower Court ought not to apply the custom as alleged by his witnesses in this case as he has not proved by evidence that he is a member of Tumubiri compound to be entitled to deforest and cultivate the Tumubiri family land and own same even if such custom existed. Besides, the custom as asserted by the 1st Respondent’s witnesses is as improbable as it is conflicting. In Tarakiri clan, if every member of a family is allowed at his/her own time to enter the family land and deforest and cultivate to any extent so as to own same, how will the family know who entered the family land and the extent the family member deforested? Certainly, this cannot be the custom. The family must at any point in time know who entered its land and an individual member can only have exclusive ownership of any portion shared or portioned to him by the family.
1st Respondent averred in paragraph 11 of his reply to 2nd Respondent’s Statement of Defence captured at page 107 of the record that the land in dispute has been partitioned. In paragraph 3 of his reply to 2nd Respondent’s Statement of Defence captured at page 104 of the record, 1st Respondent pleaded to the fact that from the founding of Anyama Ijaw community, the entire land was partitioned to the three sons of the founder. In essence, by 1st Respondent’s pleadings and evidence, partitioning of family land started from the founding of the Anyama Ijaw community as there was nothing like individual ownership of land by deforestation and cultivation of family land.
1st Respondent further pleaded in paragraph 13 of his reply to Appellant’s Statement of Defence at page 121 of the record the tradition of partitioning of family land in Tarakiri clan. Therefore, 1st Respondent even by his own pleading and evidence has put forward the custom or tradition of partitioning of family property in Tarakiri clan different from the custom of deforestation and cultivation. However, Appellant stated that the Tumubiri family land has not been partitioned to the 1st Respondent or any other member of the Tumubiri compound. Since the 1st Respondent is the party asserting that there was a partitioning of the Tumubiri family land, he has the burden to prove the partition. He must plead and lead evidence on the relevant particulars of the partition and the 1st Respondent herein failed to prove the partitioning of Tumubiri family land. See Tijani vs. Akinpelu (2012) 42 WRN 111 at page 128.
Custom is dynamic and changes with time. Therefore, where there is no conclusive evidence on a particular custom, the recent acts will be relied upon by the Court to make findings as to the applicable custom. It is submitted that in the face of the conflicting custom asserted by the parties, the lower Court should have resorted to recent acts and in this regard the evidence of CW2 is opposite to resolve any lingering conflict the fact that the land of CW2 which he claimed to have been farming on for a very long time was only recently partitioned to him by his family, shows the custom of Tarakiri clan as practiced in recent time. This is further reinforced by the evidence of DW3 that the CDC Chairman of Anyama Ijaw a brother to the 1st Respondent directed DW3 to Tumubiri compound to find out who owns the land and pay the lease amount to them. 1st Respondent cannot say that the CDC chairman of Anyama Ijaw his brother never knew their father’s land before he directed DW3 to Tumubiri compound. Therefore, the recent facts show that the land never belonged to the 1st Respondent or his father.
It is further submitted that the lower Court erred because it did not properly evaluate the entire evidence adduced by the parties. If the lower Court had properly evaluated all the evidence adduced by the parties at the trial, it would not have come to the conclusion as it did. Apart from the fact that the custom asserted by the parties was conflicting and required to be resolved by resort to recent acts, the evidence of some of the witnesses of the 1st Respondent support the case of the Appellant. The evidence of CW3 is totally irrelevant to the issues before the Court as the entire evidence did not show how individuals become owners of family land by deforestation and cultivation in Tarakiri clan.
Similarly, it was not prudent for the lower Court to hold against the Appellant at page 367 of the record because he did not counter-claim for a declaration of the title to the land or to discountenance the testimony of DW4 at page 366 of record because he testified that he was not a presently a chief but the eldest in Tumubiri compound and used to be a chief after stating that he was a chief and the eldest. Title to the land was in issue whether Appellant counter-claimed or not otherwise the lower Court will not hold as it did at page 366 of the record that it believed the evidence of CW1 that the land in dispute belongs to the 1st Respondent. Any inconsistency in the evidence of DW4 is minor and does not affect the case of the Appellant at all after all there was no evidence DW4 adduced to be a chief. The age range and status of DW4 was of no relevance in proving the custom as asserted. The lower Court considered this inconsistency huge because it sought to rely on the evidence of chiefs as it considered them as the custodians of the customs and traditions. It is trite law that for an inconsistency or contradiction to be fatal to the case, the contradictions must involve crucial facts necessary for the resolution of the issues in controversy between the parties such that it touches on facts forming the plank or the basis on which the case of the party is built and this is not so in this class. See Fatoba vs. Ogudahunsi (2003) 14 NWLR (Pt. 840) 323 at page 347, paras. D-F.
The 1st Respondent did not also prove how an old man of eighty-one years, struck with stroke that confined him to a place was farming on the land. The 1st Respondent left this issue to speculations. It is contended that this Court can properly evaluate the evidence adduced by the parties in the entire circumstances as the evidences before the Court do not depend on the demeanour of the witness. It is submitted that on a proper evaluation of the evidence adduced by the parties, the irresistible conclusion would have been that the 1st Respondent did not prove by credible evidence how he individually came to own the land belonging to the Tumubiri compound/family and therefore Appellant cannot trespass on the land which he leased to the 2nd Respondent on behalf of the Tumubiri family and Exhibit “DE3” ought not to be set aside.
Furthermore, the Appellant ought not to be held liable in damages because he leased Tumubiri family land to the 2nd Respondent. Trespass in this case was not proved since 1st Respondent did not prove better title to the land allegedly trespassed on. Also, 1st Respondent did not prove damages because the alleged losses he suffered were in the realm of special damages and since he failed to prove the special damages as held by the lower Court, the Court ought not to grant general damages. It is correct law that general damages are presumed to be the natural or probable consequences of the defendant’s act. However, the general damages being at large must depend on some collateral consequence of the act of the Appellant which need to be found on a head or heads of claim. Please see Ganiyu Badmus vs. Abegunde (1999) 71 LRCN 2912.
The 1st Respondent failed to disclose what the damages awarded was to assuage after claiming special damages on several heads of claim that failed. It is therefore submitted that the amount awarded as damages against the Appellant in favour of the 1st Respondent is not supported by the evidence and law. The Honourable Court is therefore urged to resolve this issue in favour of the Appellant.
ISSUE TWO
“WHETHER THE APPELLANT IS NOT ENTITLED TO HIS COUNTER-CLAIM?” (GROUND 4)
The Appellant counter-claimed for general damages and claimed N1,000,000.00 (One Million Naira) as the amount Appellant will spend to engage a lawyer in respect of the case. Appellant tendered Exhibit “DE-1,” the receipt issued to him by the law firm when he made part payment. It is submitted that the production of a receipt for a given payment is sufficient to prove special damages and Appellant has therefore proved this head of claim.
See Health Care Products (Nig.) Ltd. vs. Bazza (2003) FWLR (Pt. 162) 1937 at page 1960. Paras. B-E.
Since the 1st Respondent did not prove by credible evidence his claims having failed to prove a better title, the claims of the 1st Respondent are liable to be dismissed. 1st Respondent did not by credible evidence prove how title became vested in him from the Tumubiri family. It is submitted that the 1st Respondent who has affirmatively asserted that title no longer vest in Tumubiri family but in him has the legal burden to prove this fact. In Imana vs. Robinson (1979) 3-4 SC 1 at 9, the Supreme Court held thus:
“The burden of proof, in the sense, rest upon the party, whether Plaintiff or defendant, who substantially asserts the affirmative of the issue…If, when all the evidence, by whomsoever introduced, is in the party who has the burden has not discharged it, the decision must be against him.”
It is submitted that on the other hand, the Appellant on the other hand proved that title in the land is still vested in the Tumubiri family because the land has not been partitioned to any member of the Tumubiri family/compound. The Appellant is therefore entitled to the grant of his counter-claim and this Honourable Court is urged to so hold.
The Honourable Court is urged to allow this appeal and set aside the judgment of the High Court of Bayelsa State, Oporoma Division, delivered on 24th June, 2015 entering judgment in favour of the 1st Respondent for the declaration for trespass, setting aside the lease executed and damages against the Appellant and the 2nd Respondent and grant the counter-claim of the Appellant.
The 1st Respondent stated his own side of the facts of this case thus that: The Appellant leased the 1st Respondent father’s farmland at Oru-ama Bush in Anyama Ijaw community, Southern Ijaw Local Government Area of Bayelsa State to the 2nd Respondent who entered the land illegally with a bulldozer and destroyed crops and economic trees being properties of the claimant.
That the 1st Respondent who was claimant at the lower Court claims that the Appellant and the 2nd Respondent trespassed his farmland at Oru-ama bush, Anyama Ijaw Community by entering the land with a bulldozer without his consent and destroyed his crops and other economic trees that were in the land.
That upon the death of the original claimant, the original claimant was substituted by his first son/1st Respondent vide a motion on notice which was not opposed. That the deceased claimant was the person who deforested the land the subject matter of this suit according to the tradition, custom and age long practice of Tarakiri clan also applicable to Anyama Ijaw community in Tarakiri Clan, Southern Ijaw Local Government Area of Bayelsa State and thereby became the owner of that parcel of land.
That in Tarakiri Clan native law, custom and age long practice, any member of a family, paternal or maternal who deforests any part of a family land that has not been cultivated by another person becomes the owner of that parcel of land.
That the deceased claimant at the lower Court who substituted by the 1st Respondent deforested the parcel of land subject matter of this suit and has been exclusively farming on the land without any disturbance or challenge for over forty (40) years.
That the Appellant’s father whose great, great, great, great, great grandmother is from Tumubiri also had his farmlands he deforested from Tumubiri land sold some of his farmlands without any challenge according to the native law, custom and age long practice of Tarakiri Clan also applicable to Anyama Ijaw.
That the original claimant’s mother (Akaramosi) is the daughter of Tarakene who is a grandson of Tumu the founder of the entire Tuumubiri and as well as Tumubiri compound.
That Tumubiri family of Anyama Ijaw is the claimant’s maternal family whereas his father belongs to Otubiri compound of Anyama Ijaw and Oweikorogha Community respectively.
That the father of the 1st defendant now Appellant is from Aburuku compound of Anyama Ijaw and Aguobiri Community respectively. The Appellant’s paternal grandmother (EGBEBO) is a woman from Aguobiri community in Southern Ijaw Local Government Area of Bayelsa State. The Appellant’s father is from Aburuku community of Anyama Ijaw community. (The DW.5 admitted this facts under cross-examination).
That the oldest paternal descendant of Tumu is one YOUNG TITI OGBU. This fact was admitted under cross-examination by DW4 DERI ALALI. That the Appellant who traces his membership of Tumubiri compound through his great, great, great, great, great grandmother KALA-ERE is not the head of Tumubiri compound/ family.
That DW2 Honourable Silas Foindiowei testified for the Appellant who was the 1st defendant at the lower Court and under cross-examination, HON. SILAS FOUNDIOWEI admitted under cross-examination that in Anyama Ijaw Community, someone cannot clear and enter another person’s land without permission.
That Young Titi and other principal members of the Tumuibiri Compound did not support the Appellant for his unlawful act.
That the Bayelsa State Housing and Property Development Authority acquired land from Otuobiri family/compound of Anyama Ijaw but compensation was paid to individual land owners in Otoubiri family being custom and practice in Anyama Ijaw.
The 1st Respondent formulated four issues for determination.
ISSUES FOR DETERMINATION
i. Whether considering the evidence adduced by the parties in this case at the lower Court, the learned trial judge of the lower Court was not right in law when he declared the Appellant and the 2nd Respondent liable for trespass and thereby set aside the lease agreement (Exhibit “DE.3”) and awarded N2,000,000.00 damages for trespass against the appellant and the 2nd Respondent appeal who were the defendants at the lower Court.
ii. Whether considering the evidence adduced by the parties at the lower Court, the 1st defendant now Appellant was entitled to his counter-claim?
iii. Whether the instant appeal is competent when the name of the 1st Respondent is not the proper person.
iv. Whether this Honourable Court can have fair hearing of this appeal when the records of the lower Court transmitted to this Court are not the full and complete minutes of the proceedings of the lower Court.
ARGUMENT
ISSUE ONE
ON ISSUE NO. 1, IT IS SUBMITTED THAT THE JUDGE OF THE LOWER COURT WAS RIGHT WHEN HE DECLARED THAT DEFENDANTS WERE LIABLE FOR TRESPASS AND THEREBY SET ASIDE THE LEASE AGREEMENT BETWEEN THE APPELLANT AND THE 2ND RESPONDENT AND AWARDED N2,000,000.00 (TWO MILLION NAIRA) DAMAGES AGAINST THE APPELLANT AND THE 2ND RESPONDENT.
The 1st Respondent’s claim is that he is the owner in exclusive possession of the land the subject matter of this appeal which the Appellant unlawfully leased the 2nd Respondent in consideration of N3,000,000.00 (Three Million Naira) only and entered a leased agreement which the 2nd Respondent unlawfully entered the 1st Respondent’s farmland and destroyed crops and economic trees.
The Appellant in his defence that the land is Tumubiri family land that he has the right to lease the land.
The claimant both in his pleadings and through his witnesses and exhibits proved that he is a member of Tumubiri family of Anyama Ijaw. That his mother is the daughter of Tarakene who is the grandson of Tumu the founder of Tumubiri. These pieces of evidence were not challenged. Under cross-examination, rather DW. 4 and 5 (DERI ALALI and Appellant) admitted the fact that the 1st Respondent father is a blood relation to the Appellant’s father and the 1st Respondent who is the deceased claimant at the lower Court is a neighbour to the Appellant at Tumubiri compound, see Exhibit Ch5. These pieces of evidence were not only unchallenged but admitted by the Appellant and DW4 (Deri Alali) under cross-examination, the Court is entitled to act on or accept such evidence provided it is not incredible. See Arambambi & Anor vs. Advance Beverages Ltd (2006) 8 WRN 1 at 43, Ebeinwe vs. State (2011) 7 NWLR (Pt. 1246) 402 at 416.
It is submitted though the parties did not claim for declaration of title, the claimant proved same through traditional history but the evidence was not challenged. Unchallenged evidence is to be acted upon by the Court. See the case of Arambambi & Anor vs. Advance Beverages Ltd. (Supra).
In paragraph 6 of the page 139 of the records of the witness, CW.1 states that the 1st defendant now appellant is a great, great, great, great, grandson of Tumu, Tumu begat Monyon (female), Monyon married at Otuobiri compound and begat Kala-ere (female) Kala-ere married at Ezebiri compound of Anyama and begat Agunga (female) and Agunga married Agbe (m) at Abruku compound of Anyama Ijaw and begat Thomas (male), Thomas married Egbebo (female) at Aguobiri and begat Flute the father of the 1st Defendant/Appellant.
It is submitted that this evidence was not challenged or shaken under cross-examination and was accepted by the lower Court. The evidence is to the effect that the Appellant is a very loose/instant member of Tumubiri compound/family therefore can never be the head of Tumubiri compound as claimed. CW.1 who is the clan head (Ibenanaowei of Tarakiri Clan) also gave evidence on the native law and custom of Tarakiri Clan and land tenure to the effect that family land is not shared or partitioned but any member of the family who deforest any portion of family land and cultivates it becomes the owner of the very portion, that the deceased claimant is the one that deforested the land, the subject matter of the suit and has been the owner in exclusive possession of this land for over 40 years. This piece of evidence was not challenged under cross-examination and was therefore acted upon by the lower Court. See the evidence of CW1, CW2, CW3, CW4, CW5 and CW6.
All the above witness testified to the fact that the deceased claimant is the person who deforested the land being part of the land founded by Tumu and had been farming on the land exclusively for over forty (40) years without interruption or disturbance. That is to say the claimant has been in exclusive possession of the land since the Appellant was a child, yet the Appellant’s father and other members of Tumubiri did not change the claimant.
It is submitted that the lower Court considered the evidence of CW1, H.R.H KING GEORGE A. WEEK critically and held that the deceased claimant is the owner of the land though title was not awarded as no party claimed title.
It is submitted that the main claim that was before the lower Court was claim for damages for trespass to land. In a case for trespass to land as in instant case, the issues to be considered in an action where the claim is for trespass are:-
1. Whether the claimant is in actual possession of the land.
2. Whether the defendant trespassed on the land. See the case of Anyanwu vs. Uzowuaka (2009) ALL FWLR (Pt. 4990) @ 411 ESP @ 447, Paras F-G. See Supreme Court case of Ignatius Anyanwu & 2 Ors vs. Alloysius Uzowuaka & Ors (2009) 7 MJSC. (Pt.1) @P.46-47 Paras G-A.
It is submitted that the Appellant is not the head of Tumubiri neither is he a principal member of Tumubiri compound. The Appellant also failed to prove that he is head of Tumubiri family.
The Appellant admitted under cross-examination that his father and grandmother are from Abruku compound of Anyama and Aguobiri communities respectively, the Appellant has not claimed to be Head of Abruku family or compound being his paternal family.
The Appellant also failed to call witnesses from Tumubiri particularly the head, Elder Young Titi Ogbu and other Chiefs to prove that he was mandated by Tumubiri members.
It is submitted that the custom and tradition of Anyama Ijaw does not permit members of same family to claim farmland from other members of the family. The Appellant lacks the capacity to lease the claimants’ farmland and destroy crops and economic trees that belongs to the claimant. The custom and the age long practice of Anyama Ijaw Community forbids the Appellant’s action.
Based on the foregoing, it is submitted that the Appellant wrongfully and unlawfully leased the deceased claimant’s land to the 2nd Respondent who also wrongfully and unlawfully entered the deceased claimant’s land with bulldozer and destroyed crops and economic trees.
Based on the evidence on record, the 1st Respondent proved ownership of land and exclusive long possession of the land through credible evidence.
The Appellant and the 2nd Respondent entering the land with bulldozer and the destruction of crops and economic trees is a clear act of trespass. Infact it is expressly admitted that by EXHIBIT DE.3 (the lease agreement) in respect of the claimants land, the 2nd respondent entered the land and destroyed crops and economical trees.
It is stated that DW6 (Eyengogha Jonah) admitted under cross-examination that the 2nd Respondent destroyed trees with bulldozer on the land. Also there is the uncontroverted evidence by CW5 in his statement on oath that the access road to the sand dump affected peoples crops and the 2nd Respondent paid for the crops without reference to Tumubiri family/compounds.
It is submitted further that the Appellant who is a very loose/distant member of Tumubiri whose membership of Tumubiri family is through Monyon his great, great, great, great, great grandmother did not prove better title to the land.
It is obvious by Exhibit D.3 that the Appellant leased the claimant’s farmland to the 2nd respondent. The Appellant failed to tender any document that was given to him to present Tumubiri family as none was given to the Appellant because by the Anyama Ijaw native law and custom, the land belongs to the deceased claimants who is now submitted by the 1st Respondent. This was proved through traditional history.
There is no evidence before the Court that TUMU cultivated all the large expanse of land he founded. The descendants of Tumu over the years have continued to deforest the lands in parts for cultivation and by same have become owners of the parts of the land they have cultivated.
It is submitted that the standard of proof in civil cases is on preponderance of evidence or balance of probability. This means to put the evidence of both parties side by side on the imaginary scale and weight together to see which side preponderates. See Buhari vs. INEC (2007) 7 WRN, p.1@112, lines 5-10.
In the instant case, it is submitted that the claimant proved his case as required by law to be entitled to damages for trespass and the lower Court was right in granting same. It is therefore prayed that issue No. 1 be granted in favour of the 1st Respondent and to uphold the judgment of the lower Court delivered on the 24th June, 2015.
ISSUE TWO
On issue no. 2, it is submitted that the Appellant is not entitled to his counter-claim. The Appellant failed to prove that the Appellant himself is the owner of the land. The Appellant also failed to prove through credible evidence that the land subject matter of the suit is owned by the entire Tumubiri Compound. There is also no evidence that the Appellant has a better title to the land.
The Appellant woefully failed to prove his case against the claimant and therefore not entitled to his counter-claim which the Appellant failed to prove. There was no Justification to grant the counter-claim of the Appellant.
Surprisingly, the Appellant did not claim for declaration of title knowing that he has no title to the land subject matter of this appeal.
In this circumstance of the above evidence, it is prayed that issue no. 2 be resolved in favour of the Claimant now 1st Respondent.
ISSUE THREE
WHETHER THE INSTANT APPEAL IS COMPETENT WHEN THE NAME OF THE 1ST RESPONDENT IS NOT THE PROPER PERSON.
On issue no. 3, it is submitted that this appeal is incompetent as the appeal is against someone who was not a party to the suit at the lower Court.
That upon the death of the original claimant (SARIKI KORKOR), his first son GESIKEME DANNY SARIKI applied by way of motion on notice with his name. He deposed to an affidavit to that effect that he is the first son of the deceased claimant.
The application was not opposed and the name GESIKEME DANY SARIKI was used to substitute the name of the deceased claimant (SARIKI KORKOR).
In the present appeal, the name of the 1st Respondent is one GESIKEME DANNY KORKOR who was not a party in suit at the lower Court.
It is submitted that bringing in a name that was not a party in the suit at the lower Court GESIKEME DANNY KORKOR makes the suit incompetence and robs the Court of its jurisdiction to hear appeal.
It is trite that before a Court assumes jurisdiction over a cause or matter, the subject matter of the case must be within its jurisdiction and there must be no feature in the case which prevents the Court from exercising its jurisdiction. See Prof. A.D Olutola vs. University Of Ilorin (2003) 3 M.J.S.C. P. 151@ P.169, Paras C-F. (S.C). In the instant appeal, the 1st respondent on record was not a party in the suit at the lower Court.
ISSUE FOUR
1. On issue no. 4, it is submitted that there could be no fair hearing of this appeal when the records of the lower Court transmitted to the Court of Appeal are not the full and complete minutes of all that transpired in the lower Court.
2. It is contended that the records of proceedings before this Honourable Court transmitted from the lower Court is not a fair record of what happened at the lower Court.
3. In the records, Exhibits CL1, CL2 and CL3 tendered through Claimant’s Witnesses CW.3 (Richard Suede) are not included as part of the records. Exhibits CL1, CL2 and CL3 are documents evidencing the proof payment of compensation on land, crops, and Economic trees by the Bayelsa State Housing and Property Development Authority to individual land owners in Otuobiri family/Compound of Anyama Ijaw Community. The Community of the claimant and the 1st Respondent/Appellant.
At page 311 of the records, there is proof that Exhibits CL1, CL2, CL.3 were tendered through CW3 (Richard Suede (on the 24th day of June, 2014.
In the same vein, the evidence of CW4, CW5, and CW6 in the Courtroom and the proceedings of their cross-examination made on the 24th day of June, 2014 are carefully removed from the proceedings even though reference is made to their evidence under cross-examination in the judgment.
It is trite that parties are bound by their records yet a great volume of the records which were relied on by the lower Court to arrive at its decision are not included in the records.
It is submitted that exclusion of the evidence (cross-examination) of CW4 CHIEF SPIIF JAME OKOSIWEI, CW5 MR. SEIDOUGHA SARIKI and CW6 BIBOBARA SARIKI and Exhibits CL.1, CL.2, and CL.3 will affect the fair hearing of this appeal and thus Honourable Court of its jurisdiction to entertain and decide on this appeal.
It is further submitted that the exclusion of a great volume of the Claimant’s evidence at the lower Court in the records of proceedings violates the right to fair hearing of the 1st Respondent/Appellant as enshrined in Section 36(1) of the 1999 Constitution of Nigeria (as amended).
Based on the foregoing, the Court is urged that issue no. 4 be also resolved in favour of the 1st Respondent.
In conclusion, the Court is prayed to dismiss the appeal in its entirety for lack of merit and upheld the judgment of the lower Court.
On the Preliminary Objection, this Court in Olagbaju vs. Fatai Abaas (2011) LPELR-5721 (CA) that restated the law and held that: the law is that where a Respondent gives Notice of Preliminary Objection in his brief of argument, he must at the hearing before the appellant adopts his brief, ask and obtain the leave of Court to raise his Preliminary Objection. If he fails to do this and the Appellant adopts his brief, the appeal has been heard and the issue of Preliminary Objection no longer arises. That is the law and the same equally applies to cases of applications made by way of motion on notice, the person giving the notice of objection must ensure that the same is raise and argued in limine without giving his opponent the chance to first argue his motion and adopting the written address. But this unfortunately is not the position taken in this matter when counsel for the Respondent on the 23/9/21 “acquiesced” so to say and sat down there and watched the application being moved argued and the written address of the applicant being adopted. It is too late at this point in time to raise and argue the points received by the Preliminary Objection and he will be deemed to have abandoned his objection. See Ajibade vs. Pedro (1992)5 NWLR (PT. 241) 257; Etukudo & Anor vs. Akpan (2013) LPELR-20414 (CA).
Consequently, the 1st Respondent Notice of Preliminary Objection filed on the 9/12/2016 is hereby discountenanced and accordingly struck-out, having been abandoned.
The Appellant filed a reply brief dated 7th October, 2020 and filed same date and contended that the 1st Respondent misapprehended the law which requires that a party who relies on traditional evidence to prove his title must plead and lead evidence to establish:
(a) Who founded the land,
(b) How the land was founded; and
(c) The particulars of intervening owners through whom he claims. See Okoko vs. Dakolo (2006) 14 NWLR (Pt.1000) 401 at 422, Faleye vs. Dada (2016)15 NWLR (Pt. 1534) 80 at 108.
However, in this case, the 1st Respondent, safe for stating that Tumu originally deforested the land in dispute did not make any attempt at all to prove who the intervening owners of the land were before he allegedly deforested the same land again. Based on that, he submitted that an insufficient evidence as to the founding and devolution of land will not ground a claim of ownership based on traditional history. See Falomo vs. Onakanmi (2005)11 NWLR (Pt.935)126 at 158.
He submitted that the traditional history of the 1st Respondent is vague and unreliable and cannot sustain his claim for damages. The 1st Respondent did not inherit the land from his deceased father and was not in possession of the land. Also that the land if at all, had devolved on his late father’s family, that is late Elder Sariki Korkor’s family.
On the incomplete record of appeal allegedly transmitted, it is submitted that it does not touch on the competence of the appeal nor is it a live issue to be determined in this appeal.
The Court is urged to allow the appeal.
RESOLUTION OF ISSUES
I shall commence the resolution of issues formulated in this appeal by resolving the preliminary objection raised by the 1st Respondent one way or the other.
The 1st Respondent filed a Brief of Argument on the 8/3/17 but same was regularized on the 20/2/20. The 1st Respondent had before then filed a Notice of Preliminary Objection on the 9/12/16. The 1st Respondent’s Preliminary Objection is accompanied by an affidavit of facts deposed to by Mr. Gesikeme Danny Sariki, with two annexures and a written address, the legal argument in support of the Preliminary Objection. This written address or legal argument is not contained or reproduced in the main 1st Respondent Brief of Argument filed on the 8/3/17.
The Respondent has filed a notice of Preliminary Objection on four (4) grounds and in consequence, seeks an order striking out the Appellant’s Notice of Appeal and dismissing the entire appeal in that the appeal is incompetent on the grounds stated therein.
The first ground of objection is that the Notice of Appeal is not properly filed as the appropriate filing fees having not been paid. However, the 1st Respondent cannot be heard to make this argument in view of Order 10 Rule 2 of the Court of Appeal Rules which provides thus:
“No objection shall be taken on the hearing of an appeal on the ground that the amount fixed by the Registrar of the Court below under Order 8 Rule 2(b) of these Rules were incorrectly assessed.”
I have observed the Notice of Appeal of page 372 of the records. The record of the Court below shows what was assessed and paid by the Appellant on the 8th July, 2015 through Skye Bank Teller number. The said payment by the Appellant is in respect of Notice of Appeal bear the same teller number with an earlier payment made for another Notice of Appeal filed on the 8th July, 2015 will not render the Notice of Appeal relied upon by the Appellant incompetent. See Section 168(1) 147,148 of the Evidence Act. I therefore agree with the Appellant’s submission that the Appellant’s Notice of Appeal was duly filed and appropriate fees duly paid. See Okolo v. UBN Ltd (1998) 2 NWLR (Pt.539) 618 at page 639 where the Court held thus:
“In any event, if there was evidence of such short payment arising from failure of the registry to assess the payment to be made on subsequent reliefs this is the fault of the registry which should not be visited on the litigant.”
With respect to the 1st Respondent’s ground 2, that- The Notice of Appeal is filed with a bank teller number 0047234 which another Counsel B.A. Azebi, Esq., used to file an earlier and a different Notice of Appeal in this appeal, this issue has been treated very exhaustively while considering and resolving issue one in this Preliminary Objection. After all, the Appellant did not generate the Skye Bank teller himself and cannot be held to explain any discrepancies or similarity with the bank teller number in the two Notices of Appeal. See Okolo vs. UBN Ltd (Supra).
The 1st Respondent 3rd ground that the Respondent was not a party to the suit at the lower Court, from the judgment of the lower Court at pages 340-371, the name of the Claimant at the lower Court is clearly stated as GESIKEME DANNY KORKOR which is the name of the 1st Respondent in this appeal and even the 1st Respondent did not complain nor has he applied for the lower Court to correct the error if so called. See Order 7 Rule 2(1) of the Court of Appeal Rules. It is trite that a Notice of Appeal must bear the correct names of parties as stated in the judgment appeal against. See Total Upstream (Nig) Ltd vs. A.I.C. (2016) 2 NWLR (Pt. 149)467 at 489, Odedo vs. Oguebu (2015) 13 NWLR (Pt. 1476) 220.
With respect to the 1st Respondent’s 4th ground that: The record of appeal is incomplete as vital evidence excluded, same does not touch on the competency of this appeal, as the law is settled that any of the parties may compile and transmit additional record to this honourable Court. Order 8 Rule 6 of the Court of Appeal Rules provides thus:
“Where any party to the appeal considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty, within 15 days of the service on him of the records to compile and transmit to the Court such records to be known as additional records of appeal.”
The 1st Respondent is at liberty to compile and transmit whatsoever record he deems relevant and helpful, that the Appellant may have inadvertently omitted in the record transmitted to this honourable Court.
On the basis of the fore resolution of the issues in this Preliminary Objection, I find no merit in the Preliminary Objection and it is hereby dismissed.
On the main appeal, I must make this obvious remark before considering the issues as are formulated by the parties.
The Appellant formulated two issues for determination while the Respondent filed (4) issues.
The story cannot be told that by formulating 4 issues over and above that of the Appellant, the Respondent seems to be crying more than the bereaved. The Appellant who is aggrieved by the decision of the lower Court issued only two issues for determination in this appeal.
Although, the Respondents are entitled to either adopt the issues formulated by the Appellant, give the issues a slant in favour of their own case or formulate their own issues, derivable from the grounds of appeal, it is always desirable that the Respondents should not formulate more issues than the Appellant. See Kajawa vs. State (2018) LPELR-43911(SC), Anyanwu vs. Eze & Ors (2019).
In this appeal at hand, I am of the considered view that the two issues submitted by the Appellant have covered the field. I shall therefore adopt same in determining this appeal. Thus:
i. Whether, considering the pleadings and the totality of the evidence adduced by the parties in this case, the learned trial judge of the lower Court was not wrong in law in declaring the Appellant liable for trespass and thereby set aside the lease argument, (Exhibit “DE3”) and award damages against the Appellant? (Ground 1, 2, 3, 5 and 6).
ii. Whether the Appellant is not entitled to his Counter-claim? (Ground 4). The 1st Respondent’s principal claim before the lower Court was for a declaration for damages for trespass to land. Trespass to land is the slightest disturbance to the possession of land by a person who cannot show a better right to possession.
Although trespass to land is hinged on exclusive possession, once a defendant as in this case claims to be the owner of the land alleged to have been trespassed upon, title is put in issue and the claimant like the 1st Respondent must show a better title for him to succeed in a declaration for trespass. See Adeyefa vs. Bamgboye (2014) ALL FWLR (Pt. 755)259 at 270 and Amakor vs. Obiefuna(1974)1 ALL NLR (pt. 1)109. Title was put in issue in this case because of the conflicting claims of both the Appellant and the 1st Respondent. The 1st Respondent pleaded in paragraph 13 of his Amended Statement of Claim that the subject matter of this suit is part of his land which he deforested and cultivated at Uruama bush. While the Appellant pleaded in paragraph 6 of his Statement of Defence that the said land belongs to Tumubiri Compound which he is a co-head. The 1st Respondent owes a duty to prove a better title to the land for him to succeed.
In a case of trespass to land, the issues to be considered are:
(1) Whether the Claimant is in actual possession of the land.
(2) Whether the Defendant trespassed on the land. See Anyanwu vs. Uzowuaka (2009) 7(Pt.1) 46-47, ALL FWLR (Pt. 4990) 411 at 447; Ignatius Anyanwu & 2 Ors vs. Aloysius Uzowuaka & Ors. (2009) 7 MJSC (Pt.1)46-47.
From the look at the pleadings and evidence in Court, the parties relied on traditional history to prove title in this case. Traditional History is one of the ways of proving title to land. See Idundun vs. Okumagba (1976) 9-10, Eze vs. Atasie (2000) 10 NWLR (Pt. 676) 470 at 487.
However, a party who relies on traditional history to prove title must plead and lead evidence to establish the following namely:
(i) Who founded the land;
(ii) How the land was founded and
(iii) Particulars of intervening owners. See Alli vs. Alesinloye (2000) 6 NWLR (Pt. 660) 177 at 220-221, Mogaji vs. Cadbury Nig. Ltd (1985) 2 NWLR (Pt.7) 393 at 429.
In addition, the pleadings and evidence must not only make a consistent sense but must link the party affirmatively with the traditional history relied upon. See Owoade vs. Omitola (1988) 2 NWLR (Pt. 77) 413. What is spectacular in this case is that the parties are in agreement that the land was founded by Tumu, the progenitor of Tumubiri Compound that inherited same as family property. But while Appellant’s case is that the land has not been partitioned or shared to any member of the compound and that it still remains as family property, the 1st Respondent’s case is that the property has ceased to be a family property and it is now his individual property.
The 1st Respondent has a burden duty to lead evidence and prove how title left the Tumubiri compound or family and became vested in him. Also, he has to show and prove that he is infact entitled to the family land as his personal land against all other family members. See Ndukwe vs. Acha (1998) 6 NWLR (Pt.552) 25 at 40, Onobruchere vs. Esegine (1986)1NWLR (Pt.19) 799 at 807.
Paragraph 5-6 of the amended statement of claim states thus:
5. That Tumu begat Kaideizi (male) Kaidezi begat Tarakeme(male). Tarakeme begat Akaramosi (female) and Akaramosi begat Sariki Korkor(male) Claimant.
6. That Tumu begat Alima (male) Alima begat Monyon (female) Moyon married at Otuobiri compound Anyama Ijaw begat Kalare a.k.a. Akaila (female) Kalare got married at Ezebiri Compound. Anyanwu ijaw and begat Agunga(female). Agunga got married to Agbe at Aburuku compound in Anyama Ijaw and begat Thomas (Male). Thomas married Egbebo from Aguobiri Town and begate flute Thomas(male) Flute begat Oyeinmiebi Thomas a.k.a Oyeinmiebiseighe Thomas (1st Defendant).
The above level of pleading is not enough and indeed deficient of the requirement which the law places on the 1st Respondent to show by credible evidence the particulars of intervening owners of the land in dispute before title was invested on him (1st Respondent) if at all. It appears that what the 1st Respondent pleaded was his relationship with Tumu, the founder of the said land and not a chronology of how the land devolved from the founder to himself. The pleading did not disclose the fact that the persons listed in paragraphs 5 and six of the 1st Respondent’s amended statement of claim were at one point or the other in charge of the land or that the land devolved on them before the 1st Respondent allegedly deforested and cultivated on it to become the owner as he claimed. Worse still is that there is no pleading in the entire Amended Statement of Claim that linked the 1st Respondent to the traditional history he is relying on.
The lower Court observed this gap/lacuna in the pleading and in its judgment on page 369 went outside and imported the evidence without agreement or consent of the parties to prove their pleading and relied on the facts contained in an affidavit in support of a motion for substitution to fill the gap and said thus “In this case, it is my view that there is a link between the Claimant and the land in dispute”.
By so doing, the trial Court fell into a big error when it called evidence suo moto to establish evidence which the plaintiff/1st Respondent failed to do in the prosecution of his claim. See Imana J.O.O. vs. Robinson Jarin Madam 1979 ALL NLR 1 at 6, J.W. Amu vs. J.B. Atama & Anor. Such evidence adduced should never be admitted.
An Affidavit evidence used in a motion cannot be used for the purpose of establishing a fact at the hearing of a case except by the agreement or consent of the parties. See Waziri vs. State (Supra). In the case of Eze vs. Atasie (Supra), the Court held that the evidence which would uphold a case of traditional history must in the first be in accordance with the pleading and must also be credible and reliable.
That 1st Respondent argued in paragraphs 4.01-4.33 of the Respondent’s Brief of Arguments to the effect that his several pieces of evidence was not challenged or controverted and that the Court was not only entitled to act on or accept such evidence but was in fact bound to do so particularly with respect to the following:-
(a) That the 1st Respondent is a member of Tumubiri family of Anyama Ijaw.
(b) That the 1st Respondent proved his entitlement to the land in dispute through or by traditional history.
(c) That the Appellant is a very loose/instant member of Tumubiri compound/family therefore can never be the head of Tumubiri compound as claimed.
(d) That under the native law and custom of Tarakiri clan on land tenure family land is not shared or partitioned but any member of the family who deforest any portion of family land cultivates it becomes the owner of the very portion.
(e) That the deceased claimant is the one that deforested the land, the subject matter of the case.
(f) That he Appellant and the 2nd Respondent trespassed and destroyed crops and economic trespass on the land belonging to the 1st Respondent, with Bulldozer.
(g) That the land in dispute which the 1st Respondent deforested is part of the land founded by Tumu, the founder of Tumubiri.
(h) The deceased Claimant until his death was the owner in possession of the land now inherited by the 1st Respondent and other children of the decease Claimant.
The point must be emphasized here that a party like the 1st Respondent who relies on traditional history/evidence to prove title must plead and lead evidence to establish:
(a) Who founded the land.
(b) How the land was founded.
(c) The particulars of intervening owners through whom he claims. See Okolo vs. Dakolo (Supra). Even the supreme Court restated this point in Faleye vs. Dada (2016) 15 NWLR (Pt. 1534) 80 at 108 per Mary Peter-Odili JSC thus:
“It has become trite that it is the duty of the appellants as Plaintiffs who, claiming a declaration of the title based on traditional history to plead their root of title and establish by evidence the traditional history so pleaded stating the name and history of their ancestors, right from the original founder of the land they assert ownership through to the last person plaintiffs inherited.”
In this case, the 1st Respondent, safe for stating that Tumu originally deforested the land in dispute, did not make any attempt at all to prove who the intervening owners of the land were before he allegedly deforested the same land again. This clearly renders the traditional history of the 1st Respondent inconclusive. It is insufficient evidence as to the founding and devolution of land will not ground a claim of ownership of land based on traditional history. See Falomo vs. Onikanmi (2005)11 NWLR (Pt. 935)126 at 158.
The 1st Respondent’s evidence on traditional history in this case is vague and unreliable and cannot sustain his claim for trespass. See Jiya vs. Awumi (2011) 4 NWLR (Pt. 1238) 467 at 487).
The 1st Respondent rather than plead and produce evidence of the particulars of intervening owners and his link to the traditional evidence he relied upon, put forward on alleged Tarakiri custom, he pleaded in paragraphs 8, 9, 10, 11, 12 and 13 of the Amended Statement of Claim that allows for a member ownership of family or compound land through deforestation and cultivation of the family land.
On the other hand, the Appellant denied the said Tarakiri custom and Respondent by pleading in paragraphs 21 and 27 of the Statement of Defence that no individual has the right under Tarakiri custom to enter a family and lay exclusive claim to it and even if such individual is farming on the family land, he cannot exclusively lay claim to the land.
The original Claimant in the lower Court was Elder Sariki Korkor, who died in the course of the trial and was substituted by Gesikeme Danny Korkor. The original Claimant had other children, as acknowledged by the 1st Respondent Namely: – Fekeseimo (Male) Finidei (Female) and Perezidei (Male) and the 1st Respondent. There is no evidence that the original Claimant bequeathed the land in dispute to the 1st respondent before he died or that he put the 1st Respondent in possession of the land as to entitle him to sue or claim for trespass against the Appellant and the 2nd Respondent. Upon the demise of the original Claimant, the land in dispute, if at all, should vest in his family as a unit and not on the 1st Respondent, the lower Court was wrong in holding that the 1st Respondent was in exclusive possession of the land in dispute because that fact was not established.
What I can have at the back of my mind is that the 1st Respondent did not inherit the land from his deceased father and was not even in possession of the land. The land if at all had devolved on his father’s family, that is, the late Elder Sariki Korkors’ family, and not on the 1st Respondent personally.
The 1st Respondent argued in paragraphs 6.01-6.06 of the 1st Respondent’s Brief of Argument to the effect that the name of the 1st Respondent is not the proper person and that the appeal is misconceived. See Adeniran vs. Olusokun ll (2019) 6 NWLR (Pt. 1673) 98 at 122. This argument and submission of the 1st Respondent is highly funny to say the least. The judgment of the lower Court contained on pages 340-371 and on the front page thereon, the name of the claimant is clearly stated as GESIKEME DANNY KORKOR which is of course, the name of the 1st Respondent in this appeal. Any mistake in stating his own correctly does not rest on the shoulders of the Appellant to alter. Even upon that, the 1st Respondent has not complained or applied uptill date for the correction to be effected. See Order 7 Rules 2 (1) of the Court of Appeal Rules 2016. The law is that a notice of appeal must bear the correct names of parties as stated in the judgment of the lower Court appeal against. See Total upstream (Nig) Ltd vs. A.I.C. Ltd (2016) 2 NWLR (Pt. 1497) 467 at 489.
As part of 1st Respondent’s issue no. 4, the 1st Respondent complained that the record transmitted is incomplete. But looking at it, there is nothing to show that it touches on the competence of this appeal. Worse still is that it does not constitute a live issue to be considered and determined in this appeal. So it does not really matter in this appeal. After all, it is settled law that any party may compile and transmit additional record to this Court pursuant to Order 8 Rule 6 of the Court of Appeal Rules which provides thus:
“Where any party to the appeal considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty, within 15 days of the service on him of the records, to compile and transmit to the Court such records to be known as additional records appeal.”
So the 1st Respondent is at liberty to compile and transmit whatsoever record he deems relevant and helpful that the Appellant may have inadvertently omitted to this Court but failed to do so. I resolve this issue in favour of the Appellant and against the Respondent. There is no issue of fair hearing in this matter.
Another issue raised by the 1st Respondent is whether considering the evidence adduced by the parties at the lower Court, the Appellant was entitled to his counter-claim?
It is submitted by the 1st Respondent that the Appellant failed to prove that he is the owner of the land in dispute and so, he is not entitled to the counter-claim. This argument of the 1st Respondent is contained in paragraphs 5.01-5.13 of the 1st Respondent’s brief of argument. 1st Respondent contends that the Appellant did not claim for declaration of title to the land in dispute and thereby failed to prove through credible evidence that the land in dispute is owned by the entire family of Tumubiri. I think that it is immaterial that the Appellant did not specifically seek a relief of declaration of title in his counter-claim. Though trespass to land is hinged on exclusive possession, once a defendant claims to have been trespassed upon, title is put in issue, and the claimant must show a better title for him to succeed in a declaration for trespass. See Adeyefa vs. Bamigboye (Supra).
“The Appellant also copiously pleaded and led credible evidence to prove that the land in dispute belonged to the Tumubiri family/compound and that he leased the land to the 2nd Respondent on behalf of the said family.”
On the other hand, the 1st Respondent did not prove by credible evidence how he individually came to own the land belonging to the family/compound. See Imana vs. Robinson (Supra).
I resolve this issue in favour of the Appellant and against the Respondent.
All the issues considered in this appeal are all resolved in favour of the Appellant. The consequence is that the appeal is meritorious and hereby allowed. The judgment of the lower Court in Suit No. OHC/25/2011 delivered on the 24th June, 2013 by Hon. Justice M.A. Ayemieye is hereby set aside. I award a cost of N100.000 in favour of the Appellant.
Appeal Allowed.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance, the draft of the judgment delivered by my learned brother, Paul Obi Elechi, JCA.
The 1st Respondent who was the Claimant in the Court below, claimed against the Appellant and 2nd Respondent for declaration of title and damages for trespass. Such claim was denied by the Appellant who pleaded and led evidence to the effect that the land belong to his Tumubiri family or compound of which he is a co-head. What is striking in this case is that both parties relied for proof of their title on traditional history, and traced the roof of their title to me Tumu who is said to have defeated and first settled on the land in dispute.
The law, which is settled, is that, when both parties to a dispute agree that title to the land in dispute is traceable to a common ancestor for or vendor, for any of the parties to succeed, he must be able to trace the roof of his title to the common ancestor or vendor. Thus the one who is able to establish a better title will succeed. See Adebo V. Saki Estates Ltd. (1999) 7 NMR (Pt. 612) 525; Owie V. lghiwi (2005) LPELR – 2846 (SC) and Akoledowo & Anor V. Ojubutu & Ors. (2012) 16 MMR (Pt. 1325) 1. In that respect, unless there is a counter-claim, the onus will be on the claimant to plead and prove the root of the title.
In the instant case, the 1st Respondent pleaded the root of his title in paragraphs 5 and 6 of the amended statement of claim. Apart from pleading and adducing evidence on who founded the land and how the land was founded, a person who claims title through traditional history must adduce such evidence that is capable of linking him to the land in dispute without any breakage or missing link in the line of succession. See Elegushi & Ors V. Oseni & Ors (2005) 14 MMR (Pt. 945) 348; Osuji V. Ekeocha (2009) LPELR-2816 (SC) and Dagaci of Dere & Ors V. Dagaci of Ebwa & Ors (2006) LPELR-911(SC). The evidence adduced must therefore link the Claimant affirmatively with the root of title relied upon. A perusal of the traditional history pleaded by the 1st Respondent in paragraphs 5 and 6 of statement of claim will show that it is inconclusive. This lacuna in the evidence led by the 1st Respondent was also found by the trial Court but the learned trial judge erroneously relied on evidence deposed to in an affidavit in support of a motion to find in favour of the 1st Respondent. Evidence of traditional history must be inherent in the pleadings and evidence led by the Claimant. Having found that lacuna in the traditional history of the Claimant, his claim should have been dismissed.
For the above reasons and the detailed reasons ably articulated in the lead judgment, I agree that this appeal has merit, and is accordingly allowed. I abide by the consequential orders made by my learned brother.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I read in advance the draft of the lead judgment just delivered by my learned brother, PAUL OBI ELECHI, JCA.
I agree with the said judgment and have nothing to add. I adopt same as mine.
Appearances:
D.I. Okwakpam, Esq. For Appellant(s)
Tekena Ediyekio, Esq. – for 1st Respondent For Respondent(s)