USULOR v. EBONYI STATE GOVT & ANOR
(2020)LCN/15775(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, March 25, 2020
CA/E/98/2015
Before Our Lordships:
MisituraOmodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
OBA USULOR APPELANT(S)
And
1. EBONYI STATE GOVERNMENT 2. MRS NGOZI OBICHUKWU (DIRECTOR MILLENNIUM DEVELOPMENT GOAL EBONYI STATE) RESPONDENT(S)
RATIO:
IT IS THE LAW THAT WHO ASSERTS MUST PROVE AND THE LEADING OF CREDIBLE EVIDENCE
The trial Court having considered thepleadings and the evidence led held as follows at pages 212-213 of record:
“It is my view that the pleadings and evidence of the Plaintiff on this issue of the custom of Amawula town relating to land inheritance is vague. If it is the custom that the eldest son inherits the family compound and other lands elsewhere, how are those other lands according to custom determined so as to know the ones the eldest son is not entitled to which now devolves on other sons of the deceased, in this case, the Plaintiff? This was not made certain by both the pleadings and evidence of the Plaintiff. In view of the above, it is obvious that the custom of Amawula community as it relates to customary inheritance of land cannot be ascertained. It is the law that he who assets must prove. See the case of KANO V MAIKAJI (2011) 17 NWLR (PT. 1275) 139 AND A.G FED. V. A.G ABIA STATE (NO 2) (2002) 6 NWLR (PT 764) 542. It is my view that the plaintiff both woefully failed to clearly plead the custom of Amawula community in Ezza as it relates to customary inheritance and to lead credible evidence in proof of same. Consequently, I hold that the custom of Ezza as it relates tocustomary inheritance of land of a deceased person who dies intestate was not proved in this case.” MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
THE CREDIBIITY AND SUFFICIENCY OF A TRADITIONAL EVIDENCE
The law is trite that traditional evidence if found to be cogent and credible and accepted by the trial Court is sufficient for a grant of declaration of title. See RUNSEWE & ORS. V. ODUTOLA (1996) LPELR-2964 (SC) AT 9-11(F-E). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
TO SUCCEED IN A CLAIM FOR DELARATION OF TITLE DEPENDS ON THE STRENGTH OF HIS CASE
The law is settled that in a claim for declaration of title, a Plaintiff must succeed on the strength of his case and not on the weakness of the Defendant’s case. However, the Plaintiff is entitled to rely on the evidence of the Defendant whichsupports his case. See SORONNADI & ANOR. V. DURUGO & ANOR. (2018) LPELR-46319 (SC) AT 22-23. TUKURU & ORS. V. SABI & ORS. (2013) LPELR-20176 (SC) AT 22 (A-B). There is no appeal or cross appeal against the above finding which is amply supported by the evidence on record. The Court below having held that the admission of the Respondents’ witnesses that the land in dispute is that of the Appellant supported the Appellant’s claim that he is the owner of the land in dispute, the Court totally erred in law when it turned round to hold at pages 218-219 of the record that:
“On the issue of witnesses to the defence admitting that the part of the land in dispute is that of the Plaintiff in my view goes to support the claim of the plaintiff that he is the owner of the land in dispute. However, it is a settled principle of law that a person who makes allegations in a pleading is by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleadings.The burden of proof is on the party who takes another to Court seeking a relief or a right to prove his claim. See the case of UTC (Nig) Plc V. Philips (2012) 6 NWLR (PT. 1295) 136 MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
NO APPEAL AGAINST A SPECIFIC FINDING BY BOTH PARTIES IS DEEMED TO HAVE BEEN ACCEPTED
The law is settled that where there is no appeal against a specific finding of the Court which is material to the case, both parties are deemed to have accepted the finding as correct and are bound by it. The Respondents are bound by the above finding of the Court below. With the above finding, the defence of the Respondents totally collapsed. The result is that there was no evidence from the Respondents which could have been put on the Respondent’s side of the scale. The further result of the finding is that the evidence of traditional history adduced by the Appellant remains uncontroverted and having been found to be credible and accepted by the Court below, it was sufficient for a declaration of title in favour of the appellant. In addition to the uncontroverted and unchallenged traditional evidence of the appellant, he was entitled to rely on the admission and other pieces of evidence from the respondents which supported his claim of title to the land in dispute. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State, sitting at Onueke Judicial Division delivered in suit no. HNK/7/2013 on 20/10/2014. The Appellant as the Plaintiff instituted the suit against the Respondents and sought for the following relief:
1. “The sum of ten million naira (10,000,000.00) only being special and general damages for trespass and destruction of the plaintiff’s crops and economic trees planted on his land in dispute.
Particulars of special damages
(a) Value of crop destroyed – #500,000.00
(b) Value of the mango, Ogbono Ube, Ukpaka, Palm trees etc destroyed – #2,500.000.00
#3,000.000.00
General Damages – #7,000.000.00
#10,000.000.00
2. An order for the Defendants to immediately vacate from the plaintiff’s lands situate near OnuNworie market at Umete village, Amawula town, Ezza North Local Government Area of Ebonyi State, having boundary with the lands of Sundays Usulor, Ifeanyi Ugbo, Moses Nweke and Ndiaguzu-Umuta Road respectively.
3. An order of perpetual injunction restraining the Defendants, their servants, agents, privies and whatsoever from further trespass into the plaintiff’s land and or from remaining on the plaintiff’s land situate near OnuNworie market at Umete village, Amawula town, Ezza North Local Government Area, Ebonyi State, having boundary with lands of Sunday Usulor, Ifeanyi Ugbo, Moses Nweke and Ndiaguzu-Umuta Road respectively.”
The facts of the Appellant’s case are pleaded in paragraphs 9-13 of his statement of claim wherein the Appellant averred that:
9. “The Plaintiff avers that his land in dispute situate near ObuNworie market in Umete village, Amawula town in Ezza North Local Government Area has boundary with the lands of Sunday Usulor, Ifeanyi Ugbo, Moses Nweke and Ndiaguzu-Umuta Road. There are many economic trees on the land such as mango, Ogbono, Ukpaka, Palm trees, Ube, etcetera. It is the Plaintiff and his ancestors before him who planted the trees that were harvesting the economic trees on the land in dispute without any interference from any person in the village or town. The proceeds of sale of the fruits of the economic trees is a good source of income tothe Plaintiff.
10. The Plaintiff avers that he is in possession of the land until it was forcefully entered by the Defendants who destroyed his economics trees and the crops cultivated on the land.
11. The Plaintiff avers that his land trespassed upon by the Defendants originally belonged to Ukpa, his ancestor, who was the first man to deforest the land and cultivated it. On the death of Ukpa, it was Nwite his son who inherited the land under the native law and custom of Amawula town. Nwite in his life time cultivated the land and reap the fruit of the economic trees thereon without any disturbance by any person from his village or town.
12. When Nwite died, his first son called UsulorNwite inherited the land under the native law and custom of Amawula town. Usulor in turn cultivated the land and exercised maximum right over the land without any interference. On the death of UsulorNwite, it is the plaintiff, the son of UsulorNwite, who inherited the land under the native law and custom of Amawula town. The Plaintiff’s senior brother inherited his father’s compound and other lands situate elsewhere.
13. The Plaintiff avers thatfrom childhood he used to follow his father to cultivate the land and harvest the economic trees on the land without any disturbance from anybody. After the death of the Plaintiff’s father in 1995, it is the Plaintiff who had been in possession of the land, cultivating it by himself and through his brother without any disturbance from any person. Sometimes the Plaintiff and his friends go to harvest the economic trees on the land.”
The facts of the Respondents’ case can be found in paragraphs 8-12 of the statement of defence wherein they averred as follows:
8. “The Defendants deny paragraph 9 of the statement of claim and state that neither the Plaintiff nor any of his alleged ancestors nor any private individual in his or her personal capacity planted mangos, ogbono, ukpaka, palm trees, ube or any tree for that matter on the piece of communal land where the Primary Health Centre is now built. The Plaintiff is put to the strictest proof of the contrary.
9. The Defendant deny paragraph 10 of the statement of claim and state in answer that the Plaintiff was not at any time in possession of the communal land where the Primary Health centre is now located. Neither he or any of his ancestors planted or cultivated any economic tree or any tree at all on the land where the Primary Health Centre is located as the said land had since time beyond living (sic) been communally owned.
10. Paragraphs 11, 12, 13, and 14 of the statement of claim are denied. The question of individual deforestation as alleged by the Plaintiff is purely a mischievous fabrication to deceive this Court. The Plaintiff is put to the strictest proof of his assertion.
11. In further answer to paragraph 12, 13 and 14 of the statement of claim, the Defendants state that Plaintiff’s senior brother could not have co-authored the disclaimer to the Plaintiff’s claim dated 10th December, 2013 to the Focal person, MDGs if the land belonged to the father of both himself and the Plaintiff.
12. In further answer to paragraph 14, the Defendants aver that the Plaintiff being a young man does not know the boundary of his father’s land and refused or neglected to make enquires or seek clarification from his elder brother over the extent of the land and the transaction or transactions that had taken place over the land before he became of age.”
Parties filed and exchanged pleadings in accordance with the rules of Court and called witnesses in support and in defence of the case. The Court below in its considered judgment held that the Appellant failed to prove his case and dismissed same.
Being dissatisfied with the judgment, the Appellant filed a notice of appeal containing eight grounds of appeal on 28/11/2014. Pursuant to the order of this Court, an amended notice of appeal filed on 18/1/2018 was deemed as properly filed and served on 22/5/2018. The eleven (11) grounds of appeal in the Amended Notice of Appeal are:
(1) The learned trial Court erred in law and misdirected itself on the facts when it held that the pleadings and evidence of the plaintiff on the issue of custom of Amawula town relating to land inheritance is vague and cannot be ascertained.
(2) The learned trial Court erred in law when it held that the Plaintiff failed woefully to clearly plead and lead evidence in proof of the custom of Amawula community in Ezza as it relates to customary inheritance of land of a person who died intestate.
(3) The learned trial Court erred in law when it held that the claim for injunction by the Plaintiff failed because the Plaintiff failed to prove possession.
(4) The learned trial Court erred in law when it held that the Plaintiffs claim for special damages was not pleaded and proved in evidence.
(5) The learned trial Court erred in law in failing to grant the Plaintiffs claim for general damages.
(6) The learned trial Court erred in law by holding that the Plaintiff sued the wrong parties, that is, the Defendants on record.
(7) The learned trial Court erred in law when it relied on extraneous documents in holding that it cannot grant the Plaintiff’s relief for an order directing the Defendants to vacate from the land in dispute because the building project had been handed over to Amawula community.
(8) The learned trial judge misdirected himself in law and on the facts when he held that the Plaintiff did not plead and give evidence of what happened to the other pieces of land of his father which were not in dispute.
(9) The learned trial judge erred in law by not accepting the credible and uncontroverted evidence of possession ofthe land in dispute given by the Plaintiff/Appellant.
(10) The learned trial judge erred in law when he held that the Plaintiff/Appellant failed to establish his ownership of the land in dispute in that he failed to lead evidence in proof of Ezza custom on inheritance of land.
(11) The judgment is against the weight of evidence.
The record of appeal transmitted to this Court on 1/4/2015 was deemed as properly compiled and transmitted on 10/3/2020. The amended Appellant’s brief of argument was filed on 9/10/2017. The Respondent’s brief of argument was filed on 27/11/2017. The Appellant’s reply brief was filed on 18/1/2018. All the briefs of argument were consequentially deemed as properly filed and served on 10/2/2020.
The Appellant presented the following issues for the determination of the appeal:
(1). Was the Learned Trial Court right when it held that the pleading and the evidence of the Plaintiff/ Appellant on the custom of Amawula town relating to inheritance of land was vague and cannot be ascertained? (Ground 1)
(2). Was the Learned Trial Court right when it held that the Plaintiff/Appellant failed woefully to plead and lead evidence in proof of the custom of Amawula community in Ezza as it relates to customary inheritance of land of a person who died intestate, and that the Appellant failed to prove his ownership of the land in dispute? (Grounds 2 and 10)
(3). Whether the Learned Trial Court did not misdirect itself in law and on facts when it held that the Plaintiff/Appellant did not plead and give evidence of what happened to the other pieces of his father’s lands not in dispute in this suit? (Ground 8)
(4). Whether the Learned Trial Court did not err in law when it failed to accept and act on the credible and un-controverted evidence of possession of the land in dispute given by the Plaintiff/Appellant? (Ground 9)
(5). Whether the Learned Trial Court was right when it refused to grant the Plaintiff/Appellant’s claim for injunction on the ground that the Appellant failed to prove possession? (Ground 3)
(6). Was the Learned Trial Court right when it relied on a document not tendered in evidence to refuse the Appellant’s claim for immediate vacation by the Respondents from the land in dispute? (Ground 7)
(7). Whether the Learned Trial Court acted rightly in failing to order the immediate vacation of the Defendants/Respondents from the land in dispute on the ground that the Appellant sued wrong parties as defendants? (Ground 6)
(8). Was the Learned Trial Court justified in refusing to grant the Appellant’s claim for general damages? (Ground 5)
(9). Is it correct, as held by the learned Trial Court, that the Appellant’s claim for special damages was not pleaded and proved in evidence? (Ground 4)
(10). Whether in view of the evidence led in this case, the trial Court was not wrong in holding that the Appellant failed to prove his case on a balance of probabilities? (Ground 11).
The Respondents presented the following issues for determination:
1. Whether the title of the Plaintiff to the land in dispute in this suit, based on customary inheritance of land of a deceased person who died intestate of AmawulaEzza community, is ascertainable or proved on the strength of the Plaintiff’s case in the lower Court.
2. Whether in the circumstances of this matter, the Appellant is entitled to the claims he is seeking?
I have considered the issues formulatedby counsel to both parties, the issue thrown up for determination in this appeal is whether on the pleadings and the evidence led, the Court below was right in dismissing the appellant’s case in its entirety.
The Appellant submitted that the trial Court erred in law when it held that the pleading and evidence of the Appellant on the custom of land inheritance in Ezza was vague and cannot be ascertained as it is an issue the trial Court raised suomotu since the vagueness of the Appellant’s pleading of the custom of land inheritance never arose in this case and the Appellant was not given any opportunity to address the Court on the matter. It is the contention of the Appellant that the averments of the Appellant in paragraphs 11 and 12 of the statement of claim and his statement on oath on customary inheritance of land were not challenged by the Respondents. It is further submitted that the law is well settled that in a claim for damages for trespass, all that a Plaintiff is required to prove is that he is in exclusive possession of the land in dispute at the time of the trespass. Counsel referred to AJUKWARA V IZUOJI (2002) FWLR (PT 115) 666 AT 673,AND UDE V CHIMBO (1998) 63 LRCN 4941 AT 4964. He submitted that apart from proving that he was in actual and exclusive possession of the land, the appellant also proved satisfactorily that the Respondents trespassed into his land in dispute but the Court below misconstrued the issue before it when it dismissed the Appellant’s claim for trespass on the grounds that the appellant relied on the admission of his title to the land in dispute by the Respondents, without him proving that he was in actual possession of the land in dispute and that the Appellant relied on the Ezza custom of inheritance to land to claim ownership which custom he failed to prove. It is submitted that the Court failed to understand that a claim for trespass is not dependent on a claim for declaration of title and that the law is well settled that in a claim for damages for trespass, all that a Plaintiff is required to prove is that he is in exclusive possession of the land in dispute at the time of the trespass. Counsel referred to SHITTU V EGBEYEMI (1996) 40/41 LRCN 1294 AT 1299. AJUKWARA V IZUOJI (2002) FWLR (PT 115) 666 AT 673, AND UDE V CHIMBO (1998) 63 LRCN 4941 AT 4964.
On the claim for injunction it is submitted that the Appellant established his claim and the Court below failed in its duty to protect the vested right of the Appellant over the land in dispute from any further trespass by an order of injunction when a claim for injunction, like a claim for trespass, stands on its own and its success does not depend on the success of a claim for title. Counsel referred to OBANOR V OBANOR (1976) 6 ECSLR 320 in the case of AJUKWARA V. IZUOJI (SUPRA).
On the issue of the parties before the Court, counsel submitted that it is not correct, as held by the trial Court, that the appellant sued wrong parties as the Respondents were sued as the parties that trespassed into his land. He argued that even if they were instigated, aided, commanded, encouraged or directed by some elements from Amawula Community, it is incontrovertible that it is the respondents who entered the land in dispute, cleared same and erected the building on the land and it is all those acts of the Respondents that constituted the cause of action in this suit.
In response to the above submissions, the Respondents submitted that the Appellant having put his title to the land in dispute in issue, all the requirements of proving title by tradition via customary inheritance must be strictly complied with. Counsel referred to ALAO VS ALHAJI OBA ALABI (1997) 6NWLR (PT 508) 351. LEBILE VS REG. TRUSTEES OF CHERUBIM & SERAPHIM CHURCH (2003)13 NSCQR 19 Ratio 1. It is further submitted that the traditional history relied upon by the Plaintiff fell short of explaining clearly, how the Plaintiff became entitled to the land in dispute and the lower Court rightly held that the custom he relied is vague and unascertainable. It is submitted that the traditional history pleaded by the Appellant did not link or connect him to the original founder of the land in dispute. According to counsel, the implication of the Appellant’s inability to prove ownership of the land in dispute is that he could not prove exclusive possession because ownership presupposes possession. He referred to ODUM VS CHINWO (1978) 6-7 SC 251.
In his reply to the Respondent’s submissions, the appellant submitted that the Respondents having admitted that the Appellant’s ancestor was the original owner of the land in dispute and that the land where the health centre was sited belongs to the appellant, the trial Court was wrong not to have acted or made use of that evidence from the Respondents which supported the case of the Appellant. He referred to ONOBRUCHERE V ESEGINE (1986) 1 NWLR (PT.19) 799.
RESOLUTION
The Appellant’s claim is for damages for trespass and injunction. The law is trite that a claim for trespass and injunction automatically puts title to land in dispute in issue unless the issue of title to the land in dispute had been determined in an earlier case. See UFOMBA & ANORS V. AHUCHAOGU & ORS. (2003) LPELR-3312 (SC) AT 20 (B-D). AKINTERINWA & ANOR. V. OLADUNJOYE (2000) LPELR-358 (SC) AT 13 (C-D). OLOHUNDE & ANOR. V. ADEYOJU (2000) LPELR-2586 (SC) AT 13(B-D). ONOVO & ANOR. V. MBA & ANOR. (2014) LPELR-23035 AT 36-37 (F-A). Title to the land having been put in issue, the onus was on the Appellant to prove his title to the land by any of the five accepted means by cogent and credible evidence. As stated earlier in this judgment, the Appellant’s root of title was as stated in paragraphs 9-13 of the statement of claim. The trial Court having considered the pleadings and the evidence led held as follows at pages 212-213 of record:
“It is my view that the pleadings and evidence of the Plaintiff on this issue of the custom of Amawula town relating to land inheritance is vague. If it is the custom that the eldest son inherits the family compound and other lands elsewhere, how are those other lands according to custom determined so as to know the ones the eldest son is not entitled to which now devolves on other sons of the deceased, in this case, the Plaintiff? This was not made certain by both the pleadings and evidence of the Plaintiff. In view of the above, it is obvious that the custom of Amawula community as it relates to customary inheritance of land cannot be ascertained. It is the law that he who assets must prove. See the case of KANO V MAIKAJI (2011) 17 NWLR (PT. 1275) 139 AND A.G FED. V. A.G ABIA STATE (NO 2) (2002) 6 NWLR (PT 764) 542. It is my view that the plaintiff both woefully failed to clearly plead the custom of Amawula community in Ezza as it relates to customary inheritance and to lead credible evidence in proof of same. Consequently, I hold that the custom of Ezza as it relates to customary inheritance of land of a deceased person who dies intestate was not proved in this case.”
I agree with the Appellant’s counsel that the Court misunderstood the case of the Appellant. The claim before the Court was one of title to the land in dispute and not inheritance per se. The root of title clearly pleaded by the appellant was traditional history. The averment as to custom of inheritance in Amawula Community is subsumed under the traditional history on which the appellant relied as his root of title. The law is trite that a person relying on evidence of traditional history in an action for declaration of title to land must plead and prove each of the following by cogent and credible evidence: (1) The person who founded the land and exercised acts of possession. (2) How the land was found, and (3) The persons on whom the title to the land devolved from its founder to the Plaintiff. See AWODI & ANOR. V. AJAGBE (2014) LPELR-24219 (SC) AT48 (B-F). By the pleadings and the evidence led, the Appellant succeeded in tracing the devolution of the title to the land in dispute from Ukpa, the original owner who was the first to deforest the land to Nwite to Usulor Nwite to the Appellant. His evidence of traditional history was not challenged or discredited under cross examination. The Appellant’s evidence of traditional history that the land in dispute originally belonged to his ancestor was confirmed by all the respondent’s witnesses including the traditional ruler of the community, DW4. On the traditional evidence of the Appellant, the Court below made the following finding at pages 216-217 of the record:
“To succeed in an action for damages for trespass, the Plaintiff must prove actual possession. It is also to be noted that proof of ownership is prima facie proof of possession. See the case of BADEJO V SAWE (1984) 6 SC 350. Though title was not part of the claim of the plaintiff, in his pleadings and evidence, the Plaintiff traced his title to the land in dispute and how he came to be the owner of the land and has remained in possession of same, and cultivating same personally or through his brothers since the demise of his father in 1995 without any challenge from anybody.
Defendants however challenged his claim in their statement of defence and averred that land is a communal land and not that of the father of the Plaintiff and that plaintiff and his ancestors had never farmed on the land. But in their evidence, the witnesses to the defendants testified that the land in dispute originally belonged to the family of the plaintiff but, was donated to the community over 20 years ago alongside five other families for the expansion of OnuNworie market by the senior brother of the plaintiff, Nwite Nwusulor, also known as Michael Nwusulor. In fact, DW1 stated that part of the Plaintiff’s land where the hospital is situated is not up to one plot. DW3 also stated that some part of the land in dispute belong to the Plaintiff.”
The law is trite that traditional evidence if found to be cogent and credible and accepted by the trial Court is sufficient for a grant of declaration of title. See RUNSEWE & ORS. V. ODUTOLA (1996) LPELR-2964 (SC) AT 9-11(F-E).
The law is settled that in a claim for declaration of title, a Plaintiff must succeed on the strength of his case and not on the weakness of the Defendant’s case. However, the Plaintiff is entitled to rely on the evidence of the Defendant which supports his case. See SORONNADI & ANOR. V. DURUGO & ANOR. (2018) LPELR-46319 (SC) AT 22-23. TUKURU & ORS. V. SABI & ORS. (2013) LPELR-20176 (SC) AT 22 (A-B). There is no appeal or cross appeal against the above finding which is amply supported by the evidence on record. The Court below having held that the admission of the Respondents’ witnesses that the land in dispute is that of the Appellant supported the Appellant’s claim that he is the owner of the land in dispute, the Court totally erred in law when it turned round to hold at pages 218-219 of the record that:
“On the issue of witnesses to the defence admitting that the part of the land in dispute is that of the Plaintiff in my view goes to support the claim of the plaintiff that he is the owner of the land in dispute. However, it is a settled principle of law that a person who makes allegations in a pleading is by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleadings. The burden of proof is on the party who takes another to Court seeking a relief or a right to prove his claim. See the case of UTC (Nig) Plc V. Philips (2012) 6 NWLR (PT. 1295) 136. As earlier held in issue no 1 in this judgment, Plaintiff relied on the Ezza custom of inheritance to land to claim ownership of the land in dispute which custom he failed to lead evidence in proof of its existence. The weakness of the case of the defence in the present circumstances cannot avail the Plaintiff because he is required in law to rely on the strength of his own case, and not on the weakness of the case of the defence. See the case of Adesanya V. Aderonmu (2000) 9 NWLR (PT. 672) 370.”
Civil cases are decided on preponderance of evidence which means the evidence adduced by the Plaintiff is put one side of the imaginary scale of justice while the evidence of the Defendant is put on the other side of the same scale to see which one weighs more than the other. See EZEMBA V. IBENEME & ANOR. (2004) LPELR-1205 (SC) AT 54-56 (D-A). The Respondents pleaded that the land in dispute is a communal land owned by the people of Amawula Community but did not lead a scintilla of evidence in support of that claim. Rather, all the Respondents’ witnesses confirmed the appellant’s claim that the land belonged to his ancestors. DW1 confirmed that the appellant’s family have been on the land. He said Sunday Usulor donated a family land for the market. He however confirmed that according to Ezza custom, Usulor Nwite’s land belong to the Plaintiff and his brothers after Usulor Nwete’s death. DW2 testified at page 183-184 of the record of appeal as follows:
“Egwuonwu- what was the complaint of the Plaintiff
DW2- That his land is being snatched away from him. He is not the only one that own land there. They are six of them. Before market was installed on the land, his senior brother, the first son was consulted. Plaintiff did not object. He only raised objection now that hospital is built on the land. His own land was not the only one taken for market purpose.”
DW4 said the land in dispute belonged to the Appellant’s family but it was transferred to the community about 20 years ago precisely by the elder brother of the Appellant. He also said he got the approval of theAppellant before the Respondents were taken to the land. On the above pieces of evidence, the Court below held at pages 217-218 of record that:
“May I quickly state that the evidence that it was the senior brother of the Plaintiff that donated the land to the community more than 20 years now was not part of the pleadings of the defence. It is trite that evidence on facts not pleaded is not admissible. Hence, the above piece of evidence by the defence is hereby expunged from the record. Assuming but not conceding that the evidence is admissible, it is worthy of note that the said Nwite Nwusulor co-authored the disclaimer to the Plaintiff’s claim dated 10/12/2013 and had his sworn disposition on oath frontloaded as one of the witnesses to the defence in this suit. Curiously, the said Nwite Nwusulor was the only witness for the defence as frontloaded who was not called to give evidence of the alleged donation of the land in dispute to the community. If the community was sure of their claim, they should have pleaded same in their statement of defence and called to testify in Court, Nwite Nwusulor from whom they claim title to the land in dispute.It is my view that failure of the defence to call as witness the man they claim to derive title from amounts to withholding evidence under Section 149(d) of the Evidence Act 2011 and I so hold.”
There is no appeal against the above finding. The law is settled that where there is no appeal against a specific finding of the Court which is material to the case, both parties are deemed to have accepted the finding as correct and are bound by it. The Respondents are bound by the above finding of the Court below. With the above finding, the defence of the Respondents totally collapsed. The result is that there was no evidence from the Respondents which could have been put on the Respondent’s side of the scale. The further result of the finding is that the evidence of traditional history adduced by the Appellant remains uncontroverted and having been found to be credible and accepted by the Court below, it was sufficient for a declaration of title in favour of the appellant. In addition to the uncontroverted and unchallenged traditional evidence of the appellant, he was entitled to rely on the admission and other pieces of evidence from the respondents which supported his claim of title to the land in dispute.
When a plaintiff has successfully established his title directly by traditional evidence, there will be no need to prove further acts of ownership numerous and positive enough to warrant the inference that he is the exclusive owner or that he is in exclusive possession because possession is ascribed to the person who has a better title to the land.
The Court refused to grant the Appellant’s claim for an order compelling the Respondents to vacate the land. The reason for that refusal was stated at page 220 of the record as follows:
“It is also worthy of note that part of the reliefs sought by the Plaintiff is an order of this Court directing the defendants to vacate the land in dispute. From evidence adduced by both parties, as at December 2012 when the Plaintiff served notices of intention to sue the defendants, the building project had been handed over to Amawula Community by the construction company. The hand over letter though not tendered as exhibit was pleaded by the Defendants and was filed along with their statement of defence. The letter was dated26/11/2012. As at the date of the suit therefore, the people on the disputed land were Amawula Community. The witnesses in this case were members of the said community and their Ezeogo. From their pleadings and evidence, it was the community acting through their leaders as earlier mentioned that authorised Messrs Mutuna Construction Company Ltd to enter into the disputed land to construct the hospital building under MDG/CGs programme. In the light of the above, I am of the view that the Plaintiff when he requested the Court for an order directing the Defendants to vacate the land in dispute proceeded against the wrong parties as the present Defendants have not been on the land from the inception of the suit.”
The reason for the Court’s refusal to grant the other for vacation of the land is untenable in law. Trespass to land is an unlawful interference with an exclusive lawful possession. First, there is no legally acceptable reason to allow a person who has been adjudged a trespasser to continue to occupy the land in respect of which he has been adjudged to be a trespasser. Secondly, the Respondents were trespassers ab initio, they had nothing to handover to the community. Thirdly, there is no cogent and credible evidence to show that the building has been handed over to the community before, during or after the institution of the suit at the Court below. Fourthly, the law is settled that when parties have approached the Court for the settlement of their dispute, none of them should take the law into his own hands or do anything that is capable of foisting a situation of fait accompli on the Court. Even, if the Respondents continued with the construction of the building and handed over same to the community inspite of the Appellant’s protest and service of notices of intention to sue on them, the Court should not allow the Respondents to get away with their action which obviously is aimed at frustrating the course of justice. Fifthly, the Court below was wrong to rely on the alleged hand over letter which was not tendered and admitted as an exhibit before the Court. The Appellant had no opportunity to test the veracity and truthfulness of the content of the letter. A Court is not allowed to place reliance on a document pleaded and front loaded but not tendered as an exhibit and whichhas not been subjected to cross examination by the opposing party as doing so tantamount to denying the opposing party the right to fair hearing. See WASSAH V KARA (2015) ALL FWLR (PT. 769) 1034 AT 1052-1054. The Respondents’ unlawful entry on the land is an act of trespass. They are the proper parties to the suit. At most, the Amawula Community is a desirable party but not a necessary party. The Court below was wrong to have held that the Appellant proceeded against the wrong parties.
Trespass to land is actionable per se without proof of actual damages. Where there is no actual damage the damage usually awarded is nominal which however does not mean small damages. Where however, the Plaintiff claims special damages in addition to general damages for trespass, he must plead the special damages with its particulars and lead cogent and credible evidence to prove it. The appellant claimed a sum of N3 million as special damages for the value of the crops, mango, Ogbono Ube, Ukpaka, palm trees and others that were destroyed. He did not state the particulars of the crops and the numbers of the trees that were destroyed and how he arrived at the value claimed for them. The Court below was therefore right to discountenance the claim for special damages. The Respondents having committed trespass on the Appellant’s land, they are liable to pay nominal damages for trespass which is hereby assessed at N500, 000:00 (five hundred thousand naira).
If there is a challenge to possession and a claim in trespass is founded and damages awarded, then an order of injunction must follow to stop perpetration of the damage complained about and to avoid multiplicity of actions. See ENANG & ORS. V. ADU (1981) LPELR- 1139 (SC) AT 25 (C-E). ORIORIO & ORS. V. OSAIN & ORS. (2012) LPELR-7809 (SC) AT 24 (A-B).
Before I conclude this judgment, I feel duty bound to state that the building of the health centre by the respondents is commendable. However, Sections 43 and 44(1) of the Constitution of the Federal Republic of Nigeria guarantee the right of every citizen to acquire and own immovable property anywhere in Nigeria. Those sections of the Constitution provide that:
43. “Subject to the provisions of this Constitution, Every Nigerian citizen shall have the right to acquire and own immovable property anywhere in Nigeria.
44(1) No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things-
(a) requires the prompt payment of compensation therefore; and
(b) gives, to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or Tribunal or body having jurisdiction in that part of Nigeria.”
By virtue of the above constitutional provisions, no one can arbitrarily be deprived of his property in the manner the community and Respondents did in the instant case. The government has a right to acquire land for public purposes but in doing so, the government is duty bound to follow all the requirements of the relevant laws and pay adequate compensation which was not done in this case.
For these reasons, I find that this appeal is meritorious and it is hereby allowed. The judgment of the High Court ofEbonyi State delivered in suit No. HNK/7/2013 on 20/10/2014 is hereby set aside. Judgment is hereby entered in favour of the Appellant as follows:
1) The Respondents are hereby ordered to vacate the Appellant’s land situate near OnuNworie market at Umete village, Amawula town, Ezza North Local Government Area of Ebonyi State, having boundaries with the lands of Sunday Usulor, Ifeanyi Ugbo, Moses Nweke and Ndiaguzu- Umuta Road respectively.
2) The Respondents, their servants, agents, prives and whosoever are hereby restrained from further trespassing into and or remaining on the said land situate near Onu Nworie market at Umeta village, Amawula town, Ezza North Local Government Area, Ebonyi State, having boundaries with the lands of Sunday Usulor, Ifeanyi Ugbo, Moses Nweke and Ndiaguzu-Umuta Road respectively.
3) A sum of N500,000.00 (Five Hundred Thousand Naira) is hereby awarded as general damages in favour of the Appellant for the trespass committed by the Respondents on his land situate near Onu Nworie market at Umeta village, Amawula town, Ezza North Local Government Area, Ebonyi State, having boundaries with the lands of Sunday Usulor, Ifeanyi Ugbo, Moses Nweke and Ndiaguzu-Umuta Road respectively.
4) A sum of N50,000.00 (Fifty Thousand Naira) is hereby awarded as costs against the Respondents and in favour of the Appellant.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, I equally find merit in this appeal and I hereby allow it.
I equally adopt the Consequential orders in the lead judgment as mine.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA, just delivered. I agree with the reasoning and conclusion contained therein.
For the detailed reasons adumbrated in the lead judgment, I too, therefore, find merit in this appeal and I accordingly allow it. The judgment of the trial Court is hereby set aside. I abide myself by the consequential orders made in the lead judgment.
Appearances:
N. I. N. A. Egwuonwu For Appellant(s)
OkwoUgwu, Deputy Director Civil Litigation Department, Ministry of Justice, Ebonyi State For Respondent(s)