YALAJU & ORS v. ADIDI & ORS
(2022)LCN/16635(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Monday, January 17, 2022
CA/AS/303A/2016
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
1. MR. YEMI O. K. YALAJU 2. MR. ELVIS OSAMUDIAMEN IGHILE 3. MR. IBRAHIM UMORU 4. SURV. ATHANATIUS SUNNY AKWARI APPELANT(S)
And
1. MR. ONOME ADIDI 2. MR. OKEREMUTE ADIDI (For Themselves And On Behalf Of Adidi Family Of Kokori Delta State) 3. MR. DANIEL ABUGU 4. MR. BENJAMIN UMOLO 5. MR. EMMANUEL OKPACHA (For Himself & On Behalf Of The Children Of Late Madam Victoria Itebu) RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A PERSON IS SEEKING A DECLARATION OF TITLE TO LAND
It is a settled principle of law that a person seeking a declaration of title must first establish the identity of the land. In AIYEOLA v PEDRO (2014) LPELR – 22915 (SC) per MOHAMMED, JSC, the Supreme Court held that:
“On the issue of the identity of the property in dispute, the law is indeed trite that in a claim such as the one at hand for declaration of title to the property in dispute, the plaintiff must produce sufficient evidence to ascertain the definite and precise boundary of land claimed. See Arabe v. Asanlu (1980) 5 – 7 S. C. 78; Okedare v. Adebara (1994) 6 NWLR (pt. 349) 157 and Emiri v Imieyeh (1999) 4 NWLR (pt 599) 442 at 463 where Kalgo, Jsc said:
“One important way now commonly used by parties in land dispute is to establish the identity of the land in dispute by filing a detailed and accurate survey plan of the land showing the various features on such land sufficient to point to the clear boundaries thereof.”
See also in EKE & ORS v KALU (2017) LPELR – 42442 (CA); TUKURU & ORS v SABI & ORS (2013) LPELR – 20176 (SC); KOTUN & ORS v ALAKA & ORS (2019) LPELR – 46755 (CA); AREMU v ADETORO (2007) (PT. 1060) 16 NWLR 244 AT 257. PER OBASEKI – ADEJUMO, J.C.A.
THE POSITION OF LAW ON WHEN A LOCUS IN QUO WILL NOT BE STRICTLY NECESSARY
The Appellants contended that a visit to the locus standi ought to have been made to the disputed land to ascertain the location, it is trite that a visit to a locus in quo would not be necessary once there is no dispute as to its location. In OBI v MBIONWU (2002) LPELR – 2164 (SC) per IGUH, JSC, the Supreme Court held that:
“…it is now well settled that the inspection of a locus in quo is strictly not necessary where the area of land in dispute is clear to the Court and the parties and the trial Court must arrive at its judgment not on the impressions from the locus in quo but upon the impressions from the evidence led before the Court. A trial Court is only bound to record the fact of the inspection and need not give its details although it is good practice where possible to record the full details of such inspection…”
See also EBOADE & ANOR v ATOMESIN & ANOR (1997) LPELR – 989 (SC); DANJUMA v NASIRU & ANOR (2015) LPELR – 25922 (CA); ABDULLAHI & ORS v ADETUTU (2019) LPELR – 47384 (SC). PER OBASEKI – ADEJUMO, J.C.A.
DEFINITION OF SPECIAL DAMAGES
Special damages have been defined in KOPEK CONSTRUCTION LTD v JOHNSON KOLEOLE EKISOLA (2010) LPELR – 1703 (SC) per MUHAMMAD, JSC thus:
“Special damages are those damages which are the actual but not the necessary result of the injury complained of which in fact, follow as a natural and proximate consequence in the particular case, that is, by reason of special circumstances and conditions. See Shell Petroleum Development Company Nig. Ltd v Tiebo & Ors (supra). In the case of Kalu & Anor V. Mbuko (supra), special damages are such as the law will not infer from the nature of the fact. They do not follow in ordinary cause. They are exceptional in their character and they must be claimed specifically and proved strictly.”
See also AHMED & ORS v CBN (2012) LPELR – 9341 (SC); OBASUYI & ANOR v BUSINESS VENTURES LTD (2000) LPELR – 2155 (SC); CALABAR EAST CO – OP THRIFT & CREDIT SOCIETY LTD & ORS v IKOT (1999) LPELR – 826 (SC). PER OBASEKI – ADEJUMO, J.C.A.
THE POSITION OF LAW ON HOW THE BURDEN OF PROOF ON A PLAINTIFF CLAIMING SPECIAL DAMAGES IS TO BE DISCHARGED
On how the burden of proof on a plaintiff claiming special damages is said to be discharged, the Apex Court in BENJAMIN OBASUYI & ANOR v BUSINESS VENTURES LIMITED (2000) LPELR – 2155 (SC) per OGUNDARE held that:
“The law on the award of special damages is clear. And that is, that the onus is on the Plaintiff to prove special damages strictly…
In order to discharge this burden the Plaintiff must show by credible evidence that he is indeed entitled to the award of special damages – Oladehin v C.T.M.L (1978) 2 SC 23. That is, the evidence adduced by the Plaintiff must show the same particularity as is necessary to its pleading – Imana v Robinson (1979) 3 – 4 SC 1 AT P. 23 where Aniagolu JSC delivering the judgment of this Court said: “It should therefore normally consist of evidence of particular losses which are exactly known or accurately measured before the trial. Strict proof does not mean unusual proof, as the play of appellant’s counsel on those words tended to suggest, but simply implies that a Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation must give the defendant access to the facts which make such calculation possible.” See also Kurubo v Zach Motion Nig. Ltd (1992) 5 NWLR 102. Unchallenged evidence, without more, can constitute sufficient proof of special damage – Adel Boshali v Allied Commercial Exporters Ltd (1961) All NLR 917; Odulaja v Haddad (1973) 11 SC 1; NMSL v AFOLABI NWLR 393; (1992) SCNJ 98.”
See UBN PLC v CHIMAEZE (2014) LPELR – 22699 (SC); ELIJAH OLADEJI KOSILE v AMUBA OLANIYI FOLARIN (1989) NWLR (PT 107) 1; NWABUOKU v P. N. OTTIH COMMERCIAL EXPORTERS (1961) 1 ALL NLR 917 AT 921; UGWE UKOHA & ORS v GOLDEN OKORONKWO (1972) 1 ALL NLR (PT. 11) 100 AT 105. PER OBASEKI – ADEJUMO, J.C.A.
ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal stems from the judgment of Hon. Justice Roli Daibo Harriman of the Delta State High Court, Effurun Judicial division in Suit No. EHC/129/2011 delivered on the 22nd of March, 2016 against the Appellants including the 3rd – 5th Respondents in favour of the 1st – 2nd Respondents herein.
The 1st and 2nd Respondents (Claimants) claimed the following against the Appellants and 3rd – 5th and the 7th Respondents who joined at the later end as Defendants as follows:
i. A declaration that the Claimants are the beneficial owners in possession and therefore entitled to Statutory Rights of Occupation over all that piece of land measuring 2.474 hectares, situate along Housing Complex Road, Ekpan in the Uvwie Local Government Area, Delta State which is ad to its location, boundaries, dimension and features are as shown in Litigation Plan No. BSE/LID/024/12 prepared by Licensed Surveyor Oboriaruvwe U. Charleyson filed with this Further Amended Statement of Claim.
ii. A declaration that the 1st Defendant, his agents, cannot legally convey, transfer or lease part of the aforesaid piece or parcel of land to the 3rd – 7th Defendants without the prior consent of the Claimants.
iii. An order of this Honourable Court setting aside or declaring null and void any purported sale, transfer, conveyance or lease of any part of the said piece of land by the 1st Defendant and his agents/privies to the 2nd – 7th Defendants.
iv. The sum of N10, 000, 000.00 (Ten Million Naira) only being damages suffered by the Claimants from the wanton trespass perpetrated by the Defendants when sometime in the month of June, 2010 and on diverse dates, the Defendants without the permission of the Claimants broke close/entered the Claimants land and started bulldozing, clearing, conveying portion of same and destroyed the Claimants properties/economic trees thereon despite the Claimants protest.
PARTICULARS OF SPECIAL DAMAGES
a) 20 matured oil palm trees destroyed/bulldozed by the Defendants at the rate of N1, 000.00 per one N1,000, 000. 00
b) 10 matured kolanut trees destroyed/bulldozed by the Defendants at N1, 000. 00 per one.
c) 20 plantain trees destroyed/bulldozed by the Defendants at N500 per one Total special damages – N1,020,000.00
General damages- N9,080,000.00
Ground Total – N10,000,000.00
v. An order of perpetual injunction restraining the Defendants whether by themselves, servants, agents, workmen or privies from further committing any act of trespass on the Claimants land or doing any act on the land that is adverse or detrimental to the Claimants interest or rights over the said land.
vi. 20% on the judgment sum until same is fully liquidated.
FACTS
The Appellants’ case at the trial Court in summary is that in the year 2008 and 2009, the 4th Appellant purchased two plots of land from the 3rd Respondent’s family in the location where the land in dispute is situate. The two plots are plots 1 and 2 covered by two of Deed of Assignment received in evidence and marked Exhibits Y and X respectively at the trial Court.
The 4th Appellant also purchased a plot of land from Mr. Sargent Akepe Ojobolo in the location and a Deed of Conveyance was executed in favour of the 4th Appellant which deed was received in evidence and marked Exhibit Z.
The 1st – 3rd Appellants are tenants of the 4th Appellant in the 4th Appellant’s lands and were in undisturbed possession until the 1st and 2nd Respondents instituted the suit at the trial Court. The 6th Respondent claimed he bought it from the 1st Appellant and one Sargent Ojobolo while the 7th Respondent claimed his mother bought from the 1st & 2nd Respondents’ Father.
1st – 2nd Respondents’ (Claimants) case on the other hand is that their father purchased 6 acres of land in 1976 measuring 2. 474 hectares situate along NNPC Housing Complex Road, Ekpan from the Edjekuvwie family of Ekpan for the sum of N45, 000, 000 (Forty-five thousand naira) only. The Edlekuvwie family were duly represented in the Deed of conveyance (Exhibit H) by late Chief Samson Abugu and the 3rd Respondent.
The 1st & 2nd Respondents relied on their father’s deed of conveyance and the Survey Plan No. MWC/1260/8 prepared by Surveyor Chukwura in 1983 in respect of the land. The deed of conveyance and the survey plan made by Surveyor Chukwura were tendered and admitted in evidence and marked Exhibits H and B respectively. The 1st & 2nd Respondents’ father took possession of the land and demarcated the boundaries with boundary trees and also planted some economic trees/crops on the land which they harvest for commerce and consumption. That the 1st & 2nd Respondents have been in possession of the land in dispute for over thirty (30) years before the Appellants encroached on the land which forced the 1st & 2nd Respondents to originate this action. The 1st and 2nd Respondents disowned the signatures of their father in the deeds of conveyance purportedly entered into by their father.
The lower Court entered judgment in favour of the 1st & 2nd Respondents.
Aggrieved, the Appellants filed an Amended Notice and grounds of appeal on 11th March, 2021 with eleven (11) grounds of Appeal. Appellants’ Counsel filed the brief of argument on 8th March, 2021 which was settled by D. I. Obukohwo, Esq., of D. I. Obukohwo & Co where in the following issues were formulated for determination:
1. Whether the trial Court was right in its judgment when it granted the 1st and 2nd Respondents title to land which is more than 6 acres claimed by the 1st and 2nd Respondents at the trial Court. (GROUND 1).
2. Whether in the absence of a composite plan or lack of visit to the locus quo by the trial Court, the trial Court was right it held that the 1st and 2nd Respondents had discharged the burden of proof and there was no need for further proof of identification of the land even when the two litigants plans of the land in dispute are manifestly in conflict as to the 6 acres of land in dispute. (Grounds 2, 3 & 6)
3. Whether or not the trial Court was right when it held that the testimony of the DW3 and the 4th Appellant is hearsay evidence even when their evidence is credible and relevant and rejected their evidence. (GROUND 4).
4. Whether the trial Court was right in failing to properly evaluate and attach any probative value to the Exhibits P, Q, R, S1, S2, U, V, W, X, Y and Z (GROUND 5)
5. Whether the trial Court was right to have accorded value to the Deed of conveyance and the survey Plan No. MWC/1260/83 prepared by Survey Chukwura irrespective of the conflicts in the Deed and the survey plan regarding the area of land purchased by the 1st and 2nd Respondents’ father even when the Deed is defective, porous and with no probative value. (GROUND 7).
6. Whether the trial Court was not wrong when it held that any purported sale, transfer, conveyance or lease of land by the 3rd Respondent or anyone else to the 4th Appellant is null and void. (GROUND 8).
7. Whether the trial Court was right when it rejected the Certificate of Occupancy of the 4th Appellant over the land that is not in dispute. (GROUND 9)
8. Whether or not the trial was right in holding that the 1st and 2nd Respondents proved special damages. (GROUND 10)
In like manner and in accordance to the rules of the Court, the 1st and 2nd Respondents also filed their brief of arguments settled by S. O. Atunure Esq., Andrew Ubido Esq., of S. O. Atunure & Associates. Wherein the following issues were distilled for determination:
1. Whether the holding or judgment of the Court below that the Claimants are beneficial owners in possess and therefore entitled to the statutory right of occupancy over all that piece of land measuring 2.472 hectares situate along Housing Complex Road, Ekpan in the Uvwie Local Government Area of Delta, Nigeria, amounted to awarding the 1st and 2nd Respondents a relief not sought or more than what they claimed at the trial Court?
2. Whether from the peculiar facts of this case, the absence of a composite plan or lack of visit to the locus quo by the trial Court is fatal to the judgment of the Court below on the issue of identity of the land in dispute?
3. Whether or not the trial Court was right when it held that the testimony of the DW3 and the 4th Appellant is hearsay evidence?
4. Whether the trial Court evaluated and attached any probative value to the Exhibits P, Q, R, S1, S2, U, V, W, X, Y and Z ?
5. Whether the Court below was right to have accorded weight/value to 1st and 2nd Respondents Deed of Conveyance and the survey Plan No. MWC/1260/83 prepared by Surveyor Chukwurah which were admitted in evidence as Exhibits “B” and “H” respectively at the trial Court?
6. Whether the trial Court was right when it held that any purported sale, transfer, conveyance or lease of land by the 3rd Respondent and his agents/privies to the 4th Appellant is null and void?
7. Whether or not the trial Court was right when it rejected or ignored the 4th Respondent’s Certificate of Occupancy which was tendered and admitted in evidence as Exhibit “Q” at the Court below?
8. Whether from the totality of the evidence led and the pleadings before the Court below, the learned trial judge was right in holding that the 1st and 2nd Respondents proved special damages?
APPELLANTS’ ARGUMENTS
ISSUES 1 & 2
Counsel arguing issues 1 and 2 together submitted that the 1st & 2nd Respondents’ claim at the trial Court being for declaration of title to land, the burden of proof rest squarely on them unless there is evidence which emanates from the defence which supports the 1st and 2nd Respondents’ case OLOHUNDE v ADEYOJU (2000) FWLR (PT. 24) 1355 AT 1370 PARAS D – F.
He further submitted that from the pleadings of the parties, the issue of the 6 acres of land in dispute was joined by the parties, hence the 1st & 2nd Respondents filed a litigation plan, he cited in aid the cases of ADEYORI v ADENIRAN (2001) FWLR (PT. 76) 689 AT 707 PARAS C – D, EZEUDU v OBIAGWU (1986) 2 NWLR (PT. 21) 208.
Appellants contended that the controversy in respect of the features in Exhibit A made by the 1st & 2nd Respondents and Exhibit P made by the Appellants raised doubts about the features of the land in dispute which ought to have made the trial Court to either visit the land or the 1st & 2nd Respondents provide a Composite Plan of the Land in dispute before the trial Court to know the real identity of the land.
The cases of EZE v ATASIE (2000) 79 LRCN 1998; ADESANYA v ADERONMU (2000) 79 LRCN 2149; OLOKUNLADE v ADEMILOYO (2011) 15 NWLR (PT. 1269) 72; OLUFOSOYE & ORS v OLORUNFEMI (1989) 1 SC 23 AT 39 were relied on.
In addition, he stated that Exhibit A – the litigation plan did not show the boundary of the land in dispute on the Northern side of the land, and failure to do so was fatal to the case of the 1st & 2nd Respondents, he relied on NWOKIDU v OKANU (2010) 183 LRCN 114 AT 144 – 145.
The cases of BELLO v EWEKA (1981) 1 SC 101; SALU v EGEIBON (1994) 6 NWLR (PT. 348) 23; MOTUNWASE v SORUNGBE (1988) 5 NWLR (PT. 92) 90; FATOI v SOMADE (2003) NWLR (PT. 802) 431 AT 449; HAWAS INT’L SCHOOLS LTD v MINA PROJECT LTD (2003) 39 WRN 57; EZINWA v AGU (2003) 33 WRN 38 were cited to submit that the law is well settled that declaration of title to land being a declaratory relief is not normally granted on the basis of admission or default of pleadings unless the Claimant leads cogent and credible evidence in proof of his claim.
It is the contention of the Appellants that irrespective of the abnormalities in Exhibit H and Exhibit B and the glaring confusion as to the area of land in dispute in Exhibit A and P, the 1st and 2nd Respondents did not provide the trial Court with a composite plan of the land in dispute and the trial Court did not bother to also visit the locus in quo to clear doubts regarding the 6 acres of land in dispute a miscarriage of justice to the Appellants. He stated further that in the absence of a composite plan, the trial Court must visit the locus in quo to clear doubts as regards the actual land in dispute. Relying on JOHN BANKOLE & 3 ORS v MOJIDI PELU & 3 ORS (1991) 8 MWLR (PT. 211) 523; ADEYORI v ADENIRAN (2000) FWLR (PT. 76) 689 AT 701 – 702 PARAS G – A; OKWARA v OKWARA (1997) 1 NWLR (PT. 527) 169.
ISSUES 3, 4 AND 6
Arguing issues 3, 4 & 6 together, Counsel submitted that the trial Court swiftly held the evidence of the 4th Appellant as hearsay evidence. The evidence of DW3 was based on documents shown to him by the 4th Appellant and what the 4th Appellant who also gave evidence at the trial Court told him. The documents are Exhibits V, W and they are the survey plans of the land in the location prepared by the 4th Appellant for the 3rd Respondent family, Mr. Sergeant Ojobolo and the 5th Respondent prior to institution of the suit from which DW3, a registered surveyor prepared Exhibit P after the 4th Appellant took DW3 to show him the boundaries of the land and the features thereon. He opined that the Court did not understand that DW3 is an expert witness while Exhibit P is expert evidence.
ALLI v ALESINLOYE (2000) FWLR (PT 15) 2610 AT 2663; WILSON v OSHIN (2000) 79 LRCN 2078 AT 2103 was cited to submit further that the law is that the party need only call relevant witness in proof of his case. The failure to call Ojobolo as a witness is not fatal to the Appellants’ defence at the trial Court.
He contends that the lower Court made a gratuitous gift of the 4th Appellant lands which were not in dispute to the 1st & 2nd Respondents in its judgments, thereby granting over 9 acres instead of 6 acres claimed before it. OSUJI v EKEOCHA (2009) 177 LRCN 134 AT 202 – 203; AGBI v OGBE SUPRA; ONISAODU v ELEWUJU (2006) 270 AT 282; UBA PLC v TSOKWA MOTORS NIG. LTD (2000) FWLR (PT. 22) 1057 AT 1093 PARAS A – E were relied on.
ISSUE 5
Counsel submitted that for a trial Court to grant a claim for declaration of title based on a deed, the Deed must not be defective, porous or back dated to defeat the provisions of the Land Use Act, 1978. The cases of KWARI v RAGO (2000) FWLR (PT. 22) 1129 AT 1148 PARA H; SAJERE v IRETOR (1991) 3 NWLR (PT. 129) 340 were cited in aid.
He argued that the deed of conveyance relied upon by the 1st and 2nd Respondents was allegedly executed in 1976 while the Survey Plan No. MWC/1260/83 attached to the Deed was made in 1988 which is 7 (seven) years after the Deed was executed. The trial Court was therefore wrong to place value on the Deed and survey plan.
ISSUE 7
It is the submission of the Appellants that the lower Court was wrong to have rejected the certificate of occupancy of the 4th Appellant which he obtained over Plot 2 in Parcel 3 in Exhibit P which is admittedly not in dispute. Exhibit Q is therefore a valid document which the trial Court should not reject and declare null and void. Therefore, rejecting the Certificate of Occupancy occasioned a miscarriage of Justice to the Appellants.
ISSUE 8
Counsel submitted that it is trite in law that issues of special damages is deemed joined by parties even if the Defendants did not specifically deny special damages in his pleadings. The Claimant must strictly prove every item of special damages before it can be granted by Court.
AKINTERINWA v OLADUNJOYE (2000) FWLR (PT. 10) 1690 was cited to submit that the Appellants being in possession of the 4th Appellant’s land in dispute, the one who can maintain an action for damages in trespass against them will need to show a better title. He further submitted that for the 1st & 2nd Respondents to succeed, they must prove better title to the 4th Appellant’s Plot 2 in Ojobolo land. Failure to do so is fatal to the claim and the same requirements of proof goes for the 4th Appellant’s Plots 1 & 2 in Parcel 2 in Exhibit P. He relied onEZE v OBIEFUNA (1995) 7 SCNJ AT 82.
Counsel contended that the 1st & 2nd Respondents led no iota of credible evidence in proof of the items stated in the pleadings. He opined that from the totality of the evidence and admission of the 1st & 2nd Respondents on the whereabouts of the structures of the 1st – 3rd Appellants on the land in dispute nor the 4th Appellant’s lands, the 1st & 2nd Respondents have failed to prove trespass and special damages against the Appellants.
In conclusion, Counsel urged this honourable Court to allow the appeal and in its place enter judgment in favour of the Appellants.
1ST & 2ND RESPONDENTS
ISSUE 1
Counsel submitted that from the totality of evidence adduced (oral and documentary) and the pleading before the Court below, the contention of the Appellants and the quality (quantum) of the land awarded in favour of the 1st & 2nd Respondents (Claimants) is more than what they claimed at the trial Court is a misconception. UKAEGBU v NWOLOLO (2009) VOL. 169 LRCN 210 AT246; NWOKOROBIA v NWOGU (2009) VOL. 172 LRCN 41 AT 59; AGBEJE v AJIBOLA (2002) VOL. 9 LRCN 1 AT 15 – 16 were relied on.
He stated further that the 1st & 2nd Respondents relied on its averments in their statement of claim, Exhibits A, B & H in establishing the identity of the land and that its measurement is 2.474 hectares and not nine acres.
Counsel argued that the allegation/accusation of the Appellants that the lower Court awarded 9 acres of land in favour of the 1st & 2nd Respondents is not borne out of the record.
ISSUE 2
Counsel submitted that it is not law that once a Defendant filed a counter–litigation plan in a land case, the Claimant must of necessity file a composite survey plan before the trial Court can resolve the issue of the identity of the land in dispute. He also submitted that the evidence of the Claimants including the 4th Appellant and the two registered surveyors i.e CW1 and DW3 in respect of the disputed land rendered the filing of a composite plan unnecessary of their evidence revealed that there is no doubt or confusion as to the identity of the land in dispute. The case of BANKOLE v PELU (1991) NWLR (PT. 211) 523 was cited in aid.
Counsel contended that it is not the law that a trial Court must undertake a visit to the locus in quo before it can resolve the issue of the identity of a disputed land. A visit to the locus in quo is a matter for discretion of the judge, Section 127(1)(b) of the Evidence Act, 2011. He cited the case of EBOADE v ATOMESIN (1997) VOL. 50 LRCN 1113 AT 1159 in aid.
Referring to the lower Court’s decision after the evaluation of the two litigation plans (Exhibits A & P) and also Exhibits B and H; UKAEGBU v NWOLOLO (2009) VOL. 169 LRCN 210 AT 248; NWOKIDU v OKANU (2010) VOL 183 LRCN 144 AT 146; IDUNDUN v OKUMAGBA & ORS (1976) NMLR 200 AT 210; LATINWO v AJAO (1973) ANLR 118 AT 121 – 125; NWOKOROBIA v NWOGU (2009) VOL. 172 LRCN 41 AT 73 – 74, Counsel submitted that a trial Court has the jurisdiction to compare survey plans tendered before it in order to establish the identity of a disputed land.
He went on to argue that it was not the case of the Appellants that they did not know the land in dispute neither did the Appellants invite the lower Court to visit the land in dispute. See ABDULLAHI v ADETUTU (2019) VOL. 293 LRCN 1 AT 26; UKAEGBU v NWOLOLO (2009) VOL. 169 LRCN 210 AT 253.
He contended that the Appellants’ assertion that the 1st & 2nd Respondents did not establish the identity of the disputed land particularly the Northern boundary of the land is erroneous as Exhibits A & B is demarcated by survey pillars No. QB4570 and QB4571 on the North.
He further contended on the issue that 1.733 acres which belong to the 3rd Respondent’s family was fraudulently added by the 1st and 2nd Respondents, the Appellants failed to prove the allegation of fraud as required by law; Section 135 (1) of the Evidence Act, 2011; Order 15 Rule 4 of the Delta State High Court (Civil Procedure) Rules 2009; ONAMADE v ACB LTD (1997) VOL. 46 LRCN 91 AT 155; OTUKPO v JOHN (2012) VOL 202 LRCN 141 AT 171; OKUARUME v OBABOKOR (1976) NMLR 47 AT 49 were cited in aid.
ISSUE 3
Counsel cited the cases of KALA v POTISKUM (1998) VOL. 58 LRCN 3037 AT 3958 – 3057; ARMELS TRANSPORT LTD v MARTINS (1970) ANLR 27 AT 31; MANAGEMENT ENTERPRISES v OTUSANYA (1987) NWLR (PT. 55) 179; OLALEKAN v STATE (2001) NWLR (PT. 746) 793; OJUKWU v GOVERNOR LAGOS STATE (1985) NWLR (PT. 10) 806 AT 816; OJO v GHARORO (2006) VOL. 136 LRCN 1652 AT 1674; BUHARI v OBASANJO (2005) VOL. 130 LRCN 1925 AT2134; SUBRAMANIAM v PUBLIC PROSECTION (1956) WLR 965 in differentiating between hearsay that is admissible and hearsay that is inadmissible.
Reproducing DW3 and the 4th Appellant’s statements under cross-examination, Counsel contend that same amounted to hearsay evidence which is inadmissible in law because their evidence were based mainly on matters not within their personal knowledge and is against Section 77 of the Evidence Act, 2011. He further relied on BUHARI v OBASANJO (2005) VOL 130 LRCN 1925 AT 2165; KAKIH v PDP & ORS (2014) VOL. 238 LRCN 72 AT 123 in aid of his submission.
ISSUES 4, 5 & 7
AROWOLO v OLOWOOKEERE (2002) VOL. 203 LRCN 58 AT 83; OGUONZEE v STATE (1998) VOL. 58 LRCN 3512 AT 3539; WILSON v OSHIN (2000) VOL. 79 LRCN 2071 AT 2103; BASSIL v FAJEBE (2001) VOL. 86 LRCN 1435 AT 1453; SANNI v ADEMILUYI (2003) VOL. 107 LRCN 951 AT 972; FAGBENRO v AROBADI (2006) VOL. 111 LRCN 2413 AT 2434; EGRI v UKPERI (1974) NMLR 22 AT 26 were cited to submit that the evaluation, appraisal, and ascription of probative value to evidence and the testimony of a witness is within the exclusive domain of the trial Court that heard and watched the witness testify before it. He contended that contrary to the Appellants’ submission that the trial Court failed to evaluate Exhibits P & Q, the trial Court at page 561 of the record amply evaluated Exhibit P and the oral testimony of the DW3 and that of the CW1 who prepared the 1st and 2nd Respondents’ survey.
ISSUE 6
1st & 2nd Respondents argued that it is a common ground that Edjekuvwie family are the original owners of the land in dispute and that in 1976 vide Exhibit H, the 3rd Respondent conveyed the land in dispute to the 1st & 2nd Respondents.
They further argued that the Edjekuvwie family having divested themselves of title over the land in dispute in favour of the 1st & 2nd Respondents, the Edjekuvwie family or any branch (the 3rd Respondent having confirmed that Abugu family is a part of same) cannot legally transfer/lease any part of the land to a third party. He relied on the cases of AUTA v IBE (2003 VOL. 110 LRCN 1602 AT 1621; AKERELE v ATUNRASE & ORS (1969) ANLR 195 AT 202; ADELAJA v FANOIKI (1990) NWLR (PT. 131) 157; ODUSOGA v RICKETTS (1997) VOL. 53 LRCN 2379 AT 2383; ILONA v IDAKWO (2003) VOL. 112 LRCN 2320 AT 2357; IBAFON v NNPC (2000) 17 WRN 56 AT 67; FASESIN v OYERINDE (1997) VOL. 54 LRCN 2692 AT 2704.
Counsel contended that the Appellants failed to call the maker of Exhibit Z to give evidence. G. CHITEX IND. LTD v O. B. INTERNATIONAL (2005) VOL. 132 LRCN 2855 AT 2905; AREGBESOLA v OYINLOLA (2011) NWLR (PT. 1253) 458 AT 587 were relied on.
ISSUE 8
Counsel argued that the 1st and 2nd Respondents in the evidence in chief gave credible evidence as to the number of the economic trees/crops which were destroyed by the defendant and the economic value/cost of each of the destroyed economic trees/crops which were not challenged or controverted by the Appellants at the lower Court.
GKF INV. NIGERIA LTD v NIGERIA TELECOM PLC (2009) VOL. 174 LRCN 1 AT 31 PARAS. A – P; ARAMBABI v ABI LTD (2005) VOL. 130 LRCN 178 AT 1119 – 1120; SPDC v TIEBO II (2005) VOL. 127 LRCN 1274 AT 1309 PARA F – U; DAKAT v DASHE (1997) VOL. 54 LRCN 2723; OBASUYI v BUSINESS VENTURES (2000) VOL. 77 LRCN 749 AT 865; NEPA v ALLI (1993) VOL. 11 LRCN 406 AT 419 were cited to submit that the strict proof in the context of special damages means no more than proof as would easily lend itself to quantification or assessment, and expert evidence must not be led or receipts tendered before a claim for special damages can be sustained.
Counsel further submitted that the award of special damages in favour of the 1st & 2nd Respondents is in order and unimpeachable as the decision of the trial judge on the award of special damage in favour of the claimant is amply supported by the evidence and pleadings before the trial Court. The Appellants at the trial Court did not bother to cross–examine the Claimants on their claim for special damages. Counsel cited IBEANU v OGBEIDE (1998) VOL. 62 LRCN 4889 AT 3898; GAJI v PAYE (2003) VOL. 107 LRCN 873 AT 889; OFORLETE v STATE (2000) VOL. 80 LRCN 2670 AT 2694 in aid.
The case of BADMUS v ABEGUNDE (1999) VOL. 71 2912 AT 2925 was cited to submit that the trial Court is competent to award any of those items of which sufficient evidence is available.
In conclusion, Counsel urged the Court to dismiss this appeal and affirm the judgment of the lower Court.
RESOLUTION
The issues of the parties are substantially the same save for semantics, therefore, the Appellants’ issues would be adopted for resolution purposes. Similar issues were grouped and argued in the same manner. It was argued thus issues 1, 2 & 5 would be resolved together, issues 3, 4, 6 & 7 together, and issue 8 would be resolved separately.
ISSUES 1, 2 & 5.
The crux of these issues can be summed as follows:
1. Whether or not the 1st & 2nd Respondents had identified the land in dispute (6 acres of land)
2. Whether the land granted to the 1st & 2nd Respondents was more than the 6 acres claimed.
5. Whether the Court rightly accorded value to the Deed of Conveyance and the survey Plans No MWC/1260/83 prepared by the surveyor Chukwura irrespective of the conflicts in the deed and survey regarding the area of land purchased by the 1st and 2nd respondents father even when deed is defective porous and with no probative value.
It is a settled principle of law that a person seeking a declaration of title must first establish the identity of the land. In AIYEOLA v PEDRO (2014) LPELR – 22915 (SC) per MOHAMMED, JSC, the Supreme Court held that:
“On the issue of the identity of the property in dispute, the law is indeed trite that in a claim such as the one at hand for declaration of title to the property in dispute, the plaintiff must produce sufficient evidence to ascertain the definite and precise boundary of land claimed. See Arabe v. Asanlu (1980) 5 – 7 S. C. 78; Okedare v. Adebara (1994) 6 NWLR (pt. 349) 157 and Emiri v Imieyeh (1999) 4 NWLR (pt 599) 442 at 463 where Kalgo, Jsc said:
“One important way now commonly used by parties in land dispute is to establish the identity of the land in dispute by filing a detailed and accurate survey plan of the land showing the various features on such land sufficient to point to the clear boundaries thereof.”
See also in EKE & ORS v KALU (2017) LPELR – 42442 (CA); TUKURU & ORS v SABI & ORS (2013) LPELR – 20176 (SC); KOTUN & ORS v ALAKA & ORS (2019) LPELR – 46755 (CA); AREMU v ADETORO (2007) (PT. 1060) 16 NWLR 244 AT 257.
The 1st & 2nd Respondents’ relied on the following Exhibits in proof of their title to the land in dispute; Exhibit H (Deed of Conveyance); Exhibit A (the Litigation Plan made by Surv. Oborariruvwe U. Charleyson) and Exhibit B (Survey plan of the land made by Surveyor Chukwura) and tendered by CW1 (Surv. Oborariruvwe U. Charleyson).
They specifically stated in their Further Amended Statement of Claim thus:
4a. The land put in dispute by this suit is well known to the parties herein on record.
b. The land is situate/lying along NNPC Housing Complex Road, Ekpan in Uvwie Local Government Area of Delta State, Nigeria. The land is(sic) has a measurement of 2.474 hectares or 6 acres.
See page 342 of the record.
The Appellants (3rd – 6th Respondents) stated in their 2nd Further Amended Joint Statement of Defence thus:
“3. It is part of the 6th Defendants’ case that parcel 1 verged red referred in the penultimate paragraph in the Joint Statement of Defence for the 3rd – 6th Defendants is the 6 Acres of land, the 1st Defendant family allegedly sold to the Claimants forbear Parcel 2 verged green in the litigation Plan No. NDS/DT/022/2012 is the parcel of land fraudulently surveyed for the claimants’ forebear to form part of the parcel 1 acquired by the Claimants forebear from the 1st Defendant family of Ekpan. The 6th Defendant hereby pleads and shall rely on the litigation Plan No. NDS/DT/O22/2012 dated 26/7/2012 made by Surv. T. U. Onaemo filed in this suit including all the features therein at the trial.
4. The 6th Defendant states that parcel 1 in the litigation Plan No. NDS/DT/022/2012 is measuring approximately 6. 318 Acres while parcel 2 is measuring approximately 1.733 Acres. The two parcels of land in dispute are altogether measuring approximately 1. 733 approximately 8.051 Acres which is more than 6 Acres sold by the 1st Defendant Abugu family of Ekpan to the Claimants forebear.
5. The 6th Defendant pieces or parcels of land in possession of the 3rd – 5th Defendants as tenants of the 6th Defendant in dispute are clearly shown in the litigation Plan No. NDS/DT/022/2012 and the lands i.e plot 2 acquired from Sergeant Akepe Ujobolo and plots 1 and 2 acquired from 1st Defendant Abugu family are not sharing boundary with the Ekpan Creek but far away from the Creek. The piece of land sharing boundary with the Ekpan Creek belongs Madam Victoria Itebu who acquired the land from the Claimants forebear. The 6th Defendant surveyed the land for Emmanuel Okpacha the son of Madam Victoria Itebu without any interruption, disturbance or challenge whatsoever.
6. The 6th Defendant avers that Mr. Emmanuel Okpacha and the 1st Defendant came to him that 6 Acres of land belonging to late Madam Victoria Itebu should be divided into two equal part of 3 Acres each because the Mr. Emmanuel Okpacha wants to return of half of Madam Victoria Itebu land to Abugu family and I did so for them.
7. The 6th Defendant avers that after Madam Victoria Itebu’s land, then the 2nd Defendant’s land and thereafter an uncompleted shopping plaza before you come to the 6th Defendant lands in dispute when coming from NNPC Housing Complex Road towards Ekpan roundabout as clearly shown in litigation Plan No. NDS/DT/022/2012. (UNDERLINING MINE)’’
See pages 484 – 485 of the record.
The Appellants stated a different measurement and total from the 6 acres of land claimed by 1st & 2nd Respondents from the survey plans tendered by the 1st & 2nd Respondents, therefore joining issues with the 1st & 2nd Respondents to prove the exact measurements of the 6 acres of land claimed by them. See BABATOLA v ADEWUMI (2011) LPELR – 3945 (CA) per TSAMMANI, JCA where this honourable Court held that;
“It is however, only where the defendant has made the issue of identity of the land in issue in his statement of defence, that the necessity would arise for the claimant to lead evidence on the identity of the land which he claims or become an issue at the trial. In other words, the identity of the land in dispute will be in issue if, and only if, the defendant in his Statement of Defence makes it one, by disputing either the area or the size or the location or the features indicated by the Plaintiff in his Statement of Claim…”
See also NWOGO v NJOKU (1990) 3 NWLR (PT. 140) P. 570; ABDULLAHI v HEDIMA (2010) LPELR – 3556 (CA); BABATOLA v ADEWUMI (2011) LPELR – 3945 (CA).
Under cross-examination by the 1st Defendant, CW1 (Charleyson Obarairuvwe) who was the surveyor and was shown the land by Cw2, he identified the land thus;
“There are 2 plots 8. The first plot 8 is in the land in dispute. I can see Exhibit B. It is in the plot 8 in the area in dispute that is in Exhibit B. Ojobolo plot 8 verged pink is not shown in Exhibit B. It is true that it is not everything in Exhibit A that is in Exhibit B. The size of land in Exhibit B is 2. 474 hectares i. e approximately 6 acres. The land in Exhibit A – the one verged pink is approximately 3 acres. The total in Exhibit A is 9 acres. Yes Exhibit A shows the current situation of Exhibit B.”(UNDERLINING MINE)
The evidence of CW1 was not challenged or shaken in cross-examination. Exhibit P was not shown to him nor was the dispute as to size of land put to him in cross-examination. See page 4 of the Forwarded Copies of Proceedings deemed 20th January 2021.
The judgment entered by the lower Court in relation to size of the land was:
“1. The claimants are the beneficial owners in possession and therefore entitled to the Statutory Right of Occupancy over all that piece of land measuring 2. 474 hectares, situate along Housing Complex Road, Ekpan in the Uvwie Local Government Area, Delta State which as to its exact location, boundaries, dimension and features are as shown in Survey Plan No. MWC/1260/83 of 15 November, 1983 and reflected in Litigation Plan No. BSE/LD/024/12 prepared by Licensed (sic) Surveyor Obarairuvwe U Charleyson.” (UNDERLINING MINE)
See page 558 of the Record. From the above, it can be seen that the 1st & 2nd Respondents were laying claim to 6 acres of land sold to their father by the 1st Defendant (at the lower Court) and his late father, but from Exhibit B (the litigation plan) the land which is replicated in Exhibit A is measured 6 acres. BUT Exhibit A captures the area later sold but not in dispute. CW1 said equivocally that the area verged PINK was the land sold to Ojobolo and is not part of the litigation area captured. This was not shaken in cross-examination. There was no denial of these descriptions or appeal thereof.
At page 5 of supplementary record under cross-examination by 3rd -6th Defendants, Cw1 maintained that “the area of land in exhibit is not more than 6 acres’’.
This position that he was claiming 9 acres was not contested nor contradicted. The disputed area was clearly marked and demarcated in Exhibit A. Furthermore, in the statement on oath of the Cw1, he stated in paragraphs 8 – 10 at page 325 that the land sold to Ujobolo in Plan LSL/DT/98/193 in 1998 is outside the land in dispute. While two piece of land to Itebu via Plan MWC/DT/2264/82 and plan MWC/DT/3264/92 made on 18th June, 2008 is within the land in dispute.
The 3rd Respondent has admitted that 6 acres was sold by him and his father to the 1st & 2nd Respondents’ father and this captured in Exhibits H and B.
The lower Court in her judgment held that:
“…All agree that the onus and burden is on the claimant to prove their title.
From the evidence and arguments before me, it is clear that the main root of title relied on by the claimants is the document and evidence of possession over a period. AKINDURO v ALAYA (2007) 15 NWLR (PT. 1057) 312. The document relied on by the claimants is Exhibit H which the claimants tendered as a purchase receipt. The claimants pleaded that Exhibit H evidenced of the sale transaction between their late father and the Edjekuvwie family represented by the 1st defendant and his late father. Exhibit H was made in 1976.
…The 1st Defendant who is a party to Exhibit H in his evidence admitted that N45, 000 was paid by the claimants’ father but states that though Exhibit H was executed, there were no survey plan or details attached to it. However, in the 1st Defendant’s testimony, he admits that the N45,000 was for 6 acres. From the evidence before me therefore, the claimants’ father and the 1st Defendant agree that the Edjekuvwie family originally owned the land sold to the claimants. The claimants claim that the land sold to them by this family was 6 acres and was clearly defined in Exhibits A and B. The 1st defendant stated from paragraphs 2 of his witness statement on oath thus:
1. That sometime in 1976, I and my late father agreed to convey a portion of land approximately 6 acres to one Mr. Akpovofene Adidi for the consideration of N45, 000.00 (Forty five thousand Naira). This said portion of 6 acres of and was to be measured from the Ekpan River along NNPC Housing complex Road and the transaction was made subject to the preparation of a valid survey plan to be carried out by both parties as my father and family owns the entire stretch of land along the entire NNPC housing complex Road Ekpan.
2. That the document that evidenced this transaction was a land agreement without survey particulars and the entire terms of this agreement as contained in paragraphs 2 was made further subject to negotiations and approval of the larger Edjekuvwie family…”
See page 550 of the Record. See also pages 554 – 555 of the Record.
I find the supplementary records entered on 24th April, 2017 in Benin Registry and 11th June, 2020 in Asaba registry but deemed on 20th January, 2021 containing the list of exhibits, Exhibits 1 – Z and evidence captures the testimonies of CW1, CW2 and the 1st Appellant at the trial, which was not clear in the main record.
From the totality of the evidence as gleaned from the supplementary record, the parties know the land in dispute directly or from their respective vendors and that the land sold and claimed by the 1st & 2nd Respondents (claimants) were the 6 acres of land sold to their father by the Edjekuvwie family of which the Abugu family forms a part of which represented by the 1st Defendant and his late father.
1st & 2nd Respondents pleaded and tendered Exhibit H as a purchaser receipt acknowledged by the 3rd Respondent There is a connection between Exhibits A, B and H on the disputed land, boundaries measurements are clear Exhibit B has 2.474sqmts.
The lower Court awarded the area captured in Exhibit B which is from Exhibit A, the litigation plan was made by existing pillars seen by GPS due to fence built on them and does not capture the Ojobolo land which was been bought later and paid for. The size of the disputed land is 2.474 hectares (6 acres) in Exhibit B. While in Exhibit A it shows the total land area of Adidi to be 9 acres with 3 acres outside the land in dispute acquired later by the Claimants father, Ojobolo land verged pink. See supplementary record at page 4 paragraph 1, evidence of CW1, CW2 at page 8 1st paragraph, Exhibits G, G2 and G3, Exhibit H.
The 3rd Respondent/1st Defendant was recalled at page 385 of the main record, last paragraph and he made a U-turn now admitting he sold 12 acres to the 2nd defendant and that he knows Mr. Akpovofene Adidi, his family sold 6 acres to him but its not the same land, which he could not prove the difference even in Exhibits P, L, M & K.
From all surveys tendered, including Exhibits A, B & H, it is clear that the land sold therein is the same land of the Claimants’ father. The pillars numbers were shown on the surveys tendered by the 3rd Defendant. CW1 stated that no two beacon/coordinate numbers can appear in the same plan of another land except it’s the same original land that was resurveyed.
CW1 maintained in his statement on oath, that the plots in contest were within the Claimants land and this was not contradicted.
The crux of this appeal/matter is whether or not the 1st & 2nd Respondents’ father bought and paid for 6 acres of land from the Edjekuvwie family and whether their father sold part of the land to Mrs. Victoria Itbeju and Sergeant Ojobolo? Once these are resolved others fall in line with the application of the law.
The cross-examination of 7th Defendant could not prove or establish to the Court his origin of sale and quantum of land bought, his deed exhibit showed 3 acres while his evidence is on 7 acres, which he explained was shared with the 1st Respondent. Definitely apart from the fact the exhibit was fraught with issues; like it was established that, the lawyer who prepared not being called to the bar at time of preparation of the deed, he could not and did not plead the division between him and Daniel Abugo’s family and could not explain how he could be sharing land when he claimed and documents states that he bought from the 1st & 2nd Respondents’ father. This supports the evidence of the Respondents’ claim that they did not sell to Mrs. Ojebu, the 7th Respondent’s Mother. Therefore, upon proper evaluation the lower Court rightly refused to place reliance/weight on the document.
The Appellants contended that a visit to the locus standi ought to have been made to the disputed land to ascertain the location, it is trite that a visit to a locus in quo would not be necessary once there is no dispute as to its location. In OBI v MBIONWU (2002) LPELR – 2164 (SC) per IGUH, JSC, the Supreme Court held that:
“…it is now well settled that the inspection of a locus in quo is strictly not necessary where the area of land in dispute is clear to the Court and the parties and the trial Court must arrive at its judgment not on the impressions from the locus in quo but upon the impressions from the evidence led before the Court. A trial Court is only bound to record the fact of the inspection and need not give its details although it is good practice where possible to record the full details of such inspection…”
See also EBOADE & ANOR v ATOMESIN & ANOR (1997) LPELR – 989 (SC); DANJUMA v NASIRU & ANOR (2015) LPELR – 25922 (CA); ABDULLAHI & ORS v ADETUTU (2019) LPELR – 47384 (SC).
Therefore, the situation does not call for a locus in quo when the location has even been clearly defined beyond doubt by the 1st & 2nd Respondents through the evidence and cross-examination of CW1 & CW2 and Exhibits A & B. I resolve these issues against the Appellants.
ISSUES 3, 4, 6 & 7.
The questions herein are – whether the evidence of 1st Defendant, Dw3 and 4th Appellant amounts to hearsay evidence and he could not prove that Exhibit B was more than 6 acres, neither could he explain Exhibit P in relation of the plots sold and each?
– Whether Exhibits P, Q, R, S1, S2, U, V, W, X, Y & Z were properly evaluated and right weight attached by the trial Court
– Whether the trial Court was wrong in holding that any purported sale, transfer, conveyance or lease of the land by the Dw3 to 4th Respondent herein is null and void.
– Whether the trial Court was right when it rejected the Certificate of Occupancy of the 4th Appellant over the land that is not in dispute.
The resolution revolves round the evidence of DW3 evidence is at page 588 – 589 of the main record and 4th Appellant (who was 6th defendant).
The Dw3’s name is Thomas Umumu Onaemo, a surveyor. He testified on behalf of the 3rd – 6th Defendants, he carried out the survey on 26th July, 2012 and tendered Exhibit P survey plan 022/2012 he stated that the land in Exhibit P is bigger than that in Exhibit B and failed to show how and whether the land in dispute formed part of the 2nd – 6th Defendants’ land, he also said the 6th Defendant told him that part of the land was sold to Madam Victoria Itebu by the Claimants’ father and to the 2nd Defendant by 1st Defendant and that the plots 1 – 10 belonged to the 1st Defendant. He described the land and admitted that he found old colonial beacons on the land while surveying it which was the same as in Exhibit B No QB4570 and QB4571. There was no cross-examination.
It was clear without ado but that he surveyed a land on behalf of 3rd & 6th Defendants, which originally belonged to the Claimants and all other evidence were hearsay having being told it runs contrary to Section 77 of the Evidence Act. See MANAGEMENT ENTERPRISES v OTUSANYA (1987) NWLR (PT 55) 179; KAKIH v PDP & ORS (2014) VOL 238 LRCN 72AT 123.
The Appellants contended that DW3 is an expert, permit me to state that having surveyed and found the beacon number it suggestive that the land was owned by the owner of the original survey and if now had been sold, the earlier survey plan ought to be given to the buyer and he ought to have requested for that survey plan, if truly sold by the owner. He exhibited poor knowledge and was obviously tutored by the 6th Defendant and he even prepared all other plans along that direction. He could not show professionally how Exhibit B had more than the six plots claimed on the plan; he only relied on hearsay evidence. In my view, his evidence carried no weight and this affected his plans. CW1 was a better witness who met all questions professionally, on this note I also agree with the assessment of the lower Court.
Secondly, the 6th Defendant testified that he is Anthony Akwari (4th Appellant herein). He is also a registered surveyor and he commissioned Dw3 to survey his lands. He stated that Sargent Ojobolo is his vendor, he tendered in proof of his title, Exhibit R – CTC OF JUDGMENT, S1 – RECEIPT, S2 – CTC RECEIPT (ACKNOWLEDGMENT), (RECEIPTS), T – (SURVEY PLAN), U – PLAN 30/2002, V -PLAN 98/193, W – 84A/2008, X – DEED OF ASSIGNMENT BETWEEN HIM AND ABUGU OF 11/3/2009, Y – DEED BETWEEN HIM AND ABUGU 19/6/2008 and Z -30/4/1999.
These documents do not prove original root of title or link same, they are traced to the 1st Defendant who sold land to Claimants father but sold it jointly with the Edjekuvweie family in 1976. These are later sales executed only by the 1st Appellant with his brother in the name of ABUGU Family ALONE, who are not competent to further transfer the land to anybody. Furthermore, he failed in his proof to bring Sargent Ojobolo to tie up his ownership as to where he obtained his root title and if indeed, the three acres sold to Ojobolo which was not captured in Exhibit B or it was a fresh one.
It is trite that after the Claimant has traced his root title it behooves on the Defendants to do discharge the burden that has shifted to them. The 6th Defendant/4th Appellant has to show superior titles, if they bought from the same vendor or if from a different source, failure to do this is fatal. See G. CHITEX INT LTD v O. B. INTERNATIONAL SUPRA, the doctrine of first in time applies where two equities are equal and in this case, it is the same land that was sold to them, the beacons bear witness this.
On the other hand, if from a different vendor the ownership or original owner must be traced and proved, failure to do this is also fatal. See ADOLE v GWAR SUPRA. EXHIBIT Q was tendered by the 6th Defendant, a certificate of occupancy does not/and cannot vest title if the source/root of title is not proved. See OTUKPO v JOHN & ANOR SUPRA; OGUNLEYE v ONI 1990 NWLR (PT 135) 745 AT 749 501-502.
Therefore, the lower Court at pages 545 – 548 of the main record properly evaluated the Exhibits and accorded them the right weight to be attached which, I agree amounts to no weight at all.
Consequently, having found that the Claimants’ land was the same sold to the 3rd Defendant and the 4th Appellant could not trace the root of title in his lands beyond Sergeant Ojobolo and others. There are discrepancies contained in his title presented, the extent of land contained in the deed and his plans makes his testimony unreliable.
The affidavit on oath of the Dw3 in paragraphs 6, 7 & 8 therein are all based on hearsay and has been nullified by his evidence in Section 77 of Evidence Act which is unreliable.
The judgment – Exhibit R tendered was merely dumped on the Court, there was no evidence to tie it to the land in dispute. It has the plaintiff as Sargent Ojobolo and does not as the lower Court held; state if it relates to the land in question. The said Sargent Ojobolo was not brought to clarify and the Claimants said their father was not aware of the case. The 6th Defendant/4th Appellant is not a party to the proceedings neither did he testify on the purport. I also agree that it is unreliable and irrelevant to the proceedings.
Lastly, as a result of the inability to prove the root of title to the original owners of the land, the Claimants having proved that their father did not sell nor execute the deeds tendered and disowned the signature there on as their fathers, the proper thing to do is to nullify all and any sale, transfer, lease, ownership, title by the 1st Defendant and purportedly claimed by the 2nd – 7th Defendants or anyone else. The 1st Defendant/Appellant is caught by the doctrine of “nemo dat non quo habet’’.
I adopt the evaluation of the lower Court.
The lower Court properly evaluated same and this Court cannot interfere in the appraisal of the evidence. 4th Appellant acquired part of the land from Abugu family that had been earlier sold to 1st and 2nd Respondent’s father vide Exhibits Y & X in 1999 – 2009 or 1999 in Exhibit Z. See pages 563 of the record.
See AUTA VS IBE SUPRA ODUSOGA V RICKETTS SUPRA Therefore, I resolve issues 3, 4, 6 & 7 against the Appellants.
ISSUE 8
This issue borders on special damages. Special damages have been defined in KOPEK CONSTRUCTION LTD v JOHNSON KOLEOLE EKISOLA (2010) LPELR – 1703 (SC) per MUHAMMAD, JSC thus:
“Special damages are those damages which are the actual but not the necessary result of the injury complained of which in fact, follow as a natural and proximate consequence in the particular case, that is, by reason of special circumstances and conditions. See Shell Petroleum Development Company Nig. Ltd v Tiebo & Ors (supra). In the case of Kalu & Anor V. Mbuko (supra), special damages are such as the law will not infer from the nature of the fact. They do not follow in ordinary cause. They are exceptional in their character and they must be claimed specifically and proved strictly.”
See also AHMED & ORS v CBN (2012) LPELR – 9341 (SC); OBASUYI & ANOR v BUSINESS VENTURES LTD (2000) LPELR – 2155 (SC); CALABAR EAST CO – OP THRIFT & CREDIT SOCIETY LTD & ORS v IKOT (1999) LPELR – 826 (SC).
On how the burden of proof on a plaintiff claiming special damages is said to be discharged, the Apex Court in BENJAMIN OBASUYI & ANOR v BUSINESS VENTURES LIMITED (2000) LPELR – 2155 (SC) per OGUNDARE held that:
“The law on the award of special damages is clear. And that is, that the onus is on the Plaintiff to prove special damages strictly…
In order to discharge this burden the Plaintiff must show by credible evidence that he is indeed entitled to the award of special damages – Oladehin v C.T.M.L (1978) 2 SC 23. That is, the evidence adduced by the Plaintiff must show the same particularity as is necessary to its pleading – Imana v Robinson (1979) 3 – 4 SC 1 AT P. 23 where Aniagolu JSC delivering the judgment of this Court said: “It should therefore normally consist of evidence of particular losses which are exactly known or accurately measured before the trial. Strict proof does not mean unusual proof, as the play of appellant’s counsel on those words tended to suggest, but simply implies that a Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation must give the defendant access to the facts which make such calculation possible.” See also Kurubo v Zach Motion Nig. Ltd (1992) 5 NWLR 102. Unchallenged evidence, without more, can constitute sufficient proof of special damage – Adel Boshali v Allied Commercial Exporters Ltd (1961) All NLR 917; Odulaja v Haddad (1973) 11 SC 1; NMSL v AFOLABI NWLR 393; (1992) SCNJ 98.”
See UBN PLC v CHIMAEZE (2014) LPELR – 22699 (SC); ELIJAH OLADEJI KOSILE v AMUBA OLANIYI FOLARIN (1989) NWLR (PT 107) 1; NWABUOKU v P. N. OTTIH COMMERCIAL EXPORTERS (1961) 1 ALL NLR 917 AT 921; UGWE UKOHA & ORS v GOLDEN OKORONKWO (1972) 1 ALL NLR (PT. 11) 100 AT 105.
The 1st & 2nd Respondents pleaded copiously and led evidence, see page 344 of the record and page 7 line 22 of the supplementary record as to existence of these thus:
“My father took possession of the said land and exercise ownership, by demarcated land by boundary trees, and planted economic trees on the land.”
From the cross-examination of other defendants and their witnesses, it is on record that these trees planted by the Respondents’ father, the number and quantity of economic trees that were cut uprooted damaged by the Appellants and the 1st & 2nd Defendants at the lower Court.
This evidence was not contradicted or controverted by the Appellants and the 1st & 2nd Defendants either by cross-examination or in their statement of defense, but then the evidence falls short of the exact number and cost of each as pleaded in the claim. It is trite that pleadings are not evidence and failure to give evidence in support of pleadings goes to no issue, I am afraid the 1st and 2nd Respondents failed to prove the special damages pleaded in paragraph 21 under title “particulars of special damages”. The 1st & 2nd Respondents cannot therefore be entitled to their claim for special damages. See YENKARTI & ANOR v ABBAH & ORS (2017) LPELR – 43032 (CA); EKIYE v FRCN (2018) LPELR – 44116 (CA); NGILARI v MOTHERCAT LIMITED (1999) NWLR; OSHINJINRIN & ORS v ELIAS & ORS (1970) ALL NLR 158 (2006) LPELR- 3504 (SC); B. E. O. O INDUSTRIES NIG v MADUAKOH (1975) LPELR -691 (SC) XTOUDOS SERVICES NIG LTD & ORS v TAISEI (W.A) & ANOR (2006) LPELR – 3504(CA).
I observe that the 1st & 2nd Respondents have claimed 20 matured palm trees at N1,000 each and totaled N1,000,000 which made the total claim for special damages N1,020,000.00. This calculation is obviously wrong and ought to be N20,000 for the palm oil trees and gave a wrong total. This is not in line with special damages, the particularity must be exact in calculations. However, the lower Court put the right figure in clause 4 of the award in the judgment at page 579.
The claims awarded under this head in clauses 4, 5 & 6 of the judgment are hereby set aside.
The claim for general damages of N200,000 per each Defendant as damages which adds up to N1,400,000 appears too low in the light of the level of destruction and length of time of deprivation but there is no cross-appeal on the issue, therefore I shall let it lie, and abide by the award of general damages and cost. I resolve this issue in favour of the Appellants.
On the whole, having succeeded only on issue 8 on special damages awarded, the appeal succeeds in part. The judgment of the lower Court coram HARRIMAN, J., is hereby affirmed except for the award in clauses 4, 5 & 6 for special damages which is set aside.
I award the cost of N200,000 against each Appellant.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I had read the draft of the leading judgment in this appeal as anchored by my Lord, Abimbola Osarugue Obaseki – Adejumo, JCA and I agree that the appeal be allowed in part only.
Where there is a mathematical error in the calculation in the award of special damages as properly awarded, an appellate Court may correct the errors by entering the correct figures as an appellate Court may vary any order or Judgment to meet the ends of justice.
In this case, a perusal of the body of the Judgment at page 579 of the record shows that the trial Judge had correctly reflected the quantum of special damages of N20,000 for 20 number of matured Oil palm trees reckoned at N1,000 as pleaded, and yet awarded N200,000 for same. It must be an error. A Court of Justice must correct it. I should, however, emphasise that a claimant is at liberty to make his claim as he chooses but he has an obligation to prove same at the peril of the dismissal of his claim if he fails to prove same.
It is therefore, not for the Court to alter its station as an impartial umpire, as sympathy has no place in law.
What is more, as pleadings do not constitute evidence, the bare pleadings of the 1st and 2nd Respondents in the paragraph 21 of their statement of claim meant that their claim remained unproved
Finally, since cases are decided on proof by admissible and credible evidence and not on evidence not before the Court. It is therefore, settled that the Courts must not act on intuition or an or on documentary evidence not before the Court. See KATTO VS CBN (1991) 9NWLR PT. 214, PAGE 31, the Appellants had failed to prove their entitlement to the resolution of the fundamental Issues postulated by them and I concur with the lead judgment as entered by allowing the appeal in part only, as relating the variation or correction of the quantum of special damages.
MUSLIM SULE HASSAN, J.C.A.: I have had the benefit of reading in draft the leading judgment just delivered by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA, and I am in agreement with his reasoning and conclusions in resolving the issues in this appeal.
I have nothing to add to the brilliantly analyse and well resolved appeal as I abide by the consequential orders made therein.
Appearances:
D. I. Obukehwo – for 4th Appellant. For Appellant(s)
Andrew Chido For Respondent(s)
