ZENITH BANK PLC v. ALHAJI TITILAYO
(2015)LCN/7889(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of June, 2015
CA/L/01/13
RATIO
TORT: TORT OF TRESPASS; WHAT IS TRESPASS AND WHEN ID IT ACTIONABLE
Trespass simply is any slightest disturbance to the possession of land by a person who cannot show a better right to possession; see FAGUNWA v. ADIBI (2004) 17 NWLR (Pt.903) 544; FASHAM V ADELOYE (1974) 6 S.C 72; PRINCE ABDULRASHEED ADETONA v. ZENITH INTERNATIONAL BANK PLC (2011) 12 S.C (Pt IV) 44 and OJINI V OGO OLUWA (1998) 1 SCNJ 27. It is trite that trespass is actionable at the suit of the person in possession of the land, see BAMBOYE V OLUSOGA (1996) 4 NWLR (Pt 444) 520. per. YARGATA BYENCHIT NIMPAR, J.C.A.
COURT: THE DUTY OF THE COURT TO EVALUATE EVIDENCE; WHAT THE COURT MUST CONSIDER WHEN EVALUATING EVIDENCE AND REACHING HIS FINAL CONCLUSION AND WHAT DOES THE EVALUATION OF EVIDENCE ENTAIL
The apex court has this to say on evaluation of evidence in the case of ABISI v EKWEALOR (1993) NWLR (Pt 302) 643: “Before a Judge whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality of probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the Judge will naturally have regard to the following: (a) Whether the evidence is admissible; (b) Whether it is relevant; (c) Whether it is credible; (d) Whether it is conclusive; and (e) Whether it is more probable than that given by the other party. Finally after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.” So therefore evaluation of evidence is the assessment of all the facts presented in the case as evidence and the ascription of value or weight to get to see which one is weightier, see OYADIJI V OLANIYI (2005) 5 NWLR (Pt 919) 561. It is therefore the primary duty of a trial court to evaluate evidence before it. per. YARGATA BYENCHIT NIMPAR, J.C.A.
COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH PERFORMANCE OF THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE
An appellate court cannot interfere with findings of facts upon a proper evaluation of evidence. The court can only interfere when the evaluation was improper thereby leading to perverse findings not supported by evidence, see GAJI V. PAYE (2003) 8 NWLR (Pt 823) 583 which held thus: “As a general principle of law, evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial court, which saw, heard and assessed the witnesses. Where a court of trial, unquestionably evaluates the evidence and makes definite findings of fact which are fully supported by such evidence and are not perverse it is not the business of the Court of Appeal to substitute its own views for those of the trial court. What the Court of Appeal ought to do is to find out whether there is evidence on which the trial court arrived at its findings. Once there is evidence on record, the appellate court cannot interfere.” per. YARGATA BYENCHIT NIMPAR, J.C.A.
EVIDENCE: ADMISSION; THE DEFINITION OF ADMISSION
An Admission was defined in the case of ACHORU V INEC (2010) LPELR 3588 (CA) thus: “Admission has been defined by the Black’s Law Dictionary, 5th Edition at page 44 as: ‘confession, concessions and voluntary acknowledgment made by a party of the exercise of certain facts: deducing from the definition in my view it follows that there are numerous legal consequences of admission by the defendant and which would serve in favour of the plaintiff. In other words: 1. It shifts the burden of proof off the plaintiff. 2. It exonerates the plaintiff. 3. It aids the plaintiffs case. 4. It makes light the burden expected or placed on the plaintiff.” See also OGUANISHU v. CHIEGBOKA (2003) 25 WRN 113. per. YARGATA BYENCHIT NIMPAR, J.C.A.
DAMAGES; THE TWO CLASSES OF DAMAGES AND THE DIFFERENCE BETWEEN THE TWO
There are 2 classes of damages namely, general damages and special damages, the apex court in the case of NIGERIAN COMMUNICATIONS COMMISSION V MOTORPHONE LIMITED & ANOR (2007) LPELR – 8893 (CA) stated thus: “General damages” are such as the law will presume to be the direct, natural or probable consequence of the act complained of whereas “Special damages” are such damages as the law will not infer from the nature of the act complained of. They are exceptional character wise and must be specifically pleaded and strictly proved. The difference between the two types of damages is that, whereas, in the former case the court can make an award when it cannot point out any measure of assessment except what it can hold in the opinion of reasonable man. In the latter case all the losses claimed on every item must have crystallized in terms and value before trial.” See also ADEKUNLE V ROCKVIEW HOTELS LTD (2004) 1 NWLR (Pt.853) 161 at 173 – 174; ADEDO V ISMAILA (1998) 11 NWLR (Pt.573) 214 and IJEBU ODE LOCAL GOVERNMENT V. ADEDEJI BALOGUN & CO LTD (1991) 1 NWLR (Pt.166) 135. Specifically on the difference between the two, see the case of SHODIPO & COMPANY LTD V DAILY TIMES OF NIGERIA LTD (1972) LPELR – 3065 (SC) distinguished between the two as follows: “The only difference is that, where one is claiming special damages the circumstances are such that one is able to put one’s finger on a particular item of loss and say, I can prove that I lost so much there, so much here.” per. YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
ZENITH BANK PLC – Appellant(s)
AND
ALHAJI TITILAYO – Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of HON. JUSTICE T.A.O. OYEKAN-ABDULLAI of the Lagos State High Court delivered on the 28th day of September, 2012 wherein the Lower Court granted the claims of the Respondent including an award of N2,000,000.00 (Two Million Naira), damages for trespass on the Respondent’s property. The appellant aggrieved with the judgment filed a notice of appeal dated 24/10/2012 setting out two grounds of appeal.
The brief facts of the case between the parties are that they share the same fence at Ikota, Lekki – Epe Express Way and the Respondent alleged that the appellant was dumping refuse and waste materials on her land without her consent. She then instituted an action against the appellant claiming the following:-
(a) A DECLARATION that it is unlawful for the Defendant to enter upon, encroach and deposit without her consent its waste material on the claimant’s property situate at No. 2 Amudalat Ajuwon Close, KM 14 Lekki – Epe Express Way, Ikota, Lagos.
(b) AN ORDER of perpetual injunction restraining the Defendant, its agents, servants, privies or anyone however from entering or unlawfully depositing refuse or any other material into the claimant’s property or committing any further trespassing on claimants land.
(c) The sum of N5,000,000 (Five Million Naira) being damages for the trespass committed by the defendant on the claimant’s property.
The matter went to full trial and the judgment of the court for the Respondent is what aggrieved the appellant thus this appeal.
Appellant filed its brief dated 28/1/14 filed on the 31/1/14 but deemed on the 2/6/14 which was adopted at the hearing. The Respondent’s brief dated 5/8/14 was filed on the same date and deemed on 23/9/14. The appellant distilled 2 issues for determination as follows:
1. Whether from the totality of the evidence the learned trial Judge was not in error when she held that:
“The above excerpts show that the above facts were admitted and her (sic) unchallenged by the defendant. Facts that are admitted need no further proof. They are taken as establishing the act complained of.”
2. Whether the learned trial Judge did not err when she held as follows:
“The overwhelming video had the debris on the dividing fence between the Claimant and the Defendant showing that the Defendant’s bank to a large extent had played a prominent role in depositing their debris on the claimant’s land thereby committing an act of trespass.”
The Respondent on her part also formulated 2 issues namely:
(1) Whether the learned trial Judge correctly and properly evaluated the evidence led by the parties before arriving at her decision.
(2) Whether the trial Judge did not err when she held as follows:
“The overwhelming video had the debris on the dividing fence between the claimant and the defendant showing the defendant’s bank to a large extent had played a prominent role in disposing of their debris on the defendant’s land, thereby committing an act of trespass…”
All the issues are focusing on the same areas highlighted in the judgment appealed against. The court shall adopt the issues formulated by the appellant as issues to be resolved in this judgment and shall be resolved at once since they both revolve around evaluation of evidence.
ISSUE ONE:
The appellant submitted that there were no admitted facts upon which the court could base its judgment to find that there was trespass, it relied on NWADIKE V IBEKWE (1987) 2 NSCC 1219; (1987) 4 NWLR (Pt 67) 718. Appellant argued that the burden of proof was on the Respondent and she cannot rely on the weakness of the appellant’s case to succeed, citing Section 132-134 of the Evidence Act and that the standard of proof is on the preponderance of evidence relying on OGUEJIOFOR V SIEMEN’S LTD (2008) 2 NWLR (Pt.1071) 283; CROWN FLOOR MILLS LTD V OLOKUN (2008) 4 NWLR (Pt.1077) 254.
Appellant contended that there was inadequate evidence upon which to find the appellant liable since the burden is on he who asserts. That the judgment is against the weight of evidence as the Lower Court did not consider the totality of the evidence.
On the need to consider the totality of evidence before the court, the appellant relied on MOGAJI V. ODOFIN (1978) 4 S.C. 91 at 92; FRANO NIGERIA LTD V DAODU (1993) 3 NWLR (Pt 281) 372 to submit that a court must base its judgment on evidence citing TSOKWA MOTORS NIGERIA LTD v UBN LTD (1996) 9 NWLR (Pt 471) 129; OKOYA V SANTILI (1990) 2 NWLR (Pt 131) 172.
The appellant questioned the findings of the trial Judge in the absence of evidence that staff of the appellant were seen on the land depositing waste more so in the face of evidence that LAWMA (Lagos Waste Management Agency) was paid to evacuate waste from the appellant’s premises and that led to a perverse judgment, citing MOGAJI V CADBURY (NIGERIA) LTD (1985) 2 NWLR (Pt.7) 393 in support.
The appellant contended that general damages awarded was based on sentiments or speculation contrary to known principles as established in GARI V. SEIRAFINA (NIG) LTD (2008) 2 NWLR (Pt 1070) 1; AFRICAN SHIPPING AGENCY NIG LTD V KALLO (1978) 3 S.C, 21; ODUMOSU V. ACB (1976) 11 S.C. 35; R. BENKAY NIGERIA LTD v CADBURY NIGERIA PLC (2005) 16 W.R.N. 117 at 125. Appellant urged the court to find for the appellant under issue one.
The appellant in arguing issue two submitted that the fact that parties share a common fence did not mean that appellant was responsible for dumping the refuse on her premises. Appellant challenged the credibility of the Respondent’s witnesses and the Lower Court was wrong to have relied on them. The appellant submitted that the Respondent did not lead evidence in proof of its pleadings. It urged the court to find for the appellant under this issue.
The Respondent on issue one submitted that there is ample evidence to support the final judgment and the Lower Court evaluated the evidence before it properly as can be seen at page 174 of the record of appeal. That it was the different pieces of evidence which were correctly evaluated which led to the findings, these are from oral evidence and video recordings showing debris which had accumulated on the wall dividing the properties, photographs showing tellers, envelopes, invoices and other organic waste deposited on the premises which were admitted as Exhibit FA2 – FA22 and these were not challenged nor controverted. The Respondent contended that the appellant merely denied the claim and relied on Exhibit FA-23 which are receipts of payment to LAWMA (Lagos Waste Management Agency) but did not deny the materials on the Respondent’s plot which had the insignia of the appellant. Furthermore, that the appellant’s witness, one A.O. Adejoba admitted under cross examination that materials having appellant’s insignia and logo were items deposited on the Respondent’s premises. Furthermore, that Exhibit FA 23 was expunged by the Lower Court for failing to satisfy legal requirements of certification being a public document and the trial Judge evaluated same in the judgment. The Respondent urged the court to find that the appellant did not shift back the burden of proof and relied on ANYANWU V. UZOWAKA (2009) VOL 7 MJSC (Pt 1) and that on the balance of probabilities, the court should find for the Respondent under this issue.
The Respondent, in response to the submission that there was no evidence, argued that it is not the law that the Respondent must have personally seen staff of the appellant dumping the waste on her land before the court can find that there was trespass. Furthermore, that the appellant through its sole witness admitted under cross examination that the waste had the identity of the appellant and the trial court considered the proximity of the premises of the parties, the nature of the waste materials deposited and the absence of evidence that the appellant disposed off its waste in any other place. Respondent argued that pleadings and evidence were fully considered by the court particularly Exhibit FA 23 which was discountenanced and relied on WALI V. BAFAWARA (2005) ALL FWLR (Pt.249) 1863 at 1901-1902 on findings of fact.
Respondent referred to the evidence of the sole witness of the appellant who admitted that there was no evidence of payment to LAWMA for January 2012 when the waste was sighted on Respondent’s land and relied on Section 167(d) of the Evidence Act to urge the court to find for the Respondent and hold that there was sufficient evidence before the court to justify the findings. She urged the court to dismiss the appeal.
RESOLUTION:
Trespass simply is any slightest disturbance to the possession of land by a person who cannot show a better right to possession; see FAGUNWA v. ADIBI (2004) 17 NWLR (Pt.903) 544; FASHAM V ADELOYE (1974) 6 S.C 72; PRINCE ABDULRASHEED ADETONA v. ZENITH INTERNATIONAL BANK PLC (2011) 12 S.C (Pt IV) 44 and OJINI V OGO OLUWA (1998) 1 SCNJ 27.
It is trite that trespass is actionable at the suit of the person in possession of the land, see BAMBOYE V OLUSOGA (1996) 4 NWLR (Pt 444) 520. The Lower Court found that there was trespass by the appellant in the act of entering into the land of the Respondent to deposit waste. This the appellant denied vehemently. It is the findings of the court that is stoutly challenged on the premise that there were no facts which were admitted by the appellant. The trial court at page 174-175 of the record reviewed the evidence before the court and made findings as follows:
“There is no dispute about the boundary of the land and its ownership as it is certain that the claimant owns the property. From the evidence given by the claimant witness, witness stated that Exhibits FA3, FAA – FA12 indicated that debris and waste from the Defendants. However under cross examination the sole defendant witness admitted that:
“I saw the dividing fence I saw some debris and the insignia of Zenith Bank our company offered to clear some in the spirit of good neighbourliness.”
The above excerpts show that the above facts were admitted and her (sic) unchallenged by the Defendant. Facts that are admitted need no further proof. They are taken as establishing the act complained of.”
The quotation above is the basis of issue one which the appellant challenged as not coming from an evaluation of evidence. I find that what is reflected above is what the record also discloses. The cross examination of the appellant’s witness is exactly what was quoted as coming from him. He viewed the visual evidence and admitted that he saw debris with the name and insignia of the appellant on the land of the Respondent and it was across the fence between the bank premises and the Respondent’s land, That too is what the sole witness of the Respondent told the court as shown on the record.
The apex court has this to say on evaluation of evidence in the case of ABISI v EKWEALOR (1993) NWLR (Pt 302) 643:
“Before a Judge whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality of probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the Judge will naturally have regard to the following:
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.
Finally after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.”
So therefore evaluation of evidence is the assessment of all the facts presented in the case as evidence and the ascription of value or weight to get to see which one is weightier, see OYADIJI V OLANIYI (2005) 5 NWLR (Pt 919) 561. It is therefore the primary duty of a trial court to evaluate evidence before it.
An appellate court cannot interfere with findings of facts upon a proper evaluation of evidence. The court can only interfere when the evaluation was improper thereby leading to perverse findings not supported by evidence, see GAJI V. PAYE (2003) 8 NWLR (Pt 823) 583 which held thus:
“As a general principle of law, evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial court, which saw, heard and assessed the witnesses. Where a court of trial, unquestionably evaluates the evidence and makes definite findings of fact which are fully supported by such evidence and are not perverse it is not the business of the Court of Appeal to substitute its own views for those of the trial court. What the Court of Appeal ought to do is to find out whether there is evidence on which the trial court arrived at its findings. Once there is evidence on record, the appellate court cannot interfere.”
Issue one formulated by the appellant challenges the evaluation of evidence before the Lower Court. The question to ask is whether the findings made by the Lower Court are backed by evidence before it? I have perused the record and I do not see where the quarrel of the appellant is stemming from. The findings are backed by evidence before the court. There is documentary evidence of what was taken from the land, a visual recording which was viewed and the appellant’s witness admitted with his own words what he saw and listed them. Because it came from the appellant, it is indeed an admission that waste from the appellant’s premises were seen on Respondent’s land.
An Admission was defined in the case of ACHORU V INEC (2010) LPELR 3588 (CA) thus:
“Admission has been defined by the Black’s Law Dictionary, 5th Edition at page 44 as: ‘confession, concessions and voluntary acknowledgment made by a party of the exercise of certain facts: deducing from the definition in my view it follows that there are numerous legal consequences of admission by the defendant and which would serve in favour of the plaintiff. In other words:
1. It shifts the burden of proof off the plaintiff.
2. It exonerates the plaintiff.
3. It aids the plaintiffs case.
4. It makes light the burden expected or placed on the plaintiff.”
See also OGUANISHU v. CHIEGBOKA (2003) 25 WRN 113.
It is clear that what the appellant’s sole witness told the court under cross examination is an admission that waste from its premises were placed on the land of the claimant. That invariably lightened the burden of proof on the claimant. The complaint was something like this: ‘you dumped waste from your premises on my land and you said no I did not! But when the visual was shown to you, you then turned round to say I now see waste on the claimant’s land bearing our company name and logo. The question is what does that mean? Simply, it means that the appellant finally admitted what the Respondent alleged after seeing the visual recording.
I find that the Lower Court evaluated the evidence before it properly arrive at the findings. Issue one is resolved against the appellant.
Continuing, the appellant relied on copies of receipts issued by LAWMA (Lagos State Waste Management Agency) solely as defence. The receipt was admitted as Exhibit FA23 but later expunged at judgment stage because it was a photocopy of a public document which was not certified as required by Section 102 and 105 of the Evidence Act. That was the main plank of the Appellant’s defence that it paid LAWMA (Lagos State Waste Management Agency) to remove waste from its premises. After Exhibit FA 23 was expunged, the appellant was left without any defence but mere denial. LAWMA was not called to testify. I am of the view that if indeed LAWMA evacuated waste from the Appellant’s premises and part of the waste is later found on the Respondent’s land, then LAWMA should have been called to provide answers. The burden of proving that aspect rest on the appellant and it was not shifted. In civil cases, the burden of proof oscillates unlike the static nature in criminal cases. The Respondent in this case provided evidence cogent enough to satisfy its pleadings thus shifting the burden of proof onto the appellant but failed to rebut. Having retained the burden, it must bear the weight of liability. All these were analysed by the Lower Court.
The next aspect to consider is the allegation that the Lower Court gave judgment on speculation or suspicion not evidence. The judgment of the trial court on trespass and the dumping of refuse cannot be faulted. It was not based on suspicion or speculation as it can be traced to the evidence before the court and failure to supply the needed evidence by the appellant made the duty and burden on the Respondent lighter.
The issue of damages was also highlighted by the appellant and it contended that there was no evidence to warrant the quantum of damages. There are 2 classes of damages namely, general damages and special damages, the apex court in the case of NIGERIAN COMMUNICATIONS COMMISSION V MOTORPHONE LIMITED & ANOR (2007) LPELR – 8893 (CA) stated thus:
“General damages” are such as the law will presume to be the direct, natural or probable consequence of the act complained of whereas “Special damages” are such damages as the law will not infer from the nature of the act complained of. They are exceptional character wise and must be specifically pleaded and strictly proved. The difference between the two types of damages is that, whereas, in the former case the court can make an award when it cannot point out any measure of assessment except what it can hold in the opinion of reasonable man. In the latter case all the losses claimed on every item must have crystallized in terms and value before trial.”
See also ADEKUNLE V ROCKVIEW HOTELS LTD (2004) 1 NWLR (Pt.853) 161 at 173 – 174; ADEDO V ISMAILA (1998) 11 NWLR (Pt.573) 214 and IJEBU ODE LOCAL GOVERNMENT V. ADEDEJI BALOGUN & CO LTD (1991) 1 NWLR (Pt.166) 135.
Specifically on the difference between the two, see the case of SHODIPO & COMPANY LTD V DAILY TIMES OF NIGERIA LTD (1972) LPELR – 3065 (SC) distinguished between the two as follows:
“The only difference is that, where one is claiming special damages the circumstances are such that one is able to put one’s finger on a particular item of loss and say, I can prove that I lost so much there, so much here.”
It is clear that the Lower Court awarded general damages for trespass which it found committed by the appellant. Having found the appellant liable for dumping waste on the Respondent’s land, general damages would ordinarily flow and it was so awarded.
The grouse of the appellant is that nobody saw its staff on the land. The appellant is a company and naturally acts through human agents. Agreed that nobody was physically seen on the land but the presence of the appellant was evidently manifested by the waste that came from its office. The visual evidence clearly showed how the refuse was dumped close to the wall separating them and obviously from the other side which is the premises occupied by the appellant. If the refuse were general waste without any clear identification features, the argument of the appellant might be valid. The contention of the appellant does not make sense because of the proximity of its premises to the land trespassed, and trespass must not necessarily be committed by human beings being present on the land. By its definition, trespass is the disturbance to possession. Possession can be distilled by human activities. The Black Law Dictionary describes trespass as follows:
“1. A person’s unlawful entry on another’s land that is visibly enclosed. This tort consists of doing any of the following without lawful justification: (1) entering upon land in the possession of another, (2) remaining on the land, or (3) placing or projecting any object upon it.
2. At common law, an action to recover damages resulting from another’s unlawful entry on one’s land that is visibly enclosed.”
Furthermore, William Blackstone, Commentaries on the Laws of England 209 – 10 (1768) had this to say:
“Every unwarrantable entry on another’s soil; the law entitles a trespass by breaking his close; the words of the writ of trespass commending the defendant to show cause, quare clausum querentis fregit. For every man’s land is in the eye of the law enclosed and set apart from his neighbours; and that either by a visible and material fence, as one field is divided from another by a hedge; or as when one man’s land adjoins to another’s in the same field. And every such entry or breach of a man’s close caries necessarily along with it some damage or other: For, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage.”
It is therefore safe to state that it is not only the entry onto the land by a human being that is trespass as it can be gleaned from the definition of trespass above that placing or projecting any object upon the land of another is trespass. That amounts to interference, disturbance and intrusion which is trespass. Of course it is human activity that causes trespass. In this case, it was the placement of waste from the office of the appellant onto the land of the Respondent that is in issue. It is more offensive here because it is waste or refuse which devalues the land.
The argument therefore that since no staff of the appellant was seen on the land therefore means there was no trespass, is flawed and cannot stand. Issue two is resolved against the appellant.
Finally, therefore, this appeal lacks merit and is hereby dismissed. The judgment of HON. JUSTICE T.A.O. OYEKAN-ABDULLAI delivered on the 28th day of September, 2012 is hereby affirmed.
Cost of N50,000.00 (Fifty Thousand Naira) to the Respondent.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Yargata Byenchit Nimpar, JCA. I agree with the reasoning and final conclusion.
Trespass is a civil wrong against possession in that it is an unlawful and unauthorized invasion of the Right of the party in possession who can maintain an action in trespass against the whole world except the owner. See UBA Plc vs Samba Petroleum Co Ltd (2002) 16 NWLR Pt.793 pg 361.
Trespass to land is actionable at the instance of the person in possession. Exclusive possession gives the person in possession the right to retain the land and to undisturbed enjoyment of it against all wrong doers except a person who can establish a better title. See Adepoju vs Oke (1999) 3 NWLR Pt.594 pg 154, Oyadare vs Keji (2005) 7 NWLR pt. 925 pg 571, Balogun vs Akanji (2005) 10 NWLR Pt.933 pg 571.
The trial Judge also evaluated all the evidence placed before her well in reaching a conclusion that the Appellant indeed trespassed on the Respondent’s land.
For this and the more robust reasoning in the lead judgment, I too must dismiss this appeal for lacking in merit.
I abide by all the other consequential orders contained in the lead judgment including that as to costs.
TIJJANI ABUBAKAR, J.C.A.: It is the duty of the trial Judge to evaluate evidence and make primary findings of facts. This duty remains foisted on the Lower Court unless it is shown to the satisfaction of the appellate court that the Lower Court derailed in its assessment, or premised its findings on parameters that are perverse or predicated on wrong principles of law, the appellate court will always refrain from interference. See: IRIRI V. ERHURHOBOBA (1991) 2 NWLR (PT.173) 253.
My learned brother Nimpar JCA dealt with the issues submitted for determination thoroughly and well. I entirely agree and adopt the Judgment as my own.
Appearances
Evelyn Obioha (Mrs.); E. Ubeze (Miss)For Appellant
AND
Nasir RunmunkonFor Respondent
