In The Court of Appeal
(Kaduna Judicial Division)
On Friday, the 1st day of March, 2013
Suit No: CA/K/250/2002
Before Their Lordships
ABDU ABOKI ....... Justice, Court of Appeal
THERESA N. ORJI-ABADUA ....... Justice, Court of Appeal
ITA GEORGE MBABA ....... Justice, Court of Appeal
1. GROUP CAPTAIN OGAH (RTD)
2. TAYO OWOMUYIWA ADEBISI Appellants
1. MALLAM GARBA ALI GIDADO
2. MARYAM YAHAYA
3. THE MILITARY ADMINISTRATOR, KADUNA STATE
4. THE ATTORNEY GENERAL AND COMMISSIONER OF JUSTICE, KADUNA STATE
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): The two Appellants were the 2nd and 3rd Defendants at the Kaduna State High Court in Suit No. KAD/488/94, which was instituted by one Alhaji Ali Gidado as plaintiff against the Appellants and the 2nd, 3rd and 4th Respondents in this appeal - who were co-defendant at the Court below. The 1st Respondent later substituted the said Alhaji Ali Gidado as Plaintiff upon his demise. At the High Court, the plaintiff (1st Respondent) had sought declaratory reliefs, a mandatory injunction, a perpetual injunction and one hundred Thousand Naira (N100,000.00) general damages, against the Defendants for trespass in respect of the piece of land consisting of 0.40 acre situate at Kaduna, in Kaduna North Local Government Area. The full text of the Plaintiff's claim at the Lower Court were:
a. DECLARATION that the Plaintiff is the lawful holder of Kaduna State certificate of Occupancy No. 10939, dated 26th August, 1990 and registered as No.123 at page 123 in volume 47 (Certificates of Occupancy) of the Lands Registry in the Office at Kaduna and therefore the person rightfully entitled to the rights and interest created by the said Certificate over the piece of land consisting of 0.40 of an acre situation at Kaduna in the Kaduna Local Government Area (now known as Kaduna North Local Government Area), the corners of which are marked on the ground by property Beacons Nos. KDB 1969, KDB 1870, KDB 7856 and KDB 1875 and the boundaries of which are delineated by a red verge on the approved plan No. NC LP, 242 deposited in the office of the Surveyor General Department of Lands, Survey and Country planning, Kaduna South AND more particularly described as plot No.16 Road "IV" TPO 4864 UnguwarDosa Extensions Layout, Kaduna.
b. A DECLARATION that any allocation of the said land or grant of Certificate of Occupancy over the land by the 4th Defendant or any of his agents, servants or privies to any person including the 1st, 2nd and 3rd Defendants, without the lawful revocation of the Plaintiff's Certificate of Occupancy No, NC.10939, over the land, in accordance with the provisions of the Land Use Act 1978 (or any statutory modification thereof) and the 1999 Constitution of the Federal Republic of Nigeria is illegal, null and void.
c. A DECLARATION that the 1st, 2nd and 3rd Defendants have trespassed into the said land.
d. AN ORDER OF INJUNCTION commanding the 1st, 2nd and 3rd Defendants to forthwith vacate and deliver up possession of the said land or the part(s) of the land trespassed into by time with the improvement thereon to the plaintiff.
e. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st, 2nd and 3rd Defendants by themselves agents, servants or privies from trespassing or further trespassing on the plaintiff's said land.
f. THE SUM OF N100,000,00 (One hundred thousand naira only) against each of the 1st, 2nd and 3rd Defendants as general damages for trespass on the Plaintiff's said land.
g. SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstances.
At the close of the trial the parties (including the appellants) filed their written addresses and in a considered judgment, the learned trial judge, Zailani J, held for the Plaintiff, granting all the reliefs sought. The judgment was delivered on 16th May, 2000.
Appellants, being dissatisfied with the said decision of the trial Court lodged this appeal on 1st June, 2000, as per the Notice of Appeal on page 109 of the Record of Appeal. They disclosed 4 grounds of Appeal. Appellants later obtained leave to file amended Notice of Appeal on 29th June, 2009, wherein they disclosed 9 grounds of appeal, as follows:
(1) ERROR IN LAW
The Hon. Trial judge erred in law, when he held that the 1st Respondent (Plaintiff in the Lower Court had discharged his onus of proof even though the evidence was that the appellants were in possession of the disputed land, and the respondents did not show that he had a better right to possession which was disturbed, but had a title which was in itself demonstrated to be defective.
PARTICULARS OF ERROR
(i) Admitted, proved and accepted facts show that the appellants were in possession of the disputed land.
(ii) The Respondent did not lead any evidence to show the appellants' title were inferior to his, or that their title had ceased.
(iii) Admitted proved and accepted facts show that the Respondent's title was defective.
(2) ERROR IN LAW
The Hon. Trial judge erred in law, by arriving at his judgment on the impression from his visit to the locus in quo, instead of his impression from the totality of the legal evidence adduced before the Court thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERROR
(i) There is no evidence on the record that portions of the land in dispute were used by the appellants and still there was a large portion unused left vacant.
(ii) There is no evidence on the record to show that the land claimed by the Respondent is distinct from those of the appellants.
(3) ERROR IN LAW
The Hon. Trial judge erred in law, by misapplying to proved facts the law relating to the questions a court needs to inquire into before relying upon an instrument produced to prove title to land (the rule in ROMAINE VS. ROMAINE (1992) 5 SCNJ 25 at 36) hereby rendering the judgment perverse.
PARTICULARS OF ERROR
(i) There is no evidence to show that exhibits P1 and P2 were genuine and valid.
(ii) There is no evidence to show that exhibits P1 and P2 emanated from a competent authority.
(iii) There is no evidence on record to show that the 4th defendant had the statutory powers to grant the land in dispute.
(iv) There is no evidence on record to show that when he granted the land the 4th defendant had in fact what he granted to the Plaintiff.
(4) The decision is against the weight of evidence.
(5) The learned trial judge erred in law when he held as follows:-
The fact of this case is that the grantor of the land was competent to grant it and the land was available to be granted.
PARTICULARS OF ERROR
(i) The above finding is not borne out of evidence adduced in this suit.
(ii) There was no evidence before the trial Court regarding the competence of the grantor and the availability of the land to be granted to the 1st Respondent.
(iii) The 3rd & 4th Respondents in this suit did not adduce evidence as to whether or not they granted the disputed land to the 1st Respondent and as to the availability of the land to be granted.
(iv) There was no evidence that the land granted was available more so when the land granted was not a virgin land as the 1st, 2nd and 3rd Defendants were already in occupation of the land.
(v) This erroneous finding has thereby led to a grievous miscarriage of justice in this suit.
(6) That the learned trial judge erred in law when he held that the identity of the disputed plot of land is different from the land belonging to the appellants.
PARTICULARS OF ERROR
(i) The boundaries of the disputed plot of land were not established by way of credible evidence.
(ii) The Respondent admitted that he did not know the extent of the encroachment i.e. he did not know the extent of the alleged trespass to the plot in dispute.
(iii) The plot in exhibit P2 was allocated to the Respondent as a virgin land in contra- distinction to what the 1st Respondent saw on the land when he visited the site.
(iv) This erroneous finding made by the learned trial judge as to the identity of the disputed plot of land in issue in this suit has thereby led to a grievous miscarriage of justice in this matter.
(7) That the learned trial judge erred in law when he awarded as general damages the sum of One Hundred Thousand Naira (N100, 000.00) each against the appellants for trespass in respect of the disputed plot of land in this suit when the 1st Respondent admitted that the three defendants inclusive of the appellants were in physical possession of the disputed plot of land before his arrival at the said plot of land.
PARTICULARS OF ERROR
(i) Trespass to land is actionable at the suit of the person in possession of the land.
(ii) It is clear from the evidence that the 1st Respondent in this suit had never been in physical possession of the disputed plot land in this suit.
(iii) It is clear from the evidence that even before the 1st Respondent went to the disputed plot of land the 1st and 3rd defendants had been and were in physical possession of the disputed plot of land and had already built houses on the land even before same was allegedly allocated to the 1st Respondent.
(iv) There is no evidence that the 1st Respondent had erected any structure on the disputed plot of land and that same has been damaged by the defendants inclusive of the appellants.
(8) The award of the sum of one Hundred Thousand Naira each as general damages for trespass in respect of the disputed plot of land against the appellants in favour of the Respondent is excessive having regard to the fact that the 1st Respondent had never been in possession of the disputed plot of land and did not erect/construct any structure on the disputed plot of land.
(9) That the learned trial judge erred in law in awarding against the appellants a perpetual injunction in respect of the plot of land in dispute in this suit when the 1st Respondent was not entitled to the remedy.
PARTICULARS OF ERROR
(i) An order of a perpetual injunction is always restricted to a well defined area.
(ii) The evidence adduced by the 1st Respondent did not properly identify the area over which the order of perpetual injunction would operate in his favour.
(iii) The evidence adduced shows lack of precision in delineating the area to be covered by the order of perpetual injunction."
They filed their Brief of argument on 7th September, 2009 and distilled 5 Issues for determination, namely:
"(1) Whether, in view of the totality of the evidence adduced in this case, the 1st Respondent has discharged the burden of proof in this matter entitling him to the reliefs granted to him by the Lower Court,
(Grounds 1, 2, 4 and 6)''
(2) Whether the mere production of a Statutory right of occupancy in the instant case automatically extinguished the interest of the Appellants in the disputed plot of land (Ground 3).
(3) Whether the plot of land allegedly granted to the 1st Respondent by the 3rd Respondent was available to be granted having regard to the fact that the appellants were in legal occupation of the same at the time of the purported grant. (Ground 5).
(4) Whether the 1st Respondent was entitled to the award of general damages for trespass to the disputed plot of land in view of the totality of the evidence given in this matter and if the answer is in the positive, whether, the general damages awarded against each of the appellant is not excessive in all the circumstances of this case
(Grounds 7 and 8).
(5) Whether the 1st Respondent was entitled to the grant of perpetual injunction in the Suit, in view of the evidence adduced relating to the identity of the plot of land claimed in this Suit (Ground 9)."
The Respondents did not file any Brief and so Appellants brought an application for the appeal to be heard on Appellants' brief alone, upon the Respondents' refusal or failure to file their Brief (s). That application was granted on 23rd November, 2010. When the appeal was heard on 12th February, 2013, there was evidence that the respondents had been served with the hearing notices: 1st Respondent by pasting on 31st January, 2013, as per an earlier order of Court to serve him by substituted means; 2nd and 3rd Respondents on 4th and 5th February, 2013, respectively.
Arguing the appeal, learned Counsel for the Appellants, CHIEF CHRIS A. EKHASEMOMHE submitted, in respect of Issues 1 and 5, which he argued together, that in a claim for a declaration of ownership or exclusive possession of plot of land such as in the instant case, the first and foremost duty of the claimant is to describe the land in dispute with such reasonable degree of certainty and accuracy that its identity will no longer be in doubt; such that a Surveyor, armed with the description, would have no problem identifying the land. He relied on the case of BARUWA VS. OGUNSHOLA 4 WACA 159; EPI VS.AIGBEDION (1972) ALL NLR 804 at 809; LORDYE vs. IHYAMBER (2001) FWLR (Pt.31) 2881 at 2887. Counsel referred us to the evidence of PW1 on pages 87 - 89 of the Record and said that PW1 did not give evidence relating to the description of the disputed land; that his evidence did not satisfy the principles stated in the above cases; that he merely stated that the land is situate at UnguwarDosa Kaduna and, did not give any evidence as to the particular area in UnguwarDosa that the disputed plot of land is found. Counsel also said that under Cross-examination the PW1 admitted he could not measure the extent of encroachment on the land.
He submitted that it was not enough for PW1 to complain of trespass to the disputed plot, without mentioning the extent of the trespass; that the portion of land trespassed upon must be defined in an action for trespass to land. He cited the case of ANABARONYE VS. NWAKAIHE (1997) 1 NWLR (Pt.482) 374 at 381.
Picking fault with the evidence of PW3 on the beacon stones fixed on the land, counsel submitted PW3's evidence revealed that:
(1) The said beacons were planted/ fixed on the disputed land in June, 1998, during the pending of the Suit which was filed on 24th August, 1994; that the beacons stones in Exhibit P2 and the attached plan were not physically positioned on the ground at the time the said Exhibit P2 and the attached plan were made and issued to PW1.
(2) The Certificate of Occupancy No. NC 10939, dated the 26th August, 1990, tendered and admitted as Exhibit P2, in which the beacons Nos. KDB 1869, KDB 1970, KDB 1856 and KDB 1857 featured was not related to and identified with the beacons fixed on the disputed plot in June, 1998. That means Exhibit P2 and the beacons fixed on the disputed plot of land were not made at the same time.
Counsel therefore submitted that since the basis of PW1's claim was premised on Exhibit P2, which was not issued in respect of an ascertained and defined plot of land in UnguwarDosa Kaduna, at the time of filing this Suit, PW1's claim ought to fail; That the proof of identity of land in dispute, in terms of Exhibit P2, is sine qua non in establishing by PW1 a case of title to the disputed plot of land. Thus, that Exhibit P2 was issued in 1990 while the beacons were fixed on the desputed land on June, 1998. He relied on the case of AGBONIFO VS. AIWEREABA (1988) 1 NWLR (Pt.96) 182 at 184.
He further submitted that, since the Exhibit P2 contains facts relating to beacons which were not fixed on the disputed land until June, 1998 (after the institution of the suit), the said Exhibit P2 was unreliable; that the identification of the disputed land by PW3 was uncertain and inconclusive, as he did not show the trial Court exactly the spot in the disputed plot where beacon (stone) No. KDB 1857 was fixed. He urged us to hold for the Appellants, and relied on the case of UDEKWU AMATA VS. UDOGU MODEKWE AND ORS.14 WACA 580 AT 582.
Counsel further submitted that the entries and features in Exhibit P2 and the attached plan were not given in evidence by any of the three witnesses for the prosecution and so the trial Court was not right to hold:
"...The land claimed by the plaintiff is distinct from those of 1st, 2nd, and 3rd Defendants. This has been established by the plan attached to exhibit P2."
Counsel submitted that though the Appellants, did not lead evidence at the trial, that that did not relieve the Plaintiff (PW1) of the onus of proof on him; that the Plaintiff had a duty to adduce sufficient and credible evidence in proof of his claim and must rely on the strength of his own case and not on the weakness of the defence case. He relied on the case of ALHAJI MOHAMMED JODI VS. ALFA SAKA SALAMI (2009) ALL FWLR (Pt.458) 385 at 409; KODIHINYE VS.MBANEFO UDO 2 WACA 336 at 357 - 338; SHOSHAL GAMBO VS.ZINDUL URDAM (1993) 6 NWLR (Pt.300) 500 at 509. He added that a certificate of occupancy, like Exhibit p2, once duly issued, operates from the date of issue. He relied on FINNIH VS. IMADE (1992) 1 NWLR (Pt.219) 511 at 533; that because PW3 gave evidence on
17/7/1998 to say that the beacons were fixed last month, that meant the beacons were fixed in June, 1998, thus, showing that the Certificate of Occupancy had been issued (in 1990) before the beacon Stones on the plan attached were fixed in 1998! Thus, they cannot be used to identify the land.
He urged us to resolve the Issue 1 and 5 in their (Appellants') favour.
Counsel argued Issues 2 and 3 together. He submitted that before a statutory right of Occupancy is issued, the Plot of land in respect of it must be available and certain; that in this case neither the 3rd Respondent nor the 4th Respondent gave evidence as to the availability of the plot of land allegedly allocated to the PW1 in this suit; that the above observation not withstanding, the trial court still made the following finding on page 103 lines 19 - 20:
"The fact of this case is that the grantor of the land was competent to grant it and the land was available to be granted. It was granted."
Counsel submitted that that finding was not borne out of the evidence adduced; that there is no evidence before the Court that the plot of land was available to be granted by the grantor; that PW1 admitted, under cross-examination, that before he want to the plot the 2nd Respondent and the appellants were already there, meaning that the three defendants were already in physical possession of the disputed land. Counsel said that that fact was acknowledged by the trial judge when he said that:
"It is true that the Plaintiff has never been in physical possession of the land. His evidence has shown this. The defendants' submission in this respect is correct."
(Page 102 line 3 21 - 23)
Counsel then submitted that where the evidence shows that the defendant is in possession of the plot of land in dispute, such as in the instant case, the onus is on the Plaintiff, such as PW1, to show that he has a better right to possession, which was disturbed and unless that onus is discharged, the plaintiff cannot defeat the defendant. He relied on the case of SHOSHAI GAMBO VS. ZINDUL (1993) 6 NWLR (Pt.300) 500 at 511.
He added that the Plaintiff (1st Respondent) has not discharged that burden in this case; that plaintiff was relying heavily on exhibit P2 which was issued to him on 26/8/1990, but the same is questioned by the beacons (Stones) on the plan attached to the Exhibit P2, having been fixed on the land in June, 1998, about 8 years after the Exhibit P2 was issued to PW1. On this he relied on the evidence of PW 3 on Page 91 of the record of Appeal, and on the case of UDOFIA VS. AFIA 5 WACA 216 at 217, on the point that 1st Respondents evidence, relating to the extent of and identification of the plot, was not free from ambiguity; that even one of the beacon stones (1857) was fixed right inside the house.
Counsel also submitted that PW2, who identified Exhibit P2, did not give evidence identifying the boundary of the plot in dispute and where the plot is in UnguwarDosa, Kaduna. He said that Certificate of Occupancy (like Exhibit P2) is not a magic wand that destroys existing right over a land; that the mere production and reliance on an instrument of grant of title to land, such as Exhibit P2, carries with it the need for the Court to enquire into a number of questions, like:
(a) Whether the document is genuine and valid.
(b) Whether it has been duly executed, stamped and registered.
(c) Whether the grantor had the authority and capacity to make the grant.
(d) Whether the grantor had in fact what he purported to grant.
(e) Whether it had the effect claimed by the holder of the instrument.
He relied on the case of ROMAINE VS. ROMAINE (1992) 4 NWLR (Pt.238) 650; ENULOLOBO VS.ADEGBESAN (2000) 11 NWLR (Pt.698) 611; JODI VS.SAMALI (2009) ALL FWLR (Pt.458) 385 at 412.
Counsel concluded that unless the factors, adumbrated above are satisfied, the mere production of an instrument of grant does not necessarily carry with it automatic grant of relief sought for declaration of title or grant; that examination of the entire evidence in Plaintiff's case shows that the Plaintiff has not established Exhibit P2 was genuine and valid, that it emanated from competent authority and that the grantor had infact what he purported to grant by it (Exhibit P2).
He urged us to resolve the issues in Appellants' favour.
On Issue 4, Appellants' Counsel submitted that before damages are awarded in a case of trespass, the claimant must prove that either he was in exclusive possession of the land or has a better title to it; that that is a condition precedent as it takes somebody who is in possession to maintain an action in trespass and damages. He relied on the case of AMAKOR VS. BENEDICT OBIEFUNA (1974) 3 SC 67 at 75 - 76, and argued that, in this case, 1st Respondent did not prove that he had exclusive possession of the disputed land; that he (Plaintiff) I had even admitted in Court that before he went to the plot of land, the 2nd Respondent herein and the Appellants were already there, meaning that the three defendants in the suit were already in physical possession of the land in dispute.
He also relied on the findings of the Lower Court to that effect and urged us to resolve the issue in Appellants favour, saying that a claim in trespass presupposes that the Plaintiff is in possession of the land at the time of the trespass. (AROMIRE AND ORS. VS. AWOYEMI (1972) ALL WLR 105 at. 112); that it was clear, from evidence, that the Plaintiff was never in possession of the plot of land in dispute, let alone at the time of filling the Suit, and that was why he prayed for recovery of possession of the disputed land.
He further stated that 1st Respondent did not establish that better title resided in him; that the presumption of law is that the party having title is in lawful possession as there can not be concurrent possession by two parties, claiming adversely; that one must be in lawful possession, while the other is a trespasser. He relied on the case of KPONUGLO VS, KODADJA 2 WACA 24 at 29; ADEBAYO VS. IGHODALO (1996) 5 NWLR (Pt.450) 507 at 527; EZDIWESILI AND ORS.AGBAPUONWU AND 2 ORS.(20003) FWLR (Pt.167) 2016 at 2042.
Counsel submitted, finally, that the 1st Respondent did not discharge the onus on him, to demonstrate by credible evidence, that the title to the disputed plot of land was in him. He adopted his arguments in all the issues canvassed above and urged us to allow the appeal.
RESOLUTION OF ISSUES
As earlier stated in this judgment, this Appeal was heard on the Appellants' Brief alone, as none of the Respondents filed any Brief of argument. I shall therefore consider the appeal on the issues as distilled by the Appellants, taking same in the order they were argued.
On Issues 1 and 5, which Appellants argued together, Appellants queried whether by the evidence adduced, the 1st Respondent (Plaintiff) had discharged the burden of proof entitling him to the reliefs granted to him, especially considering the evidence adduced by the Plaintiff relating to the identity of the plot of land in dispute. He had submitted that the Plaintiff merely stated that the land was situate in UnguwarDosa, Kaduna, without stating the particular area in UnguwarDosa, Kaduna, and without describing the land in dispute to reasonable degree of certainty and accuracy, that the identity will no longer be in doubt.
Counsel further argued strongly that the Exhibit P2 (Certificate of Occupancy and attached Survey plan) which the 1st Respondent relied on, heavily, would not help him, because, by the evidence of his witness (PW3), the beacon stones on the plot were fixed in June, 1998, i.e. eight years after the Certificate of Occupancy was issued. That that affected the identity of the land in dispute; that the Certificate was therefore not issued in respect of the Land, which evidence showed was in possession of the 1st to 3rd Respondents, and the 1st Respondent never had physical possession of it.
The law is well defined on the methods of establishing title to or ownership of land by a claimant; that it can be proved by either of the five ways as stipulated in the case of IDUNDUN VS. OKUMAGBA (1979)
9 - 10 SC 227 at 246 - 250, namely:
"(1) Through traditional history.
(2) By grant or production of document of title.
(3) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference that the person(s) exercising such acts of possession are the true owners of the Land.
(4) By acts of long possession, and
(5) By probable that the owner of such land, would in addition, be the owner of the land in dispute."
There are scores of other authorities in support of this age long principle of proof of title to or ownership of land, and a claimant is required to establish only one of them to succeed. See the case of MOGAJI VS. CADBURY NIG LTD (1985) 2 NWLR (Pt.7) 393; ALLI VS.ALESINLOYE (2000) 6 NWLR (Pt.600) 177.
The law is equally well settled that, in a situation of conflicting claims, where each of the opposing parties can establish proof of ownership by any of the acceptable methods of proof of title to or ownership of the same piece or parcel of land, then the party that establishes better title will be entitled to the judgment of the Court. See the case Of IDOWU AND ORS VS. THE REGISTERED TRUSTEES OF ONA IWA MIMO CHERUBIM AND SERAPHIM CHURCH OF NIGERIA (2012) LPELR 7863 (CA), where it was stated:
"When the issue as to which of two claimants has better right to a piece of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title." See FASORO VS. BEYEKU (1988) 2 NWLR (Pt.76) 263; ONYENEYIN VS.AKINKUGBE (2010) 4 NWLR (Pt. 1184) 265; AROMIRE V5.AWOYEMI (1972) 7 ALL NLR at 10.
The 1st Respondent at the Lower Court had pleaded the Certificate of Occupancy No. NC 10939 over the land in dispute; he also led evidence to show how he was issued with the said Certificate of Occupancy in 1990. He also pleaded the dimension and beacon stones, tracing the boundary of the land, as per survey plan No NC LP242 deposited in the Office of the Surveyor General Kaduna State, and led evidence on the same. The Certificate of Occupancy with the survey plan attached was admitted in evidence, without objection, as Exhibit P2, and deemed as read. See page 88 and 89 of the Records. The said land was also registered as No.123 at page 123 in volume 47 of the Lands Registry Office in Kaduna. Thus, the 1st Respondent was asserting claim of title to the land by means of grant of title (Certificate of Occupancy) by the Governor, that is, the 2nd method of establishing title to land by means of grant of title, and production of documents of title.
Appellants, as co-defendants, did not counter claim. They only asserted that they were in possession of the land! In paragraph 11 of the 1st Defendant's Amended Statement of defence, she stated as follows:--
"It will be the 1st Defendant's case that even if the Plaintiff has any title to the land or parts of it (which is denied), the Plaintiff acquiesced to the acts of all the Defendants' including the 1stDefendant as he never raised the issue in any manner until all the developments including the creation of a road had been completed and his so called plot effectively erased before coming to Court."
See page 43 of the Records.
They never stated how they came by the very land they asserted possession of and claimed right over. Of course, in land matter the burden is on the Plaintiff to lead credible evidence to prove his title and he is not expected to rely on weakness of the case of the defence. The trial Court was satisfied with the quality of evidence led by the Plaintiff to prove his title over the land and the production of his document of title, in the circumstances, was deemed satisfactory. By law, the production of the deed of title, such as certificate of occupancy, in a claim, where the claimant pleads ownership by grant of title, is sufficient and prima facie proof of his title, until the adverse party proves a better title. See the case of LATEJU VS. FABAYO (2012) 1 NWLR (Pt.1304) 159; at 179; KAIGAMA VS.NAMNAI (1997) 3 NWLR (Pt.495) 549; MADU VS. MADU (2008) 6 NWLR
Appellants had made a lame submission that the Respondent heavily relied on the Exhibit PZ (Certificate of occupancy and the attached survey plan) without leading evidence to identify the plot of land, where it is situate in UnguwarDosa, Kaduna, and without describing the land with certainty and accuracy. I think that submission was misplaced in the face of the certificate of occupancy which clearly identified and specified the land allocated to the Plaintiff, attaching the survey plan No. NCLP 242, deposited in Surveyor General's Office. The land was further registered in the Lands Registry, with specific particulars. The identity and description of the Land was therefore not in doubt, except to the gullible.
In the case of MOMOH VS. UMORU (2011) 15 NWLR (Pt.1279) 217 at 247 the
Supreme Court said:
"In land cases, it is the plaintiff's survey plan that determines the land in dispute and not the defendant's survey plan where the defendant has not counter-claimed," See also OKPALOKO VS. UME (1976) 9 - 10 SC 269; OWOTAIRE VS. ONOKPOSO (1984) 12 SC 19
Speaking of the advantages of filing Survey Plan in land dispute, my
Lord, OGUNWUMIJU, JCA, said:
"One of the ways of showing a specific area claimed is to file a plan of the area, such plan being properly oriented drawn to scale and accurate reflecting the boundary features."
Thus, once a survey plan is tendered to identify the land in dispute, oral evidence to describe the features and boundaries of the land is subsumed in the plan, which is before the Court, being a written, and by far a better evidence of identification of the land in dispute.
The Appellants also attempted to make a huge capital of the evidence of the PW3, under Cross-examination, when he said on page 92 of the record of proceedings:
"I did not take part in positioning the beacons. I tired (tried?) toenter into the house to see the beacon end of last month. We make thearrow sign, indicating beacon KDB 1869, I made it end of last monthwhen we came. That was the first time I visited this place. There is read (sic) (public) on the property identified. We measured beacons degrees, number record and displaces. We did that measurement, last month... We fixed the beacons last month."
That evidence was made by PW3 on 17th July, 1998. That is the evidence which the learned counsel for Appellants has interpreted (in the Appellants' brief) to mean that the beacons (stones) in the survey plan attached to the certificate of occupancy (Exhibit P2) was planted or fixed in June, 1998; just because the PW3 said: "We did that measurement last month. I can, under the authority of the Survey General of the State. We fixed the beacons last month." (See pages 5 and 6 of the Appellants' Brief).
I think the Appellants' Counsel simply took some lines of the evidence out of context, to suit his purpose and to mislead this court. PW3 worked at the Bureau for Lands and Survey, Kaduna, as principal Surveying Assistant. He came to court to identify the certificate of occupancy No. NC 10989 issued to the 1st Respondent and the Survey plan covering the land, which he also identified as Exhibit 2. He did not testify as the maker of the Survey plan, nor as the person who issued the Certificate of occupancy but as a government official, authenticating the Certificate of Occupancy and the attached Survey plan as government approved processes also showing he had authority of the Surveyor General to replace beacons that were removed. I believe he was explaining what he did as government official to authenticate the attached Survey plan, upon his visit to the site, sometime in June, 1998, when he explained his difficulty to trace one of the Survey beacons (buried inside the house erected by one of the
Defendants who allowed him no access to that beacon) and he and his team had to do some measurements, making arrow signs to indicate the appropriate places of the beacons. What the PW3 and his team did can, in no way, translate to meaning or implying that the Survey plan was done or that the beacons were planted in June, 1998 by the PW3! That would not appear as a honest inference. Thus, the entire argument of the Appellants meant to discredit the Survey plan and, by extension, the Certificate of Occupancy (Exhibit P2) was founded on a wrong and dishonest inference.
Appellants were, therefore, in error as there was no evidence to support Counsel's argument that the Survey plan of the land was made in June, 1998 - eight years after the issue of the Certificate of Occupancy, in 1990! Apparently, Appellants did not contest the Certificate of Occupancy, which was admitted without any objection, but only tried to make capital of the beacons (stones) as to when they were planted or fixed on the land.
Of course, the presumption of law relating to due compliance with due procedure for issuance of the Certificate of Occupancy, and registration of the Land as well as the fact that the supporting Survey plan No. NC. LP 242, attached, was done, before the issuance of the Certificate of Occupancy on 26/8/1990, would operate in favour of the 1st Respondent, in the circumstances. See Section 146 (1) and (2) of the Evidence Act 2011, which says:
1. The Court shall presume every document purporting to be acertificate, certified copy or other document, which is by lawdeclared to be admissible as evidence of any particular fact and whichpurports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that such document- is substantially in the form and purports to be executed in the manner by law in that behalf.
2. The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such document.
I therefore resolve Issues 1 and 5 against the Appellants.
Issues 2 and 3 were also argued together Appellants had contended that before a right of Occupancy is issued, the plot of land in respect of it must be available and certain, and that the grantor has the power to grant the title, which he gives out to the person receiving. Appellants also argued that when the evidence shows that the defendants, as in this case, were in possession of the plot, that the onus is on the claimant to prove or show that he had better title, which was disturbed.
Unfortunately, the Appellants did not give evidence at the trial court, to show how they came by the possession of the land, which they are seeking the 1st Respondent, who had judgment, to prove better title. They did not also counter claim at the Lower Court, and so the only evidence that establishes title to the land was the one presented by the Plaintiff (1st Respondent), via production of deed of title Certificate of Occupancy (Exhibit P2), which by law is prima facie prove of title, unless the opponent proves better title. See the case of KAIGAMA VS. NAMNAI (SUPRA); LATEJU VS. FABAYO (SUPRA)
In the case of OLALEYE VS.TRUSTEES OF ECWA (2011) 2 NWLR (Pt.1230) 139, my Lord, DENTON WEST, JCA, stated the effect of grant of Statutory right of Occupancy, thus:
"Once a person is granted a Statutory right of occupancy in and over a parcel of land, he is entitled to hold same to the exclusion of any other, person unless and until the certificate of occupancy is set aside. However, Section 5 (2) of the Land Use Act does not preclude the Court from setting aside the grant of the statutory right of occupancy in the appropriate circumstances, such as, for instance, when it was issued in error or obtained by fraud. (GANIKON VS.UGOCHUKWU CHEM, IND. LTD (1993) 6 NWLR (Pt. 297) 55; TENIOLA VS.OKOLUNKUN (1999) 5 NWLR (Pt.602) 280 SAUDE VS. ABDULLAHI (1989) 4 NWLR (Pt. 116) 387 referred to)."
Of course, the power and authority of the Governor to grant the right of occupancy, by issuance of the certificate thereof, like Exhibit P2, is protected by law. See Section 1 of the Land Use Act 1978, which vest all land in the State on the Governor of the State. See Section 5 (1) (a) of the Act which authorises the Governor to grant right of Occupancy to anybody that fulfils the conditions for the grant. Appellants' questioning of the power and title of the grantor (Governor) to grant the Certificate of Occupancy (Exhibit P2) to the 1st Respondent, is therefore a great error.
Issue 2 and 3 are therefore resolved also against the Appellants.
Issue 4 was whether the 1st Respondent was entitled to the award of general damages for trespass to the disputed plot of land, in view ofthe totality of the evidence given in this matter, and if the answeris in the positive, whether the general damages awarded against eachof the Appellants is not excessive, in all the circumstance of this case?
Appellants had argued that to be entitled to award of damages for trespass, the claimant must prove that he was either in exclusive possession, or has better title to the land. Having argued so, Appellants would not again be right to complain of 1st Respondent's right to general damages for trespass, since this Court has already held that the learned trial judge was right in holding that the 1stRespondent had proved his title to the land; and that, infact, he had better title over the land against the Appellants, who failed to justify their presence on the land.
Appellants, had also argued that the 1st Respondent was not on the land, physically, at the time of filing the suit, and had not established the extent of the trespass or encroachment complained about. Appellants were not right in that submission, because evidence shows that the 1st Respondent went to Court after his effort to persuade the Defendants to vacate his land had failed. He had confronted them with his Certificate of Occupancy on the land, but the 2nd Defendant rather offered to pay compensation to him for annexing a portion of his land, while the 3rd Defendant urged him to seek another at location of land, else where. See page 89 of the Records.
By law, a claimant does not have to establish the limit or extent of the trespass or encroachment on his land to be entitled to damages, as damages flows, automatically, upon proof of trespass, and even a mere stepping of foot on claimant's land, without his permission, can amount to trespass; See the case of OSUJI & ANOR. V. ISIOCHA (1989) 3 NWLR (Pt.111) 623: (See also (1989) LPELR 2815), where it was held by the Supreme Court:
"Trespass to land is unlawful interference with exclusive possession. ''If the defendant placed a part of his foot on the plaintiff's land, unlawfully, it is in law as much a trespass as if he had walked half a mile on it" per COLERIDGE CJ. In FLLIS V. LOFTUS IRON CO. (1874) LR 10 C.P. 10 at 12. It is an act of trespass to remove or tamper with any part of a building or structure attached to land in the exclusive possession of another which has become part of the land. Like wise, it is trespass to place anything on or in the land in possession of another" per WALI JSC.
In the case of ADESANYA V. OTUEWU & ORS (1993) 1 NWLR (Pt.270) 414,
Supreme Court said:
"...every unlawful or unauthorized entry on land in the possession of another is trespass for which an action in damages lies, even if no actual damages is done to the land or any fixture in it. So where a person alleges bare possession and proves interference with it, there is an actionable trespass. But also our law imputes possession totitle. A person who has title can maintain an action in trespassagainst any one, save one who can prove a better title." Per NNAEMEKA AGU JSC. See also AROMIRE & ORS v. AWOYEMI (1972) 2 SC 1; HUNSONNU &ANOR V. DONAPO (2007) LPELR 870 (CA) and OYADERE V. KEJI (2005) 1 SC (Pt.1) 19 at 25.
Of course, the Appellants did not lead any argument to show how the award of damages in this case was excessive, to suggest our tampering with the discretion of the trial judge on the amount awarded as general damages.
We have stated, many times, that where it is established that the award of damages was justified in law, the appellate Court is not permitted to substitute its feelings or discretion with that of the trial Court as to the amount awardable, except it is proved that the trial Court did not observe the acceptable rules/principles for making the award, namely:
(1) That the trial judge acted on a wrong principle of law
(2) That the judge made an estimate of damages which is entirely erroneous, that is which no reasonable tribunal would have made. See the case of WILLIAMS V. DAILY TIMES (1990) 1 NWLR (Pt.124) 1.
In the case of IFEANYI CHUKWU OSONDU CO. LTD v. AKHIGBE (1999) 11 NWLR (Pt.625) 1, the Supreme court said:
"an appellate Court does not make it its business to interfere with general damages awarded by the trial Court unless it is satisfied that the trial judge acted in the award of such damages, upon some wrong principle or that the amount awarded was so large or so small as to make it a completely erroneous assessment of the damages." Per UWAIFO JSC. See also the case of OCEANIC SECURITIES INTERNATIONAL LTD V. BALOGUN (2012) ALL FWLR (Pt.643) 1880 at 1908 - 1909, and the unreported decision of this Court in CA/K/282/2009. (AFRICA PETROLEUM v. DAVID ABRORISADE & ANOR) delivered on 25th January, 2013, pages 26 and 27 thereof.
I resolve this issue against the Appellants also.
In all, I hold, that the appeal is, wholly, unmeritorious and should be dismissed. It is hereby dismissed, as I uphold the decision of the learned trial judge in the suit No. KDH/KAD/488/94.
The parties shall bear their costs.
ABDU ABOKI, J.C.A.: I have had the opportunity of reading in advance the judgment just delivered by my learned brother, ITA G. MBABA, JCA. I entirely agree with the reasoning and conclusion contained therein, that the appeal is unmeritorious. I also dismiss same and I make no order as to costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the privilege of reading in advance the leading judgment of my learned brother, Mbaba, J.C.A in this appeal and I agree fully with it that the appeal fails.
The record of this appeal portrays that at the close of the plaintiff's case, none of the Appellant's herein deemed it expedient to adduce oral evidence in rebuttal. The Appellants allowed the 1stRespondent to testify to the effect that in 1982 he applied to the Kaduna State Ministry of Lands and Survey, for an allocation of land. His application was approved and in 1990 he paid the necessary fees after which the Certificate of Occupancy No. 10939, which had attached to it, a survey plan, was issued to him. He tendered the said Certificate of Occupancy No.10939 together with the Survey plan delineating the said Land as Exhibit 'P2'. Then, upon his visit to the said land, he discovered the different acts of trespass being committed thereon by the 1st- 3rd Defendants. When he showed Exhibit P2 to the 2nd Defendant, i.e., the 1st Appellant in this appeal, he offered to pay him compensation for the land, which the 1st Respondent declined. He, also, confronted the rest Defendants with their various acts of trespass on the said land.
It is interesting to note that the Appellants, merely, filed their pleadings without offering any oral evidence in proof of their assertions therein. It is trite law that pleadings do not constitute evidence and any pleaded facts in respect of which no oral evidence was proffered to prove the same should be regarded as having been abandoned.
The 1st Respondent called three witnesses. There was no evidence before the Lower Court that the said Certificate of Occupancy issued to the 1st Respondent was or had been revoked by the said Ministry of Lands and Survey, Kaduna State, rather, evidence was procured from it via P.W.2 and P.W.3 establishing the existence of Exhibit P.2 issued by the Governor of Kaduna State. The identity of the land in issue was not in dispute given the survey plan attached to Exhibit P.2, and too, the Defendants were aware of the particular piece of land the 1stDefendant had sued them for.
It is a well-established principle of law that where a Defendant called no evidence at the trial to challenge or contradict the plaintiffs evidence, the onus on the Plaintiff will be discharged on a minimal of proof. The evidence before the Court invariably goes only one way as there is nothing to put on the other side of the imaginary scale against the evidence given by the plaintiff. See Nwabuoku vs. Ottih (1961) All NLR p.507, Oguma vs. I.B.W.A. (1988) 1 NWLR part 73 page 683 at 682 and Balogun vs. U.B.A. Ltd (1992) 5 NWLR Part 247 page 336 at 354. In this regard, the law is that a trial Court can validly rely on the ipse dixit of a Plaintiff to assess damages when that evidence is unchallenged and uncontroverted. Particularly, where it is oral evidence establishing clearly his claim against the Defendant in terms of his Writ of Summons and such evidence was not rebutted by defence. See Adisa vs. Afuye (1994) 1 NWLR Part 318 page 75. Also; Belgore J.S.C. (as he then was) in Pascutto vs. AdecentroNig Ltd. (1997) 11 NWLR Part 529 page 467 at 488.
Further, the law is that in an action for trespass, a successful Plaintiff will be entitled to an award of nominal damages where no actual loss or damage is caused, where an actual loss or damage has however, resulted from the trespass, the Plaintiff is entitled to recover an amount of damages sufficient to compensate for the loss he has suffered. See Umunna vs. Okwuraiwe (1978) 6-7 SC 1. There is evidence before the Lower Court that the Appellants completely defaced the land in dispute by putting up different structures thereon which were contrary to what the 1st Appellant had intended to construct. Since the Appellants did not offer any evidence, the burden placed on the 1st Respondent was discharged on a minimal of proof. I must observe that the 1st Respondent led a credible and an uncontrovertedevidence in proof of how he acquired the land, his ownership of the same and the unlawful interference with his ownership of the same by the Appellants. From the totality of the evidence adduced, I find no reason why the judgment of the Lower Court should be tampered with by this Court. In the light of the above and for the reasons also given in the leading judgment, I, too, find no merit in this appeal.
Accordingly it is hereby dismissed by me. I abide by the consequential order made in the leading judgment.
Chief Chris A EkhasemomheFor the Appelants
Unrepresented for the Respondents For the Respondents