Anyaegbusi Ozuruoke & Ors V. John Okolie & Ors (1999)
LawGlobal-Hub Lead Judgment Report
IKONGBEH, J.C.A.
This is an appeal from the decision of the Imo State High Court (Njiribeako, J.), sitting at Oguta. The respondents took out a writ of summons against the appellants claiming a declaration of title to a piece of land, damages for trespass and a perpetual injunction. They repealed the prayers at the end of their unnecessarily lengthy statement of claim. Their case was based on traditional history. The appellants stoutly denied the claim. They too relied on traditional history. The respondents called 10 witnesses while the appellants called 7.
After taking addresses from counsel for the parties, the learned Judge delivered a reserved judgment in which he gave meticulous attention to the cases put forward by the parties, both in their pleadings and evidence. He identified the following 7 issues as arising from the pleadings for resolution by him.
“Issue No.1 – How was Ibiasoegbe founded? – was the virgin forest which later became Ibiasoegbe disforested by a group of persons or by one man who then handed the land to his only son called Ibiasoegbe?.
Issue No. 2 -Was there any consanguine relationship amongst Umuori, Eziama, Ndeba, Amucha and Ubaha the live villages of Ibiasoegbe?.
The plaintiffs say that there is none, defendants say that there is.
- Are the lands in dispute the land of Ibule or Ubahaezu’s plaintiffs say that it is Ibule and not Ubahaezu.
- What are the correct boundaries of the land East and West-plaintiffs say that East is Ubahampan and Umuori and West their land which they disputed with Umuadi and won. Defendants did not agree and showed Umuiheme on the West?.
- Who have been exercising acts of ownership over the land in dispute?. In the context of this case the most convincing acts of ownership is the granting of land to persons for dwelling under Izi ala obi custom?. Is Dara-Urasi a family in Amandaba Ibiasoegbe and did it make any grants of portions in the land in dispute to persons as they alleged under izi ala obi custom?.
- Did any persons perform the ego ala ceremonies to the plaintiffs’ family for grants made in the land in dispute.
- Was trespass proved?.”
He considered each of these issues in the light of the evidence proffered by the opposing parties and resolved each and everyone of them against the appellants. At the end of the exercise, he granted all three prayers sought by the respondents, concluding his judgment in the following words:
“I am satisfied from the finding I have made above that the traditional history pleaded by the plaintiffs and amply supported by evidence of plaintiff’s witnesses is the true or more probable traditional history of Ibiasoegbe. The founding fathers had no blood relationship whatsoever. It was a heterogeneous group made up of persons from different places who joined hands to disforest and own what is today Ibiasoegbe. The five villages of Ibiasoegbe took their names from the very first five persons who joined Okparanke who may loosely be described as the father of Ibiasoegbe, and there is inter-marriage amongst the groups. Down the line there was not in the least any blood relationship amongst those who joined Ndaba viz Ubahaezu, Ibule, Ume-abiam, Akama and Chiedom. They came from different places. There is also intermarriage. Indeed PW1’s mother is from Ubahaezu. So also all the sections of Ubahaezu have no blood relationship. I find this as a fact.
By reasons of my findings above, the plaintiffs have discharged the burden of proof which lies on them on each of the issues I identified above on a balance of probabilities based on preponderance of evidence and are entitled to succeed and I enter judgment for them. I declare in favour of the plaintiffs’ customary right of occupancy to all that piece or parcel of land in dispute called ‘akaba uzoaji’ which lies at Amadaba Ibiasoegbe Oru L.G.A. within jurisdiction and clearly shown in plaintiff’s Plan No. VEN/D 166/86 Exh. A in these proceedings and verged red therein.
I award in favour of the plaintiffs against the defendants jointly, severally the sum of N2,000.00 (Two Thousand Naira) being general damages for trespass and, I make an order of injunction perpetually prohibiting the defendants and all members of their families in Ubahaezu, their servants and/or agents from committing any further acts of trespass in the land. There will be costs.
Odidika. We ask for costs of N10,000.00
Mgbeanulu. We offer N500.00
Court. Cost to the plaintiffs are fixed at N7,000.00
The appellants were dissatisfied with the outcome and so filed a Notice of Appeal containing 4 grounds of appeal. With leave of court they filed 4 additional grounds numbered 5-8.
In the appellant’s brief of argument counsel on their behalf formulated the following 4 issues for determination.
“a) Whether the learned trial Judge evaluated evidence of the parties properly before reaching his judgment. (Ground IX)
(b) Whether the learned trial Judge misplaced the onus of proof (Ground VI)
(c) Whether trespass was proved; if the answer is in the affirmative, whether the quantum of damages awarded was proper: Grounds VII & VIII).
(d) Whether the quantum of costs awarded was excessive (Ground V)”
The following 4 here formulated on behalf of the appellants.
“(a) Whether the Learned Trial Judge identified the issues joined by parties and properly evaluated the evidence adduced on both sides, and made findings of fact (Ground IX).
(b) Whether there was sufficient and ample evidence to support the findings of fact made by the learned Trial Judge (Ground VI)
(c) Whether the slightest disturbance of the respondents’ possession is not sufficient to ground an action in trespass (Ground VII).
(d) Whether the learned Trial Judge violated any principle of law or procedure in awarding the sum of N2000 as general damages for trespass and N7000 as costs to the successful respondents (Ground VIII).
The main controversy in this appeal is fact-based. This is evidenced by the amount of space devoted to issue 1 by the appellants. Issue 1 in either brief raises the question whether or not the learned trial Judge properly evaluated the evidence before him.
Arguing the appeal on this issue, Mr. J.T.U. Nnodum, for the appellants, pointed out that
“if the evidence of each party is properly evaluated vis-Ã -vis the pleadings the weight of evidence should tilt in favour of the appellants and not in favour of the respondents as the judgment of the lower Court suggests.”
In a bid to convince us that the conclusions of the learned Judge should on the facts have favoured the appellants rather than respondents, learned counsel then went through the evidence of the witnesses that the learned Judge had considered before arriving at his conclusions. He drew attention to various aspects of the testimony of witnesses that made the story as told by the witnesses who testified for the respondents less acceptable than the story by the appellants witnesses. At the end of the exercise learned counsel called on us to hold that:
“none of the respondent’s witnesses deserved any credibility: the concomitance is that their evidence should not have carried any weight to the detriment of the appellants”
With the profoundest respect to learned counsel, the function he is now calling on us to perform has long been established as having been assigned to the learned trial Judge and not to us in this Court. Ascribing probative value to oral testimony of witness is his responsibility. We, in this Court come in only when the complaint is that there was no evidence at all to support the conclusions of the trial Judge or that the accepted credible evidence as there was did not support these conclusions. When, however, the complaint, as in the present appeal, is that the trial Judge should have accepted one piece of oral evidence and not the other, then the complainant is calling on us to overstep our bounds into the trial Court’s exclusive preserve. Even if we are of the opinion that the piece of oral evidence that was rejected by the trial Judge was more pleasant and ought not to have been rejected, we have no power to reverse the position, provided, of course, the evidence accepted by the trial Judge remains within the realm of credibility. Once the piece of evidence in question steps outside the bounds of credibility then it falls into our territory and we can deal with it. To take the most extreme case, if the trial Judge accepts the evidence of A that the Federal Republic of Nigeria of which Olusegun Obasanjo is President today is situated in Europe in preference to the evidence of that it is in Africa, we can intervene because the evidence of A is patently incredible.
In the appeal before us I observe that the learned trial Judge meticulously considered the evidence of each witness against that of an opposing witness before he arrived at the conclusion to accept one in preference for the other. This is not to mention the fact that he gave a recap on the testimony of each witness, including a verbatim recording of relevant portions of the cross-examination to highlight points. He gave reasons why he accepted or rejected the evidence of a witness. He highlighted the evidence of defence witnesses that supported the respondent’s case while at the same time weakening the defence even more.
As I have not been convinced that the learned Judge has not adopted the right principles in dealing with the testimony of the witnesses before him or that any of the findings of fact made by the learned Judge is perverse I see no cause to interfere with the findings. They were arrived at after a proper appraisal of the evidence before the Court. I resolve the first issue in either brief against the appellants.
On the second issue, formulated in the appellant’s brief, learned counsel complained that the learned trial Judge wrongly placed the burden of proof on the appellants, who were only supposed to defend themselves and not prove anything. He complained bitterly about the statement by the learned Judge at page 157 of the record that “the traditional history pleaded by the defendants was not supported by the evidence of the defendants and hereby rejected”. Counsel alleged that “throughout his examination of the traditional history of the appellants he never adverted to the traditional history of the respondents.”
With all due respects to learned counsel, I think this last comment is most uncharitable considering the meticulous care with which the learned Judge dealt with the case of each party. Any disinterested person who reads through the judgment would agree with me. No one can doubt that the case before the learned Judge was a very complicated one, if not for any other thing, for the sheer mass of the materials placed before him. The statement of claim defied all rules of pleadings and covered all of 44 paragraphs spanning 16 A4 pages. Some paragraphs reach down to half of the page. The statement of defence was only one paragraph shorter. What it lost in the number of paragraphs however, it easily gained in the length of each paragraph in more than adequate measure. It ran into a whooping 20 pages. Then on top of all this, the poor Judge had to wade through the testimony of 17 long-winded witnesses. Despite all these handicaps he was able to pick out accurately what the case for each side was.
Now nothing could be farther from the truth than that the learned Judge concentrated on the appellant’s case and demolished it and then just awarded victory to the respondents. He also considered the traditional history given by the respondents. At the end of the entire exercise he came to the conclusion that whereas the evidence put forward by the respondents’ witnesses and some of the appellants’ witnesses supported the traditional history outlined (I would say detailed) in the statement of claim. He observed also that the history as given by the appellant’s witnesses was, in many material particulars, in conflict with what the appellants had pleaded. This is the portion that the appellants counsel has criticized. I think that counsel, with respect, took the matter out of its proper context. An examination of the direction that the learned Judge, as judge of law, gave to himself, as judge of facts, and the manner in which he dealt with the evidence shows that he gave due consideration to the case of each side regarding every aspect of the controversy between the parties. After setting out the issues identified by him, the Judge directed himself thus on the law at pages 134- 136:
“The plaintiffs are those who have made positive assertions as part of their case in all these seven issues identified above. It is trite law that the onus of proving what they asserted lies very squarely on them. As in any civil case, they discharge the burden on each of the issues on a balance of probabilities based of course on preponderance of evidence. The imaginary scale must tilt to their side to discharge the burden.
See Mojaji vs. Odofin (1978) 4 SC 91
Owosho v. Dada (1984) 7 SC 149
Duru & Anor. v. Nwosu (1989)4 NWLR, (Pt. 113), 24.
It is equally firmly settled as principle of law in civil cases that a plaintiff must succeed on the strength of his own case. A defendant’s case may be weak or indeed worthless but if there is nothing from it which lends support to the plaintiff’s case, a plaintiff cannot derive any comfort from it.
Awomuti v. Salami (1978) 3 S.C. 105 at 115
In Bello v. Eweka (1981) 1 S.C. 101 at 102 per Obaseki, J.S.C
‘The Court has a discretion to grant or refuse declaration and the success of a claimant in such an action depends entirely on the strength of his case and not on the weakness of the defence”
However a plaintiff is entitled to draw for support from any aspect of the defendant’s case which lends support to his case.
Oduaran & Ors. v. Chief John Asarah & Ors. (1972) 1 All NLR (Pt. 2) 137; Akinola & Ors. v. Oluwo & Ors (1962) 1 All NLR. 224.
The traditional history of a people may be proved by any book manuscript recognised by the natives as a legal authority – See Bello Adedibu v. Gbadamosi v. Adewoyin (1951) 13 W.A.C.A. 191.
Where there is no such book, traditional history is, like native law and custom, a fact to be proved by credible evidence. In this case no side has relied on any book or manuscript as a source for the traditional history of Ibiasoegbe. Each side appears to rely on stories handed down from one generation to another but both cannot be correct.
I have said “appears to rely” because the accurate version may be known but out of mischief deliberately distorted. However as Lord Denning said in Kojo v. Bonsie (1957) 1 WLR. p. 1223 at 1226-7 to find out which traditional history is more probable the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable. It must be pointed out however that for Lord Denning’s dictum to be applied, at the close of the evidence offered in support of the position of the parties with respect to the traditional histories, there is no basis to prefer one version to the other. The Court will then in order to find out which traditional history is more probable, draw inference from the known (i.e. credible evidence of recent events) to the unknown (events which occurred at a time beyond living memory) what I stress here is that conflict must be drawn from evidence and not simply from pleadings. If at the close of evidence one party has not supported the case sketched in its pleadings with regard to traditional history, then of course the traditional history pleaded collapses. The recent judgment of the Supreme Court in Obioha v. Duru (1994) 8 NWLR (Pt. 365) 631 SC; (1994) 10 S.C.N.J. 48 at pp. 50 & 51 throws light on when to apply the principle in Kojo v. Bonsie supra.”
He then painstakingly went through the evidence of each witness, commencing with the respondent’s witness. Before he did that, he observed at p. 137 that-
The issues I wish to consider are so relied that I consider it better to summarize the evidence of each witness and not evidence relating to each issue”
It was after the examination of the evidence in this manner that he recorded his conclusions at pages 156 – 157 thus:
“First, on the origins of Ibiasoegbe, the defendants offered evidence totally at variance with their pleadings principally through DW 1 Samuel Okonkwo who gave his evidence on behalf of the other defendants and for himself. He was the spokesman for the defendants. What is striking about this fundamental departure was that the evidence was proffered when DW 1 was under the guidance of his own counsel and not under a sustained pressure of scathing cross-examination. His counsel had asked a very simple innocuous question to enable him move forward. As the question was designed to open a new phase in the evidence, I recorded it as it was framed. The question was simply ‘what is the origin of Ibiasoegbe town?’ DW1’s answer to this simple question showed that there was no person called Ibiasoegbe as such. He introduced two persons who did not at all feature in their pleadings. The first was a man called Asoegbe who was the father of Ibi. Even if I have to bend backwards and combine the names Ibi and Asoegbe to produce Ibiasoegbe, it will still not fit into the defendants’ case from their pleadings, because the combined name would be the son of Asoegbe.
DW1 went further to tell the Court that what is now Ibiasoegbe which includes the land in dispute was originally owned by Ibiasoegbe. This of course simply means that nobody owned it before him. At any rate, the case put forward in the statement of defence, was that Ibiasoegbe town was disforested by a man called Agurniri. He was therefore the original owner of Ibiasoegbe. At the risk of repetition let me reproduce part of par. 13 of the statement of defence where defendants said ‘It was Agumiri the father of Ibiasoegbe who disforested what is today known as Ibiasoegbe and before his death, he handed his entire land to his only son called Ibiasoegbe.”DW1 was given a very rare chance of correcting his evidence when plaintiff’s counsel unwittingly put it to him ‘It is not true as you told the Court that the land in dispute was originally owned by Ibiasoegbe: He lost the chance offered to him. The defendants themselves undermined the traditional history they pleaded. Once the basis was so completely destroyed, the superstructure cannot stand. From the evidence the family tree of the posterity of Agumiri would be traced as follows:
Agumiri to Asoegbe to Ibi to the five sons of Ibi and down the line. From the statement of defence it is Agumiri to Ibiasoegbe his only son to the five sons of Ibiasoegbe down the line. In the version given in evidence, Ibiasoegbe town was not disforested by Agumiri.
I have already pointed out that evidence which is at variance with pleadings goes to no issue and is disregarded. The traditional history pleaded by the defendants was not supported by the evidence of the defendants and is hereby rejected.”
He followed this up immediately with the following words of caution:
“This does not of course mean that plaintiffs’ version is accepted.
It must be tested by evidence.”
And he proceeded to examine evidence given in respect of other aspects of the case.
It was at the end of it all that he came to the ultimate conclusion that I set out at the beginning of this judgment.
Considering the marvelous job done on the mass of evidence by the learned Judge, it is my firm conclusion that the complaint addressed under this issue has no basis. I resolve the issue against the appellants.
On the third issue, learned counsel for the appellants again brought up questions of fact He seems to be saying that the acts of trespass proved by the evidence of PW1 is less than what was pleaded. I find the submission here a little strange. He agrees that the respondents pleaded in paragraph 43 of statement of claim that-
and that PW 1 testified in support of this pleading that the defendants without the leave, permission or consent of the plaintiffs broke and entered the land in dispute and cut the land out into portions in readiness for farming”
and that PW 1 testified in support of this pleading that-
“In February 86, the defendants trespassed into the land. They left the portion I granted to them to areas I did not give them. As a result, I sued them. I now claim N2,000.00 general damages.”
Yet he is still able to assert that ‘the evidence in relation to trespass is hazy’. I also find his contention that ‘assuming that trespass was proved, the act of trespass was not grievous’ curious. How grievously should a person allow a trespasser affect him before he takes steps to redress the grief?
As I observed when I was considering the first issue, the learned trial Judge considered all the relevant pieces of evidence and gave them their due weight before he arrived at his conclusion. They include the issues of trespass. The learned Judge pointed to the testimony of PW1 as providing evidence of trespass. Although learned counsel referred to the Judge’s conclusion on this evidence as terse he did not advance any convincing reason why we should interfere with the Judge’s finding based on it. Rather, like he did when he was arguing the first issue, he is inviting us to usurp the functions of the trial Court by undertaking the assessment of the oral testimony. Learned counsel sought to show that the evidence of PW 1 was at variance with the pleading in paragraph 43 of the statement of claim. In my view he failed woefully in the exercise. The tortuous argument he put up in paragraph 4.16 of his brief comes to the same thing we have been talking about. He wants us to evaluate the oral evidence that the trial Court had already evaluated.
The second aspect of this issue is that the damages awarded were excessive and had been fixed by the Judge rather arbitrarily. Counsel pointed out that the learned trial Judge did not give any clue as to what made him award the maximum amount of damages claimed by the respondents.
I think counsel has a point here. The learned Judge offered no word at all of explanation on how he arrived at his award on N2,000.00. As pointed out by Iguh, J.S.C. in Onwu v. Nka (1996) 7 N.W.LR. (Pt. 458) 1, at 20, the law is settled that it is not enough for the Court to simply award damages in an action for trespass to land without giving any reason as to how it arrived at what amounted to reasonable damages. On general damages in connection with breach of contract, Onu, J.S.C. had this to say in U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 N.WLR. (Pt.421) 558 at 599.
“… where a trial Judge in assessing general damages, proceeds upon a wrong principle or on no principle of law and makes an award which is manifestly unwarranted, excessive, extravagant, unreasonable and unconscionable in comparison with the greatest loss that would possibly flow from the said breach of contract without stating whether the amount awarded is for loss of business or loss of profits and the measure of the basis of its assessment, the appeal court will interfere therewith but not otherwise.”
One principle discernible from this statement is that in assessing general damages the Court should consider the greatest loss that would naturally flow from the act complained of. Viewed this way the same principle could apply to trespass to land. It has indeed been applied. Umunna v. Okwudiwe (1978) N.S.C.C. 319, was a case in which general damages were claimed for trespass to land. Obaseki, J.S.C., restated the principle that where the trespass committed is only of a technical nature it could at best attract only nominal or minimal compensatory damages. His Lordship considered the fact that the period of trespass complained of, i.e. 1967 – 1971, the civil was years, was a period when the appellants could not possibly have farmed profitably. (See p. 326 of the Report). The Court saw no basis for the award of N3,000.00 in the circumstances and reduced it to N200.00.
I would do the same here, I however resolve the first aspect of the issue against the appellants.
On the fourth and final issue counsel on behalf of the appellants complained that the costs of N7,000.00 against the appellants were excessive and had been arbitrarily fixed. Here again, I must agree with counsel. As Onu, J.S.C., pointed out in U.B.N. Ltd. v. Nwaokolo (1995) 6 NWLR (Pt.400) 127 at 152, costs are not meant to be an unearned bonus for the winning party or as a punitive measure against the losing party. Rather, costs are designed to indemnify the winner against reasonable and necessary losses incurred in prosecuting or defending the appeal.
Learned counsel pointed out that had the learned Judge taken the history of the case into consideration he would have seen that the length of time it took to dispose of the case could not all be blamed on the appellants. After doing some calculations counsel referred to Onabanjo v. Ewetuga (1993) 4 N.W.L.R. (Pt. 288) 445 at 460- 1 where in similar circumstances N1,000.00 was considered as reasonable costs. I agree that not only had the costs been arbitrarily fixed, it was excessive. I therefore resolve this issue in favour of the appellants.
Save for the quantum of damages and costs, the appeal of the appellants is dismissed. I affirm the decision of the lower Court granting the declaration and order of injunction sought. I however allow the appeal on general damages and on costs. I set aside order for general damages as awarded to the respondents. In its place I make an order for general damages assessed at N200.00. I also set aside the order of the trial Court enjoining the appellants to pay costs of N7,000.00 to the respondents. In its place I order costs in the court below assessed at N1,000.00 The respondent are entitled to costs of this appeal assessed at N1,000.00.
Other Citations: (1999)LCN/0489(CA)
