Bassey Okon V. Asuquo Bassey Okon (2009)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A.
In a writ of summons issued at the Registry of the High Court of Justice of Cross River State, Calabar Judicial Division on 18/4/95 the appellant as plaintiff claimed against the respondent (then defendant) the following reliefs:
“1. Removal of the part of the building of the defendant on the property of the plaintiff.
- Re-erection of the fence demarcating the plaintiff’s property and the defendant’s property in accordance with the original boundary.
- The sum of N500,000.00 being damages for continuing trespass on the plaintiff’s property by the defendant and his agents.”
By leave of the trial Court the Respondent entered appearance and filed his statement of defence on 8/4/97, an action prompted by the appellant’s motion to set down the case for hearing on his pleadings only. The appellant filed a reply to the respondent’s statement of defence on 22/01/2001.
There is no indication as to whether or not the reply to the statement of defence was filed with leave of Court in view of the fact that the statement of defence was filed on 8/4/97 and the reply thereto filed on 22/1/2001. Though the writ was issued by a lawyer who also settled the statement of claim, the reply to the statement of defence was signed by the appellant. It is noteworthy that even though the matter was mentioned on 17/1/96 and fixed for hearing on 5/3/96, hearing did not start until 21/2/2001. In the series of adjournments from 17/1/96 to 21/2/2001 when the appellant opened his case as Pw1, he was represented by Counsel. On 11/2/01 when the matter came up for continuation of hearing the appellant was not represented by Counsel. The trial Court recorded that “The plaintiff say she would hold his own brief.” See page 37 of the records. The appellant, from that date till judgment, appeared in person. At the end of the cross-examination of the appellant as Pw1 on 11/3/2002 the record showed
“J. A. Dada Esq- That is all for this witness my Lord. Hon. Bassey Okon (Plaintiff) – My Lord I have no witness to call so that is my case. J. A. Dada Esq- My Lord, we are not calling any witness also, we are resting our case on the case of the plaintiff and will be addressing the Court.
COURT- Case adjourned to 25/4/2002 for address.”
See page 41 of the records. Learned Counsel for the Respondent concluded his address on 11/12/2002 and the Court adjourned the matter to 27/2/2003 “for ruling.” See page 47 of the records.
In the ruling (judgment really) delivered on 27/2/2003 the trial Court dismissed the appellant’s case, adding
“The no case submission of the defendant is accordingly upheld and the defendant is held not liable.”
See page 58 of the records.
Aggrieved by the judgment against him the appellant appealed to the Court on five grounds. From the five grounds of appeal the appellant, in his brief of argument, distilled the following lone issue for the Court to resolve.
“Whether the learned trial judge in the absence of any contradictory evidence was right to disbelieve the credible evidence proffered by the plaintiff in this case.”
In his brief of argument the Respondent ask the Court to determine
“Whether from the evidence adduced by the plaintiff/appellant, a case of trespass was established against the defendant/respondent.”
The appellant filed a reply brief on 22/06/07.
Learned Counsel for the appellant, arguing the lone issue in his brief referred to the findings of the trial Court at page 55 of the records on the pleading and impugned the finding based on the statement of defence which he said was abandoned as the defendant did not testify. He relied on AKANO v FIRST BANK OF NIGERIA PLC (2004) 8 NWLR (PT.875) 318 wherein it was held that pleading do not constitute evidence. He referred to page 57 of the records and contended that the finding that the appellant did not prove who committed the trespass he alleged and proved was contrary to the evidence of Pw1. Counsel argued that the evidence the Court said was hearsay related to the demolition of the old wall and erection of illegal structure but the Court ignored the additional evidence of the report to the respondent’s mother and letters from the appellant’s Solicitors to the respondent in respect of the demolition of the wall and the erection of new structures. Counsel argued that in the claim for trespass on 13 Anderson Street or 15 Anderson Street both in Calabar what is material is the possession, not ownership of the property. According to Counsel since the respondent led no evidence the case of the appellant is proved on a minimal of accepted evidence that the respondent trespassed into the property. He relied on EGBOBAMIEN v FEDERAL MORTGAGE BANK OF NIGERIA (2002) 12 MJSC 103 on the determination of an issue on legally admissible evidence. He relied on DUROSARO v AYORINDE (2005) 8 NWLR (pt. 927) 407 in further support of his argument that the Respondent who chose not to offer evidence at the trial is deemed to have abandoned his statement of defence. Adding a curious twist to his argument learned Counsel for the appellant said “the plaintiff who began from 22/01/2002 to conduct his own case, did not need the Court to require of him strict rules of proceeding.”
He said the appellant, not schooled in the niceties of the Legal profession needed the protection of the Court with regards to some expression such as “de facto owner” employed by the appellant. In yet another curious twist learned Counsel stated that “the issue posed for determination has been resolved in favour of the plaintiff”.
On the quantum of evidence where the adversary fails to adduce evidence he relied on NEWBREED ORGANISATION LTD v EROMOSELE (2006) 5 NWLR (PT.974) 499. Placing reliance on EZEANI v ATTA (2004) 7 NWLR(PT.873) 468 AT 515 – 516 PARA B-E he urged the Court to set aside the findings of the trial Court as perverse and unsupported by the evidence. He urged the Court to allow the appeal by granting all the reliefs sought and in the alternative to order a hearing de novo.
Dealing with the lone issue in his brief learned Counsel for the respondent argued that the appellant failed to prove what he alleged, that is the acts of trespass against the respondent.
He relied on Section 135, 136 and 137 of the Evidence Act, SUNDAY UZOKWE v DANSY INDUSTRIES NIG. LTD & ANOR. (2002) 9 NSCQR 51 AT 62, NWAGA v REGISTERED TRUSTEES RECREATION CLUB (2004) FWLR (PT. 190) 1360 AT 1376 and SONGHAI LTD v UBA (2004) FWLR (PT. 189) 1244 AT 1258. He argued that the findings of the trial Court were justified by the failure of the appellant to establish that the Respondent trespassed on his property. On the inadmissibility of hearsay evidence learned Counsel relied on EKPO v THE STATE (2001) FWLR (PT. 55) 454 AT 465; MANAGEMENT ENTERPRISES LTD v JONATHAN OFASANYA (1987) 1 NWLR (PT. 55) 179 AT 193 and ADEKA v VAATIA (1987) 1 NWLR (PT.48) 134 NAT 136. He said the claim against the Respondent was based on his status as the first son of his deceased mother and that the appellant did not prove that No. 15 Anderson Street, Calabar upon which the structure was allegedly erected was the property of the Respondent, rather it was proved that the property belonged to the Respondent’ s mother who was in occupation of same at the time of the alleged trespass and who died about 4 years after the commencement of the suit.
On the issue in the appellant’s brief learned Counsel said it was not framed from the ground or grounds of appeal and therefore constitutes abuse of “the privilege of brief writing”.
He said the issue which did not arise from the ground of appeal is liable to be struck out and relied on OBA v EGBE RONGBE (1999) 8 NWLR (PT. 615) 454 AT 489 – 490 PARAGRAPHS G – A, BELLO v ANWA (1999) 8 NWLR (PT.615) 454 AT 468 PARAGRAPHS D – F and OGBANA v OTI (2000) 8 NWLR (PT.670) 582 AT 591 PARAGRAPHS G – H., G & C LINES v HENGRACE (NIG.) LTD (2000) FWLR (PT. 7) 1099 AT 1105 PARAGRAPH G. He urged the Court to strike out the issue as incompetent.
In his reply brief learned Counsel for the appellant submitted that once the trial Court found acts of trespass as it did in fact find, it does not matter who has title to the property – the Respondent or his mother. He said the relevant question is who trespassed? A question he said the lower Court evaded even though it found established the acts of tress. He said that the evidence that the Respondent demolished a wall, and built a structure was not hearsay. According to Counsel Appellant named the Respondent as the trespasser and since the respondent did not deny the assertion there was no need to call a witness to provide corroborative testimony.
On hearsay evidence with which he dealt earlier in his brief, he cited UTYEH v THE STATE (1992) 2 NWLR (PT.223) 257 AT 269 PARA B- D and said a witness’ evidence of what he was told is not hearsay evidence.
On the appellant’s issue Counsel said the bare statement that the issue did not arise from the ground of appeal without more, makes it difficult for the Appellant to respond.
However, Counsel said the issue is framed from grounds 1 and 2 in his notice of appeal. Counsel invoked the case of AYOWALE v OGURUBIYI (1986) 4 SC 98 AT 122 in support of his argument that the trial Court erred by relying on one statement said to be hearsay and thus refused to consider the rest of the testimony.
He relied also on GUKAS v JOS INTERNATION’ BREWERIES LTD (1991) 6 NWLR (PT.199) 614. He urged the Court once more to allow the appeal, set aside the judgment of the lower Court and “substitute judgment allowing plaintiff’s/appellant’s claims.”
I think I should disabuse the mind of the learned Counsel for the appellant on a perceived disparity between parties to litigation based on the fact of non-representation by Counsel – and the perceived duty of the Court in such cases to pamper one party to the detriment of his adversary. Our cherished adversary system knows no double standards. May the day never come for the Court to descend into the arena of conflict to espouse the case of one party against the other irrespective of whether any party is not represented by counsel. It is a travesty of justice for a Court to abandon its role as an unbiased umpire in favour of the role as Counsel for any of the contending parties. Contrary to the submission of learned Counsel for the appellant the Court is not required to relax the rules of procedure to accommodate a party who decides to conduct his case in person. The appellant may not be schooled in the niceties of the legal profession as argued by learned Counsel for the appellant but the trial Court has no business educating him on any expression such as “de facto owner” employed by the appellant himself. It is presumed that he knows the meaning of any word or expression he uses in the conduct of his case.
With profound respect to learned Counsel for the appellant the issue posed for determination has not been resolved in favour of the appellant either by the trial Court or this Court. The appellant would hardly appeal if the issue was resolved in his favour in the lower Court. The purpose of hearing the appeal is to resolve the issue raised in favour of, or against, the appellant and that remains the function reserved for the Court.
I cannot agree more with the learned Counsel for the appellant that the defendant who decides not to offer evidence at the trial is deemed to have abandoned his statement of defence and the trial Court will not rely on the said statement of defence to decide the case as pleading is not evidence.
However, the function of pleadings is to define and narrow down issues in contention between the parties and even an abandoned statement of defence is relevant in the determination of the issue that the plaintiff has to prove to sustain his claim. This is so because an issue admitted in the statement of defence need not be proved at the trial and an issue denied cannot be proved by the mere fact that the statement of defence is abandoned by the defendant not offering evidence. When the defendant exercises his right not to offer evidence at the trial his statement of defence is dead as it were but the same statement of defence is alive in the determination of the question whether the plaintiff is bound to prove a particular fact.
Appellant’s claim is based essentially on alleged acts of trespass committed on his property by the Respondent. In his testimony in chief the appellant as Pw1 stated
“I am in Court because the defendant has trespassed into my property situate at No. 13 Anderson Street, Calabar by demolishing the original partition…”.
See pages 35 – 36 of the records. On page 36 of the records O.E. Obong Esq. of Counsel for the appellant said
“My Lord, there are certain things we will want to tender which are not handy now.
We therefore ask for a date for continuation”.
Relief No. 1 appears to indicate a dispute on the boundary between the properties, No. 13 and No. 15 Anderson Street, Calabar. To prove trespass the boundary must be proved. Perhaps the “certain things” learned Counsel for the appellant was granted adjournment to tender would include a Survey Plan showing the boundary of the two properties and the area trespassed upon, even though ordinarily a plan is not necessary in a claim for trespass.
The case was accordingly adjourned to enable Counsel tender the “certain things”, which Counsel deemed to have a bearing on his case. When the case was called for continuation of the evidence of Pw1 on 7/11/2001 the record showed “Counsel for the plaintiff absent and has not written. The plaintiff says he will hold his own brief.”
Seepage 37 of the records. The appellant made a knowing and understanding waiver of his right to Counsel of his choice and it is not the duty of the Court to step into the breach. The Pw1 concluded his evidence in chief without offering in evidence the “certain things” for which his then Counsel was granted an adjournment. This has a negative impact in his case before the lower Court.
Under cross-examination the appellant said he made three survey plans (on three different dates) of the property No. 13 Anderson Street, Calabar. See page 39 of the records.
However, none of the three survey plans was before the Court and the Court could not speculate on the contents/features of a survey plan not in evidence before it.
There is evidence that appellant’s mother died four years after the commencement of the suit and while she was alive there is no evidence that she was not in effective occupation of her property, No. 15 Anderson Street, Calabar. Appellant swore that “there was no boundary dispute between my mother and the defendant’s mother when they were both alive.”
See page 41 of the records. There is no evidence that the mother of the defendant did anything on her property to provoke the commencement of the suit four years before her death and she was not a party to the suit involving her property. Moreover the evidence offered in proof of demolition of old wall and erection of illegal structures is based on what the appellant’s tenant told him. While the said evidence is admissible to establish what the tenant told the appellant it is inadmissible to prove the veracity of what the tenant told the appellant. The Letters written to third parties complaining of the conduct of the respondent may prove a complaint of trespass but cannot be relied on solely in proof of the acts of trespass.
Trespass is an affront to possession of property and since from the point of view of the appellant the respondent owns an adjoining property it is necessary that the property or portion thereof allegedly trespassed upon by the respondent be defined and delineated from the respondent’s alleged property by a survey plan.
In my humble view the evidence, allegedly credible and not contradicted, is not sufficient to prove the appellant’s case on the balance of probabilities.
I resolve the lone issue in the appeal against the appellant and in consequence I dismiss the appeal and affirm the decision of the Court below.
The appellant is to pay costs assessed at N25,000.00 to the Respondent.
Other Citations: (2009)LCN/3177(CA)
