Chief Aina Jegede & Ors. V. David Bamidele & Ors. (2005)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
This is an appeal against the decision of the Kwara State High Court of Justice, sitting at Ilorin in Suit No. KWS/OM/8/93, delivered by Oluyemisi Ajayi (J) on the 31st day of October, 2002, wherein the learned trial Judge granted in favour of the Respondents, who were Plaintiffs at the lower Court jointly and severally the sum of N50,000.00 as general damages for trespass and injunction, against the Defendants (Appellants herein). The cases were separately filed by the Plaintiffs, but were consolidated upon the application of the Defendants (Appellants herein).
Dissatisfied with the said Judgment, the Appellants appealed to this Court by filing an Amended Notice of Appeal consisting of 10 grounds after leave of this Court had been sought and obtained.
The facts of the case as can be gleaned from the record are that the Respondents, who were the Plaintiffs at the lower court, are indigenes of Osi Community in Ekiti Local Government Area of Kwara State, while the Appellants belong to Etan Community in the same Local Government.
The Plaintiffs’ complaint was that on or about the 5th day of March, 1993, the Defendants under the command and supervision of the first Defendant entered the Plaintiffs’ farmlands at “Goyin” and “Oye” in Osi and destroyed the crops on the land. At the time they entered the farms to destroy the crops, some of the Plaintiffs were working on the farms. The said Plaintiffs saw the Defendants, who knew them before the incident under consideration.
Those who were on their farms in the same area and who allegedly witnessed what happened, informed some of the Plaintiffs who were not on the farms on that day, but whose farms where also entered and destroyed by the Defendants about the incident.
The Plaintiffs (Respondents herein) reported the incident to the Olosi of Osi, who advised them to report the matter to the police which they did. 2nd and 3rd Defendants were arrested and charged to Court for trespass and destruction of the Plaintiffs’ (Respondents) Crops.
The Plaintiffs filed separate actions at the State High Court against the Defendants (Appellants herein). On 18/5/95, an application to have the cases consolidated was granted. The Defendants (Appellants herein) sought and obtained leave to also present their counter-claim in a representative capacity. The case went to full trial and at the end of same judgment was given in favour of the Plaintiffs (Respondents’ herein) by finding all the Defendants liable to the Plaintiffs in the sum of N50,000.00. They (Defendants) were also restrained from entering into the farmlands of the Plaintiffs to destroy their farmlands at Goyin and Oye respectively. The counter-claim of the Defendants was equally dismissed. (See pages 128 and 129 of the record).
The Defendants as stated earlier were not happy with the decision and appealed to this Court. Pursuance to the provisions of Court of Appeal Rules, briefs of argument were consequently settled. In accordance with the provisions of order 6 rules 2, 3 and 4 of the Court of Appeal Rules they exchanged briefs, which were settled as Appellants’, Respondents’ and Appellants’ reply brief of argument. Issues were framed in both briefs of argument. The issues identified as calling for determination in the Appellants’ brief are four and are as follows:
“1. Whether having regard to the evidence adduced by the Plaintiffs and their witnesses, the lower court was right in holding that the Plaintiff’s action succeeds.
- Whether the learned trial judge properly applied the Supreme Court decision in BALOGUN VS. AKANJI (1988) 2 SCNJ 104 to the facts of this case.
- Whether the award of general damages of N150,000.00 in favour of the Plaintiffs by the learned trial Judge was justified in the circumstances of this case.
- Whether the lower Court was vested with jurisdiction to adjudicate on the Plaintiffs’ claims.”
On the other hand, three issues were formulated by the Respondents as calling for determination in this appeal as follows:-
“1. Whether the learned trial Judge was right in holding that the Plaintiffs proved their claims for trespass and damages against the Defendants (Appellants). Grounds 1, 3, 5, 8.
2 Whether the learned trial Judge was right in holding that the defendants failed to prove their counter-claim and dismissing the said counter-claim. Grounds 2, 4, 6, 9, 10.
- Whether the trial court had jurisdiction to entertain the Plaintiffs’ case and whether the learned trial judge was right in holding that the court’s jurisdiction was not ousted in any way whatsoever. Ground 7”
The above issues are one and the same thing, even though differently worded in the briefs submitted to us by counsel for our consideration, I am of the firm view that, this appeal can be disposed of by giving consideration to the issues formulated by the Respondents’ Counsel.
ISSUE NO.1
On the 1st issue formulated by the Appellants’ counsel, learned Counsel who settled the Appellants’ brief, Mr. Roland Otaru, Esq, after copiously referring to the statements of claim of the Respondents as filed at the trial court submitted that apart from pleading that the Plaintiffs ancestors or progenitors acquired the land, no mention of the Plaintiffs’ progenitors or ancestors who acquired the land beyond living memory was made by the Plaintiffs in their pleadings as well as their evidence relying on the evidence of PW1, PW2, PW3, PW4 and the cases of Irolo vs. Uka (2002) 14 NWLR (Pt. 786) P. 195 at P. 232 and Ezeokonkwo vs. Okeke (2002) 11 NWLR (Pt.777) P. 1 at 20 – 21. Learned Counsel submitted that having failed to show to the trial court the chain of devolution of the land on them (the Plaintiffs) through their ancestors or progenitors, the learned trial Judge was wrong to hold that the Plaintiffs’ action succeeds.
Learned Counsel further submitted that the trial Judge misapplied the Supreme Court decision of Balogun vs. Akanji (1998) 2 SCNJ P. 104, because unlike in the Balogun’s case, the Plaintiffs (Respondents herein) did not name their ancestors, who used the land up to the time it was devolved on them. Again, Learned Counsel submitted that from the totality of the evidence of the Respondents, the trial Court was wrong in applying the above case to the facts and circumstances of the case under consideration.
On the alleged trespass, Learned Counsel like in the issue of ownership, copiously quoted the evidence of the witnesses and submitted as follows:-
“(a) There was conflicting evidence on the date the alleged destruction of the Plaintiff’s farmland took place. Some Plaintiffs alleged, the incident took place on 5/3/93 while some said it was on 6/3/93;
(b) Some Plaintiffs pleaded that the incident happened on 5/3/93, but gave evidence that it was on the 6/3/93, but that the incident occurred;
(c) Some in their writ of Summons said, the destruction was on 5/3/03 while in their statement of claim it was on 6/3/93;
(d) The Defendants were said to have been arrested on 5/3/93 and yet the same Defendants were said to have destroyed the Plaintiff’s farmland on 6/3/93;
(e) There was no evidence before the Court that the Defendants were released on 5/3/93 (Friday) and later went to destroy the farmlands on 6/3/93 Friday;
(f) Some of the Plaintiffs said, the Defendants were taken to the area Commander Omun-Aran on 5/3/93, after their arrest while some said they were taken to Ilorin and later charged to court at Omun-Aran.
(g) None of the crops alleged to have been destroyed and brought to the police station were tendered before the lower Court.
(h) None of the persons mentioned in paragraph 12 of the 1st Plaintiff’s statement of claim at page 4 of the record was called to give evidence at the trial. Those mentioned in the said paragraph 12 are Samuel Ajayi, Amuda, Ikulada, Mr. Awoyemi, Mr. Daniel Olu and Ajayi (a policeman) who is a non-native of Osi.
(i) The learned trial Judge did not visit the locus in quo.”
Learned Counsel further submitted from the evidence of the Plaintiffs and their witnesses, the evidence contained a maze of contradictions. He referred to the conflict as to the date the alleged trespass was said to have taken place, some witnesses said it was on the 5th while others said it was on the 6th. Learned Counsel then submitted further that having regard to the conflicting evidence of the Plaintiffs and their witnesses, they are not entitled to the honour of credibility, particularly as it relates to the date of the alleged destruction of the farmlands relying on the cases of Mogaji vs. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) Page 393 at P. 430 and Ayanwale vs. Atanda (1985) NWLR (Pt. 68) P. 22 at P. 35.
It is the contention of the Learned Counsel that the 5th Plaintiff who did not plead any date of the happening of the incident, gave evidence that his farm was destroyed sometime in March, 1993, having regard to the information given to him by the 1st Plaintiff. Learned Counsel submitted that parties are bound by their pleadings and facts not pleaded goes to no issue, even if extracted under cross-examination, relying on the case of Akinboni vs. Akinboni (2002) 5 NWLR (Pt. 761) Page 564 at P. 597 Per Adamu JCA.
Learned Counsel after copious and detailed quotations from the record submitted that the Plaintiffs were not consistent in stating their case and proving it, nor did they establish the boundaries of their land. The Plaintiffs according to the Learned Counsel simply claimed that their respective lands were either “GOYIN” or “OYE” without establishing the boundaries. He called in aid of his submission the cases of Ajide vs. Kalani (1985) 3 NWLR (Pt. 12) P. 248 at 269 and Imah vs. Okogbe (1993) 9 NWLR (Pt. 316) P. 159 at PP. 175-179. Learned Counsel finally contended on this issue that Defendants gave cogent evidence of how they came about the land but that notwithstanding counsel further contended the trial judge refused their counter-claim. Learned Counsel opined that the refusal of the Appellants’ counter-claim led to a grave miscarriage of Justice. He urged us to answer the above framed issue in the negative and allow the grounds of appeal.
On his part, Learned Counsel for the Respondents submitted that the Appellants’ brief of argument contains a lot of conjectures and quoted or quotations, which are verbose and completely out of con. They simply tried to make the briefs as an alternative to the Record of Proceedings.
The Appellants’ brief of argument. Learned Counsel further submitted is contrary to and in breach of Order 6 Rule 5 of the Rules of this Court. Learned Counsel however, urged us to rely on the record of proceedings (and the supplementary records) prepared by the trial court, in resolving the issues involved to this appeal and on the slanted and lopsided account given in the Appellants’ brief of argument.
Learned Counsel after given a brief, but succinct evidence adduced by the Respondents at the lower Court in support of their claims, submitted that the Plaintiffs gave enough historical antecedents and facts that showed how they inherited the land from their forefathers and how they (Plaintiffs) have personally, physically and firmly been in possession and control of the farmlands totally to the exclusion of the defendants. He went on to submit further that the defendants showed no acts of ownerships or possession (even for one day). They have never farmed there at all. The Defendants he contended were unable to show any better title to the land at all.
Learned Counsel for the Respondents submitted that the submission of the Appellants’ brief of argument that the trial court wrongly applied the Supreme Court’s decision of Balogun vs. Akanji (supra) is unfounded and baseless – Rather, the case was well applied by the trial court to the facts and circumstances of the case at hand.
Learned Counsel contended that the Appellants have devoted considerable part of their brief to claim that the Plaintiffs’ claim for trespass can be defeated by alleged convict in the evidence as to the date of the trespass committed by the defendants. Learned Counsel submitted that there is no conflict as to date. This is because PW1 stated at P. 64 of the record he was on the farm on 5/3/93 when the Defendants attacked and destroyed his farm.
At page 67 of the record, PW2 confirmed the date because he was also working on the farm when the Defendants attacked and destroyed the farm. PW3 was not on the farm but was told by PW2 who was there when the Defendants struck. PW3 went to the farm on 6/3/93 to see the damages done to his farm by Defendants. PW4 was also informed by PW2 on 6/3/93 about the destruction that was carried out on 5/3/93 by the Defendants. Learned Counsel again, submitted that where there are five Plaintiffs and two mentioned the date of trespass, as 5/3/93 while two others were not present, but were told the 2nd day, that is 6/3/93 of the incident. The mere mention of 6/3/93 by the 5th Plaintiff in his evidence is not fatal to the Plaintiffs’ case relying on the cases of Maigoro v. Bahir (2000) FWLR (Pt.19) P. 553 at 571 and Bodi vs. Agyo (2003) FWLR Pt. 156 P. 815 at P. 834 and Fatoba vs. Ogundahunsi (2003) FWLR Pt. 154, Pp. at P. 580.
Learned Counsel urged us to hold that the learned, trial Judge was right in holding that the Plaintiffs’ claim for trespass against the Defendants was established and thereby awarding general damages to the Plaintiffs. Again, he urged us to hold that the trial judge was justified in awarding general damages of N10,000.00 in favour of each Plaintiff against the Defendants. This is because despite the huge loss suffered by the Plaintiffs, the trial court did not award any special damages, Learned Counsel opined that the general damages awarded can therefore not be faulted and ought not to be disturbed.
Now, having set out the submissions of Learned Counsel albeit briefly, the point to be considered is whether or not the Plaintiffs (Respondents herein) had proved their case at the court below to be entitled to judgment. However, before I delve into that, it needs to be said that the law is now recondite on the issue of whose responsibility, it is to prove a fact in issue. It has been held in a long chain of authorities that he who asserts must prove. See the cases of:
(1) Umeojiako vs. Ezenamuo (1990) 1 N.W.L.R. (Pt. 126) P.253.
(2) N. B. N. Ltd vs. U.C. Holdings Ltd (2004) 13 N.W.L.R (Pt. 891).
(3) Ajibi vs. Olaewe (2003) 8 N.W.L.R. (Pt. 253). See also Section 135(1) of the Evidence Act.
For the Plaintiffs (Respondents herein) to prove their case as required of them, called a number of witnesses. The evidence of the witnesses consider relevant for just determination of the issue under consideration is hereunder reproduced.
The 2nd Plaintiff who testified as PW1 gave evidence inter alia I support of his claim thus;-
“The Defendants came to my farm to attach me with cutlass and destroyed my farm products. The farm is at Igbo Ere at Osi, Igoyin at Osi. Akewuro family owns both Igbo Ere and Igoyin. The land has been our family land from time immemorial. Igbo Ere is an upland while Igboyin is Fadama my own father took me to the farm land. My father is dead and I have been going to the farmland to the past 40 years. Nobody has ever disturbed me on the land since I have been there. The great grand fathers of Etan people have never been on the land until these defendants come to disturb me.” See page 64 lines 11 – 18 of the main record.
PW2, one David Bamidele like PW1 testified in support of his claim inter alia thus:-
“I am a farmer, I know the Defendants. I know 1st Defendant. he is a Chief at Etan. My farm is at Goyin along Etan Road, I also farm at Igbe Etan. The Olosi Akewro owns the land. I have been farming on the land since 60 years ago. I met my fore fathers farming on the land. The other people that farm on the land are from Osi. The fore fathers of the Defendants never farmed on land before. I plant cashew, kolanuts, I rear birds (poultry farm) on my land and I have a hut on the land. I also plant yams and cassava. Nobody has ever challenged me on the land before. My father died about 25 years ago. I have been farming on the land since my father died and I live there, as I have no other farm.”
See Page 66, 2nd paragraph of the main record.
PW3 one Karimu Ateriowo aged 80 years testified inter alia thus:-
“I am 80 years old, I know the Defendant. They are from Etan. I am a father. My father is at Goni along Etan road. Goni land belongs to our fore father. I have been farming there for about 60 years now and I met my fore fathers there. Some of the other plaintiffs have farm in the same area. All the plaintiffs have farm at Goni. I plant food crop e.g. yam, cassava, maize, Okros, etc. I do not know the farm of the Defendants. Their forefathers never farm on the land before.”
See page 68 last paragraph to page 69 1st paragraph of the main record.
The next witness in line of witnesses called by the Plaintiffs was Joseph Ashaolu, who testified inter alia as follows;-
“I know the Defendants they are form Etan. I am from Ile Ajide. I am from Ile Oke of Akewuro claim. We have Ile Akewuro and Ile Ajide. I farm at Igboyin. That place is owned by Ile-Oke of Akewuro. We Osi people farm at Igboyin land. My people have owned the land since time immemorial. The defendants have never farmed on the land before neither has any other person farmed there before. I have personally been farming on the land for about 25 years. Before I started my own farming there, I used to go there with my father and brothers. I never saw the defendants on their people farm there.”
The next witness for the Plaintiffs was one Chief Joseph Kolawole, the Olofin of Osi, who is 2nd in command to Olusi of Osi. He testified inter alia thus:-
“I live at Ojumosi Compound at Osi. Some of the compounds order my jurisdiction are Ajide compound, Ojumosi compound, Ohun compound, Hakete compound, Igbo Ohun, Ile-Oke, Odo Alade, I know the Plaintiffs. I also know the defendants. I know the parcel of land called Goyin and Onye. Osi community owns Goyin and Onye. Osi people farm on the land. The plaintiff also farm there. The defendants had never farmed on the land before.”
See 2nd Paragraph, line 2 – 7 of the main record.
It is appropriate at this stage to pause and state that after evaluating the evidence adduced by the Plaintiff’s vis-a -vis the evidence of the defendants, the learned trial Judge at page 126 of the main Record held thus:-
“It is settled law that one of the ways of proving ownership of land is by traditional history of ones ancestors. The Plaintiffs to this case have shown and traced their ancestral claims to the land in dispute. They have traced the history of the land from their forefathers to their own parents who were met on the farm. Their parents also handed over the land to them to continue to farm there until the present day.”
In the case of Balogun v. Akanji (supra) the apex court held thus;-
“…Once it has been established that the plaintiff had better title to the land in dispute and Defendants were on the land without the permission of the Plaintiffs the claim by the plaintiffs for trespass against the Defendants had been established…”
In yet another case, decided by this Court, Idesoh vs. Ordia (1997) 3 NWLR (Pt.491) P.18 at P.24 – 25. it was held as follows:-
“Where a Plaintiffs claims damages for trespass and injunction and the Defendant alleges that the land belongs to him, the Plaintiff, in order to succeed has to prove not only that he was in possession of the land when the trespass was committed on it but also that his own title to the land is better than that of the Defendant.”
Learned Counsel for the Appellants in this brief of argument which is obviously verbose, long on words but short on points, expended a lot of energy and strength in submitting quite copiously too that the Plaintiffs’ case at the lower court was full of maze of contradictions and that the case of Balogun vs. Akanji was not properly applied by the learned trial Judge. And that judgment should not have been given in favour of the Respondents. With the respect to the Learned Counsel, I am unable to agree with his copious submissions on this point in view of avalanche of evidence, both historical and that of exclusive possession to the exclusion of all others including the Appellants of course which they adduced at the court of trial and which I reproduced above.
That being the case, I am of the considered view that the finding of the trial Judge at P.126 of the main record to the effect that the Plaintiffs in this case have shown and traced their ancestral claims to the land from their forefathers to their own parents who were met on the farm; their parents also handed over the land to them to continue to farm there until the present day cannot be faulted. Again, I am of the view that based on the evidence adduced by both sides, the Plaintiffs had a better title to the land in dispute and that Defendants were on the lands without the permission of the Plaintiffs. And contrary to the submission of the Learned Counsel for the Appellants, the decision of the apex court in the case of Balogun vs. Akanji (supra) was properly applied to the facts of the case under consideration.
Learned Counsel for the Appellants had expended a lot of energy in trying to show that there was a contradiction as to the date the trespass took place. With due respect to the Learned Counsel, what is of considerable importance is whether or not, the Appellants committed acts of trespass on the Plaintiffs’ farmlands. The trial court after careful and meticulous scrutiny of the evidence by both sides held they did. In the case of Maigoro vs. Bahir (supra) it was held thus:-
“In the law of evidence a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts and not necessarily when there are some minor discrepancies in the details…”
Again, in the case of Fatoba -vs- Ogundahunsi (2003) FWLR PT. 154 P.566 at P.580, this court held at P. 580 of the record that:-
“In normal cause of events, it is to be expected that witnesses may not always speak the same facts with equal accuracy particularly when they speak of events of the past. It is that passage of time will face human memory on matters of detail and human observations of events and this tends to differ in some situations. This explains why due allowance is made for circumstances where inconsistencies in evidence of witness may occur form variety of causes when it comes to matters of detail.”
Consistent with the decision in the cases cited above, I am of the considered view that the date of trespass is not fatal to the Plaintiffs’ case at the lower court. What is of considerable importance is that the acts of trespass did take place. At any rate, I have elsewhere in this Judgment endorsed the finding of the trial court that the Defendants (Appellants herein) entered the farms of the Plaintiffs (Respondents herein) without their permission and destroyed their crops.
On the issue of damages, Learned Counsel for the Appellants submitted that the award of general damages of N50,000.00 by the Learned trial Judge in favour of the Plaintiffs (Respondents herein) was unjustifiable because the Learned trial Judge did not given any iota of reason while a whooping sum of N50,000,00 was awarded as general damages after refusing the special damages of the Plaintiffs for lack of supply of particulars relying on the case of State -Vs- Aibangbee (1988) 3 NWLR (Pt.84) P. 548 at P. 577, Per Eso, J.S.C to buttress his submission on this point.
For his part, Learned Counsel for the Respondents urged us to hold that the trial court was justified in awarding general damages of N10,000.00 in favour of each of the Plaintiff against the Defendants. This is because despite the huge loss suffered by the Plaintiffs that trial Judge did not award any special damages. He urged us not to disturb the award.
Damage is defined in Black’s Law Dictionary in Edition as monetary compensation for loss or injury to a person or property. In the cases of: Mr. Nse Akpan Udoh -vs- I. Okitipupa Oil Palm Plc, Mr. Akintade Akinkugbe (2005) Vol. 24 WRN, P.140 at P. 170, this court (Benin Division) Per Augie, J.C.A., held thus:-
“Damages are the sum of money received from a wrongdoer as compensation/or the wrong.”
Having defined what compensation is, and all that it is appropriate at this juncture to pause and ask this question that is whether or not in the circumstances of the case under consideration the award of general damages awarded to the Respondents can be faulted. The Learned trial Judge whilst making the award in favour of the Respondents did say inter alia thus:-
“In view of their failure to particularize their head claims against the Defendants, I hold that a general damages should be awarded to each Plaintiff and I so hold and award (N10,000.00) Ten Thousand Naira as general damages ..”
It is pertinent to state that before the above award was made, the trial Judge based on the evidence adduced by both parties found as a fact that the Appellants entered the farms of the Respondents and destroyed their crops. The trial Judge held in his own words inter alia thus:-
“… I also hold that they destroyed the farm crops of all the plaintiffs.”
See page 128 2nd paragraph of the main record.
On this issue of damages, in the light of all that I adumbrated above, the ward of N10,000.00 to each of the Plaintiff for loss of their farm crops brought about by the Defendants (Appellants) cannot be faulted in anyway. It needs to be said at this stage that the Learned Counsel for the Appellants made heavy weather of the decision of the apex court in the case of State -vs- Aigbangbee (supra). With due respect to the Learned Counsel, the facts and circumstances of that case are quite different from the ones under consideration. In that case, no evidence whatsoever was adduced to justify the finding of the trial Judge. Whereas in the case under consideration, there was avalanche of evidence that the Appellants entered their farms without permission and destroyed the farm crops of the Respondents.
From all that I have stated in respect of the Respondents’ issue No 1, the question must be answered in the affirmative. For avoidance of doubt, the learned trial Judge was right in holding that the Plaintiffs proved their claims for trespass and damages against the Appellants.
ISSUE NO.2
Let me begin considering this issue by dealing with the contention of the Learned Counsel for the Respondents that the issue of identity of the land being raised for the first time by the Appellants, leave of the court must be sought and obtained. With due respect to the Learned Counsel, the issue of identity of the land in contention in view of the pleadings and evidence adduced at the lower court cannot be said to have been raised for the first time on appeal by the Appellants. Far from it. There is avalanche of facts to suggest that same had been raised at the lower court. I say no more on this as no useful purpose would be achieved by giving the issue any further consideration. In any event, the parties are fully aware of the land in dispute. There is no controversy whatsoever, on the identity of the said land.
Learned Counsel for the Respondents urged us to hold that the Defendants who counter-claimed for ownership of the said land are very much in the position of the Plaintiffs who must prove the counter-claim on the balance of probability in order to succeed relying on the case of Jeric Nig. Ltd. -vs- UBN Plc. (2001) FWLR Pt. 31; Pt.291 at 2929-2930 and Narindex Ltd. -vs- MINB (2001) 4 SCNJ 213 at 226 – 227.
In Jeric’s case the apex court held thus:
“For all intents and purpose, a counter-action and counter-claimant like all other Plaintiffs in an action, must prove his claim against the person counter-claimed before judgment can be obtained on the counter-claim.”
While in the latter case, it was held by the apex court against as follows:-
“Stricto sensu a counter-claim is an independent claim made by the defendant, which can be taken together with the main claim. The quantum of proof appropriate to be attained in order to give judgment in a counter-claim in favour of the defendant must be of the type required by the plaintiff in every claim, i.e. proof based on preponderance of evidence.”
Needless to say, in the light of the authorities adumbrated above, the Defendants as counter-claimants at the court below must prove their case as (Plaintiffs) on preponderance of evidence. The question to be asked is, did the Defendants prove their counter-claim at the trial court’? To answer this question, recourse had to be made to the evidence adduced by them in support of the said counter-claim. The only evidence given in support of the same at the trial court was that of the 1st Defendant who testified as DW1. A careful perusal of the pleadings viz-a-viz the historical evidence given by DW1 would reveal the fact that same is completely at variance with the pleadings. For their part, the plaintiffs by their pleadings and oral evidence established various and numerous positive acts of ownership and possession of the land. The Defendants did not establish any.
It is also to be observed that, while the Plaintiff’s gave evidence of how the land devolved on them from their parents and have been farming on the lands for a continuous period of over 40 years as per the evidence of PW1 (Page 64 of the main record), 60 years as per the evidence of PW3 (Page 69 of the main record) 25 years as per evidence of PW4 (P.73 of the main record) and 25 years as per the evidence of PW5 (P.75 of the main record), the Defendants did not establish any evidence of either possession, ownership nor of farming on the land for even a day.
Furthermore, though the Defendants pleaded that the Plaintiffs were tenants paying tributes, they did not adduce iota of evidence to that effect. In fact, DW1 (1st Defendant) in his examination in chief at page 92 of the record slated thus:-
“I don’t know the Plaintiffs”
Again, he stated at page 92 of the record as follows:
“I don’t know the Plaintiffs they are not my tenants.”
Though, the Defendants claimed that they would give evidence of acts of ownership and possession, they never did. In the case of Balogun vs. Akanji and another (supra) the apex court held thus:-
“A careful comparison between the Plaintiffs’ evidence on their traditional history and traditional evidence called by 1st & 2nd Defendants will show that the case made by the Plaintiffs is stronger. Not only did they call their boundary man, who established their title to the land in dispute, but the Plaintiffs also proved that their ancestor was not a tenant on the land in dispute and that the land was owned by him…”
In the light of all that I have been saying, this issue like the previous issue is resolved in favour of the Respondents and against the Appellants.
ISSUE NO.3
On this issue for determination, Learned Counsel for the Appellants submitted that by virtue of the National Boundary Commission Act, Cap. 238, Laws of the Federation 1990, the lower court was not clothed, with jurisdiction to hear and determine the Plaintiffs’ claims as there was evidence that the issue relating to the boundary dispute between the two communities was before the State Boundary Commission. Learned Counsel further submitted that the jurisdiction of the court was ousted by the provisions of Section 2 of the inter-Tribal-Boundaries settlement Law Cap 53 Laws of Northern Nigeria as applicable to Kwara State. Learned Counsel again referred to Section 5 of Edict No. 9 of 1970 and submitted that by virtue of the Local Boundaries settlement Edict, 1970, a boundary commission is one vested with jurisdiction to adjudicate on boundary disputes between communities relying on the cases of Ogunniyi vs. Adaramola and Anor (1973) Vol. 8, NSCC. P. 655 and Ex-parte Chief Salami Adesina (on behalf of Ilobu Community) vs. Oyo State vs. The Commission, Osogbo and 1 other (1996) 4 NWLR (Pt.472) P. 254 at P. 262.
Learned Counsel then submitted that having regard to the law cited above and Exhibit D, the lower court lacked jurisdiction to entertain the Plaintiffs’ claim as the parties herein belong to two different communities and more importantly, he went on, the land in dispute was already before the Boundary Commission. He urged us to hold that the lower court lacked jurisdiction to hear and determine the Plaintiffs’ claims.
Learned Counsel for the Respondents however, submitted that the Plaintiffs’ case were for trespass and injunction and they filed the cases on their own, not representing Osi Community, That is to say, they did not prosecute the case in a representative capacity, Learned Counsel contended that it was the Defendants (particularly the 1st Defendant) who applied to prosecute the counter-claim in a “representative” capacity. The grant of the application for consolidation of the plaintiffs’ cases and for the counterclaim to be prosecuted in a representative capacity at the instance of the 1st Defendant does not still translate the case to one of communal dispute.
I am of the strong view that there is considerable force in the submission of the Learned Counsel for the Respondents and I am inclined to agree with the said submission in view of the followings:-
- It is very clear even form Exhibit D that the Plaintiffs are not signatories to the memorandum said to have been submitted by Osi community.
- That the Plaintiffs actions were filed a month before the memorandum was submitted to the Boundary Commission of Kwara State.
- The Plaintiffs’ cases are separate from and independent of the complaints of Osi as a community before the said commission.
- Osi community could not have (and did not in fact) claim damages for trespass on behalf of Plaintiffs who are the persons directly affected by the unlawful acts of the Defendants.
In the light of all that I have adumbrated above, I hold without any hesitation that all the laws and decided cases cited by the Appellants’ Counsel in support of his submission are most irrelevant and cannot be called in aid of the Appellants’ case, I am of the firm view that both the claims and even the counter-claim of the Defendants do not relate to the fixing of boundary between Osi and Etan Communities.
It is trite law that the claim(s) of the Plaintiff(s) determine(s) the jurisdiction of the court.In the case of Adesina -Vs- Commissioner of Ifon/Ilobu (supra) the apex court Per Adio (J.S.C.) has this to say:
“This issue involved in the matter before the High Court, Hoy 20/70, was a declaration of title to a piece of land. That matter within the jurisdiction of the High Court but which is/was not within the jurisdiction of the 1st Respondent…”
In view of the foregoing, this issue like the previous two issues is resolved in favour of the Respondents against the Appellants.
On the whole, the appeal is unmeritorious and same must and it is hereby dismissed. The Judgment of the lower court awarding damages for trespass and injunction restraining the Appellants from trespassing into the farmlands of the Respondents at “Goyin and Oye” respectively to destroy their lands is hereby upheld. I ward N10,000.00 costs in favour of the Respondents against the Appellants.
Other Citations: (2005)LCN/1825(CA)
