Chief Christopher I. Monkom & Ors V. Augustine Odili (2009)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This is an appeal against the judgment of O. I. Itam, J of the High Court of Cross River State sitting at Ogoja in Suit No: HJ/55/2007 delivered on 15/3/2006.
The respondent, as plaintiff instituted proceedings against the appellants, who were the defendants at the trial court, claiming:-
1. Declaration that the Plaintiff being a Nigerian citizen is free to acquire and own property any where in Nigeria including Ogoja, and that Defendants efforts in preventing or attempting to prevent Plaintiff from acquiring No. 42 Mission Road, Igoli – Ogoja covered by certificate of occupancy No. OG389/91 dated the 15th day of December, 1991 is unlawful, illegal, null and void.
2. N10,000,000.00 (Ten Million Naira) being Special, Aggravated and general damages for trespass on the 4th day of June 2001, 12th day of June 2001 and continuing on the piece and parcel of land aforesaid which is in lawful and peaceable possession of the Plaintiff.
3. An order of perpetual injunction restraining the Defendants either by themselves, their agents, servants, workers, privies, and or assigns, from further trespassing into the said piece or parcel of land with a view to disturbing or preventing the Plaintiff or his agents or workers from carrying any manner of work whatsoever in violation of Plaintiffs, right to exclusive possession, usership and enjoyment of same (See Amended statement of Claim filed on March 31, 2003).
In furtherance of the claim the respondent testified for himself and called 3 other witnesses. The appellants chose or elected not to call any witness in support of the averments in their statement of defence. Rather, they rested their case on that of the respondent. The appellants made a no case submission at pages 24-26 of the record. At the conclusion of the case the learned trial judge entered judgment in favour of the respondent as per his claims under paragraph 26 (1) and (3). In respect of the claim for damages the trial judge awarded the respondent the sum of N120,000 as special damages and a further sum of N50,000 as general damages.
Dissatisfied with the judgment of the trial court, the appellants appealed to this court on 5 grounds on 2/5/2006. The appellants on the 22/3/07 filed an application for leave to file and argue one additional ground of appeal, which was granted by this court. From the 6 grounds of appeal the appellants distilled 5 issues for determination in the appellants brief dated 8/4/2008 and filed on 9/04/2008. The issues are as follows:-
1. Whether the learned trial judge was right in failing to resolve the issues of rejection of the deed of assignment and the alienation of the land in dispute without the consent of the governor? (Additional ground).
2. Whether the learned trial judge was right in making injunctive orders and award of damages for trespass over rights derived from the Suitland which was alienated without consent and rejected in evidence? (Ground 1).
3. Whether the trial judge was right in holding that title to land was not in issue? (Ground 2).
4. Whether the trial judge was correct when he held that the defendants frustrated the efforts of the Plaintiff to obtain consent to assign?
(Ground 3)
5. Whether the trial judge was right in awarding damages in favour of the Plaintiff in the face of the Evidence before the court? (Ground 5).
The respondent, in his brief dated 2/3/2009 and filed on 17/3/09 but deemed properly filed and served on 18/3/09 by this Court, distilled one issue for determination as follows:-
Whether the rejection of the deed of assignment, which has no Governor’s consent, and also as unregistered registrable instrument as exhibit was fatal to or crashes the whole case of the respondent.
The respondent in his brief replied to issues Nos. 3, 4 and 5 raised in the appellants’ brief.
Learned counsel for the appellants, submitted that the learned trial judge erred in Law and misdirected himself when he completely ignored and failed to resolve the issue of the deed of assignment, given the fact of want of consent and non-registration and consequent rejection in evidence. Counsel submitted that the above issues were central to the defence of the appellant and they informed their approach and strategies in marshalling their defence. When the deed of assignment was rejected the defendants found no need to even as much as cross-examine PW1, in the belief that the bottom has been knocked off the respondent’s case because the respondent relied on documentary evidence to locate his interest on the land.
Having rejected the deed of assignment the court was prevented from admitting oral evidence to prove the transaction between PW1 and the Plaintiff and the appellants rested their case on that of the respondent, for the above reasons.
Counsel also submitted that courts have a mandatory duty to pronounce on all issues placed before it. Counsel cited a host of cases in support of this submission; notable among them is Brawal Shipping Ltd vs., Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) 378 at 403-404. He then concluded that the failure of the trial Judge to resolve the issue of consent and rejection of the deed of assignment has denied the appellants of their right to fair hearing and occasioned a serious miscarriage of justice.
On issue No.2, Learned counsel contended that the learned trial judge erred in law in proceeding to make injunctive order and award of damages for trespass in favour of the respondent after holding that the deed of assignment which was the basis of the respondents case was neither registered nor consent sought before its alienation.
Counsel referred to Sections 22 and 26 of the Land Use Act 1978 and submitted that by their combined effect, the alienation of the right of occupancy in Certificate of Occupancy No. OG/389/91 and transfer of possession to the respondent were illegal null and void. He relied on Brossette Manufacturing Nig. Ltd. v. M/S Ilemoso (2007) 14 NWLR (Pt. 1001) 109 at 138, 109; Awojugbe Light Ind. Ltd vs. Chinukwe (1995) 1 NWLR (Pt. 390) 379. He concluded that a person cannot acquire possession of land based on an instrument or transaction that has been declared unlawful, null and void. He relied on Akinterinwa vs. Oladunjoye (2000) 6 NWLR (Pt. 659) 92 at 115 at 116 and Saleh vs. Munguno (2006) 15 NWLR (Pt. 1001) 26 at 630-631.
On issue No.3, Counsel submitted that the learned trial Judge erred in Law and misdirected himself on the facts when he made a finding of fact that the appellants frustrated the efforts of the respondent to obtain consent to assign. He referred to the letters written by the appellants to stop the appropriate authorities from giving consent to the transaction between the respondent and PW1 were written after the respondent had commenced the action and an order ex-parte obtained and served on the appellants, therefore the letters cannot be used in the determination of this action as they were acts that transpired during the pendency of the action.
On issue No.4, Learned Counsel submitted, that the learned trial Judge erred in law when he held that title was not in issue because it is trite law that where there is a claim for trespass and injunction, title is invariably and automatically put in issue. He relied on Yusuf vs. Keinsi (2005) 13 NWLR (Pt. 943) 554 at 573; Olohunde vs. Adeyoju (2000) 10 NWLR (Pt. 676) 562 at 580. Counsel concluded on this issue, that the appellants were in possession of the land in dispute even before the respondent. In paragraphs 4 and 5 of the Statement of defence, the appellants averred that the land in dispute was duly allocated to the 3rd appellant.
On issue No.5, counsel submitted that the trial Judge erred in law and misdirected himself on the facts when he awarded the sum of N120,000.00 as special damages to the respondent when same was not proved. He then urged the court to allow the appeal.
For the respondent, it was contented on issue No.1, that the rejection of the deed of Assignment in evidence in the court below did not crash the case of the respondent as his case was not centered on the said document. Relying on Olohunde vs. Adeyoju (supra), counsel submitted that in a claim for trespass and injunction, the party that will succeed as between the plaintiff and the defendant is the one that holds a better title to the land in dispute. He pointed out that the appellants before the trial court, in paragraph 4 of their Statement of defence, stated that the 3rd appellant was allocated the land in dispute for the purpose of building her premises. Having put their title in issue, the pendulum of proof swung to them after the evidence of the respondent stating the root of their title.
Counsel pointed out that the appellants abandoned their pleading and their case, they refused to call even a single witness to adduce any evidence in support of their case. There is therefore nothing for the court to resolve. Following the ratio in the case of Olohunde vs. Adeyoju (supra), the issue now is as between the appellants and the respondent who has a better title. Counsel then submitted that the law ascribes the better title to the respondent, being the only party that led evidence in proof of his acquisition.
On the deed of assignment, the respondent contended that it was rejected by the trial court for the reason stated by the court at page 12 of the record based on the fact that there was no consent and also the deed was unregistered being a registrable instrument, therefore there is nothing to resolve again concerning the document.
The respondent also contended that the appellants abandoned their statement of defence at the trial but they took active part in all the proceedings until judgment was delivered so they cannot complain about fair hearing. It was also contended that the respondent being a purchaser of land is in possession of the land by virtue of a registable instrument which has not been registered and has paid the purchase money, then he has acquired an equitable interest in the land which is as good as a legal interest and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity as was decided in Awaogbo vs. Eze (1995) 1 SCNJ 157 at 168-9. Counsel pointed out that the appellants have not shown any interest whatsoever to defeat that of the respondent and the respondent who is in possession can maintain an action against another trespasser. He referred to Ude vs. Chimbo (1998) 12 NWLR (Pt. 577) 169 and Olagbenro vs. Ajagungbade (1990) 3 NWLR (Pt. 136) 37. Counsel contended that Section 22 of the Land Use Act does not prohibit a holder of a Certificate of Occupancy from entering into any form of negotiations or written agreement or transfer or alienate land. He referred to Savannah Bank vs. Ajilo (1989) 1 NWLR (Pt. 97) 305 at 309. He concluded that the deed of assignment vests an equitable title on the respondent, which is unassailable because the appellants have no title and infact did not show any.
On the respondent’s reply to the appellants issue No.3, it was contended that the argument of the appellant that the respondent made no attempts to obtain the consent of the governor is just an academic exercise because the respondent clearly stated that his attempts to get consent were frustrated and scuttled by several letters and petitions initiated by the appellants in exhibits 13, 14, 15 and 16 reflected at pages 46-49 of the record. Counsel submitted that exhibits 13-16 do not come within the purview of Section 91(3) of the Evidence Act, 1990. He pointed out that the said exhibits were not written by the respondent but by persons who claimed to be defending the communal interest and they are dealing with official interest. Counsel relied on Are vs. Ipaye (1986) 3 NWLR (Pt. 29) 416; Anyanbosi v. R.T. Briscoe (Nig) Ltd. (1987) 3 NWLR (Pt. 59) 84 and Highgrade Maritime Service Ltd vs. First Bank (Nig) Ltd (1991) 1NWLR (Pt. 167) 290.
On issue No.4, counsel for the respondent submitted that a person in possession of land can maintain an action against anyone who cannot show a better title. In this case the respondent took possession of the land in dispute, placed cement, blocks and gravels etc and commenced development. Counsel submitted that the respondent has been in possession of the land from the original owner/predecessor in title as he is deemed in law to have been all through and continued in possession by all his predecessors in title. He argued that the slightest possession in the plaintiff enables him to maintain an action in trespass if the defendant cannot show a better title. He was also of the view that question of establishing title only becomes necessary where there is a competing claim to possession, because the claim for trespass is not dependent on the claim for declaration of title, the issue to be determined in the claim for trespass and that for declaration of title are quite separate and independent issues. He relied on Oluwi vs. Eniola (1967) NMLR 339 and Akinteriwa vs. Oladujoye (2000) 6 NWLR (Pt.659) 92. It was contended for the respondent that the appellants were never in possession of the land in dispute. Their pleading in paragraphs 4 and 5 of the statement of defence that the land was duly allocated to the 3rd appellant was abandoned as they never called any witness and offered no evidence to be placed on the other side of the imaginary scale. It was also submitted that in law the appellants are bound by the evidence called in support of the case by the respondent. Counsel relied on Toriola vs. Williams (1982) 7 SC 26 at 33. He contended that the appellants address, no matter how brilliantly written and argued can never usurp the place of evidence in a matter. He relied on Niger Construction Ltd. v. Okubeni (1987) 4 NWLR (Pt. 67) 787.
On issue NO.5, Learned Counsel for the respondent submitted that the Learned trial Judge was correct in law in his award of special damages as same was pleaded and strictly proved. The evidence of the respondent is therefore in line with paragraph 24 of the Amended Statement of Claim. He then urged the court to dismiss the appeal and affirm the judgment of the trial court.
At this juncture, it is important that, I say that though the appellants’ brief was settled by Mr. Mathew Ojua, he was not present at the hearing of the appeal.
Mr. M. E. Arikpo Edet appeared for the respondent. Since all the briefs of the parties were in, the appeal was deemed properly argued pursuant to the provisions of Order 17 Rule 9 (4) of the Court of Appeal Rules, 2007.
I have carefully considered the issues for determination formulated by the parties very carefully and in my view the five issues formulated by the appellants are germane and derivable from the grounds of appeal. I shall therefore adopt and rely on them for the determination of the appeal in this judgment.
I shall preface this judgment with a consideration of the case of the parties on the state of the pleadings. The appellants filed a Statement of defence of 10 paragraphs which appears at pages 8 and 9 of the record. Curiously enough, the appellants failed or refused or neglected to call any evidence in support of their statement of defence. Rather, the appellants chose to rest their case on the respondent’s case and they made a no case submission. See pages 24 and 35 of the record. In the circumstances the appellants admitted in totality the unchallenged evidence of the respondents.
In Imana vs. Robinson (1979) N.S.C.C. Vol. 12 page 1 at 5 the Supreme Court held, inter alia that:
“Not having given evidence either in support of her pleadings on in challenge of the evidence of the plaintiff the defendant must be assumed to have accepted the facts adduced by the plaintiff notwithstanding her general traverse as contained in paragraph 6 of the Statement of defence”
Where a defendant rests his case on that of the plaintiff at the trial, the defendant has taken the enormous risk of blowing a muted trumpet. The trial court has little or no choice but accept the unchallenged and uncontraverted evidence placed before it by the plaintiff since it was not discredited by the defendant during cross examination. See: Okolie vs. Marinho (2006) 15 NWLR (Pt. 1002) 316 at 340- 341; Otuedon vs. Olughor (1997) 9 NWLR (Pt. 251) 355.
The effect of a party’s failure to call evidence in defence of the claim against him at the trial is that he is presumed to have accepted the evidence adduced against him by the other party. In the instant case, the legal effect of the appellant’s failure to call evidence in defence of the claim against them at the trial was that they were assumed to have accepted the evidence adduced by the respondent in support of his claim. See: University of Calabar vs. Ephraim (1993) 1 NWLR (Pt. 271); Nigerian Housing Development Association vs. Mumuni (1977) SC 57.
When pleadings have been settled, and issues joined, the duty of the court is to proceed to the trial of the issues. If one party fails or refuses to submit the issues he has raised in his pleadings for trial by giving or calling evidence in their support, the trial court must resolve the case against the defaulting party, unless there are other legal reasons dictating to the contrary.
Where only one party calls evidence minimum proof is required of him in order for his claim to succeed See: Ajero vs. Ugorji (supra). It is trite law that averments in pleadings is not evidence. They mainly highlight the evidence that a party is likely to present so that the other side would not be caught unaware or unprepared or to eliminate surprise. The position of the Law is that pleadings are the body and soul of any case in a skeleton form and are built and solidified by evidence in support thereof. They are never regarded as evidence by themselves and if not supported by evidence they are deemed abandoned. See: Chime vs. Chime (2001) 3 NWLR (Pt. 701) 527; Garba vs. Lobi Bank (2003) FWLR (Pt.173) 106 and Ezeanali vs. Atta (2004) 7 NWLR (Pt. 873) 468. Averments in pleadings must be proved by evidence, except where they are admitted by the other party.
In the instant case the respondent in his case made no admission of any fact.
The appellants at their own peril chose not to call evidence in support of their averments in their Statement of defence before the trial court. It follows therefore that the appellants must be taken to have abandoned their Statement of defence because any pleaded fact in respect of which evidence is not adduced is deemed abandoned. See N. A. S. Ltd vs. UBA Plc (2005) 14 NWLR (Pt. 945) 421; Akanni vs Adigun (1993) 6 NWLR (Pt. 304) 218. It is also significant to note that the respondent filed a reply to the statement of defence, where he denied the averments in paragraphs 3 and 4 of the statement of defence and also that the land in dispute was never allocated to the 3rd appellant. In the circumstances it was imperative and obligatory that the appellants adduce evidence. Not having done so, it will be taken that the appellants have abandon their statement of defence.
In respect of the issues raised in issue No.1, it is my humble view that the trial court was wrong in rejecting the deed of assignment because it was not registered, being a registrable instrument by virtue of the provisions of Section 15 of the Land Registration Law of Cross River State. However, having rejected the deed of assignment, it is difficult to understand the substance of the appellants issue NO.1. There is nothing more for the trial court to resolve again concerning the issue. Having rejected the deed of assignment, it was no longer an exhibit before the trial court. The rejection of the deed of assignment was not fatal to the case of the respondent. It is not the law that once the deed of assignment relied upon by a plaintiff is rejected his case must fail. No. Rather, in a claim for trespass and injunction, the party that will succeed as between the plaintiff and the defendant is the one that holds a better title to the land in dispute. Where a claim for trespass is coupled with a claim for injunction, the title is automatically put in issue. Where the issue is as to which of the claimants has a better right to possession or occupation of a piece or parcel of land in dispute, the law will ascribe possession to the person who has a better title thereto. See Olohunde vs. Adeyoju (supra); Aromire vs. Awoyemi (1972) 1 ALL NLR. (Pt. 1) 101; Fasoro vs. Beyioku (1988) 8 NWLR (Pt. 96) 263.
Learned counsel for the appellant contended that the fulcrum of the plaintiffs case rests on the deed of assignment purporting to transfer interest in the land in dispute, which was tendered and rejected and that by that rejection the foundation of the respondent’s case crashed. The contention of learned counsel for the appellant is grossly misconceived and misleading.
The non registration of a registrable land instrument affects only the legal or statutory title, not the equitable one. The legal title may be imperfect but equitable title of the owner is available. Moreover it was never the respondent’s case that he had a statutory title. An unregistered instrument can very well operate as evidence of payment of money, and coupled with possession, in appropriate cases may give right to an equitable interest. In Ogunjumo vs. Ademolu (1995) 4 NWLR (Pt. 389) 147. it was held that although an instrument affecting land must be registered before it can be admitted in evidence in a court of law, where a registrable instrument is not registered but is coupled with taking of immediate possession and acts of possession, such an instrument is admissible to prove an equitable interest.
At page 265, of the report, Kutigi, JSC (as he then was) in his usual erudity stated thus:
“To put it simply, the law is that registrable instruments which are not registered are, if pleaded, admissible in evidence to prove not only payment of purchase money or rent but also to prove equitable interest where the purchaser or lessee is in possession. See Okoye vs. Dumez (1985) 1NWLR (Pt. 4) 783; Registered Trustees of Apostolic Faith Mission vs. James (1987) 3 NWLR (Pt. 61) 506.”
See also Lawson vs. Afanu Construction Coy. Ltd. (2002) 2 NWLR (Pt. 752) 585. Learned counsel, contended that to create an equitable interest or title, the party relying on purchase receipt and possession must tender and duly prove the purchase receipt. He relied on Adeniyi vs. Onagoruwa (2000) 1 NWLR (Pt. 639) 1. There is overwhelming evidence in the record that the respondent bought the land in dispute from PW1, Ukpo Simon Atrogo. PW1 himself, at page 11 of the record, testified that he sold the land in dispute to the respondent. PW1 at page 1 testified at lines 12 to 15 and 20 to 21 of the record as follows:
“I know the land/property at 42 Mission Road, Igoli – Ogoja.
The original owner was Mr. Ekpo. He sold it to my late father.
After the death of my father, I now sold the property to the plaintiff; I am the 1st son of my late father.
After the death of my father I applied for letter of Administration and I was issued with one. I assigned the property to the plaintiff in January 2001.”
Curiously enough, PW1 was not cross-examined by the appellant’s counsel. See page 13 line 3 of the record. The evidence of PW1 was unchallenged, uncontroverted and uncontradicted. The evidence of PW1 is credible, cogent, reliable and it has probative value. Where relevant, admissible and credible evidence stands unchallenged and uncontradicted, the court has no alternative but to accept it and act on it to establish or controvert a fact or matter in issue. See Durosaro v. Ayorinde (2006) 8 NWLR (Pt. 927) 407 at 427; Oujinle vs. Adeagbo (1988) 2 NWLR (Pt. 75) 238, Adejumo vs. Ayantegbe (1989) 3 NWLR (Pt. 110) 417; UBA Ltd. vs. Achoru (1990) 6 NWLR (Pt. 156) 254 and Cameroon Airlines v. Otutizu (2005) 9 NWLR (Pt. 929) 202. In the instant case on appeal, the evidence of PW1 must be accepted.
PW2 substantially supported the evidence of PW 1. He stated that:
“The plaintiff, in accordance with the practice, came for change of ownership with the community. He performed all that was demanded by the community and paid the sum of N85,000 on top. I was then the Community Financial Secretary who issued a receipt for change of ownership to the plaintiff.”
PW3 also confirmed the evidence of PWS 1 and 2.
PW4, the respondent himself, confirmed the evidence of PWS 1, 2 and 3, in all material respect. He tendered exhibits 2-5 in evidence. Exhibit 2, is Ishibori New Plot allocation to M. R. Ekpo of 15/7/06. Exhibit 3, photocopy of letter of Administration dated 11/11/97. Exhibit 4 – Ishibori Plot Allocation Committee Solicitors rent reminder letter. Exhibit 5 – Agreement dated 10/7/1997 between – M. R. Ekpo and S. P. Atrogo.
PW4 in the course of his testimony tendered the original receipt for the N85,000 he paid to the Community. It is therefore clear that the respondent complied with the demand of the Community and he tendered documents and duly proved the purchase of the land in dispute.
It is trite law that a purchaser for value of a legal estate takes such estate together with all the incumbrances in equity which he had notice of before the purchase whether or not such incumbrances were registered. Where a purchaser of land or a lessee is in possession of the land and has paid the purchase price to the vendor or has paid rent to the lessee, as the case may be, then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal interest and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. See Obijuru vs. Ozims (1985) 2 NWLR (Pt. 6) 167 and Buchnor-Maclean vs. Inlaks (1980) 8/11 SC 1.
I agree with Learned Counsel for the appellant, that once a document qualifies as an instrument under Section 15 of the Land Registration Law, non registration of such document makes it prima facie inadmissible. However such unregistered document is admissible as an acknowledgment of payment of money. See Obijuru vs Ozims (supra) and Ogunbambi vs. Abowab 13 WACA 222.
Now, where a purchaser of a land is in possession of the land by virtue of a registrable instrument which has not been registered, has paid the purchaser money to the vendor, then the purchaser has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. Okoye vs. Dumez (supra) and Agbabiaka vs. Okotie (supra).
The Learned Counsel for the respondent, actually made this submission at page 12 of the record, before the trial court, that the deed of assignment should be admitted to show or prove the payment of some amount of money and nothing more. Regrettably, the trial court rejected counsel’s submission.
In my considered view, the trial court was in error in rejecting the submissions of Mr. Umar. The deed ought to have been admitted in evidence as evidence showing the payment of the purchase price of the land. See Obijuru vs. Ozims (supra).
I now turn to the provisions of Sections 22 and 26 of the Land Use Act which have been robustly considered by the Supreme Court in Awojugbagbe Light Ind. Ltd. vs. Chinukwe (1995) 4 NWLR (Pt. 390) 379. At page 435-436 it was held that:-
“The holder of a statutory right of occupancy is certainly not prohibited by Section 22 (1) of the Land Use Act, 1978, from entering into some form of negotiations which may end with a written agreement for presentation to the Governor for his necessary consent or approval. This is because the Act does not prohibit a written agreement to transfer or alienate land. Thus to hold that a contravention or non-compliance with Section 22 of the Act occurs at the time when the holder of a statutory right of occupancy executes or seals the deed of mortgage will be contrary to the spirit and intendment of Section 22 of the Act”
In the above case the Supreme Court cited the case of Denning vs. Edwards (1961) A. C. R 45 with approval, where Viscount Simonds, on the interpretation of Section 88 of the Crown Lands Ordinance, the provisions of which are in pari materia with Section 22 (1) of the Land Use Act, had this to say:
“It has been argued that the consent of the Governor must be obtained before the agreement is entered into and that subsequent consent is insufficient. Some form of agreement is inescapably necessary before the Governor is approached for his consent. Otherwise negotiation would be impossible. Successful negotiation ends with an agreement to which the consent of the Governor cannot be obtained before it is reached.
Their Lordships are of the opinion that there was nothing contrary to law in entering into a written agreement before the Governor’s consent was obtained. The legal consequences that ensued was that the agreement was inchoate till that consent was obtained. After it was obtained the agreement was complete and completely effective.
It is important to note that the decision in Awojugbade Light Industries Ltd. Vs. Chinukwe (supra). had placed the onus of securing consent of the Governor squarely on the vendor, in this case, PW1. The respondent is not the person to seek the consent of the Governor, it is the responsibility of PW1. See Agbabiaka vs. Okojie (2004) 15 NWLR (Pt. 897) 503 at 538 – 539.
Learned Counsel for the appellant argued that the court has a mandatory duty to pronounce on all issues placed before it. That may be so. There is however a little qualification to that submission. In Brawal Shipping Ltd. vs. Onwadike Co. Ltd. (supra) Uwaifo JSS stated that:
“It is no longer in doubt that this court demands of and admonishes the lower courts to pronounce as a general rule on all issues properly placed before them for determination….”
The emphasis is on all issues PROPERLY PLACED before the court for determination, apart from the issue of fair hearing. It does not mean that failure to make pronouncement on any matter amount to lack of fair hearing especially when the issue, like the one the appellants are canvassing, was not properly placed before the trial court.
From the facts of this case on appeal, the issue of denial of fair hearing does not arise at all. The appellants, in their wisdom or lack of it, chose to abandon their statement of defence. They were not compelled to do so, they chose to rest their case on that of the respondent and a no case submission. I cannot find any wrong doing on the part of the Judge. Fair hearing in essence, means giving equal opportunity to parties to be heard in litigation before the court and where parties are given opportunity to be heard, but fail to use it, they cannot complain of breach of the right of fair hearing. See Sky Power Airways Ltd. vs. Olima (2005) 18 NWLR (Pt. 957) 224 and Abana vs. Ofili (2005) NWLR (Pt. 920)183. Having regard to the above, the complaint of denial of fair hearing has no legs to stand and it is of no moment. I resolve issue No. 1 against the appellant.
I now come to issue No.2, the central issue here is as submitted by the appellants’ counsel and that is, that the learned trial Judge erred in law in proceeding to make injunctive orders and award of damages for trespass in favour of the respondent after holding that the deed of assignment which was the basis of his case was neither registered nor consent sought before its alienation. Appellant’s counsel submitted that from the averments in paragraphs 5-8 of the respondent’s amended statement of claim, that the respondent’s claim is predicated on the deed of assignment executed in its favour on the 15/1/2001. Relying on Sections 22 (1) and 26 of the Land Use Act, counsel submitted that the alienation of the right of occupancy in Certificate of Occupancy NO.PG/389/91 and transfer of possession to the respondent were consequently illegal, nullified and voided. Having carefully perused the records, I agree with the counsel for the respondent that the rejection of the Deed of assignment did not knock the bottom out of the case of the respondent because his case is not predicated on the deed. It is not the law that where the document of title relied upon by a plaintiff is rejected; the case of the plaintiff for trespass and injunction will fail.
Failure of the claim for declaration of title will not necessarily lead to the dismissal of the claims in respect of trespass and injunction. In such circumstances, the plaintiff will be entitled to succeed in his claim in trespass and or injunction depending on the essential ingredients of those reliefs which he has established. Even where the plaintiffs title is defective and the defendants title is also defective but the plaintiff is in possession of the land, he can maintain an action in trespass against the defendant. See Lawal vs. Salami (2002) 2 NWLR (Pt. 752) 687.
In a claim for damages for trespass and injunction, it is only necessary to establish that the plaintiff was in possession. The question of the establishment of title only becomes necessary where there is a competing claim to possession. This is because the claim for trespass is not dependent on the claim for declaration of title as the issue to be determined on the claim for trespass and that for declaration of title are quite separate and independent issues. See Oluwi vs. Eniola (1967) NMLR 339; Akinterinwa vs. Oladunjoye (2000) 6 NWLR (Pt. 659) 92 at 116. In the instant case on appeal, it is not in dispute that the respondent was in actual and physical possession of the land in dispute. There is also credible evidence of PWS 1, 2 and 3 that the land in dispute was sold to the respondent by PW1. There is evidence of PW4, the respondent, that he purchased the land in dispute from PW1 for the sum of N300,000. There is the evidence of PWS 2, 3 and 4 that the respondent paid the sum of N85,000 to the Community. This evidence was not challenged, controverted or contradicted by the appellants.
The respondent who was in possession of the land in dispute is entitled to claim in trespass against the appellants. See Adeniji vs. Onagoruwa (supra). It is trite law that a plaintiff can maintain an action in trespass against the whole world except that true owner. See Dogo vs. Adamu (1998) 3 NWLR (Pt. 540) 159 at 166. It should be noted that trespass to land is the wrongful invasion of the private property of another. Trespass to land is rooted in a right to the exclusive possession of the land allegedly trespassed. Trespass to land is therefore actionable at the suit of a person in possession of the land. See Yusuf vs. Keinsi (2005) 15 NWLR (Pt.943) 554; Fabumini vs. Agbe (1985) 1NWLR (Pt. 2) 299; Amakor vs. Obiefuna (1974) 5 SC 76. The respondent having proved that he is in exclusive possession he is entitled to the order of injunction made by the trial court. Issue No.2 is therefore resolved against the appellants.
At this juncture, it is important that I point out that issue No.3 as set out at page 8 of the appellants’ brief was actually argued under issue No.4 at pages 11 and 12 of the said brief. No particular reason was given for altering the order of the presentation and arrangement of the issues. I shall therefore consider issue No. 3 as it is. The issue here is, whether the trial Judge was right in holding that title to land was not in issue. It is trite law that where there is a claim for trespass and injunction, title is invariably and automatically in issue. See: Yusuf vs. Keinsi (supra); Olohunda vs. Adeyoju (supra). However, the appellants did not adduce any evidence in support of their statement of defence. Learned counsel referred to paragraphs 4 and 5 of their statement of defence where the appellants pleaded that the land in dispute was duly allocated to the 3rd appellant but pleadings is not evidence. The appellants did not call any witness so there is no evidence in support of their pleadings. Pleadings will always remain as pleadings. The appellants did not call any evidence to support the averment that the land in dispute was duly allocated to the 3rd appellant. The appellants did not tender any letter of allocation. They did not say who allocated the land in dispute to the 3rd appellant or for that matter when such allocation was made.
The respondent on the other hand established by credible and admissible evidence that he was in actual physical and exclusive possession of the land in dispute. This evidence was not contradicted and it was not controverted by the appellant who did not call any witness. The appellants abandoned their statement of defence so there is no evidence to be placed on the other side of the imaginary scale. Consequently, the appellants are bound by the evidence called in support of the case by the respondent. See: Toriola vs. Williams (1982) 7 SC 26 at 33.
It is settled law that in a claim for trespass and injunction, it is only necessary to establish that the plaintiff was in possession and this the respondent did at page 16 of the record. The respondent took possession of the land in dispute, placed cement, blocks, sand, gravel etc and commenced development.
The respondent has been in possession from the original owner/predecessor in title as he is deemed in law to have been all through and continued in possession by all his predecessors in title. The slightest possession in the respondent enables him to maintain an action in trespass if the appellant cannot show a better title. In the instant case on appeal, the evidence may be slight, but as long as it establishes exclusive possession, it is enough. See: Ajero vs. Ugorji (supra). The law is that when a case is not defended, minimal evidence is enough to establish it.
In the instant case on appeal, the appellants were never in possession of the land in dispute, they did not claim possession and indeed on the evidence they claimed nothing. On the other hand, the plaintiff is in possession of the land in dispute through his predecessors in title, the materials and the workmen he put on site who commenced the physical developments. From the evidence of PW1, PW2, PW3 and the respondent, PW4, there is credible evidence that the respondent was in exclusive possession. There is also exhibits 9-12 which are the photographic evidence of the physical development made by the respondent on the land in dispute.
In a claim for trespass and injunction, it is only necessary to establish that the respondent was in possession. The question of establishing title only becomes necessary where there is a competing claim for possession.
An order of injunction invariably follows trespass. The learned trial Judge at page 47 of the record stated as follows:
“The remedy of injunction is an equitable and discretionary remedy whose main function is to ensure fairness and justice, it bounds the wicked to be fair, the weak to take heart, the riotous to be sane, the powerful to exercise restraint and the majority to be accommodating. Above all it compels all to act justly and fairly.
Issue NO.3 is bereft of any merit, I resolve it against the appellant.
Issue NO.4 queries whether the trial Judge was correct when he held that the defendants frustrated the efforts of the plaintiff to obtain consent of the Governor.
The contention of the appellant here is that the learned trial Judge erred in holding that the appellants frustrated the respondent and PW1 in their efforts to obtain consent to assign the deed of assignment. Having carefully perused the record, I am of the firm view that the respondent proved and established that his attempts to get the consent of the Government of Cross River State were frustrated and scuttled by several letters and petitions initiated by the appellants, the evidence of the respondent was not controverted or contradicted under cross-examination.
In page 20 of the record, the respondent said:
“I also started preparing with the person who sold the land to me, how to get the consent to assign and Certificate of Occupancy. I started getting petitions from all angles to frustrate me from getting consent or Deed of Assignment. I know because they were inviting me from Lands Department, Calabar with letters. The Defendant also wrote petitions through court papers.”
Again at page 22 the record, the respondent stated under cross-examination as follows:
“The Defendants want to frustrate me because I am not from this area and the 1st and 2nd Defendants are engaged in the same petroleum business with me. They have frustrated all my efforts. I have spent a lot. I cannot even register the land.
Suffice it to point out that the appellants did not call any evidence to challenge the evidence of PW4, the respondent, on this issue.
The respondent also tendered the letters, written by the same persons, to the authority to frustrate the respondent’s quest for the Governor’s consent. He tendered the letters as exhibits 13, 14, 15 and 16, which are at pages 46 – 49 of the record of proceedings. These are letters of caveat and protest against the respondent in respect of the land in dispute.
The contention of learned counsel for the appellant that Exhibits 13 – 16 cannot be used in the determination of this action as they were acts that transpired during the pendency of the action is misconceived. Exhibits 13 – 16 were not made by the respondent or his agents or servants. The makers were persons who claimed to be working in their official capacities as representatives of Ukamusha Community. Therefore they did not have any personal interest in the outcome of the case, and so they cannot be regarded as “persons interested” in the proceedings.
They acted in their official capacities and not their personal capacities. They were not called as witnesses and they did not testify in the case. In this respect the provisions of Section 91 (3) of the Evidence Act becomes relevant. It provides:
“Nothing in this Section shall render admissible as evidence any statement made by a person interested at the time when proceedings were pending or anticipated involving a dispute as to any fact which the statement tend to establish.”
The makers of the exhibits 13 – 16 were representatives of Ukamusha Community.
The disqualifying interest in Section 91 (3) of the Evidence Act, is a personal one and not merely interest in an official capacity. Where however the interest of the maker is purely official or as a servant without direct interest of a personal nature, there are decided cases that the document is not thereby excluded. See: High grade Maritime Service Ltd vs. First Bank (Nig) Ltd (1991) 1 NWLR (Pt. 167) 290. In the circumstances, the learned counsel for the respondent was right in his submission that Exhibits 13 – 16 are admissible to establish how the respondent was frustrated.
Similarly, the trial Judge was right when he admitted exhibits 13 – 16 and relied on them to make a finding that the respondent was actually frustrated from getting the necessary consent of the Governor. See also Are vs. Ipaye (supra); Anyabosi vs. R. T. Briscoe (Nig) Ltd (supra) and Beaumant ltd and Anor vs. Metropolitan Police District Receiver (1961) 1WLR 634 AT 655. Before concluding this issue, it is important that I refer to the evidence of the respondent presently. The respondent testified that the 1st and 2nd appellants are engaged in the same petroleum business with him. The appellants did not challenge or deny this piece of evidence. PW2 at page 13 of the record testified as follows:
” ….. Yes, the 1st and 2nd defendants (now 1st and 2nd appellants) are members of my community.
The reason given by 1st and 2nd defendant (now 1st and 2nd appellants) for stopping the plaintiff (now respondent) or his workers is that the suit land (sic) (the land in dispute) is in a strategic position fit for an indigene of the Community and not a non indigene.”
The evidence of PW2 was not challenged, controverted or contradicted on this piece of evidence. The appellants did not call any of the evidence to deny this point.
PW3 at page 15 confirmed the evidence of PW2, when he testified that the respondent had purchased the land in dispute and had paid the Community the sum of N85,000, but the 1st and 2nd appellants approached the Community that the land in dispute should be allocated to them because they are indigenes.
PW4, the respondent, also testified that the 1st appellant declared before the Divisional Police Officer that such strategic position of the land (in dispute) is not good for a non-indigene and that he, 1st appellant was interested in the land and he (the respondent) should go and develop his place. PW4 stated that he is from Agbor in Delta State. See page 20 lines 15 – 20 of the record. The evidence of PW4 was neither challenged nor contradicted on this issue. The evidence of PWS 2, 3 and 4 remained uncontradicted or unchallenged throughout the proceedings at the trial court. An unchallenged or uncontradicted evidence must be used against the party who ought to have contradicted or challenged the evidence but failed to do so. The evidence of PWS 2, 3 and 4 on this point is credible, cogent and it has probative value, therefore the court can rely on it, See: Tanarewa (Nig) Ltd vs. Avgal (2005) 5NWLR (Pt. 919) 593 at 636; Imana v. Robinson (supra);
Cameroon Airlines vs. Otutuizu (2005) 9 NWLR (Pt. 929) 202; Kano Plc vs. G & H (Nig) Ltd (2002) 7 NWLR (Pt. 751) 420.
The above unchallenged and uncontradicted evidence clearly show the reason why the respondent was frustrated from getting the Governor’s consent and why he was prevented from further development in the land in dispute.
It is significant to note that the land in dispute was allocated to the original owner, Mr. Ekpo on 15/7/56. The letter of allocation is Exhibit 2. Then Mr. Ekpo sold the land in dispute to Mr. S. P. Atrogo. The agreement for the sale between Mr. Ekpo and Mr. Atrogo dated 10/7/77 is exhibit 3. PW1 Ekpo Simon Atrogo the son of Mr. Atrogo, sold the land in dispute to the respondent in 2001. There is evidence that Mr. Ekpo and Atrogo made some developments on the land in dispute. PWS 1, 2, 3 and 4 confirmed all the above evidence. The above facts are very revealing. From 1956 to the 2001, the appellants and the Ukamusha Community did nothing and they did not react in anyway. But when PW1 sold the land to the respondent in 2001, the appellants suddenly woke from their slumber and came up with the allegation that the same land had been allocated to the 3rd appellant. When was the allocation of the land in possession of PW1 suddenly revoked? When was it allocated to the 3rd appellant? One does not need a soothsayer to know that the appellants do not want the land in dispute, which according to them, is in a strategic location, to be sold to the respondent who is a non-indigene of the Ukamusha Community. Moreover the 1st and 2nd appellants are in the same petroleum business with the respondent. Is this the real reason for the purported patriotic war?
At this juncture, I am compelled to comment on the attitude of the appellants. Section 43 of the 1999 Constitution provides as follows:
Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property everywhere in Nigeria.
Viewed from this background the behaviour or attitude and the shameful acts of the appellants is a gross violation of Section 43 of the Constitution of the Federal Republic of Nigeria. It is strange and indeed very disappointing and disheartening that at this very period of our nascent democracy, when the Government of Nigeria is talking about “Rebranding” the appellants are brazenly waging a war of attrition based on tribal sentiments. After we fought a civil war for the unity of this Country, some despicable elements are doing everything in their parochial mind and myopic vision to entrench the evils of Tribalism. Let reason and wisdom prevail, let us move this Country forward.
It is also clear that the appellants by sheer naked use of force, even if propelled by patriotic sentiments, entered or trespassed into the land in dispute and proceeded therein to cause damage without any lawful right or authority.
A trespasser does not acquire possession by his acts of trespass. The appellant cannot by their act of violently ejecting the plaintiff and erecting signboards secure or claim to secure possession by their acts of trespass. See: Akinterinwo vs. Oladunjoye (2000) 6 NWLR (Pt. 659) 92 and Ayanla vs. Sijuwole (1984) 1 SCNLR 410. It follows from the above that the appellants were never in possession of the land in dispute and have never been. They did not claim possession and on the evidence they claimed nothing whatsoever. I see no merit in issue NO.4 and I resolve it against the appellant.
In issue NO.5, the issue is whether the trial Judge was right in awarding damages in favour of the respondent in the face of the evidence before the court.
The central issue here is that the appellant contended that the sum of N120,000 as special damages was awarded to the respondent when same was not proved. It is trite law that special damages must be specially pleaded and strictly proved. See Daniel Holdings Ltd. vs. UBA Plc (2005) 13 NWLR (Pt.943) 5334, 547-548; SPDC (Nig) Ltd v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439 at 461. See: UTB (Nig) Ltd. vs. Ajagbule (2006) 2 NWLR (Pt. 965) 447 and Lufthansa vs. Odiese (2006) 7 NWLR (Pt. 978) 34 and Adeleke vs. Anike (2006) 16 NWLR (Pt. 1004) 131. I have carefully gone through the pleadings of the respondent, particularly paragraph 24 of the amended statement of claim. In view of the contention of the appellants’ counsel I have chosen to reproduce paragraph 24 of the amended statement of claim herein below:
Paragraph 24
“The plaintiff’s cement and blocks valued at over N65,000 were and or has been destroyed by domestic animals due to non usage resulting from the interruption/interference by the Defendants and or their acts of trespass on plaintiff’s property.”
It is significant to note that the respondent pleaded that the cement and blocks were over N65,000. The appellants in paragraph 4.01, at page 14 of their brief wrongly stated that the cost of the cement and blocks was N65,000. The appellant also contended that in Exhibit 7, the sum of N55,000 was stated as the price of the cement and blocks. That must be an error because Exhibit 7 clearly stated the sum of N80,000.
The learned trial Judge was right when he found on page 41 of the record as follows:
“I had earlier in this judgment reproduced the evidence of the plaintiff as to the damages he suffered, i.e. N80,000 for cement bought and put on site and N15,000 and N25,000 as advance payment to two set of workers who were allegedly beaten and scattered by thugs brought by the Defendants i.e. total of N120,000, which sum was not challenged or contradicted. Plaintiff also alleged attempts to frustrate him and they were not challenged.
From the foregoing it seems rather loudly obvious that the Defendants by sheer naked use of force … entered or trespassed into the suit land (sic) and proceeded therein to cause damage without any lawful right, authority or consent.”
I observed that the appellants offered no evidence to challenge the evidence of the respondent on the damages. The respondent pleaded and proved the special damages by credible evidence in support. The submission of the appellants counsel is not supported by any credible evidence. Submission of counsel, no matter how brilliantly written and argued, can never usurp the place of evidence in a matter. In Archibong vs. Edak (2006) 7 NWLR (Pt. 980) 455 at 502, it was held thus:
“Addresses or submissions of counsel no matter how brilliantly crafted, can never take the place of evidence”
In Aro vs. Aro (2000) 3 NWLR (Pt. 649) 433 at 457, this court held thus:
“The argument of counsel to a party, however brilliant cannot form or be valued as evidence which is lacking in his case.”
See also Obasuyi vs. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668 at 690 where the Supreme Court held inter alia that:
“As far as the facts of any given case are concerned, the address of counsel is supposed to deal only with the evidence before the court. But the mere mention of a matter in the course of address never substitute for the evidence that has not been led, nor can it supplement the inadequacy of the evidence already given at the trial.”
See further UBA Plc vs. ACB (Nig) Ltd (2005) 12 NWLR (Pt 939) 232 at 277; Ishola vs. Ajiboye (1998) 1 NWLR (Pt. 532) 71 and Chukwuekwu vs. Olalere (1992) 2 NWLR (Pt. 221) 86. In the circumstance I resolve Issue NO.5 against the appellant. In the final analysis, this appeal is bereft of merit and it deserves to be dismissed.
Accordingly this appeal be and is hereby dismissed. The judgment of Itam J, in Suit No. HJ/55/2001 delivered on 15/3/2006 is hereby affirmed. N20,000.00 cost to the respondent.
Appeal dismissed.
Other Citations: (2009)LCN/3305(CA)
