Chief Johnson Imah & Anor V. Chief Ajowele Okogbe & Anor (1993)
LawGlobal-Hub Lead Judgment Report
ADIO, J.S.C.
The appellants, for themselves and on behalf of members of Akuku Community, in the High Court of the defunct Bendel State, Auchi Judicial Division, sued the respondents, for themselves and on behalf of Ojirami Community claiming:
“(i) A declaration that the plain1iffs are entitled to the customary right of occupancy of all that piece or parcel of land shown and verged pink in survey plan No. LSF 2757 filed in this suit.
(ii) N250,000 being general damages for the defendants’ trespass on the said land.
(iii) Perpetual injunction restraining the defendants whether by themselves, their agents or servants or otherwise howsoever from committing further acts of trespass on the said land.”
Pleadings were duly filed and exchanged. With the leave of the Court, the Statement of Claim filed by the appellants and the Statement of Defence filed by the respondents were amended. The evidence led by the appellants was that two ancestors of members of Akuku Community, Ogboro and Uyorogun, led them from Benin to the present site of Akuku land many years ago. When they got to the site they went on top of the hill called Oyan-Kuo and settled there because there was war going on at the material time. Members of the community, though living on the hill, used to farm on the land at the foot of the hill which was not occupied by anybody. In the year, 1918, they left the top of the hill and had since then been living and farming on the land at the foot of the hill. Sometime, the Government built a dam in the area and the dam is called Ojirami dam. The place where the respondents subsequently settled was on one side of the dam and the appellants’ settlement was on the other side.
Members of the appellants’ community had farms and houses on the land at the foot of the hill where they settled. They built a school there and two shrines of the community were on the land which is now the land in dispute. It is verged pink on the survey plan tendered by the appellants that was admitted and marked Exhibit “A”.
In 1980, the dam was flooded and it swept away the appellants’ buildings and some other things they had on the land in dispute. At the request of the Bendel State Government, the appellants’ community gave two parcels of land, edged yellow on the survey plan (Exhibit “A”), to the Government to enable the Government build houses there to re-settle the members of the appellants’ community. While the building operation was going on, members of the respondents’ community started to claim that the land in dispute belonged to them.
They entered the land in dispute, destroyed certain things there, and packed away others such as cement blocks and sand. Further, they used to come to the appellants’ village, brandishing cutlasses, singing and saying that they were ready to fight the appellants. Some sheds were erected on the land in dispute by some female members of the respondents’ community.
In the view of the respondents, the survey plan, Exhibit “A” tendered by the appellants, was not correct. They, respondents, tendered a survey plan drawn by their own surveyor. The survey plan was Exhibit “H” in which the land in dispute was also verged pink. The respondents too alleged that they were living on the hills but subsequently they too came down and were living at Ojirami at the foot of the hill. According to the respondents, their community gave the Government the land on which the dam was built and they also gave permission to the appellants’ community to build a primary school on the land in dispute. The respondents had on the land in dispute a market, two juju shrines, farms and the foundation of a town hall. Okejarni was the boundary between the land of the appellants and the land of the respondents.
The learned trial Judge, after consideration of the evidence before him and the submissions of the learned counsel for the parties, held that the land in dispute was not in doubt, as to its identity, to both parties and that the question of calling boundary-men to establish the boundaries of the land in dispute, in relation to which the appellants were claiming customary right of occupancy, did not arise. He concluded that the land in dispute was at Akuku village and stated that he was satisfied that the evidence led by the appellants was more probable and he accepted it. In his view, the appellants were in possession of the land in dispute when the respondents trespassed on it. He, therefore, granted the appellants the declaration that they were entitled to the customary right of occupancy of the land in dispute edged pink in Exhibit “A” and awarded N50,000 damages to the appellants for trespass committed by the respondents. The appellants’ claim for injunction failed.
Dissatisfied with the judgment, the respondents appealed to the Court of Appeal. The Court of Appeal held that the award of damages in relation to the alleged trespass was wrong as the quantum of the damages given was not a correct and judicious exercise of the discretion of the learned trial Judge. The damages given were exemplary without any reason given for such nature of grant which was contrary to known principles. The court was, in any case, of the opinion that the finding of trespass itself was in error because possession of the land in dispute was then in the State Government, and not in the Akuku community.
The court held further that the sum of N3,000 damages would have been sufficient if the appellants’ claim for damages had been proved. In the case of the claim for declarations at the appellants were entitled to the customary right of occupancy of the land in dispute, the Court of Appeal held that the declaration could not be granted to cover the two pieces of land (edged yellow in Exhibit “A”) within the land in dispute edged pink.
The Court of Appeal also held that, in the circumstances in this case, the learned trial Judge was wrong in holding that the respondents proved the boundaries of the land in dispute to entitle them to a grant of declaration of customary right of occupancy in respect of it. The court, therefore, allowed the appeal, set aside the judgment of the learned trial Judge, and dismissed the appellants’ claim for declaration of customary right of occupancy and the claim for damages for trespass on the land in dispute.
The appellants, dissatisfied with the judgment of the Court of Appeal, have appealed to this court. The six issues for determination formulated in the appellants’ brief are, in my view, sufficient for the determination of this appeal.
The aforesaid issues, which were based on the grounds of appeal, were as follow:-
“(1) What is the land in dispute in this case
(2) Is there sufficient evidence on record on which the learned trial Judge could find that the plaintiffs were the owners and in possession of the land in dispute
(3) Assuming that the Court of Appeal was right in saying that because the portion edged yellow in Exhibit’ A’ was in the Bendel State Government’s possession (which is not conceded) does that deprive the plaintiffs of the right to succeed in their claim for damages for trespass to the land in dispute
(4). Is failure to call boundary men fatal to a party’s case where there is no genuine issue as to the plan of the land in dispute being correct and both parties produce in evidence plans of the land in dispute made by licensed surveyors
(5) In the award of substantial damages is a Judge bound to restate the evidence on the record which justify such award
(6) Is the Court of Appeal or any court for that matter entitled to take up points of fact and/or law not argued or raised by any of the parties and come to a decision of the case upon such point either alone or in conjunction with other points without having first heard the parties thereon”
When the appeal came up for hearing before us, the learned counsel for the parties made oral submissions to us in amplification of the arguments in the briefs. The first issue relating to the identity of the land in dispute and the second issue on the question of ownership and possession of the land in dispute were argued together in the appellant’s brief. The main complaint of the appellants in the brief and in the oral argument of their learned counsel, on the points, was that the Court of Appeal dealt with that aspect of the case as if the land in dispute consisted only of the two pieces of land edged yellow in the survey plan tendered by the appellants, Exhibit “A”, whereas it was the land edged pink in Exhibit “A” that was in dispute. The respondents’ position was that the land in dispute was the land edged pink in the survey plan tendered by the respondents, Exhibit “H”, but that the alleged .trespass by them, if any, was confined to the two pieces of land edged yellow in Exhibit “A”. The Court of Appeal, in its judgment, referred to the evidence that after the Ojirami darn disaster, the appellants gave the Government of Bendel State two parcels of land, edged yellow in Exhibit “A”, so that houses might be built on them for the re-settlement of the members of the appellants’ community. The court stated further, inter alia, as follows:-
“In the light of the evidence led in support of the respondents’ pleadings, can it really be maintained that these two pieces of land were still in the physical possession of Akuku Community I think not. The learned trial Judge did not consider this issue carefully and come to a clear finding of fact thereon before finding possession in the Akuku community. Had he done so he would have been hard pressed to explain how land granted to the Government, surveyed and built thereon can be said, at the time of the building, to be in the physical possession of the Akuku community……………………Since possession is therefore in the Bendel State Government the appellants cannot be found liable in law for trespass on the land at the suit of the respondents.”
The appellants who tendered the survey plan marked Exhibit “A”, stated clearly in paragraph 5 of their Amended Statement of Claim, what in their view was the land in dispute between them and the respondents; it was the portion edged pink within which were the two pieces of land given to the Bendel State Government which were verged yellow. The respondents too tendered a survey plan, marked Exhibit “H” in which what, in their view, was the land in dispute was edged pink. There was, therefore, no doubt that from the point of view of the appellants the land in dispute was the land, edged pink in Exhibit “A” and from the point of view of the respondents it was the land edged pink in Exhibit “H”. The question whether the appellants could claim damages for trespass committed within the two parcels of land edged yellow in Exhibit “A” will be considered later. What is important, at this stage, is that the learned trial Judge found, rightly in my view, that the alleged trespass was committed in places outside the two areas edged yellow but which were still within the area edged pink in Exhibit “A”. The contention of the appellants was that since they were in possession of land outside the portions verged yellow hut which was within the land in dispute they were entitled to damages for trespass committed on it. Only a person in possession of the land in dispute at the material time can sue for damages for trespass See Olagbemiro v. Ajagungbade III, (1990) 3 NWLR (Pt. 136) 37; and Adebanjo v. Brown (1990) 3 NWLR (Pt. 141) 661.
As there was ample evidence, before the learned trial Judge, that the appellants were in possession of certain places within the land in dispute, which were outside the two pieces of land edged yellow within it, at the time that the respondents committed the trespass, the Court of Appeal erred in dealing with this aspect of the matter as if the land in dispute consisted of only the areas edged yellow in Exhibit “A” and in dismissing the appellant’s claim for damages on that basis. The question whether there was sufficient evidence that could enable one to come to the conclusion that the appellants were the owners of the land in dispute will be considered when dealing with the question raised under the fourth issue.
The question raised under the third issue was whether if the Court of Appeal was right in holding that because the portions edged yellow in Exhibit “A” were in the Bendel Slate Government’s possession (which the appellants did not concede) that deprived the appellants of the right to succeed in their claim for damages for trespass to the land in dispute outside the portions verged yellow. The first part of the question raised under the issue has been dealt with while considering the question raised under the second issue.
The conclusion to which came was that as there was ample evidence before the learned trial Judge that tin: appellants were in possession of certain places within the land in dispute which were outside the two pieces of land edged yellow in Exhibit “A”, at the time that ‘he respondents committed the alleged trespass, the Court of Appeal erred in treating this aspect of the matter as if the land in dispute consisted of only the two pieces of land edged yellow in Exhibit” A”, and in dismissing the appellants’ claim for damages for trespass on that basis. The answer to the first part of the question raised under the third issue is in the negative. If the Court of Appeal was right in holding that possession of the two pieces of land edged yellow in Exhibit “A” was in the Bendel State Government that could not deprive the appellants of the right to succeed in their claim for damages for trespass in relation to a place within the land in dispute edged pink in Exhibit “A” which was outside the two pieces of land edged yellow within it.
It is necessary at this stage to deal with the situation in the case of the two pieces of land edged yellow within the land in dispute edged pink in exhibit “A”. I have already quoted above the portion of the judgment of the Court of Appeal which dealt with the point. After making reference to the fact that the appellants gave the two pieces of land edged yellow in Exhibit “A” to the then Government of Bendel State to enable it to build houses to re-settle the appellants, the Court of Appeal came to the conclusion that possession of the two pieces of land was vested in the Bendel State Government and that, for that reason, the appellants could not recover damages for trespass allegedly committed by the respondents on the aforesaid pieces of land. The learned counsel for the appellants argued that the Court of Appeal erred in holding that the possession of the aforesaid pieces of land was in the Government of Bendel State and not in the appellants because what, in fact, happened was that the Government was shown or the appellants made the two parcels of land edged yellow in Exhibit “A” available to the Government. It was the submission of the learned counsel for the appellants that possession of the said parcels of land was still in the appellants. The stand of the respondents was that by giving [he parcels of land to the Government, the appellants had parted with the possession thereof. The appellants after stating the circumstances warranting the request of the Government to the appellants for land, in paragraphs 20 and 21 of the Amended Statement of Claim, averred in paragraph 22 thereof as follows:-
“22. For the purpose of the building of the said low cost houses, the plaintiffs’ community in 1981 gave to the Bendel State Government two parcels of land in Akuku…………. and verged yellow in the survey plan No. LSF 2757 filed in this suit. The said parcels of land are marked’ A’ and ‘B’ respectively in the said plan and form part of the land in dispute.”
The law is that parties are bound by their pleadings. See National investment & Property Co. Ltd v. Thompson Organization Ltd (1969) 1 All NLR 138 at p. 142; and Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172. The averment in the Amended Statement of Claim was, inler olia, that the appellants’ community gave the aforesaid two parcels of land edged yellow in Exhibit “A” to the then Bendel State Government. I can’t see how the Court of Appeal could properly be expected to construe what happened to be that the appellants’ community showed the parcels of land to the Government or that the appellants’ community made the parcels of land available to the Government.
The word “gave” was plain enough. Plain words must be given their plain meanings. See Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130. A court has no power to import into the meaning of a word something not in it. See Bello v. Attorney-General, Oyo State (1986) 5 NWLR (Pt. 45) 828. The word “give” according to the Concise Oxford Dictionary, p. 578 means: bestow gratuitously, hand over as present, confer ownership of with or without actual delivery, and could not properly be interpreted to mean” made available” or “show” as was contended by the learned counsel for the appellants.
The two parcels of land, aforesaid, were unconditional gifts made by the appellants’ community to the Bendel State Government. Unless a donor reserves the right to revoke, once a gift has been validly executed it cannot be revoked in the absence of fraud, mistake, misrepresentation or other invalidating cause. See Ogilvie v. Allen (1899) 15 T.L.R. 294. The Court of Appeal was, therefore, right in that the ownership of the aforesaid two parcels of land was vested in the Bendel State Government and since there was evidence that the Government had taken possession of the parcels of land and was building houses on them, their possession was in the said Government. For that reason, the appellants could not sue the respondents for damages for trespass allegedly committed by the respondents on the aforesaid parcels of land as the appellants were not in possession of them at the relevant time. The Court of Appeal was, therefore, not wrong in coming to that conclusion.
The question raised under the fourth issue is whether in order to succeed in their claim for a declaration that they were entitled to the customary right of occupancy of the land in dispute, the appellants must call boundary men as witnesses to establish the boundaries of the land in dispute. The Court of Appeal, after pointing out that the conclusion of the learned trial Judge, on this aspect of the matter, that it was not necessary for the appellants to call boundarymen as witnesses was erroneous, stated, inter alia, as follows:
“Should the area verged pink (averred to be in dispute) in both plans have the same configuration and/or cover the same area of land, then not only will the identity of the land in dispute not be in doubt, but the need to call boundary witnesses can be safely dispensed with. In the instant case, even though the parties have indicated the area edged pink as in dispute in both plans (Exhibits A and H) both areas:
(a) do not cover the same area of land
(b) do not have the sarne shape
(c) some of the boundaries are very different…………..
……….. In these circumstances, proof of the boundaries of the land is certainly indispensable, and where boundaries are indicated with other communities the evidence .of such communities are essential in proof of such boundaries……………… It is therefore difficult to see how the respondents can be held to have proved the boundaries of the area verged pink on Exhibit’ A’ as to entitled them to a grant of declaration thereof.”
With further reference to the claim for a declaration that the appellants were entitled to the customary right of occupancy of the land in dispute, the Court of Appeal set out certain questions, relating to the pieces of land verged yellow in Exhibit “A”, which the learned trial Judge should have considered and made findings of fact upon and on which he did not make any findings before he granted the aforesaid declaration. The court then stated further as follows:- ‘
“Without specific findings on these matters raised, it, must be difficult for a trial court, at least, to grant a declaration of title which would cover such pieces of land situate as they are within the totality of the land in respect of which the declaration is sought……….my inclination at the moment on the basis of the evidence on record is to hold that this is not a proper case for grant of entitlement to a customary right of occupancy to be made to cover the areas edged yellow situate within the land in dispute. Issue 3 therefore succeeds.”
The appellants claimed, inter alia, a declaration that they were entitled to the customary right of occupancy of the land in dispute edged pink in the plan tendered by them, Exhibit “A”. The appellants contended that even in the case of this aspect of the matter, a declaration should be granted them if they were able to establish their claim only to an ascertainable portion of the land in dispute though the declaration would be confined to the portion in relation to which they established their claim. The onus is on the plaintiff who claims a declaration of title to a land in dispute to satisfy the court that he is entitled on the evidence brought by him to the declaration claimed. He must rely on the strength of his own case and not on the weakness of the defendant’s case. If the onus is not discharged, the weakness of the defendant’s case will not help the plaintiff, and the proper judgment is for the defendant. See Kodlinye v. Odu (1935) 2 WACA 336. The boundaries of the land in dispute must be proved with certainty such that a surveyor, taking the record, could produce a survey plan, showing with accuracy, the land in dispute. See Udeze v. Chidebe, (1990) 1 NWLR (Pt. 125) 141. Ascertainable boundaries of the land in dispute must be established. See Udofia v. Afia (1940) 6 WACA 216. A plaintiffs first duty is to prove the area, with certainty, over which he claims. See Baruwa v. Ogunsola (1938) 4 WACA 159. Therefore, the claim of a plaintiff who is claiming a declaration of title will be dismissed if he fails to prove the boundaries or the identity of the land in dispute. See Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192. A closer look at the survey plan, Exhibit “A”, tendered by the appellants, showed that all the parcels of land having boundaries with the land in dispute verged pink therein, except one, were stated to be appellants’ parcels of land. If that was so, the need to call boundary witnesses would be only in relation to that one parcel of land which did not belong to the appellants’ community. The aforesaid observation or statement of the Court of Appeal would, therefore, be right only in so far as that parcel of land, not belonging to the appellants, which had a boundary with the land in dispute was concerned. As there was no evidence before the learned trial Judge in relation to that aspect of the matter, the Court of Appeal was perfectly in order in holding that the boundary in question was not established. There was dispute about the boundary of the land in dispute. The respondents averred in their Amended Statement of Defence that the survey plan produced by the appellants, Exhibit” A”, was not correct. The respondents produced their own survey plan. Exhibit “H”, Where, as in the present case, there is a dispute as to the boundary or identity of land or both, such must be proved with certainty. See Udeze’s case, supra.
It is necessary, before coming to a conclusion on the appellants’ claim for a declaration that they were entitled to customary right of occupancy of the land in dispute, to point out that it was an error on the part of the Court of Appeal to hold that the claim of the appellants should be dismissed by reason only that the two pieces of land verged yellow in Exhibit “A” had been given by the appellants to the defunct Bendel State Government or because the aforesaid parcels of land were within the land in dispute verged pink in Exhibit “A”. In the first place, the land in dispute did not consist of only the aforesaid two parcels of land. Therefore, failure of the appellants to establish their claim to them alone should not result in the dismissal of their claim to other parts of the land in dispute outside the two parcels of land. Secondly, if a plaintiff who is claiming a declaration of title to land claimed a larger parcel of land but succeeds in proving the boundaries and title to a smaller parcel of land, he is entitled to a declaration of title in respect of the smaller part of the land originally in dispute, the title and boundaries of which he has proved with certainty. See Sogunle v. Akerele (1967) NMLR 58; and Araba v. Asanlu, (1980) 6 -7 S.C. 74 at pp. 85 -87. Indeed, that was what happened in Udeze’s case, supra. However, as the appellants in this case had failed to establish one of the boundaries of the land in dispute the learned trial Judge was wrong in holding that the need to call boundary witnesses did not arise as the boundaries of the land in dispute had been established, the Court of Appeal was, therefore, justified in setting aside the judgment of the learned trial Judge granting the appellants the declaration that they were entitled to the customary right of occupancy of the land in dispute verged pink in Exhibit “A” and was also justified in dismissing the appellants’ claim.
The conclusion that the appellants failed to establish their claim for a declaration that they were entitled to customary right of occupancy of the land in dispute is not inconsistent with their success in their claim for damages for the trespass committed by the respondents on the same land. This is because if a plaintiff’s claim for a declaration of title to a piece of land fails, it does not necessarily mean that the claim of the same plaintiff for damages for trespass on the same land must fail. See Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578; and Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296. Further, a person’ in possession of a parcel of land can bring an action for damages for trespass committed on the parcel of land against any person, other than the true owner or a person with a better title. The person in possession may even be a trespasser and a defendant who may be able to successfully resist an action for damages for trespass brought by such plaintiff is the true owner or is a person with better title or a person who was on the land in dispute with the authority of the true owner. See Amakor v. Obiefuna (1974) 3 S.C 67; and Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137.
The fifth issue relates to the award of N50,000.00 damages made by the learned trial Judge which the Court of Appeal reduced to N3,000.00. The Court of Appeal, in any case, held that the alleged trespass was not established because the appellants did not prove, that they were in possession of the land in dispute which the Court of Appeal erroneously thought consisted only of the two parcels of land verged yellow in the plan, Exhibit “A”. The conclusion of this court, on that aspect of the matter, was that trespass was committed on the land in dispute outside the two parcels of land marked yellow in Exhibit “A”, for example, the sheds constructed by the female members of the respondents’ community and the appellants were entitled to damages for the trespass. The question is how much should be awarded as damage The learned trial Judge awarded N50,000.00. The Court of Appeal held that the amount of damages was too high. It was set aside and substituted with N3,0000.00. In dealing with this question, the Court of Appeal stated, inter alia as follows:
“In the instant case, the learned trial Judge did not give any reasons for awarding the rather large sum of N50,000. Such an amount can only be justified when granted for serious and wanton acts of trespass. If there is evidence on record to support such acts it would not be against the award that the learned trial Judge did not make any finding on specific acts of trespass. To award N50,000 for such trespass without stating why such an award is given, must invite the description/conclusion that the award is arbitrary. It is in my view obviously too high and it is therefore an award of damages which this court can interfere with. Accordingly, should trespass in the final conclusion be deemed to have been established, this award is hereby reduced to N3,000.00.”
The submission made for the appellants, on this point, was that it was the evidence on record that was material and not a restatement of the evidence by the learned trial Judge that could justify an award. The evidence which was referred to in the appellants’ brief was that the respondents used to go to the land in dispute with dangerous weapons and used to challenge the appellants to come and fight. That was only what the appellants could refer to as evidence in support of the award of N50,000.00.The respondents’ contention was that the Court of Appeal was right to interfere with the award. A court does not interfere with the award of damages unless the trial Judge or the lower court acted upon some wrong principle of law or the amount awarded was so extravagant or so small as to make it an entirely erroneous estimate of the damages. See Onaga & Ors v. Micho & Co. (1961) 2SCNLR 101; (1961) 1 All NLR 324; and ljebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166) 136. The evidence before the learned trial Judge which was set out in his judgment, was that it was when the Bendel State Government began to erect houses on the two parcels 9f land verged yellow in Exhibit “A” that the respondents started to lay claim to the land in dispute. The respondents went to the land, packed away the blocks and the sand being used for the construction of the houses, and destroyed things on the land. He concluded that the respondents trespassed on the land in dispute when it was in possession of the appellants and awarded N50,000.00 to the appellants as damages. The Court of Appeal interfered with the award because. according to it, no reason was given by the’ learned trial Judge for the award of the sum of N50,000.00 as general damages, which the Court of Appeal felt was too high in the circumstances. I think that there is substance in the reason given by the Court of Appeal for its interference with the award. I have read the judgment of the learned trial Judge and I think that the criticism of it by the Court of Appeal that no reasons were given for the award of the rather large sum of N50,000.00 and that the award, in the circumstance, was too high, was justified. The learned trial Judge merely summarised the evidence and did not make any specific finding or give any reasons for the award. A summary of evidence or restating of it does not constitute an evaluation of the evidence. See Uwegba v. Attorney-General, Bendel State (1986) 1 NWLR (Pt. 16) 303. Further, it was only within the two parcels of land, verged yellow in Exhibit “A”, that building operation was going on. So, all the cement blocks and sand being used for building construction allegedly packed away by the respondents could not be said to belong to the appellants as it was the Government of Bendel State that was carrying on the building operation. The evidence of trespass that was within E the land in dispute but outside the two parcels of land edged yellow in Exhibit “A” was the isolated instance of the erection of sheds in one portion of the land in dispute by the female members of the respondent’s community. This is ‘a proper case warranting the interference of the Court of Appeal with the award of damages. The interference with the award by the Court of Appeal was not even far reaching or adequate enough. A trespass which is only of a technical nature can, at best, attract only nominal or minimal damages, See Umunna & Ors v. Okwuraiwe, (1978) 6 -7 S.C. 1 at 12. If, as rightly stated by the Court of Appeal, what happened was a trespass then the sum of N500.00 is reasonably sufficient as general damages and that is the amount which this court will award to the appellants as damages for the trespass committed by the respondents.
The question raised under the sixth issue was whether the Court of Appeal could suo motu raise and consider issues not raised by the parties and decide the case on the basis of them without hearing the parties thereon. The appellants referred to the alleged issues, and it was argued that the type of thing which the Court of Appeal did, without doubt, used to lead to a miscarriage of justice. The contention of the respondents was that as the learned trial Judge failed to appraise and evaluate the evidence before him on certain relevant issues and to make findings thereon, the Court of Appeal was justified in examining the evidence on record, in the interest of justice, to ensure that the inferences and conclusions that could reasonably be drawn from the evidence justified the determination of those issues by the learned trial Judge. No doubt, the Court of Appeal raised and gave consideration to certain issues in the determination of the appeal before it. The fundamental question is whether the parties were given the opportunity of being heard on the issues before they were determined and, if not, whether the error resulted in a miscarriage of justice. If a trial court fails to consider and evaluate the evidence adduced by both parties on certain relevant issues, it is the duty of the appellate court, if it does not involve credibility of witnesses, to consider and evaluate such evidence and to make proper findings. See Ogunleye v. Oni (1990) 2 NWLR (pt. 135) 745. However, it is wrong for a court to raise and decide an issue because it is material for the determination of the case or appeal before it, which has not been raised by the parties to the case themselves, without giving the parties an opportunity of being heard on it. See Ejowhomu v. Edok-Eter Mandilas Ltd (1986) 5 NWLR (Pt. 39) 1. It is not, however, correct to state, as contended by the appellants, that failure of the court to give such an opportunity to the parties always occasions a substantial miscarriage of justice. Each case depends on its own merit. Therefore, it is not sufficient for the purpose of reversing a judgment merely to show that an error of law was committed by the trial or appellate court; the appellant must further demonstrate or show ‘that the error of law in the case in question occasioned a miscarriage of justice. In other words, the error must have substantially affected the result of the decision. See Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282. In this case, the appellants claimed three reliefs in the High Court. The court granted two of the reliefs, namely, declaration of title and damages for trespass. The third relief for injunction was dismissed and there was no appeal to the Court of Appeal in relation to that. The appeal against the judgment of the Court of Appeal setting aside the award of damages for trespass has partially succeeded. The complaint in the present circumstances, therefore, relates to the declaration of customary right of occupancy and it has not been shown that the alleged error on the part of the Court of Appeal occasioned a substantial miscarriage of justice. What crucially affected the decision of the Court of Appeal in relation to the appellants’ claim that they were entitled to customary right of occupancy was their failure to establish the boundary of the land in dispute. It cannot, therefore, raasonably be said that the error in question in this case occasioned a substantial miscarriage of justice.
On the whole, the appeal partially succeeds. In so far as it concerns the dismissal, by the Court of Appeal, of the appellants’ claim for a declaration of customary right of occupancy is concerned, the appeal is dismissed. The order of the Court of Appeal dismissing the appellants’ claim for damages for trespass is hereby set aside. In its place is substituted an order awarding N500.00 to the appellants as damages for the trespass committed by the respondents.
The appellants are awarded N1,000.00 costs.
SC.206/1990
