Chief Obono Egom & Ors. V. Mr. Eno Omini Eno & Anor. (2007)

LawGlobal-Hub Lead Judgment Report

NGWUTA J.C.A.

This is an appeal against the judgment of the High Court of justice, Cross River State Ugep Judicial Division, Holden at Ugep. In the amended statement of claim the appellants, as plaintiffs, claimed the following reliefs against the respondents, as defendants:

“1. A declaration that the plaintiffs are the owners or Landlords of a parcel of land known as “Nyana Land” which is situated along Calabar – Ikom Highway directly opposite Otalosi No 2 compound, Ijiman. Ugep Urban, Yakurr Local Government Area.

2. An order of perpetual injunction restraining the defendants, their agents, underlying servants or privies from further trespassing on the said “Nyana Land.”
3. N200, 000.00 as general damages for trespass.”

In the statement of defence, the respondents as defendants, not only denied the appellants claim but counterclaimed for themselves and on behalf of Letankom Patri lineal clan against the appellants jointly and severally as follows:

“1 A declaration of a right of occupancy to the Nyana piece or parcel of land situate and bordering the Ikom Calabar High way bounded in the North by Ugom land in Chief Iwara Eliot Akpan’s possession, South by Lebulibulikom land in Chief Obono Ofem’s possession, West by Kokomkolo – Ijom land and the East by the said Ikom – Calabar High Way.

2. Perpetual injunction restraining the defendants either by themselves, their assigns or agent from entering or further entering the said Nyana land.
3. N500,000.00 general damages for trespass.”

In addition, the 1st respondent counter-claimed separately for himself against the appellants:

“Jointly and severally the sum of N159, 610.00 being the cost or value of materials at site and building under construction destroyed by the plaintiffs.”

The said sum of N159, 610.00 is made up of 21 claims for items purchased and payments for labour.

At the end of the trial the learned trial Judge dismissed the appellants’ claims, entered judgment for the respondents on the counter-claim and awarded N20, 000.00 as general damages in favour of the respondents. The lower court also awarded the sum of N159, 610.00 claimed by the 1st respondent as special damages.

Aggrieved, the appellants, in their amended notice of appeal, pursuant to an order of the court, appealed on 14 grounds.

The appellants were granted leave to depart from the rules of the court regarding compilation of records for appeal and a further order that the appeal be determined on the bundle of documents compiled by them. The bundle of documents deemed to be the records for this appeal is most unsatisfactory. The table of contents indicates that the bundle runs from page 1 to page 225. The notice of appeal is shown in the table of contents to be at pages 217 – 225. However the last of the judgment is page 57 and the amended notice of appeal attached after the last page of the judgment is not numbered. The first page of the written address of the plaintiffs is not numbered.

The numbering started at the second page and ended at page 18, contrary to the contents placing the address at page, 45 to 65 of the bundle deemed to be the records. The numbering where it is done at all is at random and done without sequence.

The grounds of appeal consist mostly of passages reproduced from the judgment. For instance ground 9 alleged to be error in law consists of a passage of 13 lines from the judgment and the particular is also a passage of 13 lines.

Learned counsel ought to have formulated a simple precise and cogent ground of appeal from the passage in the judgment instead of quoting a whole passage in the guise of a ground of appeal. See Anadi v. Okoji (1977) 7 SC 57 at 64; Lamai v. Orbih (1980) 5-7 SC 28 at 50, Abegunde & Ors v. Adelu & Ors (1971) 1 NMLR 10 at 13 grounds 3, 7, 9 and 13 being merely passages quoted from the judgment are incompetent and are hereby struck out.

The appellants, in their amended brief of argument, framed nine issues for determination:

“1. Was the learned trial Judge correct when he refused to admit in evidence letter written by PW1 to the 1st respondent, the Police, Town Planning Authority and some other relevant authorities complaining that the 1st respondent had encroached on the appellants’ land?

2. Was the learned trial Judge correct when he held that the appellants did not plead the location and description of the land in dispute?
3. Was the learned trial Judge correct when he held that the admission of DW3 during examination-in-chief and cross-examination that the land in dispute belonged to the appellants did not amount to an admission adverse to the respondents, because of the demean our of the witness?
4. Was the learned trial Judge Correct when he held that the evidence given by DW4 amounted to traditional historical evidence?
5. Whether the learned trial Judge was right not to have found in favour of the appellants in view of the state of pleadings and the evidence led by the appellants?
6. Whether the learned trial Judge was right not to have given consideration to all the issues canvassed by the appellants in their pleading evidence led and amplified by their counsel during address?
7. Whether the learned trial Judge was in error when he held that the respondents have established title to the land in dispute?
8. Whether the learned trial Judge was correct when he held that the respondents were right to sue in a representative capacity in their counter-claim for themselves and on behalf of the Letankom people?
9. Whether the learned trial Judge was correct to have awarded special damages of N159, 610.00 for the 1st respondent regard being to the facts and circumstances of this case?

In their own amended brief of argument the respondents formulated the following six issues for determination:

“4. Issues for Determination:

4.01 Issue 1 (Formulated from Ground 1)

Whether the trial Judge rejected the photocopy of a letter sought to be tendered “because it was not tendered through the person whom the letter was addressed to” or because the photocopy which admittedly is secondary evidence was rightly inadmissible in the absence of the necessary legal environment foundation.

4.02 Issue 2 (formulated from Ground 10)

Whether the trial court was obliged to give a “compassionate” rather than a dispassionate consideration to the issues arising at the trial and whether the court did give due consideration to the issues and evidence before it.

4.03 Issue 3 (formulated from Ground 3)

Whether the assertion of DW3 at the course of his evidence at page 41 of the records that “I want the money so that the plaintiffs should take their land if they own it;’ or any like assertion in the face of the case of the defence, constitute admission of the plaintiffs’ claim of title.

4.04 Issue (formulated from Ground 12)

Upon the endorsement on the statement of defence as replicated at page 32 of the records or on the totality of the pleading and evidence whether the judgment of the court below for the defence was rightly made in a representative capacity.

4.05 Issue 5 (formulated from Ground 13 and 14)

On the state of the pleadings and the evidence on record including the plaintiff’s witnesses admission of the defendants’ possession, whether the award of N20, 000.00 general damages and N159, 000.00 special damages was not justified.

4.06 Issue 6 formulated from grounds 2, 4, 5, 6, 7, 8, 9 & 11 considering the onus of establishing a claim of title to land as borne by either party at different stages of the proceeding, whether upon the recorded evidence the defendants never established better title as to warrant judgment being entered in their favour.”

Some of the six issues in the respondents’ brief do not bear any relationship to any ground of appeal. For instance the distinction between a compassionate and a ‘dispassionate’ consideration “to the issues …” does not flow from ground 2 from which it was supposedly drawn. Ground 2 complained that the court erred in dismissing the appellants’ claim to declaration of title to the land in dispute. It does raise a compassionate/dispassionate consideration of any issue. Respondent’s issues 1 & 2 do not flow from the grounds of appeal and issues 3, 5 & 7 are framed from incompetent grounds of appeal and are hereby struck out.

From the appellants’ nine issues and the respondents’ one issue left the following eight issues are relevant for the determination of the appeal.

1. Was the learned trial judge right when he refused to admit in evidence a photocopy of the appellants’ protest letter?
2. Did the appellants not plead the location and description of the land in dispute as held by the trial Judge?
3. Was the evidence of the DW 3 that he wanted his money so that the appellants should take the land if they own it not on admission that the land in dispute belongs to the appellants?
4. Is the evidence of what the DW 4’s father told him (DW 4) about the land in dispute traditional evidence?
5. Is the counter – claim in a representative capacity competent?
6. Did the respondents/counter claimants prove their counter-claim and if so
7. Was the learned trial Judge right in awarding N 159, 610 special damages to the 1st respondent and N20, 000.00 general damages to the respondents?
8. Did the appellants prove their title to the land in dispute?

In issue one in his brief learned counsel for the appellants said that the letter sought to be tendered was in possession of a person who was not a party to the proceeding and in the circumstances the appellants did not have to serve that person notice to produce the original letter. He argued that the witness wrote the letter in question and a photocopy in his possession should have been admitted in evidence. He argued that the photocopy of the letter was not within the ambit of S. 97(1) (A) of the Evidence Act and urged the court to resolve the issue in favour of the appellants.

In issue 2 learned counsels for the appellants impugned the finding of the learned trial Judge that the appellant did not plead the location and description of the land in dispute. He referred to paragraphs 3 and 4 of the amended statement of claim and said the evidence of PW 1 which the court rejected as not in conformity with pleading was in fact consistent with the pleading in the said paragraphs.

In issue 3 learned counsels referred to page 200 lines 12-15 of the records wherein the DW 3 was quoted as saying “I want the money so that the plaintiffs should take back their land if they own it.” He referred to the evidence in chief where the DW 3 said “I want the people to pay me the money back and I will leave their land” and argued it was wrong for the trial court not to give effect to the admission because of perceived demean our of the witness. He relied on Cappa & D’Alberto Ltd. v. Akintito (2003) 77 WRN 1; (2003) 9 NWLR (Pt. 824) 49 and argued that admission is evidence against the maker as to the truth of the facts asserted therein. On the demeanour of the witness, counsel argued that emotion and sentiment have no place in judicial deliberations. He relied on Bhojons Plc v. Daniel – Kalio (2006) 5 NWLR (Pt. 973) 330 at 339, Olawuyi v. Adeyemi (1990) 4 NWLR (Pt. 147) 779 – 780 paragraph G and Macaluy v. Omiyale (1997) 2 NWLR (Pt. 497) 94 at 98. He urged the court to resolve the issue in favour of the appellants.

Issue 4 is a challenge to the determination of the trial court that the evidence of the DW 4 is traditional historical evidence. The main thrust of the learned counsel’s argument is that the appellants did not plead traditional evidence and further that the evidence relied on as traditional evidence relates to facts which occurred between 1959 – 1967. The said events, counsel argued are not beyond human memory and so doing not qualify as traditional evidence. Learned counsel relied on decided cases in support of his argument that the evidence of DW 4 was hearsay and ought to be expunged as having been wrongfully received. He urged the court to resolve the issue in favour of the appellants.

Issue 5 is on the capacity in which the respondents prosecuted their counter-claim. Learned counsel for the appellants said that the capacity claimed by the respondents in their counter-claim was contested by the appellants who questioned the standing of the respondents to counter-claim in a representative capacity. Learned counsel argued there was no evidence of representation and that apart from the averment in paragraph 18 of the statement of defence and counter-claim, the respondents did not plead that they counter-claimed for themselves and on behalf of the Letankon Patrilineal clan. He argued that the respondent never led evidence that Letankom is a Patrilineal clan, drawing a distinction between a compound and a clan for which he relied on the New LEXICON Webster’s Dictionary of English Language at page 181 for the definition of clan. Counsel argued that the respondents did not give evidence of their alleged authority to counter-claim in a representative capacity. He relied on, inter alia, Otapo v. Sumonu (1987) 2 NWLR (Pt. 58) 587, Ndulue v. Ibezim (2002) FWLR (Pt. 1955) 1945 at 1955; (2002) 12 NWLR (Pt. 780) 139. He urged the court to decide in favour of the appellants.

On whether or not the respondents proved a better title to the land in dispute (issue 6) learned counsel referred to the evidence of DW1 that Otalosi people gave the land to Letankon and said the evidence is at variance with paragraph 9 of the counter-claim. He argued that none of the children of Okoi Omini Edet to whom the respondent claimed to have donated the land was called as a witness. Counsel impugned the respondents’ claim that Okoi Omini Edet later donated the land to Abam Usani. In the light of the above, he urged the court to hold that the respondents did not prove their claimed title to the land in dispute.

Issue 7 challenges the award of N159, 610.00 special damages to the 1st respondents and N20, 000.00 general damages to the respondents. Counsel referred to paragraph 20 of the counter-claim for particulars of the claimed special damages and argued that no evidence was led to prove the particulars pleaded. He referred to the evidence of the 1st respondent who said he would leave the land for the appellants if they pay him back his money and argued that the appellants are not liable for destroying a portion of the house built on their land. On the award of general damages, learned counsel argued that the respondents did not prove their counter-claim and should not have general damages. He urged the court to resolve the issue in favour of the appellants.

Issue 8 raises the question whether or not the appellants proved their title to the disputed land in view of the pleading and evidence led. Learned counsel argued that the trial court erred in dismissing the appellants’ claim in its entirety. He referred to the evidence in chief and cross-examination of the DW 3 and argued that the respondents admitted that the land in dispute belongs to the appellants. Counsel argued that the learned trial Judge erred when he held that the allotment of the Otalosi portion of Nyana Land to Ubangha Ibiang Ebri (2nd appellant) was not pleaded when it was in fact pleaded in paragraph 2 of the reply to the statement of defence and defence to the counter-claim. He argued that the failure of the learned trial Judge to avert his mind to the said paragraph occasioned a miscarriage of justice. Counsel referred to the evidence before the court and said that all the witnesses called by the appellants gave evidence that Otalosi people gave their own portion of Nyana land to Ubanga Ibiang. He urged the court to hold that the appellants proved their case and are entitled to judgment.

He urged the court to allow the appeal, set aside the judgment of the court below, enter judgment for the appellants and dismiss the respondents’ counter-claim. Of the 6 issues framed by respondents only issue 4, flowed from a valid ground of appeal.

In his issue 4 counsels said all the respondents needed to counter-claim in a representative capacity “is sufficient interest in the matter in contention.” On sufficiency of interest he referred to Ilori v. Benson (2000) FWLR (Pt. 26) 1846 at 1857; (2000) 9 NWLR (Pt. 673) 570 and said the test is two-fold:

(a) Whether the plaintiff could have been joined as a party to the suit if some other party had commenced the action.

(b) Whether plaintiff will suffer some injury or hardship from the litigation if some other person instituted it.

He relied on Gegele v Layinka (1993) 3 SCNJ 39 at 45 and; (1993) 3 NWLR (Pt. 283) 518 submined that the respondents had the right and in fact duty to protect their family or community property. He argued that failure to obtain leave to sue in representative capacity is not fatal to the action. He referred to Haastrap Lines (WA.) Lid. v. Wiche (2006) All FWLR (Pt. 304)483: (2006) 11 NWLR (Pt. 992) 652, Ofia v. Ejem (2006) All FWLR (Pt. 324) 1816 at 1828: (2006) 11 NWLR (Pt. 993) 652, Okpaloka v. Umeh (1976) 9-10 SC 269 at 292 and Ejoh v. Wilcox (2003) FWLR (pt. 185) 453 at 467; (2003) 13 NWLR (Pt.838) 488 and argued that the court could enter judgment in a representative capacity if the pleading and evidence demonstrate conclusively a representative capacity. He referred to the argument that the appellants challenged the capacity in which the respondents counter-claimed and argued that such a challenge ought to be taken before trial and not in the address of counsel. He relied on Tokini v. Fagile (1999) 10NWLR (Pt. 624) 588. He urged the court to resolve the issue in favour of the respondents.

The argument of learned counsel for the appellant gave the impression that what was sought to be received in evidence was “a letter dated 25th January, 1999 …” and written to the 1st respondent. In contrast, what the appellants offered in evidence was a photocopy of a letter allegedly written by the 1st appellant to third parties, a copy of which was endorsed to the 1st respondent. Clearly, what was offered in evidence was a secondary evidence of the letter dated 25th January 1999. From the evidence before the lower court no foundation was led for the admission of the secondary evidence of the letter in question. See S. 97 of the Evidence Act. I have carefully considered the averment in paragraph 19 of the amended statement of claim. The facts of the letter having been written and dispatched were stated, but the appellants did not specifically plead the letter or indicate that they would rely on it at the trial. On the contrary, what was pleaded was the certificate of posting of the registered postal package thus

“At the trial the plaintiffs shall rely on certificate of posting of a registered postal package of the said letter to the Director-General, Ministry of Lands and Surveys Calabar. The 1st defendant was given the said letter by a proxy of the 1st plaintiff.”

See pages 22 and 23 of the records. Appellants did not plead the letter and their evidence is limited to facts showing the letter was written, that it was registered to the Director-General and that the letter was sent to the 1st respondent by proxy. In my humble view, the letter was not pleaded and even if it was pleaded no foundation was laid for tendering its secondary evidence. In any case the contents of the alleged protest letter could not have affected the judgment of the court in the circumstances of the case. Issue one is resolved against the appellants.

I think issue 2 was misconceived. The issue of whether or not the appellants pleaded the location and description of the disputed land did not arise from the judgment. Learned counsel in his eruditions seems to have mixed up pleading and proof of what was pleaded. The learned trial Judge held, inter alia that

“Based on this therefore if the description of the land in dispute as pleaded in paragraph 4 of the amended statement of claim is juxtaposed with PW1’s description, it will be clear that the plaintiffs’ have abandoned their pleading”

The lower court was concerned not with pleading but with proof of what was pleaded. The issue is resolved against the appellants.

Issue 3 centres on a portion of the evidence of DW 3 (the 1st respondent) in examination in chief and cross-examination. In examination in chief the DW 3 put his loss at N159, 610 and demanded “I want the people to pay me the money back and I will leave their land” In cross-examination he said “I want the money so that plaintiff should take back their land if they own it.” See page 41 lines 8, 11-14 of the records. The trial court had the advantage, denied the appellate court, of hearing and watching the witness testify and ordinarily this court should not disturb its finding of fact based on the testimony and demeanour of the witness – 1st respondent. However, the demeamour observed by the trial court is in conflict with the evidence of the witness. My Lords, the express testimony of the 1st respondent should not yield place to the demeanour of the witness as perceived by the learned trial Judge. The 1st respondent wanted to recover his money as a condition for leaving “their land.” There is no way his demean our can water down the effect of the PW 3’s testimony regarding the recovery of his money as a condition for the release of “their land.” The learned trial Judge found

“From any observation of the DW 3’s demeanour, he cut the picture of one who, as shown from the evidence, having had his dreams of owing a house before now dashed because what he stated as a house up to window level was demolished by the plaintiffs, now does not want anything other than the value of that structure. From that expression of DW 3, he did not in my opinion, surrender the ownership of the land in dispute to the plaintiffs but simply threw it open to who ever is able to claim it by evidence.”

See page 51 of the records. The above finding, with its inbuilt contradictions, and assumptions is completely outside the evidence before the court. A court of law must give effect to credible and unchallenged testimony of a witness. It should not inflict its own interpretation of the evidence based on real or perceived demeanour of the witness, on the testimony before it. The demeanour of the witness, real or imagined by the trial court should not override the express and unambiguous testimony of that witness. The courts have no business engaging in interpretation, the effect of which will add to or detract from, the evidence before it to the benefit or detriment of any of the contending parties. In the above finding, the court abandoned its role as an impartial arbitrator and descended into the murky field of conflict. The rider “if they own the land” appears in the con to be an after thought and should not derogate from his expressed willingness to release “their land” on being paid his money. The rider may be an expression of some doubts by the respondents as to the ownership of the land in dispute and of if this be so the respondents took a bad risk in litigating over a piece of land the ownership of which they are not certain. The finding is perverse and this court has a duty to intervene in the interest of justice. See Ugwu & Ors v. Ogbuzuru & Ors (1974) 10 SC 194. The finding, based on the evidence vis-a-vis the court’s perceived demeanour of the witness, is a mistaken conclusion drawn from a set of indisputable facts and the court can intervene in the pursuit of justice. See Y A. Lawal v. Chief Yakubu Dawodu & Anor (1972) 89 SC 83.

Issue 3 is resolved in favour of the appellants.

Issue 4 is whether or not the evidence of DW 4 is traditional evidence in relation to title to the disputed land. The learned trial Judge found that the evidence of DW 4 “borders on traditional evidence which can be received as an exception to the hearsay rule. I have examined the 20 paragraph statement of defence and counter-claim and I agree with learned counsel for the appellants that the respondents did not plead traditional historical evidence. Even if it is traditional evidence, the evidence of DW 4 goes to no issue in the case and ought to be expunged as incompetent and as having been wrongfully admitted. The finding that the evidence of DW 4 is traditional evidence is perverse as the respondents did not plead traditional evidence and this Court has a duty to intervene in the interest of justice – See Ugwu & Ors v. Ogbuzuru & Ors (supra). I resolve the issue in favour of the appellants.

Issues 5 are on the propriety of the respondents counter-claiming in a representative capacity for themselves and on behalf of the Letankom people. Order IV rule 3 of the High Court Rules, Cap 61, Laws of Eastern Nigeria, 1963 cited by learned counsel for the appellant is reproduced in the current High Court Rules. It provides

“where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the court, be authorized by the other persons interested to sue or to defend in such suit, for the benefit of or on behalf of all parties so interested.”

A fundamental principle underlying suits in representative capacity is that the person or persons suing or defending in a representative capacity must have the same interest in the proceeding – See Ogamioba & Ors v. Chief Ogene & Ors (1961) All NLR 59 at 62; (1991) 1SCNLR 115. This means that the parties on record and those they represent must have common interest (not similar interest) common grievance and the relief sought must in its nature be beneficial to all the representatives and those represented -See Market & Co Ltd. v. Smith & Ors v. Cardiff Corporation (1954) 1QB 210, Nsima v. Nnaji & Ors (1961) NLR 441 and Amajideogu v. Ononaku (1988) 2 NWLR (Pt. 78) at 614. The principle was re-stated by the apex court in Idise v. Williams Int. Ltd. (1995) 1 SCNJ 120; (1995) 1 NWLR (Pt. 370) 142. See also Ukatta v. Ndinaeze (1997) 4 SCNJ 137 at 139; (1997) 4 NWLR (pt. 499) 251. I have critically examined the entire records and there is nothing in the pleadings (the statement of defence and counter-claim) or in the evidence before the trial court to suggest that, the respondents/counter-claimants and those they purport to represent the Letankon people – have common interest in the subject of the proceeding that is Nyana land. The said common interest ought to have been pleaded and proved by evidence. Without the common interest pleaded, the issue of authorization or approval of authorization by the court will not arise. As it is the counter-claimants counter-claimed in their individual capacity not in a representative capacity. Issue 5 is resolved in favour of the appellants. Whether or not the respondents established title to the land in dispute depends on the pleading and evidence relating to the Nyana land. In paragraph 20(1) of the respondents/counter claimants sought a declaration of a right of occupancy to “the Nyana piece or parcel of land situate and bordering the Ikom – Calabar Highway bounded in the North by Ugom land in Chief Iwara Eliot Akpan’s possession, south by Lebulibulikom land In Chief Obono Ofem’s possession, West by Kokomkoho -Ijom land and the East by the said Ikom – Calabar High Way.”

In his evidence on 11/8/03 the DW 1 said the Nyana land is on the left of the highway “when one is going to Calabar. He did not indicate the point of departure to Calabar as there are other roads to Calabar apart from one from Ikom or Ugep. When he continued his evidence on 5/2/2004 he said “the land is on the right hand side of the Ikom – Calabar Highway.” In his earlier evidence he mentioned Otalosi people’s land as the boundary on the left of the land in dispute. He did not mention the Ikom -Calabar highway as a boundary of the land. In his later testimony he omitted Otalosi land as boundary and gave the southern boundary as the Ikom – Calabar Highway.

In his own evidence, DW 2 said “I know the land in dispute which situates along Ikom – Calabar road in Ijiman” Surprisingly, all the DW 3 (the 1st respondent) said on the disputed land am “I know Nyana Land.” See page 41 of the records. DW 4 said “I know that land’s history through my farther,” See page 43 of the records. Further more not only that the DW 3 (1st, respondent) did not describe the land or state its location he said inter alia “I did not know the history of the land.” See page 43 of the records. The witnesses gave conflicting evidence relating to the boundaries of the disputed land. Moreover, its location is not certain from the evidence. If the land is on the left of the highway “when one is going to Calabar” it cannot also be on the right hand side of the Ikom – Calabar highway. The DW 1 gave two conflicting versions of the location of the Nyana land. The same piece of land cannot be on both left and right of the road to Calabar when one is going to, or away from, Calabar. I think the trial court erred in its finding on the identity of the disputed land. In the first place the evidence of DW1 was credited to the PW 1. See page 56 of the records. Secondly the finding that:

“A cursory consideration of the pleading vis-Ã -vis PW1’s evidence clearly shows that the evidence, even if not fully, conforms with the pleading and if a surveyor should be given the pleading along with PW1’s testimony he will be able to put down vividly a plan which could give an accurate description of the land in dispute.”

Is not based on the evidence before the court. The same piece of land cannot be located on both left and right hand side of the road to Calabar. There is unresolved conflict in the evidence relating to its boundaries as well as conflict between the pleading and evidence of the location and boundaries of the land. The phrase “even if not fully” employed by the learned trial Judge indicates that His Lordship was not satisfied that the evidence on the location and description of the land conformed to the pleading. And no surveyor, no matter his expertise, can produce a plan of a single piece of land situate on both sides of the road to Calabar even a part from conflict in the pleading and evidence of its boundaries. DW3 1st respondent did not know the history of the land. In my view, from the pleading and evidence the location and identity of the land are not established and the history of the land is not known to the DW 3. It cannot be said that the counter-claimants proved their title to the land. The issue is resolved in favour of the appellants.

Even if the counter claimants had proved their counter-claim which they did not, having failed to establish the identity of the land, the award of N159, 610 to the 1st respondent as special damages is erroneous. Items of special damages set out in the pleading run from 1 to 21. In his evidence the DW 3 who made the claim merely said “the total loss for me is N159, 610.00” No evidence was led in respect of the items set out in the counter-claim. It was wrong for the trial court to make the award merely because the appellants did not contest it. In Alhaji Otaru & Sons Ltd. v. Idiris & Anor (1999) 6 NWLR (Pt. 606) P. 330 the Supreme Court held that special damages must be proved strictly and that a trial court cannot make its individual assessment but must act strictly on the evidence before it which it accepts as establishing the amount to be awarded. See also LCC v. Unachukwu (1978) 3 SC 199, Akintunde v. Ojeikere (1971) 1 NMLR 91, Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR (Pt.1) P. 41, WAEC v. Koroye (1977) 2 SC 45 and Oshinjinrin v. Elias (1970) 1 All NLR 153. In this case, there was no evidence in proof of the various items that made up the N 159,610.00 claimed as special damages.

General damages cannot be awarded without proof of the location and description of the land trespassed upon. Even if the claimants had established the location, identity and boundaries of the land, which they have not, how did they acquire their claimed title to the land? Both parties agree the land originally belonged to Otalosi people – the appellants. DW 1 claimed that “Otalosi gave theirs to Letankom and particularly Okoi Omini Edet.” See P. 29 of the records.

He said, Edet of Letankom, wanted the land for a fuel station.

DW2 said Otalosi gave the land to Okoi Omini Edet for a petrol station. DW3 who said his house on the land was demolished, said he got the land from his Letankom Paternal brothers. DW 4 said Okoi Omini Edet was given the Otalosi people’s part of Nyana land and thereafter it belonged to Letankom appellants’ witnesses. PW1 to PW5 were consistent in their denial that Otalosi gave land to Okoi Omini for any purpose. Besides how was the land given “to Letankom and particularly Okoi Omini Edet” as claimed by DW1. Was the land meant to be used jointly and/or severally by Okoi Omini Edet and his paternal brothers, the people of Letankom? Neither the claimants nor the trial court addressed there questions. The same piece of land given to Okoi Omini Edet for his fuel station as claimed by DW 2 could not have been given “to Letankom and particularly Okoi Omini Edet.” The same land given to Okoi Omini Edet for his fuel station could not have been the one DW 3 said he, on his request, got from his Letankom paternal brothers. PW 4 said Okoi Omini Edet was given the Otalosi peoples’ part of Nyana land and thereafter the land belonged to Letankom. He did not say who gave Otalosi peoples’ land to Okoi Omini Edet. He did not say how the land he said was given to Edet became the property of Letankom. The claimants failed to prove how the land they agreed was the property of Otalosi became the property of Letankom and/or the 1st respondent/claimant. I resolve issue seven in favour of the appellants.

Issue 8 is whether or not the appellants proved their claim to title of the land in dispute. Here again the starting point is whether or not the identity of the land was proved as pleaded in the amended statement of claim. In paragraphs 3 & 4 of the amended statement of claim the appellants pleaded:

“3. The land in dispute is known and called NYANA LAND. It is situate along Calabar Ikom Highway directly opposite Otalosi No.2 compound, Ijiman ward, Ugep Urban, Yakurr Local Government Area.

4. The said NYANA LAND is bounded on the right by Letankom and Ugom unit on the left, by the west; it is bounded by Nyana Stream and on the North by Calabar Ikom Highway.”

The use of the right and left side directions with the cardinal points in the description of the boundaries of the land leaves much to be desired. In their statement of defence and counter claim the respondents did not specifically refer to paragraph 3 or 4 of the amended statement of claim. However, apart from the general traverse the respondents placed the land in dispute “along Ikom Calabar Highway … ” See paragraph 3 of the statement of defence and counter claim. In my view issues were joined on the location and identity of the land in dispute and the onus of proof was on the appellants.

In his evidence the PW 1 said “I know a piece of land known as Nyana which is situating along Ikom – Calabar road in Ijiman.” See page 11 of the records. PW 2 said he knew the piece of land known as Nyana. He neither described it nor stated its location. In his own evidence PW 3 said “I know the subject matter in this suit which is Nyana parcel of land in Ijiman. It is situate along Ikom Calabar High Way at Ijiman on the right hand side while facing Calabar. See page 22 of the records PW 4 merely stated that he knew the land in dispute. He said nothing of its location or boundaries. PW 5 said

“I know a parcel of land known as Nyana and I am in charge of it…. The land is bounded by Iwara Odonga next myself of Otalosi, next is Okpebri’s people of Letankom.”

See page 35 of the records. In the pleading there was no motion of Iwara Odonga or the witness himself as having boundaries with the land in dispute. A major flaw in the appellants’ evidence on the location of the land in dispute is the direction of the road from which its location is determined. In paragraph 4 of the statement of claim it is by Calabar -Ikom Highway. PW 1 said it is along Ikom – Calabar road and this was repeated by PW 3. PW 5 who claimed to be in charge of the land said nothing of its location. Calabar – Ikom Highway (as in the pleading) is the same as Ikom – Calabar Highway as in evidence of PW 1 and PW 3 who said the land is on the “right hand side while facing Calabar. If the land is along Calabar – Ikom Highway it means it is situate on either left or right of one backing Calabar and facing Ikom. This is what was pleaded. On the other hand, if the land is along Ikom – Calabar road as stated by PW 1 or on the right of the said Ikom – Calabar road as stated by PW 3 it means that the land is on the right or left hand side of a person facing Calabar from the Ikom direction of the Ikom Calabar road or on the right hand side of the said road – Ikom – Calabar road as stated by PW 1 and PW 3 respectively. Paragraphs 3 and 25(1) of the amended statement of claim placed the Nyana land specifically “directly opposite Otalosi No 2 compound Ijiman Ugep Urban Yakurr Local Government Area” along Calabar – Ikom Highway. The Otalosi No 2 compound could be an established structure on the Calabar – Ikom Highway and its location would have been useful in determining the location of the land in dispute but this element in the pleading was not referred to by any of the witnesses fielded by the appellants. Moreover, the parties did not file survey plans of the land in dispute even though from the pleading and evidence the Nyana land was shared into 9 portions by the Ijiman community. The Nyana land in dispute is only one of the 9 portions of the land of that name. Neither the pleading nor the evidence led by the parties made a distinction between the Nyana land comprised of 9 portions and the one portion (or part thereof) which was originally the share of the whole land given to Otalosi but now in dispute between Otalosi and Letankom sections of Ijiman community. Using the same test the learned trial Judge adopted in the counter claim there is no way a survey can produce, based on paragraphs 3 and 25(1) of the amended statement of claim and the evidence of PW 1 and PW 3 a plan of the land therein described.

Parties are bound by their pleading and so is the court. Any fact pleaded but upon which no evidence is adduced is deemed abandoned just as evidence led in respect of any fact not pleaded goes to no issues between the parties. Not only did the appellants abandon their pleading, they led evidence on issues as to boundaries not pleaded. Appellants’ failure to prove the identity, location and boundaries of Nyana land as pleaded is fatal to their case. See Adelaja & Ors v. Alade & Anor (1999) 6 NWLR (Pt. 608) 544, Ekpenyong v. Nyong (1975) 2 SC 1, Ademola v. Sodipo (1992) 7 NWLR (Pt. 253) 251.

In Yusuf v. Oyetunde (1998) 10 SCNJ 1; (1998) 12 NWLR (Pt. 579) 483 the Supreme Court restated the principle that the burden of proof is on the plaintiff who makes the assertion and the defendant cannot, by his pleading and evidence, prove the plaintiffs’ case even if the evidence adduced by the defendant support the averments of the plaintiff. In other words, the plaintiff must succeed on the strength of his own case and not on the witness of the defence. Issue 8 is resolve against the appellants.

In the final analysis I dismiss the appeal against the judgment of the lower court in the main suit and affirm the judgment dismissing the appellants’ case.

On the other hand, I allow the appeal against the judgment of the lower court in favour of the respondents/claimants. I set aside the said judgment of the trial court and dismiss the respondents’ /claimants’ counter-claim.

I make no order as to cost.

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Other Citations: (2007)LCN/2555(CA)