Chief Wahab Gbemisola Vs John Bolarinwa (2014)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal from the judgment of the Ibadan Division of the Court of Appeal, hereinafter referred to as the lower court, in appeal No.CA/I/6/99 delivered on the 4th day of November, 2003 affirming the judgment of the Oyo State High Court, hereinafter referred to as the trial court, in Suit No.HSK/26/92.
Briefly put, the facts of the case are that the respondents as plaintiffs had sued the appellant, defendant at the trial court, for declaration of title in respect of the tract of land situate, lying and being at Oke Igboho, stretching behind Oke Igboho Baptist Primary School down to Akuro and up to Sanya Dam, Igboho in Orelope Local Government area of Oyo State; N50,000 damages for continuing trespass since 1991 and perpetual injunction to restrain the defendant, his agents or privies or any person whosoever claiming through or under him from committing further acts of trespass on the land in dispute.
In proving their case, besides traditional history, the respondents pleaded and gave evidence of numerous positive and unequivocal acts of possession they exercise on the land in dispute as shown in Exhibit “P1”, their building plan. They also relied on section 46 of the Evidence Act arising from their acts of possession and enjoyment of other lands connected with the land in dispute.
The Appellant also relied on traditional history and acts of ownership.
The 1st respondent and through five other witnesses testified at the trial court that the land in dispute was founded by Prince Tondi who had sojourned to Igboho from Eruwa having lost a chieftaincy title to his younger brother. Igboho was then a mountainous jungle of many caves inhabited by numerous reptiles. Having founded Igboho, Tondi in company of his three wives and others settled at Igbo Iho. They named the river in the wilderness they settled Sanya. Having settled and fully controlled the vast land, Tondi whose people had gone into farming, allowed portions of the land he founded to persons who subsequently came by Igboho. Jakuta quarters was the last portion of the land Tondi founded which piece he gave to defendant’s forefathers. Olomo was their head and Appellant’s ancestor. The boundaries of the land in dispute is demarcated red on respondents, plan No ADAKS 59D/09/94, Exhibit “P1”.
Appellant’s defence is that their ancestor was granted the tract of land by the Alafin Egungunoju who founded Igboho. The appellant comes from the Olomo Chieftaincy family and contends that the Olomo family was never under the Onigboho of Igboho. Tondi, the respondents, ancestor, the appellant further contends, got lost in the course of his hunting adventure and was discovered by Boni of Isale in the Igboho wilderness. The latter handed over Tondi to Alafin Egungunoju. The Alafin quartered Tondi in the Olowo Njaye compound of Igboho. The land in which the Okehe Baptist primary School is situate, it is appellant’s further case, was granted by Alomo through Onigboho.
At the end of trial, including addresses of counsel, the trial court found merit in respondents, case and granted them the entire reliefs they urged on the court. Dissatisfied, the appellant appealed to the lower court. Finding no merit in the appeal, the lower court dismissed same and affirmed the trial court’s judgment. The appellant has further appealed to this Court on a Notice containing four grounds.
Parties have filed and exchanged briefs of arguments in compliance with the Rules of this Court. They adopted the briefs at the hearing of the appeal on 17th December, 2013. The appellant distilled three issues on the basis of which he urges us to determine the appeal. The issue reads:-
“(i) Whether the Lower Court was right in affirming the decision of the court of first instance based on respondents’ evidence that Igboho was founded and settled upon by their ancestor, one Tondi inspite of the settled and notorious historical facts that Igboho was founded and settled upon by the Alaafin Egungunoju and various judicial pronouncement that respondents said evidence is false.
(ii) Whether the case of Kojo II V. Bonsie (1957) 1 WLR 1223 at 1226 is applicable to this cases.
(iii) Whether the lower court was right in affirming the award of damages by the court of first issue.”
The two issues the respondents formulated in their brief for the determination of the appeal read:-
“5.01 Whether the lower court was right in confirming the decision of the learned trial judge in his application of the principle of law in Kojo II v. Bonsie (1957) 1 WLR at 1226 without recourse to the case of Atoyebi & Anor v. Governor of Oyo State & Ors (1994) 5 SCNJ 62 and/or ‘The History of the Yoruba’s by Samuel Johnson.
5.02 Whether in all the circumstances of this case, the lower court was right in confirming the decision of the learned trial judge on the award of damages in favour of the Respondents.”
The appeal will be determined on the basis of the issues distilled by the appellant.
It seems to me that appellant’s overriding grouse under the three issues he proffers for the determination of the appeal relates to the lower court’s affirmation of the trial court’s judgment inspite of the latter’s refusal to be bound by the decision of this Court in Atoyebi & anor v. Governor of Oyo State and others (1994) 5 SCNJ 62 at 69.
Appellant’s secondary complaint is to the effect that given the finding of this Court in the Atoyebi & anor V. Governor of Oyo State and others (supra) that Tondi whom the respondents assert to be the founder of Igboho, including the land in dispute, never was but instead appellant’s ancestor was the original founder of the Igboho Chieftaincy house, the bottom had long ago been taken out of respondents claim.
Expatiating, learned appellant counsel submits that the law recognises Traditional history as one of the five ways of proving title to land. In the case at hand, learned counsel further submits, whereas the respondents as plaintiffs assert that Tondi, their ancestor, was the founder of Igboho, the appellant in joining issue with the respondents contends that Alaafin Egungunoju from whom Alomo, their ancestor, derived title, was the founder of Igboho. Appellant’s position, submits learned appellant counsel, in the light of the decision of the Supreme Court in the Atoyebi & anor V. Governor of Oyo State and others (supra), must prevail. The apex Court, learned counsel submits, had affirmed the 1972 finding of Adenekan Ademola J, as he then was, that Tondi was never the founder and owner of Igboho. Instead, learned counsel further submits, the apex Court on the basis the traditional history of the parties in the Atoyebi & anor V. Governor of Oyo State and others (supra) held Alepata rather than Onigboho to be the overlord chief in Igboho. This finding of the Supreme Court, contends learned appellant counsel, puts appellant’s traditional history on a higher pedestal and the lower court’s affirmation of the trial court’s contrary finding on the issue manifestly wrong.
The effect of the Supreme Court’s decision in the Atoyebi & anor v. Governor of Oyo State and others (supra) dovetails into appellant’s arguments under his second issue. The apex Court’s finding since 1994 that Tondi never founded Igboho cannot be ignored, submits learned appellant counsel, by any subordinate court in this country. The effect of the finding of the apex Court in Atoyebi and anor V. Governor of Oyo State and others (supra) is that respondents’ historical account is false. Resultantly, it is contended, the account cannot be on the same pedestal as the account the appellant proffers. Where appellant’s traditional history is manifestly stronger than that of the respondents, the principle enunciated in Kojo II V. Bonsie (1957) 1 WLR 1223 at 1226 becomes inapplicable. It is only where the traditional accounts of the two sides remain in conflict such that the court does not know on whose account to rely that a court by the principle in Kojo V. Bonsie (supra) resorts to acts of recent possession of the two sides to resolve the conflicting claims of the parties. The lower court’s affirmation of the trial court’s wrong application of the principle in Kojo II V. Bonsie (supra) having caused miscarriage of justice, contends learned counsel, requires to be interfered with.
Adopting their arguments under the 1st and 2nd issues, learned appellant counsel insists that the respondents have not proved their case and the affirmation of the trial court’s erroneous decision by the lower court being perverse must be set-aside. The trial court’s award of damages to the respondents for trespass was based on respondents evidence of recent acts of possession it found to be more probable.
This decision is only sustainable, argues learned counsel, on the proof of trespass by the respondents in relation to the land in dispute. Where the evidence adduced by the respondents is shown to be incapable of establishing their right to the land they allege the appellant stands in trespass of, respondents claim must fail. Learned appellant counsel urges the resolution of all the three issues as well as the determination of the appeal in their favour.
Responding, learned respondents’ counsel submits that appellant cannot be right in his contention that the lower court’s affirmation of the trial court’s decision was done in ignorance of the Supreme Court’s decision in Atoyebi V. Governor of Oyo State (1994) 5 SCNJ 62. The decision, it is argued, was neither an issue at the lower court nor in this Court. Although the respondents had in paragraph 22 of their amended statement of claim signified an intention to ostensibly rely on “a number of cases now pending in the High Court, Court of Appeal and in the Supreme Court,” the respondents had at the end of trial sought and obtained leave from the trial court to delete that last sentence of paragraph 22. Having not led any evidence on the said portion of their pleading, the trial court in indulging them deleted that part of respondents’ pleadings.
Learned respondents counsel further contends that since parties had neither pleaded nor joined issues on the judgments in Suit No HOY/12/72 and Atoyebi V. Governor of Oyo State (supra), appellant cannot now raise the plea. By the combined operation of Sections 109, 111 and 112 of the Evidence Act 2004, learned counsel further submits, a law report does not constitute a certified true copy of the judgment it reports. The two judgments the appellant alludes to can neither be relied upon to contradict a witness under Section 34 of the Evidence Act nor support facts that had neither been pleaded nor established. Again, from the pleadings and evidence in the instant case, argues learned counsel, it is evident that the parties as well as the subject matter in Atoyebi V. Governor of Oyo State (supra) are not the same as in the instant case. The earlier case, submits learned counsel, cannot rule the instant case.
Further arguing the first issue for the determination of the appeal, learned respondents counsel submits that appellant appears to have forgotten that respondents had pleaded three main modes the law entitles them to in proving their title. Apart from their traditional account, it is submitted, they also relied on acts of possession and Section 46 of the Evidence Act in relation to land connected with the one in dispute. And, learned respondents counsel contends, proof of the averments through all the three modes were given by the respondents. The judgment of the trial court and indeed its affirmation by the lower court which recognize and endorse the extant principles on the matter cannot be wrong. Most importantly, it is submitted, being concurrent findings of fact, this Court must be slow in tempering with them. Relying inter-alia on Idundun & Ors V. Okumagba & Ors (1976) NMLR 200 at 201, Fadiora V. Gbadebo (1978) 3 SC 219, at 228-229, Ito Ekpe (2000) 2 SC 98 at 105-107, Abraham V. Olorunfemi (1991) 1 NWLR (Pt.155) 53 at 61-62 and Romaine V. Romaine (1992) 4 NWLR (Pt 238) 668, learned counsel urges that the first issue be resolved against the appellant.
On their 2nd issue, learned respondents counsel refers to paragraphs 23, 24 and 25 of their pleadings, Exhibit “P1”, the evidence of “PW1”, Mr. Adetunji Adeleke, their licensed surveyor, at page 40 lines 1-3 and 30 and the testimonies of “PW5” and “PW6” at page 49 lines 4-7 and page 54 line 29 to page 55 lines 1-7 all in proof of appellant’s act of trespass and further submits that the appellant, who had not filed any survey plan gave conflicting evidence of the boundaries of the land in dispute through his witnesses in contesting respondents case. Learned respondents counsel contends that the conclusion of the trial court at page 109 lines 28-32 of the record as affirmed by the Court of Appeal at page 186 of lines 14-30 the record cannot be faulted. These are concurrent findings of fact that draw from the evidence on record and have necessarily to persist. Relying on Tiza V. Begha (2005) 5 SC 1 at 17, Idundun V. Okumagba (supra) and Fagunwa V. Adibi (2004) 7 SC (Part 11) 99 at 116, learned counsel urges the resolution of the issue in their favour and the dismissal of the unmeritorious appeal.
Now, the questions to answer in the resolution of the issues the appeal raises and by extension the determination of the appeal are principally whether the lower court has wrongly denied the appellant reliance on the judgment of this Court in Atoyebi V. Governor of Oyo State (supra) a judgment he forcefully contends constitutes estoppel by record and whether the concurrent findings of fact of the two courts below can, at this level, lawfully be interfered with.
Appellant’s contention is that since this Court had in Atoyebi V. Governor of Oyo State (supra) declared, contrary to what the respondents assert, that Tondi their ancestor is not the original founder of Igboho including the land in dispute, neither party can presently contend otherwise.
I agree with learned appellant counsel that in a proper case, a party may be precluded from contending the contrary of any precise point that had been distinctively put in issue and solemnly determined with certainty against him. The defence avails the party who raises it whether the issue involved in the earlier decision is one of law or fact or one of mixed law and fact. The principle however enures if all the preconditions to a valid plea of the defence are met. These are: (i) the same question was decided the earlier proceeding the judicial decision which creates the estoppel is final and (iii) the parties to the judicial decision or their privies were the same as those the subsequent proceedings wherein the plea of estoppel is raised. See Adebayo V. Alhaji Yakubu Babalola & 2 Ors (1995) 7 NWLR (Pt 408) 383, Shanu & Anor V. Afribank Nigeria Plc (2002) 17 NWLR (Pt.795) 185 and Hon Emmanuel Bwacha V. Hon Joel Danlami Ikenya & 2 Ors (2011) 1-2 SC (Pt.11) 186.It does not matter that the judgment being relied upon as an estoppel, which appears to be what the appellant herein seeks to do, is a judgment in rem. Being contra mudum, a judgment in rem binds parties and their privies and non-parties as well. In Sosan & Ors V. Odemuyiwa (1980) 1 NSCC 673 this Court at pages 680 of the report not only distinguished between a judgment in rem and one in personam but restated the principle on estoppel thus:-
“The rule of estoppel per rem judicatam may also apply in the case of a decision or judgment in rem. In such a case the decision is binding both on parties (or privies) as well as on non-parties whether it is used as a foundation of an action or relied upon as a bar… a judgment is in rem when and where it is a solemn pronouncement upon the status of a particular subject matter. The term judgment in rem is clearly understood in law as a judgment of a court of competent jurisdiction determining the status of a person or thing or the disposition of a thing. The action which ends in such a judgment should be an action filed for such determination….”Learned respondents counsel still insists that because parties in the case at and hand have not joined issues by their pleadings at the trial court or by any other means on the point decided by this Court in Atoyebi V. Governor of Oyo State (supra), the appellant cannot presently raise the plea. I cannot agree more.
The case at hand is being fought on pleadings. A perusal of the pleadings, particularly that of the appellant, bears out the respondents that the defence of issue estoppel the appellant seeks to raise has not been averred to. The judgment of this Court in Atoyebi V. Governor of Oyo State (supra) the appellant hinges his plea upon is as contained in the law report he cites. This fact is alluded to only in the appellant’s brief. The certified copy of the judgment and/or the proceedings leading to the judgment have neither been pleaded nor Exhibited. Learned respondents counsel is right that by the facts of the case at hand, having not pleaded the facts on the basis of which he raises the defence, the law does not entitle the appellant to persist in his bid. It is indeed the law that where pleadings are necessary estoppel should properly be set up as a plea in defence with sufficient particulars to apprise the plaintiff the basis on which he is estopped from relitigating the particular case or issue. Where there are no pleadings the defence should be raised by evidence at the earliest opportunity. See J. O. Awiawo & another V. Attorney General North Central State & 2 ors (1973) 6 SC 34 at 38 and 39, Sosan & ors V. Odemuyiwa (1986) 1 NSCC 673 at 68 and Okafor Adone & ors V. Ozo Gabriel Ikebudu & Ors (2001) 7 SC (Pt.111) 22.
In Clay Ind (Nig) Ltd V. Aina (1997) 8 NWLR (Pt.516) 208 at 229 this Court held that as a general principle of the law, estoppel must be pleaded before the trial court otherwise it cannot be raised on appeal. More particularly, in Odi V. Iyala (2004) 8 NWLR (Pt.875) 283 at 306, the court specifically held thus:-
“Is brief the forum to raise the special defence of estoppel per rem judicatam I think not. The case must be made out in the pleadings before argument can be taken on it in the brief on appeal. The law is elementary that estoppel per rem judicatam is a special defence available to a defendant, which must be specifically pleaded in the statement of defence. See Egbe V. Adefarasin (1987) 1 NWLR (Pt.47) 1; Sosan v. Ademuyiwa (1986) 3 NWLR (Pt.27) 241; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298. In the circumstances, I will not consider the supplementary brief in this appeal.”The foregoing catches up with the appellant and it is for that reason his 1st issue, respondents 1st also, is hereby resolved against him.
Under his 2nd issue, the appellant seeks to know whether the principle in Kojo II V. Bonsie (supra) has rightly been applied in the instant case by the two courts below. It is argued all over again that this Court having held in Atoyebi V. Governor of Oyo State (supra) that Tondi, respondents’ ancestor, was never the founder of Igboho which includes the land in dispute, respondents’ traditional history ipso facto collapses. Respondents’ very weak traditional account cannot, therefore, compete with appellant’s account. The recourse to recent acts of possession of the two sides by the two courts when the traditional accounts of the two sides, given the decision of the Supreme Court in the Atoyebi V. Governor of Oyo State (supra), are no longer in conflict such that the one cannot be preferred against that of the other, is perverse.
Now, for all the reasons adumbrated earlier in this judgment in resolving his 1st issue against him, appellant’s 2nd issue must also fail. The plea of estoppel the appellant raised and by virtue of which he urged that the respondents be estopped from further grounding their title on traditional history that had already been pronounced upon, as correctly contended by learned respondents counsel, remains unavailing to the appellant.
Secondly, learned appellant counsel appears to persist in the misapprehension that respondents claim is founded only on traditional history. Learned counsel refused to appreciate that beyond their traditional account the respondents also averred to and led evidence in respect of two other modes in proof of their title. Learned respondents counsel is on a firm terrain in his submission that the law recognises five ways of proving title to land and the respondents are at liberty to rely on one or more of these modes if merely to make assurance doubly sure. See Balogun V. Akanji (1988) 1 NWLR (Pt 70) 301 at 321. In Idundun & Ors V. Okumagba (1976) 9 & 10 SC 227, a case cited by learned respondents counsel, this Court at pages 246-250 of the report set out the five different ways of proving of any land in dispute in our courts to include: (1) By traditional Evidence (2) By production of duly authenticated documents of title unless they are documents twenty years old or more that are produced from proper custody (3) Acts of possession in and over the land in dispute extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons thus in possession are the true owners (4) Acts of long possession and enjoyment of other land situated and connected with the land in dispute by locality or similarity that the presumption under Section 45 of the Evidence Act applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land and (5) Proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. See also Adewuyi v. Odukwe (2005) 14 NWLR (pt 945, 473, and Makanjuola V. Balogun NWLR (Pt.108) 192.
In the case at hand, the respondent from their pleadings in paragraph 3-12, 15-21 of their amended statement of claim as well as paragraphs 3-10 of their amended reply to appellant’s statement of defence relied on three distinct modes to establish their root of little to the land in dispute. Apart from traditional history which they specifically averred to in paragraphs 3-9 and 26 of their amended statement of claim, they also pleaded acts of possession respect of the land in dispute paragraphs 3-10 of their amended reply to appellant’s amended statement of defence and paragraphs 10-12 and 16-21- of their amended statement of claim. Respondents further resorted to Section 46 of the Evidence Act as a root of their title in paragraphs 12a-15 of their amended statement of claim. In proof of these pleadings, they tendered Exhibit “P1” their plan of the land in dispute and Exhibits “P2-P15”, the last of which Exhibits was tendered through DW2, appellant’s own witness.
After summarizing the pleadings and evidence of parties in the case, the trial court at page 107 line 16 to page 108 line 4 of the record of appeal proceeded to hold inter- alia thus:-
“So far, we have considered traditional evidence which is just one of the five ways of establishing ownership of land as enumerated by the Supreme Court in the case of Idundun Vs. Okumagba (1976) 9 & 10 SC 227. So far since the decision reached is that the evidence of tradition preferred (sic) by the two parties in this case is inconclusive, the case must rest on question of fact. In which circumstance the plaintiffs must prove act of ownership or acts of possession extending over a sufficient length of time, numerous and positive enough to warrant the inference that they are the exclusive owners. See Ekpo v. Ita (1932) 11 NLR 68. Let us go back to the factual situation and see how the plaintiffs have been able to discharge the onus placed on them by law.”
The court then held at page 110 of the record thus:-
“I hold the view that the plaintiff, having regard to the facts and the evidence before the court have shown sufficient acts of possession on the land in dispute, numerous and positive enough to warrant the inference that they are the exclusive owners of the land. But that is not the end of the matter.”
The court continued thus:-
Exhibit P1 clearly shows that the land in dispute is just a small portion of the large track of land that is being claimed by the plaintiffs. In other words, the land in dispute is surrounded by the plaintiffs’ family land in respect of which numerous acts of possession has been carried out. To that extent, I am of the opinion that the plaintiffs are entitled to take advantage of Section 46 of the Evidence Act. I therefore so hold.”
In affirming the foregoing findings of the trial court and the court’s award of damages to the respondents, the lower court found at page 186 of the record firstly thus:-
“What the plaintiff claimed in the court below is a declaration of right to possessory hilts on the land in dispute, under the customary right of possession. See MOGAJI vs ODOFIN 1985 7 S.C. 59 to establish the claim, the court below was entitled to require and consider that the proof of possession by the plaintiff was made to the hilt. The rule in KOJO II vs. BONSIE supra is one such which indicates a proof, to consider acts of recent possession of the land in dispute. In my opinion and I so rule the learned trial judge in the court below was right to consider and determine the person entitled to a declaration of customary right of possession on the land in dispute by considering the acts of recent possession of both parties on the land; and prefer that of the respondent.”
The court further held as follows:-
“The evidence tendered in the court below show; not only that the land in dispute had long been in occupation, possession and exclusive use of the plaintiff; but also that the surrounding areas to the specific area in dispute; the area including the Baptist Primary School; had continued to be in exclusive possession of the plaintiff. Ordinarily Section 46 of the Evidence Acts application would have assumed possession of the adjourning land to the plaintiffs’ land as being in the possession of the plaintiffs. See THOMAS vs HOLDER 13 WACA; IDUNDUN vs OKUMAGBA (1976) 1 NWLR supra. (11) FASORA vs BEYOKU 1988, 2 NWLR, (Pt.76) p.263 at 271.”
In relation to appellant’s trespass, the lower court concluded thus: –
“The court below showed in his (sic) evaluation of the evidence tendered by defendant that the several acts of the defendants is clear evidence of entry into the land in the possession of the plaintiff. The acts of trespass on the plaintiffs land are established.”
Appellant’s grouse under his 2nd and 3rd issues for the determination of the appeal is that the foregoing concurrent findings of fact by the two courts are wrong and necessarily have to be interfered with.
Learned respondents counsel has stated the principle correctly that this Court is very slow in setting aside the concurrent findings of fact. The court allows appeals on the basis of these findings only where it is successfully established that the findings are perverse. A finding or decision of a court may be perverse for more reasons than one: where the court ignored facts or evidence; misconceived the main thrust of the case it adjudicated upon, or took irrelevant matters into account as the basis of its decision or went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case or committed various errors which faulted the case before it beyond redemption and all of or either of which lapses occasioned miscarriage of justice. It is only then that the appellate court interferes by setting the finding or decision aside. See Clifford Osuji V. Nkemjika Ekeocha 6-7 SC (Pt.11) 91 and E.C. Udengwu V. S. Uzuegbu (2003) 11 SC 135. In the instant case, the appellant has not succeeded in establishing that the concurrent findings of the two courts are bedeviled by any of the vices the law recognizes as indicative of perversity the findings to entitle this Court to interfere.Firstly, the lower court’s affirmation of the trial court’s application of the principle in Kojo II V. Bonsie (supra) cannot be faulted. The best way to test traditional history, it has been held Kojo II V. Bonsie (supra), is by reference to facts in recent years as established by evidence relation to the land in dispute. With passage of time, the traditional history relied upon by contending parties to make out their respective cases through accounts of witnesses become very hazy rendering it very difficult for the court to decide which side’s account to prefer. The principle in Kojo II V. Bonsie entitles the trial court to rely on recent facts adduced by the two sides in determining which of the two historical accounts pertaining the land in dispute is more probable. The trial court’s finding at pages 108 line 26 and 110 lines 5-15 clearly shows its purpose and position on the point. The court thereat enthused as follows:-
“In the instant case the Defendant has failed to show the identity of his land with certainty. I do not therefore believe that any acts of possession he purported to have carried out were in respect of the land in dispute as shown in Exhibit I in this proceedings. To that extent, I hold the view that the plaintiffs having regard to the facts and evidence before the court hove shown sufficient acts of possession on the land in dispute numerous and positive enough to warrant the inference that they are the exclusive owners of the land.”The lower court cannot be said to be wrong in its affirmation of the foregoing application of the correct principle enunciated in Kojo II V. Bonsie supra.
The point must be restated that besides traditional history the record of appeal clearly shows that the respondents had pleaded and led evidence in respect of the two other modes the law recognises title to land could be proved. Proof of their case on the basis of any of the three modes they relied upon in their pleadings entitles the respondents to the declaration they seek from the trial court. The lower court’s affirmation of the trial court’s finding that respondents having proved their case are entitled to the declaration they seek remains sustainable on any of the two other modes the respondents relied upon and clearly proved by evidence on the record as well.
Again, it is beyond dispute as held by the lower court at page 186 of the record that the law is:-
‘Trespass is after all on invasion of another into the land in the possession of the plaintiff.” See also Udo V. Obot (1989) 1 NWLR (Pt 95) 59 and Ayinde V. Salawu (1989) 3 NWLR (Pt.109) 297.
Having correctly stated the principle the court proceeded and rightly too, to affirm the trial court’s findings based on the evidence led that the appellant is a trespasser in the following words:-
“The tract of land in the possession of the plaintiffs in the court below is the area in which the trespass is found to have been committed. I find no error in the assessment and evaluation of the evidence in this matter on appeal and find correct the conclusion by the trial judge… I affirm in its entirely the judgment of the court below.”
It is idle to challenge the award (not the quantum) of damages against the appellant arising from his trespass established by the evidence on record. The law is that a plaintiff is entitled to nominal damages for trespass even if no damage or loss is caused and if damage or loss is caused same is recovered according to general principle. See Ummina V. Okwuraiye (1978) 6-7 SC 1 at 11-12, and Osuji V. Isiocha (1989) 3 NWLR (Pt.111) 623 at 634.Having failed to show that the concurrent findings of facts of the two courts on the points articulated under appellant’s 2nd and 3rd issues for the determination of the appeal are perverse, the issues are resolved against him. On the whole the unmeritorious appeal is hereby dismissed at a cost of N100,000 in favour of the respondents.
SC.20/2004
