Godpower Orlu V. Chief Godwin Onyeka (2006)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS J.C.A.
This is an appeal against the judgment of Charles-Granvile, J sitting at Port Harcourt and Yenagoa Judicial Divisions of the High Court of Rivers State in suits No.PFC/293/79 and YHC/45/95. The matter started in Port Harcourt” but was concluded by the trial Judge when he was transferred to Yenagoa Judicial Division. The proceedings taken under the two suit numbers have been combined together to from the record of appeal.
By a writ of summons filed on 26-10-1979 at Port Harcourt High Court, the plaintiff now to be referred to as the respondent, sued (8) eight persons including the 1st defendant now to be referred to simply as the appellant, claiming jointly and severally as follows:
“1. N10, 000.00 general damages for trespass into the plaintiff’s land known and called AKWADO situate at Mile 3, Diobu, Port Harcourt and registered on No. 71 at page 71 in vol. 38 of the Lands Registry, Port Harcourt Statement of Claim.
- Perpetual injunction restraining the defendants’ their servants and agents from further entering or interfering in the plaintiffs said land.
At the trial court, parties filed and exchanged their pleadings and amended pleadings with leave of that court. The case went to trial. The appellant did not counter claim, but he set up a defence of his ownership or title over the same land in dispute. Judgment was in favour of the present respondent for the sum of N10, 000.00 as damages for trespass and a perpetual injunction against the aforestated (8) eight defendants. Now it is only the appellant who was then the 1st defendant that has appealed against the said judgment to this Court. The appellant filed his Notice of Appeal containing 22 grounds of appeal from which he distilled and formulated 6 issues for determination as follows:
“1. Whether in view of the law, the evidence and the circumstances of the case, the learned trial Judge was right to have placed reliance on and to have attached weight to Exhibits A (with the attached Survey Plan), D, E, F and G and the evidence or the plaintiff and his witness (PW1 and PW2) Grounds 12, 15 and 16).
- Whether the plaintiff established his root of title to the land in dispute. (Ground 9, 22, 17)
- Whether the learned trial Judge was right in law and on the basis of the evidence to ascribe possession in favour of the plaintiff and against the 1st defendant in this case (Grounds 4, 5, 10).
- Whether the learned trial Judge applied the relevant/applicable law, and applied the law properly to the facts of this case (Grounds 1 and 3).
- Whether the evidence called in this case and the facts/circumstances of this case justify the findings, conclusions and the judgment that were entered by the learned trial Judge in this case (Ground 2, 6, 8, 13, 14, 18, 19, 20, and 21).”
As the respondent was duly served with the appellant’s brief of argument, he has filed respondents brief and has formulated three (3) issues distilled from the appellant’s 22 grounds of appeal. The three issues read:
“1. Whether the learned trial Judge was right in holding that the plaintiff/respondent proved a better title to the land in dispute than the defendants
- Whether the plaintiff/respondent successfully proved his case for damages for trespass, which is based on exclusive possession of the land in dispute?
- Whether the learned trial Judge was right in failing to apply the Abandoned Property (Custody and Management Edict, 1959 of Rivers State to this case?”
I have considered the party’s briefs of argument and their respective issues carefully. I am of the considered view that the appellant’s multiplicity of grounds of appeal and the six issues, are surplusage. The grounds are mere repetitions of errors in law. Issues 1, 3 to 22 are errors in law but issue No, 2 is that judgment is against the weight of evidence, while issues 5, 7 and 14 merely said that the learned trial Judge erred in law but have not referred to the particulars of the error. The repetitive error in law in the grounds of appeal from which the appellant has created six issues are to say the least in elegant and repetitive and a wasted time and energy. The respondent’s three issues are more responsive to and have combined appellant’s issues that are relevant for the determination of the appeal. This is how I will consider the appeal.
Issue 1 – Better title to the land in dispute:
The appellant has denied that the respondent had established his root of title to the land in dispute. In his issue No. 2 which is asking whether the plaintiff/respondent had established his root of title to the land in dispute appellant wasted so much time in the name of the original owner of the land in dispute complained that the respondent had named one Enoch Agbirigba Family. Appellant has argued that there is no evidence of any relationship/nexus between Enoch Agbirigba and Agbirigba Family and referred to numerous cases to show that evidence of the plaintiff must be in consonance with the pleading relied upon. But the fact is that in the instant appeal, the respondent had pleaded by his paragraph 4 and 7 of the reply to statement of defence that the land known as AKWADO land, originally belonged to the Agbirigba family of Oroworukwo Diobu – see page 28 of the record; and that the said family had earlier conveyed the said land including the land in dispute to John Nweke and Chukwuma Nwobu who also conveyed the land in dispute to the respondent. It is therefore well established that the respondent as per his pleadings and evidence on record, had established his root of title before he lawfully acquired the land in dispute. By referring to the name of Enoch Agbirigba is a clear acceptance that Enoch Agbirigba bore the name of original owner of the land in dispute and his surname of Agbirigba is what the family used in reference to the original ownership of the land. Appellant’s reliance on the cases of ABOYEJI v. MOMOH (1994) 4 SCNJ 302; UWEGBA v. A.G BENDEL STATE (1986) I NWLR (Pt.15) 303; OLAREWAJU v. BAMIGBOYE (1987) 3 NWLR (Pt. 60) 354 are not relevant to appellant’s argument.
Respondent’s evidence was not at variance with his pleadings. The learned trial Judge received Exhibit E, which shows the valid Deed of Conveyance registered as No. 57 at page 57 in Volume 103 of the Lands Registry at Enugu. At page 51 of the record, the respondent testified and there was no objection by the appellant. It reads thus:
“The names of my vendors on Exhibit A are John Nweke and Chukwuma Nwobu. From my findings, I discovered that my vendors bought the land from one Enoch Agbirigba, the original owner of the land. I applied for a certified true copy of the Deed of Conveyance. Counsel seeks to render it. No objection by the defence counsel… admitted and marked Exhibit E.”
Still At page 52 of the record, the respondent had forcibly stated on oath as follows again thus:
“The conveyance between my vendors and Enoch Agbirigba has never been set aside by any court of competent jurisdiction. Exhibit A has not been set aside by any body. Both documents here mentioned have never been challenged in any court. The land does not belong to the 1st defendant or his family. At the time of the transactions in Exhibits A and E, the 1st defendant (appellant) was alive and in Port Harcourt.”
From the above evidence of the respondent at the lower court, Exhibits A and E, which the respondent and also vendors acquired as title owners in respect of AKWADO land which is the land in dispute, were clearly tendered and admitted in the presence of the appellant and his counsel in court. Despite this fact, the appellant did not make any objection whatsoever. The legal effect is that the appellant, by admitting respondent’s title of documents Exhibits A and E as well as admitting Exhibit B which was a Survey Plan of the land in dispute, is that, the respondent had lawfully acquired the land in dispute, which was properly granted in the trial court’s judgment, see MAINAGGE v GWAMNA (1997) 1 NWLR (Pt. 528) 19l, where this court said:
“The documents tendered in court by the respondent, scaled through smoothly without any eyebrow being raised either by the defence counsel or the court….could be presumed to be in order and therefore admissible. I cannot allow the appellant … to retreat and abjure what he has voluntarily’ and skillfully too, accepted.”
In the instant appeal I cannot find any reason why the appellant or his counsel can now impugn on the respondent, who lawfully and in consideration of the rules of this Court, tendered his root of title i.e. Exhibits A and E, which were deed of conveyance of the land in dispute, and the appellant and his counsel had clearly admitted these facts and failed to even make a feeble objection or challenge same. It is too late in the evening for the appellant to raise, eyebrows. It is well established principle of law that where evidence given by a party to any proceedings have not been challenged or discredited by the opposing party who bhad the chance to do so, then it is open to the court hearing the matter, to act and rely on such unchallenged or opposed evidence as done by the trial court in this matter. I refer to the Supreme Court decision in ISAAC OMOREGBE v. DANIEL LAWANI (1980) 3 – 4 SC 108; NIGERIA MARITIME SERVICES LTD v. ALHAJI BELLO AFOLABI (1978) 2 SC 79.From the above consideration and authoritative decision of the Apex Court, I am satisfied that the trial court was perfect in giving the judgment in favour of the respondent whose pivotal point in respect of his root of title and survey plan were pleaded, testified and tendered without any challenge, it was uncontroverted by the appellant. I therefore resolve issue 1 in favour of the respondent.
Issue 2 – Whether the respondent proved his claim for trespass:
The appellant’s argument in his issue 3 is that the trial Judge made a wrong finding that the respondent had established his possession of the land in dispute; on which damages of trespass was granted, Appellant counsel argued from paragraphs 5.3A to 5.3B at pages 24 to26 as well as paragraph 5.3C to 5.3t) and then submitted that the survey plan of 3-2- 1976 is doubtful, worthiess, irrelevant and not capable of becoming a base for finding possession in favour of the respondent, Counsel further contended that the learned trial Judge, assumed that the mere attachment of a survey plan to Exhibit A, gave the plaintiff possession of the land in dispute; and that the trial Judge wrongly assumed that the mere reflection of survey pillars in the survey plan of 3-2-1976 without more, proves that the plaintiff surveyed the land in dispute.
Appellant further argued that the respondent failed to establish title to and possession of the land in dispute. That there was l1o basis for entering judgment in favour of the respondent; that in other words, the respondent had admitted by virtue of Exhibit C that at least, as early as 1977, the appellant erected structures on the land when appellant put the 2nd to 8th defendants into possession of same as his tenant’;. Appellants referred to page 49 of the record. Counsel for appellant then concluded and submitted that as between the respondent who could not prove his title or establish any act of possession on the land before the suit was filed, the appellant was already in possession and that therefore, the claim to damages was wrong. Counsel referred to and relied on the case of ONI v. AROMIRE (1973) J SC 163; UMESIE v. ONUAGULUCH (1995) 12 SCNJ 120.
On the part of the respondent, he referred to the relevant pleadings on possession and trespass as contained in paragraphs 7, 8 and 9 of the amended statement of claim. Counsel also referred to the evidence of the respondent at page 49 of the record and contended, that the learned trial Judge, had carefully considered Exhibit A as well as the survey plan, which was attached to it and found the pillars which, his Lordship held that. It constitutes de factor control which is the factum of possession and intention of the respondent to exclude all others from the land in dispute. Counsel then referred to numerous authorities of the Supreme Court decisions where it is stated; that, it is trite law, that where relevant admissible and credible evidence stand unchallenged, uncontradicted or uncontroverted, the Court has no alternative but to accept Same and act on it to establish a fact in issue The counsel referred to but few of the cases out of many, are OLUJINLE V. ADEAGBO (1988) 2 NWLR (Pt. 75) 238; ADEJUMO V. AYATEGBE (1989) 3 NWLR (Pt. 110) 417; UBA V. ACHORU (1990) 6 NWLR (Pt. 156) 254. Counsel also referred to the definition of the word “survey” in Blacks Law Dictionary, 6th Edition at page 1445 thereof.
Now, it is trite law that trespass to land is actionable at the suit of the person in possession of the land. Sec the case of PIUS AMAKOR v. BENEDICT OBEFUNA (1974) 3 SC 67. It is therefore necessary to understand and ascertain that the respondent had to prove that he was in possession of the land in dispute at the time of act of trespass when he filed his suit and asking damages for the trespass.
The respondent as plaintiff at the trial court pleaded this in his amended statement of claim as seen on page 26 of the record of appeal. It reads:
“7. Sometime in November 1977 or thereabout, the defendants without the leave or licences of the plaintiff unlawfully broke and entered into the plaintiff said piece of land which was in the peaceful possession of the plaintiff and erected temporary structures thereon.
- The plaintiff through his solicitors did warn the defendant’s land by a letter No. FC/969/30 of 12th of May 1978.
- That despite the said warning, the defendants have continued to trespass on the said plaintiffs piece of land and have threatened to continue the said trespass unless restrained by this Honourable Court.’, (Italics mine)
To buttress the position of the respondent as to his possession of the land dispute, his evidence on record at page 49 states as follows:
“I have been in peaceful possession of the land. The defendants broke and entered into it by erecting temporary structures I warned them through my solicitors to desist from trespassing into the said land.
The above is enough evidence of establishment of the respondents’ possession of the land in dispute. It is to be noted which I accept, that the respondent had earlier on, tendered Exhibits A, B and E which were the valid Deeds of Conveyance and Survey Plan which was not opposed to or challenged by the appellant. Appellants’ admission and refusal to challenge or raise an objection is tantamount to accepting the plea and evidence of the respondent on issue of trespass, which he established. The trial judge was therefore proper to rely on the contents of Exhibits A and E as well as B which clearly showed the beacon numbers RSF 580, RSF 581, RSF 582 and RSF 583 which was dully signed by the licensed surveyor who surveyed same. The act of survey plan and erection of the beacons by the respondent is a clear establishment that he was in possession, and therefore entitled to damages for the acts of trespass committed by the appellant. I am satisfied that the trial Judge had properly evaluated the evidence of both parties in relation to the issue of trespass and the requisite damages as sought and proved by the respondent as shown on pages 99 to 100 of the record. His Lordship said thus:
“The plaintiff gave evidence in line with the above pleadings and tendered the letter which was admitted as Exhibit C. I have earlier held that there was no reply to Exhibit C from the 2nd – 8th defendants to explain of their occupation of the land in dispute through the 1st defendant. Exhibit C specifically accused the 2nd – 8th defendants of trespassing on the land in dispute and yet there was no reaction from them to rebut or deny that accusation of trespass. It is on record that all the defendants filed a joint Amended Statement of Defence. The 2nd – 8th defendants did not lead evidence in their denying the allegation of trespass and so I accept the submission of learned counsel for the plaintiff that a trial court is not expected to make findings on a mere averment in the pleadings. There must be cogent evidence adduced in support before a finding can be made. This case before me is not one on a representative capacity, and so the 2nd – 8th defendants ought to have led evidence in defence of the allegation of trespass in paragraphs 7, 8, and 9 of the Amended Statement of Claim against them, but this they failed to do. See SALAMI V. OKE (1987) 8 -11 SC P. 43, P. 66.
In the light of the conclusions and reason I have given above I hold that the plaintiff has made out a case of trespass against the defendants and his remedy lies in damages and injunction.”
I have no business to temper and or reverse the findings of a trial court as in the instant appeal, even if on the Same evidence, I would have come to a different conclusion unless it had occasioned a miscarriage of justice.
See RANKING UDO & ORS V. MBIAM OBOT & ORS (1989) 1 NWLR (Pt. 59. WOLUCHEM v. GUDI (1981) 5 SC 291; NWOBODO v. CHIEF ELECTORAL OFFICER (1984) 1 SC 1.
I have observed the manner in which the appellant has vehemently argued in his brief that the respondent did not prove his root of title and therefore had no reason to plea or ask for trespass damages. But it is well established that the lower court had found that the respondent was in possession of the land in dispute.
Therefore, the appellant to succeed against the damages of trespass, he should have established a better title to the land in dispute, which he failed woefully to prove. He should have known that a trespasser or squatter could maintain an action in trespass against the whole world except the true owner or the man with a better title. See AMAKOR v. OBIEFUNA (supra) at pages 78-79. ISHERU v. CATHOLIC BISHOP OF OWERRI DIOCESE (1997) 3 NWLR (Pt.495) 517 at page 524 para D – E,Based on above findings, I concluded issue 2 in favour of the respondent. Appellant issues 1, 3 and 4 are against the appellant. The respondent had established his root of title to ownership of the land in dispute and was therefore, entitled to damages for the trespass committed by the appellant and other 2nd – 8th defendants who did not even appeal against the solid judgment of the lower court.
Issue No. 3 – Whether trial court was right in not applying the Abandoned Property (Custody and Management) Edict, 1969 of Rivers State in this case:
The appellant raised this issue No.4 as distilled from his grounds 1 and 2. The appellant’s argument at pages 31 to 32 of his brief, is that, the trial Judge, had found that the land in dispute was owned by the said vendors (that is John Nweke and Chukwuma Nwobu) and that if that was the case then the said land in dispute, became an “Abandoned Property” since it is a property of non-indigenes of Rivers State who fled during the Nigerian Civil War which is covered by Section 2 of the Abandoned Property (Custody and Management) Edict 1969 of Rivers State. That since there is no evidence, that instrument of transfer was issued to the alleged vendors, then the property was not released to them and so it remained an abandoned property and that, it was for the respondent, to prove that it was not abandoned property; and the purported sale of the land in dispute by the vendors to the respondent, contravened the said Edict and was void as it was done without the consent of the Governor. Appellant then urged this appellate Court, to hold so, and declare that the respondent’s case was thus destroyed, and that the trial Judge was wrong when he failed to apply the 1969 Abandoned Edict.
On the part of the respondent, it was submitted that there was not conclusively shown, during the trial proceeding, that the land in dispute was an abandoned property within the provisions of the Abandoned Property (Custody and Management) Edict, 1969 of Rivers State and therefore, the trial court was right in not applying the Edict in the case.
I am of the considered view that, by raising the land in dispute as an abandoned property, appellant is now so desperate like a none-swimmer, finding himself in the centre of a flooding swift river whose end, is into the ocean. I accept the submission of learned counsel for the respondent who gave the solid facts of what happened during cross-examination of the respondent who was then PW1. There was no iota of evidence that respondent’s vendors, namely John Nweke and Chukwuma Nwobu were not present in Rivers State during the turbulent Civil War.
Moreover, the respondent’s claim on the land in dispute was not based on abandoned properly. The appellant himself who was then 1st defendant claimed the land in dispute as his own land, but he did not claim it on an abandoned property. It is now clear, that the appellant has now become an acrobat by somersaulting from ownership of the land in dispute to an abandoned property, A party’s case in title of ownership over a piece of land should be clearly stated in his pleadings, which ought to be proved by evidence. Any latter evidence, which is contrary to the pleadings, even extracted in chief or under cross-examination, will go to no issue and is always discountenanced. See NWAUBA v. ENEMUO (1988) 2 NWLR (Pt.78) 581); ANIEMEKA EMEGOKWUO v. JAMES OKADIGBO (1973) 4 SC 113. Based on the above findings and decided authorities, I resolve issue No. 3 in the affirmative. The learned trial judge was right in not applying the Abandoned Property (Custody and Management) Edict, 1969 of Rivers State.
In the final analysis, the appeal has no merit whatsoever and I hereby dismiss same with costs of N10, 000.00 in favour of the respondent.
Other Citations: (2006)LCN/2119(CA)
