Mngunengen Gege V. Veronica Nande & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

TSAMIYA, J.C.A.

By a writ of summons issued out of the Gboko Division of the High Court of Justice, Benue State, the plaintiffs (here in this appeal referred to as respondents) claimed against the defendant (here in this appeal referred to as appellant) the following reliefs:

a. A declaration of the said plot of land No. 400, measuring 100 Ft x 50 Ft lying and situate at Gboko West.

b. The sum of N 34,250 being special and general damages.

Particulars

i. N4,250 special damages beings the cost of the purchase of 50 bags of cement at N50.00 per bag and the cost of molding 2,500 blocks of cement at 70 kobo per block being 50 blocks per bag of cement.

ii. N30, 000.00 general damages.

At the High Court of Justice of Benue State (there in this appeal referred to as the trial court) parties filed, delivered and exchanged pleadings, which were later amended.

By the amended statement of claim, in paragraph 17, the plaintiffs claimed the following reliefs:

a. A declaration (in favour of the plaintiffs) of a title to the said plot of land in dispute No. 400 located at Gboko West and covered by the Local Government Certificate of Occupancy No. 09154 in the name of the 2nd plaintiff.

b. The sum of N34,250.00 being special and general damages.

Particulars of damages

1. N4,250.00 special damages being the cost of purchase of 50 bags of cement at the cost of N50.00 per bag, and the cost of molding 2,500 blocks of cement at 70 kobo per block; being 50 blocks per bag of cement for 50 bags thereof all as at 1989.

Further particulars

1. N2,500.00 being the cost of 50 bags of cement at the rate of N50.00 per bag of cement as at 1989.

ii. N1,750.00 being the cost of moulding 2,500 cement blocks at the rate of 70 kobo per block .

2. N30,000.00 being general damages.

Total = N34, 250.00.

The defendant by her amended statement of defence denied in its entirety the claim of the plaintiffs and counter claimed as follows:

1. A declaration that the plaintiffs, (i.e. the defendant in the original suit) is the owner of the said plot of land, located at the Gboko West purportedly covered by a Gboka Local Government Certificate No. 400 Gboko West.
2. An order that the said Certificate of Occupancy issued by the Gboko Local Government as No. 400 Gboko West in the name of the 2nd defendant (2nd plaintiff in the original suit), is illegal, null and void and should be withdrawn by the relevant authority.
3. A perpetual injunction against the defendants, their agents and privies, from entering, staying or doing anything on the said plot of land lying and situate at Gboko West.
4. General damages of N40,000.00 for trespass against the defendants.

The plaintiffs/defendants filed their reply to amended statement of defence and defence to counter claim. Following the accepted principle, now regarded as elementary, that in our civil process a statement of claim supersedes the writ of summons, thus the adoption of the amended statement of claim in this case.

After the settlement of pleadings, full scale trial commenced whereby evidence was led on both sides. At the conclusion of all the available evidence, – oral and documentary, – the learned trial Judge, after addresses by the counsel engaged in the trial, in a reserved and considered judgment found for the plaintiffs and entered judgment in their favour in terms of their claims except as to the quantum of damages which was reduced to the total sum of N14,500.00.

Not satisfied, and indeed aggrieved with the trial court’s judgment, naturally and logically, the defendant (herein referred to as appellant) appealed to this court against the said judgment.

For the purpose of clarity, the appellant’s grounds of appeal with their particulars are re-produced below as follows:

Grounds of appeal

(1) The learned trial Judge erred in law by holding that the case before him was not res-judicata in that PW4 instituted the case in exhibit “F” in his personal capacity and by virtue of that the said case is not the same with the one in issue.

Particulars of error

(a) For a plea of res-judicata to be sustained, the subject matter and the issue must be the same in addition to a valid subsisting judgment.

(b) Parties include privies who can be people related in blood and title or interest.

(c) PW1 in her evidence unequivocally admitted that she was not well and gave the PW4 the authority and direction to sue the defendant in exhibit ‘F’ the said case which was heard on it’s merit and later dismissed without any appeal arising therefrom. This therefore renders irrelevant the issue of PW4 not suing as a personal representative of the plaintiff but suing in his own personal capacity.

(d) The plaintiffs in their pleadings stated that exhibit “F” was not heard on its merit a fact which contradicts their evidence before the court rendering more weight to defendant’s evidence and the failure of the court to consider this has occasioned a miscarriage of justice.

(2) The learned trial Judge erred in law in holding that the title of the plaintiffs on the disputed land was earlier in time than that of the defendant when the plaintiffs’ alleged purchase of the said land as evidenced by exhibit “B” took place only on 17/4/88.

Particulars of error

(a) Under the equitable rule of priorities, the earlier transaction takes precedence over the later.

(b) PW1 claims that she paid only N400.00 in February 1987 and later paid N1,000.00 on 17/4/88 when exhibit “B” was executed while the defendant claimed that she bought the land from the vendor on 17/11/87.

(c) PW1’s act of paying N400.00 in February 1987 did not constitute a valid sale/contract as she only signified her interest to buy the plot at a future time the said contract at the time of first payment only being executory as it was at the time that exhibit “B” was written that it can be said that a sale took place.

(d) The only remedy available to the plaintiffs was to sue the vendor for money hand and received (refund of their money) but not to sue the defendant who had a superior title having bought the plot on 17/11/87 from the vendor.

(e) The trial court therefore derailed itself by delving into irrelevant issues like the bad intension of the vendor in divesting title to the defendant when some money earlier been paid on the plot without considering that the defendant was bona-fide purchaser of title at the time.

(3) The damages of N14,500.00 awarded against the defendant were either not proved or based on any quantum of assessment with regard to the evidence before the court.

Particulars

a. Special damages where pleaded have to be specifically proved.

b. PW1 neither called any independent evidence on the blocks she allegedly had on the land nor produced any evidence to show that she bought cement and laid such blocks neither did the evidence in her case as to the number of blocks she had on the land was conclusive to warrant compensation.

c. The defendant gave uncontroverted evidence that she laid blocks on the plot and commenced building a house on the land which is forfeited to the plaintiffs and awarding damages to N10,000.00 to the plaintiff as compensation in addition to that is excessive.

(4) The Judgment is against the weight of evidence.

In accordance with the rules of this court, the appellant on 29/12/97 filed her brief of argument and served same on the respondents. The respondents, however, filed timously, their own respondents brief of Argument on 23/3/98 having been served with the appellant’s brief on 18/2/98. Counsel to the parties were present when this appeal came for hearing and each counsel adopted his own brief of argument, and the appellant urged this court to allow the appeal, while respondent urged this court to dismiss the appeal.

The appellant, in her brief of argument formulated three issues for determination in this appeal, as follows:-

1 Whether or not exhibit “F” which is the proceedings of the grade II Area Court can be pleaded as estopel per res judicatam.

2. Whether as between the appellant and the respondents who was the first person to have bought the disputed plot and therefore entitled to a declaration of ownership.
3. Whether as between the respondents and the appellant who has proved her case and entitled to the damages awarded by the court.

The respondents, on the other hand, raised two issues for determination in this appeal. These issues are:-

1. Whether or not by exhibit “F” this suit is res-judicata
2. Whether or not as between the parties, the respondents had proved their case against the appellant entitling them to judgment as awarded by the trial court.

Since an appeal is not an inception of a new case but a continuation of the original case, it becomes necessary to state the antecedent or background facts of the case giving rise to this appeal. This will facilitate a quick understanding and an appreciation of the issues involved and canvassed at the trial.

The gist of the case for the respondents as pleaded in their amended statement of claim is that sometime in February 1987, the 1st respondent bought plot of land in dispute from one Iorkohol Azeeze at the cost of N1,000.00 out of which she gave part payment in the sum of N400.00. The plot is numbered as No. 400 and is measured 100 ft by 50 ft and is located at Gboku West. After coming back from his journey undertook to Taraba State, the 1st respondent handed over to the said Iokuhol Azeeze the remaining balance of N600.00 as the purchase price of the said plot in 1988. Consequently, a written agreement was made on 17/4/88 between the said Iorkohol Azeeze in the name of his son Terngu Iorkohol and the 1st respondent in the name of her son Mathew Nande (the 2nd respondent herein). Also received by the 1st respondent from the said Iorkohol Azeeze was the agreement of purchase made between one Ityondun Anger, who happened to be the original owner of the plot, and Iorkohol Azeeze, in the name of his son – Terngu Iorkohol. Pursuant to above, the 1st respondent on 25/7/1980 registered the plot for the issuance of Customary Right of Occupancy, with Local Government Gboko after payment of the relevant fees to which a receipt was given to the 1st respondent. The registration was in the name of the 2nd respondent and the Local Government Certificate was consequently issued in 1990, with No. 09154. That in 1989 while the 1st respondent was processing the application for Certificate of Occupancy the appellant trespassed into the said plot, destroy all the 2500 cement blocks already moulded on site, and started putting building of a house on the plot.

As a result of this act of the appellant, and on seeing that the 1st respondent fell sick, the 1st respondent’s brother named Henry Hungul, sued the appellant on his own behalf claiming that the land belongs to him. The suit which at the end of the trial was struck out by the grade II Area Court. After the recovery from the illness, the 1st respondent, after all efforts to stop the appellant’s trespassing failed, sued the appellant before the trial court.

The appellant’s case, on the other hand, is that on 8/10/1987, she bought the same plot of land from the same vendor, Mr. Iorkohol Azeeze. That in February 1988, one James Akeme who was instrumental to the appellant’s buying the said plot, informed the appellant about some movements on the plot, and to keep away any trespasser, built a 3 bedroom flat on the said plot to reasonable height.

It is note worthy that the issues as formulated by the appellant and respondent tallied, I do not have any difficulty in adopting the issues for determination in this appeal. I compared one set with the other, and I find that the appellant’s issues rather terse and concise. Issue no. 1 in the appellant’s brief agreed with issue No. 1 in the respondents’ brief, while issue no. 3 in the appellant’s brief agreed with issue No. 2 in the respondents’ brief. Therefore, a resolution of one, in my view, will dispose of the other, being identical. I shall adopt the appellant’s issues for consideration in this appeal.

First issue

On this issue, the learned counsel for the appellant submitted that exhibit ‘F’ tendered before the trial court constituted a res judicatam. That PW4, apart from being immediate brother to the 1st respondent but also was directed to sue the appellant before the Area Court by the 1st respondent. That the cases of Balogun v. Adejobi (1995) 1 SCNJ 242 at 254; (1995) 2 NWLR (Pt. 376) 131 and Ezeanya v. Okeke (1995) 4 SCNJ 60 at 80; (1995) 4 NWLR (Pt.388) 142 relied upon by the trial court are not applicable in this case. He urged this court to allow the appeal on this issue.

The respondent’s counsel on the other hand, argued that exhibit ‘F’ does not constitute res-judicata because the parties therein were not the same parties with the parties in the case under this appeal. Not withstanding the fact that the 1st respondent instructed PW4 to sue the appellant before the Area Court, PW4 did not carry out the instructions. Rather he sued the appellant in his personal capacity and not in a representative capacity. That both the case of Balogun v. Adejobi (supra) and Ezeanya v. Okeke (supra) are relevant and applicable in this case. He also relied on the case of Innocent Ibero & Anor vs. Obioha Ume Ohana (1993) 3 SCNJ 156 at 164-165 & 167; (1993) 2 NWLR (Pt.277) 510 and the case of Kossen v. Savannah Bank of (Nig) Plc. (1995) 12 SCJN 29 at 40; (1995) 9 NWLR (pt. 420) 439.

From the argument for and against in the two opposing briefs of the parties to this case, it seems to me that there is a golden thread, which is whether the learned trial was right to reject the issue raised by the appellant in the trial court, that, the action be dismissed on the doctrine of estoppel per res judicatam.

In paragraph 14 (a) and (b) of the amended statement of defence of the appellant at p. 26 – 27 of the record of proceedings, appellant averred thus:

……

……

…… and at the trial the defendant (appellant) shall contend at the appropriate time that –

a. The suit be dismissed for its being vexations and abuse of court process.

b. The action being res-judicata.

Be it noted that the judgment of a court of a competent jurisdiction remains valid until set aside on appeal. If a party attempts to re-litigate the same case or matter in another proceedings the party is barred by the existing judgment from re-opening the issue. As there is a rule of public policy that, it is for the common good that there be an end to litigation, put in the Latin Maxim; Interest rei publicae-ut sit finis litium and also that, no one should be sued twice on the same ground. This was put up also by the Romans in the Maxim: nemo debet bis vexari proceadem causa, See Thoday v. Thoday (1964) 1 All E.R. 341 at 351 – 352. According to Spencer Brower and Turner; Article 9 p. 9-10 they stated as follows:-

“The rule of estoppel per res judicatam which like that of estoppel by representation is a rule of evidence which may be stated thus. Where a final judicial decision has been pronounced by either an English or (with certain exception) a foreign judicial tribunal of competent jurisdiction over the parties to, and the subject matter of the litigation as against any other party or privy thereto and in the case of a decision in-rem, any person whatsoever, as against any other person is accepted in estopped in any subsequent litigation from disputing or questioning such decision on the merits whatever it be used as the foundation of all action or relied upon as a bar to ally claim, indictment or complaint or any affirmative defence, case or allegation if, but not unless the party interested raised the point of estoppel at the proper time in the proper manner.”

What constitutes res judicata. What constitutes res-judicata in our civil jurisdiction, however, has been codified in section 54 of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria 1990 as follows:-

“54. Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based, unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”

See the case of Madukolu & ors. vs. Nkemdilim (1962) 2 SC NLR 341, where the provision was interpreted by the apex court of this country, to mean thus:

1. The rule of res-judicata is derived from the maxim nemo debit bis vexari pro eadem causa (No one alight to be twice vexed for the same cause).
2. In the case of res-judicata it is the causa that matters, and a plaintiff cannot by formuating a fresh action or claim re-litigate the same causa.
3. Section 53 (now section 54) Evidence Act (supra) does not speak of the claim but of the facts directly in issue in the previous case.
4. If the res, the thing actually and directly in dispute has been already adjudicated, by a competent court it cannot be litigated again.
5. One of the criteria of the identity of two suits, in considering a plea of res-judicata, is the enquiry whether the same evidence would support both. See Oloriegbe v. Omotesho (1993) 1 NWLR (pt 270) P.386 at 411.

Having stated what constitutes res-judicata; the burden of proof of ‘res-judica’ is based upon the rule of law that “he who asserts must prove what he assert.” See section 137 of Evidence Act (supra). To succeed on the plea of res judicata, the party relying on it must prove that, the parties, the issue and the subject matter in the previous action were the same as in the action in which the plea is raised. To sustain the plea of res-judicata, however, all these essential ingredients must co-exist, and break in the link chain shall render the plea unsustainable, See Alashe v. Olori-Ilu (1965) NMLR 66; Fadio v.Gbedabo (1978) 3 SC 219; and Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539. All these cases were adopted, applied, and followed in Njoku v. Dikibo (1998) 1 NWLR (Pt. 534) 497.

Section 54 Evidence Act (supra) defines the Word parties to include privies. In Coker and ors v. Sanyaolu (1976) 9-10 S.C. 203, the term privies in relation to the doctrine of res-judicata was considered and classified them into three, namely:

1. Privies in blood (as ancestor and heir)
2. Privies in law (as testator and executor, intestate and administrator)
3. Privies in Estate (as vendor and purchaser, lessor and lesse) as by Idigbe JSC in Coker v. Sanyaolu (1976) 9-10 SC 203.

It is the first class of privies that is alleged in the case in hand. For the contention of the appellant on the point is one that the ‘parties’ in exhibit ‘F’ are the same as in the present action on appeal. Who were the parties or their privies in the previous suit, exhibit ‘F’, and the present action on appeal?

In the instance appeal, the parties before the trial court were Veronica Nande and Mathew Nande as plaintiffs, while Mngunengen Gege was a defendant. The parties in exhibit ‘F’, however, were Henry Hungul as plaintiff while Mngunengen Gege was a defendant. Similarly in exhibit ‘F’ the plaintiff, PW4 (herein) sued the defendant claiming title to the same plot of land in his own personal capacity. There is no any evidence to show that he, PW4, filed the suit in exhibit ‘F’ against the present defendant/appellant in a representative capacity, i.e. for and on behalf of the present respondents. It is in evidence that, he, Henry Hungul was PW4 in the present action before the trial court and also is an immediate brother to the 1st respondent. It was because of the brotherhoodness that exists between 1st respondent and Henry Hungul, PW4, that the appellant contended that the parties or privies in exhibit ‘F’ are the same as in the present action.

With respect to the learned counsel for the appellant, in the appellant’s brief, he adverted mainly on the issue of estoppel per res-judicatam that the parties are the same notwithstanding that Henry Hangul is blood related to the 1st respondent but not to ancestorial level or a heir to the 1st respondent or that the land is not a family land. I wish to say that before a person can be a privy to a party to a suit/action related to a property, particularly in land disputes, there must be community or privity of interest between them.

This land in dispute is not a family land or that Henry Hungul is a heir to the respondent. Therefore, I am in total agreement with the findings of the learned trial Judge on this point to the effect that Henry Hungul, (PW4), notwithstanding his blood relationship to the 1st respondent, he has no claim or interest over the land that his sister, (1st respondent), bought for child, 2nd respondent, born to her husband.

In like manner, Henry Hungul, (PW4), fought the case in exhibit ‘F’ as the master and not as agent of any undisclosed principal, and lost alone as he did not carry anybody along with him in that suit in exhibit ‘F’. The case decided by the grade II Area Court Ghoko on 19/4/90 which is now exhibit ‘F’ cannot in my view, settled finally the respondents’ ability to file another suit before the trial court.

From the foregoing, as the appellant raised the plea of estoppel per res-judicatam, he has the burden of proof of establishing that the parties, fought in the previous suit and the parties fighting in the present action are the same parties. The appellant failed to establish, by satisfactory evidence, that the parties in suit admitted as exhibit ‘F’ are the same with the parties in the present action.

I am armed and re-inforced in this conclusion based on the decision reached in the case of Shittabey v. L.E.D.B. and Ors. (1962) 2 SC NLR 107 at 109, where it was decided that, once one of the trislogy of the rule is missing then res-judicata is inapplicable. The finding of the learned trial judge is borne out from the evidence, so his findings that the parties in exhibit ‘F’ being not the same as in the present action, is hereby affirmed. His rejection on appellant’s plea of res-judicata, is correct in law and it is hereby affirmed. I therefore come to the irresistible conclusion that the plea of estoppel per res-judicatam raised in paragraph 14 (b) of the amended statement of defence of the appellant and raised in issue No. 1 in the appellant’s brief fails and the learned trial judge was right to have rejected the pleas and I so hold.

Issue no 2

Issue no.2 of the appellant’s brief of argument complains about the findings of the learned trial Judge that between the appellant and the respondent, the 1st respondent was the first in time to have bought the disputed plot of land, and therefore entitled to a declaration of ownership. It was submitted for the appellant that since the appellant was the first in time to pay the purchase price of the plot of land in dispute before the 1st respondent, the appellant therefore, has a better title to the said plot. He cited the case of Adelaja vs. Fanoiki (1990) SCNJ 131 at 139; (1990) 2 NWLR (Pt. 131) 137 and relied on it to support this point. The learned counsel further submitted that there are those essential ingredients required to constitute a valid sale of land, and these are:

1. Payment of the purchase price;
2. Purchaser is let into possession by the vendor, and
3. In the presence of witnesses.

The learned counsel relied on the cases of Abayade Cole v. S.R. Folami, 1 F.S.C. 66; (1956) SCNLR 180 and Akingbade v. Elemosho (1964) 1 All N.L.R. 154 to buttress this point. The learned counsel further submitted that all these three essential ingredients existed in favour of the appellant. The learned counsel relied on the respondents’ amended statement of claim at p.22 of the records, the evidence of 1st respondent at p. 43 L. 5 – 25 of the records as well as the evidence of appellant as DW1, all, to show that the appellant completed the payment before the 1st respondent, and the respondent by lying blocks and even puts a foundation and starts building on the land, consequently, the respondents are trespassers.

For the respondents, it was argued that the 1st respondent was the first in time to purchase the plot in dispute as per back as 1987 when she paid partment to the vendor Iorkohol Azeeze. That this fact was not denied by the appellant. That the appellant did not deny that the 1st respondent completed payment in 1988 which gives rise to exhibit ‘B’. That the mere fact the appellant was the first in time to complete payment of purchase price of the said plot that does not warrant the appellant to have better title over the respondents. That the respondents have an equitable interest in the said plot which they could be enforced for specific performance of the sale contract. The counsel relied on the case of Chief Clement Obijiaku v. J.B. Onuha (1995) 7 SCNJ 142 at 151 – 152; (1995) 7 NWLR (Pt.409) 510, to buttress this appoint. The appellant, was therefore a trespasser at the time she entered into possession of the plot since the respondents were already in occupation of the plot. The learned counsel further submitted that the learned trial Judge, therefore, evaluated and assessed the evidence for both parties and actually arrived at a logical conclusion. They urge this issue to be resolved in their favour and dismiss the appeal on this point.

First, let me put the claim of the respondents against the appellant in their amended statement of claim before the trial court. They sought a declaration (in their favour) of title to the plot of land in dispute, being that thy were the party validly first in time to purchase the said plot and subsequently procured a Local Government Certificate of Occupancy, before the appellant, who subsequently and invalidly purchased the same plot of land and procured another purported Certificate of Occupancy from the same Local Government. They also sought the sum of N34,250.00 as special and general damages for loss of 2,500 cement blocks, and trespassing to the said plot of land.

In their pleading and evidence in the trial court, it is clearly that they established, and the trial court so found that;

(1) The 1st respondent even though went to the plot earlier to struck and agreement with the vendor, the appellant concluded her agreement for sale before the 1st respondent.

(2) That the first person in time to purchase the plot was the 1st respondent who paid part payment in February, 1987.

(3) That from the sales agreement between the vendor and the 1st respondent, the former, surrendered the document of title to the latter which was subsequently used to obtain the Certificate of Occupancy on 25/9/90 (exhibit ‘E’) five year after the appellant purportedly procured her own Local Government Certificate of Occupancy – exhibit H,

(4) Therefore, the 1st respondent was first in time to acquire interest in the said plot of land from the vendor, and that the 1st Respondents’ title over the plot of land takes precedent over that of the appellant who went there later.

The trial court at last, declared, title to the plot of land in dispute to vest in the plaintiffs, and was in possession before the appellant proceeded to start building and subsequently procured another Certificate of Occupancy over the same plot.

It is for the foregoing, that the learned counsel for the appellant in his submissions under issue No.2 complained that the trial court was in error in its conclusions.

From the pleadings and the evidence for both parties, it seems that both respondents and the appellant claimed and traced their title, to the plot of land respectively, to the common vendor/grantor, namely Iorkohol Azeeze, who did not, as witness or party, appear before the trial court during the trial. These claims they made by the sales agreement reached in different times.

The principle has long been established that, where, as in this present case, there are competing interests by two or more parties claiming title to the same land from a common grantor, the position, both at law and in equity, is that, such competing interests will prima-facie rank in order of their creation based on the maxim quil prior est tempore portior est jure, which simply means, “he who is earlier in time is stronger in law.” See Ahmadu Bello University v. Fadinamu Trading Co. Ltd. & Anor (1975) 1 NMLR 45, Abiodun Adelaja v. Olatunde Fanoiki & Anor (1990) 2 NWLR (Pt. 131) 137 & 151.

From the pleadings, the evidence before the trial court, and the records of proceedings of the two competing interests in the present case, it is shown that the common vendor (Iorkohol Azeeeze) and the respondents agreed to sell and buy the plot of land in dispute for the sum of N1,000,00 and the nature of the interest (i.e, customary right of occupancy) to be sold and bought was known and agreed to both parties since February 1987. The said common vendor and the appellant on the other hand subsequently agreed to sell and buy the same plot of land for the same amount and for the same interest on 8/10/67. In law, the respondents’ agreement and grant, being the first in time, has priority over that of the appellant which was later in time. This is the law and so the trial court found. See Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511 at 538 where it was held that, where there two grants of the same property from the same grantor, the first in time takes precedence or priority over the second grant. Thus, the second grant has no leg to stand on. It is null and void as long as the first one subsists and had not been revoked by the grantor. See Ogunleye v. Oni (1990) 2 NWLR (pt. 135) 745 at 751 – 752; and Azi v. Registered Trustees of Evangelical Churches (1991) 6 NWLR (pt. 195) 111 at 126.

With the respondents’ sale agreement subsisting in their favour, appellant’s sale agreement, which was created subsequently by the common vendor/grantor in respect of the same piece of land, cannot be valid one. This is because after the said vendor has fully divested himself of any interest in the said land, no right vests in him again to deal with in such land by way of further alienation any more. See Okafor Egbuche v. Chief Idigbo (1934) 11 NLR 140; Adamu Akeju & Ors. v. Chief Suenu & Ors. (1935) 6 NLR 87 and Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566. The principle is based on a maxim: ‘Nemo dat quod non habet’ meaning: ‘No one can give that which he does not have.’

It is for this reason that I support the learned trial Judge’s findings that the 1st respondent was the first to purchase the plot of land in dispute, and therefore her title takes precedent over that of the appellant.

The learned counsel for the appellant argued that the appellant was the first in time to complete payment of the purchase price before the respondents, and immediately took possession of the land by laying blocks, and dug a foundation and built a house to reasonable height on the plot. Therefore, according to him, there was valid sale, which is more valid than that of the respondents. He cited the case of Odufuye vs. Fatoke (1977) 4 S.C. 11. Be it noted that at the time the appellant went and struck an agreement with the vendor there exists already a contract agreement for sale of the said plot of land between the vendor and the 1st plaintiff. For, a contract of sale exists where there is a final and complete agreement of the parties on essential terms of the contract, namely: the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. Once there is agreement on these essential terms, a contract of sale of land is made concluded. See Biyo v. Aku (1996) 1 NWLR (Pt. 422) 1 at p. 38 par. F-G. In the present case, the evidence shows that both the vendor and the 1st respondent agreed in February 1987, on these essential terms. In these circumstances, it is incomprehensible that learned counsel for appellant could apparently unabashed, argued that, since the appellant was first in time to complete payment of purchase price, then the appellant was the person who first purchased the land and therefore she has a better title to the land over and above the respondents’.

The case of Odufuye, cited and relied upon by the appellants’ counsel is not applicable in the circumstances of this case because the facts are not the same. For in that case of Odufuye, the sale agreement was subject to condition which was the payment of purchase price in full within stipulated time. No such condition in this case.

Also from the evidence available in the records of proceedings, it is without any shadow of doubt, that the vendor sold the said plot No. 400 Gboko West absolutely and without any encumbrance to the respondents and that the sum of N400.00 paid was in fact and in law, a part-payment as claimed by the 1st respondent and testified by her. The 1st respondent had promised to pay the vendor the balance of N600.00 outstanding balance later. At the time the 1st respondent intended to pay the balance, the vendor was nowhere to be found as he traveled out of the town. And as soon as he came back she paid the balance and the vendor received and gave the written agreement as earlier agreed.

It is to be noted that in contract for sale of property, particularly, land for that matter, where part-payment, as in this case, was paid, the law is clear. It is that the contract for the purchase has been concluded and is final, leaving the payment of the balance of the purchase price outstanding to be paid. The contract for the sale and purchase is absolute, and complete for which each party can be in breach for non-performance and for which action lie for specific performance. See Biyo vs. Aku (supra) (pp. 24 paras. D-E; 25 paras. B.C.).

Also it is for this reason that I support the learned trial Judges’ findings on this issue. This finding was right and reasonable. So I hold.

Third issue

The complaint under this issue is as to who, between respondents and the appellant, proves her case and entitled to the damages awarded by the trial court. To my understanding, this issue involves:-

1. Who proves her case between the appellant and respondents, and
2. Who was entitled to the award of the two heads of damages between the appellant and the respondents.

The appellant’s counsel submitted that the respondents are not entitled to the award of damages for the two heads of claim because there was no evidence to prove them. The two awards, special and general, were made arbitrary, as there was no any yardstick upon which the award could be based.

The respondents’ counsel, on the other hand, submitted that the appellant has no right to judgment for the two heads of damages because she did not prove her case against the respondents. He further stated that the appellant did not challenge evidence in respect of special damages led by the 1st respondent either during the cross-examination or on her defence before the trial court, as such only minimum proof is required in law in such circumstance. He cited and relied on the case of Hycinth Nzeribe v. Dave Eng. Comp Ltd. (1994) 9 SCNJ 161 at 171; (1994) 8 NWLR (Pt. 361) 124, to buttress this point. That the two heads of damages were awarded after the trial court took into consideration the loss of 2,500 cement blocks and the loss of these properties resulting from the act of trespass by the appellant. By that act of trespassing the respondents have been made to suffer un-necessary the loss which could only be compensated by award of adequate damages in favour of the respondents.

In view of the conclusion I have just reached above on first and second issues in the appellant’s brief, I do not consider it necessary to determine who between the two parties in this appeal proves her case. The parties’ position in the trial court was clear, that

1. The parties in the case contained in exhibit ‘F’ are not the same as parties in the present action;
2. it was the respondents who owned the land being the first in time to purchase the plot of land before the appellants. These facts were established by evidence.

The second leg of this issue, calls for the consideration of general principles governing the grant of damages. The word, ‘Damages’ to be noted, means the “the sum of money which a person wronged is entitled to receive from the wrong-doer as compensation for the wrong.” (See Black’s Law Dictionary, 7th Edition at p. 393). These damages include, special and general damages. For clarity, General Damages are:

“such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason they are its immediate, direct and proximate result, or such as did infact result from the wrong, directly or proximate, and without reference to the special character, condition, or circumstances of the plaintiff.”

General damages do not have to specifically, be claimed or proved to have to be sustained.

And special damages are:

“Those which are the actual but not necessary, result of the injury complained of, and which infact follows it a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions.” (See Blacks Law Dictionary, 5th Ed. At p. 353-354).

Special damages must be specifically pleaded and proved. The difference between the two types of damages is that in the former case the court can make an award when it cannot point out any measure of assessment except what it can hold in the opinion uf a reasonable man. In the latter case, all the losses claimed on every item must have crystallized in terms and value before trial. See Momodu v. University of Benin (1997) 7 NWLR (Pt. 512) 325.

It is now settled that, a person who claims special damages must prove it strictly. In the case of Odulaja v. Haddad (1973) 1 All NLR 191 at 196, the Supreme Court, per Irikefe JSC (as he then was) stated:

“We are of the view that the strict proof in the above con can mean no more than such proof as would readily lend itself to qualification.”

However, this does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence to prove his entitlement to special damages. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character, as would readily lead to qualification or assessment. See West African Shipping Agency Nig. Ltd. & Anor v. Alhaji Musa Kallah (1978) 3 S.C. 21, and Messrs. Dumez Nig. Ltd. vs. Ogboli (1972) 3 S.C. 196.

On the award of special damages, I have checked the record of proceedings of the trial court and found that the 1st respondent as PW1 testified as follows:

“I spent N2,500.00 to mould 2,500 blocks of cement on the plot. I used 50 bags of cement to mould the blocks. One bag of cement was N50.00 at that time. I used to mould 50 blocks per bag of cement.” (See p. 47 L. 22 -30 of the record of proceedings).

PW2 in his testimony, said:

“The 1st plaintiff started moulding blocks after she bought the plot”

(see p. 50 L. 5 -7 of the record of proceedings).

Also, under cross-examination PW2, testified as follows:

“I went to the plot and saw 1st plaintiff was moulding the blocks. At the time we went to the site, 1st plaintiff moulded more than 100 blocks. Some young men were moulding the block for her.” (See p. 50 L. 15 – 18 of the record of proceedings).

On the side of PW4, he testified as follows:

……. Plaintiff started moulding blocks on the land after depositing sand on it. It was cement blocks that 1st plaintiff stared moulding. (See p.53 L. 26 – 28 of the record of proceedings).

And on p.46 L. 11-13 of the record of proceedings, 1st plaintiff as PW1, testified that “I was moulding blocks on this plot when defendant went and destroy my blocks. I moulded 2,500 blocks on the plot.”

Having stated the evidence for the respondent as contained m the record of proceedings, the question left now is whether the trial court was right to have accepted such evidence adduced by the respondents in proof of the damages. The record shows that while appellant was busy denying in the pleadings and the evidence “that she did not meet any cement blocks there on the plot, and that, when I was told of the act of trespass by the 1st plaintiff, I deposited sand and brought cement to mould blocks on the plot, I moulded some blocks and start excavating the foundation,” the appellant offered no real serious challenge to the evidence proffered by the respondents, their PW2 and PW4 as to the source and amount of money spent to mould the said 2,500 cement blocks. In the event, the respondents needed to adduce minimal evidence on this aspect of the case in proof of the damages they suffered.

In the circumstance, the learned trial Judge was entitled to accept the testimony on behalf of the respondent without exhibiting any documentary evidence from the respondents, in the name of receipt of the purchase of the cement or the total amount of money spent on the labourers who moulded the blocks on behalf of the respondents. Therefore, there is, in my view, a scintilla of evidence as to the cost of the 2,500 cement blocks, which were destroyed by the appellant when she (appellant) moved into the plot to start construction. Indeed, more importantly is the fact that, by decided case, what is required is that the person claiming damages, particularly, special damages as in this case, should establish his entitlement to that type of damages by credible evidence of such a character as would readily lead to quantification or assessment, which to my view, the respondent did.

It is not, therefore, as submitted in the appellant’s brief, that there was no evidence to prove the award of special damages. Based on the evidence adduced before him, the learned trial Judge awarded N4,500.00 to the respondent. The learned trial Judge, in my view, rightly considered that evidence before coming to his conclusion. So I support his findings and conclusions on the award of special damages based on the balance of probability.

Entitlement to Judgment

On entitlement to damages as the matter of the point canvassed in issue No.3, it is to be noted that in an action in torts, liability is based on wrong which is violation of the legal right of another. To be entitled to compensation or damage, the wrong must be accompanied by loss to ground liability to pay and entitlement to receive compensation.

In the case in hand, it is manifest from the record that the appellant was not able to establish, by evidence, the right to own the land against the respondents at the trial court. On the other hand, from the totality of the evidence adduced before the trial court, I have no doubt in my mind that it was the appellant who entered in to the appellants’ plot and destroyed their 2500 cement blocks thereby caused the respondent to suffer injury caused by the appellant’s wrong act.

It must be mentioned that when a piece of evidence is unchallenged or uncontradicted by the opposing party who has an opportunity to controvert the evidence, the trial court has no alternative but to believe the evidence. This is exactly what the trial court did with evidence of PW1, PW2 and PW4. See Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417.

It must be pointed out also that in action on the tort for trespass, the plaintiff must show that the defendant wronged him by violating his legal right, and that he suffered damage in consequence of the defendants’ wrong-doing.

In the instance appeal, the respondents showed before the trial court, by evidence as manifest by the record of proceedings, that the appellant entered their plot of land and destroyed their cement blocks intended to be used in developing the plot and that they suffered damage in consequence of the appellant’s destruction of their property.

Consequence upon the above, the learned trial Judge awarded damages so far as money can compensate the injured party as a reparation for the wrong act and all other natural and direct consequences of the appellant’s wrongful act.

On general damages, it should be noted that to be entitled to it as I said earlier, there must be wrong and the wrong must be accompanied by loss to ground liability to pay and entitlement to receive compensation for wrong resulting loss or damages. Therefore, on proof of wrongful act as in this case, which results loss, general damages, which is presumed by law, would, on prove, flow and follow.

In their amended statement of claim, the respondents pleaded that the appellant trespassed into their plot and destroyed their 2500 blocks of cement in 1987 and hindered the development of the plot in dispute. The respondent led evidence at the trial court in support of their averments. The respondent claimed the sum of N30,000.00 as general damages. The learned trial Judge ignored the claim and awards less despite the proof of the claim.

The learned trial Judge before reaching his decision considers the loss of the blocks which the respondents suffered the use of the plot of land by the appellant from 1989 – 1997 and the circumstance under which the trespass was committed, and then the learned trial Judge came to the decision and awards the sum of N100,000.00. This award is my view is reasonable. See Samson Ediagbon v. Dumez Nig. Ltd & Anor (1986) 6 S.C. 149; (1986) 3 NWLR (Pt.31) 753. Having regard to the authorities and the facts of this case, I am of the view that the learned trial Judge was properly guided in the award of general damages in the instance case, and in favour of the respondents, having proved the claim of damages. This issue therefore, is resolved against the appellant, and this concludes examination of all the issues raised in this appeal.

I am not un mindful of issue No.4, but for the fact that the counsel for the appellant did not make any submission on it. In my view the issue and its related ground of appeal seemed abandoned and is therefore struck out having been no submissions made on it by the appellant.

In the final analysis, the appellant fails in all the issues formulated in her brief of argument. With all the three issues resolved against the appellant that went in support of the decision of the trial court which is not affected. I affirm the judgment of Hwande J. of Gboko Judicial Division of Benue State High Court delivered on the 4th day of February 1997. The appeal therefore fails and is dismissed as having no merits.

I award the sum of N10,000.00 costs against the appellant and in favour of the two respondents.

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Other Citations:(2006)LCN/1882(CA)