Mr Ignatius Anyanwu & 5 Ors V. Mr. Aloysius Uzowuaka (2009)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI, JSC. 

This action was commenced at the Port-Harcourt Judicial Division of the High Court of Rivers State on the 17th of January, 1996, When the Writ of Summons was Issued. The Plaintiffs sued for themselves and as representing the Sand and Gravel Dealers Union (Mile 3) Dump. They were the Respondents at the Court below and are the Appellants herein. The Defendants were sued for themselves and as representing Drivers and Loaders at Mile 3 Sand and Gravel Dump. They were the Appellants at the Court below and are the Respondents herein.

In their Statement of Claim dated and filed on the 12/3/96, the Plaintiffs claim against the Defendants jointly and severally N700,000.00 (Seven Hundred Thousand Naira) being and representing Special and General Damages for Trespass and wilful and unlawful Damage to building materials owned by the Plaintiffs left at their Dump in Mile 3 and which Dump the Respondents invaded. Particulars of Special Damages were given amounting to N454,000.00 and General Damages amounting to N246,000.00. They also claim Perpetual Injunction restraining the Defendants either by themselves, their servants, agents, privies or personal representatives from continuing to stay at the Mile 3 Dump of Sand and Gravel Dealers Union and/or building, constructing or planning to build stores and shades at the plaintiffs’ Dump at Mile 3.

The Statement of Defence and Counter-Claim was dated and filed on the 23/5/1996. In Paragraph 9 of the Counter-Claim, the Defendants claim:

‘(a) That they are joint owners of the parcel of Land allocated by the Bureau of Lands upon TOL, Temporary Occupation Licence.

(b) An amount of all rents collected from over 250 sheds at a rentage of N21, 000.00 per month.

(c) Perpetual Injunction restraining the Plaintiffs from alienating or developing the site without the approval of the other parties (Defendants).’

There was no Reply to the Counter-Claim.

The 1st Plaintiff was the sole witness for the Plaintiffs’ case at the Trial. Four witnesses including the 3rd Plaintiff testified tor the defence. In its Judgment on the 19/7/2000, the Plaintiffs Claim was allowed and N100,000.00 damages awarded against the Defendants for Trespass. The Claim for Special Damages was however refused on the ground that it was not specifically proved. Perpetual Injunction was also granted. The Court held that the Counter-Claim failed woefully and it was dismissed.

The Appeal to the Court below was allowed and the Judgment of the Trial Court set aside. The Counter-Claim for the joint ownership of the Land was allowed. The Claim for rents in respect of the 250 sheds was however refused.

The Plaintiffs/Appellants have therefore come on Appeal to this Court. Briefs of Arguments have been filed and exchanged. The Appellants Brief was prepared by D. O. Ezaga and it was filed on the 4/10/06. He also prepared the Appellants’ Reply Brief which was filed on the 5/11/07. The Respondents Brief prepared by H. E. Wabara (of blessed memory) was filed on the 15/12/06. Each of the parties identified only one Issue for Determination. The Issue is, whether from the Pleadings and evidence led at the Trial the Appellants Claim for Trespass and Injunction ought not to succeed?

On behalf of the Plaintiffs/Appellants, Learned Counsel proffered the following arguments. Counsel referred to the evidence of the D.W.1, Godwin Rufus Allison from the Rivers State Lands and Housing Bureau and D.W.3, Chief Ferdinand Ucheoma and argued that their evidence is the bests source of determining whether the initial licence in1980, was in favour of the sole Appellants Sand and Gravel Dealers Union or jointly in favour of Tipper Drivers Loaders and Sand and Gravel Dealers Union. Learned Counsel referred to the Temporary Occupation Licences from 1982-1996, a period of 14 years and pointed out that apart from those of 1983-1985, in the joint name, all others were in the name of the Sole Appellants Sand and Gravel Dealers Union. It was contended specifically that the D.W.1 admitted under cross-examination that all the receipts and licences from 1986-1996, were in the sole name of the Appellants’ union. Learned Counsel referred to the evidence of the D.W.3 as damaging to the case of the Respondents and pointed out that he was not treated as a hostile witness. Counsel pointed out that the issuance of receipts and licences in favour of the Respondents joint Tipper Drivers and Sand and Gravel Dealers Union started in 1983 and ended in 1985. He referred to the oral evidence of the D.W.1 in favour of the Respondents and submitted that documentary evidence is in law to be preferred to oral evidence. Learned Counsel referred to the evidence of the D.W.4 under cross-examination about the suit filed by the Appellants against the Rebisi Youths and the Injunction obtained thereat and submitted that the evidence further buttressed the case of the Plaintiffs exclusive licence to the Land in dispute.

On the question of the identity of the Land, Counsel referred to the Pleading in Paragraph 5 of the Statement of Defence and the Sketch Exhibit ‘Q’ and submitted that there was no Issue about the identity of the Land and relied on Otanma v.Youdubagha (2006) 1 S.C. (Pt. II) 23; (2006) 2 NWLR (Pt. 964) 337 at 354.

On behalf of the Defendants/Respondents, Learned Counsel submitted firstly that the Appellants as Plaintiffs woefully failed to prove that they were in exclusive possession or occupation of the Land in dispute at the time of the alleged Trespass and having failed to prove exclusive possession, the law cannot protect it. He relied on Oyadare v. Keji (2005).1 S.C. (Pt. 1) 19; (2005) 1 SCNJ 35 at 42 and Umesie v. Onuaguluchi(1995) 12 SCNJ 140. He drew our attention to Exhibit “S” copied at Page 32 of the record in respect of the joint application for the Land and submitted that no evidence was adduced to contradict it. It was his submission that from the totality of the evidence both parties were in joint occupation of the Land. The dimensions of the Land allegedly Trespassed upon was undefined and uncertain and for which therefore an Injunction cannot lie, Learned Counsel submitted. Reliance was placed on Adelusola v. Akinde (2004) 5 S.C. (Pt II) 71; (2004) 5 SCNJ 235 at 253. Learned Counsel also referred to Otanma v. Yaoudubagha (supra) and submitted that the Issue of the identity of the Land was also raised in Paragraph 5 of the Pleadings of both parties. On the same Issue of undefined and uncertain boundaries, Learned Counsel further referred to Fagunwa v. Adibi (2004) 7 S.C. (Pt. II) 99; (2004) 7 SCNJ 322 at 342 and Ezukwu v. Ukachukwu (2004) 7 S.C. (Pt. 1) 96; (2004) 7 SCNJ 189 at 216. He urged in conclusion that the Appeal be dismissed.