Mr. Ignatius Anyanwu & Ors. V. Mr. Aloysius Uzowuaka & Ors (2009)
LAWGLOBAL HUB Lead Judgment Report
F. TABAI, J.S.C.
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 claimed against the Defendants jointly and severally N700,000.00 (Seven Hundred Thousand Naira) being and representing special and general damages for trespass and willful 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 claimed 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 claimed:
(a) That they are joint owners of the parcel of land allocated by the Bureau of Lauds upon TOL, Temporary Occupation License.
(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 sale witness for the Plaintiffs’ case at the trial. Four witnesses including the 3rd Plaintiff testified for 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 DW1 Godwin Rufus Allison from the Rivers State Lands and Housing Bureau and DW3 Chief Ferdinand Ucheoma and argued that their evidence is the best source of determining whether the initial license in 1980 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 Licenses 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 Appellant and and Gravel Dealers Union. It was contended specifically that the DW1 admitted under cross-examination that all the receipts and licenses from 1986-1996 were in the sole name of the Appellants’ union. Learned counsel referred to the evidence of the DW3 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 licenses 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 DW1 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 DW4 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 license 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) 2 N.W.L.R. (Part 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 OYADERE v KEJI (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 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 SCNJ 322 at 342 and EZUKWU v UKACHUKWU (2004) 7 SCNJ 189 at 216.
He urged in conclusion that the appeal be dismissed.
The above represents, in substance, the address of counsel for the parties on the single issued raised. Let me now deliberate on this issue which is all about evaluation. As a starting point, it is necessary to restate some basic principles governing the evaluation of evidence. It is settled principle of law that the trial court, which alone has the unique privilege of seeing and hearing the witnesses testify, that has the primary function of appraising and ascribing probative value to the evidence presented by the parties, put the evidence on the imaginary scale of justice to determine the party in whose favour the balance tilts, make necessary findings of facts, apply the relevant law to those facts and come to the logical conclusion. It is to be noted that the summary or restatement of the evidence presented by the parties is not the same thing as evaluation of evidence. See ONWUKA v EDIALA (1989) 1 NWLR (Part 96) 182, IMAH v OKOGBE (1993) 9 NWLR (Part 316) 159 at 177; OLADEHIN v CONTINENTAL ILE MILLS LTD (1978) 2 SC 28; CHUKWU v NNEJI (1990) 6 NWLR (Part 156) 363, A.G. OYO STATE v FAIRLAKES HOTELS LTD (No.2) (1989) 5 NWLR (Part 121) 255.
It is also settled principle of law that an appellate court has no business in the evaluation of evidence because of its limitations of not seeing and hearing witnesses and would not therefore ordinarily interfere with findings and conclusion of a trial court. But where the trial court has failed in its duty of properly evaluating the evidence before it resulting in findings not supported by the evidence, such findings are perverse and the appellate court then has a duty to intervene by evaluating the evidence so as to make its own findings and draw its own conclusions.
However the appellate court can only exercise that role of evaluation or re-evaluation if the exercise would not entail the assessment of credibility of witnesses and will be confined to making findings and drawing inferences and conclusions from admitted, proved or established facts. See WOLUCHEM v GUDI (1981) 5 SC 291; ODOFIN v AYOOLA (1984) 11 SC 72; IMAH V OKOGBE (supra); OGUNLEYE v ONI (1990) 2 MWLR (Part 135) 745.
I am satisfied that the trial court’s assessment of the evidence did not entail credibility of witnesses. The result is that this Court, like the Court below, is in as vantage a position as the trial court to assess the totality of the oral and documentary evidence, make findings of facts and draw necessary inferences and conclusions. Although the Plaintiffs/Appellants did not claim a declaration, their claim in trespass and injunction is founded on their assertion that their Sand and Gravel Dealers Union are the exclusive owners of the Temporal Occupation Licenses over the land in dispute. The Defendants/Respondent, on the other hand, claims that both they and the Plaintiffs/Appellants jointly belong to the umbrella Tipper Drivers and Gravel Dealers Union and which joint body are the owners of the Temporary Occupation Licenses over the land in dispute. They denied that a separate Sand and Gravel Dealers Union or a Tipper Drivers and Loaders Union ever existed.
The first and main question for determination therefore is who is or has been the Temporal Occupation Licensee of the land in dispute. The evidence is oral and documentary. It is however clear from the general flow of evidence that almost every material assertion in the oral testimony of witnesses on this issue of the licensee of the land in dispute was supported by documentary evidence. I have earlier above made reference to the findings and conclusions of the two courts below after their respective evaluation exercises. Let me also embark upon an evaluation of the oral and mass of documentary evidence, as I am entitled to do, to ascertain the party in whose favour it preponderates.
The 1st Plaintiff testifying as the only witness for the Plaintiffs’ case was, as at the 18/7/97 when he testified, the Chairman of the Plaintiffs’ Sand and Gravel Dealers Union, Mile 3 Diobu Port-Harcourt. According to him the land was given to them in 1980 for temporary occupation by the Rivers State Land and Housing Ministry and they have since been paying to the Government of Rivers State temporal occupation fees on the land evidenced in receipts of payments. He tendered 11 of such receipts which were admitted as Exhibits “A” to “A10”. And for such payments they were also issued Temporary Occupation Licenses. 9 of such licenses were admitted in evidence as Exhibits “B” to “B8”. According to him, the Defendant/Respondents belong to the Drivers and Loaders Union at the Mile 3 Sand and Gravel Dump and that they (Defendants) belong to their parent Road Transport Workers Union and that they were given a piece of land opposite the goat sellers in Mile 3. The Defendants realising that the Plaintiffs’ site was better than theirs decided to use the site with them upon payment of N10 per tipper driver and W5 per loader. After sometime they (Defendants) refused to pay any more. They sued the Defendants/Respondents before the Rebisi Council of Chiefs who decided in favour of Plaintiffs/Appellants. The decision, according to the witness was in writing and it was admitted as Exhibit “C”.
The Defendants/Respondents did not comply with the decision in Exhibit “C”. The witness tendered receipts of other statutory payments which were evidenced in Exhibits “D” – D2 and “E” – “E3”. According to the witness the Defendants/Respondents applied to the Port-Harcourt City Local Government to build temporary structures and Exhibit “F” was the reply. They eventually issue the Defendants with a Notice to Quit Exhibit “G”. Upon receipt of the Notice to Quit the Defendants/Respondents became violent in the wake of which properties were destroyed and some stolen. Receipts for the purchase of some of the properties allegedly destroyed and/or stolen were admitted as Exhibit “H” “HI5”. They Plaintiffs/Appellants then filed this action. He also gave some evidence of special and general damages for trespass and unlawful damage. He denied the existence of a Joint Tippers Drivers and Sand and Gravel Dealers Union. He denied any knowledge of an application in 1975 encompassing both the Plaintiffs and Defendants. He admitted that Chief F.S. Ucheoma was once their Chairman. He said the Defendants had stayed with them from 1983 to the time he gave his testimony.
The DW1 was Godwin Rufus Allison from the Lands and Housing Bureau of the Governor’s office. He said the Temporal Occupation Licenses were issued in respect of the land in dispute to the Tipper Drivers and Sand and Gravel Dealers Union. He tendered the receipt for payment of Temporal Occupation License for 1983 and same was admitted as Exhibit “K” while the Temporal Occupation License for the same year was admitted as Exhibit “L”. He also tendered the receipts for 1984 as Exhibit “M”. He tendered Exhibit “O” being the receipt for 1985 and Exhibit “P” the license for 1985. According to him, he was the coordinator of all Temporal Occupation Licenses. He admitted under cross-examination that all payments for licenses by and receipts issued for the years 1986 to 1996 were made to the Plaintiffs’ Sand and Gravel Dealers Union but insisted that all licenses were issued to the joint Tipper Drivers and Sand and Gravel Dealers Union.
The DW2 Princewill Umezuruike Iwu Nwakanma was the City Engineer working for the Port-Harcourt City Local Government Council. He too referred to the land in dispute as that over which the Tipper Drivers and Sand and Gravel Dealers Dump are joint licensees.
The DW3 was Chief F. S. Ucheoma. He testified to the effect that the Plaintiffs’ Sand and Gravel Dealers Union are the exclusive licensees to the land in dispute. They brought in the Defendants to the land who were paying rents to them. He said he was Chairman of the Sand and Gravel Dealers Union. He denied that the Tipper Drivers ever formed the same union with them. Boniface Nwala was the DW4. He said the Plaintiffs and themselves are co-members of the Tipper Drivers and Sand and Gravel Dealers Union and that Chief F.S. Ucheoma was their Chairman in 1975. He tendered Exhibit “S” signed by Chief F. S. Ucheoma for the Tipper Drivers and Gravel Dealers Union. Under cross-examination he admitted knowledge about the suit filed by the Plaintiffs against Rebisi Youths who broke into part of the land and against whom they obtained an injunction.
The above represents the substance of the evidence in support of the cases of the parties. In assessing their evidence I should be guided by the principle restated in ATTORNEY-GENERAL BENDEL STATE v U.B.A. LTD (1986) 4 NWLR (Part 37) 547; (1986) 2 N.S.C.C. 954 at 965 that a document tendered in court is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof except in cases where fraud is pleaded. As I said earlier every material assertion in the oral testimony of witnesses was supported by some documentary evidence. Having regard to its rating as the best evidence, let me examine, in some details, the documentary evidence before the Court on this issue of whether it is the Tipper Drivers and Sand and Gravel Dealers Union that has been the licensee of the land in dispute. The mass of documentary evidence includes applications, payment receipts and invoices and Temporary Occupation Licenses. In my view the Temporary Occupation License is the best proof of who was the licensee of the land in dispute in any particular year.
In support of the Plaintiffs/Appellants were tendered and admitted 9 Temporal Occupation Licenses. These were Exhibit “B” for 1982; “B1” for 1986; “B2” for 1987; “B3” for 1988; “B4” for 1989; “B5 for 1990; “B6” for 1992; “B7′ for 1993; and “B8” for 1996. For the Defendants/Respondents 3 Temporal Occupation Licenses were tendered and admitted in evidence. These were Exhibit “L” for 1983; “M” for 1984; and “P” for 1985. It is clear from the licenses that the very first one for 1982 was in favour of the Appellants, the three following years i.e. 1983, 1984 and 1985 were in favour of the Respondents and the rest eight covering the period 1986 to 1996 when this action was filed in favour of the Appellants. Thus from the point of view of licenses issued, the evidence is overwhelming in favour of the Appellants. On this issue part of the evidence of the DW1 from the Lands and Housing Bureau under cross-examination is illuminating. At page 140 of the record he said:-
“Payment was made by them in 1982…….It was the Sand and Gravel Dealers Union that made the payment in 1982…… Counsel for the Plaintiff applies to tender it. No objection. Admitted as Exhibit “Q”. In 1986 payment was made by the Sand and Gravel Dealers Union. In 1987 there was payment made by Sand and Gravel Dealers Union. In 1988 payment was made by Sand and Gravel Dealers Union. In 1989 payment was equally made by the Sand and Gravel Dealers Union and in 1990 the same was done. 1992 the same was done. 1993 Sand and Gravel Dealers Union made payment. The same in 1994 and also in 1996. As I issued the receipts, I issue corresponding licenses. These licenses emanate from our office and they cover from 1986 to 1996. When we issue a license we include the dimensions of the land affected.”
The learned trial Judge while recording the above testimony noted thus:
“(The witness checks through the records of his file in answering all the questions above)”. The Temporary Occupation Licenses covered in the above testimony are those evidenced in Exhibits “B” – “B8”. The DW1 tried to explain away this overwhelming evidence in favour of the Plaintiffs’ Sand and Gravel Dealers Union by asserting that although the licenses were issued in favour of the Plaintiff’s Sand and Gravel Dealers Union, they were in fact issued for the joint Tipper Drivers and Sand and Gravel Dealers Union.
It is my respectful view that that piece of the evidence ought not to have been admitted and acted upon as it goes to no issue, the settled principle of law being that oral evidence cannot be allowed to add to, vary or contradict the contents of a document except where fraud in the making of the document is alleged. See EDUEKU v AMOLA (1988) 2 NWLR (Part 75) 128; GURARA SCURITIES AND FINANCE LTD v T.I.C. LTD (1999) 2 NWLR (Part 589) 29 at 47-48; N.I.D.B. v De-EASY LIFE ELECTRONICS (1999) 4 NWLR (Part 597) 8 at 7. And no fraud was alleged in the preparation of Exhibits “B” – “B8”. On the authority of ATTORNEY-GENERAL BENDEL STATE v U.B.A. LTD (supra) Exhibits “B” – “B8” remain the best proof of their contents and no oral evidence should be allowed to add to, vary or contradict their contents. The result is that the oral evidence of the DW1 to the effect that although the licences, Exhibit “B” – “B8” were issued to the Plaintiffs’ Sand and Gravel Dealers Union, they were in fact issue to and for the joint Tipper Drivers and Sand and Gravel Dealers Union is not a legal evidence and ought not to be acted upon.
Besides, licences were issued over the land in dispute in the joint names of Tipper Drivers and Sand and Gravel Dealers Union for only three years, that is, 1983, 1984 and 1985. Beyond this period and for over ten years before the filing of this action the licences were consistently issued to the Plaintiffs’ Sand and Gravel Dealers Union. No explanation was given for this consistent trend in favour of the Plaintiffs/Appellants.
Besides the documentary evidence which I have analyzed and commented upon there is a piece of the oral evidence of the DW4 Boniface Nwala under cross-examination which tends to support the case of the Plaintiffs/Appellants. At page 149 of the record he said as follows:
“I know that Rebisi Youths have broken into part of the land, subject matter of this action. The youths did not succeed. I know that the Plaintiffs sued them in the High Court. I know that the Plaintiffs obtained an injunction against the Rebisi Youths and that kept them out. We did not allow the Rebisi Youths to build anything.”
It was not explained by way of re-examination how the Plaintiffs/Appellants alone filed the suit and prosecuted it successfully against the Rebisi Youths. Although this fact was not specifically pleaded in the Statement of Claim, it goes to the main issue of their claim to being the exclusive Temporal Occupation Licensees of the land in dispute. It is settled law that the Court will presume the existence of a fact from the existence of one or more proved facts if such a presumption is irresistible or that there is no other reasonable presumption which fits the proved or admitted facts. See the case of HIGH GRADE MARITIME SERVICES LTD v FIRST BANK LTD (1991) 1 NWLR (Part 167) 290 at 308; R v IREGBU (1938) 4 WACA 32. The only reasonable presumption from the trend of the Temporal Occupation Licences issued is that the Plaintiffs’ Sand and Gravel Dealers are the exclusive licenses of the land in dispute.
Despite the above the Court below went to a conclusion which, with respect is not supported by the totality of legal evidence on record. At page 227-228 of the record the Court said:
“In their testimony, the 1st, 2nd and 4th Defendants witnesses through Exhibits F, S, K, L, M, N, O, and P tendered at the proceedings have shown that the claim of the Plaintiffs to excessive possession of the land in dispute is untrue. An objective appraisal of the testimony of all the parties before the Court below show that the land obtained by the Union known as dealers in sand and gravel was granted by the Bureau of Lands Port-Harcourt to the union who at the terms operated as one union prior to 1980. Despite the provocation of DW1, the testimony of the Bureau of Lands office DW4 is explicit and unassailable as to the true position of the plaintiffs and defendants before a dispute arose between the two parties.”
I do not think, with respect, that the findings and conclusion in the above of the Court of Appeal is sustainable having regard to the totality of the evidence on record. As I stated earlier in this judgment the Court below, just as this Court, is in as vantage a position as the trial court to evaluate the evidence, draw its own inferences make such findings as are supported by the evidence and go to the logical conclusion. And the evaluation should of necessity entail an assessment of the evidence of both parties by placing same on that imaginary scale of justice and determine the party in whose favour the balance tilts. And it must be manifest on the face of the record that it was the evidence of both parties that was tested on the imaginary scale. In A. R. MOGAJI & ORS v MADAM RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93 this Court per Fatayi-Williams, JSC (as he than was) laid down the principles governing evaluation as follows:
“… Therefore in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge, after a summary of the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply appropriate law to it.”
See also GILBERT ONWUKA & ORS v MICHEAL EDIALA (1989) 1 NWLR (Part 96) 182 at 208. Can the Court of Appeal be said to have embarked upon any proper evaluation of the evidence contained in the record on the principles enunciated in MOGAJI v ODOFIN (supra) I am afraid it did not and this I say for the following reasons. Firstly, the Court of Appeal per Omage JCA referred to the testimony of the 1st, 2nd and 4th Defendants’ witnesses. It made no reference to the testimony of the 3’d Defendants’ witness whose evidence was a direct contradiction of the case of the defence. Secondly, as if that was not bad enough, he referred to and heavily relied on Exhibits “F” “S” “K” “L” “M” “N” “O” and “P” (Exhibits “L” “M” and “P” being Temporal Occupation Licences) tendered by the Defendants in support of their case and held that the Plaintiffs/Appellants claim to being the exclusive licensees of the land in dispute was untrue. Thus in coming to its conclusion, the Court below made no reference whatsoever to the many documentary Exhibits including the all important nine Temporal Occupation Licences Exhibits “B” – “B8” in favour of the Appellants. The Court of Appeal cannot be said to have embarked on a proper appraisal of the evidence on record in these circumstances. The evaluation was patently one sided. Clearly, the court below failed to place the evidence of both parties on the imaginary scale of justice and certainly there was a likelihood of a miscarriage of justice.
There was yet another error committed by the Court below and about which I have already expressed my opinion elsewhere in this judgment. The Court relied heavily on the evidence of the DWI from the Lands and Housing Bureau to the effect that although Exhibits “B” – “B8” were issued in favour of the Plaintiffs it was in fact issued for the joint Tipper Drivers and Sand and Gravel Dealers Union, describing it as explicit and unassailable. As I have pointed out, this evidence is not a legal evidence on the ground that it was intended to vary or even contradict the contents of the documentary evidence Exhibit “B” – “B8” which is the best evidence. Yet the Court below was evidently swayed by it.
Before going to the conclusion on this issue let me comment briefly on Exhibit “S” dated 2Sth May 1975. It represents an application by the Tipper Drivers and Gravel Dealers Union. No doubt the document supports the Respondents assertion that as at 1975 there existed a joint Tipper Drivers and Gravel Dealers Union. But the document is, strictly speaking, an Application for Temporary Tipper Park. There is nothing in it to show that it was in respect of the Mile 3 Sand and Gravel Dump, the subject matter of this suit or that the Temporary Tipper Park is one and the same thing as the land in dispute.
On this issue of whether or not the Plaintiffs’ Sand and Gravel Dealers Union is the exclusive licensee of the Mile 3 Sand and Gravel Dump, I fancy that the Court of Appeal proceeded on the wrong assumption that because there was some evidence, oral and documentary, in favour of the Defendants/Respondents, their counter-claim succeeded. I have no doubt that there exists some evidence in favour of both sides in the dispute. But justice can only be seen to be done by placing the entire evidence on the imaginary scale of justice and decide the case on the preponderance of evidence.
Finally on this issue therefore, in view of the totality of the evidence and particularly having regard to the fact that nine out of the twelve Temporal Occupation Licences including the very first one issued in 1982 Exhibit “B” were in favour of the Appellants, and the three in favour of the Respondents were for the limited period of 1983, 1984 and 1985 and that thereafter all other licences have been consistently issued for the Appellants and that the suit against the Rebisi Youths over part of the land was single handedly filed and prosecuted to its conclusion by the Appellants, I hold, on the preponderance of evidence, that the Plaintiffs/Appellants are the exclusive licensees of the Mile 3 Sand and Gravel Dump in dispute. And having come to this conclusion, I hold that the counter-claim fails in its entirety. The result is that the judgment of the Court below allowing the counter-claim is hereby set aside. In its place I restore the judgment of the trial court dismissing the counterclaim.
Having come to the above conclusion that the Plaintiffs/Appellants were the exclusive licensees of the land in dispute, the next question is whether or not they are entitled to the damages for trespass and injunction claimed. The case of the Plaintiffs which I have accepted is that by virtue of their being the exclusive licensees of the land in dispute they granted the Defendants the authority to enter into and use the land jointly with them. That after the Defendants’ joint use of the land with them for some time, they (Defendants) started asserting rights as co-licensees of the land and stopped any further payments of rents. In other words the Defendants abused the authority granted them by the Plaintiffs. The settled principle of law is that where a person has entered upon land under an authority given by law or by a person who has title or exclusive possession thereto abuses that authority, he becomes a trespasser ab initio. See AJIBADE v PEDRO (1992) 5 NWLR (Part 241) 257 at 272, where this Court per Nnaemeka-Agu JSC explained the principle thus:
“Blackstone in his Commentaries put it this way:
“where a man misdemean himself or makes an ill use with the authority with which the law entrusts him, he shall he accounted a trespasser ab initio.”
The rationale behind this is that the law adjudges his initial intent on entry by his subsequent conduct. See SIX CARPENTERS CASE (1610) 8Rep 146a, 146b OXLEY WATTS (1985) 1 T.R. 12. In the instant case, the moment the first defendant refused to quit the premises which she had entered lawfully, she become a trespasser ab initio. The 2nd defendant was also a trespasser by her conduct upon entering the premises. So if the Courts below erred at all, it was in their thinking that the 1st defendant’s liability dated from the date of refusal to quit rather than that of the initial entry.”
In this case, therefore, although the Defendant/Respondents’ initial entry onto the land was lawful its being on the authority of the Plaintiffs, by their subsequent assertion of their being co-licensees of the land in dispute coupled with other acts which amounted to abuses of their authority on the land, they become trespassers ab initio entitling the Plaintiff to claim in trespass without the issuance of a quit notice. And having regard to the legal principle that trespass is actionable per se i.e. that a plaintiff who claims in trespass is entitled to recover damages even though he has sustained no actual loss; the Plaintiffs are entitled to damages. The trial court awarded N100,000.00 general damages and I think I should restore that award.
With respect to the special damages claimed the settled principle of law is that special damages must be specifically pleaded and strictly proved. See SHELL B.P. v COLE (1978) 3 SC 183; DUMEZ v OGBOLI (1977) 2 SC 45; SOMMER v FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (Part 219 548 at 560; OKUNZUA v AMOSU (1992) 6 NWLR (Part 248) 416 at 432; OSHUNJIRIN v ELIAS (1970) 1 ALL NLR 153 at 156; A.G. OYO STATE v FAIRLAKES HOTELS (No.2) (1989) 5 NWLR (Part 121) 255 at 278-279. In an attempt to prove special damages the only witness for the Plaintiffs at page 132 of the record gave details of some items allegedly damaged and their monetary values. Some receipts were admitted in evidence but it cannot be ascertained from them the actual quantity damaged and/or stolen and their monetary values. In my view the evidence falls short of the strict proof required in special damages.
Furthermore, the Plaintiffs alleged malicious damage of some of the properties and even alleged that some of the properties were either carried away or stolen by the Defendants. Thus this is a civil suit in which the commission of crime is alleged. The settled principle of law is that where the commission of crime is alleged in a civil proceeding, the person alleging (in this case the Plaintiffs) must prove same beyond reasonable doubt. In support of this principle see H.M.S. LTD v FIRST BANK (1991) 1 NWLR (Part 167) 290 at 302; IKOKU v ORS (1962) 1 SCNLR 307; FAMUROTI v AGBEKE (1991) 5 NWLR (Part 189) 1 at 13. The Plaintiffs/Appellants had a duty to prove beyond reasonable doubt the damages on or theft of their properties alleged in the Statement of Claim. This they failed to do. For these reasons I hold that the claim for special damages or damages to properties was rightly refused by the trial court.
Still on the Plaintiffs/Appellants’ claim for trespass and injunction. It was the submission of the Respondents that the land in dispute was undefined and uncertain and for which therefore the reliefs for trespass and injunction cannot lie. This argument was also submitted at the Court below which was apparently persuaded by it. At page 276 the Court below in its judgment had this to say:
“An order for injunction is applicable to a defined area of land. In the instant case in the court below, the Plaintiffs failed to give any precise or any definite dimensions of the land on which they seek an injunction, its prayers and relief sought must fail.”
In NWOBODO EZEUDU & ORS v ISAAC OBIAGWU (1986) 2 NWLR (Part 21) 208 at 220 this Court, Per Oputa JSC, spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said:
“The identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defence made it one – that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent.”
Now can the Defendants/Respondents be said to have made the identity of the land in dispute an issue in this case Certainly not. It is clear from the pleadings that both parties know the land in dispute. In paragraph 5 of the Statement of Defence the Defendants asserted that “there was no need for a plan as the temporary occupation licence does not convey title but dimensions”. They pleaded in paragraph 4 of the counter-claim that they, in conjunction with the Plaintiffs, developed the site together including the construction and provision of tap water. Can the Defendants, in the face of the pleadings, be held to have had any doubt about the land in dispute I hold that they certainly have no doubt about the land in dispute. Further more it is my firm view that Defendants in a land matter, as in this case, who counter-claim and therein seek the reliefs of joint ownership of the self same land and an injunction restraining the Plaintiffs from doing certain things thereon without their concurrence, cannot turn round to argue that the identity of the land was not established. In my view the very argument is a contradiction to their counter-claim, because they cannot counter-claim over a piece of land which identity they do not know. The court below was clearly in error when it raised the issue of the identity of the land in dispute when such an issue was not raised in the pleadings. Parties as well as the courts are bound by the issues raised by the parties in the pleadings. See OLUFOSOYE v OLORUNFEMI (1989) 1 NWLR (Part 95) 26 OGIDA v OLIHA (1986) 1 NWLR (Part 19) 786; LATUNDE v LAJINFIN (1989) 2 NWLR (Part 108) 177; BAMMGBOYE v OLAREWAJU (1991) 4 NWLR (Part 184) 132.
In view of the foregoing considerations the appeal substantially succeeds and same is allowed. The judgment of the Court below be and is hereby set aside. The judgment of the trial court for general damages and injunction be and is hereby restored. The counter-claim was liable to be dismissed and was rightly dismissed by the trial Court. I assess the costs of this appeal at N50,000.00 in favour of the Plaintiffs/Appellants.
SC.167/2005
