Ozibo Local Government & Ors V. Hon. Justice F. C Abosi (2016)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the decision of Hon. Justice A. A. Nwaigwe of the Ebonyi State High Court delivered on 21/10/13 wherein His Lordship found that the plaintiff (herein respondent) proved his case on the balance of probabilities and that he was entitled to the reliefs sought. To this effect, His Lordship entered judgment for the respondent against the defendants (herein appellants) jointly and severally as follows:
1) Declaration that the plaintiff is the person entitled to a grant of Right of Occupancy in respect of all that piece or parcel of land situate at No. 6 New Market Road, Abakaliki subject matter of a Deed of Lease registered as No. 86 at Pg. 86 in Vol. 6 of the Lands Registry, Abakaliki.
2) Perpetual injunction restraining the defendants by themselves, agents or privies from committing further act or acts of trespass on the said land subject matter of this suit.
3) N50,000 damages for trespass against the defendants.
The facts that led to this appeal are as follows:
The plaintiff by his amended Statement of Claim filed on 30/05/07 claimed against
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the defendants as follows:
a) Declaration that the plaintiff is the person entitled to a grant of Right of Occupancy in respect of all that piece or parcel of land situate at No. 6 New Market Road, Abakaliki subject matter of a Deed of Lease registered as No. 86 at Pg. 86 in Vol. 6 of the Lands Registry, Abakaliki.
b) The sum of N5m as general damages for trespass.
c) Perpetual injunction restraining the defendants by themselves, agents or privies from committing further act or acts of trespass on the said land subject matter of this suit.
The learned trial judge after considering all material facts placed before him, held that the defendants have no defence in this suit. He also stated that the plaintiff had proved his case on the balance of probabilities and that he is entitled to the reliefs sought. To this effect, His Lordship entered judgment for the plaintiff against the defendants jointly and severally.
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Dissatisfied with the judgment of the trial Court, the appellants initiated this appeal by an amended Notice of Appeal filed on 3/3/14 and deemed filed on 18/3/14. Records were transmitted on 17/1/14. The appellants?
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amended Brief was filed on 3/3/14 and deemed filed on 18/3/15. Appellants? reply brief was filed on 1/5/15. Respondent?s brief was filed on 18/3/15.
In the appellants? brief settled by Emeka Uwakwe Esq, two issues were identified for determination as follows:
1) Whether on the state of the pleadings between the parties and proceedings in Court, it was legally correct and factually defensible for the lower Court to hold that the identity of the land in dispute is not in issue between the parties.
2) Whether it was justifiable for the learned trial judge to enter judgment for declaration of title, damages for trespass and injunction over the land situate at No. 6 New Market Road, Abakaliki in favour of the respondent when there was no evidence that the parcel of land upon which the appellant erected a building on 25/12/02 formed part of the said No. 6 New Market Road, Abakaliki.
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In the respondent?s brief settled by B. N. Onuoha Esq, the two issues identified for determination by the appellants were adopted by the respondent.
I too adopt the issues for determination as set out by the appellant?s counsel.<br< p=””
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ISSUE ONE
Whether on the state of the pleadings between the parties and proceedings in Court, it was legally correct and factually defensible for the lower Court to hold that the identity of the land in dispute is not in issue between the parties.
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Learned appellants? counsel argued that it is erroneous of the lower Court to hold on pg. 243 of the record that the identity of the land in dispute is not in issue. He contended that the parties in their pleadings are in disagreement as to the address and location of the piece of land where the appellants erected the structure in dispute on 25/12/02. Counsel submitted that on pgs 44- 46 paragraphs 4,5,6,7 and 9 of the amended statement of claim, the respondent pleaded that trespass was committed on 25/12/02 by the appellants on the piece of land situate at No. 6 New Market road, Abakalilki acquired through a Deed of Lease (Exhibit A) by the respondent?s late mother and that the said land had a structure on it where they had rent paying tenants carrying on their businesses there. The respondent on pgs 21- 22 paragraphs 3, 4, 5 of the reply to the statement of defence pleaded that the land in
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dispute was not part of Abakpa main market but their own private land granted to their predecessor-in-title in Exhibit A. Counsel submitted also that the appellants on the other hand on pgs 124- 126 paragraphs 5,6,12,13,13A and 14 of their amended statement of defence pleaded that the parcel of land where the 2nd – 5th appellants erected a structure on 25/12/02 is an empty space between Abakpa main market Abakaliki and called Expressline extension which was allocated to the 2nd to 5th appellants by the 1st appellant being the bonafide owner.
Counsel contended that every disputed question of fact to be an issue for trial and factual disputation must arise from pleadings filed by the parties in Court to be cognizable in law. He cited Otanma v. Youdubagha (2006) 2 NWLR Pt. 964 Pg. 30, DALEK v. OMPADEC (2007) 7 NWLR Pt. 1033 Pg. 4.
Counsel argued that since parties were in dispute as to the location and ownership of the land in question in their pleadings, at the lower Court, the learned trial judge erred when he held that the identity of the land was not in issue. He cited Gbadamosi v. Dairo (2007) 3 NWLR Pt. 1021 Pg. 282.
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Counsel contended that
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if the location and address and boundary neighbours of the land had not been in dispute in the pleadings, there would have been no need to embark on a visit to the locus in quo as done by the Court. He contended further that even before the visit to the locus in quo, a substantial part of the cross-examination of DW1 by counsel dwelt on trying to ascertain the location wherein the building was erected on 25/12/02 at No 6 New Market road Abakaliki instead of No. 3 ExpressLine extension, Abakpa main market. He cited Eigbe v. NUT (2006) 16 NWLR Pt. 1005 Pg. 244, Okwaranja v. Eke (1996) 3 NWLR Pt. 436 Pg. 335, Alao v. Akano (2005) 126 LRCN 837.
Counsel submitted that assuming according to the lower Court that the identity of the land in dispute is known to the parties and that the tendering of the survey plan of the disputed at the trial is unnecessary, it is still premature for the respondent at this stage to coast home in victory. He argued that the respondent failed to plead any boundary features or neighbours of the land in dispute. He cited Oluwole v. Abubakar (2004) 10 NWLR Pt. 882 Pg. 549.
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Learned respondent?s counsel submitted concerning
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the first issue that the identity of the land in question was never in dispute as both parties and the Court were well aware of the identity of the land. He contended that on pgs 37- 41; paragraphs 4- 11, pg 45; paragraph 8 of the record of the amended statement of claim, pg 57- 58 in the amended reply to the statement of defence, pg 124 of the record, the parcel of land in dispute; No. 6 New market road, Abakaliki was made quite clear and whatever is admitted needs no further proof. He cited Oguanuhu v. Chiegboka (2013) 32 WRN 1, R.C.C.N Ltd v. RPC Ltd (2005) 24 WRN 1.
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Counsel submitted that the appellants clearly admitted the original ownership of the land in dispute to be with the Agbaja Unuhu Community- the same community that granted the respondent?s mother lease over the land. He submitted further that the Deed of Lease from Agbaja Unuhu Community with survey plan no IN/54 was tendered. He submitted also that the trial Court visited the locus in quo as can be seen on pgs 260- 263 of the record and the title document of the respondent?s mother to the land was admitted in evidence as Exhibit A. He also submitted that PW1- PW4 were quite
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clear in their evidence that the part of No. 6 New market road, Abakaliki where the appellants erected their building used to stand a fruit tree and this was the same place the Court visited. He cited Dakolo v. Rewane- Dakolo (2011) 50 WRN 1, Nwagu v. Fadiye (2012) 13 NWLR Pt. 1318 Pg. 547.
Counsel submitted also that on pages 60-62 of the record from the evidence of PW1 in his Written Statement on Oath and pgs 63- 64 of the record, PW2?s Written Statement on Oath, PW3 on pg. 63 in his evidence, the identity of the land was made clear. In paragraphs 5 and 6 of the amended statement of defence, pgs 124- 126 averred that the land in dispute forms part of a larger land belonging to Agbaja Unuhu Community of Abakaliki. Counsel contended that while the respondent tendered title document admitted as Exhibit A, the appellants who in their averment in paragraph 6 of their amended statement of defence relied on a Deed of Lease registered as No. 14 at Pg. 14 Vol. 1 as giving ownership of the land in dispute to the 1st appellant never produced or tendered the said document.
RESOLUTION
The appellants have made a fuss to the effect that the identity of
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the land is in dispute. The learned trial judge had made a finding that the parties are referring to the same parcel of land albeit with different names. It is where there is no specific finding of the trial Court in this regard or where there is a quarrel as to the finding of the trial Court that there can be a valid conflict. The appellants did not deny the trespass to the land on 25/12/02. The failure of the appellants to tender their Deed of Lease is fatal to their defence. It has been held by a long line of cases as far back as Baruwa v. Ogunshola (1938) 4 WACA 159 that the onus lies on the person who seeks declaration of title to land to show without any doubt the specific portion of land he claims so that any declaration made would attach to the correct parcel of land. See Olusanmi v. Oshasona (1992) NWLR Pt. 245 Pg. 22; (1992) 6 SCNJ 282.
The position of the Supreme Court is also that where the parties by the evidence adduced are ad idem on the identity of the land in dispute, the fact that different names are given or ascribed to it by the different parties or that the area where it is located is called different names is not fatal to the case of the
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party claiming. See Makanjuola v. Balogun (1989) NWLR Pt. 108 Pg. 192.
The settled position of the Supreme Court also is that where there is actual doubt as to the identity of the land in dispute a survey plan would assist the Court to determine the boundaries and thus the identity of the land. However where there is no real doubt as to the identity of the land in dispute, a survey plan is not necessary to prove the plaintiffs? claim. See Aremu v. Adetoro (2007) 16 NWLR Pt. 1060 Pg. 244.
I have read the record. While the Respondent described the land in dispute as No. 6 New Market Road, Abakaliki, the Appellants described it as No. 3 Express Line Extension. The respondent tendered a Deed of Lease but did not tender a survey plan, the appellants pleaded a lease but did not tender it at all. Hence the learned trial judge prudently paid a visit to the locus in quo. Questions were put to the main disputants by adverse parties. The learned trial judge found on the issue of whether the address given by the respondent was newly written on the structure found behind the land in dispute as follows on pg. 242 of the record:
?I observed the said number
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as written on the wall of the building and found that it is as old as the building. It was not new as to suggest that it was written for the purpose of the visit to the locus in quo; I so hold.”
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I have no reason to disagree with the above findings of the learned trial judge in the circumstances. I have read the proceedings of the Court on 16th April, 2013 at the locus in quo. It is clear that the existing building owned by the respondent?s mother which devolved on her children was the No. 6 New Market Road and had been there for decades. The front of the building to the main road is a set back for the building wherein tenants in the building had plied their wares for years without let or hinderance. There was a tree planted there to shade the traders. That tree was uprooted to make way for the appellants? building. In sum, I find that there was no doubt as to the identity of the land in dispute. Whatever seeming dispute was contrived by the appellants to throw wool over the eyes of the learned trial judge who immediately however saw the light after the visit to the locus in quo. This issue is resolved against the appellants. Hence the judgment
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of the Court was right in pg. 225 of the record. Counsel contended that a document pleaded and not produced in evidence is deemed abandoned. He cited Ogbebor v. Ihasee (2013) 42 WRN 57, Abubakar & Anor v. Joseph & Anor (2008) 50 WRN 1.
ISSUE TWO
Counsel argued that the judgment of the lower Court is against the weight of evidence. He submitted that the lower Court was wrong to have granted the respondent the declaration of title to the land on which the appellants erected a building on 25/12/02 when there was no evidence before the Court that that portion of land formed part of the land granted to the respondent?s predecessor-in-title vide Exhibit A.
Counsel argued that the issue which remains unaddressed by the lower Court is whether the building erected by the 2nd to 5th appellants on 25/12/02 was at No. 6 New Market road, Abakaliki as pleaded by the respondent or whether it was erected at an empty space within Abakpa main market and called No. 3 Express Line extension as pleaded by the appellants.
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Counsel argued also that since the appellants disputed the location and ownership of the land in question, the onus fell on the
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respondent to prove that the parcel of land with the building housing the rent paying tenants called No. 6 New Market road, Abakaliki was allocated to her mother vide Exhibit A and also that the empty space in front wherein the appellants erected their building formed part of the said land. He cited Adu v. Gbadamosi (2009) 6 NWLR Pt. 1136 Pg. 110.
Counsel submitted that there was no nexus between the area of land granted in Exhibit A and the empty space wherein the appellants erected their building. He argued that during the visit to the locus in quo, there was no measurement of the total area (i.e the area of the building identified as No. 6 New Market road, Abakaliki and the empty space in front housing the appellants? building) to determine if the appellants? building was within the radius of 73 sq. yards as granted in Exhibit A. Counsel argued that the respondent did not file any survey plan or plead any boundary features or neighbours in this regard. He cited Abalaka v. Min. of Health (2006) 2 NWLR Pt. 963 Pg. 105, UTB (Nig) Ltd v. Ajagbule (2006) 2 NWLR Pt. 965 Pg. 447.
?He argued that once the evidence in a case is not sufficient for
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certainty on an issue, it becomes speculative for the Court to make a finding of fact on it. He cited Isah v. State (2007) 12 Pt. 1049 Pg. 582, Aminu v. Ogunyebi (2004) 10 NWLR Pt. 882 Pg. 457.
Counsel argued that since there was no evidence from the respondent before the trial Court as to who planted or owned the fruit tree on the vacant space in front of No. 6 New Market road, the evidence of PW2 and PW3 to the effect that the appellants uprooted the fruit tree does not prove that the vacant space forms part of the land in dispute. He cited W.C.C Ltd v. Batalha (2006) 9 NWLR Pt. 986 Pg. 595, Gagarau v. Pashiri (2006) 1 NWLR Pt. 962 Pg. 521, Owena Bank Plc v. Olatunji (2002) 13 NWLR Pt. 781 Pg. 259.
Counsel argued that with the refusal or neglect of the respondent to tender the pleaded plan with No. IN/54 the legal presumption is that if produced in Court, it would be against the respondent?s case. He cited Nigerian Airforce v. Obiosa (2003) 4 NWLR Pt. 810 Pg. 233, Onwujuba & Ors v. Obienu & Ors (1991) 4 NWLR Pt. 183 Pg. 16, Baguga v. State (1996) 7 NWLR Pt. 460 Pg. 279, Agbi v. Ogbeh (2006) 11 NWLR Pt. 990 Pg. 65, Mabogunje v.
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Adewumi (2006) 11 NWLR Pt. 991 Pg. 224.
Counsel argued further that the plan which was pleaded was specifically referred to in Exhibit A while describing the grant made to the respondent?s mother and that the respondent only tendered a site plan in the name of Mrs O. Abosi which was attached to Exhibit A and that this site plan was not even referred to by the Deed of Lease marked Exhibit A. Counsel submitted that this site plan was not signed by any licensed surveyor as required by S. 3 of Ebonyi State Survey Law and it was not expressed to be a survey plan neither did it carry any survey plan no. Counsel argued that Exhibit A has been invalidated by the absence of a survey plan as its accompaniment. He cited Ejilemele v. Opara (1998) 9 NWLR Pt. 567 Pg. 587. Counsel urged this Court to allow the appeal.
Learned appellants? counsel in his reply brief submitted that the respondent having not cross appealed or filed respondent?s notice within time, his argument must be confined to the issues for determination flowing from the grounds of appeal by the appellants. He cited Osazuwa v. Isibor (2004) 3 NWLR Pt. 859 Pg. 16, CSS Bookshops Ltd
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v. RTMCRS (2006) 11 NWLR Pt. 992 Pg. 530. He argued that civil proceedings begin with pleadings by which issues are delimited and joined by the parties, proof of evidence arises only after the pleadings stage. He cited Nkuma v. Odili (2006) 6 NWLR Pt. 977 Pg. 587.
Counsel submitted that the rule of law dispensing with the necessity to file a survey plan by a supplicant for injunction when the identity of the land is known to both parties was misapplied by the Court in the instant case. He argued that the law has always been that the knowledge of the identity of the land by parties can only dispense with the requirement of survey plan but not proof of oral description to the Court. He cited Ajagungbade III v. Adeyelu II (2001) 16 NWLR Pt. 738 Pg. 126, Ichu v. Ibezue (1999) 2 NWLR Pt. 591 Pg. 437, Incar Ltd v. Adegboye (1985) 1 NWLR Pt. 8 Pg. 453. Counsel submitted that it is a cardinal principle of pleading that evidence on a matter not pleaded goes to no issue as parties are not allowed to set up a case at variance with their pleadings in Court. He cited Kalu v. Uzor (2006) 8 NWLR Pt. 981 Pg. 66.
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Counsel submitted that the contention of the
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respondent at paragraph 4.12, lines 1- 3 and excerpts of the evidence of PW2 and PW3 reflected in paragraph 4.15 pg. 8, lines 27- 35 and pg. 9, lines 3- 6 to the effect that the land in dispute is an open space with a standing fruit tree which formed part of No. 6 New Market Road ought to be disregarded having pleaded that the said land which was granted to the respondent?s predecessor-in-title vide Exhibit A and upon which the building housing PW2 and PW3 as rent paying tenants but with no legal backing for failure to trace it to the statement of claim and reply filed by the respondent. He submitted that ground 2 of the appellants? ground of appeal and accompanying part have covered the field of complaints necessary for a holistic determination of the second issue for determination and that the appellants are not bound to appeal against every pronouncement of the lower Court. He cited Adesina v. Adeniran (2006) 18 NWLR Pt. 1011 Pg. 359, Fyneface v. Fyneface (2007) 9 NWLR Pt. 1040 Pg. 588.
Counsel argued that from the contention of the respondent in paragraph 4.28-4.36 that the appellants failed to discharge the onus which shifted on them
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to prove how they acquired the empty space on which they erected a building on 25/12/02, the primary onus is on the respondent as claimant of declaration of title to prove that the land from which the appellant uprooted a fruit tree and erected a building forms part of No. 6 New market Road granted to his predecessor-in-title. Having therefore failed to so plead or file any survey plan, he cannot capitalize on the weakness of the appellants? case to do so. He cited Nwokidu v. Okanu (2010) 183 LRCN 114. Counsel submitted that where the law allows a plaintiff to rely on the weakness of the defence in a situation where it supports his case does not operate to relieve the respondent of the initial onus on him to prove his case on the balance of probabilities. He cited Section 133 (2) of the Evidence Act 2011 and the burden of proof only shifts to the appellants to disprove the case after the respondent has discharged the initial burden on him.
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Learned respondent?s counsel in answer submitted that it was justified for the learned trial judge to enter judgment in favour of the respondent in the suit as he proved his case for the reliefs sought on
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the preponderance of evidence since there was abundant evidence before the trial Court that the parcel of land upon which the appellants erected a building on 25/12/02 formed part of No. 6 New Market Road, Abakaliki.
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Counsel submitted that from the judgment of the Court on pg. 249 of the record, the findings of fact are that it is trite that the burden of proof in a civil matter is proof on the preponderance of evidence. On this, the respondent proved paragraph 7 of the amended statement of claim. The 1st appellant who should have been in possession of the lease registered as No 14 pg. 14 in vol. 1 of the Abakaliki Urban County Council did not give evidence, his failure to do so is fatal to the case of the appellants. Counsel also submitted from pgs 249 and 250 of the record that the trial Court took time to review the defence of the appellants and found as a fact from the pleadings of the defendants and evidence of DW1 that the 1st appellant did not own what it purports to give to 2nd ? 5th respondents i. e the land in dispute. This led to the conclusion of the learned trial judge in pg. 253 that the appellants failed to prove the title of the 1st
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appellant over the land in dispute hence they cannot give what they do not have ?nemo dat quod non habet?. He cited Buhari v. Obasanjo & Ors (2005) 50 WRN 1, OSIL v. Balogun (2012) 38 WRN 143, Ifeta v. Shell Pet. Dev. Co. Nig. Ltd (2006) 32 WRN 1 and Section 133 (1) and (2) of the Evidence Act 2011.
RESOLUTION
Whether it was justifiable for the learned trial judge to enter judgment for declaration of title, damages for trespass and injunction over the land situate at No. 6 New Market Road, Abakaliki in favour of the respondent when there was no evidence that the parcel of land upon which the appellant erected a building on 25/12/02 formed part of the said No. 6 New Market Road, Abakaliki.
Issue two as complained by the appellant is that the respondent did not prove that he is entitled to the portion of the land infront of No. 6 New Market Road, Abakaliki. The learned trial judge found at pg. 252 of the record as follows:
?The DW1 (the sole witness of the defendants) also led evidence along the same line. See paragraphs 5 and 8 of his witness statement on oath which he adopted as his evidence- in- chief in this suit.
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It is contradictory to in one breath say that Ebonyi and Ozibo local government councils were created out of Abakaliki local government council with the former inheriting the assets and liabilities of Abakaliki local government council and turn round in another breath to say that Ozibo local government council was carved out from Ebonyi local government council.”
Also on pg. 253, the judge found thus:
?I agree with the submissions of learned counsel for the plaintiff that the 1st defendant (Ozibo local government council) whom the 2nd ? 5th defendants said they derived title to the disputed land from cannot give to them what he did not have (Nemo dat quod non habet, applies); I so hold. See Bello v. Odutola (Supra) at 150.?
?I agree with the above conclusion. The Court had earlier held that the respondent was in actual physical possession of the building whereby rates and rents were paid by tenants to his parents and now to him. The appellants are not contesting No. 6 New Market Road but the space in front of it where they alleged that miscreants used to gather. They admitted at the locus that the land actually exists in front of
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the house and that the local government acquired it to build shops. No proof of acquisition by government was shown. No actual proof that there was proper allocation to the 2nd ? 5th respondents was adduced. We must remember the evidence of the respondent?s witnesses that the shops were built on Christmas day when there was no one to stop them among the occupants of the house who had gone home for Christmas. Suffice to say that the appellants did not challenge successfully the possession of the respondent of the building on the land or the space in front of the building. I am of the view that the learned trial judge was right in giving judgment to the respondent as he abundantly proved title to the land in front of his house next to the road. This issue is resolved against the appellants. I affirm the judgment of Hon. Justice A. A. Nwaigwe delivered on 21/10/13 in Suit No HAB/29/2003. Appeal Dismissed. N100,000.00 to the respondent against the appellants.
Other Citations: (2016)LCN/8889(CA)
