Paul Charlie & Ors. V. Chief E. T. Gudi & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
The appeal is against the judgment of Charles-Granville (J) in suit No.PHC/478/88 delivered on 18th July 2000 at Port Harcourt High Court Rivers State.
The brief facts of this appeal is that at the lower court, the plaintiffs now respondents who were members of the Gudi Family of Abuloma, Port Harcourt, filed a Writ of Summons dated 13/07/1988 and by their amended statement of claim, they sought for:
“i) Customary Right of Occupation but later amended to Statutory Right of Occupancy situate at Gudi Compound Abuloma.
ii) N50,000.00 General Damages for destruction of crops and economic trees on the said land and,
iii) Perpetual injunction restraining the defendants from committing further trespass on the land in dispute.
The respondents also pleaded a survey plan No.CTH 930 – LD as per their paragraph 3 of the amended statement of claim which they claimed, contained the details of boundaries and important features of the land in dispute.
On the part of the appellants who were then defendants at the lower court, denied paragraph 3 of the amended statement of claim and so had joined issue on the identity, boundaries and features of the land in dispute with the respondents. On their part again, the appellants at the lower court, pleaded and tendered in evidence an other Survey Plan NO.BOE/R05/90LD on which they averred that the boundaries and features of the land were different from those relied upon by the respondents.
At the lower court, the respondents as plaintiffs called 3 witnesses who testified to prove their claims. The respondents closed their case, and the appellants called only one witness and tendered their plan Exhibit D which was admitted. At the end of addresses of both counsel, the learned trial Judge delivered his judgment and upheld the plaintiffs/respondents claims – see page 91 of the record.
Dissatisfied with the decision, defendants now simply to be referred to as appellants, filed their notice of appeal containing five grounds, then later, with the leave of this Court on 22-05-2002, an amended notice of appeal containing six additional grounds of appeal making a total of 11 (Eleven) grounds was granted. From this totality of grounds of appeal the appellants filed their briefs and distilled and formulated three issues as follows:
“1. Whether the identify of the land subject matter of this case was in dispute, whether the plaintiffs/respondents proved the identity of the said land to be entitled to the declaration and injunction sought? (grounds 2 and 8)
- Whether the learned trial judge properly evaluated the evidence before him and whether upon the preponderance of evidence the learned trial judge ought to have entered judgment in favour of the plaintiffs (grounds 1, 3, 4, 5, 6, 7, 9 and 10)
- Whether the plaintiffs proved entitlement of damages “for the destruction of the plaintiffs’ crops and economic trees” on the land in dispute as required by law. (ground 11)
The respondents per their written briefs filed on 22-01-2003, formulated their 3 issues similar or identical to the appellants’ 3 issues. I need not to reproduce them. Parties filed and exchanged their written briefs.
I will proceed to parties’ issues one by one and consider their respective arguments.
ISSUE NO. I
Appellants’ argument on issue 1, which is identity of the land and whether the respondents had proved it as their own. The appellants began by asserting that onus is on the claimant to establish his entitlement to a landmass, with ascertained boundaries and that he must show clear identity, with certainty, which if he fails to do, the claimant will loose his case. Counsel for the appellants referred to and relied on EPI v. AIGBEDI0N (1972) 10 SC 53, 59, EZEUDU v. OBIAGWU (1986) 3 SC 1, 26, IBE v. AUTA (1998) 2 NWLR (pt.538) 497. Appellants’ counsel contends that the lower court Judge was in error when he held that there was; no dispute as to the identity of the land. That this error was so because, from the pleadings, it is clear that the present appellants had joined issue with the present respondents on the identity of the land in dispute. Appellants referred to the respondents’ paragraph 3 of their statement of claim, which they pleaded and relied on their plan and was tendered and admitted as exhibit B. Appellants also referred to their own pleadings in paragraph 3 of their amended statement of defence in which they also tendered and admitted exhibit D, which showed the size, shape and feature of the identity of the land in dispute. Appellants are now contending that by the parties pleadings in their respective paragraphs 3 of statement of claim and amended statements of defence, coupled with their respective survey plans exhibits B and D being contrary, their respective identities were opposite, meaning respondents and appellants claim or identity of the land in dispute were joined, which is contrary to the trial court’s findings. The appellants believe that the trial court’s findings is wrong and have urged this Court to hold that the respondents did not prove the identity of the said land as required by law, and that the respondents are not entitled to the reliefs they sought at the lower court.
On the part of the respondents as per their argument on issue 1, which is still the identity of the land in dispute, they submit that the trial judge was right when he held that there is no dispute as to the identity of the land; more so when the defendants (now appellants) did not make it an issue in their further Amended Statement of Defence. Counsel for the respondents contends that the above findings of the trial court were supported by evidence proferred at the trial proceedings. Counsel submitted that an appellate court will not interfere with findings of a trial court, unless such findings are not supported by evidence before the court, and relied on Appeal No. FSC/86/1959 reported in the Nigerian Digest of the Supreme Court Cases (1956 – 84) Vo. 7. Learned counsel for the respondents referred to the evidence of PW1 and DW1 who supported the findings on the identity of the land in dispute. The respondents then urged this court to hold that the trial court had relied on the evidence of PW1 and DW1 as well as the contents of Exhibit B and D who showed that the parties had agreed and knew of the identity of the land in dispute. They urged this court to resolve issue 1 in favour of the respondents.
In my considered opinion, what both parties are raising in their respective issue 1 is just to evaluate the evidence on record relating to the identity of the land in dispute. Parties are bound by their pleadings and the relevant evidence proffered before the court.
The respondents’ paragraph 3 of their Amended Statement of Claim at page 27 of the record states;
“3. The land which is the subject matter in this suit is clearly delineated on Plan No.CTH 93- (L/D) drawn by Chief C. T. Horsfall, B.Sc, FRICS, Licensed Surveyor. The details of the boundaries and the important features are shown on the plan thus:
i. The area of Gudi (plaintiffs) family land is verged Green.
ii. The area in dispute and cause of action in suit No. PHC/286/84 Plan No.CTH 69- L/D verged Brown.
iii. The area of Gudi (plaintiffs) family which was given to defendants by the permission of plaintiffs family which is not in dispute is verged Black.
iv. The portion of Obu and Gosu families land is verged purple.
v. The present cause of action verged Red.
The plaintiffs will further say that the plaintiffs will rely on the plaintiffs’ plan at the trial.”
Also the appellants amended statement of defence at page 18 of the record shows their own paragraph 3 as follows:
“3. The defendants deny paragraph 3 of the statement of claim and will put the plaintiffs to a very strict proof of the averments therein contain. In further answer the defendants will rely on Plan No. BOE/R05/90LD drawn by Mr. B. O. Ejekwu, a licensed Surveyor dated 1/3/90 wherein the entire land of the defendants in this suit is verged GREEN and while the particular area in dispute in this suit is verged GREEN and while the particular area in dispute in this suit on which the building under construction of Captain D. A. Gobo the cause of action is marked and verged RED. While the defendants land in dispute and the cause of action in suit No.PHC/286/84 is verged yellow. The entire land belonging to the defendants is bounded as follows:
a) On the North by lands of Gosu family of Abuloma
b) On the East by a footpath to Ekereme play ground and shrine hut owned by the plaintiffs.
c) On the Southeast by Gosu family land and Obu family land.
d) On South by Gosu family land and on the Southwest by foot path from Abuloma to the Jetty separating the land of defendants from land of Obu and Gosu families.
e) On the West by a road Gosu family which joined the road from Abuloma to the jetty.
The defendants will rely on the said plan.”
Now, by clear reading and examination of the pleadings in appellants’ paragraph 3 being their amended statement of defence where they said:
“…while the defendants land in dispute and the cause of action in Suit No.PHC/286/84 is verged YELLOW,”
is same and identical to the respondent identity of the land shown above in their amended statement of claim as pleaded in their paragraph 3(ii) which says as follows:
- … …
i. … …
ii. The area in dispute and cause of action in suit No.PHC/286/84 plan No.CTH 69 – L.D. verged Brown.”
I am therefore satisfied, that both parties had agreed in principle, that the land in dispute in the loner court, was the same land which the same parties contested in another suit No.PHC/286/84. To support their already agreed fact on the identity of the land in dispute, the respondents had called and relied at the evidence of PW1 who said at pages 48, 49 and 50 of the record as follows:
“I know the land the subject matter … … This land is situated Gudi Compound Abuloma.” – page 48.
The same PW12 further said:
“I showed him the entire land in dispute and asked him to produce a plan for Gudi family which he did.” – page 48.
The witness went further and described the identity of the Surveyor’s plan which was admitted as Exhibit B and he said:
“Turning to the left and facing the land in dispute in front (the northern part) is a portion of land given to the defendants not in dispute… …”
The above quoted evidence of PW1 is an established proof of the identity of the land in dispute, which is supportive of the respondents’ claim for declaration and injunction restraining appellants in the suit.
I am therefore of the considered view that the identity of the land was known and agreed upon by both parties and it was properly accepted by the trail Judge in his judgment at page 86 paragraphs 2 – 3 in which he finally concluded thus:
“… I find as a fact that there is no dispute as to the identity of the land in dispute, more so when the defendants did not make it an issue in their further amended statement of defence. I hold that the parties did not join issues o the identity of the land in dispute.”
The lower court’s findings is strongly supported by the appellants witness DW2 being appellants Surveyor who designed Exhibit D who under cross-examination at page 63 of the record said:
“…I made the plan in 1990. The defendants did not show me the plaintiffs’ part Exhibit B before I carried on the survey. I did not compare the survey plans. I only made a survey plan of the area shown to me. I have seen the area said to be dispute by the plaintiffs on their plan made in 1988. It is not totally different from the area the defendants are saying is in dispute, …” (Italics is mine)
In concluding issue 1. I answer that identity of the land in dispute was proved upon the preponderance of evidence adduced by the respondents at the lower court and therefore, they were entitled to their reliefs for declaration of the land and injunction made against the appellants. Issue 1 is in favour of the respondents.
ISSUE NO. 2
The issue is still urging this appellate court to properly evaluate the evidence and then to find out whether it was proper that the respondents were granted the reliefs sought.
The appellants brief of argument at page 7 thereof has just urged this court to strike out particulars (ii) in their grounds 4 and 7 respectively because of their erroneous and misleading matters which they admitted they had inadvertently concluded. The particulars are therefore discountenanced.
It is pertinent to state that this issue No. 2 is predicated on appellants notice of appeal grounds 1, 3, 4, 5, 6, 7, 9 and 10. These eight grounds are all complaining on the wrong evaluation of evidence found by the learned trial judge. I still remember that the complain of the appellants in issue No.1 which has already been concluded, was nothing but to evaluate evidence of both parties raised in appellants’ grounds of appeal No.2 and 8. The general contention of the appellants in issue No.2 therefore is that the findings of the learned trial judge is perverse, because according to them, the trial court wrongly evaluated particularly the appellants evidence before the court.
In their arguments they averred that at page 89 lines 16 – 20, learned trial judge said that under cross-examination DW1 had stated thus –
“the marriage between Amato and Omoni Gudi’s mother was by way of Igwa System of Marriage and that therefore Omoni Gudi the product of the marriage belong to Gudi family, and so Omoni Gudi himself cannot inherit the line of property of this biological father Amato”-
Learned counsel for the appellants then submitted that a look at the above quoted evidence, it would show that DW1, never made that statement while he wars under cross-examination. That based on the alleged evidence, the trial court was on a voyage of his own perceived cross-examination, that the trial Judge on the same page 89 of the record, posed the question whether based on the evidence in cross examination referred to Omoni Gudi could he be granted land by the appellants who are of the same lineage with his father Amato, who, having been born under the said Igwa System of Marriage was excluded from inheriting property from the line of his blooded father. Counsel further submitted that it was in answer to that question that made the trial judge to accept or believe the history or traditional evidence of title proffered by the appellants. Appellants’ counsel then concluded this particular small issue that the conclusion of the trial judge by not to accept their own traditional evidence, cannot be sustained, and they urged this appellate court to hold so. Their further reasons for their submission is that:
“(a) that there was no evidence before the court and it was not the case of any party(ies) that under Abuloma Custom land cannot be granted to a person born under the “Igwa System” by member of his father’s family;
(b) that the granting of a right has a different meaning from the right of inheritance. Learned counsel contents that to grant men to bestow on a person a right not ordinarily resident in the person, whereas, to inherit means to take as heir on death of an ancestor; and to take or receive as a right or title by law from at ancestor at his death;
(c) that from the evidence on record, the case of the appellants all along is that, the respondents’ Chief Omoni Gudi and Chief Simon Gudi came on the land in dispute as a result of the grant made to Amato, father of Omoni and brother of Simon and not as a result of inheritance;
(d) that there was no evidence before the learned trial Judge to show that the grant to Amato to his son, who is a member of another family is inconsistent with any customary law, custom or tradition failure of the trial Judge to proper evaluation of the evidence on the above law, custom and tradition of Abuloma people made him (judge) not to understand the cases of the parties before him.”
Learned counsel for the appellants further referred to page 88 lines 27 – 30 of the record of appeal where the trial judge said thus:
“The defendants through DW1 under cross-examination admitted that Ekwebelem is the slave of Derikoma the defendants ancestor.”
Learned counsel further contended that the trial judge was not true, when he said the above quoted passage is from a cross-examination. Counsel has referred to pages 60 – 61 of the record and clearly stated that no such fact is stated in the cross-examination of DW1. That this false statement of the trial judge had influenced his wrong conclusion which is to the effect that he preferred the traditional history of the respondents, which counsel contends, should not have been accepted. Appellants counsel still referred to page 88 of the record where the trial judge said he was in agreement with the respondents that apart from the temporary building of the respondents and the tomb of late Simon Gudi as shown on Exhibit D, there was not evidence that the appellants had any property on the land in dispute. Counsel then submitted that the findings of the trial judge in regards to Exhibit D is erroneous and misleading. That though Exhibit D is from themselves (appellants), the area verged green shows they have so many properties owned by appellants family members such as houses owned by Madam Sibo Derikoma, Albert Derikoma, Atele Derikoma, etc, etc.
The appellants’ further argument in support of their issue No. 2 is that, the trial Judge, did not properly evaluate the evidence before him, especially the evidence of PW1 and PW2 which were to the effect that by the circumstances of the birth of Derikoma, being a product of Igwa system of marriage, he and his descendants, including the appellants, belong to Gudi family and therefore, the requisite right to Gudi family land including the land in dispute. Appellants, then submitted that it was perverse of the trial Judge to declare the, land in dispute in favour of the respondents only.
Appellants contend that at page 56 lines 16 – 18 of the record where PW2 said:
“By tradition Derikoma is entitled to the share of property of Gudi House. By tradition the descendants of Derikoma are also members of Gudi House. Under our tradition all members of a House own the House property in common”
this evidence had impugned the respondents’ case at the lower court which was for an order of perpetual injunction to restrain the appellants over the common property when under the traditional law each individual member of the Gudi House and the Derikoma house have a right of use over the property as proffered by PW2. Appellants referred to the case of TAYLOR v. WILLIAM (1935) 12 NLR 67 at 70. They urged to hold that it was not probable that common members of a family could debar other common members from partaking in the rest of the property of the same family as stated by PW2.
In appellants brief of argument paragraph 3.213, they reasoned that the findings of the trial Judge that the present respondents had pleaded and proved possession of their ancestral/temporary building on the land in dispute and that the court was entitled to apply Section 146 0f the Evidence Act 1990 in favour of the respondents was an error.
They submitted that S.146 Evidence Act 1990 is a weapon of defence only, but not a weapon of offence. They urged this appellate court to so hold and referred to IDUNDUN v. OKUMAGBA (1976) 1 NWLR 200, 211.
In concluding their argument on issue No. 2 again, the appellants raised the issue that late Simon Gudi enjoyed a temporary grant of the hut in a small part of the land in dispute. That it was the appellants’ family that made the grant to Simon Gudi. That in their exercise of their right to ownership, the appellants prevented the grantees from putting the land to use which took place in 1962-3 and again, it was prevented in 1982 – 1983. That when Simon Gudi died, the respondents wanted to bury him on the land in dispute and to exercise their right of possession, they instituted a different suit No.PHC/286/84 at the High court which was granted in their favour, but that the present respondents who by then were the defendants in that other case, appealed to this Court (Court of Appeal), was set aside and were allowed and they buried late Simon Gudi on the land in dispute. The appellants have now urged this Court to hold that the trial Judge failed to adopt the correct approach in evaluating “these pieces of evidence” and came to the wrong conclusion. They further assert that it has been said time and again that the best way to test traditional history is by reference to the facts in recent years as established by evidence and by seeing which of two computing histories are more probable. They referred to OKAFOR v. IDIGO (1957) WLR 1023, 1026-7; (1984) 1 SCNLR 418, OLAWUYI v. ADEYEMI (1990) 4 NWLR (pt.147) 746, 784. They urged this court to dismiss the respondents, claim in its entirety.
On the part of the respondent in respect to issue No. 2 in their brief of argument, they contend that the appellants accusation on the trial Judge that he failed to evaluate or did not properly evaluate the evidence, is a most unfair comment on a Judge who had taken great pains in considering all the facts on the preponderance of the totality of evidence before the trial court, and that the trial court had weighed the evidence before him on the imaginary scale by applying the following steps:
“a) pleadings of both parties as shown on the record of appear;
b) both parties witnesses evidence; and
c) the written or submitted addresses of both counsel and reply.”
Learned counsel for the respondents further contended that the trial courts judgment at pages 73 – 92 of the record has shown that the trial Judge had property considered all the facts stated above. Counsel then contend that, had the appellants thoroughly looked at the whole pleadings and the supporting evidence of both parties at the lower court, they would not have filed their notice and grounds at all. That the appellants brief had quoted series of trite principles of law, which are, not issues in controversy. That the appellants took only a “cursory look” of the evidence in their brief of arguments. That the appellants also used the meaning of granting right of inheritance from “Black Laws Dictionary” instead of the clear traditional evidence in Abuloma which was before the trial court. the respondents concluded their reply to appellants argument on issues 2 and said, the findings of the trial judge were based on the evidence before the court and that the Judge made use of his opportunity of hearing and seeing the parties and their witnesses and they urged this court to hold that the trial court Judge was not perverse nor was he found in error in his judgment; and that this Court should affirm the judgment of the lower court.
I have carefully considered the arguments of both counsel on issue 2.
However, before I come to consider the above particular complain that the Judge refused to note the houses of other appellants, families, I have to know if there is any evidence to the effect that Madam Sibo Derikoma, Albert Derikoma and Atele Derikoma had houses on the land in dispute. I have carefully read the evidence of PW1, PW2, DW1 and DW2, there is no iota of truth that the appellants had testified to the effect that Madam Sibo Derikoma, Albert Derikoma and Atele Derikoma had houses on the land in dispute. It is total dishonesty and deliberate misleading for a counsel to file his brief on false and self-fabricated evidence, which was never heard at the trial court. Appellants brief of argument at pages 9 – 10 paragraphs 3.27 is completely hallow and therefore fabrication by appellants counsel. A proper evaluation of the evidence of the appellants’ DW2 is at pages 62 – 63; and this piece of evidence of DW is that he was taken to the land in dispute by the appellants and then he surveyed the land in dispute and he tendered same into evidence as exhibit D. The very make of Exhibit D on oath stated under cross-examination as follows:-
“I made the plan in 1990. The defendants did not show me the plaintiffs; plan exhibit ‘B’ before I carried out the survey. I did not compare the survey plans. I only made a survey plan of the area shown to me. I have seen the area said to be in dispute by the plaintiffs on their plan made in 1988. It is not totally different from the area the defendants are saying is in dispute. The area verged Red on Exhibit ‘D’ verged Read is the cause of action. In my own plan Exhibit ‘D’ vergen Read is the cause of action. I did not see any crops in the area verged Red and indicated as cause of action in the defendants plan Exhibit ‘D’. I did not see any iron bars on the area marked cause of action on the defendants plan Exhibit ‘D’. I did not see blocks in the area marked cause of action in the defendants plan Exhibit ‘D’.
I did not see plantain stands within the area marked cause of action and verged Red on the defendants plan Exhibit ‘D’.
Witness is asked to look at exhibit B (the plaintiffs plan). I see that the Surveyor indicated plaintains within the area verged Red. That area was under building construction. The witness who said he showed plantains is not saying the truth because he did not show plantains. I went to this very land in dispute and the witness showed me this land in dispute. I did not copy the Survey Plan of the plaintiffs. Exhibit ‘B’ I put in the details I saw. I did not see plantains there. I went there myself. I don’t know of what my clients said. I went to this land because they engaged me. I have not known the land before. The defendants told me the names of the boundary neighbours at the area of the cause of action. (Italics is mine)
I am satisfied that the evidence of DW1 was so much contradictory to the evidence of DW2 who was surprisingly engaged by DW1 to draw and design the plan exhibit D. On what basis can an honest counsel, who is in the castle of justice, deliberately accuse a trial Judge, who has the advantage of seeing and hearing as well as writing in his own hand, the evidence of witnesses before his court?
This is completely unacceptable and counsel is reprimanded to avoid such un-established accusation. In addition to my views on the wrong accusation made by the counsel against the learned trial judge, it is necessary for me to answer state that the appellants’ issue two(2) is based on the 8 grounds of appeal and therefore it has to be remembered by the appellants that the major issue before the court was and is still the land in dispute. This land in dispute is marked red in exhibit B, which was tendered and admitted by the respondents. In their own way, the appellants tendered and was admitted exhibit D and is also marked red. It is clear in the evidence of appellants’ DW2 at page 63 of the record that it was a total lie for any one to say that there were economic trees and crops on the land marked red in Exhibit D which he was invited by the appeal to plan and he did the plan. If the appellants are now saying that the learned trial Judge had no reason for the finding that the appellants had no property on the land in dispute as per their concluding submission at their paragraph 3.27 of the brief, that submission is a total misconception of the main plank for determination before the trial court, which is the land in dispute. Their total misconception is that they are relying on irrelevant allegation on possession of properties owned by Madam Sibo Derikoma, Albert Derikoma and Atele Derikoma as well as crops and economic trees in the area verged green in the parties’ plans – Exhibits B and D. Moreover, the respondents had clearly pleaded and supported their solid evidence that the land in dispute did not include the land granted to Ruhu on the basis of which the appellants are claiming the adjoining land. It is therefore clear that the case at lower court was for the land in dispute marked red, and not the land marked green or blue or brown or purple, etc., etc. The learned trial judge was never perverse in his findings that the appellants had no property on the land in dispute. It was well established.
Appellants’ arguments in their brief in paragraphs 3.28, 3.29. (3.211, 3.212, 3.213 and 3.214 whatever they refer to) are of no use because the complaints, are just on the evaluation of cross- examination on minor arguments between the appellants and the respondents. On historical evidence, the respondents had established their own aspect of inheritance of their land from Elivahli the founder of Gudi House to Chief Aka Gudi to Chief Simon Gudi to Chief Omoni Gudi to many others before PW1 became the Chief of Gudi House. See evidence’ of PW1 from page 48 to pages 52 – 53 while under cross-examination.
But the root of title of the appellants in respect of the land in dispute started from Ruhu who was a daughter of Gudi family who became pregnant not by marriage but from a loose sexual relationship with Opuda Otopo, Ruhu got two children and the two sons inherited the land given to Ruhu by Aka Gudi. These show that the appellant got the land (not the land in dispute) being other parts of Gudi house through Ruhu, a daughter of Gudi. Therefore their land of inheritance to Gudi house is limited only to the land freely given to Ruhu who gave it to her son Derikoma, two also gave to his slave Ewebelem, who gave birth to Obinachi, then to the appellants who are named great, grand children of the slave Ekwebelem – see evidence of PW1 at page 49 of the record. I therefore resolve issue 2 in favour of the respondents.
ISSUE NO.3 – AWARD OF DAMAGES:
The arguments of the appellants on award of general damages which was granted to the respondents at the lower court is that the respondents’ claim for damages was on the claim that their economic crops were destroyed. That the allegation of destruction was criminal in nature and that the respondents as plaintiffs should have proved it beyond reasonable doubt. They urged that it be held that respondents failed their proof for damages.
On the part of the respondents on issue 3, their argument is that: general damages need not be specially pleaded nor strictly proved. That at the trial court, the second claim was N50,000.00 damages for the crops damaged by the appellants and that after the evidence of PW1 at pages 48 – 50, it was properly considered and the trial Judge granted them damages of only N10,000.00. That the lower court had used the principle on damages in the case of BEACHAM GROUP LIMITED in [1985] 3 NWLR (Pt.11) 113 where it is stated that general damages as that: law will presume to be the natural or probable consequences of the act complained of respondents urged this court to hold that the general damages of N10,000.00 granted by the lower court is not too high nor too law in view of the damages sought by the respondents.
I am of the considered view that issue 3 being general damages is very simple. The claim before the trial court was purely civil in nature and a trial court will consider the preponderances of evidence by the parties, criminality was never an issue in the case right from the beginning; to the end. No Police criminal investigation was involved in the appeal at hand. The claim by the appellants that the respondents were expected to prove the destruction of economic crops beyond reasonable doubt is uncalled for. The trial lower court was not hearing proceedings as a criminal court.
In the cases of Ediagbonya v. Dumez (Nig.) Ltd. (1986) 3 NWLR (Pt. 31) 753, 754 it is clear that an appellate court will not interfere with finding of a trial court on award of damages, unless the appellate court is fully satisfied that the trial court had acted on a wrong principle of law as to make it erroneous estimate of the damages to which the claimant would be entitled to. I therefore resolve issue No. 3 in favour of the respondents.
In the final analysis, having resolved issues 1, 2 and 3 in favour of the respondents, I am of the view that the appeal has no merit and is hereby dismissed with a cost of N10,000.00 in favour of the respondents and against the appellants.
Other Citations: (2006)LCN/1971(CA)
