Registered Trustees of Deeper Christian Life Ministry V. Mr. Joseph Ebhodaghe (2007)
LawGlobal-Hub Lead Judgment Report
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
This is a judgment of CANDIDE-JOHNSON, J. of the Lagos State High Court delivered on 17/01/2014. The Respondent had filed an action by way of writ of summons and amended statement of claim for the following reliefs:
“(i) A declaration by the Court that the claimant is the owner of the piece/parcel of land measuring approximately 1055.864 square Agege Lagos and registered, as No.75 Vol. 2004T at Lagos State of Nigeria lands registration.
(ii) A declaration that, the defendant is a trespass to the piece/parcel measuring approximately 1058.864 square meters situate and being at Mulero Street off Oyewole Road Mulero Agege Lagos and registered as No. 75 page 75 Vol. 2004T at the Lagos State of Nigeria, Land Registration Office Ikeja.
(iii) An order of the Honourable Court awarding the sum of N5,000,000 (five million naira) as general damages against the defendant to the claimant for trespass committed in the claimant’s piece/parcel of land measuring approximately 1055.864 square meters situate, laying and being at Mulero Street, Off Oyewole
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Road, Agege, Lagos and registered, as No. 75 page 75 in Vol. 2004T at the Lagos State of Nigeria Land Registration Office Ikeja.
(iv) An order of perpetual injunction restraining the defendant’s servants, agents privies whosoever or howsoever called from further trespass on the claimant’s piece/parcel of land measuring approximately 1055.864 square meters situate, laying and being at Mulero Street, Off Oyewole Road Agege Lagos end, Registration as No 75 @ page 75 Oyewole road Mulero Agege Lagos and registered at Agege Lagos and, registered as No. 75 page 75 in Vol. 2004T at the Lagos State of Nigeria Land Registration Office Ikeja and for such further orders as the honourable Court may deem fit.”
After trial the trial Court delivered its Judgment in favour of the plaintiff, the defendant dissatisfied with the Judgment filed a Notice of Appeal.
The Appellant’s brief is dated 27/03/2015 and deemed filed on 14/04/2015 same as settled by G. I. J. Akhigbe for G. I. J. Akhigbe solicitors. He formulated ten grounds of appeal at page 266-274 and six issues for determination.
(a) Whether having regard to the documentary and, oral evidence adduced, before
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the Court the Appellant s title to the land in dispute is not superior to the Respondent’s competing title (Ground’s a, b, d, e, f, and g)
(b) Whether the trial Court is right to have embarked on self examination of the Appellant’s survey plans with Respondents survey plans suo muto in chambers without calling on the parties to address him on it thereby denying the Appellant a fair hearing and dental of justice (Ground, C)
(c) Whether the failure of the trial Court to consider at all the Appellant’s defence of laches, acquiescence and equitable estoppel in this Judgment did not amount to dental of fair hearing and, hence perverse Judgment (Ground H)
(d) Whether the award of general damages of N5,000,000 (five million) for trespass and for use and occupation was not excessive without evidence to support the award (Ground I)
(e) Whether the award of N400,000.00 (four hundred thousand) cost was not punitive and not judicially and judiciously awarded (Ground J)
(f) Whether the entire Judgment of the trial Court was not perverse having regard, to the documentary and, oral evidence placed before the Court by the Appellant and,
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the Respondents (Ground K).”
The Respondent’s brief is dated 23/01/2015 and filed on 28/09/20 15 but deemed on 30/09/2015 and settled by Oladele Ojogbede Esq., of Dele Ojogbede & Co. The Respondent adopted the (5) five issues on the Appellant’s brief. I shall adopt the Appellant’s issues but group them thus into 3 issues a & b, c & f, and d & e respectively.
ISSUE ONE (A & B)
Appellant’s Counsel contended that the Respondent tendered 15 documents. He referred to Exhibit 1 of the Certificate of Occupancy dated 03/09/2004.
He contended that same was rejected as not pleaded – at page 50 of supplementary record but proceeded to grant the declaration of title to Respondent based on the Certificate of Ownership with Receipt dated 7/5/1978 it had early rejected. He submitted that Exhibit 2 was the plaintiffs’ root of title but now hung on Exhibit 1 which was neither pleaded. He submitted that a back dated conveyance as in Exhibit 3 ought to be rejected as per SANKY VS. OMAJIKEFE (2014) ALL FWLR (PT.749) 1038.
Appellant canvassed that Exhibit 3, 14, 5, 15 had been altered and were not to be relied upon. He further stated that
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Exhibit 1, 2 & 3 are either inconsistent with one another or have been altered/tampered with or defective and are inconsistent with one another on the same issue. He relied on DANIEL BASSIL VS. FEJELE (2001) All FWLR (PT.51) 1914 at 1928, AKAKE vs. DALALO (2006) All FWLR (PT. 366) 201 @ 229 Para G, KWARI Vs. REJO (2000) FWLR (PT. 22) 1229 @ 1149. DAKOLO VS. REWANE-DAKOLO (2011) FWLR (PT. 292) 16 @ 10. He submitted that Exhibit 1, 2, 3, 14 & 15 cannot confer title on the Respondent.
On issue of possession, Appellant submitted that by virtue of Paragraph 8 of DW1’s statement and Respondent’s statement on oath in Paragraph 11 & 12, 13, & 14 the possession of the property was not in the hands of Respondent and the Trial Court erroneously held that Respondent’s receipts of 1973 is superior to that of the Appellant because it was first in time to that of the Appellant.
Appellant further submitted that the receipts were from different vendors while Exhibit 15 states that 2 plots of land were sold to Respondent at Eroya Estate. He relied on the case of AIYEOLA vs. PEDRO (2014) All FWLR (PT. 744) 17 @ PAGE 31 that where there are
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competing claims, title ought to be awarded to him that has superior title.
He submitted that the documentary evidence was stronger and weightier than the Respondent’s. He submitted that the Appellant’s Exhibit H is first in time and the trial Court did not place it side by side but departed from Exhibit 2, origin of Respondents title and dwelt on his other exhibits, that the Respondents did not succeed in proving title by any of the five ways to land vide IDUNDUN VS. OKUMAGBA 1976 9 10 SC 217.
On the part of the Respondent, Counsel submitted that one common fact of agreement between the Appellant and the Respondent is that the originating title of the disputed land is traced to Olalabi Sulu family per Paragraph 10 of Amended statement of claim and Paragraphs 6 & 7 of Appellant’s statement of defence. He relied on SANNI vs. OKE (1971) 7 NSCC 113 at 116; CLAY IND (NIG) LTD vs. AINA (1997) 8 NWLR (518) 208 at 228.
Respondent’s Counsel submitted that Appellant traced his title to Chief Oyewole who repurchased the land from Rabiu Abiola Olalabi – Sulu vide receipt 22 /6 /88 while Appellant and Respondent in this suit trace all title to
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the original common grantor Olalabi Sulu family and having done this, the onus shifted to the Appellants to show his title as to displace that of the original holder and this he tailed to do. He relied on TEMILE vs. AWANI (2001) 30 WRN 21.
Respondent submitted that head of Olalabi Sulu family, Alhaji Abdul Raliu Abiola Olalabi Sulu gave evidence as CW2 at page 42- 58 of supplementary record and he asserted that he said under cross examination that the land bought by Appellant’s first in line grantor, Chief Adekunle Oyewole from him for N70,000.00 in 1989 is not the same as the land in dispute and was different from the land sold to Oyewole which is far away from the land in dispute and at the line 11-13 of page 56 of Supplementary Record of Appeal. He stated emphatically that the N70,000 he collected from Chief Oyewole is even a part payment for another landed property. He said that the land in dispute here was sold to the Respondent and belongs to him and also that Appellant encroached on another land in Sanusi Street.
On question of adjacency, at page 57 of the Supplementary records of Appeal under cross examination, CW2 stated that he sold
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three piece of land to the Respondent and they are adjacent to another and they faced each other and these correlates with the depositions on oath of CW2 in Paragraph 4 & 6 of his Statement on oath and Paragraph 10 of the Amended Statement of claim by the mutual admission of both Appellant & Respondent, that CW2 was the established owner. He referred to LADIPO & ORS VS. AJANI 1997 NWLR (PT. 517) 356 @ 367; TANKO vs . ECHENDU 2010 S.C. (PT33) @ 169.
Respondent submitted that the pleadings as well as oral evidence by Respondent and predecessors in title remains consistent before the trial Court vide YUSUF vs. ADEGOKE & ANOR (2007) 4 S.C. (PT. 1) @ 160 that EXHIBIT 2 & 14 were issued to Respondent by Olalabi Sulu family and correlates with Paragraph 15 & 16 of the claim and Paragraph 8 & 9 of Respondent’s written statement on oath thereby establishing his root of title.
He submitted that the trial judge accepted the plans and made appropriate findings; He relied on KAHLID ADIBBO TRANS LTD. vs. ODUMADE (2000) FWLR (PT.17) 165; IDUNDUN vs. OKUMAGBA (1976) 9 & 10 SC 227 before submitting that there was no
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miscarriage of justice as parties joined issues. On his part, He cited OBI vs. OZAR (1991) 9 NWLR (PT.213) 96 @ 103; AKPAN vs. RTQ1 (2001) 15 NWLR (PT.736) 328 that plaintiff had no duty to call a surveyor to prove all features on the survey plan and location and extent of the land in dispute having consented to the plan being tendered. He referred to FAMUROTI VS. AGBEKE (1991) 5 NWLR (PT. 189) 1; ADUSEI & ANOR vs. ADEBAYO (2010) I.S.C (PT. IV); ANYAFULU & 4 ORS vs. MEKA & 5 ORS (2014) SC PT.1) 149 @ 184; EJIKO vs. AROYEWUN & ORS (1995) 1 NSCC 1Q3; KOSSEN (NIG) LTD & ANOR vs. SAVANNAH BANK (NIG) LTD 1995 NWLR (PT. 420) 437 @463; RAIMI V. AKINTOYE (1986) 3 NWLR (PT. 26) 97; IBWA vs. IMANO & ANOR (2001) 17 W.R.N 1 @ 19 to the effect that appellant did not object to admissibility of Exhibit 4. He also cited AKPAN & ORS VS. OTONG & ORS (1996) 10 NWLR (PT. 476) 108
Counsel referred to DW2’s evidence at pg 68 line 20 – 23 where he admitted that there is a church adjacent the land in dispute and Respondent did not prove that he did not buy 3 parcels of land. Counsel relied on the following cases: OTUKPO vs. JOHN &
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ANOR 2012 SC; EYA & 20 ORS vs. OLUPADE & ANOR (2011) 5 SC PT.11 47 @ 82 to submit that fraud was not proved.
Respondent contended that the document was duly endorsed and stamped on 11/4/1980. He relied on CITEC INT. ESTATES LTD v. 5 ORS vs JOSAIH OLUADE & 4 ORS [2014] on presumption of regularity of official acts by virtue of Section 150 (i) of Evidence Act 2004 (now Section 168 of Evidence Act, 2011).
Counsel submitted that having not objected to Exhibit 14, it’s too late to complain and that same was conceded with consent to its admissibility. Counsel submitted that even if Exhibit 14 was made in 1978 and Exhibit 2 was 1980, the two documents will still be first in time to Appellant’s 1979′ purchase receipt as it was clear to deduce that having bought from Salako family in 1989, the Salako family had no title as to pass, therefore Exhibit 2-(1980 receipt of the defendant) will still be first in time. He relied on UGBO vs. ABURIME [1974] 8 NWLR (PT. 360) 1 @ 19; ODUSOGA vs. RICKETTS (1997) 7 NWLR (PT.511) @ 28; NBC PLC vs. CHIEF UZOMA UBANI 2013 10-12. Counsel referred to Exhibits 1 and 6 – 10A as Lagos State Government authorities
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which apparently had absolutely no interest in the matter and therefore could not be made in anticipation.
He referred to MOMAH V. AB PETROLEUM (2000) 2 SC. 142 @ 163; OLADUNJOYE V. AKINTERINWA (2000) 6 (NWLR (PT. 659) 92 @ 105 that possession resides in the claimant that establishes a better title. He cited OMOTAYO V. COPERATEIVE SUPPLY ASSOCIATION (2010) 5 – 7 SC. (PT.11) -6O @ 90. OJOH V. KAMALU [2006] 6 WRN 116 SC; ADEJUMO V. OLAWAIYE [2014] 5-6 SC (PT.11) 122 @ 154. On the 1989 purchase Receipt, Counsel to the Respondent submitted that it was referred to in pleadings and testimony of DW2 & DW3 referred to this receipt when it was not tendered by them. He relied on APC V. INEC & 7 ORS [2014] 11 SC 157 PG 193 PARA 10.
In Reply, Appellant submitted that there was no documentary evidence available that Respondent ever bought 3 plots from Rafiu Abiola Olalabi-Sulu. The Appellant submitted that the lower Court raised the issue suo muto by comparing and contrasting the measurements in meters and in conclusion the trial Court charged the Appellant with having committed criminal offence of deceit and misrepresentation but that the trial Court
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did not invite them to address it on the comparison of the survey plans. He submitted that the trial Court denied the Appellant fair hearing by this procedure. He cited JER V. IYORTYMON (2014) FWLR (PT. 747) 749 @ 769. He submitted that the trial Court further raised Section 46 of Evidence Act (now 53 of the Evidence Act 2011) which provides that acts of possession and statements of facts in issue or relevant facts made in published maps or charts generally offered for sale or maps made under the authority of government, as to matters usually represented or stated in such maps, charts or plans, are themselves admissible and may be evidence of ownership.
RESOLUTION(a & b)
In considering issues a & b which flow into one another, I shall consider firstly; “Whose title between the parties’ competing title is superior with respect to the documentary and oral evidence on record”.
In this vein, I am aware there are two records of appeal filed herein; the main one consisting of proceedings and judgements filed by the Appellant while the Supplementary record filed by Respondent contains all the proceedings of evidence adduced at trial, I
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shall make reference to them based on their relevance to the issues at stake.
The Respondent’s title was as pleaded in Paragraphs 4- 13 of the Amended statement of claim of 3/5/06. He tendered Exhibits 1-15 in support of his claim, the survey plan Exhibit 1, Certificate of Occupancy, Exhibit 4 purchase receipt, and Exhibit 14 all buttressing the facts that he bought the land from OLALABI- SULU FAMILY directly and a later repurchase from EROYA FAMILY as a caution when the later claimed the land was jointly owned with the Olalabi-Sulu family. CW1 & CW2 (Respondent’s vendor) testified on the initial purchase of 3 plots in 1973 one had a residential building built on it by Respondent the second had a church built and the third was vacant and is the disputed portion in this appeal.
On the other hand the appellant traced his title to Chief Adekunle Oyewole who had earlier bought from Adebisi Salako from Eroya Family, the said chief Oyewole having realized that a Supreme Court judgement vested the area of land on Olalabi – Sulu family and not Eroya Family.
It is trite that parties are bound by their pleadings. See: EMEGOKWE V. OKAIDIGBO (1973)
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4 SC 113; SPDC NIG LTD V. AMBAH (1999) 3 NWLR (PT 593) 1 on the position of the law that evidence given which is not in line with the facts pleaded goes to no issue and is of no help to the party that produces it.
The parties both traced title to Olalabi-Sulu family, even though the Appellant bought through from one Chief Oyewole who bought from Eroya family and later repurchased after the Supreme Court declared Olalabi-Sulu family as rightful owners but this was in 1998 while the Respondent bought directly from the Olalabi-Sulu family in 1973 and later bought the same land from Eroya family when they claimed they jointly owned the land with Olalabi-Sulu family. It is clear from the above that the receipt of the claimant /respondent is first in time.
The evidence of CW2 is instructive and throws more light on the dispute and evidence of CW1. CW1 had traced his root of title to CW2 – ALHAJI OLALABI – SULU. See pages 42 86 of the supplementary record. He is the head of Olalabi -Sulu family the vendor and Managing Director of Olalabi-Sulu Estates and Sons limited of Isale – Oja, Agege. He corroborated the evidence of the claimant, and same was not
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shaken or controverted under cross examination. He explained the role he played, how he was acting in as head 1973 for his father, then later became head and got formal approval a power of attorney for the estate land he sold and issued receipts. He said that he sold three parcels of land to the Respondent and reaffirmed that the Respondent built a residential house in one, a church in the other and the other was the vacant one which the Appellant encroached upon and he had consistently maintained to the Appellant that the land was sold by him to the Respondent and that what was sold to the Appellant differed from the Respondent’s plot. (See page 55 line 15-18) of supplementary brief.
In proving his claim to title, Appellant testified through his representative and also called his vendor – Chief Oyewole, DW2 who also traced his title to Eroya and later after the Supreme Court’s judgment repurchased the land from CW2 – Olatabi-Sulu family but CW2 disputes that what was paid was part payment and that in actual fact the payment was in respect of another land CW2 was emphatic as to what he sold to each party. DW1 & 2 did not do much to trace the root of
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their title. DW2 said he bought from Oyewole out of 3.5335 hectares but could not show the locations of his boundaries on the survey plans to be the same as his vendors.
See Exhibit A the findings of the trial judge at page 298 of the main record.
It is apparent from the foregoing that the Respondent was able to lead evidence to prove four out of the five ways with respect to the proof of title established by the Supreme Court in IDUNDUN V. OKUMAGBA (supra). In this respect, CW1 gave evidence of traditional title which was strengthened by evidence of CW2 the vendor, head of the Olalabi-Sulu family who sold to him and owns majority of the land portions in that area and issued a receipt, Exhibit- 14 and deed of assignment, coupled with the evidence of Supreme Court victory over EROYA family in respect of the land. See NWOKORO V. TITUS ONUMA & ORS (1999) 9 SC 17; IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227; ISAMOTU A ASHIRU V. ADETOUN OLUKOYA (2006) 11 NWLR (PT 999).
Therefore the learned trial judge was correct when he said at page 241 of Record that “I am swayed, on the competing evidentiary documentation, that the theme and
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thrust of the above argument of claimant wins the day and in addition to this prior Exhibit 14 purchase receipt there is also the successful argument that in line with IDUNDUN V. OKUMAGBA (SUPRA)”
The learned Trial judge rightly interpreted evaluated the evidence led and applied the law when he held that the Respondent’s title is superior to the Appellant’s.
In resolving proof of title to land in a case of competing interest, it is beyond doubt that later in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grant. See: TEWOGBADE V. OBADINA (1994) 4 NWLR (PT 338) 328; KARI V. GANARAM & ORS (1997) 2 NWLR (PT 488) 38; KACHALLA V. BANKI (2006) 8 NWLR (PT 982) 364; BANKOLE V. DADA (2003) 11 NWLR (PT 830) 174; OSUJI V. OSUJI & ANOR (2014) LPELR- 29769 CA.
The Respondent had tendered the plan and a composite plan showing the extent of his land and location, Appellant tendered Exhibit A dated 9 /6 /95. Respondent’s Exhibit I attached to Certificate of Occupancy had a different size of land, street location, when placed side by side.
In
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furtherance of proof, the Appellant also tendered Exhibit C/5/11/84 his vendors plan with size 1055.864 on EROYA Estate Mulero, Agege which the Court found to be the same as Exhibit 1 – survey attached to the Certificate of Occupancy of the Respondent but his Exhibit A is different, it measures 1067.164 sq. meters and is sharply in contrast with the averment at Paragraph 10 of Statement of Defence which stated that his vendor surrendered his survey to him – Exhibit C, is the Appellant’s survey plan which was different from his vendor.
It is logical to expect that a survey being tendered by a buyer will be the same as that of his vendor in size and identity. See: ACCELERATED EDUCATIONAL SERVICES LTD & ANOR V. PRINCE EKPO OKANO IKPO & ANOR [2012] LPELR-19693 (CA). In the light of evidence, pleadings in Paragraph 10 has not been proved, it therefore goes to no issue.
It is trite that trial Court is duty bound to evaluate evidence to determine on which side the balance tilts. See: WACHUKWU & ANOR V. AMADIKE OWUNWANNE & ANOR 2011 LPELR 3466 (SC) where the Supreme Court, ONNOGHEN, JSC, held:
“where the Court usually evaluates the
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evidence side by side any document, evidence if available and acts of possession by the parties, it is after evaluating the piece of evidence that the Court where possible decides on which version is preferable and why”
The lower Court rightly in my view did not raise the issue suo motu but judicially and judiciously carried out its duty to evaluate the documentary evidence as well as oral evidence presented before it. I resolve the two issues in favour of Respondent.
ISSUE TWO (C & F)
The Appellant submits that the trial Court did not all consider the defences of laches, acquiescence, and equitable estoppels pleaded by the Appellant in Paragraph 14 of the Statement of defence and that failure to consider these amount to a denial of justice and fair hearing. He cited TANKO V. UBN PLC (2011) ALL FWLR (PT. 556) 408; NDIK V. CHIEDWRA (2012) ALL FWLR (PT.117) 1178.
In response, Respondent submitted that the judgment is not a nullity and a denial of fair hearing. The Respondent counsel referred to BABA V. NCATC (1991) 5 NWLR (PT. 192) 388 at 430; MOHAMMED V. KANO N. A. (1965) 1 ALL NLR 424 at 426 to submit that fair hearing does
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not mean a fair trial and that the test is the impression of a reasonable person who was present at the trial whether from his observation, justice had been done in a case.
He cited MILITARY GOVERNOR OF IMO STATE V. NWAUWA [1997] 2 NWLR (PT. 490) 675 at 709.
Counsel posit that the Appellant was offered all the rights of fair hearing in relation to defences he raised in his pleadings which were rebutted by Respondent and Appellants witness gave evidence in support his claim. He relied on EKIYOR & ANOR V. BOMOR [1997] 9 NWLR [PT. 519] 1. He referred to Paragraph 14 of Statement of defence which was denied in Paragraph 9- 11 of the Respondent’s Reply coupled with the evidence of DW2 who completely contradicted his deposition and the admission of Appellant in Paragraph 10 of the Statement of Defence; that the case in 1995 truncated any attempt by the Appellant to raise a successful plea of laches, acquiescence and estoppel as the suit was filed 10 (ten) years after they entered the land which was two years short of statutory limitation period. He cited ADEJUMO V. OLAWAIYE (Supra)
The Respondents further submitted that it is the duty of the trial
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Court who saw and heard the witnesses to evaluate the evidence and pronounce credibility and ascribe probative value. He argued that the trial judge creditably discharged his defence. He relied on A.J. BULU V. MAJOR GEN. AJAYI [2013] 10-12 SC 65; APC V. INEC & ORS (supra).
Respondent reviewed evidence on record and submitted that the judgment was not perverse. He cited PHILIP V. EBEODAN COMMERCIAL COMPANY LIMITED [2012] 4 SC 42; IBWA V. IMANO & ANOR (2001) 17 WRN 1 at 19; KASSERN COMPANY LTD & ORS V. SAVANAH BANK 1995 9 NWLR (PT. 420) 439 at 453; OGUNLEYE V. ONI (1990) 2 NWLR (PT.135) 745 at 779- 780; AKPAN V. OTANY (1996) 10 NWLR (PT. 470) 108.
The Appellant submitted in reply that the contention of Respondent was not based on any finding of the trial Court of the defence and no evidence on oath was given although, a reply was filed on it, on the ground that the judgment is perverse and runs contrary to evidence and pleadings. He relied on SANKEY V. ONAYIFEKE (2011) ALL FWLR (PT. 749) 1034 @ 1069. He highlighted on the issue of possession, evidence of title, trespass and submitted that Respondent failed in all these requirements.
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He submitted further that the trial Court did not correctly evaluate the documents placed before it hence the drawn inferences and conclusion; that the learned trial judge drew inferences of deceit and misrepresentation which he raised suo motu. Appellant maintained that the judgment was perverse.
RESOLUTION (C & F)
These issues bother on the defence of laches, acquiescence and equitable estoppel which Appellant allege the trial Court failed to consider, hence a denial of fair hearing. The evidence on record again came to light through the CW1, CW2, DW1 and D2 on evidence of continuous battle for the land, police intervention coupled with a meeting between the CW2 and the Appellant on the sale of land and his refusal to transfer same, quit notice written to the Appellant. It is pertinent to draw attention to pages 236 to 237 of the main record wherein the learned trial judge reproduced issues identified by parties. The defendant did not even make it an issue in all the 5 issues raised. The trial judge considered the claimants issue which he felt more broadly captures the germane issues. I should reproduce issues nominated by the Defendant
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as reproduced by the lower Court:
“Defendants issues
(i) Whether the identity of the land in dispute is not an issue in the suit.
(ii) Whether fie claimant is not entitles reliefs claimed on the evidence before the Court.
(iii) Whether the Defendant is not lawful in possession its lands covered by its survey plan tendered in evidence by or registered survey
(vi) Whether the defendant is in possession of land in dispute is a trespasser
(v) Whether the Certificate of Occupancy, Exh.1 was not procured in anticipation of litigation contrary to Section 9(3) of Evidence Act LFN 2004”
It is apparent that the parties had set guidelines upon which the judgment was based. For whatever purpose it is worth, evidence abound in the record that the defences were not proved. See pages 18-22 of claim at page 110 of Main Record. The documentary and oral evidence placed before the Court by parties were thoroughly evaluated along the guidelines in proof of competing interest and the trial judge arrived at the decision when he held at page 214 of the record:
“I am swayed, on the competing rights evidence documentation ,that the team and thrust of
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the above argument of claimants wins the day and in addition is prior-exhibit 14 purchase receipts there is also the successful argument that is in line with IDUNDUN V . OKUMAGBA (SUPRA) THE Respondent has creditably demonstrated, that the land, he purchased, from the adjacent to and part and parcel of two other parcels of land he purchased from the Olalabi-sulu family thus bringing himself within the principle that being the owner of adjacent lands connected to the land in dispute, it is more probable that the claimants is the owner of this adjacent land in dispute….”
The conclusion is unassailable and I quite agree with the lower Court on this. There is nothing perverse with respect to the findings. See: ATANDA & ORS V. AJANI & ORS (1989) 4 NWLR (PT 11) 511, where CRAIG, JSC held:
“It is the duty of appraising and evaluating of evidence given at the trial is pre-eminently within the provision of the Court of Trial which has this singular advantage of seeing and heavy witnesses testify, although an appellate Court may disturb the judgment of the Court of trial in strictly limited cases such as when it is satisfied that the
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decision on the facts is wrong or perverse or not as a result of improper use of judicial discretion or that the trial Court failed to evaluate the evidence or generally to take proper advantage of.” See: ARUNA KUDARE V. ALAKE (1956) FSC 82 ASANI BALOGUN & ORS V ALIMI AGBOOLA (1974) 1 ANLR (PT.2) 66 P 73
On the whole, I am inclined to say that I have found nothing perverse in the judgment of the lower Court.
The issues are resolved against the Appellant.
ISSUE THREE (E-D)
Appellant Counsel submitted that the reasons for the award came from the Court as that annual income of the property in dispute is N25,000.00. He attributed the 20years trespass to the non-sitting of the Court or several adjournments when the Court was not ready and therefore the award five million was not based on any material placed before the Court. Hence it was not judicially or judiciously and was excessive. He relied on UBN PLC V. OKORO (2002) ALL FWLR [PT.122] 24-17.
The Respondent in response reiterated the principle of award of damages as in NBC PLC V. UBANI (2013) 10 – 12 SC 95; XTOUDOS SERVICES (NIG) LTD & ANOR V. TAISEI (W.A.) LTD &
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ANOR (2006) 6 SC; That the Appellant admitted having been on the land since 1995 therefore the trial judge was correct when he awarded general damages of N5 million whether or not evidence adduced to back up as damages follow a trespass. He cited OMOTAYO V. COOPERATIVE SUPPLY ASSOCIATION (SUPRA).
In reply, Appellant stated that the Appellant did not file any Respondent’s notice praying the Court to uphold the award on any other ground other than the issue distilled by Appellant.
The Appellant on issue (e) complained of the costs awarded, that no background information was supplied upon which costs was awarded in line with Order 49 of the High Court of Lagos Rules 2012. He submitted that the cost of N400,000.00 was punitive and meant to punish the Appellants. Thus, it was not judiciously and judicially awarded. He relied on OYEDEJI V. ADEKUNLE AKINYELE (2001) FWLR (PT. 77) 790 at 1001 which set parameters for award of costs. He urged the Court to interfere in the award. He relied on OLUSANYA V. OSINYE (2002) FWLR (PT.108) 1462 at 1495. The Respondent in reply relied on ADIM V. NBC LTD & ANOR (2010) 3-5 SC (PT. 1) 155 on the position of the
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law on costs and urged the Court to resolve it in favour of Respondent.
RESOLUTION
These two issues are complaints that the award of general damages of N5m for trespass is without evidence and so also is the cost of N4000,000.
I believe that its trite that the Appellant is entitled to damages for trespass, even where no damages or loss is caused, he is entitled to recover in respect of his loss according to general provision. See Halburys Law of England, 4th Edition Vol. 12 on rules regarding measure of damages in regard to trespass to land page 1170 at Para 460. See also UMUNNA & ORS V. OKWURAIWE & ORS [1978] 6-7 SC where A.O. OBASEKI, JSC increased damages from N3000 to N8000 as adequate compensation.
The respondent had asked in relief (3) of his statement of claim for $t5m as general damages as against the Appellants and an order of perpetual injunction against the defendant. See pages 105-106 of main record. Therefore, there is a proper claim before the learned trial judge, who upon being satisfied by the proof of claims granted the relief. In BENEBO OMONI & CO. V. BIRIYAH (1976) 6 SC 94, the Supreme Court held that it is
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enough that “exclusive possessions in a party is proved by exclusive occupation and use by such party will support a claim for damages for trespass”.
Therefore, I am unable to agree that damages awarded was excessive, having deprived the Respondent the use of the land from 1995 till judgement and erected structures on the land, coupled with consistent frustrating acts which are evident on the record. As I have earlier stated, it is within the discretion of the trial Court who evaluated evidence. I need not say more.
On the cost of N400,000 awarded to the successful party, it is trite that a successful party may not be deprived of cost.
See OBAYAGBONA & ORS V. OBAZEE & ORS (1972) 5 SC 159; UBA V. EMEH (1989) NWLR [PT. 1100] 370 where the Supreme Court held that there can be no appeal in respect of a discretion on particular facts even from the erroneous exercise of discretion. This is because it is based on private opinion of the judge. A judicial discretion must be exercised on fixed principles and according to the rules of reason and justice. See LAYINKA & ORS V. MAKINDE & ORS [2002] 10 NWLR (PT.775) 358; AKINBOBOLA V.
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PLISSON-FISKO (1991) 1 NWLR (Pt.167) 270; JERNSTOBERI M.S F.A.S V OLAOGUN ENTERPRISES LTD (1999) 14 NWLR (PT 637) 128.
On the above authority, I have no hesitation in holding that these aspects of the Appellant’s appeal are clearly without substance.
The issue (d & e) are resolved in favour of the Respondent.
In the light of the foregoing, this appeal is unmeritorious and it is hereby dismissed. The judgment of CANDIDE-JOHNSON J. of Lagos State High Court delivered on 17th January, 2014 is affirmed. Costs is accessed in N50,000.00 (Fifty Thousand Naira) against the Appellant.
Other Citations: (2007)LCN/2358(CA)
