Samuel Onwujuba & Ors V. Nathaniel Obienu & Ors (1991)
LawGlobal-Hub Lead Judgment Report
KAWU, J.S.C.
The appellants in this appeal, as plaintiffs in the High Court at Nnewi, Nnewi Judicial Division of Anambra State, for themselves and on behalf of the Ekwueme Social Club of Nigeria, Nnewi Branch, claimed against the respondents jointly and severally the sum of N4,098.00 (Four thousand and ninety eight naira) only as damages for trespass.
Pleadings were ordered and exchanged.
The appellants’ case was that in 1972 they approached P.W.5, Igwe Orizu III and the other three Obis of Nnewi and some elders of the town and requested them to grant them a parcel of land on which to erect their Club Hall and the allocation of the land was made to them as requested. It was their case that the parcel of land allocated to them was a portion of Nnewi Communal land. It was also their case that after they had started erecting a building on the land in 1974, the respondents invaded the place, demolishing their building and scattered the heaps of sand and cement blocks which they had gathered on the site.
It was the respondents’ case that the land on which the appellants were erecting their building belonged to their family and had been in their possession from time immemorial. They claimed that before the trespass alleged, the appellants had in fact approached their family head, D.W.2 and had requested him to grant that particular parcel of land to them. They said that D.W.2 agreed to do so on the condition that their request for the land be made by the Management of the Club at their Headquarters – Lagos.
It was their case that instead of the appellants’ Headquarters making the request as suggested, they started erecting a building on the land without their permission. D.W.2 testified that when he found the appellants erecting their building on the land without their permission, his family removed the sign board on which was written “Ekwueme Social Club” and scattered some heaps of sand and cement blocks found on the land.
At the trial both parties gave evidence and called a number of witnesses in support of their respective claims. At the close of the case, the learned trial judge gave careful consideration to the totality of the evidence adduced by the parties and came to the conclusion that the appellants, who were the plaintiffs, had not satisfactorily established, by credible evidence, that they were in lawful possession of the land at the time of the alleged trespass and were not therefore entitled to damages for trespass. He concluded his judgment as follows:-
“Plaintiffs’ Counsel submitted that the plaintiffs are entitled to damages for trespass and materials destroyed by the defendants. Was the presence of the plaintiffs in the land evidence of possession that would entitle them to succeed in an action for trespass against the defendants. The law protects possession however subject to the qualification that, if in fact the possession be without right, it avails only against those who have equally no right to possession, but not against the person to whom the right belongs.” From the evidence, as between the plaintiffs and defendants who has a better right to possess. The plaintiffs contend that the P.W.5 and other Obis granted them the land. Do P.W.5 and other Obis have authority to grant plaintiffs the subject matter of this dispute.
This is extremely doubtful in view of the admission by Igwe Orizu III himself regarding settlement in suit No. 0/13/70 in which His Royal Highness, other 3 Obis and other Nnewi prominent citizens were sued by the defendants. This aspect of the evidence has been dealt with earlier in this judgment. From the evidence by the plaintiffs it is not clear that the grant they got came from those who could make it. The latin maxim “Nemo dat quod non habet” must apply.
They have no right to be on the land and they cannot by their very act of trespass which is clear beyond equivocation acquire possession to maintain an action of damages for trespass. Although the defendants did not institute a cross action for trespass it was clear from the evidence that they have been in possession of the land and have advertised the fact of their possession of to the notice of all who care to respect the law of property. It is my finding that the plaintiffs’ claim of damages for trespass must fail.
As regards the claim for building materials which the plaintiffs said were destroyed it must be understood that “the primary right which possession confers is the right to exclude intruders,” and provided “the force used is reasonable”, the person in possession can eject those interfering with his possession. After a careful consideration there is no merit in the plaintiffs’ case and it is accordingly dismissed.”
Being dissatisfied with the decision of the trial court, the appellants appealed to the Court of Appeal. Enugu Judicial Division, and that Court, on 13th January, 1986 allowed their appeal in part and awarded the appellants the cost of the materials allegedly destroyed by the respondents. It however, dismissed the appellants’ claim of N2,000.00 damages for trespass on the ground that the Igwe Orizu III and the three Obis who claimed to have granted the land in dispute to the appellants were unable to establish their title to the land.
The appellants, still dissatisfied with the decision of the Court of Appeal, have further appealed to this Court on six grounds of appeal.
Both parties filed their briefs of argument, and in their own brief, the appellants formulated issues for determination as follows:-
(a) was the Court of Appeal right:
(i) in holding that the learned trial Judge on a purported super-imposition rightly determined that the land in Exhibit ‘H’ fell within the land claimed by the defendants- respondents in Exhibit’ J ‘
(ii) In relying on the reports of Suit No.O/13/70: Chief Clement Chukwulo Obienugh v. Chief K.O. Orizu & Ors, in (1972) 2 ECSLR 606 to support the determination mentioned in a(i) above when the said report was no evidence before the court
(b) Was section 148(d) of the Evidence Act inapplicable to the case
(c) Was the onus on Igwe Orizu III and the other three Obis of Nnewi to prove their title to the land in dispute in order to establish their right to grant the same to the plaintiffs-appellants
(d) (i) Did the defendants-respondents prove their title to the land in dispute and did the trial Court make a finding to that effect
(ii) Did the Court of Appeal give full and proper consideration to the issue of trespass to the land in dispute
In his brief of argument learned counsel for the respondents formulated the issue for determination as follows:-
(a) (i) Was the identity of the land in dispute ever an issue at the trial Court
(ii) Where a party to a suit pleads a reported case and facts therein together with its suit number, and relies on it in his evidence on Oath and was cross examined in respect of the case, will it be said that there is no evidence of the case pleaded before that Court
(b) Will Section 148(d) of the Evidence Act apply in a situation where subpoena is given to the only independent witness who denies a few days to trial
(c) Where a plaintiff claims to have title to land through another (Igwe Orizu III), can the plaintiff succeed against a defendant who has a better title than his grantor (Igwe Orizu III)
(d) (i) Is it the Defendants/Respondents to prove title to land where the Plaintiffs/Appellants who are the owner in possession
(ii) Did the Plaintiffs/Appellants prove better title to maintain action in trespass against Defendants/Respondents who are the owners in possession
In issue (a) the appellants’ complaint is about an observation the trial court made relating to the position of the land in dispute as shown in both Exhibits ‘H’ and ‘J’. At page 63 of the Judgment,the trial court observed as follows:
“If one were to super-impose the Plaintiffs’ plan on Defendants’ plan it is easy to see that the area granted to the plaintiffs by P.W.5 falls completely within the area claimed by the Defendants as their Akakwu Land in the various suits referred to.”
It was the submission of learned counsel to the appellants that the learned trial judge, not being a trained Surveyor could not correctly super-impose one plan on another so as to determine the actual location of a particular parcel of land. While agreeing that it was within the competence of a trial judge to examine and compare two plans tendered in a case so as to resolve the correct location of the land in dispute, it was his contention that in this case the trial court in purporting to do a super-imposition for one of the parties before him, was playing a role not expected of him. It was his submission that the Court of Appeal was “therefore wrong in upholding the conjectural conclusion of the learned trial judge that if the land in dispute shown in Exhibit “H” were super-imposed on Exhibit “J” the land in dispute shown and delineated in Exhibit “H” would fall completely within the land which the defendants claimed to be their family land in Exhibit “J”.
Now in my view, with respect, the appellants’ counsel has made unnecessary heavy weather of the learned trial judge’s correct observation on the issue of super-imposition of one plan on another.
In the first place there is nothing wrong in a trial judge comparing the plans properly tendered before him in an attempt to arrive at the correct decision of the case. Dealing with a similar situation in D.O. Idundun & Ors v. Okumagba (1976) 9 & 10 S.C. 227 at 245, this Court observed as follows:-
“As for the second complaint, we do not see anything wrong in a judge looking at the two survey plans tendered before him during the hearing of a case and comparing the boundaries and location of the land in one with those in the other. [See Latinwo v. Ajao (1973) 2 S.C. 99 at page 110, lines 4-25]”
Secondly, as rightly pointed out by Respondents’ counsel, the identity of the land in dispute was not in issue at the trial. The pleadings and the evidence adduced by both parties show clearly that both parties knew the particular parcel of land in dispute. The observation of the trial judge was simply to the effect that having examined Exhibits ‘H’ and “J’ and compared one with the other, he was satisfied that the land in dispute had been previously litigated upon by the parties. In any case, on this point there was before the learned trial judge the admission of P.W.5, Igwe Orizu III that the land in dispute between the parties in the instant case was the subject matter of a previous case between the same parties. This admission can be found in the testimony of P.W.5 under cross-examination at p.35, lines 13-16 of the record where he said:-
“In 1970 the defendants’ family took action against me and 3 Obis of Nnewi and other Nnewi citizens claiming Akakwu land which embraces the area in the present suit. That earlier suit was settled out of Court.” (Italics mine)
I see no substance in this complaint.
The second issue raised relates to the second ground of appeal which complains “That the Court of Appeal misdirected itself in law in holding that Section 148(d) of the Evidence Act did not apply to the case.” This complaint is against the finding of the trial judge that he believed the respondents’ evidence that the appellants had approached them and had requested them to grant them the land in dispute before the alleged trespass was committed. That finding can be found at page 63, lines 24-28 of the record, the contention of the appellants is that in paragraph 10 of the respondents’ Statement of Defence it was pleaded that apart from Gaius Onumaegbu who was said to have died just before the hearing of the case began, there were two other gentlemen – Chief Michael Mbonu and a Mr. Agbodike (a retired train driver) who were present in Chief Clement Obienugh’s house at the time the appellants approached the Chief for the land and who were not called to give evidence at the trial. It was also alleged that one Jiagbogu who was said to have accompanied the appellants to the respondents’ house was not called as a witness and that if these people had been called their testimony would have been against the respondents’ case.
The main complaint here is that the Court of Appeal was in error when it upheld the trial court’s view that the provisions of S.148(d) of the Evidence Act were inapplicable to the case. In his own submission in his brief of argument on the point, it was contended by the respondents’ counsel that as the three persons named as being present when the appellants approached D.W.5 for the grant of the land in dispute were casual visitors in the house of D.W.5 at the material time, it would not be prudent to call them as witnesses as they were in fact not familiar with what was then going on. It was learned counsel’s submission that the Court of Appeal was right when it held that S.148(d) of the Evidence Law did not apply.
Now Section 148(d) Of the Evidence Act, Cap.62 reads as follows:-
“148. The court may presume the existence of fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and business, in their relation to the facts of the particular case, and in particular the court may presume-
XXX XXX XXX XXX XXX XXX
XXXX
(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it:
XXXXXXXXXXXXXXXXXXXXX”
As was held by this Court in Chief Tawaliu Bello v. N.M. Kassim (1969) N.M.L.R. 148 at p.154, the section deals with the failure to call evidence and not the failure to call a particular witness. In a civil action a party is not obliged to call a particular witness if he can establish his action otherwise. In this case it cannot be said that without the evidence of the casual visitors mentioned, the respondents could not prove their assertion that the appellants had approached them for the grant of the land in dispute.
Furthermore before the presumption under the section can operate not only must it be shown that such evidence existed, it must also be established that it was the respondent that withheld it. This has not been done in the instant case. In the circumstances, I am in complete agreement with the learned Justices of the Court of Appeal that the provisions of the Section were inapplicable. The other issue raised in this appeal relates to the trial court’s findings of fact which findings were affirmed by the Court of Appeal.
Learned counsel for the appellant has vigorously attacked the concurrent findings of facts made by the two lower courts. But it is well settled that this Court will not disturb such concurrent findings of fact unless there is an error apparent on the record of proceedings -lbodo v. Enarofia (1980) 5-7 S.C. 42 and Omoboriowo v. Ajasin (1984) 1 SCNLR 108. However in appropriate cases such findings may be disturbed if there is some miscaniage of justice or a violation of some principle of law or procedure – Enang v. Adu (1981) 11-12 S.C. 25 and Kale v. Coker (1982) 12 S.C. 252.
Having carefully read the record of proceedings in this appeal, I am satisfied that all the findings of fact made by the learned trial judge, and upheld by the Court of Appeal, were amply supported by the evidence adduced at the trial. I do not therefore see any justification in our interfering with those findings. On the whole, this appeal fails and it is accordingly dismissed. The judgment of the Court of Appeal is hereby affirmed. I will award N500.00 costs to the Respondents.M. BELLO, C.J.N.: I have read the judgment delivered by my learned brother, Kawu, J.S.C. I adopt it as mine.
Accordingly, I dismiss the appeal, affirm the judgment of the Court of Appeal and endorse the order as to costs.A. O. OBASEKI, J.S.C.: I have had the advantage of reading, in advance, the draft of the judgment just delivered by my learned brother, Kawu, J.S.C and I find his opinions on all the issues for determination in this appeal in accord with mine. I hereby adopt them as my own and I agree that the appeal he dismissed.
Accordingly, I hereby dismiss the appeal with costs to the respondents fixed at N500.00.
SC.174/1988
