Victor Ogbeide & Anor. V. Godwin Osifo (2006)
LawGlobal-Hub Lead Judgment Report
ADEREMI, J.C.A.
This is an appeal against the judgment of the High Court of Justice, Edo State of Nigeria, at Benin City, delivered in Suit No. B/192/96: Godwin Osifo (substituted for his late father – Mr. Oteghile Osifo and Victor Ogbeide and Another) on the 22nd May 2001. The plaintiff before that court (hereinafter referred as the respondent) had by paragraph 14 of his 2nd further amended statement of claim dated 10th April, 2000 against the defendants (hereinafter referred as the appellants) the following reliefs: –
“1. A declaration that the plaintiff is entitled to the grant of Statutory Right of Occupancy to all that piece or parcel of land measuring 100 feet by 200 feet lying and situate along Upper Sakpoba Road, Ugbekun Village Ward 33E, Benin City, within the jurisdiction of this Honourable Court which, piece or parcel of land is delineated and verged BLUE in litigation survey Plan No. JAA/ED/D14/96 in this action.
- N500,000.00 (Five Hundred Thousand Naira) only being special and general damages for trespass committed by the defendants in breaking and entering into the said land and digging a borrow pit thereon without the consent or authority of the plaintiff –
(a) Particulars of Special Damages
(i) 500 cassava stems at N20.00 each – N10,000.00.
(ii) 500 maize plants valued at N15.00 each – N7,500.00
Amount claimed as special damages -N17,500.00
(b) General and Special Damages – N482, 500.00.
(c) Total Amount Claimed As General and Special Damages – N500,000.00.
- Perpetual Injunction restraining the defendants, their agents and servants and/or privies from entering or trespassing into the said land.”
Final pleadings filed by the leave of court and exchanged between the parties are the second further amended statement of claim dated 10th April 2000 and the amended joint statement of defence dated 14th July 1997.
Both sides called evidence in proof of the averments in their respective pleadings. Sequel to the taking of the addresses of counsel on both sides, the learned trial Judge, in a reserved judgment delivered on the 22nd of May 2001, found in favour of the plaintiff/respondent by declaring that he was entitled to statutory right of occupancy over the land in dispute; the sum of N17,500.00 (Seventeen Thousand Five Hundred Naira) was also awarded in his favour but against the defendants as special damages for trespass found to have been committed by them (the defendants/appellants), by breaking and entering the said land of the plaintiff/respondent without his permission and destroying his (plaintiff/respondent’s) cassava stems and maize which he planted thereon.
Being dissatisfied with the said judgment, the defendants/appellants have appealed to this court by a notice of appeal dated 28th June 2001 into which seven (7) grounds were incorporated. Distilled from the aforementioned grounds of appeal are three issues which the appellants have formulated for this court’s determination; and set out in their brief of argument deemed to have been properly filed on the 8th of July 2003, they are in the following terms: –
“1. Did the learned trial judge not err when he awarded the plaintiff special damages when the plaintiff did not strictly prove that he suffered such damages?
- Did the learned trial judge not err when he said that the 2nd defendant was estopped from denying the contents of exhibit “B” which was based on a grant, which had been declared a nullity by a court of competent jurisdiction?
- Whether the learned trial Judge did not err when he held that the plaintiff proved a right to possession?”
The respondent, through his brief of argument filed on 4th August 2003 also raised three issues for determination, they are as follows: –
“1. Whether the respondent established his title to the land in dispute on the preponderance of evidence.
- Whether the appellant could be allowed to resile on an agreement (exhibit “B”) for the transfer of land duly executed by him in favour of DW1 and which the latter had acted upon by transferring same to the respondent for due consideration on the grounds that the previous grant to him was a nullity even through he had subsequently validated his acquisition of the same land.
- Whether the respondent discharged the onus of proof on his claim for special damages awarded against the appellant.”
When this appeal came before us for argument on the 3rd of May 2006, Mr. Longe, learned counsel for the appellants, referred to, adopted and relied on the brief of his clients which was filed with the leave of court on the 8th of July 2003; he referred us to the Memorandum of Transfer of Land copied at pages 104 to 105 of the record of proceedings per which the 2nd defendant transferred interest – in the land in dispute to the plaintiff/respondent and submitted that if for the reason that his alleged acquisition of a parcel of land which embraces the land in dispute was, invalidated, the only remedy opened to the plaintiff/respondent, according to him was to sue the appellant for damages, he relied on the decision in Imana v. Robinson (1979) 3 & 4 S.C. 1.
He finally urged us to allow the appeal. Mr Osemwenkha, learned counsel for the respondent in arguing his client’s case referred to, adopted and relied on his brief filed on the 4th of August 2003 and he conceded that the acquisition of the larger parcel of land which includes the land in dispute, by the 2nd defendant/appellant in 1947 was declared null and void for reason of his (2nd appellant) failure to obtain the Oba’s consent; he went ahead to draw our attention to the record of proceedings to show that it is not in dispute that the same 2nd appellant transferred the land in dispute to his client, the respondent in 1971 and that the same appellant subsequently obtained the necessary Oba’s consent on the entire land in 1974.
It was his further argument that the approval granted by the Oba in 1974 revalidated the acquisition of the same land by the appellant in 1947 and by extension, the sale of the land to the respondent in 1971, according to him was also revalidated as the title of the respondent springs from that of the appellant. He finally urged us to dismiss the appeal.
Issue No. 1 on the appellant’s brief of argument is similar to issue No.3 on the respondent’s brief; issue No.2 on the appellants’ brief is materially the same as issue No.2 on the respondent’s brief while issue, No.3 as set out in the brief of the appellants is the same as issue No. 1 in the respondent’s brief. “I shall start with “issues Nos. 2 and 3 on the appellants’ brief and consider them along with issues Nos. 1 and 2 on the respondent’s brief and finally issues No. 1 in the appellants’ brief and issue No.3 in the respondent’s brief shall be addressed together. Before then, I wish to examine the cases of the parties as they presented them on their pleadings.
The plaintiff respondent’s case as could be gleaned from his second further amended statement of claim is thus: he (plaintiff/respondent) claimed to be the eldest son of his late father, one Mr. Otoghile Osifo who was the owner under Bini Customary Law of a piece of land measuring 100 feet by 200 feet now in dispute; his said later father had acquired the said land on the 9th of April 1974 from Chief Festus Eghianro who in town had in 1971 purchased same from the second defendant/appellant (S.A. Aiyedan) for due consideration vide a memorandum of Transfer of Land dated 13th March 1971 tendered as exhibit B and signed by both late Chief Festus Eghianro and the 2nd appellant. It was his further case that the said land in dispute forms part of a larger parcel of land earlier granted to the second appellant by Chief G. Agbanifo, Chief F. Eghinaro’s late father and elders of Ugbekun in 1947 for the construction of a school.
Upon the handing over of the said land by the second appellant to Chief Festus Eghianro, he (Chief Festus Eghianro) took possession and exercised acts of ownership thereon without let or hindrance until he transferred that portion in dispute to the respondent in 1974. Suffice it to say the said land in dispute, by the pleadings, is part of the larger parcel of land measuring 600 by 600 feet given to the second appellant in 1974 by the elders of Ugbekun Village, Upper Sakponba Road, Benin City in 1947. His late father was in possession of the land until 1991 when according to his averment, the 1st defendant/appellant at the behest of the 2nd defendant/appellant trespassed on the land destroying his father’s crops and built a car wash thereon despite the protest from him; the 2nd defendant/appellant also dug a borrow pit on the land notwithstanding his (plaintiff) protestation.
In the joint statement of defence filed by the defendants/appellants, it was denied that the second defendant sold any land to Chief Festus Eghianro and, according to their averment, the said Chief and others joined in allocating land to people. They claimed to acquire the land through Ugbekun Plot Allotment Committee Ward 33/B in 1974. The 2nd defendant/appellant got a grant of a parcel of land measuring 600 feet by 600 feet from one Chief Eghianro in 1947, but, according to him, the grant was set aside in Suit No. B/23/75 for reason that it was not in accordance with BINI CUSTOMARY Law. Whilst the case in suit No. B/23/75 lasted, it was further averred neither the respondent nor Chief Festus Eghianro signified any interest in the said land. The 2nd defendant/appellant claimed to have been exercising acts of ownership on the land and claimed to have buildings thereon; he denied that the plaintiff/respondent was in possession. It was their further averment that the court set aside the grant of 600 ft by 600 ft made by Eghianro, it upheld the grant of the land measuring 525 ft by 400 ft by 100 ft by 425 ft by 200 ft by 100 ft situate along Upper Sokponba Road, Ugbekun Quarters in Benin City, which he (2nd defendant) claimed to have acquired through Ugbekun Plot Allotment Committee Ward 33/E in 1974 – he claimed to have exercised diverse acts of ownership on the said land. While asserting that the plaintiff/respondent has no piece of land in that area, he further averred that he 1st defendant/appellant was carrying on the business of car washing on the land with his (2nd defendant/appellant) permission.
In considering issues Nos. 2 and 3 on the appellants’ brief a long with issues Nos. 1 and 2 on the respondent’s brief, it is my view that the crucial issue for determination is whether, the second appellant ever transferred the land in dispute to Chief Festus Eghianro the predecessor in title of Otoghile Osifo, the father of the respondent. The respondent had both in his pleadings and evidence asserted that the second defendant sold the land in dispute to Chief Festus Eghianro, but the second appellant maintained that he never sold any parcel of land to the said Chief. The first witness called by the respondent was Chief Festus Eghianro; in his evidence he said: –
“I know the 2nd defendant. Sometimes in 1971, I bought a parcel of land from one Mr. S.A. Aideyan, who is the 2nd defendant in this case. The land is along Upper Sokponba Road, Benin City facing my palace. It measured 100 feet by 200 feet. The purchase of the land by me was evidenced by this document. It is exhibit B in this case. I signed Exhibit B, which is also signed by the 2nd defendant from whom I bought the land. By exhibit A the 2nd defendant acquired the land in dispute from my late father in 1947 and exhibit A the application was for 600 feet by 600 feet. In 1971 I acquire the land in exhibit B from the 2nd defendant and I started farming on the land for about two years and around 1974 I transferred the land in exhibit B to the plaintiff in this case.”
PW1 was never challenged on his assertion that the 2nd appellant signed exhibit B upon which he (PW1) predicated his contention that he bought the land in dispute from him (2nd appellant), nor was the witness challenged on his assertion that he (2nd appellant) bought a large parcel of land from the late father of PW1 in 1947. Indeed, by paragraph 6 of the amended joint statement of defence, the 2nd appellant agreed that he acquired a grant of land measuring 600 feet by 600 feet from Chief Eghianro, the father of PW1 in 1947. It is mutually agreed by the parties through their pleadings and also in their evidence that the grant of land to the 2nd appellant in 1947 was null and void. This cannot but be so because the land in dispute is within Benin Kingdom. It is because prior to the promulgation of Land Use Act in 1978 all lands in Benin Kingdom were vested in the Oba of Benin who held it on trust for the people of Benin, therefore for anyone to acquire any valid title to land in Benin, he must trace his title to that of the Oba of Benin. See Okeaya v. Aguebor (1970) 1 All NLR 1 and Aigbe v. Edekpolor (1977) 2 S.C. 1. There is no evidence that the consent of the Oba of Benin was sought and obtained before the grant by Chief Eghianro, the father of the PW1 in 1947. For that reason that grant lacked legal validity perhaps, I should also say that it is not in dispute that the 2nd appellant later applied for and obtained the approval of Oba of Benin for the acquisition of the land the grant of which to him in 1947 was later set aside for reason of the lack of that approval. In his own evidence the 2nd appellant has said inter alia:
“I know Festus Eghianro, the 2nd plaintiff’s witness in this suit. I never transferred any land to Festus Eghianro at any time ….
In 1974, I applied to the Oba of Benin and had an approval from the Oba of Benin over the land …
Mr. Festus Eghianro was a member of the Ugbekun Plot Allotment Committee.”
Under cross-examination, he said inter alia: –
“I know the late Chief George Eghianro who was the father of the plaintiff….
It is true that I was given a parcel of land of 600 feet by 600 feet in 1947 and that allocation has been nullified by the Court and the Oba.
………
I know Chief Festus Eghianro, the 2nd witness for the plaintiff from his infancy. I do not remember signing a memorandum of transfer of land to Mr. Festus Eghianro in March 1971. I did not at any time transfer any parcel of land to Mr. Festus Eghianro ….
I authorized the 1st defendant to erect a car wash at the frontal part of the land in dispute. I am not aware that in 1974 Mr. Festus Eghianro transferred that same piece of land in dispute to the plaintiff……
The Oba’s approval which I got in 1974 was not to regularize the plot which I got previously which was nullified….
Mr. Festus Eghianro told the truth in that affidavit that I have fifteen plots and I accepted that truth.”
In reaching the conclusion, the trial Judge held inter alia: –
“Exhibit B and C are the written evidence of the customary title which the 2nd defendant granted out of his defective customary title in exhibit A to Chief Eghianro and which Chief Eghianro also granted to the late father of the plaintiff. That defective customary title of the 2nd defendant as per exhibit A, which was defective, has been corrected and made perfect by exhibit E. The valid customary title to the land in dispute in both suit Nos. B/23/75 and B/196/96 having been retraced to and relocated in exhibit E by the 2nd defendant, his customary gift of the parcel of land to Chief Festus Eghianro as evidenced in writing by exhibit B flows and is subsumed into exhibit E which covers the entire land of the 2nd defendant from which he gave out the land in dispute which passed on to the late father of the plaintiff by exhibit C.
Exhibits B, C and E were admitted in evidence without any objection and exhibits B and C have not been challenged by anyone or declared void by any court. To hold that the transfers made in exhibit B and C have been defeated by the judgment in exhibit H and that by exhibit E, the 2nd defendant is entitled to resile from the gift of the land he made to Chief Festus Eghianro in 1971 as evidenced by exhibit B and hence Chief Festus Eghianro had no land to transfer to the late father of the plaintiff in 1974 as shown in exhibit C, will be applying technicality to defeat the substance and the justice of the case. It will also amount to allowing the 2nd defendant to benefit from his failure to properly obtain the necessary Oba’s approval for the land in 1947 until 1974 even though as per exhibit B, while making the grant to Chief Festus Eghianro, by a grant to him of the said parcel of land by the Enogie of Ugbekun Chief G. Agbonifo.”
The crucial issue here is whether the second defendant signed exhibit B, the memorandum of transfer of Land upon which the respondent predicated his title. Before I go to examine the law relating to this issue, I feel called upon to reproduce the relevant part of exhibit B as it relates to the respondent’s predecessor-in-title – it reads:
“WHEREAS, Chief Festus Eghinaro’s residing at 101, Upper Sokponba road, Benin City hereinafter called the TRANSFEREE has newly requested the TRANSFEROR to grant to the TRANSFEREE from the said land measuring 100 feet by 200 feet and the TRANSFEROR has agreed to make the grant in terms of the request of the TRANSFEREE to the TRANSFEREE for himself, successors, heirs and assigns.
IT IS HEREBY WITNESSED AND DECLARED AS FOLLOWS:
In pursuance of the said Agreement and in consideration of payment of a nominal fee of 50k per plot of 100 feet by 100 feet paid by the TRANSFEREE to the TRANSFEROR the receipt whereof the TRANSFEROR hereby acknowledges.
The TRANSFEROR as the sole owner of the land situate at Ugbekun now measuring 500 feet by 600 feet hereby grant unto the TRANSFEREE and the TRANSFEREE accepts the interest and estate in a parcel of land measuring 100 feet by 200 feet for the purpose of building a family house for the TRANSFEREE in a prominent place in the village of Ugbekun.
WITNESS AS FOLLOWS
This 31st day of March 1971.
Witness: S. E. AIDEYAN (Signed).
Witness: D. A. (IGBINOVIA (Signed)
SIGNED
S. A. AIDEYAN.
(TRANSFEROR).
FESTUS EGHIANRO
(TRANSFEREE)
The above is the relevant extract of exhibit B. When questioned as to whether he (2nd appellant) signed exhibit B or not, he said:
“I know Chief Festus Eghianro, the 2nd witness for the plaintiff from his infancy. I do not remember signing a memorandum of Transfer of Land to Mr. Festus Eghianro in March 1971. I did not at anytime transfer any parcel of land to Mr. Festus Eghianro. It is not true that on 13/3/71 I signed any written agreement or Memorandum of Transfer of land to Mr. Festus Eghianro.”
I pause here to state the law as regards the importance of documentary, evidence. It has been held by a number of court decisions that documentary evidence is the yardstick or a hanger by which to assess the veracity of oral testimony or its credibility. See (1) Fashanu v. Adekoya (1974) 1 ALL NLR (Pt. 1) 35 and (2) Kimdely v. Mil. Gov. of Gongola State (1988) 2 NWLR (Pt.77) 475.
As I have pointed out, the 2nd defendant/appellant denied signing exhibit B while it is the contention of the respondent that he did. The trial judge of the court below was the only adjudicator who had the singular opportunity of seeing and hearing the witnesses that testified in his court in this case. When first asked whether he signed exhibit B he first said that he could not remember whether he signed the said document or not. He thereafter tried to be specific and pungent in his denial. As I have said, it was the trial judge that only had the opportunity of seeing these witnesses; watched their demeanour and formed opinion of them. He came to the conclusion that from the totality of the evidence before him, the second defendant/appellant transferred land to the respondent. His (the trial Judge) conclusion is a result of the evaluation of evidence on oath against oath as it relates to the exhibit B.
Can this court reverse that finding? Being an appellate court, it is not the business of this court to substitute its own views for those of the trial judge. See Akinola v. Oluwo & Anor. (1962) 1 ALL NLR 224, (1962) 1 SCNLR 352. I cannot but agree with the trial judge that to hold otherwise would work injustice. It will even be most inequitable to hold otherwise. Again, I pause to say, in applying equitable principles to this case, that equity is a source of law, which has always retained the characteristic of infusing elements of fairness or justice into the legal system as a whole by the very process of mitigation of strict legal rules. It must however be realized that this characteristic, if care is not taken, is very often suppressed by technical legal reasoning or even worse still, nullified in preference for a rigid rule – based system of justice. This is a serious defect, which to my mind, I always stems from two sources; or narrow conception of property law and our much often adherence to legal positivism. That law, in its raw form, is rigid admits of no argument. It is equitable principles that do water down this rigidity. It therefore seems to me that maxims of equity, if properly understood constitute parameters for the legal determination between conscionable and unconscionable conduct. Strict application of raw law to the case at hand in the face of the totality of the evidence before, the trial court and thus declaring exhibit B as having no legal value will definitely work avoidable injustice to the case at hand. I am of the firm view that if these two equitable principles i.e.
- EQUITY LOOKS TO THE INTENT, RATHER THAN TO THE FORM and
- EQUITY IMPUTES AN INTENTION TO FULFIL AN OBLIGATION are applied to this case and they must be applied if it is agreed that equity concerns itself with standards of conscience, fairness and equality, it protects relationships of trust and confidence and above all it grants to the court discretionary approach to the grant of the relief where the justice of the case demands it, then exhibit B must be held out as a document freely entered into by the parties thereto. And I have no hesitation in so holding. Let me say here now that exhibit B, a document of transfer of property made in 1971 was never declared a nullity by any court of law as was erroneously asserted in Issue No.2 in the appellants’ brief of argument; if anything at all, it was made by the second appellant in favour of the predecessor-in-title of the respondent and it is referable to the 1947 sale by the second appellant to Chief Festus Eghinaro which was agreed by both sides as void for reason that the second appellant did not obtain the consent of the Oba. But having perfected his title on the land in 1974 by reason of seeking and obtaining the consent of the Oba in respect of the same parcel of land equity will not allow the said second appellant to resile from the situation he had voluntarily created; he (second appellant) cannot continue to holding to the money paid to him in consideration of the transfer and allowed to deny the respondent of the ownership of the said land. It is for all I have been saying that I resolve issues Nos. 2 and 3 on the appellants’ brief of argument against them. I also answer issue No.1 on the respondent’s brief in the affirmative while issue No.2 thereon is answered in the negative.
I now come to issue 1 on the appellants’ brief and issue No.3 on the respondent’s brief both relating to issue of special damages. For a proper understanding of this aspect of the case, I shall like to set out the reliefs sought with regards to damages; they are: –
“N500,000.00 (Five Hundred Thousand Naira) only being special and general damages for trespass committed by the defendants in breaking and entering into the said land and digging a borrow pit thereon without the consent or authority of the plaintiff.
(i) Paticulars of Special Damages
a. 500 Cassava Stem at N20 each -N10,000.00
b. 500 maize plants valued at N15 each – N7,500.00.
Amount Claimes as Special Damages – N17,500.00.
(ii) General Damages – N482, 500.00
Total Amount Claimes as General and Special Damages – N500,000.00.
The law relating to special damages is now well stated in our civil jurisprudence that I only need to say here that this category of damages; consists of items of loss which have to be particularized or specified in the plaintiff’s pleadings (as has been done in the instant case) in order that he (plaintiff) may be allowed to give evidence thereof, but it is axiomatic that these damages must be strictly proved. See Oshinjinrin & Ors. v. Elias & Ors. (1970) 1 ALL NLR 153. What was the evidence led? The plaintiff/respondent said: –
“I planted cassava and corn on the land …. I want the defendants to pay me N500,000.00. I want the defendants to pay me N20.00 each for the 500 stems of my cassava they destroyed on the land. I want them to pay me N15.00 for each of the 500 maize plants they destroyed on my land.”
The learned trial judge in his judgment awarded the respondent the said full sum of N17,500.00 as special damages. Can the terse evidence adduced by the plaintiff/respondent pass as a credible one of such a character as would suggest that he is indeed entitled to an award under this head? My answer is definitely in the negative. That leg of claim ought to have been dismissed for not been accorded the standard of proof required in law. I hereby dismiss it. He has claimed N482,500.00 as general damages. Going by proof general damages are classified into two, categories: –
“1. That in which they (damages) may either be inferred like cases of defamation or personal injury and
- That in which they will not be inferred but must be proved (e.g. damages arising by way of general loss of business following an injury).
See Odumosu v. A.C.B Ltd. (1976) 11 S.C. 55. From the evidence led, it is my view that the plaintiff/respondent can only claim the first category. Both appellants admitted going on the land; the first appellant setting up a car-washing business on the land in dispute with the permission of the second appellant. It has been held that trespass to land constitutes the slightest disturbance to the possession of the land by a person who cannot show a better right to possession. See Solomon & Ors. v. Mogaji & Ors. (1982) 11 S.C. 1. There is no doubting the fact that from the evidence, trespass was committed on the land by the defendants/appellants even going by their own admission. I have looked at the whole gamut of the judgment; no money was awarded to the plaintiff/respondent under this heading. But a claim for N482,000.00 under that heading is outrageous. This is one of the few occasions when an appellate court can interfere with the award made by the Court below. Exercising that power, I award N20,000.00 to the plaintiff/respondent against the defendants/appellants as general damages for trespass.
In the final analysis, going by all I have been saying, this appeal safe for what I have said as to the award of damages is unmeritorious. It succeeds in part. I affirm the judgment of the court below as to reliefs (a) and (c) in toto. I set aside the award of N17,500.00 as special damages and I enter an award of N20,000.00 against the appellants but in favour of the respondent as general damages for trespass.
The respondent is entitled to the cost of this appeal, which I assess and adjudge in their favour at N5,000.00.
Other Citations: (2006)LCN/2012(CA)
