ALHERI GARBA ZIRA & ANOR V ELISHA VANDU & ORS
Appeal no: CA/YL/136/2015
AREAS OF LAW:
APPEAL, COURT, JUDGEMENT AND ORDER, LAND LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES
APPEAL, COURT, JUDGEMENT AND ORDER, LAND LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS
The Plaintiffs now Respondents instituted an action by a writ of summons before the High Court of Justice, Adamawa State, against the Defendants now Appellants seeking a declaration that the action of the Defendants of continual farming on the Plaintiffs’ land after demand on the Defendants’ by the Plaintiffs to stop amounted to trespass of the Plaintiffs’ land lying and being situate at Garu Pullu, Jigalambu Ward of Michika Local Government Area, Adamawa State, an order of perpetual injunction restraining the Defendants, their servants, heirs and agents from further farming or building on the Plaintiffs’ land lying and being situate at Garu Pullu, Jigalambu Ward of Michika Local Government Area, Adamawa State, the sum of Five Hundred Thousand Naira (N500,000.00) only being damages for trespass on the Plaintiffs’ land and the cost of the action.
At the conclusion of the trial, the court entered judgement in favour of the Respondents. Aggrieved by the trial court’s judgement, the Appellants have lodged the instant appeal before this court contending that the trial court erred in granting the reliefs in favour of the Plaintiffs/Respondents when the land is not certain in location and size and Plaintiffs did not establish exclusive possession of the disputed land.
At the conclusion of the trial, the court entered judgement in favour of the Respondents. Aggrieved by the trial court’s judgement, the Appellants have lodged the instant appeal before this court contending that the trial court erred in granting the reliefs in favour of the Plaintiffs/Respondents when the land is not certain in location and size and Plaintiffs did not establish exclusive possession of the disputed land.
HELD
Appeal Dismissed
ISSUE FOR DETERMINATION
Ø Whether the Respondents discharged the onus of proof on them so as to have the judgment of the trial Court in their favour?
RATIONES
CLAIM FOR TRESPASS TO LAND -PROOF IN A CLAIM FOR TRESPASS TO LAND
“It is a general principle of law that a claim for trespass to land is rooted only in exclusive possession and all that a claimant needs to prove is that he has exclusive possession or that he has the right to such possession of the land in dispute. However, once a defendant claims to be the owner of the land in dispute as in the present matter, title is put in issue and to succeed in his action, the plaintiff must establish by credible evidence that he has a better title to the disputed land than the defendant. See the cases of: (1) Omotayo v. C.S.A. (2010) 16NWLR (Pt.1218) p.1; (2) Amakor v. Obiefuna (1974) 1All NLR (Pt.1) p.119 and (3) Okorie v. Udom (1960) SCNLR p.326”. PER O. F. OMOLEYE, J.C.A
PROOF OF TITLE TO LAND - METHODS OF PROVING TITLE TO LAND
“The law is on firm ground as acknowledged by the learned counsel for the two sets of parties herein, that title to land may be proved by the following five methods viz:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. See the “locus classicus” case of: Idundun v. Okumagba (1976)9-10 SC p.227. Subsequently there are indeed a legion of authorities of the Apex Court and this Court on this well established position of the law. To mention but a very few, see also the cases of: (1) Okonji v. Njokanma (1999) 14NWLR (Pt.638) p.250; (2) Thompson v. Arowolo (2003) 4S.C. (Pt.II) p.108; (3) Dabo v. Abdullahi (2005) 7NWLR (Pt.923) p.181; (4) Otukpo v. John (2012) 7NWLR (Pt.1299) p.357; (5) Olaniyan v. Fatoki (2013) 17NWLR (Pt.1384) p.477 and (6) Awodi v. Ajagbe (2015) 3NWLR (Pt. 1447) p.578”. PER O. F. OMOLEYE, J.C.A
PROOF IN A CLAIM FOR TITLE TO LAND - ONUS AND STANDARD OF PROOF IN A CLAIM FOR TITLE TO LAND
The law is equally trite that the above set out methods of proof are not conjunctive. Hence, reliance on and proof of any one of the methods would suffice to entitle a plaintiff to the declaration of title to the land in issue. Just as in other civil matters, the onus and standard of establishing a claim of title to a disputed land is on the plaintiff upon a preponderance of evidence or balance of probabilities. See Sections133(1) and 134 of the Evidence Act, Cap. HB.214, Vol. 98, Laws of the Federation of Nigeria, 2011. A plaintiff must also rely absolutely on the strength of his case and not the weakness of the defence except where that defence tends to strengthen or support the plaintiff’s case. See the “locus classicus” case of; Kodilinye v. Mbanefo Odu (1935) 3 W.A.C.A. p.336 and also the cases of: (1) Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) p.252; (2) Eze v. Atasie (2000) 9WRN p.73 at p.88; (3) Adesanya v. Aderonmu (2000) 9NWLR (Pt.672) p.370 and (4) Shittu v. Fashawe (2005) 14NWLR (Pt.946) p.671. This is much more so, where the defendant does not file a counter claim, as in the instant case, the burden of proving title to the land in dispute rests heavily on the claimant. PER O. F. OMOLEYE, J.C.A
PROOF - WHETHER THE ONUS OF PROVING THE EXISTENCE OF A FACT IS STATIC
“However, the legal position in civil matters of which the instant case is a specie in line with Section 133(2) of the Evidence Act (Supra) is that, after the party asserting the existence of a fact has adduced evidence which ought reasonably to satisfy a Jury or Court that the fact sought to be proved is established, the burden lies or shifts on the party against whom judgment would be given if no more evidence were adduced and so on successively, until all the issues in the pleadings of the parties have been exhaustively dealt with. Hence, the onus of proof unlike in criminal cases is not static.PER O. F. OMOLEYE, J.C.A
PROOF OF TRADITIONAL HISTORY - ELEMENTS A CLAIMANT RELYING ON TRADITIONAL HISTORY MUST ESTABLISH
“Where a claimant relies on traditional evidence and it is found to be cogent, it will be sufficient to sustain his claim. A claimant relying on traditional history must plead and establish with credible evidence the following elements viz:
(i) Who founded the land;
(ii) In what manner the land was founded; and
(iii) The names and particulars of successive owners through whom he claims.
See the cases of: (1) Nrilawa v. Ebuzoeme (2006) 9NWLR (Pt.985) p.217; (2) Lawal v. Olufowobi (1996) 10NWLR (Pt.477) p.177; (3) Mogaji v. Cadbury (Nig.) Ltd. (1985) 2NWLR (Pt.7) p.393 and (4) Akinloye v. Eyiyola (1968) NMLR p.92”.PER O. F. OMOLEYE, J.C.A
TRADITIONAL HISTORY - WHAT IS TRADITIONAL HISTORY?
“In the circumstance, it is the narrative description and account beyond the living memory of the narrator, of who founded and in what manner the land in dispute was founded and the successive inheritors down to the claimants. In the case of: Dike v. Obi Nzeka II (1986) 4NWLR (Pt.34) p.144 the Supreme Court per Oputa, JSC (of Blessed Memory) at page 158, paras. F – G on the nature of traditional evidence pointedly held as follows:
What then is traditional history or traditional evidence? When is such evidence relevant? Traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land. Traditional evidence is a bit of ancient history. It is hearsay evidence only elevated to the status of admissible evidence by the statutory provision of Section 44 of the Evidence Act, Cap 62 of 1958 Laws of the Federation of Nigeria. This Section provides:
“S.44: When the title to or interest in family or communal lands is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant”.
- PER O. F. OMOLEYE, J.C.A
EVALUATION OF EVIDENCE - DUTY OF A JUDGE IN THE EVALUATION OF EVIDENCE
“On what a proper judgment entails, the Supreme Court long ago restated its earlier stance in the case of: Oladehin v. Continental Textile Mills Ltd. (1978) 2 S.C. p. 17, in the following words:
It is the duty of a trial Judge to evaluate relevant and material evidence and decide the issues raised on the pleadings before him. He cannot abandon that duty by taking refuge in the clouds of “I believe” and “I do not believe” without really evaluating the evidence of vital witnesses. If he abandons this duty, the use of the expressions “I believe” and “ I do not believe” will not estop the appeal court from itself evaluating the evidence and seeing whether there is any justification for the use of such expressions. [See Alhaji Akibu V. Joseph Opaleye (1974) 11SC 189 at 803]. -------------
---------------------We would repeat here what this Court pointed out and observed in the case of: Chief S. O. Gbadamosi V. Aderogba Ajao SC.462/66 Delivered On The 24th Of June, 1968, therein Ademola, C.J.N. delivering the judgment of the Court said: “In our view, when there are materials before a judge upon which he is to assess the evidence of a witness, it is not enough for the judge to say that he believed that witness without proper evaluation of his evidence upon which he could base his belief”.
See also the cases of: (1) Duru v. Nwosu (1989) 4NWLR (Pt.113) p. 24; (2) Ogolo v. Ogolo (2003) 18NWLR (Pt.852) p. 494 and (3) Agala v. Okusin (2010) 10NWLR (Pt.1202) p. 412”. PER O. F. OMOLEYE, J.C.A
CROSS-EXAMINATION - WHAT IS CROSS EXAMINATION?
“Cross-examination has been described as the “noble art” which constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. Cross-examination if rightly employed, is a potent tool for perforating falsehood. See the cases of: (1) Oforlette v. State (2000) 3 NSCQR p. 243 and (2) Ayan v. State (2013) 15 NWLR (Pt.1376) p.34. Thus cross-examination is the index with which to measure the truth of the evidence-in-chief of witnesses. The veracity of a witness under examination-in-chief can be tested by the evidence elicited from him under the heat of cross-examination. For in the eyes of the law, the evidence garnered through cross-examination is more reliable and dependable than that through examination-in-chief. See the cases of: (1) Adeosun v. Gov., Ekiti State (2012) 4 NWLR (Pt.1291) p.1 and (2) Okulege v. Adesanya (2014) 12 NWLR (Pt.1422) p.521”. PER O. F. OMOLEYE, J.C.A
ONUS OF PROOF IN CIVIL CASES - WHETHER THE ONUS OF PROOF IN CIVIL CASES IS FIXED?
“The law is trite that in civil cases, the onus of proof is not as fixed on a plaintiff as it is on the prosecution in criminal cases. Thus in civil cases, the general burden of proof in the sense of establishing his case lays on the plaintiff, but such burden is not static as in criminal cases. Therefore, there will be instances in which on the state of the pleadings, the burden of proof will be on the defendant equally as the case progresses. Such a situation will arise when it may become the duty of the defendant to call evidence in proof of his own assertions or rebuttal of some particular points which may arise in the case. See the cases of: (1) Osawaru v. Ezeiruka (1978) 6-7 SC p.135 at p.145; (2) Adejoke v. Adibi (1992) 5NWLR (Pt.242) p.410 at p.423; (3) Oyude v. Ogedegbe (1984) 1SC p.360 at p.363 and (4) Ogbu v. Wokoma (2005) 14NWLR (Pt.944) p.118”. PER O. F. OMOLEYE, J.C.A
FINDINGS OF A COURT - DUTY OF AN APPELLATE COURT NOT TO INTERFERE WITH THE FINDINGS OF A TRIAL COURT
“The law is trite that in such a situation, an appeal court should abhor interfering with such findings as it did not have the privilege, which is the exclusive preserve of the trial judge, of seeing, hearing and observing the demeanor of the witnesses, especially as touching on primary evidence. See the cases: (1) Ebba v. Ogodo (1984) 4S.C. p. 75; (2) Awudu v. Daniel (2005) 2NWLR (Pt. 909) p. 199; (3) Eyo v. Onuoha (2011) 2 – 3S.C. (Pt.1) p. 220 and (4) VAB Petroleum Inc. v. Mike Momah (2013) LPELR – 19770 (SC).” PER O. F. OMOLEYE, J.C.A
ADDRESS OF COUNSEL- WHETHER AN ADDRESS OF COUNSEL CAN SERVE AS A SUBSTITUTE FOR EVIDENCE
“The law is trite, that counsel’s address is not a substitute of evidence. See the cases of: (1) Mains Ventures Ltd. V. Petroplast Ind. Ltd. (2000) 4NWLR (Pt.651) p.151 at p.166; (2) Niger Construction Ltd. V. Okugbeni (1987) 4NWLR (Pt.67) p.787 and (3) Afribank Nig. Plc. V. Homelux Construction Company Ltd. (2008) LPELR – 9020 (CA)”. PER O. F. OMOLEYE, J.C.A
SURVEY PLAN - PURPOSE OF A SURVEY PLAN IN A LAND DISPUTE
“The essence of ascertaining the exact area of a land in dispute is to enable the parties or anybody claiming through them for trespass or injunction to know the exact area that will be affected by the judgment or any order of injunction made by the court. Therefore, the purpose of a survey plan in a land dispute is to identify such land and delimit it with sufficient particularity. However, the law is equally very well settled that a survey plan is not a “sine qua non” in every land case. This is especially so when both parties and the court knew precisely what piece of land was being disputed. See the cases of: (1) Etiko v. Aroyewun (1959) SCNLR p.308; (2) Araba v. Asanlu (1980) 6SC p.78; (3) Banjo v. Aiyekoto (1973) 1All NLR p.210 and (4) Okonkwo v. Okonkwo (2010) 14NWLR (Pt. 1213) p.228. In the case of: Omokanye v. Adini (2012) LPELR – 7943 (CA) this Court per Agube, JCA, had the following to say on this well established legal position thus:
It may be conceded as submitted by counsel to the Respondent that boundaries of land held under native law and customs are identified by streams, rivers, stones, roads and particular species of trees and that Survey Plans, beacons and dimensions are unknown to land under native law and custom. However, even under custom, the dimensions of land are always proved by relating to the boundary neighbours or features like streams, rivers, stones and special species of trees as located on the four cardinal points of front, back, right and left, in other words North, South, East and West. See per Belgore, JSC (as he then was) in Ajao v. Adigun (1993)3 NWLR (Pt.282) 389 at 397 paras. C - D. (The underlining is mine for emphasis).
- PER O. F. OMOLEYE, J.C.A
INSPECTION OF A “LOCUS IN QUO” - PURPOSE OF AN INSPECTION OF A “LOCUS IN QUO”
“The law is fairly settled that the inspection of a “locus in quo” is strictly not necessary where the area of land in dispute is clear to the court and the parties. In which case, the trial court must arrive at its judgment not on the impressions from the “locus in quo” but upon its impressions from the evidence led before the court. For the purpose of an inspection of a “locus in quo” really is primarily for enabling the court to understand the questions that are being raised at the trial regarding the specificity and identity of the disputed land, follow the evidence and properly apply such evidence in arriving at a just determination of the case. See the cases of: (1) Briggs v. Briggs (1986) 5NWLR (Pt.41) p. 362; (2) Obi v. Mbionwu (2000) 6S.C. (Pt.II) p.73 and (3) Ukaegbu v. Nwololo (2009) 3NWLR (Pt.1127) p. 194”. PER O. F. OMOLEYE, J.C.A
APPEAL - MEANING OF AN APPEAL
The law is well grounded that, an appeal is a continuation of the case put forward by parties before a lower court. It is a judicial examination by a higher court of the decision of an inferior court. An appeal is a resort to a superior court to review the decision of an inferior court and find out whether on the facts placed before it, and applying the relevant and applicable law, the inferior court came to a right or wrong decision. Therefore, a party cannot maintain on appeal a case diametrically opposed to the one maintained at the trial in the lower court. See the cases of: (1) A.-G., Oyo v. Fairlakes Hotel Ltd. (1988) 5NWLR (Pt.92) p.1; (2) Fatumbi v. Olanloye (2004) 6-7S.C. p.68 and (3) O.S.I.E.C. v. A.C. (2010) 19NWLR (Pt. 1226) p. 273. The only exception to this general rule is where in very special cases, leave of the appellate court is first sought and obtained to raise a fresh issue for the first time on appeal. PER O. F. OMOLEYE, J.C.A
AVERMENTS IN PLEADINGS - STATUS OF AVERMENTS IN PLEADINGS ON WHICH NO EVIDENCE IS ADDUCED
“It is a well settled principle of law that pleadings can not constitute evidence. Hence averments in pleadings on which no evidence is adduced are deemed to have been abandoned and as mere averments, and they do not constituted proof of such facts unless such facts are admitted by the adverse party. Equally, by virtue of Section 59 of the Evidence Act (Supra), a previous judgment is a relevant fact and admissible to bar a second suit or trial. And by Section 131 also of the Evidence Act (Supra), the Appellants have the burden of proving the existence of the said previous judgment allegedly given in favour of the 1st Appellant. What is more, a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff, is deemed to have accepted and rested the particular substance of his case so pleaded, on the facts adduced by the other side, that is, the plaintiff. See the cases of: (1) Woluchem V. Gudi (1981) 5SC p. 291; (2) Basheer V. Same (1992) 4 NWLR (Pt. 236) p. 491 and (3) Ifeta V. S.P.D.C. Nig. Ltd. (2006) 8NWLR (Pt. 983) p. 585”. PER O. F. OMOLEYE, J.C.A
PERVERSE DECISION - INSTANCES WHERE A PERVERSE DECISION CAN ARISE
“There are a galaxy of decisions of the Apex Court and this Court on the characteristics of a perverse judgment. In the case of: Udengwu v. Uzuegbu (2003) 13 NWLR (Pt.836) p.136, the Supreme Court per Uwaifo, J.S.C. (Rtd.) at p. 152, paras. C – D succinctly set out the characteristics of a perverse judgment as follows:
A perverse decision of a court can arise in several ways. It could be because the court ignored the facts or evidence; or that it misconceived the thrust of the case presented; or took irrelevant matters into account which substantially formed the basis of its decision; or went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or committed various errors that faulted the case beyond redemption. The hallmark is invariably, in all this, a miscarriage of justice, and the decision must be set aside on appeal. See Atolagbe v. Shorun (1985) 1NWLR (Pt.2) 360; Adimora v. Ajufo (1988) 3NWLR (pt.80) 1; Agbomeji v. Bakare (1998) 7S.C. (Pt.1)10; (1998) 9NWLR (Pt.56)1; Odiba v. Azege (1998) 7S.C. (Pt.1)79; (1998) 9NWLR (Pt.566)370.
- PER O. F. OMOLEYE, J.C.A
“JUDGMENT BEING AGAINST THE WEIGHT OF EVIDENCE” - MEANING OF “JUDGMENT BEING AGAINST THE WEIGHT OF EVIDENCE”
There is nothing sacrosanct about the phrase, “judgment being against the weight of evidence”. The phrase simply means that, when the evidence adduced by the respective parties in an action is balanced, the judgment given in favour of one party is against the weight which should have been given to the totality of the evidence before the Court. It is a non-specific and an untamed complaint”. PER O. F. OMOLEYE, J.C.A
FINDINGS OF COURT - DUTY OF AN APPELLATE COURT NOT TO INTERFERE WITH THE FINDINGS OF A TRIAL COURT WHERE IT HAS DISCHARGED ITS RESPONSIBILITY
“The law is settled that where the trial Court has discharged its responsibility, the appellate court will not interfere with the findings of the trial court. See also the cases of: (1) Fagbenro v. Arobadi (2006) 7NWLR (Pt. 978) p.172; (2) Agbi v. Ogbeh (2006) 11NWLR (Pt. 990) p. 65; (3) Otukpo v. John (2012) 7NWLR (Pt.1299) p. 357 at p. 384, paras. A – C and (4) Dakolo v. Rewane-Dakolo (2011) 16NWLR (Pt. 1272) p. 22 at p. 60, paras. E – G. What is more, the law is quite trite that an appellate court is in as a good position as the trial court to evaluate the evidence where there can be no dispute about any relevant specific fact”. PER O. F. OMOLEYE, J.C.A
TRESPASS - LEGAL INFERENCE ON THE ACTS OF TRESPASS
“In the absence of valid title, the Appellants’ purported possession of and the various acts of ownership exercised by them on the land in dispute have most assuredly amounted to acts of trespass, this is the proper legal inference. See the cases of: (1) Ekpo v. Ita (1932) 11NLR p.68; (2) Da Costa v. Ikomi (1968) 1All NLR p.394 and (3) Egbuta v. Onuna (2007) LPELR – 8244 (CA)”. PER O. F. OMOLEYE, J.C.A
TRESPASS - ELEMENT OF ACT OF TRESPASS
“For the law is trite that any infraction of a right of possession into the land of another without the consent of that owner is an act of trespass actionable without any proof of damages. See the cases of: (1) England v. Palmer (1955) 14W.A.C.A. p. 659 and (2) Ajibulu v. Ajayi (2004) 11NWLR (Pt. 885) p.458 .” PER O. F. OMOLEYE, J.C.A
INJUNCTIVE RELIEF - ESSENCE OF AN INJUNCTIVE RELIEF
“An injunctive relief is designed in law to give effect and force to successful claims for declarations and further acts of trespass in property matters. What this means is that an order of injunction will be properly awarded where a claim for declaration or trespass has or both have been proved and duly granted. An injunctive relief has been described as an equitable remedy, though without a life of its own, is symbiotic or parasitic on declaratory and trespassory claims. Hence, once a court grants the claims for declaration and or trespass, the law mandates the court to meet these claims coupled with a prayer for an injunctive relief with approval and equally grant same. This was the view of this Court per Ogbuinya, J.C.A., in the earlier case of: Lambe v. Aremu (2012) LPELR – 9359 (CA). See also the cases of : (1) Udo v. Incorporated Trustees of Christian Methodist Episcopal Church (2008) LPELR – 8548 (CA) and (2) Cobham v. Duke (2004)2NWLR (Pt.856) p.150”. PER O. F. OMOLEYE, J.C.A
STATUTE REFERRED TO
Evidence Act, 2011