ALHAJI MAHMUD SANTURAKI HASSANVS VIXEN ENTERPRISES NIG. LTD

Legalpedia Citation: (2015-12) Legalpedia 01871 (CA)

In the Court of Appeal

YOLA JUDICIAL DIVISION

Thu Dec 3, 2015

Suit Number: CA/J/236/2014

CORAM

SIR ZOE THOMPSON JSC

STEPHEN PINKRAH JSC

PARTIES

ALHAJI MAHMUD SANTURAKI HASSAN

APPELLANTS

VIXEN ENTERPRISES NIG. LTD

RESPONDENTS

AREA(S) OF LAW

LAW OF TORT, LAW OF CONTRACT, LAW OF EVIDENCE, CIVIL PROCEDURAL LAW, COMPANY LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This appeal is against the Judgment delivered at the High Court of Gombe State (trial Court). The Appellant who was Plaintiff at the High Court claimed that he is the owner of piece of land in kwami town covered by Customary Right of Occupancy issued by Kwami Local Government Council in respect of which the 1st defendant through its representative approached him in the year, 2008 to indicate interest to lease the land upon the agreed rent of N1, 200, 000. 00 per annum but without any payment being made the Defendant unlawfully entered the land and installed communication equipment thereon. The Defendants on the other hand has it as their case that having identified the land of the Plaintiff as being suitable for the erection of their telecommunication mast and facilities, they negotiated and agreed with the Appellant an annual rent of N60, 000. 00 per annum of the portion of Plaintiff land to be leased for a term certain of 15 years subject to 30 % upward review after five years. It is their case that when the first advance rent for five years totaling N300, 000. 00 was paid, the Appellant signed the lease agreement through his wife on April 30, 2008 and that they have since been in undisturbed possession and occupation of the land hence their entry unto that land was lawful. The trial High Court in its Judgment found for the defendants/Respondents and dismissed the claim. Not satisfied with the Judgment of the trial High Court the Plaintiff has appealed to this Court.

HELD

Appeal dismissed.

ISSUES

1.Whether from the evidence on record, he Lower Court was not right to have held that the Appellant failed to prove a case of trespass against the Respondents. (Grounds 1, 2, 3 and 7 of the Amended Notice of Appeal).

Whether from the evidence on record, the trial Court was not right to have held that the Appellant is bound by the lease agreement dated April, 30 2008(Grounds 4, 5, 6 and 8 of the amended Notice of Appeal.

RATIONES DECIDENDI

TRESPASS – MEANING OF TRESPASS

Trespass is the unauthorized and unlawful entry upon the land in possession of another person or is a direct or immediate interference with another person’s possession of the land. See: Black’s Law Dictionary, 8th Edition by Garner at page 1541. See further decisions in Omorhirhi V. Enate V. Were (1988) NWLR (Pt. 73) 7 46; Berebo V. Birriyah (1976) 6 SC 34, Shittu V. Egbeyemi (1996) 6 NWLR (Pt. 107) 650; Anthony Idesoh&Ors. Vs. Chief Paul Ordie (1997) 2 SCNJ 175, 181; Jimlari V. Jauro LPELR- 4356 (CA); Adeleya V. Franoiki (1990)2 NWLR (Pt. 131) 137; Osho Vs. Foreign Finance Corp. (1991) 4 NWLR (Pt. 184) 157 or (1991) 5SC 59; Fasunwa Vs. Adibi (SC) (2004) 17 NWLR (Pt. 903) 544.

TRESPASS – WHEN IS THE ACT OF TRESPASS COMMITTED

An act of trespass is committed where the defendant without lawful justification:

1.Enter upon land in the possession of the Plaintiff, or

2.Remain upon such land, or3.Directly places or projects any material object upon such land. See: Nigerian Law of Torts at page 177 by Kodinleye.

TRESPASS – ON WHOM LIES THE BURDEN OF PROOF

The burden of proof therefore lies with the person who makes the assertion of wrongful or unlawful and unjustifiable entry into the land in the possession of another. PER – SAIDU TANKO HUSAINI, JCA

TRESPASS – WHETHER OR NOT THE BURDEN DUTY IS FIXED BY LAW

This burden duty on the appellant is fixed by law. See Section 131-133 of Evidences Act, 2011 which requires of him to prove any facts so positively asserted by him. See: Fanmuroti V. Agbeka (1991) 8 NWLR (Pt. 189) 1, 13; C.O.P Vs. Oguntayo (1993) 6 NWLR (Pt. 299) 259,268. PER – SAIDU TANKO HUSAINI, JCA

HEARSAY EVIDENCE – THE POSITION OF THE LAW ON THE ADMISSIBILITY/INADMISSIBILITY OF HEARSAY EVIDENCE

Hearsay evidence is inadmissible and if admitted the same should not be acted upon. Such evidence is unhelpful to the Appellant. The law forbids it except under certain circumstances. See: Pharmacist Board of Nigeria Vs. Adegbesola (1986) 5 NWLR (Pt. 44) 707; Management Enterprise Ltd Vs. Otunsanya (1987)2 NWLR (Pt. 55) 179; Musa Ikeria Vs. The State (2012) LP ELR – 15533 (sic). PER – SAIDU TANKO HUSAINI, JCA

TRESPASS – WHO HAS THE RIGHT TO MAINTAIN AN ACTION IN TRESPASS

Issue of trespass to land or property is not about ownership of land or property rather the issue is one of possession or interference with the possessory right of another. It is the person or party who has possession of property or land that has right to maintain action in trespass. Any form of possession is sufficient to maintain action against a wrong doer so long as it is clear and exclusive. See: Jiaza V. Hassan Bangbose (1999) 7 NWLR (Pt. 610) 182; Adelaja V. Fannoiki (1990) 2 NWLR (Pt. 131) 137; Atuyanse V. Sunmola (1985) 1 NWLR (pt. 105). PER – SAIDU TANKO HUSAINI, JCA

TRESPASS – WHETHER OR NOT A PERSON WHO IS NOT IN POSSESSION CAN MAINTAIN AN ACTION

A person who is not in possession as it is with the appellant, cannot sue in Trespass. See: Akibu V Agey (2003) 5 NWLR (Pt. 814) 643) 670, where the apex Court held:

“As the Plaintiff was not in possession and had no right to it since he had no title to the land, he could not sue in trespass”

It is for this same or similar reason that the trial Court in its findings has held that the Appellant, being no longer in possession of the premises, he could also not maintain action in trespass against the Respondents who are in possession. PER – SAIDU TANKO HUSAINI, JCA

DOCUMENT – MEANING OF DOCUMENT

I have carefully considered those submissions of Counsel on both sides. Exhibit “E”, the lease agreement is no doubt a document within the meaning of Section 258 (1) of the Evidence Act which defines “document” to include:

“(a) Books, maps, plan, graphs, drawings, photographs, and also includes any matter expressed or described upon any substance by means of letters figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter…”

This Court in Udoro & Ors V. Governor , Akwa Ibom State (2008) LPELR-409 (CA) has held thus: “Also in Black’s Law Dictionary, 6th Edition at page 489 “document” was defined as:

“An instrument on which is recorded, by means of letters, figures or marks, the original, official or legal form of something, which may be evidentially used.” In this sense the term “document” applies to writing, to words printed, lithographed, or photographed, maps or plans, to seal, plates or even stone on which inscription are cut or engraved. In the plural, the deeds, agreements, tithe papers, letters, receipts, and other written instruments used to prove a fact. Within the meaning of the best evidence rule, document is any physical embodiment of information or ideas; e.g. a letter, a contract, a receipt, a book of account a blue print, or an X-ray plate.”

PER – SAIDU TANKO HUSAINI, JCA

DOCUMENT – HOW IS THE CONTENT OF A DOCUMENT PROVED

The question now is how is the content of a document to be proved?

The Evidence Act at Section 85 provides that “The contents of documents must be proved either by primary or secondary evidence.”But by reason of the provision of Section 88 of the Evidence Act, the litigant is required to prove the contents of his documents by primary evidence only except in circumstances provided for under Section 89 of the same Act or where primary evidence is not available. See: The registered Trustees of the Port Harcourt Christian Council Project Vs. Sunday G. O. Amadi (2010) LPELR-9119 (CA; Uzor Vs delta Freege Nigeria Ltd (2010) LPELR-9114(CA) PER – SAIDU TANKO HUSAINI, JCA

EVIDENCE – MEANING OF PRIMARY EVIDENCE

Primary evidence means the document itself produced for the inspection of the Court. That is the language of Section 86 (1) of the Evidence Act. See: Densy Industry (NIG.) Ltd Vs. Sunday Uzokwe (1999) 2 NWLR (Pt. 591) 392). By that it means any document tendered or produced as evidence other than the original in that natural state is not primary evidence and same liable to be discountenanced except for reason coming under Section 89 of the Evidence Act. Thus resort cannot be had to secondary evidence at the first instance without necessary compliance with the procedure for the admissibility of such secondary evidence as a pre-condition. PER – SAIDU TANKO HUSAINI, JCA

SECONDARY EVIDENCE – WHEN DOES SECONDARY EVIDENCE COME IN

Secondary evidence comes in handy only where proper foundation has been laid as to why it is not possible of the litigant to prove his case by primary evidence. See: Ogunbadejo Vs. Owoyemi (1993) 1 NWLR (Pt. 271) 577, 528, Mika V. R. (1963) ANLR 218, 220-221; Ude Vs. Osuji (1990) 5 NWLR (Pt. 151) 488, 573 Eme V. Wamuch (1991) 7 NWLR (pt. 203) 375, 388. PER – SAIDU TANKO HUSAINI, JCA

COMMON SEAL – THE COMMON SEAL OF A COMPANY SHOULD BE AFFIXED IN A CONTRACT DOCUMENT WHERE A COMPANY IS A PARTY

It is apparent on the face of Exhibit “E” that the common seal of the respondents company was not affixed to the lease agreement even though the attestation clause so suggest. In a proper contract document where one of the parties is an incorporated company the attestation clause should be that the seal of the company is affixed in the presence of the witness. See: Mobil Producing Nigeria Unlimited Vs. Etukudo (2011) LPELR – 4494 (CA). Without the “common seal” being affixed, there is nothing to witness and the Director and Secretary signing as witness as it appears on the document have in fact and in law witnessed nothing in the absence of a seal. In that circumstance, there is no due execution of Exhibit “E” by the respondents. PER – SAIDU TANKO HUSAINI, JCA

TRESPASS – WHAT A PLAINTIFF MUST PROOF TO SUCCEED IN AN ACTION OF TRESPASS TO LAND

Where one in possession of land is said to be a trespasser, the onus is on the person asserting such an allegation to establish either that he has a better title than the person in possession or that the person entered onto the land without his authorization and/or agreement. Thus, in order to succeed in an action of trespass to land, the plaintiff must prove and have present exclusive possessory title, i.e. he must be in exclusive occupation. PER – JUMMAI HANNATU SANKEY, J.C.A.

TRESPASS – TRESPASS TO LAND IS AN ACTIONABLE FOR A PERSON IN POSSESSION

It is a cardinal principle of law that if land is in possession of a tenant, it is the tenant, and not the landlord, who can sue for trespass. In almost all cases, it is the person in possession of the property who can sue for trespass. Consequently, it is the law, and the Supreme Court as well as this Court has held times without number, that trespass to land is actionable at the suit of the person in possession. Thus, the slightest possession in a party enables him to maintain an action in trespass if the other party cannot show a better title. The person who sues in trespass is the person in possession and the person out of possession only maintains the action when his reversion is damaged or threatened. The person not in possession does not maintain an action in trespass. See Kyari V Alkali (2001) LPELR-1728(SC); Adepoju V Oke (1999) LPELR-136(SC); & Ekpan V Uyo (1986) NWLR (Pt. 26) 63. PER – JUMMAI HANNATU SANKEY, J.C.A.

TRESPASS – ON WHOM LIES THE BURDEN OF PROOF IN A CASE OF TRESPASS

So, on whom lies the burden of proof in the case of trespass to land? It is the duty of the plaintiff to prove conclusively that, before the alleged trespass, he was in exclusive possession. Where he fails to discharge this onus of proof, he has failed to establish his claim and therefore it must be dismissed. Besides, the law is trite that he who asserts must prove. In addition, the burden of proof in civil cases is on him who will fail if no evidence at all on either side is adduced. See Sections 131, 132 and 133 of the Evidence Act, 2011; Egharevba V Osagie (2009) LPELR-1044(SC); Noibi V Fikolati (1987) LPELR-2064(SC); Okoye V Kpajie (1972) LPELR-2508(SC). PER – JUMMAI HANNATU SANKEY, J.C.A.