ALHAJI TIJANI ABDULLAHI AHMED V. MR. J. A. ADEDOKUN

CORAM

Peter Olabisi Ige Justice of the Court of Appeal

UGOCHUKWU ANTHONY OGAKWU JUSTICE OF THE COURT OF APPEAL

DANLAMI ZAMA SENCHI JUSTICE OF THE COURT OF APPEAL

PARTIES

ALHAJI TIJANI ABDULLAHI AHMED

APPELLANTS

MR. J. A. ADEDOKUN

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, JUDGMENT, LAND LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The disputed land in this action is situate at and known as Plot 123, Kubwa Commercial Layout in the Bwari Area Council of the Federal Capital Territory, Abuja. The parties trace their presence on the disputed land to a common vendor, one Gumuzu (Nigeria) Limited. The parties were engaged in contestation as to who was entitled to the land. However, it was the Appellant that blinked first.

He instituted proceedings before the High Court of the Federal Capital Territory, Abuja. In its decision, the Court held that the Appellant did not prove his claim and dismissed his case in its entirety. Peeved by the decision of the lower Court, the Appellant appealed against the same.

HELD

Appeal dismissed

ISSUES

Whether on the preponderance of evidence and balance of probability, the lower Court rightly held that the Appellant did not prove his case?

RATIONES DECIDENDI

ISSUES – WHEN ISSUES FORMULATED ARE INTERTWINED

The issues formulated by the Appellant are intertwined and interwoven; indeed, the Appellant’s submissions on the respective issues are repetitive given the fact of the interconnectivity of the issues. This being so, it seems to me that a sole distensible issue, which will be cumulative with the issues formulated by the parties and not as alternative to them. See SANUSI vs. AMOYEGUN (1992) 4 N WLR (PT 237) 550-551 and NEKA B.B.B. MANUFACTURING LTD vs. ACB (2004) 17 NSCQR 240 at 250-251, will suffice for the determination of this appeal.– Per U. A. Ogakwu, JCA.

BURDEN OF PROOF – BURDEN OF PROOF WHEN THERE IS NO COUNTER-CLAIM

I have already set out the reliefs claimed by the Appellant. Even though the parties traced their presence on the land to a common vendor, the Respondent did not counter-claim or seek any relief from the lower Court. The reliefs claimed were by the Appellant; so, it was for him to establish by credible evidence his entitlement to the reliefs sought. The burden of proof rested squarely on him. There was no duty on the Respondent to prove anything. See ADEKANBI vs. JANGBON (2007) ALL FWLR (PT 383) 152 at 160, 163 and 165, OWOEYE vs. OYINLOLA (2014) ALL FWLR (PT 721) 1458 and NIKAGBATSE vs. FRENCH (2014) LPELR (23310) 1 at 25-26. – Per U. A. Ogakwu, JCA.

CLAIMS – WHEN A CLAIM FOR DAMAGES FOR TRESPASS IS COMBINED WITH A CLAIM FOR INJUNCTION

The Appellant has made a foofaraw with his submission that he did not claim a declaration of title. That is correct. However, from the reliefs claimed, the Appellant claimed reliefs for injunction and damages for trespass. It is rudimentary law that when a claim for damages for trespass is combined with a claim for injunction as in this case, then title is in issue and the issue of title must be resolved before the claims for damages for trespass and injunction would be determined. See ONYERO vs. NWADIKE (2011) LPELR (8147) 1 at 39, ONOVO vs. MBA (2014) LPELR (23035) 1 at 36-37 and ANEKWE vs. NWEKE (2014) LPELR (22697) 1 at 27-28. – Per U. A. Ogakwu, JCA.

PROOF – DUTY OF PROOF WHEN A CLAIMANT TRACES HIS TITLE TO A VENDOR

The law is that a claimant who traces his title to a vendor is enjoined by law to prove the title of his vendor: EYO vs. ONUOHA (2011) 195 LRCN 38 at 83 or (2011) LPELR (1873) 1 at 58, OTANMA vs. YOUDUBAGHA (2006) 2 FWLR (PT 308) 1995 at 2016 or (2006) LPELR (2821) 1 at 23 and RAPHAEL vs. EZI (2015) 12 NWLR (PT 1472) 39 at 53. – Per U. A. Ogakwu, JCA.

GRANT OF INTEREST OVER LAND – ON WHO CAN GRANT INTEREST OVER LAND IN THE FEDERAL CAPITAL TERRITORY – PROOF OF POSSESSION

It is effulgent from the above pericope from the decision of the lower Court that the lower Court did not make any declaration in favour of the Federal Government and Minister of the Federal Capital Territory. Rather, after expounding the law, the lower Court rightly held that it is only the Minister of the Federal Capital Territory that can validly grant interest over land in the Federal Capital Territory and that the grant made to Gumuzu (Nigeria) Limited by the Abuja Municipal Area Council is invalid. See MADU vs. MADU (2008) LPELR (1806) 1 at 34-35, MICAH vs. HON. MINISTER OF THE FCT (2018) LPELR (44917) 1 at 14, FHA vs. EKPUNOBI (2021) LPELR (55741) 1 at 21-25, ZAKARI vs. JIBRIN (2022) LPELR (57119) and SANI vs. AYE (2022) LPELR (58094) 1 at 16-19.

The implication of the finding of the lower Court that the title of the common vendor of the parties is invalid is that both parties are trespassers and as trespassers who claim to be in possession, it is the person with better right to possession that will be entitled to the grant of the relief claimed. The law remains that even where contending parties are unable to prove title to a disputed land, as in this case, the Court can still decide the case based on acts of possession and actual physical possession of the land. See ISEOGBEKUN vs. ADELAKUN (2012) LPELR (15516) 1 at 56-57, GWAMILE vs. IDIH (2018) LPELR (44139) 1 at 16-19 and SANI vs. AYE (supra) at 23. – Per U. A. Ogakwu, JCA.

EVIDENCE – CONDUCT OF APPELLATE COURTS WITH REGARDS TO EVIDENCE

The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation. GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27. It is hornbook law that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48. The law is that the conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. In ENANG vs. ADU (1981) LPELR (1139) 1 at 15-16, Nnamani, JSC (of blessed memory) intoned: "It has been established by several authorities that a Court of appeal must approach the findings of fact of a trial Judge with extreme caution. The principles under which a Court of appeal can interfere have been well settled. A Court of appeal which has not had the same advantage which the trial Judge has enjoyed of seeing the witnesses and watching their demeanour would only disturb the findings of fact of such a Court where it is satisfied that the trial Judge has made no use of such an advantage. If the trial Court has unquestionably evaluated the evidence before him, it is not for the Court of appeal to re-evaluate the same evidence and come to its own decision. See A. M. Akinloye v. Bello Eyiyola & Ors. (1968) NMLR 92 at page 95, Steamship Houtestroom (Owners) v. Steamship Cagaporack (Owners) (1927) AC 37, Fatoyinbo and Ors. v. Williams (1956) 1 FSC 87, Lawal v. Dawodu & Ors. (1972) 1 All NLR 270, 271, Agedegudu v. Ajenifuja & Ors. (1963) 1 All NLR 109 114. This Court has in the recent case of Chief Victor Woluchem and Ors v. Chief Simon Gudi & Ors (supra) at pages 326-330 and pages 295 and 296 reiterated these principles. I would for purposes of emphasis set down the principles formulated by the House of Lords in Watt (or Thomas) v. Thomas (1947) 1 All ER 582: These are as follows: ‘Where a question of fact has been tried by a Judge without a jury and there is no question of mis-direction of himself by the judge, an appellate Court which is disposed to come to a different conclusion on the evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the judge's conclusions. The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate Court either because the reason given by the trial judge are not satisfactory or because it unmistakably so appears from the evidence may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court." – Per U. A. Ogakwu, JCA

EVIDENCE – WHETHER APPELLATE COURTS CAN EMBARK ON FRESH APPRAISAL OF EVIDENCE

It is hornbook law that for the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98. In the words of Idigbe, JSC in BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47:

“It is now settled that if there has been a proper appraisal of evidence by a trial Court, a Court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence, then it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.” At the risk of being prolix, I restate that an appellate Court will not substitute its own views with those of the trial Court, when as in the instant appeal, the trial Court has unquestionably evaluated the evidence and justifiably appraised the facts. See NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1, AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT 571) 534 or (1998) LPELR (222) 1 at 19-20 and SANI vs. AYE (2022) LPELR (58096) 1 at 50. The evaluation of evidence and the findings made by the lower Court are not perverse. An appellate Court will not lightly interfere with the same unless for compelling reasons. See OGBECHIE vs. ONOCHIE (1988) 1 NWLR (PT 47) 370, MAKINDE vs. AKINWALE (2000) 1 SC 89 and AGBOMEJI vs. BAKARE (1998) 9 NWLR (PT 564) 1. There are no reasons to interfere. Therefore, there is absolutely no basis on which this Court can intervene. From all I have said thus far, the inevitable summation is that the Appellant has failed to displace the presumption that the conclusion of the lower Court on the facts are correct in order to upset the judgment on the facts. EHOLOR vs. OSAYANDE (supra) at 43 and ONI vs. JOHNSON (supra) at 11-13. I have duly considered the Appellant’s submissions against the background of the dilatable issue for determination distilled by the Court. The onus is on an appellant to satisfy the appellate Court that the decision on appeal is wrong. Where he fails to do this, the decision appealed against will be allowed to stand. MACAULAY vs. TUKURU (1881-1911) 1 NLR 35 at 40, AKINLOYE vs. EYIYOLA (1968) NMLR 92 at 95, OBISANYA vs. NWOKO (1974) 6 SC 69 at 80, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 326-330 and OBODO vs. OGBA (1987) 1 NSCC (VOL. 18) 416 at 421. – Per U. A. Ogakwu, JCA.

LAND – WHERE A CLAIM FOR TRESPASS COUPLES WITH AN INJUNCTION OVER A LAND

In agreeing with the finding and conclusion reached in the lead judgment, I find it imperative to juxtapose the Appellant's grievance against the Respondent and what the position of the law is as regards seeking remedy. It is the law that where a claim for trespass couples with an injunction over a land is before a Court, the claimant by his claims automatically places his title to the parcel of land in issue and assumes the burden of prove of a better title to the land because his claims already presupposes ownership of the land in dispute and/or has had, prior to the trespass exclusive possession of the parcel of the land. See the cases of AJASA & ORS v ELEGBEDE & ANOR (2016) LPELR-41933 (CA), ADEGBESAN & ANOR V ILESANMI (2017) LPELR-42552 (CA), UZOIJE V UZOCHUKWU (2018) LPELR- 44262 (CA) and OKANOLA & ANOR V ELESU (2021) LPELR-56003 (CA). – Per D. Z. Senchi, JCA

TRESPASS – WHEN A PERSON IS IN POSSESSION AS A TRESPASSER

…the acceptable principle of law stipulates that where both parties admits to an original owner or fails to prove title to a parcel of land, the title is often than not, given to the party who proves a better title to the parcel of land in dispute. PER OGAKWU JCA, had this to say in buttressing this position of the law where both parties fail to prove title to a parcel of land in dispute in case of SANI V AYE & ORS (2022) LPELR-58094 (CA) (Pp. 20-24 paras E-A)" The kerfuffle made by the Cross-Appellants on the lower Court having held that they were trespassers has to be properly contextualised. I iterate that the toreadors laid claim to ownership of the disputed land and claimed/counter-claimed for a declaration in that regard. They all relied on allocation from Area Council as their root of title. They further claimed to be in possession of the disputed land. The lower Court having rightly held that the document of title issued by Area Council was ineffective to vest title of land in the Federal Capital Territory on any person, then rightly concluded that since they were on the land without valid title that they were both trespassers. So when properly contextualised, the decision of the lower Court is that since the Cross-Appellants and Appellant/Cross Respondent did not have title to the land, they were at best trespassers. In the words of the lower Court at page 302 of the Records: "At best both Plaintiff and the Defendant are trespasser to the land in question. Having held that both parties are not entitled to the land in issue and could not have been the beneficial owner in that respect”. I shall examine the documents tendered by the parties to ascertain who actually the law tilt in his favour in term of first trespasser." It is correct that the lower Court held that the Cross-Appellants made out their case on preponderance of evidence, but it was not as it relates to title but in the context of ascertaining which of the trespassers had a better right to possession. In the words of the lower Court "who actually the law tilt in his favour in term of first trespasser." It is therefore not anticlimactic for the lower Court to hold that the Cross-Appellants, who it had held did not have valid and effective documents of title were trespassers. In ENEH vs. OZOR (supra) at 241 relied on by the Cross-Appellants, the apex Court, inter alia, held as follows: "Indeed, the tort of trespass is so, inextricably, tied to possession that a person in possession of land, even as a trespasser, can sue another person who thereafter comes upon the land. In other words, a person who has no title over a piece of land, but who is in possession, may successfully sue for trespass if an entry is made into the land without his consent… However, such a person cannot proceed against the owner or someone who shows some title which gives him a better right to be on the land." See also OLANIYAN vs. FATOKI (2003) 13 NWLR (PT 837) 273 at 286, OLOWOLAGBA vs. BAKARE (1998) 3 NWLR (PT 543) 528, AROMIRE vs. AWOYEMI (1972) 2 SC 1 and EZE vs. ATASIE (2000) 10 NWLR (PT 676) 471. This is the basis on which the lower Court found in favour of and acted on the evidence of the Cross- Appellants, as trespassers in possession, who had a better right to possession and who were in possession before the Appellant/Cross Respondent. The law remains that even where contending parties are unable to prove title to a disputed land, as in this case, the Court can still decide the case based on acts of possession and ownership. See ISEOGBEKUN vs. ADELAKUN (2012) LPELR (15516) 1 at 56-57 and GWAMILE vs. IDIH (2018) LPELR (44139) 1 at 16-19. The lower Court correctly applied the law in this regard when it held as follows at pages 310-311 of the Records: "Indeed, Plaintiff has adduced sufficient oral and documentary evidence to support their claim even though in law they can only be referred to as a trespasser to the land in question. It is the law that even a trespasser in possession can successfully maintain an action in trespass against all the world except the true owner… Plaintiff for all intent and purposes is deserving of his reliefs but not against the true owner." See EKRETSU vs. OYOBEBERE (1992) LPELR (1099) 1 at 27-28, NGENE vs. IGBO (2000) LPELR (1987) 1 at 19 and ANYABUNSI vs. UGWUNZE (1995) LPELR (503) 1 at 17." – Per D. Z. Senchi, JCA