CORAM

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RAPHAEL CHIKWE AGBO JUSTICE OF THE COURT OF APPEAL

HAMMA AKAWU BARKA JUSTICE OF THE COURT OF APPEAL

BALKISU BELLO ALIYU JUSTICE OF THE COURT OF APPEAL

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PARTIES

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1. CCECC NIGERIA LIMITED

2. MR. AQUA (PROJECT MANAGER) APPELANT(S)

APPELLANTS 

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HON. OKONKON TOM UNANAM RESPONDENT(S)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, LAND, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

The Respondent (Claimant at the trial court) claimed to have bought the land in dispute (lying and situate opposite St. Benedict’s Primary School Ekpenyong/Mkpatak at Ekpenyong Ikot Esifon in Essien Udim Local Government Area) from his brother Mr. Imeh Luke of Ikot Esifon Village and has been in uninterrupted possession of it since 1975. That he planted thereon 200 oil palm trees; cassava stands on half acre of the land and over 50 stands of plantain since 1975. He claimed that sometimes in 2014, he went to the land to harvest palm fruits and he discovered that the Appellants, to whom the Akwa Ibom State Government awarded a contract for the construction of Ekpenyong Road, trespassed into his land by building a culvert and dug a deep drainage pit thereon, and then channeled water from the road into the land. He claimed that these actions of the Appellants destroyed the fertility of his land and 50 stands of economic trees thereon, particularly, 20 stands of plantain on the land. He wrote letters of complaint to the Appellants which were ignored, hence the filing of this suit seeking reliefs.

The Claimant (Respondent) sought damages for trespass and an injunction restraining the Appellants from further trespass of his land. The learned trial Judge delivered the vexed judgment wherein he found and held that the Respondent was entitled to part of the reliefs sought against the 1st Appellant only.

The Appellants felt aggrieved with the judgment and filed notice of appeal against it relying on an omnibus sole ground of appeal that: “The judgment of the lower Court is against the weight of the evidence.”

 

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether the judgment of the trial Court against the Appellant in favour of the Respondent is supportable in law having regards to the averments of both parties in the statements of claim and defence vis-à-vis the evidence led by both parties in support thereof?

 

 

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RATIONES DECIDENDI

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TRESPASS – WHAT IS TO BE DETERMINED IN THE CLAIM FOR TRESPASS

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The learned trial Judge was on strong legal footing to hold in pages 221-222 of the record (12-13 of the judgment), that in this suit, exclusive possession is all that the Respondent is required to prove against the Appellant since the title of the land was not in issue, especially that the Appellants neither claimed the title to the land nor that the title to the land resided in someone else other than the Respondent. There is a judicial consensus regarding the law of tort of trespass to land to that effect. I will refer to a few cases to buttress the point. In the case of SHITTU VS. EGBEYEMI & ORS (1996) LPELR- 3060 (SC) (Pg. 10, paragraph C), per OGUNDARE, JSC, the Apex Court held:

“Now, the law is that the claim for trespass to land is not dependent on a claim for declaration of title to this extent I agree with the learned Counsel for the plaintiff, Mr. Abimbolu but what is to be determined in the claim for trespass are whether (a) the plaintiff has established his actual exclusive possession of the land or the right to possession and (b) the defendants trespassed on it. Plaintiff need not prove that his possession is lawful since actual possession is what is required of him to prove. The actual possession is good against the whole world except the true owner or one that can show a better right of possession. See the recent case of Bamgboye v. Olusoga (1996) 4 NWLR (Pt. 444) 520.”

In OMOTOYO VS. C.S.A. (2010) 16 NWLR (PT. 1218) 1 (SC), the Apex Court held that trespass is an “injury to possessory right and its claim is not dependent on declaration of title” to the land. This is the reason why in the case of OLUWI VS. ENIOLA (1967) NMLR 339, a plaintiff whose title to the land was found to be defective was still successful in his claim for damages for trespass to the same land. The same principle of law was re-echoed in the cases of AYOOLA VS. ADEBAYO (1969) LPELR-25472 (SC), ADEYEFA & ORS VS. BAMGBOYE (2014) LPELR-2288, NDUKWE VS. ACHA (1998) 6 NWLR (PT. 552) 25, OZUZU VS. EMEWU(2019) 13 NWLR (PT. 1688) 143 (SC) and OYADARE VS. KEJI (2005) 7 NWLR (PT. 525) 571. Thus, the argument of the Appellants regarding minimal proof of the Respondent’s title to land goes to no issue and it is disregarded.  – Per B. B. Aliyu, JCA

 

 

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LOCUS IN QUO – PURPOSE FOR A VISIT TO LOCUS IN QUO

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Now the purpose for a visit to locus in quo is to enable the trial Judge inspect to see and observe the locus for himself physically so he can appreciate better the oral evidence led by the parties. The visit should and is meant to assist the trial Judge to fully understand the dispute between the parties so as to enable him properly evaluate the evidence and arrive at his decision. See KACHIRO VS. ZAKWOI (2022) LPELR-57879 (CA) and AYINDE & ORS. VS. OLANIYAN & ORS. (2016) LPELR-41469 (CA). – Per B. B. Aliyu, JCA

 

 

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LOCUS IN QUO – CONDUCT OF COURTS IN EVALUATION OF EVIDENCE FROM LOCUS IN QUO

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The Appellants in contending that the procedure or proceedings of the trial Court’s visit to locus in quo was defective referred us to the cases of ADEPONLE VS. AJALEBE & ANOR (supra) and MAMMAN & ORS VS. KOFAR-BAI (supra). I dutifully read the two authorities and found that in the case of Adeponle, the trial Court extensively recorded his observation without the input of the parties or their counsel and wrote his notes at the locus in quo. He later read what he observed and wrote at the locus in quo to the parties in open Court before proceedings to hear witnesses. On appeal, counsel of both parties were at one in submitting that the proceedings and the inspection of locus in quo were irregular and the Supreme Court upheld their submissions to be well founded when it observed that: "If a judge is of the view that it is necessary to substitute the eye for the ear in the reception of evidence and that such a course will assist in arriving at a decision, he may carry out an inspection of the locus in quo, but it must be constantly borne in mind that proceedings at an inspection form part of the trial, and that a visit to the locus cannot justify a relaxation or non- observance of the law of evidence or the rules of practice and procedure. We wish to observe that in the instant case, the object was not to view the locus so as to appreciate better the oral evidence already given at the trial. Anybody reading the notes will see that the Judge must have himself subjected a number of persons to questioning on various aspects of the case, without indicating that the parties agreed to this course…" (Underlining provided) It is because the learned trial Judge in that case descended into the arena that the Supreme Court to order for a retrial. In the case of Mamman Vs. Kofar-bai (supra), the proceedings at the locus in quo was faulted because the trial Court failed to make records of the evidence and of what transpired at the locus in quo. He did not make any reference to the evidence adduced at the locus in the judgment. – Per B. B. Aliyu, JCA

 

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EVIDENCE – DUTY OF TRIAL COURT TO EVALUATE EVIDENCE

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It is trite law that the function of evaluation of evidence is essentially that of the trial Court. And where, as in this case, the trial Court has efficiently discharged that duty, by justifiably appraising the facts placed before him, I, as an appellate Court have no business to interfere and to substitute my own views for that of the learned trial Judge. – Per B. B. Aliyu, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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Evidence Act, 2011

 

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