Legalpedia Citation: (2015-06) Legalpedia (CA) 41900

In the Court of Appeal

HOLDEN AT YOLA

Wed Jun 17, 2015

Suit Number: CA/YL/16/2014

CORAM

PARTIES

ELISHA KWEWUM

APPELLANTS

BAKO EYI (REPRESENTING EYI FAMILY & FRIENDS)

RESPONDENTS

AREA(S) OF LAW

APPEALS, LAND LAW, LAW OF EVIDENCE, LAW OF TORT, JUDICIAL INTERPRETATION, CIVIL PROCEDURAL LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Plaintiff Now Respondent by an amended writ of summons and with leave of court sued the Defendant now Appellant in a representative capacity at the High Court of Taraba State, claiming ownership of a piece of land situate and lying at Kpankufun village at Ka’apkun settlement area of Takum which was bounded to the east, west and north by streams and to the south by a land belonging to the Appellant and his relations. The Respondent claimed an order of injunction restraining the Appellant and his privies from further acts of trespass on the land, the sum of N500, 000.00 and N1.1 Million as general damages for trespass and removal of the Respondent’s crops on the disputed land respectively. The Respondent contended that he inherited the land from his father who deforested the land alongside his brothers and friends and have cultivated on it since then, whilst the Appellant on the other hand claimed he inherited the land from his father who also inherited it from his own grandfather who was the original founder of the land. Both parties gave descriptions and boundaries of the land in dispute. At the close of hearing after final addresses by Counsel for each party, the court was moved to the locus in quo for inspection of the land. At the locus, both parties agreed on the land in dispute and pointed out their boundaries also evidence of some of the boundary witnesses were also taken as they also pointed out the various boundaries they shared with the disputing parties. The trial court found for the Respondent and awarded damages of N50, 000.00 against the Appellant. Dissatisfied with the decision of the trial court, the Appellant have lodged the instant appeal before this court.

HELD

Appeal Dismissed.

ISSUES

Whether the reliance of the learned trial Judge on a purported visit to the land in dispute on 22nd March, 2013 in his judgment can be justified having regard to the transmitted record of proceedings particularly pages 161-163 of the said record.    Whether in view of submissions made by the learned counsel to the Appellant, the learned trial Judge was right when he did not resolve one way or the other the issue of identity of the land in dispute.    Whether having regard to the pleadings and evidence adduced by the Respondent before the trial Court, the learned Judge was justified in his decision declaring title to the Respondent in respect of the land in dispute.    Whether having regard to the pleadings and evidence adduced by the Respondent at the trial Court, the learned trial Judge was right when he held that the Appellant trespassed on the land in dispute.

RATIONES DECIDENDI

LOCUS IN QUO – PROCEDURE THAT CAN BE ADOPTED BY A TRIAL COURT ON A VISIT TO THE LOCUS IN QUO

Section 127 (2) (a) & (b) of the Evidence Act, 2011 lays down two procedures that can be adopted by a trial Court on a visit to the locus in quo as follows:

(a) The court may adjourn to the locus and continue sitting there in the normal way by hearing and taking evidence of witnesses; or

(b) The court may just move to the locus to inspect the subject matter in dispute and return to the court room for evidence.

In Enigwe V Akigwe (1992) NWLR (Pt. 225) 505 at 525-526, the Supreme Court stated the general principles in respect of such a visit to or inspection of the locus in quo as follows:

1. There is no rule of law which determines at what stage in a trial a visit of inspection must be made.

2. A court should undertake a visit to the locus in quo where such a visit will clear a doubt as to the accuracy of a piece of evidence when such evidence is in conflict with other evidence.

3. Where there are two conflicting pieces of evidence adduced by parties to a case, it is necessary to visit the locus in quo if such a visit can resolve the conflict in the evidence.

4. Where a trial Judge makes a visit to the locus in quo it is not proper for him to make his perception at the scene as a finding of fact without evidence of such perception being given by a witness either at the locus or later in court after the inspection.

5. On a visit to the locus in quo it is necessary for the trial Judge to make a record in the course of the proceedings of what transpires at the scene. However, if the trial Judge failed to make the record but made a statement in his Judgment about the visit, such statement would be taken as an accurate account of what happened and therefore final, unless the contrary can be established by the party that impugns the record.

6. Where a visit is made to a locus in quo evidence of witnesses can be received at the scene or in court later. But the parties, in that case, must be given the opportunity of hearing the evidence of the witnesses and where necessary be offered the opportunity of cross-examining the witnesses and commenting on the evidence.  PER – JUMMAI HANNATU SANKEY, J.C.A

 

LOCUS IN QUO – WHETHER OR NOT THE ABSENCE OF A RECORD OF INSPECTION OF A LOCUS IN QUO BY A JUDGE IS FATAL TO THE CASE

It is therefore settled law that the mere absence of a record of inspection of a locus in quo by the Judge is not necessarily fatal to the case and that a statement by the Judge in a solemn Judgment should be accepted as a correct account of what transpired thereat. In line with the decisions of the Apex Court on this, which are legion, I do not subscribe to the view by the learned Counsel for the Appellant that the evidence taken at the locus is a nullity, and by extension, the entire Judgment founded thereon, simply because the proceedings taken by the learned trial Judge as reflected in the printed Record are neither dated nor signed. Rather the law, in my view, is that such evidence, not properly authenticated, (as happened in the instant case), is to be expunged or discountenanced by the Court, such that if what remains of the evidence can still support the Judgment, it stays, if not, the Judgment is reversed and an order of dismissal or retrial is made as the circumstances require. See Aboyeji V Momoh (1994) LPELR-SC.292/1990; Awoyegbe V Ogbeide (1988) 1 NWLR (Pt. 73) 695 at 799 & 710; & Chukunogor V Obuora (1987) 3 NWLR (Pt. 61) 454 at 473; Yongo V OOP (1990) 5 NWWLR (Pt. 148) 104 at 114. Oputa JSC in Awoyegbe V Ogbeide (supra) articulated the position of the law clearly thus:

“It is enough to either expunge the things stated at the locus in quo or to discountenance them as irrelevant and proceed to determine the rest of the case according to substantial justice.” PER – JUMMAI HANNATU SANKEY, J.C.A

LAND IN DISPUTE – JUDICIAL INTERPRETATION OF LAND IN DISPUTE

“Land in dispute” has long since been given judicial interpretation by the Supreme Court in Ebvuhe V Ukpakara (1996) 7 NWLR 254 in these terms:

“The law is that the land in dispute is the area of the land Plaintiff is claiming in an action for title. In the instant case, the land in dispute is as shown on survey plan vide Exhibit A.” Again, in Adone V Ikebudu (2001) 8 NSCQR 180, the Supreme Court held that:

“The land in dispute in a claim for declaration of title to land or entitlement to a grant of statutory or customary right of occupancy in respect of land is none other than that put in issue and claimed by the Plaintiff. It is usually more particularly delineated in his survey plan and in respect of which the parties join issues. It must be clearly stated that the land in dispute in any suit is not that shown or claimed by the Defendant in his statement of defence and/or in his survey plan unless such a Defendant counter-claimed against the Plaintiff in respect of such land.” PER – JUMMAI HANNATU SANKEY, J.C.A

 

REPRESENTATIVE SUIT – FUNDAMENTAL PRINCIPLE UNDERLYING SUITS BROUGHT IN A REPRESENTATIVE CAPACITY

Thus, the fundamental principle underlying suits brought in a representative capacity is that there must be a common interest and a common grievance so that the relief claimed, if granted, would be beneficial to all those the Plaintiff purports to represent. It is therefore a question of substance whether they do have the same interest in one cause or matter. The law guiding actions in representative actions is as postulated by the Supreme Court in Ezeudu V Obiagwu (1996) 2 NWLR (Pt. 21) 210 as follows:

“All persons with the same interest in a land dispute range themselves on one side or the other. Sometimes they apply to be joined as parties. On other occasions they regard a named party as their champion. If he wins they reap the fruits of victory. If he fails they fail with him and must take the consequences. Therefore the fact that the Plaintiff sued in his personal capacity should be the least concern of the Defendants in that all those who claimed through the Plaintiff/Respondents would swim or sink with him through the Doctrine of Estoppel.”  PER – JUMMAI HANNATU SANKEY, J.C.A

 

TITLE TO LAND – PROOF OF TITLE TO LAND

The law has long since been settled in a long line of decided cases starting with the locus classicus Idundun V Okumagba (1976) 9-10 SC (Reprint) 140; (1976) NMLR 200 at 210; (1976) NSCC 445 at 453-454, per Fatai-Williams, JSC, (as he then was), that the five recognised ways by which a party can establish title to land are:

1. Proof by traditional evidence

1. Proof by production of document of title.

iii. Proof by acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the interference that the persons exercising such act are the true owners of the land.

1. Proof by acts of long possession and

1. Proof by possession of connected or adjacent land in circumstance rendering it probable that the owner of such land would in addition be the owner of the land in dispute.

See also Addah V Ubandawaki (2015) LPELR-SC.7/2012; Awodi V Ajagbe (2014) LPELR-SC.301/2007; Adeyefa V Bamgboye (2014) LPELR-SC.185/2003; Aiyeola V Pedro (2014) LPELR-SC.102/2004; Onwubuariri V Igboasoyi (2011) LPELR-SC.212/2003; Agboola V UBA Plc (2011) LPELR-SC86/2003; Ojoh V Kamala (2005) 2 SC (Pt. 11) 1 at 24; Ajibulu V Ajayi (2004) 11 NWLR (Pt. 885) 473 at 474; Uzochukwu V Eri (1997) SCNJ 238 at 246-247 para 40. Consequently, a party relying on evidence of traditional history must plead and prove the following:

1. The person who founded the land and exercised acts of possession;

2. How the land was found; and

3. The persons on whom the title to the land devolved from its founder to the plaintiff.

See Awodi V Ajagbe (2014) LPELR-SC.301/2007; Onwugbufor V Okoye (1996)1 SCNJ 1 at 21; Obioha V Duru (1994) 10 SCNJ 48 at 61; Piaro V Tenalo (1976) 12 SC 31. PER – JUMMAI HANNATU SANKEY, J.C.A

 

TITLE TO LAND – THE POSITION OF THE LAW ON CLAIM FOR TITLE TO LAND BY ACTS OF OWNERSHIP AND POSSESSION

Now the law is that, the acts of ownership and possession that would support a claim for title to land must extend over a sufficient length of time and must be numerous and positive enough to warrant the inference that the plaintiff is the true owner. PER – JUMMAI HANNATU SANKEY, J.C.A

EVALUATION OF EVIDENCE – THE POSITION OF THE LAW ON EVALUATION OF EVIDENCE AND THE ASCRIPTION OF PROBATIVE VALUE TO SUCH EVIDENCE

The law is trite that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the trial court who saw, heard and assessed the witnesses. Where a court of trial unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of this Court to substitute its own views for the views of the trial Court. The only duty on the appellate Court is to find out whether there is evidence on which the trial Court could have acted. Once there is sufficient evidence on record from which the trial Court made its findings of fact, the appellate court cannot intervene. See: BFI Group Corporation V BPE (2012) LPELR-SC.12/2008; Amadi V Nwosu (1992) 5 NWLR (Pt. 241) 273 at 280; Enang V Adu (1981) 11-12 SC 25 at 39. PER – JUMMAI HANNATU SANKEY, J.C.A

EVALUATION OF EVIDENCE – WHAT AN APPELLATE COURT WILL DO WHERE THE TRIAL COURT HAS DRAWN WRONG CONCLUSIONS OR TAKEN ERRONEOUS VIEW OF THE EVIDENCE ADDUCED BEFORE IT OR ITS FINDINGS OF FACT ARE PERVERSE

Where, however, the trial Court failed to make a proper use of the opportunity of seeing, hearing and observing the witnesses at the trial or to exercise his discretion properly, or where the findings cannot be regarded as resulting from the evidence or where it has drawn wrong conclusions to accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they do not flow from accepted evidence before the court, the appellate court will be at liberty to intervene and to make necessary findings from such evidence. See: Amadi V FRN (2008) LPELR-SC.331/2007; Onwugbufor V Okoye (1996) LPELR-SC252/1989; Ike V Ughoaja (1993) 6 NWLR (Pt. 301) 529 at 555. PER – JUMMAI HANNATU SANKEY, J.C.A

EVIDENCE – WHETHER OR NOT AN APPEALLATE COURT CAN SUBSTITUTE ITS OWN VIEW OF THE EVIDENCE LED AT THE TRIAL COURT

The law is that it is not the duty of the appellate court to substitute its own view for the evidence led at the trial. See: Calabar East Co-operative Thrift & Credit Society Ltd V Ikot (1999) LPELR-826(SC); (1999) 14 NWLR (Pt. 638) 225; NEPA V Alli (1992) 8 NWLR (Pt. 259) 279 at 303-304; Lokoyi V Olojo (1983)8 SCNLR 127.

I am therefore satisfied that no exceptional or special circumstances have been advanced by the Appellant why this Court should interfere with the findings of the lower Court. See Uche V Eke (1998) 9 NWLR (Pt. 564) 24; Iroegbu V Okwordu (1990) 6 NWLR (Pt. 159) 643. In Anyanwu V Mbara (1992) LPELR-516(SC); (1992) NWLR (Pt. 242) 386, the Supreme Court affirmed and cited with approval the finding of Olatawura, JCA, (as he then was), as follows:

“The ascription of probative value to evidence is primarily that of the lower court and the interference by an appeal Court on findings of fact is limited to a very narrow dimension. There is no special circumstance or justification on the printed records to interfere with the finding of fact made by the court below. An Appeal Court must attach the greatest weight to the opinion of the trial Judge who has the duty to see and indeed has seen and heard the witnesses. The Appeal Court must not disturb the findings of fact made by the trial Judge except where such findings are unsound – Omoregie V Idugiemwanye (1985) 2 NWLR (Pt. 5) 41 at 42.”  PER – JUMMAI HANNATU SANKEY, J.C.A

 

TRESPASS – MEANING OF TRESPASS

Going forward, it is settled law that trespass is actionable at the suit of the person in possession of the land. Thus, trespass to land in law constitutes the slightest disturbance to the possession of land by a person who cannot show a better right to possession.  It is an entry upon land or any direct and immediate interference with the possession of land. It follows that in order to maintain an action for trespass the plaintiff must have a present possessory title. Any form of possession, so long as it is clear and exclusive and exercised with the intention to possess, is sufficient to support an action for trespass. Even a trespasser can maintain an action in trespass against the world except the true owner – Graham V Esumai (1984) 11 SC 123 at 150. PER – JUMMAI HANNATU SANKEY, J.C.A

TRESPASS – THE CONDITION PRECEDENT TO A PLAINTIFF COMMENCING AN ACTION ON TRESPASS

It bears emphasis that for a plaintiff to institute or commence action on trespass, he must show that he is in exclusive possession, exclusive in the sense that he does not share his right of possession with any other person. A plaintiff needs not show ownership of the land; proof of actual possession can sustain an action in trespass. Put another way, a claim for trespass is not dependant on the claim for declaration of title, as the issues to be determined in the claim for trespass are whether the plaintiff has established his actual possession of the land and the defendant’s trespass on it, issues which are quite separate and independent to that on the claim for declaration of title. The slightest possession in the plaintiff enables him to maintain an action for trespass if the defendant cannot show a better title. PER – JUMMAI HANNATU SANKEY, J.C.A

TRESPASS – WHAT A DEFENDANT MUST SHOW TO DEFEAT A PLAINTIFF’S RIGHT TO SUCCEED ON A CLAIM FOR DAMAGES FOR TRESPASS

Conversely, in order to defeat the plaintiff’s right to succeed on the claim for damages for trespass, possession having been found to be in him, the defendant must show that he had a better title to the land in dispute. In other words, to resist the plaintiff’s claim, a defendant must show either that he is the one in actual possession or that he has a right to possession. See: Fagunwa V Adibi (2004) LPELR-1229(SC); (2004) 17 NWLR (Pt. 903) 544; Ngene V Igbo (2000) 4 NWLR (Pt. 651) 131 at 143; Bamgboye V Olusoga (1996) LPELR-736(SC); (1996) 4 NWLR (Pt. 444) 520;  Obijuru V Ozims (1985) 2 NWLR (Pt. 6) 167; Solomon V Mogaji (1982) 11 SC 1 at 37; Mbachu V Oshodi (1977) NCAR 326 at 343; Amakor V Obiefuna (1974) 3 SC 67 at 75-76; Ekwere V Iyiegbu (1972) 6 SC 116. PER – JUMMAI HANNATU SANKEY, J.C.A

SIGNATURE – IMPORTANCE OF A SIGNATURE ON A DOCUMENT

The importance of signature as a way of authenticating documents should not be underestimated. It is common knowledge that a person’s signature, written names or mark on document, not under seal, signifies an authentication of that document that such a person holds himself out as bound or responsible for the contents of such a document or record. See: TSALIBAWA Vs. HABIBA (1991) 2 NWLR (PT. 174) 461, 480-481. ADEFADASIN Vs. DAYAKH (2007) 11 NWLR (PT. 1044) 89; BOLAJI AKINSANYA Vs. FEDERAL MORTGAGE FUNANCE LTD. (2010) LPTLR-3687 I (CA). PER – SAIDU TANKO HUSAINI JCA

SIGNATURE – MEANING OF SIGNATURE

Signature is any mark which identifies it as the act of the person who made it. In the instant case on Appeal the proceedings at pages 162-163 of the record cannot be attributed to the trial Court as proceedings of that Court. As it stands this aspect of the proceedings is foreign to the record before us and same should be expunged. PER – SAIDU TANKO HUSAINI JCA

TITLE TO LAND – THE FIRST DUTY OF A PLAINTIFF WHO CLAIMS DECLARATION OF TITLE TO LAND

Now, the first duty of a Plaintiff who claims declaration of title to land is to prove the identity of the land in dispute over which he seeks a declaration of title with certainty as to its exact location, areas, boundaries and other features thereon with such accuracy that a Surveyor armed with the record of proceedings can based on the description therein draw up or produce a survey plan of the land in dispute. This is the first litmus test, amongst other equally important considerations, which a Plaintiff must assail and overcome if he is to succeed in his claim for declaration of title to land against a Defendant. See Alami Akanbi Dada V. Chief Joanthan Dosunmu (2006) 18 NWLR (Pt. 1010) 134 @ p. 176. S ee also Major Ojo V. Adeleke (2002) 18 NWLR (Pt. 768) 223. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

 

 

LAND IN DISPUTE – THE POSITION OF THE LAW WHERE PLEADINGS AND EVIDENCE SHOW THAT THE IDENTITY OF THE LAND IN DISPUTE IS NOT IN ISSUE

However where the pleadings and evidence show that the identity of the land in dispute is very well known to the parties and thus not in issue, then despite the tendency of parties to call the land in dispute by different names, as in the instant case, the courts have always seen through such contrivances to determine the real issues in controversy between the parties which is in reality is as between the parties who is the actual person entitled to be declared the owner or entitled to the right of occupancy over the land in dispute. See Aromire V. Awoyemi (1972) 1 All NLR (Pt. 1) 101 @ p. 113. See also Makanjuola V. Balogun (1989) 1 NWLR (Pt. 108) 192; Adenle V. Olude (2002) 9 10 SC 124; Aro V. Obaloro (1968) NMLR 238; Okosun Epi V. Aigbedion (1973) NNLR 31. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

PLEADINGS – WHEN IS A PLEADING DEEMED ABANDONED

How is the identity of land in dispute put in issue? It must be pointed out at once that the identity of land in dispute is not put in issue merely on address of counsel but rather it is put in issue of the averments in the pleadings of the parties and the subsequent evidence thereon in support of the pleadings. This is so because a party may put the land in dispute in his pleadings but where no evidence was led at the trial in support of such pleadings, the law is that such pleadings are deemed abandoned and therefore the identity of the land in dispute cannot ultimately be said to have been put in dispute to necessitate a finding thereon by the trial court. Thus, it is only where the identity of the land is put in issue both on the pleadings and the evidence led in support of the pleadings that the need to resolve first the identity of the land in dispute would arise, since in law pleading, which is mere notice of one party’s case to the other party, does not constitute evidence in themselves. Therefore, it is trite that facts pleaded in a pleading on which no evidence was called is deemed abandoned and thus goes to no issue in the resolution of the issues as joined by the parties. See Ishola Olusegun Lawson V. Afani Continental Co. Nig Ltd. & Anor. (2002) 2 NWLR (Pt. 752) 585. See also Olunfemi V. Asho (2000) 2 NWLR (Pt. 643) 143; Omoboriowo V. Ajasin (1984) 1 SCNLR108. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

CASES CITED

STATUTES REFERRED TO

Evidence Act, 2011

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