MR. SAMAILA HAMMAJAUDA VS YAUBA DUHU & ORS

CORAM

OYEBISI FOLAYEMI OMOLEYE (PJ), JUSTICE COURT OF APPEAL

JAMES SHEHU ABIRIYI, JUSTICE COURT OF APPEAL

SAIDU TANKO HUSAINI, JUSTICE COURT OF APPEAL

PARTIES

Mr. SAMAILA HAMMAJAUDA

1. YAUBA DUHU2. STEPHEN SAMUEL ALAHIRA

AREA(S) OF LAW

SUMMARY OF FACTS

The claim of the Appellant against the Respondent before the High Court of Adamawa State holden at Yola was for Five Million Naira (N5, 000,000.00) damages for trespass to his parcel of land, an order of perpetual injunction and costs of the action. According to the Appellant, the Ministry of Lands and Surveys of Adamawa State allocated the property in dispute to his father and the piece of land is between the house of the 1st Respondent and that of the 2nd Respondent cause it was carved out from both houses. The Respondents aggrieved by the carving out of portion of land from their respective houses; tampered with the allocation made to the Appellant by encroaching on same. Despite the intervention of the Ministry of Lands and Surveys both Respondents continued to encroach on the land allocated to the Appellant by the Ministry, insisting that it was still part of their houses. In his defence, the 1st Respondent stated that he was allocated the three bedroom house with a boys quarters covering 2460.82 square metres. The Appellant’s father encroached on their land. The fencing permit granted to the Appellant’s father was for a different property. He himself was given a fencing permit covering 2460.82 square metres. While the 2nd Respondent stated that his father had the title documents to house No K61 with the same measurement as the house allocated to the 1st Respondent. The documents for the house, were destroyed by fire in his father’s house at Hong, hence an affidavit in support. The Court below heard evidence and visited the locus and at the end of the trial, dismissed the claim of the Appellant. The Appellant has therefore approached this Court by a Notice of Appeal, containing six Grounds of Appeal.

HELD

Appeal Dismissed

ISSUES

Whether the trial Court was right when it held that the Appellant had not proved his case on the preponderance of evidence. Whether the learned Trial Court Judge was right when he held that the evidence led by the Appellant did not relate to the description of land the subject matter of the dispute. Whether the learned Trial Judge was right in disbelieving the evidence of PW2 based on his demeanour when the witness was testifying on the basis of what he did, supported by documentary evidence of the acts when litigation was not anticipated. Whether the learned Trial Judge was right when he held that an affidavit of loss of public documents is admissible in evidence to prove the contents of the Public documents.

RATIONES DECIDENDI

TRESPASS TO LAND – NATURE OF AN ACTION FOR TRESPASS TO LAND

“Trespass to land is the wrongful invasion of the private property of another. Trespass to the land is actionable at the instance of the person in possession of the land. Trespass to land constitutes the slightest disturbance to the possession of land by a person who cannot show a better right to possession. When two parties are on the land claiming possession, trespass can be at the suit of that party who can show that title of the land is in him. Although a claim for trespass is rooted in exclusive possession, once the action for trespass includes a claim for injunction as in this case or the defendant asserts ownership of the land in dispute, title thereto is automatically put in issue and for the plaintiff to succeed, he must establish a better title than that of the defendant. See the following decisions of the Supreme Court in Okoko vs. Dakolo (2006) 14 NWLR (Pt. 1000) 401, Imona – Russel vs. Niger Construction Ltd (1987) 3 NWLR (Pt. 60) 298, Umeobi vs. Otukoya (1978) 4 SC 3, Fasikun 11 vs. Oluronke 11 (1999) 2 NWLR (Pt. 589) 1 at 4 and Udih vs. Idemudia (1998) 4 NWLR (Pt. 545) 231. Apart from the claim for an order of perpetual injunction which put title to the land in issue, each of the Respondents claims a portion of the land to which they have allegedly trespass into. Title to the disputed land is therefore automatically put in issue. –

PROOF OF OWNERSHIP OR TITLE TO LAND – WAYS OF PROVING OWNERSHIP OR TITLE TO LAND

“Since 1976 when Idundun vs. Okumagba was decided by the Supreme Court the Courts in this country have listed the following five ways in which ownership or title to land may be proved. These are: 1.By traditional evidence 2.By production of documents of title 3.By providing acts of ownership such as selling, leasing, renting out or farming on all or part of the land extending over a sufficient length of time or acts which are numerous and positive enough as to warrant the inference that the person is the true owner 4.By proving acts of long possession and enjoyment of the land. These are really more of a weapon of defence rather than offence (by Section 145 Evidence Act possession raises a presumption of ownership although this presumption can be defeated) 5.By proof of possession of connected or adjacent land in circumstances rendering it probable that the claimant is also owner of such adjacent land (Section 35 Evidence Act 2011). See Idundun vs. Okumagba (1976) 9 & 10 SC at page 246 – 250, Magaji & Ors vs. Cadbury Nigeria Limited & Ors (1985) 7 SC (Pt. 1) 59 at 153, Nkwo vs. Iboe (1998) 7 NWLR (Pt. 558) 354 SC and Adesanya vs. Aderounmu (2000) 6 SC (Pt. 11) 18. The Appellant tendered several documents including a right of occupancy in support of his claim. Undoubtedly production of document of title is one of the five ways of proving title to land. It is trite law that proof of one of the ways is sufficient. See Ayoola vs. Odofin (1984) 11 SC 120 and Adesanya vs. Aderounmu (2000) 6 SC (Pt. 11) 18. The pillar on which the Appellant’s claim to title is hinged is the Right of Occupancy granted to the Appellant’s father who has since gone to heaven. This is what the Court below stated in respect of the Right of Occupancy. –

PUBLIC DOCUMENTS – ADMISSIBILITY OF PUBLIC DOCUMENTS

“The sworn affidavit of loss of document by fire Exhibit S cannot be such evidence. As the documents which the 2nd Respondent relies on are from the Adamawa State Urban Planning and Development Authority and therefore public documents only certified true copies of those documents are admissible and no other. See Section 104 of the Evidence Act 2011, Araka vs. Egbue (2003) 7 SCNJ 114 at 123 and 124 and Onobruechere vs. Esegine (1986) 1 NWLR (Pt. 19) 799. –

CROSS EXAMINATION OF A WITNESS – EFFECT OF FAILURE OF AN ADVERSE PARTY TO CROSS EXAMINE A WITNESS ON A CRUCIAL AND MATERIAL PIECE OF EVIDENCE

“Where a witness is not cross examined on a crucial and material piece of evidence, the only conclusion is that the adverse party who ought to have cross – examined the witness accepts the evidence of the witness as true. See Ochiba vs. The State (2010) LPELR-2002 CA page 17 – 18, Babalola & Ors vs. The State (1989) LPELR-695, L.G.D.P.C. & Anor vs. Nigeria Land and Sea Foods Limited (1992) LPELR-1744 SC page 29, Broadline vs. Monterey (1995) 10 SCNJ 1 at 25 and Onoregbe vs. Lawani (1980) 3 – 4 SC 79 at 117. As the Appellant as PW1 was not cross examined, on the evidence that the Respondents erected a fence and planted some poles on the disputed land and have refused to remove them despite the intervention of the Ministry of Lands and Surveys, they hereby accepted the PW1’s evidence that they have trespassed on the land belonging to the Appellant. –