MR. AUGUSTINE EDET NYONG v. DR. IMMACULATA OBAJI

CORAM

Uchechukwu Onyemenam Justice Court of Appeal

Nnamdi Okwy Dimgba Justice Court of Appeal

Asmau Ojuolape Akanbi Justice of the Court of Appeal

PARTIES

MR. AUGUSTINE EDET NYONG

APPELLANTS 

DR. IMMACULATA OBAJI

RESPONDENTS 

AREA(S) OF LAW

LAND LAW, PROPERTY LAW, TRESPASS, EVIDENCE, TITLE TO LAND, APPEAL, PRACTICE AND PROCEDURE, DAMAGES, INJUNCTIONS

SUMMARY OF FACTS

This case revolves around a dispute over a parcel of land in Calabar metropolis. The Appellant (Mr. Augustine Edet Nyong) as the original Claimant filed a suit at the High Court of Cross River State against the Respondent (Dr. Immaculata Obaji) claiming ownership of a piece of land measuring approximately 3932.654 square meters located along Ndidem Usang Iso Extension, Ikot Effanga Mkpa, Calabar Municipality. The Appellant sought declarations of ownership, damages for trespass, and injunctive relief.

In response, the Respondent not only filed a Statement of Defence but also incorporated a counterclaim, asserting that she was the rightful owner of the land located at Water Intake Road, Ikot Effanga Mkpa, Calabar, measuring approximately 1032.555 square meters. She sought similar reliefs of declaration of title, damages for trespass, and injunctive relief.

At trial, the Appellant called two witnesses and tendered seven exhibits, while the Respondent called four witnesses and tendered eight exhibits. The High Court dismissed the Appellant’s claim as unmeritorious and granted the Respondent’s counterclaim, declaring her the owner of the disputed land, awarding damages of ₦1,000,000, and granting an injunction against the Appellant. The court found that both parties had neighboring parcels of land bought from the same Mkpoyo family, with the Respondent’s title predating the Appellant’s. Dissatisfied with this decision, the Appellant appealed to the Court of Appeal.

HELD

1. The appeal was dismissed.

2. The Court of Appeal affirmed the judgment of the High Court of Cross River State which had dismissed the Appellant’s claim and granted the Respondent’s counterclaim.

3. The Court held that the Respondent had successfully established her title to the disputed land, which predated the Appellant’s claim.

4. The Court found that the Appellant’s argument regarding the Respondent’s land being under government acquisition was without merit, especially as the government was not a party to the suit.

5. The Court determined that despite the different descriptions of the land in the parties’ pleadings, the evidence showed they were contesting the same parcel of land.

6. The Court upheld the award of damages and the order of perpetual injunction against the Appellant.

7. Costs of ₦500,000 were awarded against the Appellant in favor of the Respondent.

ISSUES

1. Whether in light of the Charting Report (Exhibit D15) which showed that the land claimed by the Respondent “is within Parcel A Government Acquisition” and the fact that both parties offered different descriptions of the location of the land in their claims before the Court, was the trial Court right to have nonetheless issued a declaration of title in favor of the Respondent?

2. Whether in the circumstances of this case, the lower Court was wrong in making an order of perpetual injunction and awarding damages against the Appellant in favor of the Respondent after a careful evaluation of the evidence?

RATIONES DECIDENDI

BURDEN OF PROOF FOR DECLARATION OF TITLE – RELIANCE ON STRENGTH OF ONE’S CASE

“The law is trite that a party seeking declaration of title to land must succeed on the strength of his case and not the weakness of the adversary. See Anyanru Vs. Mandilas Ltd (2007) 10 NWLR (Pt. 1093) p. 462; Maililu (Nig) Ltd v. Mai Ulu (Nig) Ltd (2019) LPELR-47688(CA). In a claim for declaration of title, the onus lies on the plaintiff to satisfy the Court that he is entitled to the relief on the evidence brought by him. If this onus is not discharged, the weakness of the defendant’s case will not help the plaintiff and the proper dispositive order is a dismissal of the suit.” – Per NNAMDI OKWY DIMGBA, JCA

RELIANCE ON GOVERNMENT ACQUISITION TO DEFEAT TITLE – WHEN IMPERMISSIBLE

“It is certainly disingenuous of the Appellant to contend that the Respondent’s own land formed part of ‘parcel A of Government acquisition’, while his own (the Appellant’s) was not, whereas the evidence shows that the plots of land in dispute are located in the same part or location of Calabar town and were contiguous to each other, such that it is inconceivable that a part of the same land will be under Government acquisition while another part of same will not.” – Per NNAMDI OKWY DIMGBA, JCA

SUIT – ADMISSIBILITY AND WEIGHT

“From the above observation, the Defendant’s charting was first in time, The Claimant’s charting was done after the institution of this suit. This suit was filed on the 16/1/2020, it is therefore obvious that the charting which produced Exhibit C7 was done in anticipation of this suit. It is settled principle of law that documents procured during the pendency or anticipation of a case are generally not admissible in evidence though admitted without objection by the opposing party. See Anagbado v. Faruk (2018) LPELR-44909 (SC). Hence, this Court will discountenance the said Exhibit in the determination of this case.” – Per NNAMDI OKWY DIMGBA, JCA

“From the above observation, the Defendant’s charting was first in time, The Claimant’s charting was done after the institution of this suit. This suit was filed on the 16/1/2020, it is therefore obvious that the charting which produced Exhibit C7 was done in anticipation of this suit. It is settled principle of law that documents procured during the pendency or anticipation of a case are generally not admissible in evidence though admitted without objection by the opposing party. See Anagbado v. Faruk (2018) LPELR-44909 (SC). Hence, this Court will discountenance the said Exhibit in the determination of this case.” – Per NNAMDI OKWY DIMGBA, JCA

“From the preponderance of evidence before the Court that the Claimant’s plot starts where the Defendants plot stops as demarcated to her on her Survey plan No. MA/CR/012/001 dated 20/1/2012 which is the same as Plan No, MA/010/022 OF 2/2/2010 showing an Area of 1032.555 sq. Metres with beacon stones SC/CR D3162C, SC/CR D3153C, SC/CR D3164C and SC/CR D3165C. This is so because her title is first in time to that of the Claimant in this case.” – Per A. M. OBI, J (Trial Court, as quoted by NNAMDI OKWY DIMGBA, JCA)

IDENTIFICATION OF LAND – EFFECT OF DIFFERENT DESCRIPTIONS

“Being ad idem on the identity of the land, the fact that different names were ascribed to it by the parties in their descriptions before the Court cannot be fatal to the counterclaim of the Respondent, nor attract blame to the trial Judge for granting same. Indeed, the law has long been settled that when parties have knowledge of the land they are contesting over, the fact that different names are used to describe it by the parties cannot defeat the claim of a party who has by the evidence adduced proved entitlement to the declaration of title.” – Per NNAMDI OKWY DIMGBA, JCA

PERPETUAL INJUNCTION – CONSEQUENTIAL RELIEF FOR DECLARATION OF TITLE

“An order of perpetual injunction is based on the final determination of the rights of the parties and is intended to prevent permanent infringement of those rights and obviate the necessity of bringing an action after an action in respect of every such infringement. See Goldmark (Nig) Ltd & Ors Vs. Ibafon Co Ltd & Ors (2012) LPELR-9349 (SC). What this means is that the remedy of perpetual injunction is usually given as a necessary consequential relief to protect a land from being broken into, where declaration of title has been made in favour of a party.” – Per NNAMDI OKWY DIMGBA, JCA

TRESPASS – ACTIONABILITY PER SE AND ENTITLEMENT TO DAMAGES

“And on damages, the law is also settled that trespass is actionable per se, and once established, automatically attracts damages in favour of the claimant. See Amu v. Ukuta (2020) LPELR-49943(CA); Enyioko & Ors v. Onyema & Ors (2017) LPELR-42623(CA).” – Per NNAMDI OKWY DIMGBA, JCA

EVALUATION OF EVIDENCE IN LAND CASES – BALANCING SCALES

“In the discharge of its primary duty of evaluation of the evidence adduced by parties during trial, the trial Court is duty bound to put the two sets of facts on an imaginary scale, weigh the duo one against the other, and then decide which side it preponderates and carries more weight. See MIJINYAWA V. BALEWA (2023) 3 NWLR (PT. 1871) 417CA.” – Per UCHECHUKWU ONYEMENAM, JCA

TRESPASS – NATURE AND ELEMENTS

“Trespass to land is an unjustified interference or intrusion with exclusive possession of land. If the defendant placed a part of his foot on the plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it. It does not depend on the intention of the trespasser. Nor can he plead ignorance as to the true owner or that he thought the land belonged to him. It is enough that the right of the owner or person in exclusive possession was invaded.” – Per UCHECHUKWU ONYEMENAM, JCA

TRESPASS AB INITIO – ABUSE OF AUTHORITY

“Where a person who initially entered upon a piece of land lawfully of pursuant to an authority given by the true owner or a person in possession subsequently abuses his position or authority, he becomes a trespasser ab initio, his conduct relating back so as to make his initial entry trespass. See W.D.P. DEV. CO. LTD. V. TRADE WHEELS LTD. (2022) 8 NWLR (PT. 1832) 247 SC; BAMALI V. TOGUN (2023) 14 NWLR (PT. 1905) 411 CA.” – B

PROOF OF TRESPASS – EXCLUSIVE POSSESSION

“In a claim for trespass to land, proof is rooted in exclusive possession. All that the plaintiff is required to prove is that he has right of exclusive possession over the land in dispute. However, where the defendant claims ownership of the same piece of land, which identity must not be in dispute, title is put in issue, and the law at this juncture would ascribe possession to the party with a better title, see W.D.P. DEV. CO. LTD. V. TRADE WHEELS LTD, (2022) 8 NWLR (PT. 1832) 247 SC; BAMALI V. TOGUN (2023) 14 NWLR (PT. 1905) 411 CA.” – Per UCHECHUKWU ONYEMENAM, JCA

APPELLATE INTERFERENCE WITH DAMAGES – WHEN PERMISSIBLE

“The law is also settled that in all matters of discretion such as the award of damages, the appellate Court is to defer to the decision of the lower Court, and should interfere only where such a decision is perverse. In African Newspapers Nigeria Plc. v. Useni (2015) 3 NWLR (Pt. 1447) 464 at 500, it was recognized that an appellate Court can indeed interfere with a trial Court’s exercise of its discretion on damages when satisfied that: a) it acted upon a wrong principle of law; b) it acted under misapprehension of facts; c) it took into account irrelevant matters or failed to take into account relevant matters; d) injustice will result if the appellate Court does not interfere; e) the amount awarded is either ridiculously too high or very small as to make it in the judgment of the appellate Court an entirety erroneous estimate of the damages to which the plaintiff is entitled.” – Per NNAMDI OKWY DIMGBA, JCA

PROOF IN CIVIL CASES – PREPONDERANCE OF EVIDENCE

“In a claim for declaration of title to land/ just as in all civil actions, the onus is on the claimant to establish his title upon a preponderance of evidence or on the balance of probability. However, he must succeed on the strength of his own case and not on the weakness of the defence. See AMADI V. ORLU (2023) 14 NWLR (PT. 1904) 319 SC; ANI V. EFFIOK (2023) 8 NWLR (pr. 1887) 453 SC.” – Per UCHECHUKWU ONYEMENAM, JCA

CASES CITED

STATUTES REFERRED TO

• Evidence Act 2011

• Constitution of the Federal Republic of Nigeria, 1999 (as amended)

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