Chief Christopher I. Monkom & Ors V. Augustine Odili (2009)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the judgment of O. I. Itam, J of the High Court of Cross River State sitting at Ogoja in Suit No: HJ/55/2007 delivered on 15/3/2006.
The respondent, as plaintiff instituted proceedings against the appellants, who were the defendants at the trial court, claiming:-
1. Declaration that the Plaintiff being a Nigerian citizen is free to acquire and own property any where in Nigeria including Ogoja, and that Defendants efforts in preventing or attempting to prevent Plaintiff from acquiring No. 42 Mission Road, Igoli – Ogoja covered by certificate of occupancy No. OG389/91 dated the 15th day of December, 1991 is unlawful, illegal, null and void.
2. N10,000,000.00 (Ten Million Naira) being Special, Aggravated and general damages for trespass on the 4th day of June 2001, 12th day of June 2001 and continuing on the piece and parcel of land aforesaid which is in lawful and peaceable possession of the Plaintiff.
3. An order of perpetual injunction restraining the Defendants either by themselves, their agents, servants, workers, privies, and or assigns, from further trespassing into the said piece or parcel of land with a view to disturbing or preventing the Plaintiff or his agents or workers from carrying any manner of work whatsoever in violation of Plaintiffs, right to exclusive possession, usership and enjoyment of same (See Amended statement of Claim filed on March 31, 2003).

In furtherance of the claim the respondent testified for himself and called 3 other witnesses. The appellants chose or elected not to call any witness in support of the averments in their statement of defence. Rather, they rested their case on that of the respondent. The appellants made a no case submission at pages 24-26 of the record. At the conclusion of the case the learned trial judge entered judgment in favour of the respondent as per his claims under paragraph 26 (1) and (3). In respect of the claim for damages the trial judge awarded the respondent the sum of N120,000 as special damages and a further sum of N50,000 as general damages.

Dissatisfied with the judgment of the trial court, the appellants appealed to this court on 5 grounds on 2/5/2006. The appellants on the 22/3/07 filed an application for leave to file and argue one additional ground of appeal, which was granted by this court. From the 6 grounds of appeal the appellants distilled 5 issues for determination in the appellants brief dated 8/4/2008 and filed on 9/04/2008. The issues are as follows:-
1. Whether the learned trial judge was right in failing to resolve the issues of rejection of the deed of assignment and the alienation of the land in dispute without the consent of the governor? (Additional ground).
2. Whether the learned trial judge was right in making injunctive orders and award of damages for trespass over rights derived from the Suitland which was alienated without consent and rejected in evidence? (Ground 1).
3. Whether the trial judge was right in holding that title to land was not in issue? (Ground 2).
4. Whether the trial judge was correct when he held that the defendants frustrated the efforts of the Plaintiff to obtain consent to assign?
(Ground 3)
5. Whether the trial judge was right in awarding damages in favour of the Plaintiff in the face of the Evidence before the court? (Ground 5).

The respondent, in his brief dated 2/3/2009 and filed on 17/3/09 but deemed properly filed and served on 18/3/09 by this Court, distilled one issue for determination as follows:-
Whether the rejection of the deed of assignment, which has no Governor’s consent, and also as unregistered registrable instrument as exhibit was fatal to or crashes the whole case of the respondent.

The respondent in his brief replied to issues Nos. 3, 4 and 5 raised in the appellants’ brief.
Learned counsel for the appellants, submitted that the learned trial judge erred in Law and misdirected himself when he completely ignored and failed to resolve the issue of the deed of assignment, given the fact of want of consent and non-registration and consequent rejection in evidence. Counsel submitted that the above issues were central to the defence of the appellant and they informed their approach and strategies in marshalling their defence. When the deed of assignment was rejected the defendants found no need to even as much as cross-examine PW1, in the belief that the bottom has been knocked off the respondent’s case because the respondent relied on documentary evidence to locate his interest on the land.
Having rejected the deed of assignment the court was prevented from admitting oral evidence to prove the transaction between PW1 and the Plaintiff and the appellants rested their case on that of the respondent, for the above reasons.
Counsel also submitted that courts have a mandatory duty to pronounce on all issues placed before it. Counsel cited a host of cases in support of this submission; notable among them is Brawal Shipping Ltd vs., Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) 378 at 403-404. He then concluded that the failure of the trial Judge to resolve the issue of consent and rejection of the deed of assignment has denied the appellants of their right to fair hearing and occasioned a serious miscarriage of justice.

On issue No.2, Learned counsel contended that the learned trial judge erred in law in proceeding to make injunctive order and award of damages for trespass in favour of the respondent after holding that the deed of assignment which was the basis of the respondents case was neither registered nor consent sought before its alienation.
Counsel referred to Sections 22 and 26 of the Land Use Act 1978 and submitted that by their combined effect, the alienation of the right of occupancy in Certificate of Occupancy No. OG/389/91 and transfer of possession to the respondent were illegal null and void. He relied on Brossette Manufacturing Nig. Ltd. v. M/S Ilemoso (2007) 14 NWLR (Pt. 1001) 109 at 138, 109; Awojugbe Light Ind. Ltd vs. Chinukwe (1995) 1 NWLR (Pt. 390) 379. He concluded that a person cannot acquire possession of land based on an instrument or transaction that has been declared unlawful, null and void. He relied on Akinterinwa vs. Oladunjoye (2000) 6 NWLR (Pt. 659) 92 at 115 at 116 and Saleh vs. Munguno (2006) 15 NWLR (Pt. 1001) 26 at 630-631.

On issue No.3, Counsel submitted that the learned trial Judge erred in Law and misdirected himself on the facts when he made a finding of fact that the appellants frustrated the efforts of the respondent to obtain consent to assign. He referred to the letters written by the appellants to stop the appropriate authorities from giving consent to the transaction between the respondent and PW1 were written after the respondent had commenced the action and an order ex-parte obtained and served on the appellants, therefore the letters cannot be used in the determination of this action as they were acts that transpired during the pendency of the action.

On issue No.4, Learned Counsel submitted, that the learned trial Judge erred in law when he held that title was not in issue because it is trite law that where there is a claim for trespass and injunction, title is invariably and automatically put in issue. He relied on Yusuf vs. Keinsi (2005) 13 NWLR (Pt. 943) 554 at 573; Olohunde vs. Adeyoju (2000) 10 NWLR (Pt. 676) 562 at 580. Counsel concluded on this issue, that the appellants were in possession of the land in dispute even before the respondent. In paragraphs 4 and 5 of the Statement of defence, the appellants averred that the land in dispute was duly allocated to the 3rd appellant.

On issue No.5, counsel submitted that the trial Judge erred in law and misdirected himself on the facts when he awarded the sum of N120,000.00 as special damages to the respondent when same was not proved. He then urged the court to allow the appeal.
For the respondent, it was contented on issue No.1, that the rejection of the deed of Assignment in evidence in the court below did not crash the case of the respondent as his case was not centered on the said document. Relying on Olohunde vs. Adeyoju (supra), counsel submitted that in a claim for trespass and injunction, the party that will succeed as between the plaintiff and the defendant is the one that holds a better title to the land in dispute. He pointed out that the appellants before the trial court, in paragraph 4 of their Statement of defence, stated that the 3rd appellant was allocated the land in dispute for the purpose of building her premises. Having put their title in issue, the pendulum of proof swung to them after the evidence of the respondent stating the root of their title.
Counsel pointed out that the appellants abandoned their pleading and their case, they refused to call even a single witness to adduce any evidence in support of their case. There is therefore nothing for the court to resolve.    Following the ratio in the case of Olohunde vs. Adeyoju (supra), the issue now is as between the appellants and the respondent who has a better title. Counsel then submitted that the law ascribes the better title to the respondent, being the only party that led evidence in proof of his acquisition.
On the deed of assignment, the respondent contended that it was rejected by the trial court for the reason stated by the court at page 12 of the record based on the fact that there was no consent and also the deed was unregistered being a registrable instrument, therefore there is nothing to resolve again concerning the document.
The respondent also contended that the appellants abandoned their statement of defence at the trial but they took active part in all the proceedings until judgment was delivered so they cannot complain about fair hearing. It was also contended that the respondent being a purchaser of land is in possession of the land by virtue of a registable instrument which has not been registered and has paid the purchase money, then he has acquired an equitable interest in the land which is as good as a legal interest and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity as was decided in Awaogbo vs. Eze (1995) 1 SCNJ 157 at 168-9. Counsel pointed out that the appellants have not shown any interest whatsoever to defeat that of the respondent and the respondent who is in possession can maintain an action against another trespasser. He referred to Ude vs. Chimbo (1998) 12 NWLR (Pt. 577) 169 and Olagbenro vs. Ajagungbade (1990) 3 NWLR (Pt. 136) 37. Counsel contended that Section 22 of the Land Use Act does not prohibit a holder of a Certificate of Occupancy from entering into any form of negotiations or written agreement or transfer or alienate land. He referred to Savannah Bank vs. Ajilo (1989) 1 NWLR (Pt. 97) 305 at 309. He concluded that the deed of assignment vests an equitable title on the respondent, which is unassailable because the appellants have no title and infact did not show any.

On the respondent’s reply to the appellants issue No.3, it was contended that the argument of the appellant that the respondent made no attempts to obtain the consent of the governor is just an academic exercise because the respondent clearly stated that his attempts to get consent were frustrated and scuttled by several letters and petitions initiated by the appellants in exhibits 13, 14, 15 and 16 reflected at pages 46-49 of the record. Counsel submitted that exhibits 13-16 do not come within the purview of Section 91(3) of the Evidence Act, 1990. He pointed out that the said exhibits were not written by the respondent but by persons who claimed to be defending the communal interest and they are dealing with official interest. Counsel relied on Are vs. Ipaye (1986) 3 NWLR (Pt. 29) 416; Anyanbosi v. R.T. Briscoe (Nig) Ltd. (1987) 3 NWLR (Pt. 59) 84 and Highgrade Maritime Service Ltd vs. First Bank (Nig) Ltd (1991) 1NWLR (Pt. 167) 290.

On issue No.4, counsel for the respondent submitted that a person in possession of land can maintain an action against anyone who cannot show a better title. In this case the respondent took possession of the land in dispute, placed cement, blocks and gravels etc and commenced development. Counsel submitted that the respondent has been in possession of the land from the original owner/predecessor in title as he is deemed in law to have been all through and continued in possession by all his predecessors in title. He argued that the slightest possession in the plaintiff enables him to maintain an action in trespass if the defendant cannot show a better title. He was also of the view that question of establishing title only becomes necessary where there is a competing claim to possession, because the claim for trespass is not dependent on the claim for declaration of title, the issue to be determined in the claim for trespass and that for declaration of title are quite separate and independent issues. He relied on Oluwi vs. Eniola (1967) NMLR 339 and Akinteriwa vs. Oladujoye (2000) 6 NWLR (Pt.659) 92. It was contended for the respondent that the appellants were never in possession of the land in dispute. Their pleading in paragraphs 4 and 5 of the statement of defence that the land was duly allocated to the 3rd appellant was abandoned as they never called any witness and offered no evidence to be placed on the other side of the imaginary scale. It was also submitted that in law the appellants are bound by the evidence called in support of the case by the respondent. Counsel relied on Toriola vs. Williams (1982) 7 SC 26 at 33. He contended that the appellants address, no matter how brilliantly written and argued can never usurp the place of evidence in a matter. He relied on Niger Construction Ltd. v. Okubeni (1987) 4 NWLR (Pt. 67) 787.

On issue NO.5, Learned Counsel for the respondent submitted that the Learned trial Judge was correct in law in his award of special damages as same was pleaded and strictly proved. The evidence of the respondent is therefore in line with paragraph 24 of the Amended Statement of Claim. He then urged the court to dismiss the appeal and affirm the judgment of the trial court.
At this juncture, it is important that, I say that though the appellants’ brief was settled by Mr. Mathew Ojua, he was not present at the hearing of the appeal.
Mr. M. E. Arikpo Edet appeared for the respondent. Since all the briefs of the parties were in, the appeal was deemed properly argued pursuant to the provisions of Order 17 Rule 9 (4) of the Court of Appeal Rules, 2007.

I have carefully considered the issues for determination formulated by the parties very carefully and in my view the five issues formulated by the appellants are germane and derivable from the grounds of appeal. I shall therefore adopt and rely on them for the determination of the appeal in this judgment.
I shall preface this judgment with a consideration of the case of the parties on the state of the pleadings. The appellants filed a Statement of defence of 10 paragraphs which appears at pages 8 and 9 of the record. Curiously enough, the appellants failed or refused or neglected to call any evidence in support of their statement of defence. Rather, the appellants chose to rest their case on the respondent’s case and they made a no case submission. See pages 24 and 35 of the record. In the circumstances the appellants admitted in totality the unchallenged evidence of the respondents.
In Imana vs. Robinson (1979) N.S.C.C. Vol. 12 page 1 at 5 the Supreme Court held, inter alia that:
“Not having given evidence either in support of her pleadings on in challenge of the evidence of the plaintiff the defendant must be assumed to have accepted the facts adduced by the plaintiff notwithstanding her general traverse as contained in paragraph 6 of the Statement of defence”
Where a defendant rests his case on that of the plaintiff at the trial, the defendant has taken the enormous risk of blowing a muted trumpet. The trial court has little or no choice but accept the unchallenged and uncontraverted evidence placed before it by the plaintiff since it was not discredited by the defendant during cross examination. See: Okolie vs. Marinho (2006) 15 NWLR (Pt. 1002) 316 at 340- 341; Otuedon vs. Olughor (1997) 9 NWLR (Pt. 251) 355.
The effect of a party’s failure to call evidence in defence of the claim against him at the trial is that he is presumed to have accepted the evidence adduced against him by the other party. In the instant case, the legal effect of the appellant’s failure to call evidence in defence of the claim against them at the trial was that they were assumed to have accepted the evidence adduced by the respondent in support of his claim. See: University of Calabar vs. Ephraim (1993) 1 NWLR (Pt. 271); Nigerian Housing Development Association vs. Mumuni (1977) SC 57.