Alhaji S.A. Kazeem & Anor V. Madam Wemimo Mosaku & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C

The plaintiffs are the appellants. The defendants are the respondents. The appellants as plaintiffs claimed N500.00 special and general damages for trespass on land and perpetual injunction.

Pleadings were filed and duly exchanged. The matter was tried by the learned trial Judge. He did not see his way clear in granting the reliefs of the appellants. He dismissed the claim in its entirety.

He granted the claim of the 1st respondent. He awarded damages of N1,200.00 for trespass. He also granted perpetual injunction against the appellants.

Aggrieved, the appellants went to the Court of Appeal. The appeal was thrown out. They have come to this court. Briefs were filed and duly exchanged. The appellants have formulated two issues for determination:-

“(1) Whether having regard to the pleadings and the evidence, the Court of Appeal was right to decide as the High Court did that the land was validly sold to the 1st defendant by the Agbaka Family.

(2) Whether the lower courts were right to uphold the sale to the 1st defendant and do so in particular by the application of the Rule in Akinola v. Oluwo (1962) 1 SCNLR 352; (1962) 1 All NLR 224/227.”

The respondents have formulated one issue for determination:

“Whether on the basis of the evidence given before and accepted by the trial Judge, the lower court was right in holding that there was a valid sale of the piece of land in issue to the 1st respondent.”

The fulcrum of the submission of learned counsel for the appellants is that the learned trial Judge did not consider exhibit (the written agreement), the evidence of 1st and 2nd plaintiffs, PW2 and fifteen exhibits. He argued that the learned trial Judge was wrong in using only patial oral evidence, which resulted in shutting out the above vital evidence.

He argued that the learned trial Judge directed his mind to the headship of the family, which was not an issue before the court. He cited NITEL v. Jattau C1996) 1 NWLR (Pt.425) 392. Counsel submitted that there was evidence of partition of the land. He cited Cole v. Folami (1956) 1 FSC 66/68; Iwuno v. Dieli (1990) 5 NWLR (Pt. 149) 126 at 135; Tukur v. Government of Gongola State (1988) 1 NWLR (Pt. 68) 39; and Onuoha v. State (1989) 2 NWLR (Pt. 101) 23.

On possession, learned counsel submitted that the decision reached by the learned trial Judge and confirmed by the Court of Appeal that the plaintiffs committed trespass on the land of the defendants is not Correct and should therefore be set aside. He argued that as at 1984 the land was that of the family of the plaintiff who are presumed to be in possession of it till the contrary is proved. He cited Ologunleko v. Ikuemelo (1993) 2 NWLR (Pt. 273) 16. He contended that the 24 years possession of the 1st defendant cannot avail him because it is shown as 24 years when he performed no overt act of ownership to the plaintiff’s knowledge. He cited Isiba v. Hanson (1967) NSCC 3; (1967) 1 All NLR 8. Counsel dealt with in paragraphs 4.7.01 to 4.7.03 of the brief, what he regarded as adverse comments of the learned trial Judge.

On the rule in Akinola v. Oluwo (1962) 1 SCNLR 352; (1962) 1 All NLR 224 at 227, learned counsel submitted that the rule favours the appellants. He cited Olaloye v. Balogun (1990) 5 NWLR (Pt. 148) 24; Akintola v. Solano (I986) 2 NWLR (Pt. 24) 598; Ojo v. Phillips (1993) 5 NWLR (Pt. 296) 751; Otapo v. Sunmano (1987) 2 NWLR (Pt. 58) 587: Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393; Ajao v. Alao (1986) 5 NWLR (Pt. 45) 802; and Omoni v. Tom (1991) 6 NWLR (Pt. 195) 93.He urged the court to allow the appeal.

Dr. G. Elias, Learned Senior Advocate of Nigeria for the respondents’ submitted that the evidence before the court was neither inconsistent with nor contradictory of exhibit C. On the contrary, the evidence, elicited in the course of cross-examination of PW2 complements exhibit C: evidence, learned Senior Advocate submitted was not contradicted. He cited Odunsi v. Bamgbala (1995) 1 NWLR (Pt. 374) 641. The essence of cross-examination. learned Senior Advocate argued, is to test the veracity of the evidence of the witness and any answer in the course of cross-examination, albeit damning to the case of the party who the witness represents but Supports of the case of the opposing party is relevant. He cited Akinola v. Oluwo (1962) 1 All NLR 224 at 227; Ojiako v. The State (1991) 2 NWLR (Pt. 175) 578.