Alhaji Tayi Kuchita & Ors V. Alhaji Abdulrauf Mohammed (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

The Respondent herein was the Plaintiff at the High Court of Niger State sitting at Bida in the Suit no NSHC BD/11/2004 wherein he claimed against the present Appellant, as Defendants, the following reliefs, as per the Amended Statement of Claim at pages 56 – 59 of the Record:

1. The sum of seven million Naira (N7,000,000.00) being damages for trespass to the plaintiff’s marshy land known as LAWO lying and situate at SOMMAN village in Katcha Local Government Area of Niger State for a period of seven years from 2002 – 2008 at (N1,000,000.00) one million Naira per Annum.
2. The sum of one million Naira (N1,000,000.00) for each subsequent year or any part there off till the trespass is abated.
3. Interim injunction restraining the defendants, their agents and anybody claiming on their behalf from further trespassing into the land known as LAWO till the determination of this suit.
4. Perpetual injunction restraining the defendant, their relatives, privies, agent and assigns from further and ever trespassing into the land known as LAWO.
5. Substantial cost for this litigation.

The Appellants denied the trespass alleged. They averred in the Further Amended Statement of Defence (at pages 97 -101 of the Record) that they had been involved in several lawsuits over land in the same area and that the land which the Plaintiff/Respondent claims to be “LAWO MARSHY LAND” is distinct and different from their land. They further aver that the claim of trespass against them by the Appellant is purely malicious, vexatious and an abuse of court’s process as they “never trespassed or entered into farming on any land belonging to the plaintiff any where including his so called LAWO MARSHY land.” It is further the contention of the Appellants, as defendants, at the trial court that a similar malicious attempt at the Chief Magistrate’s Court, Agaie to prosecute them upon a Criminal Information for the trespass, ended in their discharge and acquittal.

The proceedings of the Chief Magistrate Court, Agaie, tendered from the Bar with the consent of the Respondent’s counsel at page 111 of the Record, is Exhibit ‘D’. The Respondent, testifying as PW.1, was made to admit under cross-examination at page 75 of the Record, that for the same trespass he took the Appellants “to two courts Agaie & Bida”, and that he took them to the “Magistrate Court Agaie.” He however did not bother to know if that case at the Chief Magistrate Court Agaie had been concluded, and he would not “be surprised if they were discharged and acquitted.” Appellants pleaded the proceedings at the Chief Magistrate Court for a two fold purpose abuse of process or malicious prosecution, and issue estoppel.

It is apparent from the evidence of the Respondent’s witnesses, particularly PW.2, PW.3 and PW.6 that in 1982 the Upper Area court Bida, in the suit no UAC/BD/CVA/20/1980: DANDAMMA v. SHABAKO, upon appeal from lower Area Court, ordered that a certain disputed land be shared to the parties in that suit. That order, on a further appeal to the Niger State High Court in suit no NHSC/13A/1982, was affirmed in Exhibit A on 3rd February, 2004. The PW.6 at page 88 of the Record stated that the Area Court Judge, Aminu Muye, visited the land on the order of the High Court and shared “the land between the parties.” The land was divided on authority of Exhibit ‘A’. The portion of land belonging to the Respondent is LAWO MARSHY land. The Appellants’ portion is called BATA KUSO KUCHITA.

PW.9, a surveyor in the service of Niger State in the office of the Surveyor-General appears to be the same person the defence called as DW.4. PW.9 did the sketch plan, Exhibit ‘B’, for the Respondent. The same PW.9, as DW.4, did the sketch plan, Exhibit ‘C’, for the Appellants. He testified at pages 99 and 100 that the portions of land, in Exhibits ‘B’ and ‘C’, are not the same.

The learned trial Judge, no doubt, regarded PW.9 and DW.4, and Exhibits ‘B’ and ‘C’ produced by the witness, as credible. In his judgment, particularly at page 124 of the Record, the learned trial Judge found, upon considering the pieces of evidence of PW.9 and DW.4, and Exhibits ‘B’ and ‘C’ that he could – see that Lawo marsh land and Bata kuso Kuchita are two (sic) by the plaintiff and the defendants respectively and separately though as I have earlier stated, they might have a common boundary in River Gbako. I hold that the plaintiff (sic) have established the identity of Lawo marshy land to prove his case.

The Appellants, at the trial court, insisted that they did not trespass or enter into LAWO MARSHY land belonging to the Respondent and that they restricted themselves to their own land, BATA KUSO KUCHITA. They were alleged to have trespassed unto the LAWO MARSH land. The case they were summoned to defend is one of trespass to LAWO MARSHY land. They were not defending a rival claim to ownership of BATA KUSO KUCHITA land. In the judgment at page 121 of the Record the learned trial Judge had erroneously placed on the Appellants the burden of proving, by traditional history, how they came to own the BATA KUSO KUHITA land when he stated thus –

In contrast to the defendants who claimed that the said land is called BATA KUSO KUCHITA.

They denied going into UWO MARSHY land.

They did not plead nor establish who found (sic) the land was found (sic) the particulars of intervening owners.

With all deference to the learned trial Judge the ownership of BATA KUSO KUCHITA was not in issue. It could no longer be in issue in view of Exhibit ‘A’. What was in issue was the alleged trespass of the Appellants into LAWO MARSHY LAND. Did the Respondent, as the plaintiff, prove the trespass allegedly committed by the Appellants unto LAWO MARSHY land? That is the question.

The learned trial Judge found the Appellants liable in trespass to LAWO MARSHY land and awarded-

The sum of N200,000.00 (Two Hundred Thousand Naira for each year the trespass is abated for 7 years. The total sum for damages is (N1.4M) one million four hundred Thousand Naira. On the whole I hereby hold that Lawo Fadama land which is described as having been surrounded and on circled in Exhibit ‘B’ by three Rivers namely: River Kafingi, River Gbakogi and River Gbako and bounded by Emigi marshy land measuring 25.00 hectares approximately belongs and is hereby declared for the plaintiff.