Bernard E. Akporiaye V. Chief Daniel E. Okumagba & Ors (1998)

LawGlobal-Hub Lead Judgment Report

SUNDAY AKINOLA AKINTAN, JCA.

The appellant, Bernard, Akporiaye, was the 3rd defendant in this suit instituted at Warri High Court as Suit No. W/69/84. The 1st respondent, Chief Daniel Okumagba, was the plaintiff while the present 2nd and 3rd respondents were then the 1st and 2nd defendants respectively. The plaintiff’s claim as set out in paragraph 29 of the plaintiff’s amended statement of claim is as follows:

“AS AGAINST ALL THE DEFENDANTS JOINTLY AND SEVERALLY-

(1) A declaration that the Certificate of Occupancy No. BDSR 2634 granted by the erstwhile civilian, Governor of the Bendel State of Nigeria (Professor A.F. Alli) on his last day in office, the 30th day of September 1983, registered as instrument No. 4 at Page 4 in Volume D12 of the lands, Registry in the Office at Benin is unconstitutional, unlawful, irregular, null and void and consequently ineffectual to pass unto the 3rd defendant any title, right or interest in respect of the land in dispute shown on the plaintiff’s survey Plan N9. ESF/24/84 filed in this action and apparently referred to by survey plan No. MWC/391/83, attached to the Certificate Occupancy aforementioned, comprising an area of 6231.814 square metres forming but part of the plaintiff’s parcel of land in plaintiff’s possession and developed by the plaintiff with the approval of the planning authority over seven years ago as Scheme 4 in Olodi, Oki and Ighogbadu Families’ Layout lying and situate at Okere, Warri within the jurisdiction of this Honourable court.

(2) A perpetual injunction restraining the 1st and 2nd defendants by themself, their agents or otherwise however from processing, issuing and/or granting any Certificate of Occupancy or any other type of title, right or interest in respect of the plaintiff’s parcel of land aforesaid or any party thereof to, and/or in favour of the 3rd defendant.

AS AGAINST THE 3RD DEFENDANT ONLY-

(3) The sum of N100,000.00 (one hundred thousand Naira) being damages for trespass committed by the 3rd defendant in 1983 on the plaintiff’s said parcel of land in possession of the plaintiff.

(4) A perpetual injunction restraining the 3rd defendant from committing acts and/or further acts of trespass on the plaintiff’s parcel of land aforesaid.”

Pleadings were filed and exchanged and thereafter the case went for trial before Akhigbe, J. Evidence was led by the parties at the trial and at the conclusion of the hearing, the learned trial Judge delivered his reserved judgment on 27th October, 1989. In it, the learned Judge held that the plaintiff had proved all the items of his claim. He accordingly entered judgment in his favour as follows:

“I am satisfied that the plaintiff has proved his case, and I so hold. As a result, judgment is hereby entered for the plaintiff against the defendants as follows:

(1) A declaration that the Certificate of Occupancy (Ext.1) granted by the 1st defendant on 30/9/83 in favour of the 3rd defendant in respect of the land in dispute belonging to the plaintiff is irregular, null, and void.

(2) The sum of N2.000 being damages for trespass committed by the 3rd defendant in and from 1983 on the said land of the plaintiff.

(3) A perpetual injunction restraining the 3rd defendant from committing acts and/or further acts of trespass on the plaintiff’s said parcel of land.

(4) A perpetual injunction restraining the 1st and 2nd defendants by themselves, their agents or otherwise howsoever from processing, issuing, and/or granting any Certificate of Occupancy or any other type of title, right or interest in respect of the plaintiff’s parcel of aforesaid land or any part thereof to and/or in favour of the defendant.”

The learned Judge then awarded N250 as costs against each of the 1st and 2nd defendants and N500 as costs against the 3rd defendant, all in favour of the plaintiff.

The 3rd defendant was dissatisfied with the verdict of the Court. He has accordingly appealed against it to this Court. In all, 15 grounds of appeal were filed against the judgment. The appellant and the 1st respondent filed their briefs of argument in this Court. The 2nd and 3rd respondents did not file any brief and were not represented at any of the hearings in this Court. The appeal was heard in this Court after the appellant had been granted leave to hear the appeal without the briefs of the 2nd and 3rd respondents since they failed to file any.

The appellant formulated 4 issues for determination in the appeal in the appellant’s brief. The 4 issues were also adopted by the 1st respondent in the 1st respondent’s brief. The 4 issues are as follows:

“1. Did the plaintiff prove his family title to the land?

2. Was the learned trial Judge right in his acceptance of the evidence of plaintiff and his witnesses inclusive of DW1, DW2 and DW3 on the one hand and the rejection of appellant’s evidence and his witnesses, namely Dw4 and DW5 on the other hand?
3. Did the trial Judge misunderstand the pleadings of the appellant?
4. Whether the plaintiff was entitled to damages for trespass against the appellant.”

The claim was in respect of a dispute over a parcel of land measuring about 6,232 square metres. The 1st respondent claimed that the disputed parcel of land formed part of large parcels of land founded by his ancestors and that he came to own them through inheritance. The action was instituted for and on behalf of the 1st respondent (as plaintiff) and on behalf of Olodi, Oki and Ighogbadu families of Warri. His case was that the plaintiff and members of the aforementioned families were in possession of the entire parcels of land founded by their ancestors and of which the disputed parcel formed a part.

In support of his contention, the plaintiff tendered at the trial a layout plan titled “Olodi, Oki and Ighogbadu families Layout No.3. (Plots 1-63) and No.4 (Plots 1-82)” as Exh. A. Also tendered, as Exh. B, is a Survey plan showing among others, the disputed parcel of land. The plaintiff’s case was that the appellant (as 3rd defendant) trespassed on the disputed parcel of land belonging to the plaintiff’s family and that the said 3rd defendant applied to the Governor of the defunct Bendel State for a Certificate of Occupancy in respect of the disputed parcel of land. In the course of processing the 3rd defendant’s application for the Certificate of Occupancy, the plaintiff reacted by filing an objection to the grant when the government published the application along with other similar applications in the issue of the Nigerian Observer of Friday April 8, 1983 (Exh. M).

The plaintiff’s objection to the grant was contained in a letter from his firm of Solicitors, Dr. Mudiage Odje & Co. (Exh. H) to which was attached an affidavit in support of the objection deposed to by the plaintiff (Exh. 1).

The plaintiff also contended that members of his said families were in possession of the land in dispute and that the families had made layouts in all from the family landed properties. He also claimed that his title had been upheld in 3 judicial decisions; viz: Suit No.W/28/68; Suit. No.W/64/68 and Suit No. W/48/68.

The 3rd defendant (now appellant) in defence maintained that the parcel of land in dispute belonged to him. He contended that the land was part of the land founded by Otifo, his ancestor. It was from Otifo that the 3rd defendant’s father. Akporiaye Jarikre. took over the land while the man was head of Otifo family land. The appellant took over the land from his father. He Surveyed the land and had a Conveyance dated December 10, 1975 executed in his favour in respect of the land by the appellant’s elder brother. The Conveyance was registered as 23/23/324 at the Benin Land Registry. He also led evidence of his being in physical possession of the land ever since he acquired it. The present action was commenced when the Governor of the defunct Bendel State issued the 3rd defendant with a Certificate of occupancy in respect of the parcel of land following an application he made to the Government for the issuance of a Certificate of occupancy in respect of the said parcel of land.

As already stated above, the Court entered judgment for the plaintiff and declared the Certificate of occupancy issued by the Governor of the said State (1st defendant) as null and void. The claim for trespass against the appellant was also granted and an injunction restraining the appellant, his agents and privies from committing further acts of trespass on the land was also granted. The present appeal is against the said verdict of the Court.

Chief G.O.K Ajayi S.A.N., learned leading Counsel for the appellants submitted in respect of issue No. 1 both in the appellant’s brief and in his oral presentation of the case before us, inter alia, that the action was essentially one for determination of the title to the land notwithstanding the absence of a claim for declaration of title. This is because although the plaintiff needed to prove bare possession to succeed in his claim for trespass that possession is said to be only good against all, except the true owner of the land. It is also submitted that since the 3rd defendant pleaded and led evidence to show that he owned and was in possession of the land, the plaintiff was bound to prove a better title in order to succeed since the law ascribes possession to the true owner of the land. The Court’s finding as to who had been in possession of the land in the immediate and remote past was therefore said to be crucial and decisive, particularly where both sides have failed to give satisfactory traditional evidence of title.

It is argued that the plaintiff based his family’s claim to title to the land on three grounds: (1) Court judgments Exhs. D, E & F; (2) traditional ownership; and (3) acts of possession. The plaintiff is said to have failed to establish that any of the 3 judgments related to or included the land in dispute. Reference is made to the Survey plan (Exh. B) tendered by the plaintiff where it is shown that the land litigated upon in Suit No. W/48/68 does not include the land now in dispute. Similarly, it is submitted that the plaintiff failed to prove that any of the other Suits relied upon related to the land now in dispute. The plaintiff is therefore said to have failed to establish his claim to title to the land based on any of the Court judgments. This is particularly so when it has not been established that the appellant was a party in any of the 3 Suits. As none of the 3 judgments tendered related to the land now in dispute, it is argued that they are therefore not relevant to the present case and that the learned trial Judge was wrong to have relied on them in his judgment.

On the plaintiff’s claim to title based on traditional evidence and long possession, it is submitted that since the plaintiff failed to prove that his ancestors founded and owned the whole land in Okere, Warri, the onus was on him to establish that the land in dispute was part of the parcels of land founded and owned by his ancestors.

It is argued that the plaintiff failed to identify anyone of the parcels of land founded by his ancestors of which the land in dispute forms a part. His case must therefore fail and the Supreme Court decision in EBUEKUN v. AMOLA 91988) 2 NWLR 128 was cited and relied upon in this respect.

As regards the plaintiff’s claim based on acts of possession, reference is again made to the Survey plan tendered by the plaintiff (Exh.B) where the land in dispute is shown as covered entirely by a rubber plantation. The plaintiff claimed that the rubber plantation belonged to one Omosohwofe. But the plaintiff is said to have failed to call the said Omosohwofe or any of his relation, if he was dead, to confirm his ownership of the rubber plantation.

On the other hand, reference is also made to the Survey plan tendered by the 3rd defendant (Exh. S) wherein the land in dispute is also shown as covered by a rubber plantation belonging to Ben Akporiaye and also showing the only building structure on the entire disputed land as Mr Franklin Akporiaye’s Welding Workshop.

As opposed to the plaintiff’s failure to lead evidence as to the ownership of the rubber plantation, it is submitted that the 3rd defendant led copious evidence as to the ownership and exploitation of the rubber plantation and as to the ownership of the only structure found on the land. It is therefore argued that the plaintiff failed entirely to prove his claim to possession of the land in dispute. The learned trial Judge was therefore said to be wrong in holding that the plaintiff was in plaintiff’s possession.

It is submitted in reply in the 1st respondent’s brief, inter alia, that although the parties pleaded their respective roots of title and each party led evidence in proof of title to the land in dispute, the 3rd defendant/appellant was however said to have abandoned his pleadings as regards his root of title in the course of the evidence led at the trial. He is said to have completely abandoned his pleadings to the effect that his ancestor, Otifo, founded the land in dispute. Rather, he is said to have led evidence to the effect that his own father. Akporiaye Jarikre, founded the land. The appellant is therefore said to have failed to prove his title to the land in dispute. On the other hand, the plaintiff was said to be consistent in his pleadings and that the evidence led in support together with the documents tendered were consistent and satisfactory. The learned trial Judge was therefore said to have acted properly in entering judgment for the plaintiff in the case.

On the question of the evidence of traditional history led by the plaintiff, it is submitted that the Court would only look into acts of possession where evidence led in support of traditional history is inconclusive. But in the instant case, the Court did not only accept the evidence led by the in plaintiff support of the traditional history of the plaintiff, but also found that the plaintiff also proved that the plaintiff owned all the adjoining and/or surrounding land as shown in the plaintiff’s Survey plan (Exh.B). This is said to be in line with the requirement of the law as prescribed in Section 45 of the Evidence Act. The lower Court’s acceptance and reliance on the 3 Court judgments were also said to be quite in order. But the reliance of the appellant on the Conveyance executed in his favour in 1975 is said to be defective since his father was not the founder of the land in dispute.

Finally, it is submitted that the acts of possession relied on by the appellant could not stand because the appellant failed to establish traditional evidence upon which such act of possession could rest. Any act of possession, it is argued, would therefore amount to trespass.

The main question raised in the appellant’s first issue is whether or not the plaintiff proved his claim before the trial Court to warrant or justify the judgment entered in his favour by the learned trial Judge. In the instant case, although the plaintiffs claim was not directly for a declaration of title to the land in dispute, but merely for declaration that the Certificate of Occupancy issued to the defendant/appellant be declared null and void, damages for trespass and injunction, what the plaintiff was however, required to establish before he could succeed in his claim is nothing short of proof of his title to the land in dispute. In other words, he is required to prove that he is entitled to a declaration of title to the land in dispute before his claim could succeed.

In his attempt at achieving that objective, the plaintiff relied on three grounds (i) the 3 Court judgments tendered as Exhis. D, E & F; (ii) traditional ownership; and (iii) acts of possession. It is settled law that in a claim for a declaration of title to land, the onus is on the plaintiff to prove his title to a defined area of land to which his claim for a declaration can be attached: See ODESANYA v. EWEDEMI (1962) 1 All N.L.R 320; AKEREDOLU V. AKINREMI (1989) 3 N.W.L.R. (Pt.108) 164; AGBONIFO V. AIWEREOBA (1988) 1 N.W.L.R. (Pt.70) 32); and AKINLOLU BARUWA V. OGUNSHOLA 4 WACA 159 As regards the evidence of the 3 Court Judgments led by the plaintiff, it is clear that the appellant was not a party to any of the 3 Court cases. Also, it is clear from the survey plan tendered by the plaintiff at the trial, as Exh. B, that the area shown therein as the land litigated on in one of the 3 Court actions (Suit No. W/48/68) is totally different from the area shown in the same plan as the land in dispute in the present case. Again the contention that the land in dispute is bounded by the other landed properties of the plaintiff, is not supported by the plaintiff’s Survey plan (Exh,B) What is shown on the plan is that the land in dispute is bounded to the north by a road, Okumagba Avenue; and to the east by another road: Ugborikoko road.

As regards the two other Court judgments, the Survey plans of the land in dispute in them were not produced at the trial and as such, it is not possible to say whether the land in dispute was part of the land for which judgment were given in favour of the plaintiff in the two cases. In the result, therefore, I agree with the submission of learned Senior Counsel for the appellant that the plaintiff failed to prove that the land in dispute in the instant case, was part of the parcels of land litigated upon by the respondent in the 3 cases he relied upon.

The evidence of traditional ownership led by the plaintiff in support of his title is briefly that his ancestors founded a number of parcels of land at Okere. Warri. Again no Survey plans of the various parcels of land founded by his said ancestors were produced and by which it could be ascertained whether the land in dispute was within any of the parcels of land founded by the plaintiff’s ancestors. In as much as it was not the claim of the plaintiff that all the land in Okere, Warri were founded by his said ancestors, the burden of proving that the land in dispute was part of the land founded by his ancestor has not in my view been discharged by the plaintiff. The plaintiff’s claim of title based on traditional ownership, was therefore not proved.

The plaintiff’s claim based on acts of possession has also not been supported by evidence led at the trial. Although the plaintiff’s Survey plain (Exh.B) shows the land in dispute as a rubber plantation belonging to one late Omosohwofe no relation of the said omosohwofe was called to testify as to the claim of ownership of the plantation as stated in the Survey plan and no reason was given for the inability to call such a witness or witnesses to testify. Similarly, the plaintiff failed to show or lead evidence to prove exercise of any act of ownership over the rubber plantation said to belong to the late Omosowofa. On the other hand the appellant, in his Survey plan (Exh S) gave the name of the owner of the rubber plantation and also called as a witness, one of those who had tapped the rubber on the plantation on behalf of the named owner as part of the defendant’s exercise of act of ownership over the land in dispute. I therefore also hold that the learned trial Judge failed to properly evaluate the evidence led in support of the claim based on acts of possession as a result of which he came to a wrong conclusion that the plaintiff proved his claim under that item of claim. In the result I hold that the appeal succeeds in respect of the appellant’s first issue.

The point raised in the second issue touches on the evaluation of evidence made by the learned trial Judge in respect of evidence given by some of the witnesses that testified at the trial. Reference is made in particular to a portion of the judgment where the learned trial Judge held, inter alia, as follows:

“….from my observation of the plaintiff and his witnesses, and also DW1, DW2 and DW3 in the witness box, they impressed me as sincere and truthful witnesses and I believe their evidence.

On the other hand, the 3rd Defendant, DW4 and DW5 did not impress me in the main as truthful witnesses with regard to the ownership of the land in dispute, and I do not believe their testimonies in that regard.”

It is submitted that the above conclusion of the learned trial Judge could not be right particularly on the question of who was in possession of the land in dispute. This is said to be because the testimonies of some of the witnesses in question were in fact conflicting on that point. Particular reference was made to the relevant portion of the evidence of the evidence of DW1, an officer in the lands Department, Governor’s Office, who testified, inter alia, that:

“the Committee noted also that the 3rd defendant was in possession of the land.” The same witness also tendered a sketch plan at the back of Exh. R which also confirms the existence of Survey beacons planted by the 3rd defendant on the land in dispute said to be in his possession. It was further argued that, the learned Judge, having accepted the above-mentioned evidence of DW1. he could not properly and consistently accept the plaintiff’s evidence of possession of the same land which was the situation in this case.

Another conflicting evidence of two of the witnesses which the learned trial Judge also accepted is that of DW2. the Secretary to the Land Use and Allocation Committee. The witness was recorded as telling the Court that: “The land in dispute from our own investigation is not within Okumagba Layout.” That piece of evidence is said to be in total conflict with the contention by the plaintiff that the land in dispute was part of Okumagba Layout. Also in this respect, reference was made to a portion of the evidence given by DW3, the 3rd defendant’s Surveyor, where he said that the Survey beacons on the land did not exist when he surveyed the land. But that portion of evidence was said to be vindicated by the Planning Report (Exh. R) which was produced in evidence by the plaintiff’s Counsel.

As regards the evidence of Dw4 and DW5 which the learned Judge rejected without giving any reason, reference is made to the evidence of the said David Hiler Madugu (DW4) who told the Court that he built and owned the house shown on the plan (Exh.S) prepared and tendered in support of 3rd defendant’s case. The witness said he had built and lived in the house since 1970. That piece of evidence was said to have been part of the evidence rejected by the learned Judge without giving any reason. Similarly, the evidence of Dw5 regarding the person for whom the rubber plantation on the land was being tapped by the witness was also rejected without any reason, particularly when the plaintiff was said to have failed to lead evidence of anyone tapping the rubber. It was therefore submitted that the findings of fact made by the learned trial Judge were improper and clearly inconsistent.

In reply, it was submitted that to believe or not to believe a witness is at the discretion of “a trial Court who had the opportunity of listening to and seeing the witness. The learned trial Judge is said to have properly exercised his discretion in the instant case.

There is no doubt that there are a number of irreconcilable conflicts in the pieces of evidence which the learned trial Judge just lumped up and believed or disbelieved without giving any reason for his stand. The law is settled that it is not enough for a trial Judge to merely dismiss evidence of witnesses under the guise of saying that he believes or disbelieves any evidence led before him without giving reasons for coming to that conclusion.

Failure to give good reason for believing or disbelieving any particular evidence, particularly when there are material conflicts in the pieces of evidence which the learned trial Judge believed or disbelieved, as in the instant case, could constitute an improper evaluation of the evidence led at the trial which could give the appellate Court the power to interfere with the evaluation of the evidence or findings made by the trial Court. See CHUKWUOCHA V. ONUOHA (1991) 4 N.W.L.R. (Pt. 184) 234; and HIGHGRADE MARITIME SERVICES LTD. V. F.B.N. LTD (1991) 1 N.W.L.R. (Pt. 167) 290. In the result, I hold that there is merit in the appeal as it relates to the 2nd issue.

The question raised in the 3rd issue relates to the approach the learned trial Judge took regarding some of the paragraph’s of the 3rd defendant’s pleadings in the Course of writing his judgment. The Judge had classified some of the paragraphs of the pleadings as those that were relevant to the case before him. Reference is made in particular to paragraphs 12 and 13 of the 3rd defendant’s amended statement of defence in which the said 3rd defendant pleaded that he was never a member of the Unity Party of Nigeria, a political party to which the then – State Governor who signed the Certificate of occupancy belonged.

Those paragraphs of the pleadings are among those the learned Judge classified as not relevant to the determination of the case before him. Other paragraphs of the pleadings so classified include paragraphs 15 and 16, as well as 26 and 27. Also the learned Judge said in his judgment that paragraph 9(a) of the plaintiff’s pleadings was not sufficiently denied. It is submitted that the learned trial Judge, by his aforementioned act, completely misunderstood the pleadings in the case before him.

In reply, it is submitted that as pleadings do not make evidence, what was required of each of the parties was to lead evidence in support of his pleading regardless of the opinion held by the trial Judge of any paragraph of the pleadings. I agree with the submission of learned Counsel for the 1st respondent as set out in the 1st respondent’s brief that the views expressed by the learned Judge in the case had no effect on the final out come of the decision reached in the case. As it has not been shown that any particular piece of evidence was excluded on the ground that it had not been pleaded or had been pleaded as part of the pleadings which the learned Judge classified as not very relevant, I hold that there is nothing out of place in the remarks made by the learned Judge now complained about. The judgment of the learned Judge is very unnecessarily lengthy. The effect of such lengthy judgments is that they invariably contain a number of irrelevancies as those now complained of in the present case. However, as I do not consider the effect of the observations now complained of sufficient to have any effect on the out come of the appeal, I hold that there is no merit in the appeal as it relates to the 3rd issue.

The question raised in the 4th issue is whether the award of damages for trespass should be allowed to stand. Reference is made to the evidence led in support of the 3rd defendant’s claim that he had at all time been in possession and that the plaintiff had never been in possession. The fact that a conveyance had been executed in favour of the 3rd defendant as far back as 1975 when he also surveyed the land and planted survey pillars on the land was also mentioned. So also is the evidence led to show that he had been tapping the rubber on the land. It was therefore submitted that since the 3rd defendant was in possession and the plaintiff had failed to prove ownership of the land, he was not entitled to damages for trespass.

In reply, it is submitted that since the Court found that the plaintiff had proved his title to the land, then the 3rd defendant was a trespasser against whom the award for damages would stand. The law is settled that in order to maintain an action for trespass, the plaintiff must have a present possessory title. Thus, an owner of land who is legally entitled to possession is not competent to maintain an action for trespass before entry. See OYETONA v. AJANI (1959) W.N.L.R. 213; 20.

OSENI v. OYEWOLE (1955-56) W.R.N.L.R. 41; and OSHO V. FOREIGN FINANCE CORPORATION (1991) 4 N.W.L.R (Pt. 184) 157.As I already held above, the plaintiff failed to prove his title to the land in dispute. Similarly, he has also failed to prove that he was in possession of the same land at any time. It follows therefore from the law as set out above, that he could not maintain an action for trespass against the 3rd defendant/appellant who led evidence to prove that he was in possession. The appeal in respect of the 4th issue therefore succeeds.

In conclusion, therefore, and for the reasons already set out above, there is merit in the appeal. I accordingly allow it and set aside the judgment and orders made by the lower Court in the case on 27 October, 1989. In its place I hereby substitute an order dismissing the plaintiff’s claim in the case. The 3rd defendant/appellant is entitled to his costs in the lower Court and this Court which I hereby asses at N3,000 in the lower Court and N10,000 in this Court. The costs are to be paid by the 1st respondent.

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Other Citations: (1998)LCN/0377(CA)