Morrison Udih V Elizabeth Idemudia (1998)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C

The plaintiff instituted an action against the defendant in the Benin Judicial Division of the High Court of the then Bendel State of Nigeria claiming the following reliefs:-

“(i) N50,000.00 being general damages for trespass committed by the defendant in or around 27th February. 1980, this year, on that piece or parcel of land verged pink which with that parcel of land verged green and encompassing it in the survey plan number MWC/815/80 filed herewith, is in the lawful and exclusive possession of the plaintiff.

(ii) An order of perpetual injunction to restrain the defendant, her servants, or agents or howsoever from committing trespass or further acts of trespass on the said land.”

The case was heard on the pleadings filed and exchanged by the parties. The learned trial Judge Akenzua, J. found the defendant liable, awarded damages against her and granted an order of injunction restraining the defendant and her agents from further acts of trespass on the land in dispute. The defendant was dissatisfied with the decision of the learned trial Judge and appealed to the Court of Appeal, Benin Division. Her appeal was successful and the plaintiffs claim was dismissed. The latter has appealed to this court against the judgment of the Court of Appeal.

From the grounds of appeal filed, the plaintiff who is the appellant in this court identified the following issues for determination:

“1. Whether having regard to the state of the pleadings, the Court of Appeal rightly defined the onus of proof in this case as an onus on the plaintiff/appellant to prove his title under Bini Customary Law and if so,

2. Whether the respondent having averred by specific facts, the lack of jurisdiction by Ward 33E Plot Allotment Committee to allocate or recommend the land in dispute for the Oba’s approval the Court of Appeal was right in reversing the decision of the learned trial Judge that the onus to prove such lack of jurisdiction was cast on the respondent vide section 138 of the Evidence Act Cap. 62.
3. Whether the said misdirection as to the onus of proof in this case which is not conceded entailed a dismissal rather than a retrial.
4. Whether a defendant in an action for trespass who relied on justification by title which was not proved is nonetheless entitled to a judgment of dismissal where the plaintiff proved antecedent adverse possession but not title. In other words, is it proper to dismiss an action in trespass where neither party proved title and the claim rested on adverse conflicting possession merely because the issue of title but not possession was ill-resolved in favour of the plaintiff.
5. Whether the vacant nature of the land in dispute is the only factor for determining the quantum of damages, in trespass where other facts or circumstances are also present.”

The defendant who is the respondent in this court identified the following issues for determination by the court:-

“1. Whether on the settled pleadings and the specific findings of the learned trial Judge of the Benin High Court and consideration of same by the Court of Appeal, the plaintiff/appellant had in law and infact discharged the onus of proof cast upon him to entitle him to judgment

2. Whether on the totality of the evidence adduced by the parties and in particular by the plaintiff/appellant in the Benin High Court for an award of N 10,000.00 for trespass to vacant land, and the principle of assessment of damages, the award of N500.00 by the Court of Appeal was not justified”

The facts of the case are that the defendant obtained a grant from the Oba of Benin (See Exhibit “F”) to a parcel of land situate at Okanaruovia Village in Ward 33A, Benin City.

Her application dated 22-2-76 was recommended to the Oba for approval by the Plot Allotment Committee, Ward 33A Okanaruovia Village, Benin City after the parcel of land was inspected. The Oba gave approval to the application on 25-3-77. By an application dated 16-3-77 (Exhibit “C”), the plaintiff applied to the Oba of Benin for a grant in respect of a parcel of land situate in Oka through the Plot Allotment Committee for Oka Area Unit Ward 33E. Benin City. The Oba gave approval to this application on 2-11-77. Both parties claimed to have gone into possession after their respective grants. Sometime in 1980, the defendant commenced building on the land and the plaintiff brought the action leading to this appeal.

At the conclusion of the trial Akenzua, J. found as follows:-

“In the case before me the affirmative asserted by the plaintiff is that Ward 33E Plot Allotment Committee is the one with power to give out the plot of land in question. This assertion is met by the negative assertion that only Ward 33A Plot Allotment Committee that has power to allocate the land in question. What is therefore crucial in this case is that it must be established that it is not Ward 33E that has power to allocate land in question. If Ward 33E has no authority to allocate this land it is all the defendant to prove. The plaintiffs case before me is that Ward 33E Plot Allotment Committee gave him the land through their recommendation to the Oba of Benin for approval (Exhibit “C”). The defendant’s case is that Ward 33E Plot Allotment Committee has no power to allocate the land but Ward 33A Allotment Committee. The question that has arisen is why did the Oba of Benin also approve the recommendation of Ward 33E over the said plot

Was the Oba of Benin misled by Ward 33E Plot Allotment Committee to approve their recommendation, Exhibit “C” This allegation is very essential to the defendant’s case. The burden of proof is all the defendant that it is only Ward 33A and not Ward 33E Plot Allotment Committee that has power to allocate land in the area where the land in question is situated. The nature of evidence in proof varies according to the facts to be proved. If Ward 33E Plot Allotment Committee does not exist over the area where the land in dispute is or that Ward 33E Plot Allotment has no power to allocate land in the said area, it is the evidence of the person who constituted the two Plot Allotment Committee (sic) that can establish it. In this connection the defendant should have subpoenaed the Secretary to the Oba of Benin to give this evidence. She should also have applied to move the Court, to the Palace if she felt strongly about the issue. She should have also called either Agbondehenhen Eweka, Aghajowa Igiebor or Mrs Boyo, persons shown by her in her survey plan Exhibit “E” to be adjoining owners of land, to give this evidence. Instead she called the very members of the said Ward 33A Plot Allotment Committee to give evidence very well knowing that the Oba of Benin approved the application of Ward 33E Plot Allotment Committee also. The Court is unable to know whether Ward 33A Plot Allotment Committee also allocated their lands to those persons shown in Exhibit “E”. It was also possible for the defendant to move Court to the Palace of the aba of Benin to ascertain the position of authority between the two Plot Allotment Committees within the area the land in dispute is situated.