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.

Thus, there is no evidence in proof of the averments contained in paragraphs 4, 5 and 6 of the statement of defence. The particular assertion that Ward 33E had no power to allocate land in the area in which the land in dispute is situate is a particular fact which the defendant alleged she knows, and which is material to her defence. The burden is on her under Section 138 Evidence Act… the legal or the true ownership of the land in dispute now is in the plaintiff and the plaintiff has title to the land in dispute. “(Italics is for emphasis)

On the first and second issues for determination, the learned appellant’s counsel submitted in the brief that by the rules of pleadings he who asserts must prove whether that assertion is in the negative or in the affirmative and since the defendant averred in her pleadings the lack of authority in Ward 33E Plot Allotment Committee to allocate the land to the plaintiff and that Ward 33A Allotment Committee is the competent authority, she assumed the burden of proof of the particular fact that Ward 33E Plot Allotment Committee is not the competent authority. The court was referred to sections 137(1) and 139 Cap. 112, Laws of the Federation of Nigeria, 1990 and Aeroflot Soviet Airlines v. U.B.A. Ltd. (1986) 3 NWLR (Pt.27) 188; (1986) 5 SC 217 at 222; Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 SC 79 at 84 and Arase v. Arase (1981) 5 SC 33 at 51-52.

It was submitted in the respondent’s brief that the failure of the plaintiff to show that the land in dispute was within the jurisdiction of Ward 33E Plot Allotment Committee and therefore the competent Committee to recommend the application to the Oba of Benin meant that he had not proved his title to the land in dispute. We were referred to sections 136and 137 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. It was further submitted on behalf of the respondent that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. The cases of Kodilinye v.Odu 2 WACA 336 at 337 and Jules v. Ajani (1980) 5-7 SC 96 were cited and relied upon.

The court below identified and determined the straight issue arising for determination namely, who of the parties had the burden to prove which Plot Allotment Committee had jurisdiction in respect of the land in dispute to recommend to the Oba of Benin application for approval of a grant. I too agree that this is the main issue. Both parties claimed title to the land in dispute and a claim for trespass and injunction as in this case postulates that the plaintiff is the owner of the land in dispute or has had prior to the trespass complained of, exclusive possession of it. The plaintiff who alleged that the defendant is a trespasser has the onus of showing that he has a better title. See: Kponuglo & ors. v. Kodadja 2 WACA 24;Amakor v. Obiefuna (1974)3 SC67 at 75 and Ogunleye v. Oni (1990)2 NWLR (PT. 135) 745.

In the instant case, the party who had the onus was the plaintiff since he claimed that the defendant trespassed on his land. As he relied on a grant (Exhibit “e”), he must prove the validity of it in order to succeed. It is an essential requirement of Bini Customary Law for a person to acquire a legal estate in any given Bini communal land, he must show that his application was recommended to the Oba for approval by the appropriate Ward Plot Allotment Committee having jurisdiction over the area in which the land is situate and such acquisition or transfer is effected on the endorsement by the Oba, of his approval on the purchaser’s application duly recommended by the appropriate Plot Allotment Committee. See: Aigbe v. Edokpolor (1977) 2 SC1 at 13 and Awoyegbe and v. Ogbeide (1988) 1 NWLR (Pt. 73) 695 (1988) 1 NSCC 491 at 508. The defendant in paragraphs 4, 5 and 6 of her statement of defence in reply to paragraph 4 of the statement of claim challenged the right of Ward 33E Plot Allotment Committee to recommend approval to the ,Oba. It was therefore not enough for the plaintiff who had the burden to prove his title to tender the Oba’s approval and to say that Ward 33E Plot Allotment Committee recommended his application. He must go further to prove that it was the said Ward 33E Plot Allotment Committee that had jurisdiction over the land granted to him. The said paragraphs of the statements of claim and defence read:

Statement of Claim

“5. The land aforesaid which is enclosed on three sides by vacant plots of land was prior to the coming into force of the Land Use Decree, 1978 allotted to the plaintiff with the approval of the Oba of Bonin by the now defunct Oka Area Unit Ward 33E Plot Allotment Committee through whom the plaintiff had applied to His Highness, Akenzua II, the then Oba of Benin for the said,land. The Oba of Benin aforesaid approved the allotment of the land measuring 300ft by 300ft to the plaintiff on 2nd November, 1977 and signified his said approval on an application for such approval dated 16th March, 1977 and made to him by the plaintiff through the Oka Area Unit Ward 33E Plot Allotment Committee aforesaid, which also certified the land as free from dispute after due inspection.”

Statement of Defence

“4. In further answer to paragraphs 5, 6, 7, 8, 9, and 10 of the Statement of Claim, the defendant contends and will show at the trial that such purported approval and acts were not meant or directed to the land in dispute which was at no time within the jurisdiction of Ward 33E Plot Allotment Committee for the purpose of land allocation or recommendation for customary grant.

5. The defendant categorically avers and maintains that the land in dispute which was properly made subject of customary grant to the defendant was never within the jurisdiction of Ward 33E Plot Allotment Committee at any time or the material time.
6. The defendant avers and will establish at trial that the land in dispute now, contained in Survey Plan OA/1188/BD 80 of 17/10/80 is situated at all times in Ward 33A Plot Allotment Committee Okanuruovia Village, Via Benin City. It was and is at all material time within the jurisdiction of Ward 33A Plot Allotment Committee Okanuruovia Quarters, Okanuruovia village, Via Benin City for the purpose of land recommendation and approval by the Oba of Benin.”

The learned trial Judge as could be gathered from the excerpts of his judgment reproduced earlier in this judgment, placed the burden on the defendant to prove that it was the Ward 33E Plot Allotment Committee which was the appropriate Allotment Committee having jurisdiction over the land in dispute. The court below found that he was in error to have done so and I agree that the learned trial Judge wrongly placed the onus on the defendant.

By the state of the pleadings, it was the duty of the plaintiff to establish the validity of his grant and not for the defendant to do so. It was the plaintiff who would fail if no evidence at all, or if no more evidence, as the case might be were given on either side. This burden rested before evidence was gone into on the plaintiff and he failed to establish that Ward 33E Plot Allotment Committee had authority within the area the land in dispute was situated. See: Abrath v. N.E. Railway Co. 11 Q.B.D. 400 at 456 and Wakelin v. London and South West RY (1896) 1 Q.B. 189. Section 137(1) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria applied and not section 139. Section 137(1) provides:

“137(1) In civil cases the burden of first proving the existence of a fact lies on the party against whom the judgment of the could would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”

The learned trial Judge found that the land covered by Exhibit “F’ and shown in Exhibit “E” is part of the land claimed by the plaintiff by virtue of Exhibit “C”. It was therefore the duty of the plaintiff to call the Oba of Benin or his secretary to testify and not the defendant. There was the unchallenged evidence from DW 2 that Ward 33A Plot Allotment Committee had a layout plan approved by Bendel State Town Planning Authority and that all persons shown on the defendant’s plan Exhibit “E” were allocated their land by Ward 33A Plot Allotment Committee. In the circumstances of this case, the plaintiff failed to prove on the balance of probabilities an essential requirement of a valid grant under Bini Customary Law namely, that Ward 33E Plot Allotment Committee had jurisdiction over the land in dispute. His claim ought to have been dismissed by the learned trial Judge and the Court of Appeal was right in dismissing the claim. The misplacement of the onus of proof occasioned a grave miscarriage of justice and I also agree with the court below that the plaintiff woefully failed to prove his case.

An order of the retrial is not appropriate in this case where it is manifest that the plaintiffs case failed in toto and no irregularity is apparent on the records or shown to the court to warrant such order. The court below made a proper order of dismissal of the plaintiffs case. See: Ayoola v. Adebayo (1969) All NLR 159;Automatic Woodturning Co. Ltd. v. Stringer 1 All ER 90;Bakare v. Apena (1986) 1 NSCC 935 (1986) 4 NWLR (Pt. 33) 1 and Ezeoke & Ors. v. Nwagbo & Ors. (1988) 1 NSCC 414; (1988) 1 NWLR (Pt. 72) 616 at 629-630. Having regard to my conclusions in respect of the appellant’s first four issues for determination, it is unnecessary to discuss the fifth issue relating to damages.

I will therefore dismiss the appeal and affirm the judgment of the Court of Appeal delivered on 16/3/90. The defendant is awarded the costs of this appeal which I fix at N10,000.00 against the plaintiff. Before I end this judgment, I must say that the quality of the respondent’s brief is far below standard. In a fourteen page brief, ten pages were devoted to the reproduction of the grounds of appeal leaving only three and half pages for sketchy argument.

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SC.195/1991