Mr. Davidson Oparaji V. Mr. Johnson Ahihia (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The Appellant was, at the trial High Court (Coram T.K, Osu, J), the Defendant/Counter-Claimant. The Respondent, as the plaintiff, had claimed against the Appellant as follows:-

1. A declaration that the plaintiff is the person entitled to statutory right of occupancy over that piece of land situate and being Ohia Otuloro Ahihia Rumuoluihere, Rumuokwurusi Obio, Obio/Akpor Local Government Area, Rivers State, the defendant having alienated the said piece of land to the plaintiff for valuable consideration in 1990.
2. The sum of N1 million (one million Naira) as damages for trespass committed by the Defendant in the month of January, 2001 when the Defendant unlawfully erected a gate across the said parcel of land without prior consent of the plaintiff
3. A perpetual injunction restraining the Defendant by himself, servants, agents or privies from further trespass on the said land.

The Appellant, as Defendant/counter-claimant, in his statement of defence raised a counter-claim with three reliefs similar in terms to those claimed by the Respondent against him.

Pleadings were exchanged. The parties in litigation clearly knew the parcel in dispute. They call it Ohio Otuloro Ahihia. It is not disputed that the disputed parcel of land was originally part of the Defendant’s land. The Plaintiff had allegedly bought another parcel of land behind the disputed land and had developed it with tenants and himself occupying same. He needed the disputed land as access road to his house. It is further alleged that through one Mohammed Agbolu (PW.2), a relation of the Defendant; the parties struck a deal, and the disputed land-was, in 1999, sold to the Plaintiff by the Defendant in consideration of the sum of N3,000.00 paid in two instalments by the Plaintiff to the Defendant. Suddenly, between December 2000 and January 2001, it is averred, the Defendant fenced off the land and erected thereon a metal gate, thereby preventing the Plaintiff’s access to his house through the disputed land. The Plaintiff claimed that he reported this matter to the elders of the community and that on 4th January, 2001 the said elders “mediated over the land issue and ordered the Defendant to remove the gate he has erected on Plaintiff’s land.” The Defendant, not withstanding the mediation would not budge; hence this suit. The Plaintiff says this “blatant act of trespass by the Defendant constitutes a breach of covenant of quiet enjoyment.”

The Defendant denies all the allegations of the Plaintiff and insists that since he did not sell the land to the Plaintiff the “Plaintiff is not entitled to any quiet possession of or peaceable enjoyment of the Defendant’s land.” On the mediation and decision of the elders of the community of 4th January 2001 that he should remove the gate; the Defendant merely avers in paragraph 6 of the statement of defence –

6. The Defendant strongly denies paragraph 9 of the statement of defence and puts the defendant to the strictest proof thereof.

This can not be a proper traverse of the specific statement of fact contained in paragraph 9 of the statement of claim, assuming “the statement of defence” and “the defendant” in paragraph 6 of the statement of defence are respectively references to “the statement of claim” and “the plaintiff.” A proper traverse must be a specific denial which joins issues on facts with the Plaintiff. See LEWIS PEAT (NRL) v. AKHIMIEN (1976) 1 FNR 80; AKINTOIA v. SOLANO (1986) 2 NWLR 598. A general traverse is not enough to controvert material and essentially important and radical averments in the statement of claim which are foundations of the Plaintiff’s case. A traverse, as I understand it, is a categorical denial in the statement of defence of any fact alleged in the statement of claim. The Plaintiff, in paragraph 9 of statement of claim, avers that he protested the erection of the gate by the Defendant to the people of the community and that –

Consequent upon his protest over the encroachment on the said land by the Defendant, some natives of Rumuokwurusi, Obio/Akpor Local Government Area on 4.1.2001 mediated over the land issue and ordered the Defendant to remove the gate he has erected on the Plaintiff’s land. The plaintiff has thereby pleaded estoppel of mediation against the Defendant, which requires the latter to properly join issues with. The effect of improper traverse is that facts not denied are taken as admitted and established. I leave the matter for now.

The parties called evidence at the close of pleadings. The plaintiff called two witnesses; that is himself as PW.1 and Mohammed Agbolu (PW.2), a relation of the Defendant. He also produced a number of documents, which were tendered as exhibits. Only the Defendant testified in his defence. Exhibit ‘A’ is the agreement executed on 16th December, 1990. Exhibits ‘B’ and ‘C’ are the receipts for the N3,000.00 paid in two instalments. Exhibit ‘D’ is said to be the document signed on behalf of the Chiefs and Elders of the Defendant’s family by Monday Ahihia containing the decision of the said Chiefs and elders upon their deliberation over the erection of the gate; the matter pleaded in paragraph 9 of the statement of claim and allegedly denied in paragraph 6 of the statement of defence.

At the close of evidence counsel addressed the Court. In his reserved judgment, delivered on 25th October, 2004, the learned trial Judge found for the Plaintiff. He granted the declaration the plaintiff sought. He awarded N300,000.00 as damages for trespass against the Defendant, and in addition he issued perpetual injunction restraining the Defendant from further trespassing on the disputed land. In consequence of these reliefs the trial Judge struck out the counter-claim of the Defendant against the Plaintiff. Aggrieved, the Defendant filed the notice of appeal containing four grounds of appeal (at pages 61 – 63) of the Record. The reliefs sought by the Defendant, as the appellant, are that the judgment be set aside and its place an order affirming the reliefs in the counter-claim,

The appeal was argued on the briefs of arguments filed by the parties. Appellant formulated four issues out of the four grounds of appeal. The four issues are:

i. whether the learned trial Judge was right in law in granting Respondent’s reliefs at the court below by relying on Exhibit A’ (a purported deed of conveyance) and Exhibit ‘B’ a purported instalmental payment. (This issue emanates from ground A’ of the Appeal).

ii. whether the trial Judge was right in law to have relied on evidence elicited from DW.1, to the effect that the Respondent and his tenants pass through the land in dispute to his estate when same was not in the pleadings and not the case of the parties (this issue is derivable from ground B of the Appeal).

iii. whether the judgment of the trial court is not against the weight of evidence. (This issue flows from ground C of the Appeal).

iv. whether the trial Judge was right in law when he struck out the counter-claim of the Appellant. (This issue originates from ground D of the Appeal).