IN THE HIGH COURT OF JUSTICE OF THE FEDERAL CAPITAL TERRITORY
HOLDEN AT MAITAMA ABUJA
ON THE 9TH DAY OF MAY, 2013
BEFORE HISLORDSHIP: HON. JUSTICE MARYANN E. ANENIH
(PRESIDING JUDGE)
SUIT NO: FCT/HC/CV/955/2010
BETWEEN:
DAVID UMEANAEDOBE…………………………………………PLAINTIFF
AND
OSITA ACHARA……………..…….DEFENDANT/COUNTER-CLAIMANT
JUDGMENT
The plaintiff claims against the defendant is as follows:
1. A declaration that the plaintiff is the person entitled to the
right of occupancy of plot no R27 Nyanya extension in FCT
(otherwise hereinafter referred to as “The Land”) and that the
plaintiff current ownership and possession of the land is
lawful.
2. A declaration that the conduct of the defendant is repeatedly
going to the land without the let or permission of the plaintiff
and disrupting plaintiff’s quiet enjoyment and use of the land,
is unlawful and amounts to trespass.
3. An order of perpetual injunction restraining the defendant
either in person or through his agents, survivors, servants
and/or privies, from going to, entering, using or attempting to
use the land for whatever purpose or purposes whatsoever.
1
4. And order of court compelling the defendant to pay to the
plaintiff the sum of Five Million Naira (N5,000,000.00) only
as special and general damages for trespass.
The Defendant in defence filed on the 26th of April 2010 a
statement of Defence and counter-claim where in the Defendant/
counter-claimant claims against the Plaintiff as follows:
A. A declaration that the counter-claimant is the rightful holder
and person entitled to the Right of Occupancy over the
property known as Plot No. R.27 of Nyanya, phase IV layout,
Nyanya, Abuja.
B. A declaration that the Plaintiff’s continuous and unabated
acts of trespass and mischief on the land in dispute
constitute actionable trespass.
C. An order of perpetual injunction restraining the
Plaintiff/Respondent either by himself, his agents, privies or
any person claiming through him from entering, tampering
and or trespassing on the Plaintiff’s property forthwith.
D. The sum of N5,000,000.00 (Five Million Naira) as general
and exemplary damages of trespass.
The plaintiff also filed on the 2nd of June 2011 a reply to statement
of defence and counter claim. In proof of his case testified on the
19th of April 2011 as PW1, and adopted his witness statement on
oath filed on the 14th of April 2011 and on the 7th of June 2011
PW1 tendered:
EXHIBIT A- The certificate of occupancy dated 15th
September 1995,
2
EXHIBIT B- Power of Attorney dated 13th of December 2002,
EXHIBIT C- Irrevocable Power of Attorney dated 3rd of
March 1996 and
EXHIBIT D- Letter from AMAC dated 6th of May 2009.
Under cross examination, PW1 testified that:
Nyanya Extension is not the same as Nyanya Phase four in
his own view. Defendant erected a fence on the land in
dispute. He was not the person that demolished the fence
neither does he know who demolished it. He first took
possession of the land in December 2002. Before he took
possession Mrs. Febi Ikilama was in possession. There was
no building on the land. The title was not revoked before he
took possession because they conducted a search and there
was no sign of revocation. He wrote a petition to the office of
the Commissioner of Police Federal Capital Territory
command wherein he stated that he deposited the certificate
for recertification. He has received the certificate back, but
he cannot now remember the exact date. The AMAC officials
confirmed the land was mine by a written document. After
submitting the paper he did not visit the land together with
the defendant and AMAC officials. The defendant sometime
had blocks on the land. To the best of his knowledge, he has
not visited the land in a long while now to know whether the
blocks are still there.
The defendant in support of his defence and in proof of his
counter-claim testified on the 28th of September 2011 as DW1,
adopted his witness statement on oath, he tendered:
EXHIBIT E- The offer of terms of grant dated 18th of August
2006
3
EXHIBIT F- The acknowledgement document from Federal
Capital Territory Administration dated 10th October 2007.
EXHIBIT G1- The Photographs
EXHIBIT G2- The Negatives
EXHIBIT J1- The receipt dated 25th of May 2006
EXHIBIT J2- The receipt dated 26th of May 2006
Under cross-examination DW1 testified that:
Exhibit E is his letter of allocation. It was re-issued. He does
not know to whom it was first issued. He applied for the plot
of land in 2006, he did not specifically apply for this plot of
land, he did not know this particular piece of land before he
set out to apply. It is not the first time he is dealing with land
land. He has no other allocation or plot from Abuja Municipal
Area Council (AMAC).
He is not aware that plots of land are surveyed before
allocation. He do not remember the beacon numbers of his
land. He knows what beacon numbers of a plot are.in
respect of this allocation he do not have any beacon
numbers. The AMAC requested that he pays development
levy for 3 years as he already averred. The request was not
in writing, it is the normal thing when one applies for land
one would be asked to pay 3years tax. He was requested by
AMAC to pay the money for 3years. He did not know the plot
had been previously allocated. The plaintiff demolished the
fence he put there. It is the plaintiff that wrote a petition
against him to the police. It was when the plaintiff pulled
down the fence that he reported him to the Police. The police
never charged him to court. It is not true that the police found
4
that he trespassed into the plaintiff’s land. The police
advised him (the defendant) to go to court. He does not
know that the police has certificate of occupancy over that
land.
At close of evidence both parties with leave of court filed,
exchanged and adopted their written address on the 26th of April
2012.
The defendant in his final address raised the following issue for
determination:
(a)
Has the plaintiff made out a case to warrant a declaration
of title in his favour?
(b)
Whether the remedies of damages for trespass and
perpetual injunction can succeed when the action for
declaration of title fails and title is in issue?
(c)
Whether from the totality of the evidence, the counter
claimant has made out a case for declaration of title and
other remedies sought?
On the first issue raised the counsel submits that there are only
five ways of proving title to land. And that a plaintiff may prove title
by one of the ways. Counsel referred to
ODUMADE V. OGUNNAIKE (2010) VOL 39 WRN, 128 AT 148
LINE 15
That the plaintiff claims to have purchased a parcel of land at
Nyanya extension FCT and not Phase IV Layout, Nyanya, Abuja.
The two are irreconcilable.
5
On the second issue counsel submits that a claim for damages for
trespass and perpetual injunction puts title in issue. He referred to
AMAYO V. ERINMWINGBOVO (2006) 5 JNSC 421 AT 433,
PARAS A-B
A claim for trespass can only succeed against a person in
possession if the person bringing the action shows better title.
Counsel referred to
OBIJURU V. OZIMS (1985) 2 NWLR (PART 6) 167 AT 180-181
PARAS H-A counsel also refers to
OKONKWO V. KPAIJE (1992) 2 NWLR (PART 226) 633 AT 657
OKEDARE V. ADEBARA (1994) 6 NWLR (PART 349) 157 AT
187
That the plaintiff having failed to proof possession and or better
title, his claims for trespass, injunction and damages by whatever
name called, are bound to fail for the same reason.
On the third issue counsel adopted their address on the counterclaim and submitted that this court can grant an order of perpetual
injunction to protect the interest of a successful party in an action
for declaration of title as a consequential relief. Counsel referred
to
ESCSC V. GEOFREY (2007) 21 WRN, 144 AT 159 LINES 10- 15
In conclusion counsel urged this court to dismiss the plaintiff’s suit
in its entirety and grant the counter claim as prayed.
The plaintiff in his final address raised the following issue for
determination:
6
(a)
Whether the Plaintiff has made out a case to establish his
ownership and title to plot No: 27 Cadastral Zone 09-06
Nyanya extension measuring approximately 1421-03
square Metres and situate at Nyanya Extension Abuja
(b)
Whether the Plaintiff was in possession of Plot No:27
described in issue one above and if so whether the
repeated going to the land, excavating and molding blocks
and disrupting Plaintiff’s quiet enjoyment and use of the
land is lawful and amount to trespass.
(c)
Whether the Plaintiff, if proved the owner, is entitled to
injunction and damages.
(d)
Whether given the facts before the court, it is not in the
interest of justice to dismiss the Defendant’s counter claim
in its entirety with cost.
On the first issue counsel to the plaintiff submitted that the
Supreme Court laid down in plethora of cases, the ways/ methods
by which ownership or title to land can be proved. Counsel
referred to
IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227
ONWUGBUFOR V. OKOYE (1996) 1 SCNJ AT PAGE 21
That the defendant admitted ownership by the plaintiff of the land
in dispute in his counter-claim dated 22nd March 2010 in his
Paragraph 21(3)
Obvious weakness of the defendant’s case support’s plaintiff’s
case. Where a party traces title to another or to a particular
person, not only will he establish his title; he has a duty to also
establish the other. Counsel referred to
7
OLOHUNDE V. ADEYOJU (SC) (2002) NWLR (PART 676) PG
562
All the averments of the source of title of the plaintiff has not been
controverted in any material way. It is not enough for defendant to
merely deny, he must also lead evidence in rebuttal. Counsel
referred to
OSHODI V. EYIFUNMI (2002)8 FWLR PG 1283 RATIO 12
The defendant could not establish the identity of the land he is
claiming. It is trite that he who lays claim to a land should show
clearly the land he is claiming. Counsel referred to
CHIEF ELIAS V. CHIEF OMO BASE (1982) 5 SC PG 25
ALPHONSUS IBIANU & ANOR V. PETER A. OGBEIDE &
ANOR (1998) 9 SCNJ 77
The defendant did not call any official of AMAC or AGIS as a vital
and necessary witness to Exhibit E-I. It is very fatal to the already
mendacious case of the defendant. Counsel referred to
ODILI V. STATE (1977) 4 SC 1
On the second issue counsel submitted and urge the court to hold
that the activities of the defendant in excavating, molding,
disrupting the quiet enjoyment of the plaintiff’s land is unlawfully a
trespass. Where a party pleads his root of title and fails as in this
case, it will be unnecessary to consider acts of possession which
acts are acts of trespass. Counsel referred to
ODOFIN V. AYOOLA (1994) NWLR (PT 341) PG 676
8
Where both parties claimed to be in possession and allege
trespass of the other, judgment must be for the party who proves
better title. Counsel referred to
AMAYO V. ERINMWINGBORO (2006) 5 SCNJ 421 AT 433
PARA A-B
On trespass counsel also referred to
JUSTINA PAUL V. EMMANUEL OZOKPO (1995) 4 SCNJ 119
Urged the court to hold that the acts of the defendant amounts to
trespass.
On the third issue counsel urge the court to hold that the plaintiff
having proved his title as true and lawful owner is entitled to
injunction and damages for trespass. counsel referred to
OBIJURU V. OZIMS (1985) 2 NWLR (PT 6) PG 167 AT 180-181,
PARA H-A
On the forth issue counsel submits and urge the court to dismiss
in its entirety the counter-claim of the defendant for lack of merit
and being frivolous counsel referred to
BUHARI V. OBASANJO (2004) 11 EPR 168
ODILI V. STATE (SUPRA)
In conclusion counsel urge the court to resolve all issues raised in
favour of the Plaintiff and grant all the reliefs sought by the plaintiff
with cost against the Defendant. And dismiss the counter-claim.
Both counsel also made further adumbration of their written
addresses on the 21st of March 2013 and 26th April 2013
respectively.
9
I have considered the claim of the plaintiff, the defense and
counter-claim of the Defendant/counter-claimant, the Reply to
defense and counter-claim and counsels respective written
address, I am of the view that the issues arising for determination
are as follows:
1. Whether under the circumstance the plaintiff has made out
his case to entitle him the rightful owner of Plot No. R27
Nyanya Extension in Federal Capital Territory.
2. Whether the case for trespass, injunction and damages has
been made out, and the claim for the said remedies
sustainable under the circumstance.
3. Whether from the totality of the evidence, the counter
claimant has made out a case for declaration of title and
other remedies sought?
Both parties appear to contend ownership of a certain plot in
Nyanya, Federal Capital Territory. The evidence of both parties
shows that they have been laying claim to the said plot of land.
The plaintiff has come before this court for declarations in respect
of the said land in his favour, while the defendant has in response
filed a defence and counter claim.
The first issue for consideration is whether under the
circumstance the plaintiff has made out a case for a declaration
that he is entitled to the ownership and possession of Plot No.
R27 of Nyanya extension in Federal Capital Territory.
The law is settled that a party who seeks a declaration for
ownership of land has legally recognized ways to prove same.
See on this:
10
IDUNDUN V. OKUMAGBA (1976) 1 NMLR 200
MRS LYDIA O. THOMPSON & ANOR V. ALHAJI JIMOH
AROWOLO (2003) LPELR-3240 OR 7 NWLR (PT. 818) PG. 163
GREGORY OBI UDE V. CLEMENT NWARA (1993) 2 NWLR
(PT. 278) PG. 638 OR LPELR. PG. 32-33
In IDUNDUN V. OKUMAGBA (SUPRA) which has been cited
with approval in a plethora of other Supreme Court decisions, the
court postulated as follows:
“As for the law involved, we would like to point out that it is
now settled that there are five ways in which ownership of
land may be proved. We will now proceed to consider each
of these five ways in order to see if the findings of the
learned trial Judge can be seen to bring the evidence
adduced in the case in hand within the ambit of any of them.”
These five ways of proving ownership to land as canvassed in
IDUNDUN V. OKUMAGBA were also succinctly set out in
ATANDA V. AJANI (1989) 3 NWLR (PT. 111) PG. 533 AT PARA
B-D
1. By traditional evidence.
2. By documents of title.
3. By various acts of ownership, numerous and positive; and
extending over a length of time as to warrant the inference of
ownership.
4. By acts of long enjoyment and possession of the land.
11
5. By proof of possession of adjacent land in circumstances
which render it probable that the owner of such adjacent
land would, in addition be the owner of the disputed land.
See also
ASHIRU V. OLUKOYA (2006) LPELR-580 or 11 NWLR (Pt.990)
Pg.1
It is settled law that in a claim for declaratory reliefs the claimant
must succeed on the merits and strength of his case and not on
the weakness of the defence. See
AG RIVERS STATE V. AG. BAYELSA & ANOR (2012) LPELR9336 (SC), where the court postulated that:
“It is basic that in claims relating to declaratory reliefs, as
herein, it is for the Plaintiff to establish his claim on the
strength of its claim and should not rely on the weakness of
the defence; if any. See Nwokidu v. Okanu (2010) 3 NWLR
(Pt 1181) 362, Dantata v. Mohammed (2000) 7 NWLR
(Pt.664) 176; Ekundayo v. Baruwa (1965) 2 NLR 211; Ali
Ucha v. Martins Elechi (2012) MRSCJ vol. 179 at 104;
Dumez Nig. Ltd v. Nwokhoba (2005) 18 NWLR (Pt 1119)
361 at 373-374 where it is pronounced pungently that the
Burden of proof on the plaintiff in establishing declaratory
reliefs to the satisfaction of the courts is quite heavy. Such
declaratory reliefs are not granted even on admission by the
defendant where the plaintiff fails to establish his
entitlements to the declarations by his own evidence.”
And
EMENIKE V. PDP (2012) LPELR – 7802 (SC) Pg. 27 Para. D-G
where his lordship IFABIYI J.S.C restated this position as follows:
12
“I need to state it clearly at this point that since the appellant
claimed seven (7) declaratory reliefs, the law places a legal
burden on him to establish his claim. His three(3) injunctives
reliefs are predicted on the success of the declaratory reliefs.
To that extent, they are consequential reliefs. In DUMEZ
NIG. LTD V. NWAKHOBA(2008) 18 NWLR (PT. 119) 361 @
373-374 this court pronounced with force that the burden of
proof on the plaintiff in establishing declaratory reliefs to the
satisfaction of the court is quite heavy in the sense that such
declaratory reliefs are not granted even on admission by the
defendant where the plaintiff fails to establish his entitlement
to the declaration by his own evidence.”
The plaintiff in the instant case by his evidence traced his
ownership of the land in question through Exhibit A, B and C viz:
the CERTIFICATE OF OCCUPANCY issued to ALIYU
BALARABE MUSA, POWER OF ATTORNEY from Mrs. FEBI
IKILAMA to DAVID UMEANAEDOBE and POWER of
ATTORNEY from ALIYU BALARABE MUSA to Mrs FEBI
IKILAMA respectively.
These documents are a clear indication that the plaintiff is seized
with the power and authority to exercise all the rights donated to
him by the Power of Attorney from Mrs. FEBI IKILAMA, who in
turn is also a donee of a power of attorney from ALIYU
BALARABE MUSA the holder of the customary right of occupancy
over the land subject matter of this case which is certified by
Exhibit A.
These documents vis a vis the evidence of the plaintiff that he has
since been in possession of the plot after the power of attorney to
him in 2002 shows the undisturbed exercise of the powers
13
donated to him in accordance with Exhibit B. Exhibit D clearly
shows that as at August 2008 the plaintiff had already complained
to AMAC about the acts of trespass of the defendant. Aside from
the ipse dixit of the defendant there’s nothing to contradict the
evidence of the plaintiff that he had been in possession of the
land since 2002.
The issue of recertification as raised by the parties in their
evidence would not avail either party under the circumstance as
acknowledgement of receipt of documents for recertification is no
evidence of title to land.
The evidence of the defendant is to the effect that he took
possession of the plot in 2006 after it was allocated to him. It is
obvious from the evidence of the parties that the defendant
actually entered the land in question as described in Exhibit B & C
and more particularly in Exhibit A, which had hitherto been in
possession of the plaintiff.
The defendant from the evidence before the court particularly his
offer of terms of grant appears not to be contesting the ownership
of the plot claimed by the plaintiff in this action via paragraph
19(a) of the statement of claim. The plot which is the subject
matter of the plaintiff’s claim is described as plot No. R27 of the
Nyanya Extension, FCT. The plaintiff further indentifies the plot of
land by his evidence in paragraph 3 of his statement on oath and
Exhibit A, the Certificate of Occupancy to which is attached a
survey plan identifying the land with delineated boundaries and a
schedule where the identity of the land is further described.
The defendant by paragraph 3 of both statement of defence and
counter claim and his witness statement on oath described the
property he is contending for in this action as No. R. 27 but situate
at Nyanya Phase IV Layout, Nyanya Abuja measuring 1,200 sq
meters. Paragraph 3 of the statement of on oath of defendant
states thus:
14
“the defendant admits paragraphs 4 and 5 of the Statement
of Claim only to the extent that the Land in dispute is Plot
R.27 but states that his land is situate at Nyanya Phase IV
Layout, Nyanya, Abuja measuring 1,200 Sq Meters. The
Plaintiff is put to the strictest proof of any other averment to
the contrary thereof ”
The word ‘but’ in line 3 of the above paragraph appears to imply
that although his plot No. is the same as that claimed by the
plaintiff but that the address and diameter/measurement is
different. One cannot help but ponder about the necessity for this
differentiation, this is moreso when the defendant makes a
counter claim in this action and has not given any further
description of the plot in question by way of evidence or a survey
plan.
The only document of title tendered by the defendant is a Reissued offer of terms of grant/conveyance of approval, Exhibit E,
describing the plot simply as R.27 of about 1,200 sq in Nyanya
Phase IV Layout. There’s no survey plan attached to the said
offer document and the defendant under cross-examination
testified that his plot has no beacon numbers. The only document
placed before the court by defence for purposes of identification
of the land or comparison with the one claimed by the plaintiff is
the said offer letter, Exhibit E, which does not sufficiently identify
and describe the exact location and boundaries of the plot.
In PETER OKOKNKWO V. BERNARD OKONKWO (2010)
LPELR-9357 (SC)
The supreme court on how to discharge the burden of proving the
identity of the land in declaration of title to land, stated at page 37
para B-C as follows:
15
“Furthermore, in discharging the burden of identity of the
land in a claim for declaration of title to land, the claimant
must prove the identity of the land and boundaries of the
land in dispute. The burden can be discharged by oral
description of the land or by a survey plan showing clearly
the area to which the claim relates.”
See also on this:
OBICHIE V. ADETONA(2008)LPELR-8472(SC) Pg. 37-38 Para
D-G.
BABATOLA V. ADEWUNMI(2011)LPELR-3945(CA) Pg. 28-30
Para C-C
Suffice to say from the above, that the plaintiff has succeeded in
establishing his right to possession of Plot No. R.27 of Nyanya
Extension in FCT by his evidence and documents tendered
before the court.
The issue of ownership of the said Plot to my mind is another
matter.
The five ways of proving ownership to land have been outlined
above in IDUNDUN V. OKUMAGBA (Supra) and other cases
cited in respect of same thereof. The plaintiff has not shown by
any of these ways that he is the owner of the land in respect of
which he claims save for possessory and control rights shown by
the Power of Attorney donated to him. Exhibit A clearly shows that
the holder of the right of occupancy in respect of the land claimed
is Aliyu Balarabe Musa. And there’s no evidence before this court
showing an alienation or transfer of the said right of occupancy.
See
MANGIBO V. OGUIDE & ANOR (2009) LPELR-8416 Pg. 32-33
Para A-B where the court postulated as follows:
16
“A power of attorney is a document, usually but not always
necessarily under seal, whereby a person seized of an
estate in land authorizes another person (the donee) who is
called his attorney to do in the stead of the donor anything
which the donor can do, lawfully usually clearly spelt out in
the power of attorney. Such acts may extend from receiving
and suing for rates and rents from, to giving seisin to, third
parties. It may be issued for valuable consideration or may
be coupled with interest, in either case it is usually made to
be irrevocable either absolutely or for a limited period (see
ss. 8 and 9 of the Conveyancing Act of 1881 which is still
applicable in the Rivers State under Section 15 of the High
Court Law). A power of attorney merely warrants and
authorizes the donee to do certain acts in the stead of the
donor and so is not an instrument which confers, transfers
limits, charges or alienates any title to the donee: rather it
could be a vehicle whereby these acts could be done by the
donee for and in the name of the donor to a third party. So
even if it authorizes the donee to do any of these acts to any
person including himself, the mere issuance of such a power
is not per se an alienation or parting with possession. So far,
it is categorized as a document of delegation: it is only after,
by virtue of the power of attorney, the donee leases or
conveys the property, the subject of the power, to any
person including himself then there is an alienation. There is
no evidence in this case that that stage had been reached.
Until that stage is reached and as long as the donee acts
within the scope of the power of attorney, he incurs no
personal liability: any liability is that of the donor." PER
NNAEMEKA AGU, J.S.C (Pp.32-33, paras. A-B)
Issue number one is therefore resolved in part in favour of the
plaintiff.
17
Issue No. two is whether the case for trespass, injunction and
damages has been made out, and whether the claim for the said
remedies are sustainable under the circumstance.
Both parties are alleging possession also in this case, so it only
follows that it is the defendant who has not succeeded in showing
any lawful possession of the land in question that would be the
trespasser in this case. The defendant has not shown any lawful
reason for entering into the plot and proceeding to carry out acts
of development of the said plot. He is therefore a trespasser.
See
LAWSON & ANOR V. AYODELE AJIBULU & ORS (1997) 6
SCNJ Pg.1 And
ANAYO V. ERINWINGBORO (2006) 5 SCNJ 421 @ 433 PARA
A-B
The plaintiff has succeeded in showing that the defendant
trespassed into the said land and disturbed his possession
thereof.
The defendant has not denied the alleged interference with the
plaintiff’s land. The plaintiff having shown lawful possession of the
plot is entitled to an injunction restraining the defendant from
further interference with the land.
See on this:
OBIJURU V. OZIMS(1985) 2 NWLR PT.6 Pg. 167 @ 180-181
Para H-A
And
OBANYE V. MBAMALU (2012) LPELR-9475 (CA)
Where the court pronounced at page 14 para C-G that:
18
"It is trite that where there is a claim for trespass and
injunction, title to the land involved is put in issue and this
makes it incumbent on the trial court to consider the issue of
title to the land or exclusive possession to it. The resultant
consequence is that the burden of establishing by the
preponderance of evidence a claim to the land in dispute
rest with the plaintiff. Thus it is for the plaintiff to prove his
case on his evidence and he will fail, if he does not succeed
in establishing his claim before the court. See NZEKWU VS
NZEKWU (1989) 2 NWLR (PT 104) 373. OKORIE VS
UDOM (1960) SCNLR 326; AMAKOR VS OBIEFUNA
(1960) SCNLR 326; KODILINYE VS ODU (1935) 2 WACA
336 EBOHA VS ANAKWENZE (1967) NMLR 140, and
UDIH VS. IDEMUDIA (1998) 57 LRCN 3184." Per OSEJI,
J.C.A (P. 14, paras. C-G
The plaintiff in this instance is also entitled to damages from the
defendant for trespass/the unlawful interference of his enjoyment
of the Plot which has already been established by the evidence of
both parties.
See
AYINDE & ANOR V. SALAWU (1989) LPELR-675(SC) or(1989)
NWLR (Pt.109) 297, Where the court held the view that:
"It is also the law that where a plaintiff founds his claim for
damages for trespass to land on present possessory title
alone his possession of the land in dispute is good against
the whole world except the true owners of the land or
anyone claiming through them." PER AGABJE, J.S.C. (P.29,
Paras.E-G)
See also
Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 67 at 75, 76
Shell B. P. Ltd. v. Abedi (1974) 1 All N.L.R. 1).
19
The plaintiff is therefore entitled to remedy for trespass on the
land by the defendant.
Suffice to say in the light of the above that the issue number two
is resolved in favour of the plaintiff.
The third issue is whether from the totality of the evidence, the
counter claimant has made out a case for declaration of title and
other remedies sought?
The defendant in his counter claim seeks declaratory reliefs.
These claims as earlier observed in issue one above must be
proved on its merit by credible and clear evidence, without
reliance on the weakness of the defence. See the cases already
cited in respect of declaratory claims in Issue number one.
The counter claim is an independent suit although it arises from
the main suit. The counter claimant therefore has a burden to
prove his case on a preponderance of evidence. See on this
JADCOM Ltd. & Anor V. OGUNS ELECTRICALS
(2003) LPELR-7253(CA) or
JADCOM LTD. V. OGUNS ELECTRICALS [2004] 3 NWLR
(PT.859)153
Where the court posited that:
"... a counter-claim is a separate action. That is the more
reason why any claim made therein must be supported by its
own evidence. This is in accordance with the general
principle of burden of proof. He who asserts must prove. See
SECTION 135 (1) OF THE EVIDENCE ACT, CAP. 112
L.F.N. 1990; FAMUROTI V. AGBEKE (1991) 5 NWLR
(PT.189) 1; IYALEKHUE V. OMOREGBE (1991) 2 NWLR
20
(PT.177) 94." PER MUHAMMAD, J.C.A. (PP. 36-37,
PARAS. F-A)
See also
LASISIS & ANOR V. NWANNA (2012)LPELR SUIT NO.
CA/I/178/08 DELIVERED ON 11TH DECEMBER 2012 AT
IBADAN JUDICIAL DIVISION. Wherein the court of appeal held
at PAGE 20 PARA C-D that:
“In a claim for title to land he who asserts has the burden of
proof; in that case the defendant has no responsibility
establishing his title which is been challenged by the
claimant. However, where there is a counter-claim as there
was in this appeal each party bears the burden of
establishing the respective claim”
PER DONGBAN-MENSEM, J.C.A
The evidence before the court shows that the plot the defendant
is claiming in the counter claim is not the subject matter of the
substantive suit. The defendant/counter claimant has not proved
his entitlement to the plot claimed by plaintiff nor to the one in
respect of which he counter claims nor has he given evidence
showing it is same land. His counter claim for declaratory reliefs
has to fail. And since the ancillary reliefs claimed are
consequential to the grant of the declaratory reliefs, they all also
have become otiose.
Suffice to say that the entire action of the defendant/counter
claimant fails.
Issue number three is therefore also resolved in favour of the
plaintiff
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Consequently and in the light of the foregoing, declaratory reliefs
claimed by the plaintiff succeeds in part, the claim for trespass,
injunction and damages also succeeds. While the counter claim of
the defendant on the other hand fails in its entirety and is hereby
accordingly dismissed.
For the avoidance of doubt order is hereby made as follows:
1. Declaring that the plaintiff is the rightful person entitled to
plot No. R27 of the Nyanya Extension in FCT and the
plaintiff’s current possession of the land is lawful.
2. Declaring that the conduct of the defendant in repeatedly
going to the land, No. R27, Nyanya Extension FCT,
excavating and moulding blocks without lawful excuse or
permission of the plaintiff and disrupting the quiet enjoyment
and use of the land is unlawful, and same amounts to
trespass.
3. Order of perpetual injunction is hereby made restraining the
defendant either in person or through his agents, heirs,
servants, and/or privies, from unlawfully entering into and/or
using the land for whatever purpose/purposes whatsoever.
4. And the defendant is hereby ordered to pay to the plaintiff
the sum N500,000.00 damages for trespass.
(Signed)
Honourable Judge
Chief E.N.C Emekoba Esq., Ezra Enwere Esq., for the Plaintiff
Sambo Vongjen Esq., A.G Wilfred E
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