➥ CASE SUMMARY OF:
Anthony Idesoh & Anor. V. Chief Paul Ordia & Ors. (SC.220/1992 · 28 FEB 1997)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Trespass;
Proof of land;
➥ CASE FACT/HISTORY
The reliefs sought in the action instituted by the appellants against the respondents in the High Court of Justice of the defunct Bendel State of Nigeria, Warri Judicial Division, were as follows:- “(1) As against the 1st, 3rd, 4th, 5th and 6th defendants jointly and severally the sum of ₦10,000.00 (ten thousand naira) damages for trespass in that between the month of August, 1969, and 31st March, 1971 without the plaintiffs’ consent first obtained they broke and entered plaintiff’s piece of land lying and situate on Udu Road in Kolokolo village and committed various acts of trespass within the jurisdiction of this Honourable Court. (2) An order for perpetual injunction restraining the said defendants, their agents, servants, and privies from committing any further acts of trespass on the/plaintiffs’ piece of land aforesaid. (3) As against the second defendant only an order for perpetual injunction restraining it, his (sic) servants and agents from entering plaintiff’s piece of land lying and situate on Udu Road in Kolokolo village near Enerhen village and/or committing any acts of trespass thereon.
The evidence led by the appellants was that they were the owners of the land in dispute which they called Kolokolo land which was near Enerhen village. The 3rd to the 6th respondents claimed that the land in dispute belonged to them according to the respective portions owned by their respective families. The 1st respondent relied on separate grants he got from the families of the 3rd to 6th respondents in respect of the portions of the land in dispute which he said were made between 1966 and 1971. The 2nd respondent got an assignment of an unexpired lease of a parcel of land within the land in dispute. The appellant’s father, Chief Sam Warri Essi, in his claim to the land and following the 1st respondent’s activities thereon, seemed to have made efforts to assert ownership. He claimed to represent Egborodje family of Igbudu; The appellants on the one hand and the 3rd to 6th respondents on the other hand pleaded and relied on traditional history and acts of ownership and possession to support the contention that the land in dispute belonged to them.
The learned trial Judge gave consideration to the evidence led by both parties and the submissions of their learned counsel. He entered judgment for the respondents. He rejected a document tendered by the appellants and held that the traditional evidence led by the appellants was unsatisfactory but that the traditional evidence adduced on behalf of the 3rd to 6th respondents was reasonably cogent enough to support their defence. In his view, as far as the appellants were concerned, there was no proof of any act of ownership. He held that the evidence in support of the respondent’s case on acts of ownership was numerous and positive enough to warrant the inference that they were the owners of the land in dispute. Dissatisfied with the judgment of the learned trial Judge, the appellants lodged an appeal against it to the Court of Appeal. The court below dismissed the appeal and the appellants have lodged a further appeal to this Court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the appellants proved that they were entitled to the reliefs claimed by them?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE LOWER COURT WAS JUSTIFIED IN UPHOLDING THE TRIAL COURT’S PREFERENCE OF THE RESPONDENT’S HISTORY
‘The learned trial Judge evaluated the evidence led by both parties. In doing so, he meticulously examined and gave consideration to the evidence given by the parties and their witnesses. He applied the relevant legal principles and came to the conclusion that the evidence of tradition led by the appellants was not satisfactory and that the traditional evidence led by the respondents was cogent and he was more impressed by it. The court below gave consideration to the matter and came to the following conclusion:- “The next point to consider is whether there is evidence on record to support the learned Judge’s preference of the traditional history brought by the respondents. This is pleaded in paragraphs 8(1) (a-d) of the relevant Statement of Defence. Indeed, the learned trial Judge observed minor contradictions in the evidence of the 4th and 5th respondents but he considered them negligible. He was, however, more impressed by the traditional evidence given by the 3rd to the 6th respondents on record. I find this conclusion amply supported by the evidence on record, direct and inferential, and will therefore not disturb it.” Where, as in this case, a trial court unquestionably evaluated the evidence and appraised the facts, it is not the business of the appellate court to reverse and/or substitute its own views for the views of the trial court. See Bamgboye v. Olarewaju, (1991) 4 NWLR (Pt. 184) 132. An appellate court will reverse findings of fact made by the trial court when they are perverse or not supported by evidence. See Lengbe v. Imale (1959) SCNLR 640; and Fatuade v. Onwoamanam (1990) 2 NWLR (Pt. 132) 322. The court below was, therefore, right in affirming the findings of the learned trial Judge on traditional evidence.’]
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✓ DECISION:
‘The appeal has no merit. The judgment of the court below affirming the judgment of the learned trial Judge is hereby confirmed. The appeal is hereby dismissed with ₦1,000.00 costs to the respondents.’
➥ FURTHER DICTA:
⦿ IN TRESPASS, WHERE DEFENDANT SAYS LAND BELONGS TO HIM, PLAINTIFF HAS TO PROVE BETTER TITLE
Where a plaintiff claims damages for trespass land injunction and the defendant alleges that the land belongs to him, the plaintiff, in order to succeed, has to prove not only that he was in possession of the land when the trespass was committed on it but also that his own title to the land in dispute is better than that of the defendant. See Amakor v. Obiefuna (1974) 3 S.C 67. This is because, in the circumstance, title to the land in dispute is put in issue. See Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370. Therefore, in order to succeed, the appellants in this case had the burden of proving not only that they were in possession when the alleged trespass was committed by the respondents but also that their own title to the land in dispute was better than that of the respondents. — Y.O. Adio JSC.
⦿ WHERE TRADITIONAL HISTORY IS RELIED ON
Evidence of traditional history is one of them, if evidence of traditional history is not contradicted or in conflict and found by the court to be cogent, it can support a claim for a declaration of title. See Olujebu of Ijebu v. Osho (1972) 5 S.C 143. If, in a case, evidence of traditional history is not conclusive then the court should give consideration to the evidence, if any, of recent acts of possession or of ownership. See Kojo II v. Bonsie (1953) 14 WACA 242; and Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90. — Y.O. Adio JSC.
⦿ AVERMENT NOT SUPPORTED BY EVIDENCE IS USELESS
There appears to be a misconception on the part of the appellants. It is not enough for a party to make averments in pleadings. Averments which on the face of them appear impressive are useless if no evidence is led to prove them. Mere averment in pleadings without proof of the fact pleaded is no proof if the averment is not admitted. See Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578. Also, failure to give evidence in support of an averment means that the averment in question has been abandoned. See: Omoboriowo and Ors v. Ajasin (1984) 1SCNLR 108; (1984) 1 S.C 206 at p.202, and Balogun v. Amubikanhun (1985) 3 NWLR (Pt.11) 27 at pp. 36 and 37. Further, an assertion by a party or his witness is one thing and the production or giving of evidence to prove the assertion is another: An assertion may properly be described as an allegation. It will remain as an allegation unless it is proved by evidence. Therefore, the onus of proving a particular fact is on the party who asserts it. See Okubule v. Oyagbola (1990) 4 NWLR (Pt.147) 723; and Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539. It was, therefore, not enough for the purpose of discharging the burden on the appellants, to prove their case, merely to aver in their Amended Statement of Claim or for any of them or their witness or witnesses to allege that the grave of their ancestor or certain shrines being worshipped by them were in the land in dispute, without leading any credible evidence to prove the averment or assertion. It was as if the averment or assertion had been abandoned by them. The foregoing principles apply in this case. — Y.O. Adio JSC.
⦿ A PERSON’S FAMILY IS DISTINCT FROM THE PERSON, IN LAW
The present action was instituted by the appellants as representatives of their family against the respondents also in a representative capacity. A person’s family is a body consisting of the members of the family and it is a legal entity which is separate and distinct from each member of the family. So, as rightly pointed out by the learned trial Judge and rightly affirmed by the court below, what Tobi Onomiruren did or said would not be binding on the Onomiruren family. — Y.O. Adio JSC.
⦿ INJUNCTION IS BINDING WHEN AREAS ARE ASCERTAINED
An injunction can only be binding when the boundaries of area or areas to be affected are ascertained, well-known and properly described. — Y.O. Adio JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Y.O. Adio, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
