3PLR – FELIX CHINDA V. AMADI
FELIX CHINDA
V.
AMADI
IN THE COURT OF APPEAL
[PORT HARCOURT DIVISION]
CA/PH/381/98
3PLR/2001/124 (CA)
OTHER CITATIONS
7 NWLR (Pt 767) 505
BEFORE THEIR LORDSHIPS
JAMES OGENYI OGEBE, JCA (Presided)
SYLVANUS ADIEWERE NSOFOR, JCA (delivered the leading judgment)
ABOYI JOHN IKONGBEH, JCA
BETWEEN
- FELIX CHINDA
- OTUONYE CHINDA
- RICHARD E. CHINDA
- WONUKWURU CHINDA
- ODUNGWERU CHINDA
- NNA CHINDA
- IBECHENJO CHINDA
(For themselves and as representing the Chinda-Woke Family of Nkpolu Oroworukwu, Phalga)
AND
CHIEF APPOLOS N. AMADI
MAIN ISSUES
PRACTICE AND PROCEDURE – APPEAL – Brief writing – need for counsel to file good briefs.
PRACTICE AND PROCEDURE – APPEAL – Ground of appeal – ground not challenging the ratio decidendi of a decision – effect of.
PRACTICE AND PROCEDURE – APPEAL – Nature of.
PRACTICE AND PROCEDURE – DAMAGES – Special damages – need for plaintiff to specifically plead an item of special damages before evidence can be led on same.
PRACTICE AND PROCEDURE – EVIDENCE – Evidence which is at variance with the pleadings – effect of.
PRACTICE AND PROCEDURE – INJUNCTION – Claim for injunction over a piece of land – whether can succeed where there is no trespass to land.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Subsisting judgment of court – whether a party can claim an interest in land contrary to terms of subsisting judgment.
LAND LAW – Ownership of land and acts of ownership – relationship between.
LAND LAW – Subsisting judgment of court – whether a party can claim an interest in land contrary to terms of subsisting judgment.
LAND USE ACT – Classification of land as urban or rural – how determined.
PRACTICE AND PROCEDURE – Pleadings – evidence which is at variance with pleadings – effect of.
PRACTICE AND PROCEDURE – Pleadings – issue not joined in the pleadings – trial – Judge making a finding thereon – whether proper.
PRACTICE AND PROCEDURE – Special damages – need for plaintiff to specifically plead an item of special damages before evidence can be led on same.
MAIN JUDGMENT
SYLVANUS ADIEWERE NSOFOR, JCA.(Delivering the leading judgment):
This is an appeal from the decision of the Port Harcourt High Court of the Rivers State of Nigeria, M.U. Odili, J. delivered on the 28th of May 1998 in suit No. PHC/528/92.
By the writ of summons filed on the 13th of August, 1992, the plaintiff had claimed against the defendants, sued in a representative capacity (i.e. for themselves and as the representatives of the Chinda-Woke family of Nkpolu Oroworukwu, Phalga) for (i) a declaratory judgment, (ii) special and general damages for trespass and, (iii) perpetual injunction. He however, did file a statement of claim on the 13th of August, 1992, (copied in pages 5 to 13 of the record of appeal) paragraph 21 of which read as follows:-
“Wherefore the plaintiff claims against the defendants jointly and severally as follows:-
(a) A declaration that the plaintiff is the holder of a statutory right of occupancy over the piece of land variously known as “Ekwuodor” or 59 Wobo/49 National Street, Mile III, Diobu, Port Harcourt within the jurisdiction of the honourable court and more particularly described in certificate of occupancy No. 69 at page 69 in volume 116.
Page 80
(b) Special damage –
(i) Damage to 150mm hollow blocks security fence wall with reinforced concrete pillars N424,200.00
(ii) 2 standard security iron sale N 20,000.00
2 sets of steel lock set N 500.00
2 steel hinges N 110.00
2 steel bolds N 40.00
1150 capacity water tank N 5,150.00
Carpentry works damaged N 5,000.00
4 wooden windows N 2,000.00
2 wooden doors N 500.00
Contingencies N 5,000.00
Attendance N 10,000.00
N472,500.00
General damages N500,000.00
Total N972,500.00
(c) Perpetual injunction restraining the defendants by themselves, servants or agents from further trespass to the said property.”
I shall pause here for a while for a comment or two on the pleadings by the plaintiff for the purpose of clarity and completeness in view of what I may be disposed to say later in the judgment because as it is accepted, a party is bound by his pleadings.
According to the learned authors of “Bullen & Leake and Jacob’s Precedents of Pleadings” 12 ed. at page 62, sub-nomen: “Prayer for relief or remedy”
“When all material facts have been alleged, the statement of claim concludes with the relief or remedy. The statement of claim must state specifically the relief or remedy which the plaintiff claims. This is called “the prayer” and the practice is for the prayer to come at the end of the statement of claim.” (Italics supplied)
There is no doubt that paragraph 21 (b) of the statement of claim (supra) is “the prayer” or the relief and it came at the end of the statement of claim.
But paragraph 21(b) of the statement of claim (supra) claimed “special damages”. The all important question of the first importance now arising becomes this: (i) Is paragraph 21(b) of the statement of claim (supra) within the context of:- “when all the material have been alleged.”?
(See page 62 of Bullen & Leake and Jacobs’ Precedent of Pleadings (supra). Put in another form; Did the plaintiff plead “Special damage”? Before recording my answer to the above poser, I shall advert, again, to the rule of pleadings for my guide. I advert to the learned authors of Bullen & Leake and Jacob’s Precedent of pleadings 12th edition at page 379 subnomen “Damages”. It was stated:-
“A claim for special damage must be explicitly claimed in the pleading with full particulars of how it is made. Hayward v. Pullinger & Partners Ltd. (1950) 1 All E.R. 581; Anglo-Cyprian Trade Agencies Ltd. v. Paphos Wine Industries Ltd. (1951) 1 All E.R. 973.”
(Italics supplied)
Guided by and armed with the above I am clear in my mind that the statement of claim did not plead “Special damage.” Put in other words, paragraph 21(b) of the statement of claim (supra) cannot constitute a pleading of “a claim for special damage…..explicitly claimed in the pleading with full particulars of how it is made.” The legal effect thereof, therefore, is obvious. No evidence ought to be led in that direction.
Now, in the course of the trial, the plaintiff, on the 8th of March, 1995, by a motion on notice dated 6th of March, 1995, sought the leave of court to amend the statement of claim in the terms of the memorandum, exhibited and marked as exhibit A. See pages 35 and 38 of the record of appeal.
The application was heard. It was granted. The applicant was granted seven (7) days to file and serve on the defendants an amended statement of claim. See page 38 of the record of appeal.
The plaintiff did not comply with the order. He did not file an amended statement of claim within seven days. However, on the 13/7/95, as the record of appeal demonstrates, the minutes by court read inter alia:-
‘Court:- Counsel for the plaintiff who was out of time in filing his amended statement has brought a new motion for extension of time to file and serve the statement of claim as amended which is present now not being objected to is taken as moved and granted.”
See pages 39/40 of the record of appeal.
The above notwithstanding, the plaintiff or his solicitor did not comply with the order to file an amended statement of claim. No amended statement of claim was filed. And no amended statement of claim is copied in the record of appeal. From my close study of the record of appeal, the case of the plaintiff was conducted and fought based on the statement of claim originally filed on the 13/8/92. Pure and simple.
The defendants filed a statement of defence on the 13th of March, 1993. It is copied in pages 24 to 31 of the record of appeal. The case was, accordingly, fought and contested on the issues joined on the statement of claim and the statement of defence.
Actual hearing in the suit commenced on the 26th of January 1995, when the Chief Appolos Njo Amadi testified, viva voce, as the P.W.1. He called the evidence of two other witnesses in support of his case. Thereafter, the defendants testified, viva voce, and also called the evidence of other witnesses.
At the conclusion of all the evidence – oral and documentary – the trial Judge ordered counsel to exchange written addresses. See page 67 of the record. In a reserved and well considered judgment, the learned trial Judge, after a review of the evidence and the written addresses by the counsel, found for the plaintiff wholly and entirely.
In reaching his conclusion the learned trial Judge, at page 114 lines 21 to 23 of the record, wrote:-
“The plaintiff produced certificate of occupancy exhibit A and the deed of conveyance exhibit B to which the defendants had no answer for.”
Continuing at page 115 lines 27 to 31 of the record, he wrote:-
“I am satisfied the plaintiff has proved his case on the preponderance of evidence on the balance of probability. I grant him judgment and make the following orders:-
“I. x x x x x x”.
The trial court awarded to the plaintiff N6,000.00 as costs against the defendants. So, the plaintiff won and the defendants lost.
For a better appreciation and clear understanding of what issues were canvassed and agitated at the trial, it becomes necessary to state the background facts of the case giving rise to the present appeal. Afterwards, an appeal is by no means an inception of a new action and no new issues are raised on appeal. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 .
The plaintiff’s case, briefly stated, was that he became the owner of the “Ekwuodor land” now being disputed by purchase from one Anthony Ahorlu and Charles Omunawe Ahorlu both of the Ahorlu family of Nkpolu Oroworukwo. His vendor executed a deed of conveyance (exhibit B) in respect of the land. He took possession of the land, fenced it with blocks and developed a portion thereof by setting thereon some buildings and cultivating the undeveloped portion with some food crops.
Sometime in 1985, the plaintiff applied to the Military Governor of the Rivers State, pursuant to the Land Use Act, 1978, for and, the Military Governor granted to him, in respect of the land in dispute, a certificate of occupancy (exhibit A).
It was part of the plaintiff’s case as pleaded that sometime in 1989 the defendants sued his vendor (Anebo Ahorlu of the Ahorlu family) in the customary court, Obio, in suit No. OCC/3/89 claiming for customary right of occupancy in respect of the very land being now disputed. The customary court judgment in favour of the defendants is exhibit D.
But the plaintiff, however, said that the 3rd named defendant Richard E. Chinda, then, one of the customary court, Obio, Judges, influenced the customary court to give judgment in favour of the defendants (qua plaintiff in suit No. OCC/3/89). The plaintiff’s application for certiorari to quash the judgment (exhibit D) was dismissed. See exhibit J.
As the plaintiff further stated on the 2nd of February 1991 and on the 4th of February 1991, the defendants trespassed into the land in dispute. Thereon they caused some damage to the structures on the land. The defendants attacked the plaintiff and his companions on the land and did them some bodily injuries.
Following his report to the police, the police made some arrests of the defendants but did not prosecute them because they sued for peaceful settlement. The settlement broke down. Hence the action:
The defendants’ case on the other hand was that the “Ekwuodor” land which the plaintiff alleged that he brought from Anebo Ahorlu of the Ahorlu family was their family land. They (the defendants) had always been in possession thereof as the owners. They had developed a portion thereof as the owners. They had developed a portion thereof erecting thereon a boys’ quarter, kitchen and toilets. The undeveloped portion, they had been cultivating. They deny that the plaintiff was ever in possession of the land in 1977.
According to the defendants, they observed the presence of the plaintiff on the land sometime in 1985/1986. They challenged him as a trespasser but the plaintiff claimed that he bought the land from Anebo Ahorlu. Consequently they protested to the Ahorlu family. But the family denied either selling the land to the plaintiff or authorising Anebo Ahorlu to sell it to the plaintiff. The defendants through their family heads summoned Anebo Ahorlu before the Ahwor title holder, one Ezekiel Ekeani.
But Anebo Ahorlu refused to answer to the summons. He further refused to appear when sued before the Nkpolu Oroworukwo Community. As a result thereof, they instituted the suit No. OCC/3/89 in the Obio Customary Court against the plaintiff’s vendor and obtained judgment (exhibit D).
The defendants vehemently denied that the 3rd named defendant (Richard Chinda) ever participated in suit No. OCC/3/89 in any form or shape. And he did not in any way influence the judgment in exhibit D.
It was part of the defendants’ case that they never trespassed into the land in dispute either on the 2/2/91 or, on the 4/2/91 or at all, or did any damage to the plaintiff’s property. It was part of the defendants’ case that on the 2nd of February 1991, they were on their land in the normal course of business working. While on the land, the plaintiff with his thugs swarmed the land. There ensured a free for all fight in which some of them sustained bodily injuries. As result of a report to the police by the plaintiff some of the defendants were arrested but later released. They were not prosecuted because as the police investigation revealed the land belonged to them. The police, therefore, asked the plaintiff to quit the land.
The plaintiff, according to the defendants, had subsequently approached them to purchase the land from them. But the negotiations broke down on the question of the purchase price payable. The defendants denied any liability to the plaintiff.
Now, from the state of their pleadings, it seems to me that the issue at the trial was narrow and simple. In my opinion, it was: (1) Did or could the plaintiff’s vendor make good title in the land being disputed to the plaintiff upon the alleged sale thereof? (2) Did the defendants trespass into the land in dispute on:-
(a) 2nd of February, 1991, and/or,
(b) 4th of February, 1991 and thereon cause any damage?.
Needless saying that the defendants were dissatisfied with the decision of the trial court because they did, on the 22nd of June 1998, lodge a “Notice of appeal’, (see pages 119 to 123 of the record of appeal), to the Court of Appeal against the decision raising five (5) grounds of appeal. I shall hasten to say immediately that after carefully scrutinising the grounds of appeal filed, it is my view that ground one thereof, not being a challenge against the rationem decidendi of the decision, cannot constitute a competent ground from which an issue for determination may be distilled.
The appellants herein were the defendants at the trial while the respondent was the plaintiff. Both parties have filed their respective briefs of argument in compliance with the Court of Appeal Rules. Therein each party formulated the issues for determination.
In their appellants’ brief filed on the 20/1/2000, the appellants had formulated, nominally, six issues out of five grounds of appeal. I shall decline to reproduce issue No. (1) therein distilled from an incompetent ground one of the appeal and also issue No. (2) which the counsel withdrew and abandoned at the hearing of the appeal. The issue was struck out. Accordingly, the appellants’ issues for determination are:-
“(1) x x x x x x x x .
“3. Whether the learned trial Judge was right to hold that the plaintiff is the holder of the property in dispute in the face of exhibits A, B, C and J. which does (sic) not refer to the land in dispute as the same property (ie. identity of the land). (Relating to ground 2).
- Whether the learned trial Judge was right in law to admitting the “valuation report” exhibit G, and relying on same in giving judgment to the plaintiff/respondent. (Relating to ground 3 of appeal).
- Whether the learned trial Judge did not misdirect herself in law when in her judgment she said, “……indeed, I agree with Mr. Adele, counsel for the plaintiff that the defendants schemed to oust the plaintiff of the land. The court knew ever we visited (sic) locus that the land was in an urban area to which the customary court has no jurisdiction.
- Whether the learned trial Judge was right in evaluating, accepting and founding in favour of the plaintiff to the land in dispute without evidence of sufficient possession or acts of ownership by the plaintiff.”
Counsel in the respondent’s brief, filed on the 30th of May, 2000, formulated five issues, which are, (disregarding issue No. (1) distilled from ground one of the appeal):-
“(1) x x x x x x x x.
(2) Whether the plaintiff/respondent proved the identity of the land in dispute.
(3) Whether the trial court was right in admitting and relying on the valuation report exhibit D.
(4) From the state of the pleadings and evidence led was the trial court not entitled to make a finding that the land in dispute is located in an urban area?
(5) Did the plaintiff/respondent prove acts of ownership and possession over the land in dispute.”
I have carefully considered the issues formulated by the counsel in the appellants’ brief. They could conveniently be condensed. Thus condensed and, concisely stated, the only issue for determination, in my respectful view, is:
“Whether, on the pleadings and the evidence, the respondent was entitled to have judgment entered in his favour?”
A resolution of the issue holds the master key to the appeal and, disposes of it wholly and entirely. At the hearing, counsel had relied on their respective briefs of argument. While the appellants’ counsel urged us to allow the appeal, counsel to the respondent urged us otherwise. I had read over and over again the appellants’ brief of argument. In my opinion, with respect the counsel, it cannot pass for a model. It is confused and confusing, indeed wishy-washy. The appellate jurisdiction practice is a serious business. And those who engage in the practice must need be serious themselves.
Contentions;
Arguing the issues Nos. 3, 4 and 6 formulated in the appellants’ brief, directed to the relief (1) (i.e. grant of a declaration), counsel, in the appellants’ brief, referred to exhibits A (certificate of right of occupancy), B (deed of conveyance and, C (the court order striking out suit No. PHC/260.85).
It was the contention by the counsel in the appellants’ brief that the respondent relied on those exhibits for his root of title to the disputed land, the identity of which was uncertain. Accordingly, the counsel submitted in the appellants’ brief that the learned trial Judge was in error in relying on those exhibits in his judgment to grant to the respondent the declaration sought.
It was the further contention by the counsel in the appellants’ brief, relying on the decision in Mogaji v. Cadbury Nigeria Ltd (1985) 2 NWLR (Pt. 7) 393 that the respondent having traced the root of his title to the land in dispute to Anebo Ahorlu, his vendor, it rested on him (respondent) to establish by credible evidence at the trial that the vendor could make good title to the land to him. It was part of the counsel’s contention that the respondent “cannot ignore proof of his overlords title and rely on possession” for title.
Learned counsel further referred to exhibit D (Obio Customary Court judgment in suit No. OCC/3/89). It was the contention by counsel in the appellants’ brief that exhibit D was a subsisting judgment. It has not been set aside or upturned on appeal by a court competent so to do. It was counsel’s further contention that whether or not the land in dispute was within an urban area was not made an issue on the pleadings. He submitted, therefore, that the learned trial Judge was seriously in error in holding, relying on his privately acquired knowledge, that the land in dispute was within an urban area and outside the jurisdiction of the customary court in suit No. OCC/3/89.
In reply, counsel for the respondent, in his respondent’s brief, submitted that the identity of the land in dispute was by no means uncertain. He referred to exhibits A and B and to the sketch plan attached to each of them as fixing the limits or identity of the land. Besides, counsel submitted that the parties knew full well the land in dispute. He cited and relied, inter alia, on the case of Garba v. Akacha (1966) NMLR 62.
Counsel in the respondent’s brief contended, further, that the trial Judge was right and justified in finding that the land in dispute was within an urban area and outside the jurisdiction of the customary court, Obio.
Concluding, counsel contended that exhibits A and B afforded proof of the respondent’s acts of ownership and possession entitling him to the declaration sought.
With respect to the counsel, I think they missed the point. A good starting point for my consideration of the learned submissions by the counsel is to advert, firstly, to section 3 of the Land Use Act Cap. 202 Laws of the Federation, 1990. Section 3 (supra) stipulates, inter alia:
“Subject to such general conditions as may be specified in that behalf by the National Council of States the Governor may for the purposes of this act by order published in the state Gazette designate the parts of the area of the territory of the state constituting land in an urban area”.
Then comes section 5(1) of the Act which provides, inter alia:-
“It shall be lawful for the Governor in respect of land whether or not in an urban area –
(b) to grant statutory right of occupancy to any person for all purposes.”
In my view a “Certificate of Statutory Right of Occupancy” is not in itself or by itself alone proof that the land is within an urban area. No, whether a piece of land is within an urban area or not is a matter of fact.
This case was fought and contested on the pleadings. The question arising becomes this: Was it an issue on the pleadings whether the land in dispute was within an urban area? And was the identity of the land an issue on the pleadings? In my view of the pleadings, my certain answer to each of the above posers is a quick and an unhesitating capital No.
The matter does not stop here. The judgment of the Obio Customary Court in suit No. OCC/3/89 (exhibit D) concerned the land, which the respondent pleaded and testified to, was the land that he bought from Anebo Ahorlu. That judgment (exhibit D) did not come on before the learned trial Judge, on an appeal. No. The learned trial Judge not exercising a supervisory jurisdiction over the judgment. No. With due deference to the learned trial Judge, he was really in error, when at page 113 of the record of appeal, he expressed himself, inter alia:-
“Indeed I agree…….the court knew before we visited the locus that the land in dispute was in an urban area to which the customary court has no jurisdiction.”
On the pleadings and, by his evidence, the respondent traced his root of title to the Anebo Ahorlu, his vendor. The judgment (exhibit D) was “in rem ad personam”. Pure and simple. By section 54 of the Evidence Act, Cap. 112 Laws of the Federation 1990, it, (exhibit D), was
“conclusive proof against parties and privies of facts directly in issue in the case actually decided by the court, and appearing from the judgment itself to be the ground on which it was based…..”.
That judgment (exhibit D) declared the appellants the “owners in title”, (i.e subject to the Land Use Act) of the land in dispute as against the respondent’s vendor. Could the respondent, before the judgment (exhibit D) is upturned by a court competent so to do, be heard to claim “title” in the land in dispute against the appellants? The obvious and certain answer is No. Why? Because “Nemo dat quod non habet”. The respondent’s vendor had not the land in dispute to sell. And the respondent himself could not purchase it from him. So, “Cadit questio”.
It was contended by the respondent’s counsel that exhibits A and B were some proof of the respondent’s acts of ownership and possession of the land in dispute. With respect to the counsel, the contention is puerile. It is paralogic. One cannot, really seriously, talk of acts of ownership without first establishing that ownership. Acts of ownership are derivative from the ownership. Ownership forms the quo warranto of those acts as it gives legality to the acts which would have otherwise been acts of trespass.
From all I have been trying to say above, perhaps imperfectly, the conclusion, I have, readily, come to, is that the declaration made by the learned trial Judge in favour of the respondent, (See page 116 of the record), was not a proper exercise of his judicial discretion.
Arguing issue No. 4, directed to the award of damages to the respondent, counsel in the appellants’ brief contended that the learned trial Judge was in error in awarding the sum of N500,000.00 as general and special damages for trespass allegedly committed on the 2nd of February, 1991 and, on the 4th of February, 1991; relying on the “valuation report” (exhibit G). According to the counsel, in the appellants’ brief, exhibit G ought to be expunged from the record of appeal because, as counsel contended, (a) the alleged damaged items were not made evidence at the trial, (b) the police investigation officer who investigated the report by the respondent did not testify at the trial, (c) Adegoke Salami (PW.2) was not one and the same person as “Wobondah & Associates”. Concluding, counsel, at page 16 of the appellants’ brief, urged us to hold exhibit G “void and invalid”. He cited some decided cases which I consider unnecessary to reproduce and undeserving of my consideration.
Counsel to the respondent in the respondent’s brief had contended that the PW.2 was an expert within section 57 of the Evidence Act; the appellants did not call an expert evidence in rebuttal of the PW.2’s evidence. Counsel justified the award by the trial Judge. He cited decided cases to justify the award.
With respect to the counsel, they quite missed the point completely. This case was fought on the pleadings and resort ought to be had, first, to the pleadings and then to evidence in line with the pleaded facts. The parties and the court are bound by the pleadings.
Now, general damages are award for general damage. And special damages are awarded for special damage. But as I pointed out above, special damage was not pleaded in the statement of claim. The legal consequence, thereof, is obvious. I now deal with and consider Hayward & Anor. v. Pullinger & Parnters Ltd (supra), an action for wrongful dismissal. In the statement of claim the plaintiffs alleged the contract and its breach and included a claim for damages for wrongful dismissal in the prayer but there was no separate paragraph specifically alleging damage through loss of salary and commission. At the trial the defendants objected that this damage was special damage and no evidence could be given of it as it was not specially pleaded. Devlin, J. observed at p. 581 inter alia:-
“It is conceded by counsel for the plaintiff and I think rightly that he cannot recover in respect of any special damage unless that special damage is pleaded.”
Guided by the above, special damage not having been pleaded, the respondent cannot now recover in respect of any special damage.
The matter does not end here. The claims are in respect of alleged trespass to the land in dispute. Trespass is a wrong against possession. It is actionable “dies in diem’.
I, now, advert, firstly, to the pleadings. Paragraphs 12 and 16 of the statement of claim are relevant. They read, inter alia, as follows:-
“12. Meanwhile, on the 2/2/91,…………………….the defendants with axes, hammers, iron rods (were) hitting the block fence…………….”.
- On the 4/2/91 at about 8.30a.m…………..the defendants including the 3rd defendant who was not there on the 2/2/91 (were) completing the destruction of the entire fence.” (Italics supplied)
Now to the evidence! It was the evidence by the respondent (PW1) and reproduced by the trial Judge at page 89 of the record that:
“On the 1st of February, 1991………………at about 7.30a.m the defendants minus the 3rd defendant (were) forcefully hitting at the gate and………..the defendants were hitting at the security block fence.”
Continuing at page 42 of the record, the PW.1 further testified that the defendants on the 3/2/91, further, trespassed into the land and destroyed the remaining part of the wall fence etc.
Immediately, the evidence above by the pw.1 is at variance with the facts as pleaded. Where the statement of claim alleged a trespass on the 2/2/91 and on the 4/2/91 but the evidence showed that the alleged trespass was on the 1/2/91 and, on the 3/2/91, a conflict immediately occurred. The evidence as led goes to no issue. See National Investment Properties Ltd. v. Thompson Organisation Ltd. (1969) NMLR (Pt. 99) at p. 104; Aniemeka Emegokwue v. James Okadigbo (1973) 4 S.C. 113 at 117. The respondent cannot be allowed to set up one case on the pleading and another at the trial. No.
Trespass having failed the claim for injunction also failed. No trespass no injunction.
At page 116 of the record, the learned trial Judge found and awarded to the respondent the total of N500,000.00 as special and general damages for the trespass committed on the land in dispute on the 2/2/91 and, on 4/2/91. The finding or, the award was not supported by evidence. It is perverse.
From all I have been saying above, it is clear to me that the judgment in favour of the respondent cannot be allowed to stand. I shall proceed to record my resolution of the sole issue as formulated (supra). The issue is resolved in the negative. There is, therefore, some merit in the appeal. The appeal succeeds accordingly.
In conclusion, I allow the appeal and, do hereby set aside the judgment of the learned trial Judge on the 28/5/98 together with the award of costs against the appellants.
There shall be costs in the favour of the appellants against the respondent assessed at N3,000.00 In the Court below and, N5,000.00 in this court.
JAMES OGENYI OGEBE, JCA.: I read before now the lead judgment of my learned brother Nsofor JCA, just delivered and I agree with his reasoning and conclusion.
Accordingly, I allow the appeal, set aside the judgment of the trial court and dismiss the respondent’s claim before it. I abide by the order of costs made in the lead judgment.
ABOYI JOHN IKONGBEH, JCA.: I agree.
Cases referred to in the judgment
Anglo-Cyprian Trade Agencies Ltd. v. Paphos Wine Ind. Ltd. (1951) 1 All ER 973
Emegokwue v. Okadigbo (1973) 4 S.C. 113.
Garuba v. Akacha (1966) NMLR 62.
Hayward v. Pullinger & Partners Ltd. (1950) 1 All ER 581.
Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt. 7) 393.
National Invst.Properties Ltd. v. Thompson Org. Ltd. (1969) 1 NMLR (Pt. 99); (1969) 1 All NLR 136.
Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172.
Statutes referred to in the judgment
Land Use Act, 1990, Ss. 3 & 5(1).
Evidence Act Cap. 112 Laws of the Federation of Nigeria, 1990, s. 357.
