Barrister & Solicitor

07/06/2026

*POSITION OF THE LAW WHEN THERE IS DISPUTE OF LAND BETWEEN TWO PARTIES WITH CERTIFICATES OF OCCUPANCY*

_TRAHUNT LTD v. AKERELE & ORS(2026) LPELR-83349(SC)_

"On the competing claim of title, it is trite that where two parties lay claim to title founded on Certificates of Occupancy, the Court must examine the validity and authenticity of the instruments relied upon." Per STEPHEN JONAH ADAH, JSC (Pp 16 - 16 Paras A - B)
Faculty of law ADSU

06/06/2026

06/06/2026

*CAPITAL HOTELS PLC & ORS. vs. ABDULLAHI(2020)LCN/14881(CA)*

*ISSUE:* AWARD OF GENERAL DAMAGES-Whether a dispassionate evaluation of evidence is a foundational requirement for a legally sound award of general damages by the Court

*PRINCIPLE:*
"Issues four challenges reliance on Exhibit 11 to arrive at the finding that the flooding made the Respondent to sustain physical injury which affected his health and property. Issue five challenges the award of N100,000,000.00 (One Hundred Million Naira) general damages in favour of the Respondent. It is trite that general damages is at the discretion of the Court but it must be based on some parameters, some of which is evidence and not whimsically. See HELIOS TOWERS (NIG) LTD. V. MUNDILI INVESTMENT LTD. (2004) LPELR-24608 (CA) where my learned brother ABIRU, JCA, said as follows: “Now, general damages are damages that the law itself implies or presumes to have accrued from a wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily results from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the claimant. General damages are such that the Court may give when the Judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. General damages is quantified or calculated by relying on what would be the opinion and judgment of a reasonable man in the circumstances of the case - GKF Investments Ltd. Vs. Nigeria Telecommunications Plc (2009) 15 NWLR (Pt. 1164) 344; Tanko Vs. Mai-Waka (2010) 1 NWLR (Pt.1176) 468; Kopek Construction Ltd. Vs. Ekisola (2010) 3 NWLR (Pt. 1182) 61; Aluminium Manufacturing Co. Nigeria Ltd. Vs. Volkswagen of Nigeria Ltd (2010) 7 NWLR (Pt. 1192) 97.”
He went to say: “An award of general damages cannot be made arbitrarily. It calls for some measure of quantification and a careful exercise of judicial discretion and it is not an exercise of judicial discretion if the basis for the award is not demonstrated. An assessment of damages must at all stages have reference to the evidence and the subject matter of the action.”
The apex Court in the case of GAMBO V. IKECHUKWU (2011) 17 NWLR (Pt. 1277) 561 heavily relied on by the Court in HELIOS TOWERS case held thus: “It is quite plain that the relief of general damages not only requires proof of the alleged acts in breach of the contract between the parties, credible evidence is also required to prove the extent of general damages claimed by the plaintiff… It is not enough for a Court to simply award damages without giving reasons as to how it arrived at what amounted to reasonable damages.”
The Respondent in his Amended Statement of Claim also sought general damages in the sum of N500,000,000.00 (Five Hundred Million naira) only for loss of goodwill, earnings, loss of profits, use of properties, physical injury and continued suffering. The claim for physical injury (Exhibit 10 and 11) is duplication because the Court below considered it under special damages and made an award in respect of the same injury. The Respondent made several allegations of how his business was disrupted. The arrangement between the parties is that of a licence, the Appellants were the licensor and the Respondent was the licensee. The Appellants denied the allegations and both sides presented evidence. On the medical report tendered (Exhibit 11), it was considered earlier where I found that it cannot be relied on because it was not tendered by the maker. The same Exhibit is what the trial Court relied on again to award general damages in the sum of N100,000,000.00.
I agree with the Appellants’ counsel when he observed that the trial Court contrary to settled procedure of evaluating evidence before award of damages, failed to do a dispassionate evaluation of the evidence before the award. Consequently, there is no foundation for the award of general damages. In fact, loss of profit cannot come under general damages because it must specifically pleaded and strictly proved. Particularization is required in terms of customer base, nature of business, his annual returns and profit margin prior to the flooding must have been established by credible evidence, it was not so done. Loss of profit cannot be estimated. It is one of the claims that come under special damages. Furthermore, the evidence before the trial Court on the physical injury gives room for speculation. Exhibits 10 and 11 were made by the same Dr. Gambo and yet bear different signatures, a Court is allowed to examine signature and arrive at a finding. See MOBIL PRODUCING (NIG) UNLTD. V. HOPE (2016) LPELR-41191 (CA) where the Court held as: “By the authoritative decision of the Apex Court in ADENLE v. OLUDE (supra) vis-a-vis the provisions of Section 101 of the Evidence Act (supra), the Court below and indeed any trial Court for that matter, has a duty to take the initiative of making the necessary comparison of signatures in documentary exhibits before it before coming to a reasonable conclusion in the matter. See ADENLE v. OLUDE (supra) @ 432 Paragraphs A-E; TEICH v. NORTHERN INT-MARKET CO. LTD. (1987) 4 NWLR (Pt. 65) 441; R v. SMITH 3 CAR 87; R. v RICKARD 13 CAR 140; R v. APPEA (1951) 13 WACA 143; WILCOX v. THE QUEEN (1961) 2 SCNLR 296.” Per SAULAWA, JCA.( Pp. 29-30, Paras. F-C).
Having so examined the two Exhibits, no weight can be placed on them because they were not tendered by the maker who must have been available for cross-examination. They are therefore worthless and must be expunged. Another impeaching feature is the fact that being a medical report with clear difference in the signatures of the same doctor, he should have been called to testify because even the terminologies used would require explanation and must be linked to the nature of the offending act for which damages is sought. Flowing from above, I find for the Appellants under issues 4 and 5." Per NIMPAR,

15/05/2026

Everyone needs this product💯✍️

14/05/2026

Stop mistaking DEPOSIT and PART PAYMENT because they have different meanings and different legal consequences.

Before you enter any deal or agreement that involves dropping some money, make sure you are right about the money you are dropping.

Is the money a deposit or part payment?

Let's break it down!

👉A deposit is a non-refundable money that is paid to secure a contract or agreement.

If you breach the contract, you forfeit the money you deposited.

A deposit is a caution fee.

For example, Dickson is interested in a piece of land worth ₦2million but does not have the full money to pay.

He told Amudike, the seller to keep the land for him and give him one year to raise the money.

Amudike agreed on the condition that Dickson will deposit ₦200,000 to show commitment and that if Dickson fails to pay up the ₦2million in one year, Amudike can sell the land and Dickson will forfeit the ₦200,000.

If after the one year Dickson fails to pay up, his ₦200,000 is gone.

If Amudike sells the land to someone else before the expiration date, Dickson can recover his ₦200,000 and claim damages for breach of contract.

That's a deposit arrangement!

👉Part payment on the other hand is a portion of the purchase price paid early. It acts as an installment or advance.

If the contract is cancelled, the amount paid is refundable. It doesn't matter who cancelled the contract. The money must be refunded.

Assuming Dickson's agreement with Amudike is based on part payment, Dickson can always come back to Amudike to declare his disinterest in the land and collect his ₦200,000.

Based on agreement, Amudike might deduct damages for losses incurred in keeping the land.

Amudike can also sell the land and refund Dickson.

It's important you know which is which and use the right words in your dealings.

The one you go for determines the remedies you can get in law.

My backup page is The Legal Altar

© NkyLaw

13/05/2026

"CERTIFICATE OF INCORPORATION IS NO LONGER THE ONLY MEANS OF PROVING LEGAL PERSONALITY OF A COMPANY"

SODEINDE v. WORLD MISSION AGENCY INC
[2026] 4 NWLR (Pt. 2033) 1.

The Supreme Court, even though it recognised that the usual means of proving legal personality of a company is by its certificate of incorporation, provided an additional means of prima facie proving the legal personality of a company. According to Agim JSC in his concurring judgment held that

*“An original сору оr a certified true сору of а сomраnу search report issued bу the Corporate Affairs Commission (САС)* stating the physical address, the registration number, date of registration and the names of the directors of the соmраnу with а signed and dated “ *verification stamp” of the САС is аn additional means of prima facie proof that аn organisation is а соmраnу registered or incorporated.* It would bе absurd to ignore such a document and assert that in the absence of the certificate of its incorporation, or registration, there is nо prima facie evidence that it is а registered оr incorporated соmраnу.

In this case such а соmраnу search report concerning the registration status of the respondent was attached to and exhibited with the appellants’ further counter affidavit in opposition to the preliminary objection as exhibit J04”.

12/05/2026

*KHALIL vs. GARBA & ANOR.(2020)*
*LCN/14730(CA)*

*ISSUE:* WRITTEN STATEMENT ON OATH-Whether the law requires a deponent in a written statement on oath to use the exact words in the Oaths Act

*PRINCIPLE:*
"There is a second leg to issue No. 1 and that is the validity of the written deposition of the 1st Respondent. The question is whether that written statement on Oath of the 1st Respondent is invalid merely on account of non-compliance with provisions of Section 13 of the Oaths Act read with the 1st Schedule of the same Act?
Learned counsel for the appellant had returned an affirmative answer. In reference therefore to the decision in GTB Plc vs. Abiodun (2017) LPELR-42551 (CA), he argued that any written deposition on Oath which was not in conformity with the Oaths Act or which failed to adopt the exact wordings in the Oaths Act particularly as it relates to the closing paragraph, in the 1st schedule was invalid, incompetent and void. We were urged therefore to hold that the 1st respondent’s statement on Oath being invalid, there was no evidence presented to Court by her to warrant the Court giving judgment in her favour.
Contrariwise is the submission made for the 1st respondent wherein learned counsel on her behalf also relied on a number of cases such as Ekperetu vs. Ofogori (2013) ALL FWLR (Pt. 680) 1313, 1357; Dasofunjo vs. Ajiboye (2017) ALL FWLR (Pt. 911) 508, 530-531 to submit that there was substantial compliance with provisions of the Oaths Act as to make it possible for the 1st respondent’s deposition on Oath to sail through, in doing substantial justice to the matter. He urged us to so hold.
Section 13 of the Oaths Act provides as follows:
“It shall be lawful for any commissioner for Oaths, notory public or any other person authorized by the Act to administer an Oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the first Schedule of this Act.”
The opening paragraph to the 1st Schedule of the Oaths Act provides thus:
“I … do solemnly and sincerely declare that…”
The closing paragraph provides thus:
“I make this solemn declaration consciously believing the same to be true and by virtue of the provision of the Oaths Act.”
The 1st respondent’s witness’ deposition on Oath is at pages 8-10 of the record. At paragraph 21 is the witness’ concluding statement or remark thus:
“That I depose to this affidavit in good faith believing same to be true and correct in accordance with the Oath Act, 2004.”
Those concluding remarks of the 1st Respondent no doubt are not the exact words as are contained in the 1st Schedule to the Oaths Act. They are nonetheless in substantial compliance with the Act. See the decision in Ekperetu vs. Ofogari (2013) ALL FWLR (Pt. 680) 1333, 1357; Dasofunjo vs. Ajiboye (2017) ALL FWLR (Pt. 911) 508, 530-531. This Court has further held in Ojibara vs. Gov. of Kwara State (2004) LPELR-13002 (CA). “That the law does not require a deponent to use the exact words in the Oaths Act. Anything in substantial compliance with the requirements of that Act will be enough in this era of substantial justice at the expense of technicalities.” What is more, the Apex Court has held in Anatogu vs. Iweka II (1995) 8 NWLR (Pt. 415) 457 Per Uwais, JSC, (as he then was) that no miscarriage of Justice is caused by the failure to strictly comply with the provisions of the Oaths Act. By this decision, it means that the Court of Appeal decision in GTB Plc vs. Abiodun (Supra) on this point does not represent the true state of the law hence I resolve Issue No. 1 against the appellant." Per HUSSAINI, JCA.

*UZOIGWE vs. NIGERIAN RAILWAY CORPORATION(2020)LCN/15781*
*(CA)*

*ISSUE:* WRITTEN STATEMENT ON OATH-Whether failure by a deponent to comply with the provisions of Section 13 of the Oaths Act and Section 117 (1) (b) of the Evidence Act can render a statement on oath incompetent

*PRINCIPLE:*
"Sections 1, 6 and 13 of the Oaths Law of Ebonyi State provide that:
1. (1) The oaths to be taken as occasion shall demand shall be the oaths set out in the First Schedule to this Law. (First Schedule)
6. Every commissioner for oaths or notary public before whom any oath or affidavit is taken or made under this Law shall state truly in the jurat or attestation at which place and on what date the oath or affidavit is taken or made.
13. It shall be lawful for any commissioner for oaths, notary public or any other person authorised by this Act to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.
FIRST SCHEDULE
STATUTORY DECLARATION
I… do solemnly and sincerely declare that (set out in numbered paragraphs if more than one matter) and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act.
4(2) No irregularity in the form in which an oath or affirmation is administered or taken shall -
(a) invalidate the performance of official duties; or
(b) invalidate proceedings in any Court; or
(c) render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.”
I have examined DW1’s statement on oath at pages 57-58 which is also at pages 76-77 of the record of appeal, it is clear on the face of the statement that it was sworn to before the Commissioner for Oaths at the High Court Registry, Abakaliki. The evidence of DW1 on pages 167-168 of the record of appeal is as follows:
Q. “Is it correct to say that this not the first time you are testifying for the defendant in suit.
A. It is my first time.
Q. Have you ever crossed this High Court gate.
A. Yes
Q. Tell the Court where you signed the statement on oath.
A. At the room there.
Tell the Court the person that was there when you signed the witness on oath.
A. I don’t know the name.”
The record shows “YES’’ where the appellant’s brief stated “NO”. The law is settled that the Court as well as the parties is bound by the record of appeal. The record before this Court is properly certified by the Assistant Chief Registrar of the Court below as the true copy of the record of DW1’s evidence at the Court below. The record has not been challenged by the appellant in any way. The assertion that DW1’s statement on oath was not signed before the Commissioner for Oaths in the Court Registry is not borne out by the record of appeal.
A combined reading of the above provisions of the Oaths Law is to the effect that for an affidavit or a statement on oath to be valid, it must start with the words “I …. do solemnly and sincerely declare that” (set out in numbered paragraphs if more than one matter) and end with the statement: ”I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act or Law as the case may be” The exact words need not be used but there must be substantial compliance or at least a variation of those words. Where there is no substantial compliance with the provisions of Section 1 and First Schedule to the Oaths Law, the affidavit or statement on oath will be incompetent and invalid. See A.G. AKWA IBOM STATE & ANOR. V. AKADIAHA & ORS. (2019) LPELR-46845(CA) AT 6-12 (C-E); ABOLASE M. & ORS. V. MESSRS. M. CHEVRON & ORS. (2019) LPELR-47516 (CA) AT 10-12 (C-A); CORA FARMS & RESOURCES LTD. V. UNION BANK (2019) LPELR-48162 (CA) AT 21-27 (B-A); REBECCA V. A.G. FEDERATION & ORS. (2019) LPELR-47378 (CA) AT 13-16 (E-B).
Against the provisions of Section 1 of the Oaths Law and the plethora of decided cases on this issue, I have examined the DW1’s statement on oath. The statement opened with the words:
“I, Mr Odogwu of .........hereby make oath and state as follows.”
It concluded with paragraph 16 as follows:
16. “That the plaintiff’s case be dismissed.”
The statutorily required statement that “I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Law” or any variation of it is completely missing. Thus there was no substantial compliance with the provision of Section 1 of the Oaths Law and First Schedule to the Law. The position of the law is that such a statement on oath is incompetent and liable to be struck out.
In addition to the failure to comply the mandatory provisions of Section 1 of the Oaths Law, DW1’s statement failed to comply with the provisions of Section 117 (1) (b) of the Evidence Act which stipulates that every affidavit taken in a cause or matter shall state the full name, trade or profession, residence and nationality of the deponent. DW1 failed to state his residence and nationality which by virtue of the use of the word “shall” in Section 117 (1) (b) of the Evidence Act is mandatory. See CORA FARMS & RESOURCES LTD. V. UNION BANK (SUPRA). The inevitable conclusion is that non-compliance with the provisions of Section 1 of the Oaths Law, First Schedule thereto and Section 117 (1) (b) of the Evidence Act renders DW1’s statement on oath incompetent. It is hereby struck out. Issue 2 is resolved in favour of the appellant." Per BOLAJI-YUSUFF, JCA.

10/05/2026

*USULOR vs. EBONYI STATE GOVERNMENT & ANOR.(2020)LCN/15775(CA)*

*ISSUE:* PROOF OF TITLE TO LAND-
Whether a claim for title to land based on traditional evidence will fail if the custom of inheritance of the community is not established; Whether in law a person who has been adjudged a trespasser can be allowed to continue to occupy the land in respect of which he has been adjudged to be a trespasser

*PRINCIPLE:*
"The Appellant’s claim is for damages for trespass and injunction. The law is trite that a claim for trespass and injunction automatically puts title to land in dispute in issue unless the issue of title to the land in dispute had been determined in an earlier case. See UFOMBA & ANOR. V. AHUCHAOGU & ORS. (2003) LPELR-3312 (SC) AT 20 (B-D); AKINTERINWA & ANOR. V. OLADUNJOYE (2000) LPELR-358 (SC) AT 13 (C-D); OLOHUNDE & ANOR. V. ADEYOJU (2000) LPELR-2586 (SC) AT 13(B-D); ONOVO & ANOR. V. MBA & ANOR. (2014) LPELR-23035 AT 36-37 (F-A). Title to the land having been put in issue, the onus was on the Appellant to prove his title to the land by any of the five accepted means by cogent and credible evidence. As stated earlier in this judgment, the Appellant’s root of title was as stated in paragraphs 9-13 of the statement of claim. The trial Court having considered the pleadings and the evidence led held as follows at pages 212-213 of record:
“It is my view that the pleadings and evidence of the Plaintiff on this issue of the custom of Amawula town relating to land inheritance is vague. If it is the custom that the eldest son inherits the family compound and other lands elsewhere, how are those other lands according to custom determined so as to know the ones the eldest son is not entitled to which now devolves on other sons of the deceased, in this case, the Plaintiff? This was not made certain by both the pleadings and evidence of the Plaintiff. In view of the above, it is obvious that the custom of Amawula community as it relates to customary inheritance of land cannot be ascertained. It is the law that he who assets must prove. See the case of KANO V. MAIKAJI (2011) 17 NWLR (PT. 1275) 139 and A.G FED. V. A.G ABIA STATE (NO. 2) (2002) 6 NWLR (PT. 764) 542. It is my view that the Plaintiff both woefully failed to clearly plead the custom of Amawula community in Ezza as it relates to customary inheritance and to lead credible evidence in proof of same. Consequently, I hold that the custom of Ezza as it relates to customary inheritance of land of a deceased person who dies intestate was not proved in this case.”
I agree with the Appellant’s counsel that the Court misunderstood the case of the Appellant. The claim before the Court was one of title to the land in dispute and not inheritance per se. The root of title clearly pleaded by the appellant was traditional history. The averment as to custom of inheritance in Amawula Community is subsumed under the traditional history on which the appellant relied as his root of title. The law is trite that a person relying on evidence of traditional history in an action for declaration of title to land must plead and prove each of the following by cogent and credible evidence: (1) The person who founded the land and exercised acts of possession. (2) How the land was found, and (3) The persons on whom the title to the land devolved from its founder to the Plaintiff. See AWODI & ANOR. V. AJAGBE (2014) LPELR-24219 (SC) AT48 (B-F). By the pleadings and the evidence led, the Appellant succeeded in tracing the devolution of the title to the land in dispute from Ukpa, the original owner who was the first to deforest the land to Nwite to Usulor Nwite to the Appellant. His evidence of traditional history was not challenged or discredited under cross examination. The Appellant’s evidence of traditional history that the land in dispute originally belonged to his ancestor was confirmed by all the respondent’s witnesses including the traditional ruler of the community, DW4. On the traditional evidence of the Appellant, the Court below made the following finding at pages 216-217 of the record:
“To succeed in an action for damages for trespass, the Plaintiff must prove actual possession. It is also to be noted that proof of ownership is prima facie proof of possession. See the case of BADEJO V. SAWE (1984) 6 SC 350. Though title was not part of the claim of the plaintiff, in his pleadings and evidence, the Plaintiff traced his title to the land in dispute and how he came to be the owner of the land and has remained in possession of same, and cultivating same personally or through his brothers since the demise of his father in 1995 without any challenge from anybody.
Defendants however challenged his claim in their statement of defence and averred that land is a communal land and not that of the father of the Plaintiff and that Plaintiff and his ancestors had never farmed on the land. But in their evidence, the witnesses to the Defendants testified that the land in dispute originally belonged to the family of the Plaintiff but, was donated to the community over 20 years ago alongside five other families for the expansion of Onu Nworie market by the senior brother of the Plaintiff, Nwite Nwusulor, also known as Michael Nwusulor. In fact, DW1 stated that part of the Plaintiff’s land where the hospital is situated is not up to one plot. DW3 also stated that some part of the land in dispute belong to the Plaintiff.”
The law is trite that traditional evidence if found to be cogent and credible and accepted by the trial Court is sufficient for a grant of declaration of title. See RUNSEWE & ORS. V. ODUTOLA (1996) LPELR-2964 (SC) AT 9-11(F-E).
The law is settled that in a claim for declaration of title, a Plaintiff must succeed on the strength of his case and not on the weakness of the Defendant’s case. However, the Plaintiff is entitled to rely on the evidence of the Defendant which supports his case. See SORONNADI & ANOR. V. DURUGO & ANOR. (2018) LPELR-46319 (SC) AT 22-23; TUKURU & ORS. V. SABI & ORS. (2013) LPELR-20176 (SC) AT 22 (A-B). There is no appeal or cross appeal against the above finding which is amply supported by the evidence on record. The Court below having held that the admission of the Respondents’ witnesses that the land in dispute is that of the Appellant supported the Appellant’s claim that he is the owner of the land in dispute, the Court totally erred in law when it turned round to hold at pages 218-219 of the record that:
“On the issue of witnesses to the defence admitting that the part of the land in dispute is that of the Plaintiff in my view goes to support the claim of the Plaintiff that he is the owner of the land in dispute. However, it is a settled principle of law that a person who makes allegations in a pleading is by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleadings. The burden of proof is on the party who takes another to Court seeking a relief or a right to prove his claim. See the case of UTC (Nig) Plc V. Philips (2012) 6 NWLR (PT. 1295) 136. As earlier held in issue no 1 in this judgment, Plaintiff relied on the Ezza custom of inheritance to land to claim ownership of the land in dispute which custom he failed to lead evidence in proof of its existence. The weakness of the case of the defence in the present circumstances cannot avail the Plaintiff because he is required in law to rely on the strength of his own case, and not on the weakness of the case of the defence. See the case of Adesanya V. Aderonmu (2000) 9 NWLR (PT. 672) 370.”
Civil cases are decided on preponderance of evidence which means the evidence adduced by the Plaintiff is put one side of the imaginary scale of justice while the evidence of the Defendant is put on the other side of the same scale to see which one weighs more than the other. See EZEMBA V. IBENEME & ANOR. (2004) LPELR-1205 (SC) AT 54-56 (D-A). The Respondents pleaded that the land in dispute is a communal land owned by the people of Amawula Community but did not lead a scintilla of evidence in support of that claim. Rather, all the Respondents’ witnesses confirmed the appellant’s claim that the land belonged to his ancestors. DW1 confirmed that the appellant’s family have been on the land. He said Sunday Usulor donated a family land for the market. He however confirmed that according to Ezza custom, Usulor Nwite’s land belong to the Plaintiff and his brothers after Usulor Nwete’s death. DW2 testified at page 183-184 of the record of appeal as follows:
“Egwuonwu- what was the complaint of the Plaintiff
DW2- That his land is being snatched away from him. He is not the only one that own land there. They are six of them. Before market was installed on the land, his senior brother, the first son was consulted. Plaintiff did not object. He only raised objection now that hospital is built on the land. His own land was not the only one taken for market purpose.”
DW4 said the land in dispute belonged to the Appellant’s family but it was transferred to the community about 20 years ago precisely by the elder brother of the Appellant. He also said he got the approval of the Appellant before the Respondents were taken to the land. On the above pieces of evidence, the Court below held at pages 217-218 of record that:
“May I quickly state that the evidence that it was the senior brother of the Plaintiff that donated the land to the community more than 20 years now was not part of the pleadings of the defence. It is trite that evidence on facts not pleaded is not admissible. Hence, the above piece of evidence by the defence is hereby expunged from the record. Assuming but not conceding that the evidence is admissible, it is worthy of note that the said Nwite Nwusulor co-authored the disclaimer to the Plaintiff’s claim dated 10/12/2013 and had his sworn disposition on oath frontloaded as one of the witnesses to the defence in this suit. Curiously, the said Nwite Nwusulor was the only witness for the defence as frontloaded who was not called to give evidence of the alleged donation of the land in dispute to the community. If the community was sure of their claim, they should have pleaded same in their statement of defence and called to testify in Court, Nwite Nwusulor from whom they claim title to the land in dispute. It is my view that failure of the defence to call as witness the man they claim to derive title from amounts to withholding evidence under Section 149(d) of the Evidence Act, 2011 and I so hold.”
There is no appeal against the above finding. The law is settled that where there is no appeal against a specific finding of the Court which is material to the case, both parties are deemed to have accepted the finding as correct and are bound by it. The Respondents are bound by the above finding of the Court below. With the above finding, the defence of the Respondents totally collapsed. The result is that there was no evidence from the Respondents which could have been put on the Respondent’s side of the scale. The further result of the finding is that the evidence of traditional history adduced by the Appellant remains uncontroverted and having been found to be credible and accepted by the Court below, it was sufficient for a declaration of title in favour of the appellant. In addition to the uncontroverted and unchallenged traditional evidence of the appellant, he was entitled to rely on the admission and other pieces of evidence from the respondents which supported his claim of title to the land in dispute.
When a Plaintiff has successfully established his title directly by traditional evidence, there will be no need to prove further acts of ownership numerous and positive enough to warrant the inference that he is the exclusive owner or that he is in exclusive possession because possession is ascribed to the person who has a better title to the land.
The Court refused to grant the Appellant’s claim for an order compelling the Respondents to vacate the land. The reason for that refusal was stated at page 220 of the record as follows:
“It is also worthy of note that part of the reliefs sought by the Plaintiff is an order of this Court directing the Defendants to vacate the land in dispute. From evidence adduced by both parties, as at December 2012 when the Plaintiff served notices of intention to sue the Defendants, the building project had been handed over to Amawula Community by the construction company. The hand over letter though not tendered as exhibit was pleaded by the Defendants and was filed along with their statement of defence. The letter was dated 26/11/2012. As at the date of the suit therefore, the people on the disputed land were Amawula Community. The witnesses in this case were members of the said community and their Ezeogo. From their pleadings and evidence, it was the community acting through their leaders as earlier mentioned that authorised Messrs Mutuna Construction Company Ltd. to enter into the disputed land to construct the hospital building under MDG/CGs programme. In the light of the above, I am of the view that the Plaintiff when he requested the Court for an order directing the Defendants to vacate the land in dispute proceeded against the wrong parties as the present Defendants have not been on the land from the inception of the suit.”
The reason for the Court’s refusal to grant the other for vacation of the land is untenable in law. Trespass to land is an unlawful interference with an exclusive lawful possession. First, there is no legally acceptable reason to allow a person who has been adjudged a trespasser to continue to occupy the land in respect of which he has been adjudged to be a trespasser. Secondly, the Respondents were trespassers ab initio, they had nothing to handover to the community. Thirdly, there is no cogent and credible evidence to show that the building has been handed over to the community before, during or after the institution of the suit at the Court below. Fourthly, the law is settled that when parties have approached the Court for the settlement of their dispute, none of them should take the law into his own hands or do anything that is capable of foisting a situation of fait accompli on the Court. Even, if the Respondents continued with the construction of the building and handed over same to the community inspite of the Appellant’s protest and service of notices of intention to sue on them, the Court should not allow the Respondents to get away with their action which obviously is aimed at frustrating the course of justice. Fifthly, the Court below was wrong to rely on the alleged hand over letter which was not tendered and admitted as an exhibit before the Court. The Appellant had no opportunity to test the veracity and truthfulness of the content of the letter. A Court is not allowed to place reliance on a document pleaded and front loaded but not tendered as an exhibit and which has not been subjected to cross examination by the opposing party as doing so tantamount to denying the opposing party the right to fair hearing. See WASSAH V. KARA (2015) ALL FWLR (PT. 769) 1034 AT 1052-1054. The Respondents’ unlawful entry on the land is an act of trespass. They are the proper parties to the suit. At most, the Amawula Community is a desirable party but not a necessary party. The Court below was wrong to have held that the Appellant proceeded against the wrong parties." Per BOLAJI-YUSUFF, JCA