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Who can maintain an action in trespass?


CITATION: (2020) LPELR-49694 (CA)

In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar

Suit No: CA/C/92/2018

Before Their Lordships:
MOJEED ADEKUNLE OWOADE Justice, Court of Appeal
PHILOMENA MBUA EKPE Justice, Court of Appeal
HAMMA AKAWU BARKA Justice, Court of Appeal

– Appellant(s)
– Respondent(s)


The appeal is against the decision of Justice Nsemeke Daniel of the High Court of Akwa Ibom State, Eket Judicial Division.The facts of the case are that the respondent, a road construction company, were awarded a contract for the construction of the Eket – Ibeno Road, which passed through Esit Urua village by the Akwa Ibom State Government. It was the appellant’s case that she is the owner of that piece of land situated along Eket/Ibeno road, Esit Urua village in Eket Local Government Area.


Appellant further stated that she bought the land from one Udo Johnson now late in October 1996 at the cost of N500, 000 and took effective possession and started developing same. That she surveyed the said land on October 15, 1996 as shown on the pleaded survey plan, and also planted food crops, seasonal yields medicinal plants, economic trees, etc. According to her, the respondent in the course of executing its road contract, unlawfully and wantonly entered upon the land and destroyed all the yields, crops and developments including the shrines and medicinal garden, consequent upon which she approached the respondent for compensation which proved abortive, and this led to her approaching the High Court for redress.
The High Court delivered judgment dismissing the case of the appellant in its entirety. Dissatisfied, the appellant appealed to the Court of Appeal.

The Court determined the appeal on the following lone issue: Whether the trial Court was right to hold that “the plaintiff is not entitled to damages or compensation, having not succeeded in proving trespass” and therefore dismissed the suit.

On the issue of whether the trial judge acted rightly when it expunged Exhibit D from evidence and also refused to rely on exhibits A, B, C and D earlier admitted during trial, counsel conceded to the fact that a Court of law has the power while writing its judgment to expunge and or refuse to rely on any document earlier admitted by it. The case of Nwabuoku & Ors vs. Onwordi & Ors (2006) LPELR – 2082 (SC) was cited in support of the legal principle. Counsel however added that in rejecting or expunging the already admitted document, a Court is duty bound to state the reasons for so doing, further submitting upon the authority of Brossette Manufacturing Company (NIG) Ltd vs. M/S Ola Ilemobola Ltd & Ors, any document wrongly expunged, the appellate Court has the power to restore same in evidence. Also relying on the case law in Ishola vs. Oluwalogo (2013) LPELR – 22206 (CA), and Bashorun vs. Moronkeji (2017) LPELR – 43247 (CA) counsel posited that exhibit D, coupled with the fact that she was in fact led into possession of the land, created an equitable interest, and therefore a basis upon which an order for specific performance can be founded upon. He argued that there was no uncertainty with regards to the date of the making of exhibit D, as was held by the High Court, as the commencement date of exhibit D is October 2, 1996.


It was the further argument of learned Counsel that exhibit D enjoys a presumption of regularity under the Evidence Act having been executed more than 20 years ago: Obawole vs. Williams (1996) 10 NWLR (pt. 477) 146. Counsel further argued that the High Court failed in its duty when it refused to consider exhibits A – E tendered in evidence, also contending on the authority of UBA Plc vs. BTL Industries Ltd (2006) LPELR -3404 (SC) amongst others, that the documents tendered constituted an integral part of the appellant’s case and the Court had no reason whatsoever not to have considered them. Counsel argued that had the High Court considered the documentary evidence adduced therein, its decision would have been different and in favor of the appellant.

With respect to the issue of whether the land on which Mr. Umoetuk Isukette was compensated upon is the same land with the land under consideration, it was contended by the learned Counsel that the difference in terms of the area of the two parcels of land shows that the area of land Mr. Umoetuk Isuette was compensated upon was different from the area claimed by the appellant.

On the issue of whether the High Court was right in law when it held that the date on the NBA stamp and seal of the lawyer on exhibit D is the material date for the determination as to when exhibit D was executed, counsel argued that the High Court overstretched the importance of the principle that gave rise to affixing the NBA stamp to documents, the absence of which has been held to amount to an irregularity. Counsel further argued that the High Court erred in law in holding that there was uncertainty with regards to the date the NBA stamp and seal came into effect, and the date of the execution of exhibit D. Counsel urged the Court to hold that the appellant was yet to be compensated for the developments that were destroyed by the respondent, and therefore rely on exhibits A-E to award the reliefs sought before the High Court.
Counsel urged the Court to resolve all the issues canvassed in favor of the appellant, allow the appeal, set aside the decision of the High Court and grant all the reliefs sought by the Appellant.


Responding to the submissions of the appellant learned Counsel for the respondent urged the Court to dismiss the appellant’s case on the ground that appellant failed to establish his case with credible evidence. Analysing the pieces of evidence adduced, oral and documentary before the High Court, learned counsel argued that the High Court was right to have taken a critical look at exhibit D, and contended that appellant failed to satisfy the Court that she derived title from her late brother.

He went further to submit that the High Court was right in refusing to attach any weight to the exhibits earlier mentioned to substantiate her claim for payment of compensation, as the exhibits were worthless and of no moment. He relied on the holding of the Supreme Court in the case of Musa Abubakar vs. E. I. Chuks (2007) LPELR – 52 (SC). Based on the foregoing, counsel urged the Court to dismiss the appeal as being frivolous and unmeritorious.

As a starting point, the Court noted that the relief sought by the Appellant at the High Court was declaratory in nature. The Court then stated the trite position of that law that a declaratory judgment is discretionary. It is granted only where the plaintiff is able to convince the Court that all facts where taken into account, he will be entitled to the exercise of the Court’s discretion in his favour. This was the position adopted in the cases of University of Lagos vs. Aigoro (1985) 1 NWLR (pt. 1) 143, Akinyemi vs. Odua Inv. Co. Ltd (2012) 17 NWLR (pt. 1329) 209. It follows therefore, that a party seeking for a declaratory relief, must of necessity succeed on the strength of the case made by him, and not on the weakness of the case of his adversary. See Eya vs. Olapade (2011) 11 NWLR (pt. 1259) 505 @ 525. It follows therefore that in the context of the present case, the appellant as plaintiff before the High Court had the burden of establishing the ownership of the land in focus and all those listed items said to have been destroyed by the respondent, so as to sustain her claim.


On exhibit D (a receipt of purchase), which the High Court admitted but later expunged for being wrongly admitted, the Court held, in accordance with the trite position of the law, that a purchase receipt is evidence that there was an agreement for sale of land, and that the consideration for sale was paid by the purchaser. In other words, purchase of land can be proved by a purchase receipt or by an agreement of sale, or by any act that shows that such a transaction did in fact take place. See Onyeani vs. Avaja (2011) LPELR – 3835(CA), Ishola vs. Oluwalogon (2013) LPELR 22206 (CA), Basorun vs. Moronkeji (2017) LPELR – 43247 (CA). Regardless of the foregoing, the High Court expunged exhibit D on the ground that there was a conflict in the date the document was prepared because the document that was purportedly prepared in 1996 bore the stamp and seal of legal practitioners which was introduced in 2015. The affixing of the stamp and seal on the document created a presumption that it was executed in or after 2015 thereby making it a document prepared in anticipation of institution of legal proceedings contrary to Section 83 (3) of the Evidence Act, 2011. The Court, in upholding the decision of the High Court to expunge the document, held that a Judge, in his quest at achieving the ends of justice, can draw or infer on the facts before him. See Ezeadukwa vs. Maduka (1997) 8NWLR (pt. 518) 635. Based on the foregoing, the Court held that with the finding that the document was not executed in the year 1996 but rather sometime when the issue of the lawyers stamp had come to play, the issue of presumption of regularity was of no moment.

On the issue of whether the land in dispute and that on which Mr. Umoetuk Isukette was compensated on was the same piece of land, the High Court held that it was the same land and it did not belong to the appellant. In affirming the decision of the High Court, the Court made reference to the record of proceedings particularly as regards the visit by the High Court to the locus in quo. Upon the visit, the High Court discovered that the land was indeed a bare land as averred by the respondent. At the High Court, the appellant had even testified that she never knew when the road contract awarded to the respondent took place, nor was she aware of when compensation was paid. This led the High Court, which position was affirmed by the instant Court, to believe that the appellant did not own that land and was not in actual possession of same but one Mr. Umoetuk Isukette who had already been paid compensation for the land and the piggery that was on it. The appellant therefore has no locus to institute the action for trespass because, as the Court held, it is the person in actual possession of the land and the person entitled to possession of the land that can sue for trespass. See Opoto vs Anaun (2016) 16 NWLR (pt 1539) 437, Okolo vs Uzoka (1978) 4SC 77, Amakor vs. Obiefuna (1974) 1 ALL NLR (pt.1) 119. In the circumstances, the Court held that the High Court was right to dismiss the case of the appellant for failure to prove same.

In conclusion, the Court dismissed the appeal for lacking in merit.
Kingsley Ogbu Esq. -For Appellant(s)
Inem Oherie Esq. -For Respondent(s)

Compiled by LawPavilion.


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