In The Court of Appeal

(Benin Judicial Division)

On Thursday, the 4th day of December, 1997

Suit No: CA/B/41/94

Before Their Lordships

 Between

 And

AKINTAN, J.C.A. (Delivering the Leading Judgment):- This is an appeal by the defendants from the judgment of Bazunu, J. delivered at Kwale High Court in Delta State on 12/5/89 in Suit No. HCK/32/83. The present appellants were the defendants at the lower court while the respondent was the plaintiff. The plaintiff's claim against defendants jointly and severally as formulated in the further amendment to amended statement of claim is for (a) N115, 500.00 special damages for trespass to economic trees, cash crops, animals and fish ponds; (b) N40.000.00 general damages; and (c) perpetual injunction restraining the defendants or their agents from further committing acts of trespass on the land in dispute.

The land in dispute, as pleaded in paragraph 5 of the further amendment to amended statement of claim is situated in Okoliri Village in Afor in Ndokwa Local Government Area of Bendel State and is verged pink on plan No. 1002/A of 1941 and which was tendered and marked as Exhibit "A" in suit No. W/11/1943 by defendant's predecessor, one Nwabudike............" At the conclusion of pleadings.

the parties led evidence in support of their respective pleadings. Learned Counsel for the parties thereafter addressed the court which then reserved its judgment. In its said judgment delivered on 12/5/89, the learned trial Judge dismissed the plaintiffs case in its entirety, the learned trial Judge held, inter alia, in the concluding portion of the judgment:-

"Apart from the above, the evidence in support of the claim for trespass and for damages is rather unsatisfactory.

If claim for trespass had not been statute barred, I would have held that it has not been proved in view of the unsatisfactory nature of the evidence in proof of the claim. With regard to the claim for injunction, I hold that it must also fail in view of the fact that the claim for trespass upon which it is based has failed.

For the foregoing reasons the plaintiffs claim for trespass and perpetual injunction fails and it is accordingly dismissed. There will be no order as to costs." 

Although the plaintiffs claim was dismissed, yet the defendants were dissatisfied with some aspects of the judgment. They have accordingly appealed against it to this court. To that end four grounds of appeal were filed. The 4 grounds of appeal filed without their particulars read as follows;

"1. The learned trial judge erred in Law when suo motu and without giving the defendants any opportunity to be heard on the issue of the cost of the whole suit he ordered that "there will be no order as to costs" a discretion which the lower court did not properly and judiciously exercise.

2. The learned trial judge erred in law when he held "that the identity of the Land in dispute is not in issue" and that "the subject matter of this action is well known to the parties, even though they chose to refer to it by different names,

3. The Learned trial Judge erred in Law when he held "that the plaintiff and his ancestors have been in exclusive possession of the Land in dispute" and that the plaintiffs have proved a better title than the Defendants.

4. The decision of the learned trial Judge as regard the extent and identity of the land and the title thereto cannot be supported having regard to the weight of evidence before the court."

The relief sought from this court by the appellants, as set out in their notice and grounds of appeal also reads thus:-

"4. Relief sought from Court of Appeal:-

(a) To make an order as to cost of the trial in the lower court in favour of the defendants/appellant.

(b) To set aside and declare erroneous the finding of the lower court that the extent and/or identity of the land is certain, known to the parties and relates to exhibit "A1".

(c) To set aside and declare erroneous the finding of the lower court that the plaintiffs have exclusive possession of the Land and that the plaintiffs have proved better title thereto than the defendants."

The parties filed and exchanged their briefs in this court. The appellants formulated 4 issues which were also adopted by the respondent in the respondent's brief. The 4 issues are:-

"(1) Was the learned judge right in holding that the identity of the land in dispute was not in issue?

(2) Was the Learned Trial Judge right in his conclusion that the plaintiff and his ancestors have been in exclusive possession of the land in dispute.

(3) The claim for damages for trespass and injunction having woefully failed, whether the Learned Judge was justified in going outside the claim before him to make findings:-

(i) that the plaintiffs have exclusive possession of the land in dispute

(ii) that the plaintiffs have proved a better title to the land than the defendants.

(4) Whether the Learned Judge was right in not hearing the parties on costs before exercising his discretion on the issue of costs."

It was submitted in respect of issue No.1 both in the appellants' brief and in the oral presentation made before us by Mr. Okpoko, S.A.N., learned Senior Counsel for the appellants, that the learned trial Judge was wrong in law when he took the view in his said judgment that the identify of the land which formed the subject matter of the case was not in issue, It was argued that although the alleged trespass was said to have been committed by the defendants some time in 1971, a point which the defendants not only denied but in fact laid claim to the entire land on which they were alleged to have committed the acts of trespass. In such a situation, it was submitted, the plaintiff needs to prove the identity of the land. The learned trial Judge was said to have correctly stated the position of the law, which is a claim for trespass to land is rooted in exclusive possession and all that the plaintiff needs prove is that he had exclusive possession. But where in an action for damages for trespass and injunction, and the defendant is laying claim to the land in dispute, title to the land is thus put in issue and to succeed, the plaintiff must show that he had a belter title to the land than the defendant.

It was therefore submitted that the learned trial Judge having correctly held that title was in issue, the onus was then on the plaintiff to satisfy the court on the evidence produced by him to prove the point. In doing so, he must rely on the strength of his case and not on the weakness of defendant's case. The decision in Kodilinye v. Odu 2 WACA 336 was cited in support of this proposition. It was then argued that the identity of the land in dispute in the case was therefore much in issue and that the learned trial Judge was in grave error when he took the view that the identity of the land was not in issue. 

Reference was made to the pleadings of the parties on the issue of identity of the land in dispute; particular reference was made to the fact that the plaintiff failed to file any plan but merely pleaded in paragraph 5 of his final statement of claim that the land he claimed to be in possession of is shown in plan No. 1002/A made in 1941; an issue denied by the defendants in paragraphs 9 and 30(d) of the further amended statement of defence. The learned trial Judge was therefore said to be in error when he held, inter alia, that:-

"It is clear from the above that the plaintiff and his father are claiming trespass against the defendants for the wrong done to their own portion of the land owned by Okolori people."

When the above statement clearly shows that there are separate lands separately owned by both the plaintiff and defendants' families whereas no such was shown on the said plan No.1002/A which was eventually produced and admitted at the trial as Exhibit A1.

The finding of fact made by the learned trial Judge to the effect that the parties knew the land in dispute was also said to be perversed. Reference was made to a portion of the evidence of D.W. 4 where the witness stated categorically that he did not know the portion of the land which the plaintiff claimed to belong to his family. This court was therefore urged to allow the appeal in respect of that issue.

In reply, it was submitted, in the respondent's brief, that the learned trial Judge rightly stated the law when he said that it was not in every land case that a plan need be filed and that a plan is only needed if the area in dispute cannot be ascertained or known to the parties. It was then submitted that from the evidence placed before the learned Judge that he was wrong in holding that a plan was not needed in the case before him as the parties knew the land in dispute between them. Reference was also made to a portion of the evidence of DW4 where he said, inter alia, that he knew the land in dispute. It was then submitted that the same witness was not speaking the truth when he later said that he did not know the portion of the land which the defendants were alleged to have trespassed upon.

Although it was conceded in the respondent's brief that the tendering of the proceedings of a 1943 case (Exhibit A) was to show that the appellant's predecessor had lost a claim on a large piece of land in the plan No. 1002/A (admitted as Exhibit A1), it was, however, submitted that there was sufficient evidence before the trial court to justify the court's findings of fact now being challenged on appeal.

As already observed earlier above, the point raised in this issue is whether the learned trial Judge was right in holding that the identity of the land in dispute was not in issue in the case before him. It is clear from the claim, the pleadings and evidence led at the trial, that the plaintiff's case was that his family owned a large piece of land upon which the defendants trespassed and as a result of which the plaintiff claimed that his family suffered the losses claimed as special damages.

The defendants (now appellants), on the other hand, claimed the land and also said they were at all time in possession of it.

They also denied knowledge of the portion of the entire land which the plaintiff alleged that they (appellant) had trespassed upon. The position of the law, therefore in such a situation, is that the plaintiff would be required to plead and lead credible evidence to prove the plaintiffs family's title to the land, that they were in possession and that the appellants trespassed either on the entire land or on a specified portion of the land adequately identified to the court before he can succeed. See Baruwa v. Ogunshola (1938)4 WACA 159; Amara v. Modekwe (1954) 14 WACA 580; and Adenle v. Oyegbade (1967) NMLR 136.

In the instant case, the plaintiff pleaded and tendered a plan which they claimed they used while prosecuting a claim of a larger piece of land sometime in 1943 and the claim they admitted they eventually lost. Although they said that the plan (Exhibit A1) was for a larger piece of land than the one in dispute in the instant case, no attempt was made to identify to the court the exact portion in dispute or the portion trespassed upon in the instant case. It is therefore wrong of the learned trial judge to hold that the identity of the land in question was not in issue or that the land in dispute was known to the parties.

In the result I hold that there is merit in the appeal as relates to the first issue.

I accordingly allow the appeal on that issue.

The point raised in Issue No.2 is whether the learned trial Judge was right in his conclusion that the plaintiff and his ancestors have been in exclusive possession of the land in dispute. It was submitted in the appellants' brief that the conclusion of the learned trial judge was erroneous and could not be supported by the evidence led at the trial. Copious references were made to portions of the pleadings and evidence tendered at the trial to justify the above submission.

On Issue No.3, it was contended that the claim for damages for trespass and injunction having failed, the learned trial judge was wrong in going outside the claim before him to hold that the plaintiff's family had exclusive possession of the land in dispute and that the plaintiff had belter title to the land than the defendants.

It was submitted that the evidence before the court did not support or justify the afore-mentioned findings of facts and conclusions.

In reply, it was argued in the respondent's brief, inter alia, that the history of previous litigations by the parties, as pleaded and tendered before the lower court and other evidence led, provided enough evidence upon which the pronouncements made by the trial court and now being queried, could be justified.

Again the issues raised in the two issues relate to specific pronouncements made by the learned trial Judge. As I have clearly stated above, the respondent, as plaintiff, failed to prove the exact portion or identify of the land claimed to be in dispute. So also did he fail to prove his claim for trespass and damages for trespass as alleged? The remark by the learned trial Judge that the plaintiff and his ancestors had been in exclusive possession of the land, or that he had proved a better title to the land, the identity of which was not proved, can therefore not be right. In the result, there is also merit in respect of the two issues. I accordingly allow the appeal on the said issues 2 and 3.

Finally the question raised in Issue NO.4 is in respect of the learned trial Judge's failure to award costs to the defendants after dismissing the plaintiffs claim in its entirety. Reference was made in the appellant's brief, to section 33 of the 1979 Constitution which provides, inter alia, that a person shall be entitled to fair hearing in the determination of his civil rights and obligations. It was then submitted that a successful party in a civil suit is entitled to costs while an unsuccessful party is under obligation to pay costs. The court's discretion on the matter is, however, said to be subject to the right of the parties to be heard on the said issue of costs. Reference was then made to how the learned trial Judge disposed of the issue of costs in the concluding portion of his judgment where he said:-

"There will be no order as to costs."

It was argued that the learned Judge did not call on the parties to address him on the issue of costs before depriving the defendants of their right to costs as the successful parties in the case. The order was therefore said to be erroneous and should be corrected.

It was submitted in reply, in the respondent's brief, that the issue of awarding costs at the conclusion of a trial is totally at the discretion of the trial judge and that failure to make an award or failure to be heard on the issue of costs could not be said to be a breach of the fundamental rights provision enshrined in Section 33 of the 1979 Constitution. Reference was made to a dictum of the Supreme Court in Berliet Nig. Limited v. Kachala (1995) 9 NWLR (Pt.420-478); (1995) 33 L.R.C.N. 512 at 514 where it was said thus:- 

"The award of costs is entirely at the discretion of the court ....

The contention of the appellants is therefore said to be untenable and should be dismissed.

The term "Costs" means two things in law. The first is the charge which a Solicitor is entitled to make and recover from the client or person for professional services. The other meaning usually given to the word is the sum of money which the court orders one party to pay another party in an action as compensation for the expenses of litigation incurred. See Collins Dictionary of English Language, (1979) ed. page 339. While costs are, like damages, awarded as compensation, there is as to costs normally no restitutio in intergum. Except where it is specially provided by statue or by rule of court, the amounts of costs awarded in court proceedings are in the discretion of the courts: See Halsbury's Laws of England, erd ed. Vol. II paragraph 293; and Vol. 30 paragraph 419; and Order 53 rule 3 of High Court (Civil Procedure) Rules 1988 of Bendel State.

The objective of awarding costs is not to punish an unsuccessful litigant but to compensate successful party for the expenses to which he has been put by having to come to the Court: See Ladega v. Akinluyi & Others (1975) 2 SC 91. The position of the law therefore is that costs normally follow the event, unless there are circumstances warranting the contrary: (See Order 53 rules 3 to 7 of the High Court (Civil Procedure) Rules of Bendel State 1988; and Sharpe v. Wakefield (1891) A.C. 173).  The fact that counsel for the successful party is absent from court at the time judgment is being delivered has been held not to be a reason for denying the successful party of his costs: See Awere & Others v. Atitebi & Others (1962) N.S.C.C. 150 at 152, (1962) 1 SCNLR 333 at 335 where Brett, F. J. observed:"

The trial Judge had prepared a judgment dismissing the claim with costs; but owing to the absence of counsel for the defendants when judgment was delivered, he made no order in their favour. It is not the practice in Nigeria to require formal application for costs and the absence of Counsel was, with respect no ground for depriving the successful parties of their costs."

It is therefore clear from the position of the law, as declared above, that a successful party in a civil claim is, as of right entitled to his costs. While the court has discretion as to the amount of costs to be awarded in each case, a total refusal to make any award without giving any reason, as in the instant case, is contrary to the law as declared above. Such an arbitrary denial of right in my view, could amount to a breach of the fundamental right of the party affected as enshrined in Section 33 of the 1979 Constitution. I therefore hold that there is merit in the appeal as relates to the 4th issue.

In the result and for the reasons given hereof I allow the appeal on all the four issues. I accordingly affirm the judgment of the lower court delivered on 12/5/89 but the orders and/or findings of fact made by the learned trial Judge complained of in this appeal and already set out above are hereby set aside and expunged from the said judgment. The said orders set aside and declared erroneous are the finding of the lower court that the extent and/or identity of the land is certain, known to the parties and relates to Exhibit Al and the finding that the plaintiffs have proved better title thereto than the defendants. The order of the lower court refusing to award costs to the appellants is also set aside. In its place I hereby order that the appellants are entitled to their costs in the lower court which thereby assess at N1, 000.00. They are also awarded N3, 000.000 as costs in this court.

MOHAMMED, J.C.A:- I have had a preview of the lead judgment of my learned brother Akintan, J.C.A., which he has just delivered and I entirely agree with his reasoning and conclusion for allowing this appeal.

On the third issue for determination, it is indeed wrong for the learned trial judge to have made the pronouncements that the respondents and their ancestors have been in exclusive possession of the land in dispute and that they had proved better title than the appellants when the same trial Judge had found the respondent's claims for trespass and injunction not proved. The court and the parties are bound by the pleadings and that is the law. Therefore the respondent's claims for trespass and injunction having been resolved against them, the learned trial judge had nothing more left to determine. He was therefore not justified in law in going outside the claims for the plaintiffs/respondents before him to make the pronouncements on title and exclusive possession complained of in this issue.

Consequently, I too allow this appeal and abide by all the consequential orders including those as to costs contained in the lead judgment.

ROWLAND, J.C.A:- I had the privilege of reading in advance the judgment just delivered by my learned brother Akintan, J.C.A I agree with his reasoning and conclusion and I adopt them as mine. I therefore have nothing useful to add.

I also allow the appeal on all the four issues canvassed in the appeal. I endorse the order as to costs continued in the lead judgment.

Appeal Allowed.

     Appearances