CASE TITLE: JOSHUA v. C.O.P LPELR-82602(CA)
JUDGMENT DATE: 3RD DECEMBER, 2025
JUSTICES: BITRUS GYARAZAMA SANGA, J.C.A.
LATEEF ADEBAYO GANIYU, J.C.A.
ASMAU OJUOLAPE AKANBIC.A, J.C.A.
PRACTICE AREA: LAND LAW
FACTS:
This is an appeal against the judgment of the Edo State High Court of Justice, holden at Ubiaja Judicial Division, Edo State, delivered on the 14th day of November, 2022, Coram: E.I. BAZUAYE J.
In the Esan West Area Customary Court, sitting at Ekpoma, presided over by E. Evbariyo Esq., Grade 11, the Appellant was charged with three count offences, namely conspiracy to commit a misdemeanour, to wit, malicious damage to the property, punishable under Section 547 of the Criminal Code Cap. 48, Vol. 11, Laws of the Defunct Bendel State of Nigeria, 1976
The Customary Court, in its judgment, discharged and acquitted the Appellant for count 1, but found him guilty for counts II and III and convicted him accordingly in each of these counts.
Being dissatisfied with the said judgment, the Appellant appealed to the High Court of Edo State in its Appellate jurisdiction, where the said appeal was heard on its merit and upon conclusion of the same, the appellate High Court affirmed the judgment of the said Customary.
Dissatisfied, the appellant filed the instant appeal.
ISSUES:
The Court determined the appeal on these issues:
1. Whether having regard to the materials placed before the trial Court, the Appellant established his ownership’s right over the land in dispute;
2. Whether having regard to the state of the law in force, the Appellant was validly charged before the trial Court;
3. Whether both Courts below rightly convicted and/or affirmed the conviction of the Appellant for counts ii and iii of the offences that he stood trial for.be punished?
COUNSEL SUBMISSIONS:
The Appellant’s counsel submitted that going by the provision of Section 23 of the Criminal Code Law, the Appellant who is honestly asserting his right over the land in dispute is not criminally liable and referred this Court to the case of COMMISSIONER OF POLICE V. AMUTA (2017) LPELR-41386 (SC) which, according to him, supports the defence of bona fide claim of right upon which the Appellant premised his case.
According to the learned counsel, the evidence of the Appellant was never challenged by the prosecutor which presupposes that they are admitted. See OKOEBOR V. POLICE COUNCIL & ORS. (2003) LPELR- 24586 (SC); OKWILAGUE V.C.O.P (2021) JELR 109396 (CA); UZOKA V. FRN (2009) LPELR 4950 (CA)
Learned counsel refers this Court to the testimony of the Appellant on the reason why he damaged part of the Fence on the land in dispute and refers the Court to the case of NWAKIRE V. COP (1992) 5NWLR (PT. 241) 289 to substantiate his submission in this regard and submitted that the Appellant has fulfilled the two essential ingredients require in line with Section 23 of the Criminal Code. Thus, counsel submitted that from the evidence given by the Appellant at the earliest opportunity to do so, he believes that the land in dispute belongs to him.
Furthermore, counsel submitted that the Appellant asserted that he honestly asserted his right or claim of ownership over the land and that the lower Court erred in law by affirming the judgment of the trial Court by wrongly dismissing the appeal of the Appellant in complete disregard of the apex Court warning to the lower Court not to treat the defence of a party lightly. See UGBODUME V. ABEIGBE (1991) LPELR 3316.
On the part of the learned counsel to the Respondent, he asserts that the Appellant did not tender a judgment of Court to show that he is the bona fide owner of the property and went on to assert that he was in possession and tendered customary arbitration documents but acknowledged according to the counsel, the erection of fence on the property is enough to settle this issue that the Appellant brazenly damaged the fence on the property as demolition of part of the fence which is admitted vide Exhibit F, violates the provision of Section 81 of the Criminal Code. He went further to submit that guilt of an accused can be established in several ways. See BALOGUN V. FRN (2021) 11 NWLR (PT. 1787) , JUNAIDU V. STATE (2021) 4NWLR (PT. 1820) 571. On bona fide claim of right- Learned counsel refers this Court to the defence of bona fide claim of right as argued by the Appellant in his Brief and refers this Court to the lower Court’s finding to the effect that claiming ownership of property is not a license to unruly behaviour. See Government of Lagos State v. Ojukwu (1986) 1NWLR (PT. 18) 621 @ 636; Eliochin v. Mbadiwe (1986) SC 99@ 130. On application of Section 451 to the present case which covers Count 3. According to the counsel, the section relates to malicious damage to property and the property in question is a wall fence which does not belong to the Appellant, as admitted by the Appellant. As such, defence of bona fide claim of right cannot avail the Appellant. The prosecution’s evidence and the trial Court’s finding of fact which are contained at page 226, lines 19-20 of the Record were alluded to by the Respondent’s counsel on the ownership of the wall fence by the complainant, as well as the finding of fact that the complainant was in peaceable and actual possession of the land, as could be found at page 226, lines 14-18 of the Record. In addition, counsel refers this Court to the finding of the lower Court which is captured at page 233, lines 11-13 of the record to the effect that the land in dispute is in peaceful and quiet possession of PW2 and that destroying part of it is illegal, while at page 234 of the Record, the lower Court found that it agreed with findings and conclusion of the trial Court in respect of Counts 2 and 3, which are neither challenged by the Appellant nor appealed against by the Appellant. Thus, the Appellant is bound by the finding. See Adamu v. State (supra) @ 149. Finally, on this issue, counsel submits that the Appellant acted on the supposition that he owns the land in dispute to destroy part of the wall fence erected on the land in dispute and thereby conducted himself in an unlawful and malicious manner, APAMADARI V. STATE (1997) 3NWLR (PT. 493) 289, Per ADAMU, JCA (as he then was).
DECISION/HELD:
The appeal was allowed in part.
RATIO:
LAND LAW – SURVEY PLAN: Whether a survey plan can by itself constitute a root of title/title to land
“The law is settled that survey plan cannot take the place of title document. See Oshodi & Ors. V. Eyifunmi (2000) LPELR-2805(SC) where it was held that:
“With the greatest respect to both Courts below, it cannot be over-emphasised that it is not in all cases that a survey plan of the piece or parcel of land in dispute is either an absolute necessity or is so mandatory that unless it is produced and tendered in evidence, the Court would have no option but to dismiss the plaintiff’s claim. Where a piece or parcel of land in dispute is known to both parties or it is clearly ascertainable, whether from the averments in the pleadings or otherwise, and its area, exact location and precise boundaries on the ground are either unmistakably and appropriately pleaded or are admitted or acknowledged by the defendant, the non-production in evidence of the survey plan of such land cannot be a matter of great moment and does not disentitle the plaintiff from successfully maintaining an action in respect of title, trespass or injunction over such land. See Chief Daniel Allison lbuluya and Ors v. Tom Dikibo (1976) 6 S.C. 97 at 107; Chief Sokpui II v. Chief Agbozo III (1951) 13 or W.A.C.A. 241 at 242, Bajoden v. lronwanimu (1995) 7 NWLR (Pt. 410) 655 at 671. See too Abiodun v. Fasanya (1974) 1 All NLR (Pt. 11) 254.” Per IGUH, JSC (Pp. 46-47, paras. B-A). See EIGBEJALE V. OKE & ORS. (1996) LPELR-1057(SC) where it was held that: “where the land in dispute is certain and clear and there is no difficulty whatever in identifying its precise extent and boundaries, a declaration of title may be made even without it being based on or tied to a survey plan. See Sokpui v. Agbozo 13 WACA 249; Etiko v. Dikibo (1976) 6 S.C. 97.”. Per IGUH ,JSC (P. 27, paras. B-C). Therefore, the survey plan (i.e. Exhibit L) simpliciter tendered by the Appellant cannot conclusively establish the Appellant’s title or interest over the land in dispute.” Per GANIYU, J.C.A.
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