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3PLR/1991/33 (CA)





JUSTIN THOMPSON AKPABIO, J.C.A. (Read the Leading Judgment)




J.O.A. Ajakaiye – for the Appellant

Alhaji A. Ishola-Gbenia – for the Respondent



REAL ESTATE LAW/LAND LAW:– Title to land – Established ways of proving title to land – When tendering of a sur­vey plan can be dispensed with by the court – relevant considerations

REAL ESTATE LAW/LAND LAW:– Dispute over ownership of land – Where each of the two contending parties claim to have been in possession of the land in dispute at the material time – Duty on court to examine the title of the parties and to award judgment to party who shows a better title

REAL ESTATE LAW/LAND LAW:– Trespass – Factors to consider – Whether a claim for trespass coupled with a claim for an injunction automat­ically puts the title of the parties in issue

CHILDREN AND WOMEN LAW: Women and Property/Justice Administration – Land ownership – Defence of interest in land – Claim for damages for trespass and injunction – How treated

AGRICULTURE AND FOOD LAW:- Dispute over ownership of land – Where party proves use of land for cultivation short-term crops like corn instead of perennial economic crops like coca or kola nuts – How considered – Implication for agricultural practices

PRACTICE AND PROCEDURE – ACTION:- Claim for injunction – Whether only follows a finding of liability for trespass – Proof of possession of land – Planting of short term crops instead of perennial economic crops – Relevance

PRACTICE AND PROCEDURE – EVIDENCE:- Onus of proving a better title to land – Where there is a claim and counter-claim – Whether court can put the onus of proving the separate claims on each of the parties asserting same – How treated






AKPABIO, J.C.A. (Delivering the Leading Judgment):

This is an appeal against a judgment of Adekola, J., of Oyo State High Court, holden at Iba­dan in suit No. 1/553/83 delivered on 12th June, 1986, in which he dismissed plaintiff/appellant’s claim, but granted the defendant’s counter-claim and awarded her *950.00 special and general damages for trespass plus injunc­tion with -*250.00 costs.


The claim of the plaintiff, now the appellant as contained in her amended statement of claim was as follows: –

“(i)     N20,000 general damages for trespass committed by the defen­dant and her agents on the plaintiff’s parcel of land situate at Olojuoro Road, Ibadan, which parcel of land is verged orange on survey plan No. P.S.E./Y/2301 dated 17/10/85 prepared by P.S.E. Olarinde, Chartered and Licensed Surveyor.

(ii)     Perpetual injunction restraining the defendant and or her agents from further entry on the said land.


The defendant who is now the respondent not only filed a 20-paragraph statement of defence denying all the allegations made against her, but also went further to make a counter-claim of N20,000.00 for special and general damages against the plaintiff/appellant plus an order of injunction against the plaintiff, her servants or agents. Particulars of the damages were given as follows:­

Special Damages

1000 Blocks including transport at 85k each +1850.00

2 lorry loads of sand at *25.00 each X50.00

Pegging by Contractor. N400.00

Re-survey and rehabilitation of beacons N400.00 N1,700.00

General Damages N18,300.00

TOTAL N20,000.00


The case of the appellant at the lower court was that the land in dispute initially formed part of a large track of land that was granted to her father Akintola, by one Adetola, as Head of Idowu Family. On the death of Akin­tola, her father, the huge parcel of land was partitioned about ten years ago, and the appellant was allotted two plots which are now the land in dispute in this case. Appellant then claimed that in 1983, she pegged the foundation of a building on the said land but the defendant and her agents came stealthily and removed them.


The respondent on the other hand claimed to have bought the land in dispute from Oroye family for N4,000.00 in 1977. Oroye family in turn got a grant of the land from Opeagbe family over 140 years ago. The respondent surveyed the area sold to her and deposited sand and cement blocks on it, which were later carried away or destroyed by appellant. Respondent also tendered survey plans to show not only the area sold to her in 1977, but also the area earlier granted to his vendors (Oroye Family) by the Opeagbe fam­ily. Appellant on the other hand did not tender any survey plan to show either the area granted to her father (Akintola) by his grantor (the Idowu family) or the area granted to her as a result of the partition of Akintola’s land.


At the end of the trial, the learned trial Judge first found that in any case where a claim for trespass was joined with a claim for injunction, title of the parties was automatically put in issue. Secondly, that where two parties claimed to be in possession of the same piece of land, whoever showed a bet­ter title must be the winner. Since the respondent had tendered survey plans to properly identify the area she was claiming, and the appellant tendered no such plans, and also that the appellant herself had admitted that the respon­dent had deposited cement blocks and sand on the land in dispute, but which later disappeared, he held that the respondent had proved a better title than the appellant. He therefore dismissed the appellant’s claim in its entirety, but granted the counter-claim of the respondent as already mentioned above.


Appellant was dissatisfied with the said judgment and so appealed to this court, initially on only one ground of appeal which was omnibus, namely that:­

“Judgment was against the weight of evidence.”


But later, with leave of this court six additional grounds were filed which are reproduced hereunder together with their particulars, as they were not too lengthy.

  1. The learned trial Judge erred in law in putting onus of proof of title to the land on the plaintiff when it was the defendant that puts her own title in issue and she has the burden of proving that title which she failed to establish.
  2. The learned trial Judge having found as follows:­

“The defendant in the present case has claimed to be the owner of the land in dispute.”

erred in law in holding,

“It is therefore the duty of the plaintiff in this case to show a bet­ter title than the defendant.”


(i)      It is an error in law to have shifted the burden of proving de­fendant’s title on the plaintiff.

(ii)     The defendant has the burden of proving her own title which must oust the possession of the plaintiff.

  1. The learned trial Judge erred in law in his approach to the deter­mination of the case between the plaintiffs case before a consid­eration of the defendant’s counter-claim.


(i)      The learned trial Judge bearing in mind that there is counter-claim before him ought not to have dismissed the case of the plaintiff before proceeding to consider the case of the defendant.

(ii)     The learned trial Judge having dismissed the plaintiffs case must of necessity grant the defendant’s counter-claim with­out a consideration of the merit or demerit of her claims.

  1. The learned trial Judge erred in law in failing to appreciate that what was in dispute between the parties in this case, was what can be called the exact boundary between Akintola Family Land and Oroye Family Land when both have admitted by their respective evidence and plan that they have a common boundary.
  2. The learned trial Judge erred in law in holding that the Oroye family have established their title to the land in dispute when they failed to call any member of Opeagbe family to confirm the boun­dary of the land granted to Oroye family by them.


(i)      The Plan attached to the Deed of Conveyance cannot be evidence establishing the extent of the land granted by Opeagbe family to Oroye family in the absence of evidence from Opeagbe family.

(ii)     The exact boundary between Oroye family land and Akin­tola family land remained unestablished by Oroye family. b. The learned trial Judge erred in law in his failure to grant the claims of the plaintiff who called evidence from Idowu family to establish land granted to Akintola family.


Briefs of arguments were later filed and exchanged, and issues for de­termination formulated. The appellant formulated four issues for determi­nation which read as follows:­

  1. Whether the learned trial Judge was right in putting the onus of proof of better title on the plaintiff whose claims are in trespass and injunction as against a defendant that challenged possession of the plaintiff to the land.
  2. Whether it was proper for the learned trial Judge to dismiss the plaintiffs claims before a consideration of the defendant’s de­fence and counter-claim.
  3. Whether the learned trial Judge was right to have held that the defendant established her title to the land in dispute when the grant from Opeagbe family to Oroye family was not proved. 4. Whether the trial Judge properly appraised and evaluated the evidence adduced by the parties and properly applied the relev­ant law to the case.


The respondent in her brief also formulated four issues for determina­tion, which were however differently worded as follows:

  1. Whether in view of the competing claims and counter claims, the trial court was wrong to have placed the onus or burden of proof of the plaintiffs claims on the plaintiff/appellant.
  2. Whether the approach of the trial court by which it considered and decided upon the plaintiffs claims before it considered and decided upon the counter-claims was wrong in law and whether therefore the approach has occasioned a miscarriage of justice.
  3. Whether having regard to the issue regarding the boundaries and extent of Akintola family land the plaintiff with the quality of evi­dence could have succeeded without proving the boundaries, particularly the Eastern boundaries and the extent of the land granted to Akintola family by Adetola part of which is said to be in dispute.
  4. Whether a party who claims title to land by grant cannot prove the extent of the area of land so granted otherwise than by calling the grantor to give oral evidence and whether therefore the re­spondent has not established better title to a defined area of land. Although I have already set out in full all the grounds of appeal together with their particulars, which should show what the complaint of the appel­lant is, nevertheless her argument was ably summarised by her learned coun­sel as follows:­
  5. The appeal should be allowed as the defendant did not prove the grant by Opeagbe family to Oroye family as pleaded.
  6. The plaintiff was able to prove her title of grant by calling a member of Idowu family to testify.
  7. The approach of the learned trial Judge to the appraisal and evaluation of the evidence was wrong which amounts to a mis­direction.
  8. The burden of proof of ownership was wrongly placed on the plaintiff who claims damages for trespass and possession and when the defendant puts her title in issue and did not prove ac­cording to law, a better title.
  9. The learned trial Judge did not evaluate the evidence before him properly, which occasioned a miscarriage of justice.


The respondent’s argument was also ably summarised by her counsel as follows:­

  1. That in a claim for title to land, the onus of proof is on the plain­tiff and that the trial court therefore properly put the onus on the appellant in respect of her claims.
  2. That where there are competing claims for title and possession by both parties, the trial court must first consider and decide upon the claims of the plaintiff before the defendant’s claims are consi­dered.
  3. That a plaintiff must rely on the strength of his own case and that even if the defence is rejected, the plaintiff must still prove his case in order to succeed.
  4. That where damages for trespass and an order of injunction are claimed, title becomes an issue and the plaintiff in order to suc­ceed must prove better title because the law ascribes possession to one with better title.
  5. That where a plaintiff claims title to land, his or her first duty is to establish that title to a defined area of land and that his or her claims must be dismissed if he fails to establish boundaries of the land.
  6. That a party needs not call a particular witness to give evidence of a fact if there is otherwise on record and on which he can rely. I have carefully considered all the evidence adduced in this case, the pleadings of the parties, the judgment of the learned trial Judge, as well as the legal arguments of the learned counsel on both sides made in their briefs, and orally in court, and come to the following conclusions:­


First, it is a true statement of the law that whenever a claim for trespass is coupled with a claim for an injunction, the title of the parties are automat­ically put in issue. (See the cases of Kponuglo v. Kadaja 2 WACA 24; Ogun­faolu v. Adegbite (1986) 5 N.W.L.R. (Pt.4) 3, 5 & 9; and Ajani v. Ladepo (1986) 3 NWLR (Pt.28) 276. However, one must not lose sight of the fact that the principal relief sought by both the plaintiff in her Statement of Claim and the defendant in her counter-claim, was “damages for trespass”. None of them wanted a declaration of title or a customary/statutory right of occu­pancy. All they wanted was damages plus injunction. It is settled law that in a claim for trespass simpliciter (without a claim for declaration of title), where the land in dispute is well known to the parties, the tendering of a sur­vey plan could be dispensed with by the court. (See the case of Ezeudu v. Obiagwu (1986) 2 NWLR (Part 21) 208 at 213-214).


Having said the above, I now come to the fact that in a claim for dam­ages for trespass, the most important factor for consideration is whether the plaintiff or the person claiming damages was in exclusive possession of the land in dispute at the material time or not. He need not be the owner. In fact a mere tenant could sue his landlord (the true owner of a house) for trespass as was done in the recent case of Elochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Part 14) 47 at 73-74, where the Supreme Court held that:­

“Any person lawfully in possession of land may maintain an ac­tion in trespass even though he be not the owner of the land, and even against the rightful landlord.”


However, difficulties frequently arise where each of the two contending parties claim to have been in possession of the land in dispute, usually an empty piece of land, at the material time. In such a situation it becomes man­datory for the court to examine the title of the parties, and it has long been settled that whoever shows a better title must be the winner. See the cases of

  1. Amakor v. Obiefuna (1974) 3 S.C.67 at 78;
  2. Olayioye v. Oso (1969) 1 All NLR 281;
  3. Adeshoye v. Shiwoniku 14 W.A.C.A.86.


Also a claim for injunction follows a finding of liability for trespass (Obanor v. Obanor (1976) NMLR 30 at 43).


Applying the above principles to the facts of this case, I find that the most important question for determination was rightly identified by the learned trial Judge to be one, namely,

“Which of the two parties showed a better title?”


As was laid down by the Supreme Court in the case of ldundun v. Okumagba (1976) 1 NMLR 200 there are five ways by which people can prove title to land namely:

(1)     by traditional evidence, or

(2)     by documents of title, or

(3)     by acts of ownership numerous and positive enough as to warrant the inference that the party was the true owner of the said land, or

(4)     by acts of long possession and enjoyment of the land, or

(5)     proof of possession of connected or adjacent land in cir­cumstances that render it probable that whoever owned those land was also the owner of the land in dispute.


In my view, the learned trial Judge had applied these criteria to the evi­dence of both parties, without actually saying so, and came to the conclusion that the evidence adduced by the defendant/counter-claimant was more weighty and convincing than those of the plaintiff. He had first considered the evidence adduced by the plaintiff and found it wanting in numerous re­spects.


At p.81 of the records the learned trial Judge referred to the uncertainty in the extent of the area of land that was actually granted to the appellant’s family by their vendor. He also mentioned on the same page 81, lines 22-31 as follows:­

“But the plaintiff did not tender any survey plan to show how her family land was partitioned… If a survey plan of how the land was partitioned had been tendered in evidence it would have assisted the court to determine which portion was granted to the plaintiff in this case.”


The learned trial Judge at page 82, lines 3-15 of the records also referred to very glaring contradictions between the boundaries of the land of plaintiff as stated in her plan exhibit ‘A’ and in the agreement exhibit `B’. All the foregoing referred only to the identity of the land granted to the appellant and his grantor. As for acts of possession or ownership, the appellant had virtually nothing to show. The nearest she went to may be said to be parag­raph 9 of her amended statement of claim at page 41 of the records which read as follows:­

“9.     That since the partition, the plaintiff cleared the said land every year and planted corn on the land.”


There was no indication that appellant planted any economic trees on it such as cocoa or kolanuts, nor built any fence round it, nor built any house either on the land or near to it. As for the acts of trespass complained of, that was another source of equivocation. Paragraph 10 of her amended statement of claim at page 41 of records read as follows:-

“10.   That the plaintiff in August, 1983 pegged the foundation of a building on the said land in preparation for construction but the defendant and her agents sometime in November, 1983 came stealthily on the land and removed the pegs and was challenged by the plaintiff.”


In reply to this allegation, the respondent had a far more convincing story to tell in paragraphs 16 and 17 of their amended statement of defence and counter-claim as follows:­

“16.   The defendant denies paragraph 10, 11, and 12 of the amended statement of claim and avers that it was the plaintiff who during the month of November, 1983 brought thugs in the guise of labourers and entered the defendant’s plot of land verged yellow and marked “1A” on plan No.LL.9683 and when challenged the said labourers threatened to stab the defendant with a sword.

  1. The defendant reported the incident to the Police who caused the said plaintiffs labourers namely Olawale Ajani and Akanji to be arrested and charged to Adekile Grade “C” Customary Court in charge No.C66/83 where they were found guilty and fined N10.00 each.”


In view of all the above equivocations and unsatisfactory evidence of ownership, the learned trial Judge at page 83 of the records dismissed the ap­pellant’s claim in its entirety, and the proceeded to consider the case of the defendant/respondent.


Again, without actually saying so, the learned trial Judge applied the principles laid down in Idundun v. Okumagba (supra), and came to the con­clusion that she had proved a better title to the land in dispute than the ap­pellant. At page 84, lines 7-16 of the records, the learned trial Judge made the following findings:­

“The evidence relied upon by the defendant to establish that she has a better title than the plaintiff includes (a) the title of the ven­dors who sold the land in dispute to her (b) The Survey Plan No. L & LD 157 dated 16/9/54 drawn by Chief J.O. Laniyonu. (c) The deed of conveyance which was executed by Opeagbe family in favour of Oroye family the defendant’s vendor in respect of the land in dispute. (d) Acts of possession exercised by the defen­dant/counter-claimant after the land had been sold to her by Oroye family in 1977.”


From lines 27-32 of the same page 84, the following additional findings were made:­

“The fact that Oroye family owns a large piece of land near the land in dispute has been confirmed by the plaintiff herself by vir­tue of the plan No.PSE/Y/2301 tendered as Exhibit ‘A’. In exhibit A, the plaintiff showed that Oroye family land was one of the four boundaries to her family land.


In view of the foregoing, the learned trial Judge very rightly, in my view, came to the conclusion that the respondent had shown a better title to the land in dispute than the appellant. He therefore rightly dismissed the appel­lant’s claim and found in favour of respondent who was the defendant/ counter-claimant.


In view of what I have said above, I think that all the questions for determination posed by the appellant must be answered in the affirmative, i.e.

­1.       It was right for the learned trial Judge to put the onus of proving a better title on each of the parties.

  1. Since the defendant was also counterclaiming, each of them be­came a plaintiff at regards her own claim. The learned trial Judge was therefore right in considering each party’s claim separately and dismissing or granting it as the case may be, before proceed­ing to consider the case of the other.


In any land case, even where the defendant did not file any de­fence, the plaintiff has the onus of proving his or her title to the land by any one of the methods prescribed in Mandan v. Okumagba (supra) before being awarded judgment. If he or she fails to do so, his or her claim will be dismissed even in the ab­sence of a defence.

  1. The grant from Opeagbe’s family was abundantly proved by means of the deed of conveyance executed by them. I cannot un­derstand why the learned counsel for the appellant would insist that a member from Opeagbe’s family should have come to tes­tify in proof of the grant, even though a Deed of Conveyance had been executed and tendered. The calling of oral evidence would have been necessary if there had been no deed of conveyance.


In view of the foregoing, I hold that this appeal was a colossal waste of judicial time, and lacked merit. It is accordingly hereby dismissed by me with costs which I assess at N500.00 in favour of the respondent.




I agree.




I agree.


Appeal dismissed.



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