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17TH MAY, 1968.

SUIT NO. SC 21/1966.

3PLR/1968/67  (SC)








  1. Adesina – for the Appellant
  2. A Lardner – for the 1st Respondent
  3. B. Augusto – for 2nd Respondent



Tort – Trespass – Action by person in possession – Onus on plaintiff to prove possession – Land Law – Land property of “A” family, described as B’s land and conveyed as such – B’ a member of A’ family – Effect of land being conveyed solely by B.



COKER, J.S.C. (Delivering the Judgment of the Court):

In the High Court, Ikeja (Suit No. HK/28/60) the plaintiff, now appellant, claimed against the defendants, now respondents, E25 damages for trespass and a perpetual injunction restraining the defendants from committing further acts of trespass on land situate and being at Ayodele Street, Ikorodu Road, in the mainland of Lagos. The Statement of Claim. filed on behalf of the plaintiff traced the root of his title to the land to one Victor Eniola Adesanya who had died on the 26th day of September, 1943, but had purported to buy the land from one Kasumu Fagbayi Aboki Bada. A conveyance, executed by Bade in favour of Adesanya and dated the 13th April, 1943, was admitted in evidence as Exhibit C. The defendants by their pleadings and the oral evidence which they gave in Court denied that the plaintiff or his predecessors in title were ever in possession of the land and each of them claimed to be a rightful owner of the land and in actual physical possession of it. The first defendant claimed tale through the Ojomo Eyisha family and indeed produced in evidence a conveyance executed in his favour by some members of that family dated the 15th day of May, 1959. This was admitted in evidence as Exhibit R. The second defendant who also claimed to be in possession of the land traced his title to one Tawakalitu Bade by right of purchase from him as far back as 1944, since when he has been in possession of the land.

As stated above, the claim against the defendants is for damages for trespass and trespass is an infraction of a possessory right. A plaintiff in an action of trespass to land in order to succeed must be one who was in possession of the land at the time of the trespass complained about or who is deemed to have been in such possession at such time. With regard to the claim of the plaintiff to his being In possession at the time of the trespass, the learned judge found, and we are in agreement with him, that on the evidence there was nothing to show that the plain-tiff or any of his predecessors in title was in possession of the land at any time. Indeed, the evidence is to the effect that the land was bush at all times material to the present proceedings. It is therefore clear that the plaintiff cannot succeed on the basis that he was in actual possession at the time of the trespass.

In the course of the trial and before us on appeal, the title of the plaintiff was put in issue as, if it was established that his title to the land was good, he would be entitled by his entry on the land to maintain an action for trespass by relation. As already stated, he traced his title to Aboki Bada. His conveyance Exhibit C, de-scribed the land sold to him as the land of Aboki Bade and his descendants. In the course of his own evidence he admitted that the true owners of the land are the Ojomo Eyisha family and it is inconceivable that Kasumu Fagbayi Aboki Bade could have validly conveyed Ojomo Eyisha family land by virtue of a conveyance in which the land he sold was clearly described as belonging to Aboki Bade personally. Learned counsel on behalf of the appellant urged us to take the view that the members of the Ojomo Eyisha family had sought to set aside the sale of the land to Adesanya and had failed and for this contention had placed reliance on the proceedings in Suit No. 236/1944 decided in the Lagos Judicial Division of the then Supreme Court of Nigeria on the 25th day of April, 1946. The action is an-titled Tawakalitu Bada as Attorney for Aboki Bada’s family v. (1) Layonu Adesanya (2) JA Adejare. That argument cannot be sustained for at least two reasons. The first is that the action was taken on behalf of the family of Aboki Bade and although it was admitted that Aboki Bade was a member of the Ojomo Eyisha family the action was not constituted in such a way as to justify any inference that it was taken by or on behalf of that family. Secondly, as regards the first defendant, Layonu Adesanya, the judgment stated as follows:-

‘The 1st defendant was sued as next of kin of the purchaser and as receiving part of the purchase price but there is no evidence as to the capacity in which she is being sued or to show how she could be made a defendant in this suit. The claim against her is clearly misconceived and must be struck out.”

It is clear therefore that with respect to the party representing the interest through which the plaintiff claimed there was no adjudication on the merits.

The Identity of the land is not in dispute. There was a great deal of argument as to whether the first defendant or the second defendant was in actual possess-ion of the land but as they were the defendants in the action it is not necessary for us to decide on the competing rights or titles which they claim on the land. It is sufficient to observe with respect to this case that the plaintiff who had sued In trespass must establish the type of interest which will support a decision in his favour. As Tindal, C.J., said in Topham v. Dent (1).

“In order to maintain the action, the Plaintiff ought to have had possession actual or constructive; but in the present case, the property was all out of the Plain-tiff. His term was vested in the assignee by the assignment of June 17th, and the goods were all enumerated In the Plaintiff’s schedule. The property not being in him, had he the possession? So far from it, he was in prison, and his wife had not been on the premises for two days…..”

We are of the view therefore that the judge was right in coming to the conclusion to which he came that the plaintiff has not succeeded in proving his case and in dismissing that case. All the grounds of appeal argued on behalf of the plaintiff fail and the appeal is dismissed.

Appeal dismissed.


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