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AKANJI SOMORIN & ORS
OBA NURUDEEN ADEKANBI & ORS
IN THE COURT OF APPEAL OF NIGERIA
ON THURSDAY, THE 16TH DAY OF JUNE, 2011
BEFORE THEIR LORDSHIPS
SIDI DAUDA BAGE, JCA
MODUPE FASANMI, JCA
JOSEPH SHAGBAOR IKYEGH, JCA
Alhaji G.K. Quadri Esquire – For Appellant
Chief (DR) V.A. Odunaiya Esquire – For Respondent
“The law is already trite, he who asserts must prove. The Supreme Court in the case of Anthony Odunkwe v. The Administrator General East Central State (1978) 1 SC 25 at 31 stated. “It is settled law that he who asserts and claims must prove what he claims and where he has wholly failed to prove his claim, the Defendant is entitled to an order in his favour dismissing plaintiffs claim. The plaintiff in such circumstances is not entitled to an order of non-Suit giving him an opportunity to institute a fresh action on same claim and relitigate the issue.” Per BAGE, J.C.A. (Pp.28-29, Paras. G-A)
“The law has always been that, trespass to land in law, constitutes the slights disturbance of possession of land by a person who cannot show a better right to possession. See – Eze v. Obiefuna (1995) 6 NWLR (pt.404) 639; Solomon v. Mogaji (7982) 11 SC 1; Amakar vs. Obiefuna (1974) 3 SC 1; 306 paragraph C.” Per BAGE, J.C.A.(P.29, Paras. B-E)
“The remedy for trespass to land where a party alleges trespass to land, the remedy of injunction is a ready tool to prevent further trespass See: – Anibire vs. Womiloju (1993) 5 NWLR (pt. 295) 623.” Per BAGE, J.C.A. (P.29, Para.A-B)
JOSEPH SHAGBAOR IKYEGH, J.C.A (Delivered the Leading Judgment):
The appeal came from a decision of the High Court of Justice of Ogun State, in the Otta Judicial Division, holden at Otta, setting aside the certificate of occupancy issued to one Chief E.S.B. Wilkey, the 1st defendant in the court below, in respect of a parcel of land located at Isheri Oke-Church in Ogun State, and awarding general damages of N15,000 to the Olofin Chieftaincy family and N25,000 to the 4th-5th respondents of the Kudoro family together with an order of perpetual injunction against appellants restraining them from committing further/future acts of trespass in respect of the disputed piece of land.
In summary, both disputants based their respective title to the land in dispute on traditional history or inheritance with the appellants’ also placing reliance on acts of ownership over the said land; it was alleged on the issue of trespass that about 1969 appellants had sold the area of land allegedly trespassed upon in 1985 to the 1st defendant, one Chief E.S.B Wilkey; upon the close of evidence for both parties, and the taking of oral addresses from their respective, learned Counsel, the court below resolved the dispute in favour of the respondent, holding in the main that the appellants did not proffer evidence of traditional history to counter the respondents’ traditional evidence of ownership of the disputed parcel of land.
The original notice of appeal containing two grounds of appeal questioning the decision of the court below was filed on 7.9.94. It was subsequently amended with three additional grounds of appeal. Four issues were distilled from the further amended notice of appeal by appellants’ learned counsel, Alhaji G.K. Quadri Esquire, in the laborious 1st further amended brief of argument deemed duly filed on 6.5.08, as follows:
“Whether the Respondents proved the customary tenancy of the Kudoro family claiming ownership of the land in dispute.
GROUND 1 – ORIGINAL AMENDED GROUND
GROUND 9 – ADDITIONAL GROUND
“Whether the Respondents by evidence of traditional history have proved TITLE and POSSESSION in respect of the Land claimed as laid down in IDUNDUN V. OKUMAGBA (1976) 9-10 S.C. 227.
GROUND 2 ORIGINAL AMENDED GROUND
GROUND: 4,5,6,7 & 8 ADDITIONAL GROUNDS
“Whether the Award of General Damages was not wrong upon the settled principles of Law.
GROUND 10 – ADDITIONAL GROUND
“Whether the decision of the learned trial judge conforms with the principles of law regulating proper and correct evaluation and appraisal of evidence before the court.
GROUND THREE – ORIGINAL AMENDED GROUND”
It was submitted on issue one that the uncle of 1st PW, one Emmanuel Kudoro, testified in a previous suit in Exhibit U that the Oshorun family granted the disputed land to the Kudoro family as customary tenants in line with the averments in the 3rd Amended Statement of Defence of the appellants showing long possession of the land by them through their predecessor – in- title, therefore the court below should not have speculated on Exhibit U, but it ought to have used same as a hangar to assess the oral evidence of the 1st PW, respondents witness, without relying on the demeanour of witnesses to reach the finding or conclusion that Exhibit U established by cogent and uncontradicted evidence that the Kudoro family were customary tenants of the Oshorun family vide Nwabuoku v. Ottih (1961) ALL NLR 487 at 490, Fashanu v. Adekoya (1974) 6 S.C. 83, Kimdey v. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445, Olufosoye v. Olorunfemi (1989) 1 NWLR (pt.95) 26 section 132 (1) of the Evidence Act, Phipson On Evidence (15th Edition) (pagination not supplied), Ezemba v. Ibeneme (2004) All FWLR (pt. 223) at 1845. Agbeje v. Ajibola (2002) 1 SC 1 Ebba v. Ogodo (1994) 1 SCNLR 372 at 385, Eriri v. Erhurhobare (1991) 2 NWLR (Pt.173) 252 at 272, Atolagbe v. Shorun (1985) 1 NWLR (pt.2) 360, Adimora v. Ajufo (1988) NWLR (pt.80) 1, Egbarun v. Akpator (1997) 7 NWLR (Pt.514) 559 at 570 and Ogun v. Akinyelu & Others (2-4) 20 NSCQR 302 at 325.
It was submitted on issue two (supra) that by the averments in the 2nd amended statement of claim, the respondents did not plead their genealogy to one Ogunfunminire whom their witness, the 1st PW, who was not a descendant of Ogunfunminire, asserted Ogunfunminire migrated from Ile-Ife to found the settlement of Isheri where he begat the genealogy tree that produced the Chiefs or Obas of Isheri as successive owners of the Isheri land from which one of the successors-in-title, Oba Olugbakule, granted the disputed land do the Kudoro family as his customary tenants without establishing the nexus between respondents’ genealogy and the Ogunfunminire family tree on the pleadings, consequently the court below was wrong to hold that respondents proved their title to the disputed land by traditional history vide Idundun v. Okumagba (1976) 9-10 S.C. 227, Iheanacho v. Chigere (2004) ALL FWLR (pt. 226) 204 at 219, Madubuonwn (?) v. Nnalie (1992) 8 NWLR (pt. 260) 440 at 449, Mogaji v. Cadbury Nig. Ltd (1983) 2 NWLR (pt. 7) 393, Lewis and Peat Ltd v. Akhimien (1976) 1 ALL NLR 46, Eze v. Atashie (2000) 10 NWLR (pt, 676) 470 at 480, George & Others v. Dominion Flour Mills (1963) 1 ALL NLR 71, Okagbue v. Romaine (1982) 5 SC 133, Odum v. Chinwo (1978) 6-7 SC 251, Sekoni v. Ogunmola (2003) 22 WRN 154 at 163, Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413, Baruwa v. Ogunsola & Others (1938) 4 WACA 159, Odofin v. Ayoola (1984) 11 SC 72, Egonu v. Egonu (1971) 5 SC III; Elufisoye v. Alabetutu (1968) NMLR 298, and Ikpuku v. Ikpuku (1991) 5 NWLR (Pt.193) 571 at 582.
It was also submitted that the acts of possession based on previous cases relied upon by respondents crumbled with the failure of respondents to prove their radical root of title to the disputed land by inheritance vide Ajani v. Ladepo (1986) 3 NWLR (pt.28) 276 at 277, Dabo v. Abdullahi (2005) ALL NWLR (Pt.255) 1039, Ogungbemi v. Asanu (1983) 3 NWLR (pt.161) 172, Ibenye v. Agwu (1998) 11 NWLR 372, Balogun v. Akanji (1988) 1 NWLR 301, Uka v. Irolo (2002) 12 MJSC 75, Mogaji v. Cadbory (supra) at 431, Fasoro v. Beyioku (1988) 2 NWLR (pt.76) 263, Ayoola v. Odofin (1984) 5 SC 28 and Adedeji v. Oloso (2007) 3 MJSC at 107.
It was submitted further on issue two that having not pleaded ownership of land under section 45 of the Evidence Act, it was perverse of the court below to hold that respondents proved ownership of the disputed land pursuant to section 4 of the Evidence Act, more so there was no evidence to support it vide Uka v. Irolo (supra) George v. Dominion Flour Mills (supra) Abraham v. Olorunfemi (1991) 1 NWLR (Pt.165) 53 at 70, Ebba v. Ogodo (supra), and Ivienagor v. Bazauye (1999) 9 NWLR (pt.620) 132.
It was again submitted on issue two that after acknowledging in its judgment that the respective parties presented conflicting traditional evidence, the court below should have evaluated the traditional histories by resorting to acts within living memory in respect of the disputed land, not by picking holes on the evidence and pleadings of the appellants to hold that the evidence was one way vide Kojo v. Bonsie (1957) 1 WLR 1223 at 1227, Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527 at 548, Alade v. Awo (1975) 4 SC 215, Chukqueke v. Nwankwo (1985) 2 NWLR (Pt.6) 195, Agenegudu v. Ajenifa (1963) ALL NLR 109, Adenle v. Oyegbade (1967) NMLR 136 at 138-139, Olawuyi v. Adeyemi (1990) 4 NWLR (pt.147) 746 at 788, Garuba v. Yahaya (2007) ALL FWLR (Pt.357) 877, Owoade v. Omitola (supra) 413, Aikhonmare v. Omoregie (1976) 12 SC 11, Adekanbi v. Ayorinde (1970) ANLR 330, Odofin v. Ayoola (supra) 72, Adekunle v. yanda (2001) 6 SC 18, Newbreed organization Ltd. v. Eromosele (2006) 2 SC (pt.1) 136 at 150, Balogun v. UBA Ltd (1992) 6 ANLR (Pt.247) 336 at 354, Odunsi v. Bambala & Ors (1995) 1 NWLR (Pt.374) 64d1, Odulaja v. Hadda (1973) 11 SC 216 and Uka v. Irolo (supra) at 77.
It was finally submitted on issue two that the respondents did not prove with certainty the identity, extent and dimension of the disputed land, therefore their claims should have been dismissed by the court below vide Baruwa v. Ogunsola (supra) at 159, Gbadamosi v. Dairo (2007) 3 MJSC pg t at 14, Udofia v. Afia 6 WACA 274, Epi v. Aigbedion (1972) 10 SC 53, Elias v. Omobare (1982) 5 SC 25, Efetiroroje v, Okpalefe 11 (1991) 5 NWLR 530, Arabe v. Asanlu (198O) 5-7 SC 78, Ezukwu v. Ukachukwu (2004) 7 S.C (pt. 1) 96, Alli v, Aleshinloye (2000) 4 SC 111, Rufai v. Ricketts (1934) 2 WACA 95, Owuda v. Lawal (1984) 4 SC 145, Odesanya v. Ewedemi (1962) ALL NLR 318, Efetiroroje v. Okpalefe (supra) at 532-533, Odum v. Chinow (1935) 2 WACA 336.
Appellants submitted on issue three (supra) that respondents were awarded general damages in respect of specific claims sounding in special damages “cost of destroyed plantation” and “harassment” without pleading and proving same strictly, therefore the award was arbitrary and excessive and amounted to granting the respondents a relief they did not claim contrary to the cases of George v. Dominion Flour Mills (supra) 71, UAC v. Sobodu (2007) 6 NWLR (Pt.1030) 371 at 393, Ehonor v. Idahosa (1992) 2 NWLR (Pt.223) 232. Chinda v. Amadi (2003) FWLR (Pt.45) 696, ELF Nig. Ltd v. Sillo (1994) 6 NWLR (pt.350) (pagination not supplied), UBA Ltd v. Odusote Bookstores Ltd (1995) 9 NWLR (Pt.421) 558. at 586, Ori v. Ori (2002) FWLR (pt.106) 958, Yebumoti Hotel Ltd. v. Okafor (2005) ALL FWLR (pt. 255) 1111-1112, and Olalomi v. NDIC (2002) FWLR (pt. 131) 1984. Appellants submitted on issue four (supra) that their evidence of leasing the land to other persons including 1st and 2nd defendants in the court below, the erection of a factory building on the land by 1st defendant in the court below, the admission by Emmanuel Kudoro, the 1st PW’s uncle, in Exhibits O, O1 and U that the Kudoro family were customary tenants of the Oshorun family, Exhibits X, Y, and Z tendered by appellants respecting their past transactions over the disputed land were not evaluated by the court below contrary to the decisions in the cases of Mogaji v. Odofin (1978) 3: 4 SC 91, Lion Buildings; Ltd. v. Shadipe (1976)12 SC 135, Fashanu v. Adekoya (supra) 35 and Kingibe v. Maina (2004) FWLR (pt. 191) 1555 at 1604.
The respondents’ 2nd amended copious brief of argument prepared by Chief (Dr) Odunaiya of learned counsel on 17.7.2009, was filed on 29.10.09, but deemed properly filed on 25.3.10. Two issues were raised therein for determination on the appeal as follows:
“1. Whether the plaintiffs/Respondents proved the customary tenancy of the Kodoro family claiming ownership of the land in dispute?
Respondents contended on the first issue that their pleadings and the evidence adduced established that there were two sets of Kudoro family in contention in the case – Raimi Kudoro that begat 4h and 5th plaintiffs through one Abisoye, the daughter of the Olofin, and Emmanuel Kudoro, dh uncle of 4th and 5th plaintiffs and father of one Akanbi: The latter was the “purported” tenant of the Oshorun family, while the former was the customary tenant of the Olofin chieftaincy family.
The evidence of Emmauel Kudoro in the previous proceedings in Exhibit U that the Kudoro family were customary tenants of the Oshorun family was an act of “treachery” as stated by the 1st PW and a piece of hearsay evidence relating to another parcel of land, all the more so Emmanuel Kudoro was neither a party nor called as a witness in the present proceedings and the parties in the Earlier proceedings were not the same as in the present proceedings, therefore the court below was right to place no weight on Exhibit U, so contended respondents’ brief where reliance was put on the cases of Shofoluwe v. R (1951) 13 WACA 265, Alade v. Borishade (1950) 5 FSC 167, Ariku v. Ajiwogbo (1962) 1 ALL NLR 629, Enang v. Ekanem (1952) 1 ALL NLR 530, and section 34 (1) of the Evidence Act.
Respondents contended on the second issue that from the pleadings and the evidence tendered by both disputants, traditional history was their respective primary root of title to the land in dispute, which the court below reviewed along with the pleadings and the addresses of learned counsel to arrive at the finding that respondents’ traditional history was more plausible or probable than the appellants’, upon which it based judgment in favour of the respondents citing in support Idundun v. Okumagba (1976) 9-10 SC 227.
Respondents also contended that they pleaded and gave unchallenged evidence that one oduntan was a descendant of one Osho-Aroga and the 1st DW admitted under cross-examination that oduntan was one of their ancestors; that the land in dispute is different from the one litigated in Exhibit U as stated in the unchallenged evidence of 1st pw, nor was the genealogy of the land pleaded by respondents and supported by the evidence of the 1st pw challenged by the appellants, consequently the said pieces of evidence established respondents’ ownership of the land in dispute vide obembe v. Wemabod (1977) 5 SC 115 and Nwabuoku v. Ottih (1961) ALL NLR 487 at 490.
The 3rd-7th appellants being privies of Oduntan who was the defendant in Exhibit c, the 1918 judgment in respect of the same piece of land, the court below could rely on Exhibit c against the appellants vide Iyayi (?) v. Eyigebe (1987) 3 NWLR (pt. 61) 523 and Uzoegwu v. Ifekandu (2001) FWLR (pt. 72) 1950 at 1969.
Also, Exhibits A, B, and C, previous judgments over the same piece of land won by one Oba Sarumi odunsi, should be used as acts of possession of the disputed land in favour of the respondents, not-withstanding appellants were not parties to them; and, as the respondents had proved ownership of the land in dispute by acts of possession in Exhibits A, B and C as well as the possession of adjacent pieces of land, the court below was right to invoke section 45 of the Evidence Act to enter judgment for them as owners of the disputed land vide Atanda v. Ajani (1989) 3 NWLR (pt. 111) 511 at 533 and Ajani v. Ladepo (1986) 3 NWLR (pt. 28) 276.
Respondents contended on the issue of identity of the disputed land that Exhibit N, the survey plan, and the evidence of 3rd PW that prepared Exhibit N, proved the identity of the land in dispute and entitled the court below to base its judgment on it vide Iyaye v. Eyigebe Gupra) at 523, Nwoye v. Bolarin (1991) 4 NWLR (PT. 184) 257.
Respondents submitted on the issues of injunction and damages that the court below having found that the 3rd-7th defendants had no title in the land to pass to 1st-2nd defendants, the appellants became trespassers on the land entitling the court below to issue the permanent injunction it did to protect the respondents from future acts of trespass on the land and to, also, compensate them in general damages that naturally arose from the breach of violation of their legal right by appellants, therefore the order of injunction and the award of the general damages should not be disturbed vide Ajibade v. Pedro (1992) 5 NWLR (Pt.241) 257, Manya v. Idris (2000) FWLR (Pt.23) 1237, Green v. Green (1987) 3 NWLR (pt.61) 480, Sagay v. New Independence Rubber Ltd. (1977) SC 143 and Nduka v. Igbinedion (2000) FWLR (pt. 30) 2673 at 2686.
The appellants’ reply brief dated 22.3. 2010, but filed on 23.3.2010 canvassed that the alleged act of possession by the Kudoro family originated from the original root of title of Ogunfunminire, ancestors of respondents, as alleged by respondents; by paragraphs 21-25 of the amended statement of claim it was pleaded that 4th and 5th respondents relied on grant of the land by the Olofin family as customary tenants from time immemorial, but the respondents did not prove the nature and origin of their possession of the disputed land by grant from the Kudoro family through Ogunfunminire as required by law vide Eronini v. Iheuko (1989) 2 SC (pt.1) 30, magbagbeola v. Dada (1990) 5 NWLR (pt.149) 219 at 222, Odofin v. ayoola (1984) 11 SC 72 at 116; that section 45 of the Evidence Act raises a probability not a presumption of ownership vide Archibong v. Ita (1954) 14 WACA 520 and Wichegbule v. Wagbara (1990) 3 NWLR (pt.139) 458 at 468; also, it was not established that adjacent Lagos lands belonged to Ogunfunminire to activate section 45 of the Evidence Act in favour of the respondents vide Adomba v. Odiese (1990) 1 NWLR (Pt.125) 180.
Also, respondents did not answer the issue of proof of title to the disputed land by traditional history and possession raised in the appellants’ brief of argument under issue two and should be taken to have conceded the issue vide Registered trustees – F.G.C. v. Okoisor (2007) ALL FWLR (pt. 357) 978 at 985; moreover, the pieces of pleadings referred to by respondents in their brief did not plead facts of ancestral lineage or devolution of the land contrary to the decisions in the cases of Akinloye v. Eyiyola (1968) NMLR 92 at 95, Inyang v. Eshiet (1990) 5 NWLR (pt.125) 188, Onwugbufor v. okoye (1996) 1 NWLR (pt.424) 252 at 280 281, Osafile v. Odi (1994) 2 NWLR (pt.325) 125, Thompson v. Beyioku (supra), Arase v. Arase (1981) o5 SC 33, Obisanya v. Nwoko (1974) 6 SC 69, Dike v. Okoledo (1999) 7 SC (pt.3) 35 at 41, Olagunju v. Adesoye (2009) 33 WRN 25; rendering the decision of the court below on the issue perverse, so contended in the appellants’ reply brief citing in support the cases of Uka v. Shorun (1985) 1 NWLR (pt. 2) 360, Kuforiji v. Y.B Ltd. (1980) 6-7 SC 40 at 84-85 and Ebba v. Ogodo (1984) 4 SC 98.
The reply brief added that evidence of traditional history of the land given by the respondents having failed, acts of possession built on it equally failed vide Balogun v. Akanji (1988) NWLR (pt.70) 301 at 302, Ajani v. Ladepo (1986) 3 NWLR (pt.28) 276, Yusuf v. Adegoke (2007) ALL FWLR (pt.385) 359, Oyadare v. keji (2005) ALL FWLR (Pt.247) 1583, Osu v. Nwadialo (2008) ALL FWLR (pt.409) 497, and Orunnengimo v. Agebe (2007) CCMLR 199 at 224-225.
Appellants’ reply brief argued on the issue of award of damages that the respondents did not plead and prove that the appellants destroyed their plantation and the cost of replacing the alleged destroyed plantation plus the alleged harassment they caused the respondents, therefore the award was baseless and speculative and should be set aside vide Koronkwo v. Chukweke (1992) 1 NWLR (pt.216) 175 at 194, Gari v. Seifarina Nig. Ltd (2008) ALL FWLR (pt.399) 434 at 447 – 448, West African Shipping Agency v. Kalla (1978) 3 SC 21 and Warri Refinery Ltd. v. Agbule (2005) ALL FWLR (pt, 253) 659 at 681.
The issues for determination formulated by appellants are adequate and within range, in my view, and shall guide the determination of the appeal.
The evidence of one Emmanuel Kudoro, 1st PW’s uncle, in the previous suit in Exhibit U, that the Oshorun family granted the disputed land to the Kudoro family as customary tenants was pleaded in paragraph 21 of the 3rd amended statement of defence in page 123 of the record of appeal, in response to paragraph 45 (a) (viii) of the second amended statement of claim in page 107 of the record. The reply to the 3rd amended statement of defence also referred to the issue in paragraph 29 (i) thereof in page 126 of the record.
In appropriate cases, evidence in previous proceedings may be used in subsequent proceedings for the purpose of cross-examination of the person that gave the evidence in the previous proceedings see Okonkwo v. Adigwu (1985) 1 NWLR (pt. 4) 694. The same evidence, if it constitutes an admission against interest, may also be used as an estoppel against the person that made it or his representative in interest under sections 26 and 34 (1) of the Evidence Act – see Joe Iga & Others v. Amakiri & Ors (1976) 11 SC 1 at pages 10-12.
However, before the previous evidence may become useful in subsequent judicial proceedings, the conditions stated in the proviso to section 34 (1) of the Evidence Act must be fully pleaded and proved in evidence – see the Supreme Court case of Okonji & Others v. Njokanma & Others (1999) 11-12 SCNJ 259 at 280-281 as follows:
“For ease of reference, it is appropriate at this stage to reproduce the provisions of section 34(1) of the Evidence Act. It states as follows:
“34(1) Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable:
(a) That the proceedings was between the same parties or their representatives in interest:
(b) That the adverse party in the first proceedings had the right and opportunity to cross-examine; and
(c) That the questions in issue were substantially the same in the first as in the second proceeding.”
It is manifest that under section 34(1) of the Evidence Act the admissibility of Exhibit B would depend on a party’s satisfactory pleading of material facts – not evidence that brings him within the purview of that sub-section. This will include the fact of the litigated suit, whether the witness whose testimony is sought to be relied on is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or etc.”
The entire pleadings in the suit did not plead all the requirements of the proviso to section 34 (1) of the Evidence Act and, in the absence of sufficient pleadings to cover the previous evidence as required by section 34 (1) of the Evidence, Exhibit U had no foundation to stand on and made it an inadmissible piece of evidence and I so hold.
Exhibit U is accordingly expunged from the record of appeal as an unpleaded document within the context of section 34(1) of the Evidence Act, which was wrongly admitted in evidence in the first instance – see Okonji & Others v. Njokanma & Others (supra) at page 289 thus:
“It therefore follows that under our law a wrongfully admitted piece of evidence is not sacrosanct; it is still subject to the closest scrutiny by the appellate courts. The appellate courts are under a duty to cut down and expunge any evidence that is wrongfully admitted.”
Further, the 1st PW testified in examination-in-chief that the land litigated in Exhibit U is not the same with the land in dispute. To quote some of his words in page 146 of the record:
“I know the land in dispute in that case. That land is near the one in dispute. That land and the one in dispute should be about 1/2 a mile apart.”
The 1st PW was not cross-examined in specific terms on the above vital piece of evidence, therefore, evidence given at defence stage of the proceedings tending to suggest that the land litigated in Exhibit U is the same with the disputed land was an afterthought – see Agbonifo v. Aiwereoba & Another (1988) 1 NWLR (pt. 70) 325 at 342-343. The court below accepted the said piece of evidence and found as a fact in page 223 of the record inter-alia that “the lands were not the same.” I have no cause to disturb the said finding of fact as it is supported by the unchallenged evidence of the 1st PW. I hereby affirm it. Accordingly, even if Exhibit U was properly pleaded, the previous evidence of Emmanuel Kudoro in Exhibit U could not have been of any assistance to the appellants in the subsequent proceedings and I so hold.
Paragraphs 5,6,7 ,8,9,10,11,12 and 13 of the second amended statement of claim pleaded the traditional history of the disputed land as follows:
“5. The land in dispute in this case forms a portion of a very large area of land over which the Olofin of Isheri was the 1st settler.
It is therefore not correct to contend by appellants that the genealogy of the disputed land was not pleaded by the respondents.
The evidence of the 1st pw stated inter-alia that:
“I know the land in dispute. The land is situate at Isheri Oke-Church in Ogun State. I know the original settlers of the land. The original settler was Ogunfunminire Olofin… I know from where he came before he settled the land.
Olofin came from Ife, he was one of the sons of Ile Ife.
Ogunfunminire was a son of olofin, olofin himself was a son of Oduduwa …. After Ogunfunminire settled the place and many people joined him and the official title became Olofin of Isheri …. Ogunfunminire Olofin died several years ago but his descendants have become Oba after him…..
The following people have reigned after him. There have been 17 Obas, the 18th one is the one on the thrown(sic) now. They are Oba ogunfunminire Olofin (2) Oba Ogunmoru, Oba Ogunbiyi, Oba Adeyinka, Oba Adedotun, Oba Oalibe, Oba Adediran Awogunjoye, Adeyemi Atesajoye, Oba Ontoni Otejejoye, Gbokun Atepojoye, Oba Olugbakule, Oba Taiwo Olowo 1, Oba Sarumi Odunsi, Oba Ayodele 1, Oba Akinolu, Oba Salami Ayodele II, Oba Ishola Taiwo Olowo II …. All these Oba were always giving lands and directives to the town people …”
The above pieces of evidence were in tandem with the pleadings on the genealogy of the disputed land particularly paragraphs 8-10 of the second amended statement of claim (supra). Both the pleadings and the said pieces of evidence taken together as a harmonious whole proved that the disputed parcel of land was first settled upon by Ogunfunminire as its founder or first settler from whom the unbroken chain of successive Obas afore-mentioned succeeded to the land as owners and used to grant it out to some people as stool land.
Accordingly, there is no substance in the contention of the appellants that the genealogy of the disputed land was not pleaded and proved by the respondents – see Idundun v, Okumagba (supra) on proof of title to land by traditional history read with the case of Akpan & Ors v. Udoetuk & Ors (1993) 3 NWLR (pt. 279) 94 at 101-102.
Having proved the radical root of title to the land by traditional history (supra), the respondents were right to rely on the previous judgments over the disputed land in Exhibits A, B and C, where their forebear defeated persons that disputed the land with them, as acts of possession- see Abadi v. Catholic Mission (1935) 2 WACA 380 at 381-383, Ndukwe Pkafor and Others v. Agwu Obiwo and Another (1978) 9-10 SC 115 at 122, 123, Uluba & Ors v. Sillo (1973) 1 SC 37 at 55 – 56, Udeze v. Chidebe (1990) 1 SCNJ 104 at 116, Ajuwon v. Adeoti (1990) 3 SCNJ at 180 & Adomba v. Odiese (1990) 1 SCNJ 135 at 142. The contention of the appellants that there was no proven traditional history of the disputed land to base the acts of possession from the previous judgments in question is, accordingly, untenable and is hereby discountenanced. Paragraphs 12,14,15,16 and 17 of the second amended statement of claim pleaded that:
The above quoted paragraphs pleaded ownership of land in Lagos by the founder of the disputed land, Ogunfunminire. But the respondents did not plead whether the land in Lagos originally discovered and owned by Ogunfunminire is contiguous or adjoining or adjacent to the disputed land, nor did the appellants admit such ownership, as rightly contended by the appellants’ learned counsel. And evidence on such unpleaded material facts went to no issue George v. Dominion Flour Mill (supra). The court below was, accordingly, wrong to hold that respondents also proved ownership of the land by acts of possession under section 46 (former section 45) of the Evidence Act – see Archibong v. Ita (1955) 14 WACA 520 at page 522.
Paragraphs 6 to 10 of the appellants’ 3rd Amended Statement of defence (see pages 120- 121 of the record) pleaded ownership of the disputed land in the Oshorun family having been founded by their progenitor, one Kumoworo, who migrated from Ile-Ife to Isheri with his children called Koole, Ikuobolaje, Itabiyi and Adedotun to settle on the land in dispute. That the appellants derived their title to the land through one Osho Aroga, Kumoworo’s descendant. The 1st DW’s evidence for the appellants (see pages 169-171, 182-184 of the record) did not cover the above pleaded facts.
Arising from the above scenario, the court below was right to hold that there was “nothing to put on the other side of the scale” which expressed happily would mean the appellants did not plead and prove in full the complete traditional history of their ownership of the disputed to warrant the application of the principle of law established by Lord Denning in the celebrated case of Kojo v. Bonsie (supra). There was, therefore, no basis to evaluate the traditional history of the land by the court below following Kojo v. Bonsie (supra) as contended by appellants Eze v. Atasile (2000) 6 SCNJ 209. The court below was, accordingly, right to rely on the pleaded and proven traditional history of the land of the respondents to read the conclusion that they proved ownership of the disputed land by traditional evidence – see Ikpang & Ors v. Edoho & Another (1978) 2 LRN 29 at 39-41.
The identity of the disputed land was not made an issue on the pleadings by appellants who did not specifically plead different and distinct features from the survey plan pleaded and tendered in evidence by the respondents. In short, the totality of the appellants’ pleadings – 3rd amended statement of defence in pages 119-126 of the record – was in consensus with the respondents’ pleadings on the identity of the disputed land. Having not made the identity of the land an issue on the pleadings, the appellants cannot rake up the issue on appeal – see Ezeudu & Ors v. Obiagwu (1986) 2 NWLR (pt. 21) 208 at 220. Dosunmu v. Joto (1987) 4 NWLR (pt. 55) 297, Adepoju v, Oke (1999) 3 SCNJ 46 and Iso & Ors v. Eno (2003) 7 SCNJ 82.
In addition, the 3rd PW, a licensed surveyor, who produced the survey plan of the disputed area at the instance of the respondents, gave unshaken evidence and tendered in evidence the survey plan as Exhibit N establishing with clarity and certainty the disputed piece of land (see pages 163-165 of the record). The 3rd PW was not cross-examined to demonstrate that the survey plan in Exhibit N together with the oral evidence of the 3rd PW also proved with precision the identity, location and dimension of the disputed piece of land, in my view.
The award of damages to the respondents against appellants for “cost of destroyed plantation” sounded in special damages, as economic trees on a plantation are quantifiable and their value crystallized or capable of calculation. The respondents were, therefore, obliged to plead and prove with particularity the names of the trees comprising the plantation with their respective value to entitle them to damages for the award of “cost of destroyed plantation” by the court below, as rightly submitted by appellant’s learned counsel. See Ogbechie v. Onochie (1988) 1 NWLR (pt. 70) 370 at 390.
“The economic trees were not named, enumerated and valued. It is improper to award damages for destruction of economic trees whose names, nature and economic values are not pleaded and proved.”
See also Koronkwo v. Chukweke (supra) and Gari v. Seirafina (Nig.) Ltd. (supra).
The issue of “harassment” forming one of the pillars for the award of damages by the court below in favour of the respondents is, also, neither here nor there, as the pleadings and evidence for respondent did not establish the “harassment”. Besides, the claim for damages was in respect of alleged trespass to the disputed land in the course of which respondents alleged in the pleadings in blanket form that their plantation was destroyed.
All said and done, I am of the firm view that the award of N15,000 damages to the Olofin Chieftaincy family and N25,000 to the Kudoro family made by the court below is unfounded both on the pleadings and the evidence and is hereby set aside.
The leasing of the disputed land by appellants to some tenants as well as other acts of ownership in Exhibits W, X and Y, were based on the radical root of title of traditional history which the appellants did not plead and prove as required by law, therefore the alleged acts of ownership automatically collapsed with the lack of proof of the radical root of title and transformed them into acts of trespass as stated by the court below and are, accordingly, of no moment on the appeal, in my modest view. In respect of Exhibit U, it turned out to be a document that was not fully pleaded and having been expunged (supra) nothing further need be said about it. The fourth issue is, accordingly, resolved against the appellants.
On the whole, the appeal succeeds only in respect of the award of damages which award is hereby set aside; while the appeal on the setting aside of the certificate of occupancy over the land in dispute and the order of perpetual injunction in respect of the land in favour of the respondents has no merit and is hereby dismissed. The judgment of the court below (Bakre J.) granting an order of permanent injunction restraining the appellants and their servants, agents or assigns from committing acts of trespass on the disputed land is hereby affirmed. No order as to costs.
SIDI DAUDA BAGE, J.C.A.:
I read in draft the judgment of my learned brother J.S. IKYEGH J.C.A., I am in complete agreement. I only need to add a few words of my own. Appellants had claimed against the Respondents for trespass and injunction. On what constitutes trespass to land?
The law has always been that, trespass to land in law, constitutes the slights disturbance of possession of land by a person who cannot show a better right to possession. See – Eze v. Obiefuna (1995) 6 NWLR (pt.404) 639; Solomon v. Mogaji (7982) 11 SC 1; Amakar vs. Obiefuna (1974) 3 SC 1; 306 paragraph “C”.
The remedy for trespass to land where a party alleges trespass to land, the remedy of injunction is a ready tool to prevent further trespass See: – Anibire vs. Womiloju (1993) 5 NWLR (pt. 295) 623.
From the record, it was the Appellant who asserted trespass against the Respondents.
The law is already trite, he who asserts must prove. The Supreme Court in the case of Anthony Odunkwe v. The Administrator General East Central State (1978) 1 SC 25 at 31 stated.
“It is settled law that he who asserts and claims must prove what he claims and where he has wholly failed to prove his claim, the Defendant is entitled to an order in his favour dismissing plaintiffs claim. The plaintiff in such circumstances is not entitled to an order of non-Suit giving him an opportunity to institute a fresh action on same claim and relitigate the issue”.
I am in complete agreement with the lead judgment that the order of perpetual injunction in favour of the Respondents cannot be granted without proof of such by the Appellant. The order sought for has no merit. I too have dismissed it. I am in full agreement with the lead judgment on the setting aside of the Certificate of Occupancy over the land in dispute. I also agree that the Appeal succeeds only in respect of the award of damages, which award is set aside by the lead judgment, I abide by all the other detail contained in the lead judgment including order as to costs.
MODUPE FASANMI, J.C.A.:
I had the privilege of reading before now the lead judgment of my learned brother IKYEGH, J.C.A. just delivered. All the issues involved in the appeal have been adequately taken care of.
I completely agree with the reasoning and conclusions therein. I adopt same as mine. I abide with the consequential orders contained therein.