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COURT OF APPEAL [IBADAN DIVISION]
8TH JANUARY 2003
31 WRN 41
SUNDAY AKINOLA AKINTAN, JCA (Presided)
FRANCIS FEDODE TABAI, JCA
OLUFUNLOLA OYELOLA ADEKEYE, JCA (Delivered leading judgment)
3.ABIDEMI OGUNJUMO (For themselves and on behalf of Amuloko family)
1.ALAKE KOBIOWU OLUKU
2.JOSEPH OGUNSIJI OLUKU
3.OYETUNDE OGUNJUMO OLUKU
(For themselves and on behalf of Oluku family)
Chief J. B. Lawson Messrs., with,K Adekunle O. A. Akinwunmi – For appellants
Chief M.O. Ajadi With, Mr. O. Oduola – For respondents
ACTION – Declaration of title – proof of title to land – on whom lies the burden of proof.
ACTION – Declaration of title – ingredients necessary for same.
COURT – Court of Appeal – when same can interfere in the discharge of the duty of a trial court to properly and accurately appraise the evidence before it.
COURT – Duty of a Judge – need for same to properly and accurately appraise the evidence before the court.
COURT – Court of Appeal – power of same to act as a court of first instance – reason thereof.
EVIDENCE – Burden of proof – action for declaration of title to land – on whom lies the burden of proof.
LAND LAW – Claim for trespass – right of a counter-claimant – whether counter claimant in exclusive possession of land in dispute have the right to sue for trespass.
LAND LAW – Proof of title – when can a party be said to be in possession of a land in dispute.
LAND LAW – Proof of title – action for declaration of title to land – on whom lies the burden of proof.
LAND LAW – Root of title – settlement and evidence of conquest – whether both can be pleaded as root of title to land in dispute.
LAND LAW – Title to land – acquisition by conquest – meaning of.
LAND LAW – Title to land – acquisition by settlement – meaning of.
LAND LAW – Title to land – acquisition of land by settlement and by conquest – difference between.
LAND LAW – Title to land – declaration of title – ingredient necessary for same.
LAND LAW – Title to land – title of overlord – misconduct or misbehaviour which may be regarded a challenge to the title of same – forfeiture of tenancy as the consequence thereof.
LAND LAW – Trespass to land – features of.
PRACTICE AND PROCEDURE – Pleadings – essence of.
WORDS AND PHRASES – “Acquisition of land by settlement” – meaning of.
OLUNFUNLOLA OYELOLA ADEKEYE, JCA. (Delivering the leading judgment):
The appellants Oguntoyinbo Akano, Aderinola Akano, Abidemi Ogunjumo, for themselves and no behalf of Amuloko family were defendants in suit No. 1/423/90 before the High Court of Oyo State Ibadan Judicial Division. The respondents, Alake Kobiowu Oluku, Joseph Ogunsiji Oluku and Oyetunde Ogunjumo Oluku for themselves and on behalf of Oluku family as plaintiffs sued for the following reliefs:-
The appellants as defendants in the trial court counterclaimed against the respondents as plaintiff as follows:-
(a) N500,00 general damages for trespass committed by the plaintiffs in 1990 on the defendants land at Amuloko shown on plan No. Kesh/OY/19630.
(b) Perpetual injunction restraining the plaintiffs, their agents, privies and/or any person claiming through or under them from committing trespass on the land in dispute.
Both parties filed and exchanged pleadings. The facts of the case as revealed by pleadings and oral evidence adduced by parties and their witnesses were that the ancestor of the plaintiffs/respondents Oluku, a warrior, hunter and farmer was a native of Iwo. He came to Ibadan during the reign of Bale Oluyedun. He settled on a vast area of land at Senle – Akanran Road where he shared boundaries with seven other families and Kure stream. He raised a family of eight children and several grand children who cultivated the land and planted arable and cash crops like palm trees, kolanut trees, peregun trees, oro trees, coffee and iran trees. Oluku later moved out of this area of land to settle in another area of Akanran. He left Amuloko the ancestor of the plaintiffs/appellants and Oloya as caretakers of the land. Amuloko was to pay annual dues of six tins of palm oil or a sum of N600, and Oloya two tins of palm oil or a sum of N200. The payment of ishakole continued between the descendants of both families until 1988 when the Amuloko family refused to pay the annual dues to Joseph Ogunsiji Oluku who was then head of Oluku family.
On the other hand the Amuloko family also claimed ownership of an area which later to be known as Amuloko village. They denied the title of the Oluku family to any land. They traced their title to one Amuloko Akingbaro their descendant who hailed from Ede. He settled on a large tract of land along Ibadan/Akanran road with his family, domestic servants and followers. The plaintiffs/appellants adopted the same pleadings and oral evidence in support of their counter claim.
Both parties tendered survey plans of the land in dispute as exhibit D3 and P1. At the close of evidence and address by counsel the learned trial Judge gave judgment in favour of the plaintiffs/respondents and dismissed the counter claim of the defendants. Being aggrieved by the decision of the lower court the defendants/appellants appealed to this court.
Both parties settled records and exchanged briefs according to the rules of this court. The appellants filed fourteen grounds of appeal and identified nine issues for determination from the grounds of appeal as follows:-
(a) Whether acquisition of land by settlement is one and the same thing as acquisition of land by conquest.
(b) Whether contradiction in the mode of payment of tribute or ishakole is material in a case where the respondents claimed that they were the overlords of the appellants.
(c) Whether the evidence given by the respondents is at variance with their pleadings.
(d) Whether exhibit D2 (land agreement) tendered by the respondents covers the land in dispute and constitutes an admission against the respondents interest.
(e) Whether it is the duty of a trial Judge to give unpleaded facts as explanation for the contradictions in the respondents case.
(f) Whether the appellants proved their counterclaim or not.
(g) Whether the respondents proved the boundaries of the land in dispute properly.
(h) Whether the respondents proved relationship of landlord and tenant between themselves (respondents) and the appellants.
(i) Whether an order of injunction could be granted against the defendants who have been found not to be trespasser.
The respondents adopted the issues formulated by the appellants. These nine issues formulated by the appellants are in my view repetitive – as a result of which the arguments put forward in their support are cumbersome and verbose. Counsels have to be reminded that their briefs like pleadings are meant to serve as a guide to the appellate courts in the determination of the issues for determination proposed by the parties. Such issues must be compelling, concise and straightforward. It is not number of grounds of appeal or the issues for determination therefrom which matters in an appeal but the substance in the appeal. The issues must mirror the real issues in controversy in the appeal – and they must be argued so as to induce conclusion and acceptance. Archbode Engineering Ltd. v. Water Resources Hydro-Technique Wassertehnic (1985) 3 NWLR (Pt. 12) page 300; Chinweze v. Masi (1989) 1 NWLR (Pt. 97) page 254; Odeleye v. Adepegba (2001) 5 NWLR (Pt. 706) page 330.
The issue for determination can be compressed into two; which adequately cover all the grounds of appeal of the appellants as follows:-
(1) Whether the learned trial Judge was right to have granted all the reliefs sought by the respondents based on the quality of the evidence before him at the trial?
(2) Whether the appellants have proved their counter claim or not?
These two issues are all embracing – they have all the nine issues distilled by the appellants – and they have obviously reflected that the core of the appeal is the evaluation of the evidence in the case made by the learned trial Judge.
In issue No. 1 the appellant reviewed the evaluation of the evidence made by the learned trial Judge on the mode of acquisition of the land in dispute by the respondents ancestors. The learned trial Judge relied on the evidence of the 5th PW who in his evidence in examination-in-chief said that his ancestor acquired the land by settlement – but under cross-examination revealed that the land in dispute got to his ancestor by conquest. In paragraphs 5, 7 and 12 of the amended statement of claim the respondents pleaded settlement as their root of title. The respondents cannot plead settlement and give evidence of conquest at their root of title. It amounts to material contradiction in their evidence – which the learned trial Judge did not see the contradiction as material. He obviously erred in law when he held in the judgment that settlement includes conquest and conquest is evidence of settlement – a proposition not supported by law.
The respondents also failed to prove their overlordship in respect of the land in dispute. PW6 said that Oluku engaged Oyagbola as caretaker of his land and he told Oyagbola to engage other tenants as farmers hence Amuloko was granted land through Oyagbola – in the same breadth he said that Oluku gave land to Amuloko and Oyagbola as customary tenants. The 5th PW and 6th PW agreed that both Amuloko and Oloya paid ishakole to Oluku.
The appellants tendered a land agreement through PW5 as exhibit D2. Through this document the appellants sold part of the land in dispute situate along Ibadan-Akanran road in Amuloko village to third party – the respondents signed as witnesses to the sale. The respondents admitted that the appellants sold land in the same place and that they themselves witnessed the sale. The piece of evidence is nothing short of an admission against the interest of the respondents. The respondents cannot turn round to claim ownership of the same and they had earlier on witnessed as being that of the appellants. The appellants held that it was wrong of the learned trial Judge to hold in his judgment that the respondents being illiterate peasants would not know the difference between these two concepts. These are unpleaded facts, which go to no issue, while it does not lie with the learned trial Judge to fill the gap in the respondents case.
In their counter claim they based their root of title on settlement – paragraphs 4, 5 and 6 of the further amended statement of defence and counterclaim show that the appellants settled on a vast tract of land on Ibadan/Akanran road – an area referred to as Amuloko village with his family, domestic aides and others who accompanied him to settle on his new settlement. A survey plan of the area was tendered as exhibit DW3. The evidence of DW4, DW5, DW7 and DW9 substantiate the pleadings and deny any payment of ishakole by members of Amuloko family to Oluku family. The appellants pleaded traditional evidence as their root of title and clearly proved same as required by law. The decision of the learned trial Judge to order injunction against the appellants is not supported by his findings which said that the appellants were not trespassers. The appellants urged the court to resolve the issue raised in this case in their favour so as to allow the appeal and give judgment for the appellants. The appellants cited the cases of – Odofin v. Isaac Ayoola (1984) 11 S.C. page 72, Fasoro v. Beyioku AND Ors. (1988) 2 NWLR (Pt. 76) page 263 at page 271, Alhaji Tijani Salami v. Chief Surakatu Gbodoolu AND Ors. (1997) 4 NWLR (Pt. 499) 377; (1997) 4 SCNJ 196 at page 208, Mora v. Nwalusi (1962) 1 All NLR page 681 at page 684, Okeanya-Inneh v. Madam Ekimado Aguebor (1970) 1 All NLR 1 at page 11, Allied Bank of Nigeria Ltd. v. Jonas Akubueze (1997) 6 SCNJ page 116 at pages 131-132, Ogbechie v. Onochie (No. 2) (1988) 1 NWLR (Pt. 70) 370; (1988) 2 SCNJ (Pt. 1) page 170, Wahab Maberi v. Chief Oyeniyi Alade (1987) 2 NWLR (Pt. 55) 101; (1987) 4 S.C 184 at page 189, Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) page 385, Registered Trustees of Muslim Hospital Committee v. Oluwole Adeagbo (1992) 2 NWLR (Pt. 226) page 690 at 705, Pascutto v. Adecentro (1997) 11 NWLR (Pt.529) 467; (1997) 12 SCNJ pages 16-19, Idundun v. Okumagba (2000) 20 WRN 127; (1976) 9-10 S.C page 227 at pages 246-251, Ebenezer Awote AND 3 ors v. Alhaji Owodunni AND Anor (No. 2) (1987) 2 NWLR (Pt. 57) pages 367 at 374.
The respondents replied that they pleaded settlement as their root of title and gave evidence to substantiate same. Both 5th and 6th PWs gave evidence to confirm that their ancestor Oluku was a hunter and warrior who got a vast area of land including the land in dispute by conquest. There is no difference between settlement and conquest. Conquest is part of the evidence by which settlement is established. Amuloko did not acquire any land by settlement along Akanran /Ibadan road neither did he found a village there. The learned trial Judge was right to have held that there was no relationship proved between the land in dispute and the one allegedly sold by the defendants in exhibit D2. The identity of the land in dispute is known to both parties as reflected in their survey plans. The respondents have proved that the land form part of the vast area of land settled upon by Oluku which was granted to Amuloko the ancestor of the appellants, while the remaining larger portion was granted to Oloya as customary tenants. PW5 gave evidence that Amuloko used to pay ishakole in respect of the land granted to him. After Amuloko death his descendants continued to pay ishakole to Oluku and his descendants. The appellants are not in a position to deny the overlordship of Oluku family to whom they have paid ishakole in respect of the land in dispute for many years. Though there are some contradictions in between the examination in chief and cross-examination in the evidence of PW5 and PW6 as to the mode of payment of ishakole the contradictions are not fatal to the plaintiffs/respondents case. The appellants were found not to be trespassers on the land in dispute since they got there by the authority of the respondents. The appellants who are denying the overlordships of the respondents are capable of going on the land in dispute. In order to prevent the appellants from committing trespass on the land in dispute in future the trial court had rightly granted an order of injunction against the appellants. This court is urged to dismiss the counter-claim and uphold the judgment of the lower court in favour of the plaintiffs/respondents. The four reliefs of the respondents are as stated in the writ and the amended statement of claim in the records. The appellants made evaluation of the evidence before the lower court the core and substance of this appeal. Every Judge has a duty to properly and accurately appraise the evidence before him. Evaluation of evidence and ascription of probative value is primarily the responsibility of the trial court. Before reaching a conclusion in any given case- the learned trial Judge has to set up an imaginary scale wherein he puts the evidence adduced by the plaintiffs on the imaginary scale and proceeds to put the evidence adduced by the defendants on the other side of the scale, and weigh both together to see by consideration of the evidence of probative value – not reached by the number of witnesses called but based on ascription of probative value to the evidence of each witness and see where the scale tilts and preponderates before making the findings of fact and decision in a civil case which is based on evidence of probability. Mogaji v. Odofin (1978) 3-4 S.C 91 at page 98 Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) page 527, Mogaji Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) page 393, Awote v. Owodunni (No.1) (1986) 5 NWLR (Pt. 46) 941; (1986) 5 S.C page 25, Okulaju v. Hadded (1973) 11 S.C 357, Woluchem v. Gudi (1981) 5 S.C 291.
The three ingredients of an action for declaration of title are as follows:-
(1) The nature of the title in respect of which declaration is sought must be precisely defined.
(2) The extent of the land to which the title related must be precisely proved.
(3) The title must be established to the satisfaction of the court.
The burden is on the plaintiff seeking declaration to adduce credible, convincing and unequivocal evidence in support of his case. The rule which is now trite is that the plaintiff must succeed only on the strength of his case and not on the weakness of the defence Kodilinye v. Odu (1935) 2 WACA 336, Udegbe v. Nwokafor (1963) 1 All NLR 417; (1963) 1 SCNLR 184, Uchendu v. Ogboni (1999) 5 NWLR (Pt. 603) page 337, Adeosun v. Jibesin (2001) 14 WRN 106; (2001) 11 NWLR (Pt. 724) pages 290.
The appellants criticized the evidence of the respondents in support of the root of title of their ancestor Oluku. The principal witnesses for the respondents were the 5th and 6th PWS who gave conflicting evidence as to how their ancestor acquired land along Ibadan/Akanran Road including the land in dispute. The mode of acquisition is also at variance with that pleaded by them in their amended statement of claim. Paragraph 5, 6 and 7 of the amended statement of claim read-
“The said Oluku settled on a vast area of land situate, lying and being at Amuloko village, Akanran Road Ibadan verged and shown on survey plan No. Rads/OY/DS/68/99 drawn by Mr. Adebayo A. Adeyemo a licensed surveyor.”
“The land settled upon by Oluku has boundaries with Awutu family land, Balogun Ogbaji family land, Odepeju family land, Bioku family land, Kure family land, Kure stream, Jegede family land, Akinpelu family land and Ibadan/Akanran road.”
“The land in dispute forms part of the vast area of land settled upon by Oluku the ancestor of the plaintiffs at Senle now called Amuloko/Akanran Road Ibadan during the reign of Bale Oluyedun. The land was formerly known as Senle but because Amuloko stayed on the land after Oluku left the place, the place became known as Amuloko village.”
At the trial court the 5th PW gave evidence in support of their title to the disputed land under cross-examination that his father Oluku a warrior, was one of the hunters called to drive the Ijebus and the Egbas away – so Oluku got the land by conquest. The learned trial Judge resolved the conflict in evidence between settlement and conquest in his judgment by saying that –
“I think to the untrained mind and to borrow the words of the plaintiffs counsel settlement includes conquest and conquest is evidence of settlement.”
In the view of the learned trial Judge there is no material contradiction or inconsistency in the evidence of the plaintiffs witnesses as between conquest and settlement. It is however trite that once a party pleads and traces his root of title in a land dispute to a particular source and same is challenged that party to succeed as a plaintiff in the action must not only establish his title to such land he must also satisfy the court as to the title to the source from whom he claims to derive his title to the land. Evidence of traditional history where it is found and accepted by the court to be cogent is sufficient to support a claim for declaration of title to land. Mogaji v. Cadbury (Nig.) Ltd.. (1985) 2 NWLR (Pt. 7) page 393, Alade v. Awo (1975) 4 S.C page 215, Olujebu of Ijebu v. Osho the Eleda of Eda (1972) 5 S.C page 143, Piaro v. Tenalo (1976) 12 S.C 31, Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) page 745, Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) page 417.
It is therefore appropriate to compare and contrast the mode of acquisition of the land in dispute by the parties. The respondents relied on settlement in their pleadings and veered-off to give evidence of conquest during the trial of this case. Whereas acquisition by settlement means no more than first occupation or original settlement on the land for whatever purpose. The nature or trait of settlement as a means of acquisition of land under traditional evidence are:-
(a) Settlement does not recognize a previous title holder.
(b) Exercise of dominion on the land by acts of possession of and settlement on the land must be shown by the claimant to the satisfaction of the court.
(c) It is irrelevant to argue that the title is defective as the ancestor had no grant from anybody.
(d) Acquisition by settlement gives the owner free disposition of it, and the right of the first occupant is more pronounced and recognized.
(e) The absence of competition gives an aura of status and jurisdictional right over the land.
(f) Settlement vests the settlers with interest in the land Agala v. Awodele (1971) NMLR page 127, Ige v. Fagbohun (2001) 10 NWLR (Pt. 721) page 463, Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) page 647, Odofin v. Ayoola (1984) 11 S.C 72, Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) page 177. Conquest on the land entails:-
(1) Waging war on neighbouring tribes and being successful in displacing or conquering them – the land previously owned by the victims of the invasion passed over to the invaders.
(2) Creating of interest is complete as soon as the conqueror establishes effective control over the conquered land – the control and management of land is vested absolutely in him.
The apparent difference in the connotation of acquiring land by conquest and acquiring land by settlement – when land is acquired by settlement there can be no question of original owners whereas in the case of land acquired by conquest the original settlers has to be driven away or displaced so as to create interest in the land. The 5th PW was categorical in his evidence that his ancestor Oluku was one of the warriors engaged by the Ibadans to drive the Ijebus and Egbas away, and that he came into the land after conquering and driving away the original owners from the land. It is not sufficient for a party who relies for proof of title to land on traditional history to merely prove that he or his predecessors in title had owned and possessed the land – such party is bound to plead such facts as:-
(a) Who founded the land
(b) In what manner the land was founded and the circumstance leading to it.
(c) The names and particulars of the successive owners or trustees through whom the land devolved from the founder to a living descendant or descendants who most likely will give the oral history.
The evidence of traditional history adduced before the trial court cannot be said to be convincing, cogent and credible to establish the root of title of their ancestor Oluku to the land in dispute more particularly the contradiction between the evidence of acquisition by settlement and conquest. Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) page 393, Alli v. Alesinoloye (2000) 6 NWLR (Pt. 660) page 177.
It was not necessary for the learned trial Judge to have made findings of fact upon the mode of acquisition of land by the respondents when the available evidence was contradictory and should not have been accepted. As regards payment of ishakole the appellants complained that the evidence of the respondents as regards non-payment of ishakole to the respondents family was contradictory and should not be allowed to stand. The respondents demanded for forfeiture of the land in dispute. Forfeiture is the usual mode of determining a customary tenancy. The real basis of the misconduct or misbehaviour which renders the tenancy liable for forfeiture is the challenge to the title of the overlord. This may be:-
(a) Alienation of part of the land or
(b) A claim of ownership or
(c) Refusal to pay the tribute due or
(d) Direct denial of overlords title by setting up a rival title in the customary tenant himself.
Oniah v. Onyia (1989) 1 NWLR (Pt. 99) page 514, Makinde v. Akinwale (2000) 2 NWLR (Pt. 645) page 435.
In the instant case the traditional history pleaded by the respondents was not proved which in part was bound to affect the issue of ownership of the land and payment of ishakole to the respondents. As the matter now stands before this court – on the evidence on printed record, the respondents are found not to have established their root of title to the land in dispute, the order of forfeiture, trespass and injunction made by the trial Judge cannot be allowed to stand. I however agree with the conclusion of the learned trial Judge that both parties know the land in dispute and that the land therefore is ascertainable. It is the conclusion of this court on the first issue that the learned trial Judge fell into error in granting all the reliefs sought by the respondents in the face of contradictory evidence to establish the root of title of their ancestors in the land lying and situate along Ibadan/Akanran road including the land in dispute. Issue No. 1 is therefore resolved in favour of the appellants.
Issue number two is to allow this court to determine whether on the evidence available the appellants have proved their counter-claim or not. It was the contention of the appellants that they have proved their counter-claim before the trial court and consequently ought to have been given judgment. In prove of their releifs in respect of the land in dispute the appellants in their pleadings relied on their further amended statement of defence particularly paragraphs 4, 5 and 6 which vested the title acquired by settlement in the land along Ibadan/Akanran road by the ancestor of the appellants Amuloko. He founded Amuloko village – where he settled his children, domestic aides and those who accompanied him to his new settlement. The settlement includes the land now claimed by the respondents as the land in dispute. The appellants witnesses gave uncontradicted evidence to substantiate the facts pleaded. DW4S father came to settle on the land – with Amuloko. DW5 also confirmed that Amuloko settled on the land. DW7 gave evidence that his ancestor settled in the area together with Amuloko. DW9 confirmed that Amuloko settled on the land. DW7 gave evidence that his ancestors also settled in the area -with Amuloko. DW9 confirmed that Amuloko came from Oja-Igbo in Ibadan to settle on a large tract of land in Amuloko village – which he used to farm and his family. It was in evidence that Amuloko’s family has not paid any ishakole to anybody in respect of the land.
On page 174 of the record the learned trial Judge held that –
“On the whole and with the exception of the evidence of PW4 which I discountenanced, I prefer the totality of the evidence offered by the witnesses for the defendants” and on page 172 of the same record he said that –
‘I hold further on the totality of the evidence adduced the defendants have not succeeded in proving their counter-claim the defendants counter-claim fails and it is hereby dismissed’”.
The learned trial Judge have obviously failed to evaluate the evidence in support of the counter-claim and made findings of fact before arriving at this decision. He did not give reasons for his conclusion and decision either. A counter-claim is like a plaintiff’s claim – a counter claimant must be given every opportunity to put forward his claim, while the decision of court at the end of trial must be based on balance of probabilities. As I have mentioned earlier every Judge has a duty to properly and accurately appraise the evidence before him. A Court of Appeal which acts only on evidence on printed record would not ordinarily interfere with the judgment of a trial court which had the sole advantage of seeing and hearing the witnesses. Thus in the absence of compelling evidence indicating erroneous conclusion – the appeal court will show utmost restraint, caution and respect to the appraisal and ascription of probative value to oral evidence led before the trial court being the primary duty and function of a trial court. A Court of Appeal will only interfere in the discharge of that duty if the trial court had made an imperfect and improper use of the opportunities of hearing and seeing witnesses or where interferences are shown to have been drawn which are wrong or are not supported by the evidence adduced before it or where accepted or proved facts do not support or indeed the determination of these facts in a manner which the facts so shown or concluded do not in themselves support such findings, are perverse.
Egonu v. Egonu (1978) 11-12 S.C page 111, Woluchem v. Gudi (1981) 5 S.C 291, Kuforiji v. Y.V.B. (1981) 6-7 S.C page 40, Ebba v. Ogodo (1984) 1 SCNLR page 372, Nwagbogu v. Abadom (1994) 7 NWLR (Pt. 356) page 357, Eseigbe v. Agholor (1993) 9 NWLR (Pt. 316) at 128, Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) page 172, Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) page 360.
By virtue of section 16 of the Court of Appeal Act an appellate court must in circumstance where it is necessary invoke the powers of acting as a court of first instance to re-evaluate the evidence on printed record and make findings in respect of the counter-claim of the appellant which the learned trial Judge failed and omitted to do in the interest of justice. Mogaji v. Odofin (1978) 3-4 S.C page 91, Karibo v. Grend (1992) 3 NWLR (Pt. 230) page 426. Any findings of fact where the court shut its eyes to the obvious will be deemed to be perverse. Adeosun v. Jibesin (2001) 14 WRN 106; (2001) 11 NWLR (Pt. 724) page 290 Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) page 1.
The appellants counter-claim against the respondents reads:-
(a) N500.00 (general damages) for trespass committed by the plaintiffs in 1990 on the defendants land at Amuloko shown on plan No. Kesh/OY/19680.
(b) Perpetual injunction restraining their agents, privies and/or any person claiming through or under them from committing trespass on the land in dispute.
It is expedient to examine the features of trespass. Trespass as it relates to land is an unjustified interference or intrusion with possession of land. Fundamental to the right of action in trespass is the element of possession of the land which is the root of the wrong. A claim for trespass postulates that the plaintiff is in possession of the land in dispute at the time of the trespass since the very essence of trespass per se is injury to possession. In order to maintain an action in trespass the type of possession must be exclusive possession of the land. Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt. 93) page 215, Onagoruwa v. Adeniji (1993) 5 NWLR (Pt. 293) page 317, Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) page 647, Anaedobe v. Ofodile (2001) 5 NWLR (Pt. 706) page 365, Ige v. Fagbohun (2001) 10 NWLR (Pt. 721) page 468. Where a claim for trespass is coupled with a claim for injunction – the title of the parties to the land in dispute is automatically put in issue. Akintola v. Lasupo (1991) 3 NWLR (Pt. 180) 508, Okorie v. Udom (1960) SCNLR 326, Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) page 514.
The appeal laid the issue of claim to title in the land in dispute to rest by deciding that the respondents claim to title failed. The pleading and evidence of both parties confirmed that the appellants/counter-claimants have been in exclusive possession of a large tract of land including the land in dispute. The amended statement of claim of the respondents pages 143-145A of the record of appeal depicted the respondents claim to the land, while paragraphs 4, 9, 10, 17, 18 and 31 of the amended statement of defence and counter-claim show the root of title of the appellants to the land. Both parties tendered their respective survey plans as exhibits P1 and D3. Evidence of the parties, neighbours/boundarymen and tenants on the land show active presence of the appellants/counter-claimants on the land in dispute. The respondents gave evidence that their ancestors moved away from the land and put Amuloko – the ancestor of the counter-claimants as caretaker on the land with one Oloya. The respondents family have not been able to establish a better title to the land in dispute. Since the right to institute an action in trespass rests on the one who was in possession of the land – the counter-claimants have the right to sue for trespass. Olohunde v. Adeyoju (2000) 14 WRN 160; (2000) 10 NWLR (Pt. 676) page 562 S.C, Ajero v. Ugorji (1999) 10 NWLR (Pt. 621) page 1 S.C, Okolo v. Uzoka (1978) 4 S.C 77.
A party can be in possession through a third party such as servant, agent or tenant. Also possession by a predecessor in title is in law deemed to be continued possession by his successor. Alatishe v. Sanyaolu (1972) 2 S.C page 97. Paragraph 21 of the amended statement of defence and counter-claim states that-:
“The defendants were challenged by members of Oluku family and they claim the land to be their family property.”
The foregoing was confirmed by the evidence of DW9 on page 115 of the record that when the respondents came in 1990 to challenge their family in respect of the land in dispute they threatened to maim any of the appellants family whenever they enter the land in dispute. Where a party has established that he is in possession – it is necessary for an order of injunction to be obtained to protect the possession in him. Furthermore once there is a finding for trespass an injunction must be granted so as to protect the possession in a party. Okolo v. Uzoka (1978) 4 S.C 77, Enang v. Adu (1981) 11-12 S.C page 25 Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) page 758. It is the decision of this court that the counter-claim has been established on the evidence on printed record – and the reliefs sought are granted accordingly. Issue No. 2 is resolved in favour of the appellants.
By way of conclusion, and on the sum total of the evidence available, this appeal succeeds. The judgment of the lower court in favour of the plaintiffs/respondents is reversed. The counter-claim of the appellants succeeds. The two reliefs making up the counter-claim which are N500.00 damages for trespass and perpetual injunction to restrain the respondents, their servants, agents, privies and any person claiming through them from committing further trespass on the land in dispute are granted.
Costs of N10,000 is awarded in favour of the appellants.
SUNDAY AKINOLA AKINTAN, JCA.I agree.
FRANCIS FEDODE TABAI, JCA.I read, in advance, the leading judgment prepared by my learned brother Adekeye, JCA. I agree with the reasoning and conclusion that the appeal has merit and ought to be allowed.
The plaintiffs’ root of title as pleaded is paragraphs 5, 6 and 7 of the amended statement of claim in that their ancestor Oluku acquired the land by settlement. Implicit in the case pleaded in these paragraphs is that until their ancestor Oluku settled there, it was a virgin land. It could not have been imagined from the pleadings that the original settlers/owners were the Ijebus and Ebgas. That was not the case the defendants/appellants were expected to meet. I do not with respect therefore agree with the learned trial Judge that the case of settlement as pleaded is one and the same mode of acquisition as settlement as pleaded is one and the same mode of acquisition as settlement after the conquest of the Ijebus and Egbas.
The essence of pleadings is that each party should know the case of the opponent he has to meet and must not be taken by surprise. See Jallco Ltd. v. Owoniboys Technical Services Ltd. (1995) 4 NWLR (Pt. 391) 534 at 544 and Oba Goriola Oseni AND Ors. v. Yakubu Dawodu AND Ors. (1994) 4 NWLR (Pt. 339) 390. In the instant case the evidence in respect of the plaintiffs’ root of title is at variance with the pleadings and the result is that the plaintiffs cannot be held to have proved their case has pleaded.
For these and the fuller reasons contained in the leading judgment I also allow the appeal. The judgment of the court below for the plaintiffs, claim is hereby set aside. In its place I enter judgment dismissing the said claim. Also the judgment of the court below dismissing the counter-claim is set aside. In its place I enter judgment for the counter-claim. I abide by the order on costs contained in the leading judgment.
Cases referred to in the judgment
Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578.
Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.
Adeosun v. Jibesin (2001) 14 WRN 106; (2001) 11 NWLR (Pt. 724) 290.
Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1.
Agala v. Awodele (1971) NMLR 127.
Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385.
Ajero v. Ugorji (1999) 10 NWLR (Pt. 621) 1.
Akintola v. Lasupo (1991) 3 NWLR (Pt. 180) 508.
Alade v. Awo (1975) 4 S.C 215.
Alatishe v. Sanyaolu (1972) 2 S.C 97.
Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177.
Allied Bank (Nig.) Ltd. v. Akubueze (1997) 6 SCNJ 116.
Anaedobe v. Ofodile (2001) 5 NWLR (Pt. 706) 365.
Archbode Eng. Ltd. v. W.R.H.T.W Ag. (1985) 3 NWLR (Pt. 12) 300.
Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360.
Awote v. Owodunni (No. 1) (1986) 5 NWLR (Pt. 46) 941; (1986) 5 S.C 25.
Awote v. Owodunni (No. 2) (1987) 2 NWLR (Pt. 57) 366.
Chinweze v. Masi (1989) 1 NWLR (Pt. 97) 254.
Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) 647.
Ebba v. Ogodo (1984) 1 SCNLR 372.
Egonu v. Egonu (1978) 11-12 S.C 111.
Enang v. Adu (1981) 11-12 S.C 25.
Eseigbe v. Agholor (1993) 9 NWLR (Pt. 316) 128.
Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263.
Idundun v. Okumagba (2002) 20 WRN 127; (1976) 9-10 S.C 227.
Ige v. Fagbohun (2001) 10 NWLR (Pt. 721) 468.
Jallco Ltd. v. Owoniboys Tech. Serv. Ltd. (1995) 4 NWLR (Pt. 391) 534.
Karibo v. Grend (1992) 3 NWLR (Pt. 230) 426.
Kodilinye v. Odu (1935) 2 WACA 336.
Kuforiji v. V.Y.B (1981) 6-7 S.C 40.
Maberi v. Alade (1987) 2 NWLR (Pt. 55) 101; (1987) 4 S.C 184.
Makinde v. Akinwale (2000) 2 NWLR (Pt. 645) 435.
Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393.
Mogaji v. Odofin (1978) 3-4 S.C 91.
Mora v. Nwalusi (1962) 1 All NLR 681.
Nwagbogu v. Abadom (1994) 7 NWLR (Pt. 356) 357.
Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337)172.
Odeleye v. Adepegba (2001) 5 NWLR (Pt. 706) 330.
Odofin v. Ayoola (1984) 11 S.C 72.
Ogbechie v. Onochie (No. 2) (1988) 1 NWLR (Pt. 70) 370; (1988) 2 SCNJ (Pt. 1) 170.
Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt. 93) 215.
Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745.
Okeaya-Inneh v. Aguebor (1970) 1 All NLR 1.
Okolo v. Uzoka (1978) 4 S.C 77.
Okorie v. Udom (1960) SCNLR 326.
Okulaju v. Hadded (1973) 11 S.C 357.
Olohunde v. Adeyoju (2000) 14 WRN 160; (2000) 10 NWLR (Pt. 676) 562.
Olujebu of Ijebu v. Osho the Eleda of Eda (1972) 5 S.C 143.
Onagoruwa v. Adeniji (1993) 5 NWLR (Pt. 293) 317.
Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514.
Oseni v. Dawodu (1994) 4 NWLR (Pt. 339) 390.
Pascutto v. Adecentro (Nig.) Ltd. (1997) 11 NWLR (Pt. 529) 467; (1997) 12 SCNJ 16.
Piaro v. Tenalo (1976) 12 S.C 31.
Reg. Trustees M.H.C. v. Adeagbo (1992) 2 NWLR (Pt. 226) 690.
Registered Trustees Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514.
Salami v. Gbodoolu (1997) 4 NWLR (Pt. 499) 377; (1997) 4 SCNJ 196.
Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527.
Uchendu v. Ogboni (1999) 5 NWLR (Pt. 603) 337.
Udegbe v. Nwokafor (1963) 1 All NLR 417; (1963) 1 SCNLR 184.
Woluchem v. Gudi (1981) 5 S.C 291.