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25TH OCTOBER, 1974.

SUIT NO. SC 343/1973.

3PLR/1974/37  (SC)



(1974) 10 S.C. (REPRINT) 128


BEFORE THEIR LORDSHIPS                              





Chief Obafemi Awolowo (with him I.O. Owotomo and Dele Awoniyi) for the Appellants.

  1. Ogunyemi Ogunlana for the Respondents.


Land Law Claims for possession, trespass and injunction Traditional histories given by both parties Claim for trespass granted Appeal Inappropriate for claim for possession to be joined with claims for trespass and damages Retrial ordered.


SOWEMIMO, J.S.C. (Delivering the Judgement of the Court): This appeal has brought Into focus two matters previously decided in earlier judgments of this Court:


(1)     The inappropriateness of joining a claim for possession along with claims for trespass and injunction.


(2)     That where conflicting averments are made by opposing parties in their pleadings regarding possession of land, it is the duty of the court to decide the issues as to which party has the title or superior title. In short, the issue as to the ownership of the land should be resolved.


In the writ of summons in this case, the plaintiffs/respondents claim as follows:


“(1)   The possession of all that piece or parcel of land lying and being at Etftum and Fakorede Street, Epe, Lagos State.


(2)     An injunction restraining the defendants their servants or agents from committing any further acts of trespass on the said piece or parcel of land.


(3)     The sum of ₤200:0:0 (two hundred pounds) as general damages for trespass.”


The learned trial judge, in his judgement dated 17th January, 1972, at the Ikeja High Court, gave judgement to the plaintiffs/respondents in their claim for possession of the land in dispute, but dismissed the claims for damages for trespass and injunctions.


With regard to the claim for trespass and injunction, the learned trial judge had this to say in his judgement:


“It remains the other claims for damages for trespass and injunction. The plaintiffs’ statement of claim (paragraph 9) alleges that on or about 25th day of March 1969 the defendants without any authorisation pitched a tent on the portion of the land in question, and have refused to remove same in spite of warnings. It was the 2nd plaintiff who only gave evidence on this, “and all he said was on that date a group of people headed by the defendants came on the land, destroyed the stalls on it together with the crops in the yard. After destroying the stalls the defendants attempted to pitch a tent on the land which was resisted.


It is obvious that this piece of evidence is at variance, with the averments that were pleaded. The defendants of course denied paragraph 9 of the statement of claim and averred that it was the plaintiffs who pitched a tent on the land and they removed it.


It is well known that a party cannot be allowed to deviate from his pleadings, and as far as I can see the plaintiffs have failed to lead evidence in support of the alleged trespass that the defendants entered on the disputed land and pitched a tent on it. It seems to me that the claim for trespass must fail as well as the claim for injunction.


In the result the plaintiffs succeed on the claim for possession and I accordingly grant them possession of all that piece or parcel of land sufficiently descroned and delineated ‘green’ in plan No. BK 7655 admitted as Exhibit B in these proceedings. The other claims are dismissed.”


In the pleadings before the learned trial judge, the issue as to the title to the land in dispute was raised by both parties. The plaintiffs/respondents averred in their statement of claim that they were permitted to settle on a vacant portion of land, of which the land in dispute forms a part, when they arrived at Epe with Kosoko in 1851. On the other hand, the defendants/appellants averred in their statement of defence that the land in dispute forms part of the large area of land known as Epe which had been in possession of the defendants/appellants from time Immemorial or at least over seven hundred (700) years ago.


During the course of the trial, both parties led evidence in support of their different traditional histories. In a very lengthy and lucid judgement, the learned trial judge examined the claims of both parties but failed to resolve the issue of ownership as between them. In dealing with the claim for possession, the learned trial judge said:


“It seems to be that on the balance of probabilities this land has long been in exclusive possession of the plaintiffs and the first attempt to dispute it with them arose in March, 1969. I do not believe that the defendants ever had possession of this piece of land and the case of Mshinmi vs. Ladejobi (1960) L.L.R.233 where two parties claim to be in possession of land at the same time does not seem to apply to this case. From all “available evidence therefore, it seems that the history of the plaintiffs that their ancestors occupied this land when Kosoko reached Epe in 1851 seems more probable, and that it has remained in their possession ever since.”


It is quite clear from the judgement of the learned trial judge that he did not expressly decide the issue as to whether either side has title superior to that of the other. Occupation or user for a long time does not entitle a party to the owner ship of a piece of land. The nature of ownership in customary law is well known as well as its attendant incidents. On appeal before us, learned counsel for the appellants raised this point in canvassing the appellants’ complaints on grounds 4 and 5. These grounds read as follows:


“4.     The learned trial judge having made the following findings of fact


(a)     that the Ijebu Epe originally settled in Epe before 1851;


(b)     that the plaintiffs/respondents’ ancestors occupied the land in dispute (part of Epe land) when Kosoko reached Epe in 1851; and


(c)     that the land had since remained in possession of the plaintiffs/respondents, “was wrong in law, in not resolving the issue of title thus raised in the evidence before him.


  1. The learned trial judge erred in law in giving judgement for possession against the defendants/appellants after he had made a finding of fact that the defendants/appellants never had possession of the piece of land in dispute, and had dismissed the claim of the plaintiffs/respondents for trespass.”


The valid argument made by learned counsel for the appellants was that, since the learned trial judge had dismissed the claim for trespass and injunctions, then the irresistible inference of fact was that the appellants did not enter or disturb the possession of the respondents as alleged by them in their pleading and evidence. If that were so, under what basis therefore did the learned trial judge grant the claim for possession against the appellants? It is enough for him, were he to be logical that the claims for trespass and injunction were not made out, to have refused to entertain a claim for a possession that was never disturbed or interfered with.


The learned trial judge found that there was some tension between the two parties. With respect, we would have thought that, having raised the issue as to the title or ownership of the land in their pleadings and evidence, there is a compelling duty on the learned trial judge to decide the issue and, so far as he was concerned, deflated the rising temper. He referred quite rightly to the settled law as guideline to decide the issue of ownership where the traditional histories given in evidence before a court are conflicting. We are of the view that, in view of the evidence before us, he had failed to resolve this issue. It is, therefore, an error in law on the part of the learned trial judge to refuse to do so. If he had resolved the Issue as to the ownership of the land, then there would have been some basis for his judgement on the claim for possession, whatever the effect the inappropriate joinder of claims might have been resolved.


We do not consider it necessary to determine other complaints canvassed before us, as we are satisfied that the error in law validly made the subject of complaint by learned counsel for the appellants is fundamental to the whole decision.


The appeal succeeds and it is allowed. The judgment of Dosumu, J. in Suit No. IK/96/69 delivered on the 17th January, 1972, with its award of costs, is hereby set aside. We, however, consider that, in the peculiar circumstances of this case, a retrial should be ordered, and it is hereby ordered that this case be remitted to the court below for a retrial before another judge so that the other issues of law involved could be properly looked into.


The appellants are awarded costs of N74.00 in the court below and N98.00 costs in this Court. And this shall be the judgement of the Court.


Appeal allowed.



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