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SUIT NO. SC 56/1986

3PLR/1988/68  (SC)



(1988) NWLR (Pt.93)215.










  1. O. Oseni (with him Mrs. M. N. Oseni and Mrs. M. O. Kekere – Ekun), – for the Appellant
  2. A. Ogunwale, – for the Respondent



TORT- Elements of Trespass – Concurrent possession by adverse parties – Effect of -Actions by trespassers.

PRACTICE AND PROCEDURE – Evidence – Section 145 Evidence Act -Possession of land – Onus of proof.

PRACTICE AND PROCEDURE – Concurrent Findings of the 2 Courts below – Attitude of the Supreme Court.



OPUTA, J.S.C. (Delivering the Lead Judgment):

This is a comparatively very short appeal as the issues in controversy have been considerably narrowed down by the substantial concession made by Mr. M. O. Oseni learned counsel for the appellant. Having conceded the issue of title, there was only one subsidiary and accessory issue left for argument and calling for a decision namely:-whether from the facts and circumstances of this case, it can be maintained that the Plaintiff/Appellant established such possession as to enable him succeed on the issues of trespass and injunction? To help resolve this issue it may be convenient to set out claims before the court of first instance and the concurrent findings of the two lower courts.

The plaintiff now appellant in the court sued the Defendant/Respondent claiming as follows:

(i)      Declaration of title in fee simple or according to native law and custom to that piece or parcel of land situate at Oniporin near Ibadan Grammar School, Ibadan, and the survey plan of which will be later filed in this action;

(ii)     N2,000 being general and special damages for trespass committed by the defendant to the said land which at all material times was in the plaintiff’s possession;

(iii)    Perpetual injunction restraining the defendant, his servants and agents from committing further acts of trespass;

Pleadings were ordered by the trial High Court, filed and exchanged. From the averments in the pleadings it was common ground that the radical title to the land in dispute resided in the Ilori family. Both parties pleaded and relied on purchase – the plaintiff from the Ashiru branch of the Ilori family; the defendant from the entire three branches of the Ilori family. The plaintiff’s case was based on a partition of Ilori family land and a sale by the Ashiru branch of their own share after such partition. The defendant’s case was that there was no partition. Rather there were several allotments of land to members of the family for use but not transferring title thereby. The defendant bought the land in dispute being part of the unpartitioned Ilori family land in 1969 and successfully defended an action brought against him by Jimoh A. Odutola in 1972 in respect of the land in dispute.

Three issues arose out of the pleadings namely:

(I)      Was there a partition of Ilori family land among its constituent units?

(ii)     If the answer is NO could the Vendors of the plaintiff transfer to him valid title?

(iii)    If there was a partition and the sales to both the plaintiff and the defendant were valid which of those sales was prior in time?

After due trial on the available evidence, Ogundere J. of the Oyo State High Court, (as he then was) made the following findings of fact:-

“1.     I find that there is no conclusive evidence that Ilori family land which descended through Ayani, Disamu and Sanni was ever partitioned during Ashiru’s life time or at all.

  1. Ashiru in his capacity as head of the family allocated plots of land to the two persons aforementioned (those who sold to the plaintiff) for the specific purposes of farming and building thereon and that cannot by any stretch of the imagination be claimed to be partition of Ilori family land.
  2. There was no evidence of the requirements of a sale of land to the plaintiff under native law and custom.
  3. The Conveyance Ex. Pt is ineffective to pass on the title in the land in dispute to the said plaintiff either under native law and custom or under English Common Law.
  4. The plaintiff could not demolish the case of the defendant that his own Conveyance Ex. D2 was signed by representatives of the entire Ilori family.
  5. The defendant in case 1/200/73 successfully defended an action brought by Jimoh A. Odutola in and over the land in dispute.”

In the face of the above findings the learned trial judge had no option but to dismiss the plaintiff’s case which he called “a big gamble in his efforts to acquire a portion of Olopeworoko land from members of Ilori family in view of his knowledge of previous acquisitions and disputes”.

Plaintiff then appealed to the Court of Appeal, Ibadan Division. This Court in a lead, judgment by Omololu Thomas with Sulu-Gambari and Onu, JJ.C.A. concurring again confirmed the findings and judgment of Ogundere J. and dismissed the plaintiff’s appeal. Having lost in the two courts below the plaintiff has now appealed to the Supreme Court of Nigeria.

The policy of this court, as well as of other appellate courts of all Common Law jurisdiction is not to disturb the concurrent findings of two lower courts unless it unmistakably appears that there was a serious error either of law or procedure which if not corrected would lead to a miscarriage of justice. See Lord Porter in Sockna Mormodu Allis & Ors. v. Ahmed Alhadi 13 W.A.C.A. 320 at p. 321; Lokoyi v. Ololo (1983) 8 S.C. 61 on pp. 69-73; lbodo v. Enarofia (1980) 5-7 S.C. 56/57; Bakare v. The State (1987) 1 N.W.L.R. (pt. 52) 579; NnaJiforv. Ukonu (1986) 4 N.W.L.R. (pt. 36) 505 e.t.c. Their name is legion for they are many, many such authorities on this point.

It is thus a difficult and uphill task for any appellant in this Court to attempt to disturb such concurrent findings. May be because of the above, but whatever his reasons were, learned counsel for the appellant, Mr. Oseni, threw in the towel and conceded defeat on the issue of title. “I am not quarrelling with the issue of title” he submitted. His only attack was that “the learned trial judge did not make any findings on the issue of possession although there was abundant evidence on both sides on this issue”.

In his Brief of Argument the sole Question for Determination was stated thus: ’The main question which the appellant would like the Court to consider is who of the parties has a better title to the land in dispute and the subsidiary one is, assuming the appellant’s title is defective, whether having been in possession he was not entitled to damages for trespass and an injunction against the respondent with no title at all.”

With the appellant’s concession that he is not appealing on the issue of title, that puts to rest the main question for determination. Now, the subsidiary question posed above rests on a wrong premise; “assuming the appellant’s title was defective.” It is not a question of defective title. It is a question of no title at all. The courts below found ‘that Ex. P1 was ineffective to pass on title to the land in dispute to the said plaintiff either under native law and custom or under English common law.” In other words the two courts below adjudged that the plaintiff had no title at all in and over the land in dispute. The two courts below also held that Ex. D2 signed by the representatives of the entire Ilori family conveyed title in and over the land in dispute to the defendant/respondent This is the factual situation in this appeal and it is against the background of that factual situation, that the subsidiary question of the plaintiff/appellant ought now to be considered.

The appellant’s contention in the subsidiary issue is that having been in possession he was entitled to damages for trespass and injunction. Given the facts of this case and the findings of the two courts below, there is an intrinsic and fundamental fallacy in the appellant’s argument. A claim for damages for trespass and an injunction against further trespass postulates that the appellant was either the owner of the land in dispute or was prior to the trespass complained of, in exclusive possession of the land in dispute -Abotche Kponugbo & Ors. v. Adja Kodadja (1933) 2 W.A.C.A. 24.

Now it has been proved and the appellant has conceded that he was not the owner of the land in dispute. His case for trespass will now stand or fall on his proof of exclusive possession before the trespass complained of. He from the facts as found, can never claim nor be awarded an injunction. Conceptually, trespass to land consists in any unjustifiable intrusion by one person upon land in the possession of another. Also trespass is actionable at the suit of the person in possession of land, who can claim damages or injunction or both. In this case the plaintiff/appellant’s possession derives from the purported sale of the land in dispute to him per Ex. P1. With the concurrent finding that Ex. P1 did not and could not transfer title to him the foundation of his possession became extremely shaky and tenuous. Had he a right to possession? My answer is No. Had he a right of possession? My answer is still No. His possession was merely physical occupation devoid of the right to possession and the right of possession. It was more in the nature of trespass.

Now coming to the facts, the trial court found that the defendant/respondent bought the land in dispute in 1969. He paid the purchase money and was let into possession. There was therefore a valid sale of the land in dispute to the defendant under customary law. The fact that the Defendant was in addition given a conveyance under English form (per Ex. D2 in 1973) cannot detract from the sale under customary law. The defendant merely wanted to make assurance doubly sure. As against the plaintiff/appellant, the defendant/respondent had since 1969 both a right of possession of, and a right to possess, the land in dispute. In defence of his rights in and over the land in dispute, the defendant successfully defended suit 1/200/73 instituted against him by one J. A. Odutola. That itself, constitutes an act of possession on the part of the defendant/respondent. In the circumstances, it cannot be said that the plaintiff/appellant’s possession was exclusive. No, it was not. And when two people are in the same field each claiming possession he wins who can establish title. The two courts below preferred the defendant/respondent’s title Ex. D2 to plaintiff/appellant’s alleged title per Ex. P1. The plaintiff/appellant’s attempt at physical occupation of the land in dispute constituted an act of trespass against the defendant who was perfectly justified in removing the plaintiff/appellant’s Sign Board which was part of the trespass now complained of by the appellant.

It is correct as was urged before us by Mr. Oseni, learned Counsel for the plaintiff/appellant, that there was no clear cut and specific finding by the learned trial judge on the issue of possession residing in either of the parties to this appeal. But title and possession are so intimately interwoven that a finding on one may lead to an inference of the existence of the other. Possession is definitely an indicium of title, thus in section 145 of our Evidence Law:-

‘When the question is whether any person is owner of anything of which he is shown to be in possession the burden of proving that he is not the owner Is on a person who affirms that he is not the owner.”

Now tide on its own part usually (but not always) comprises possession as a necessary adjunct.

In an action for trespass it has been held that an averment of ownership is consistent with and amounts to an averment of possession In Johannes England v. J. Modupe Palmer (1955) 14 W.A.C.A. 659 at p. 660. By the same token a finding of ownership or a concession of ownership by one party is also a finding or concession of possession as ownership Includes possession.

The Court of Appeal however dealt with the issue of possession at p. 190 of the record of proceedings thus:

“Having failed to prove partition as rightly found by the learned trial judge, and since Exhibit PL1 is ineffective to pass any title to the appellant, the possession which the appellant claimed he had since 1972 could not have been properly accepted by the trial judge also as a basis for the claim of trespass, since the issue also concern priority of the purchase and title as against the respondent’s title from 1969 …….

There Is evidence that the respondent exercised his right to possession, even before the appellant installed his Sign Board on the land, when Odutola put fences on the land. There is evidence also that the respondent removed the appellant’s sign board on the land and informed the appellant in Exhibit PL3. All these seem to indicate the respondent’s better title and right to possession, if not actual possession In law.”

From the above it is clear that the Court below (whose judgment is now being attacked in this appeal) did consider the issue of possession by the opposing parties and found that the respondent had better title and right to possession if not actual possession in law.”

There is no doubt that a trespasser can maintain an action against all but the true owner. The judgment of this court in Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 67-82 decided that. But it also decided that there can be no such thing as concurrent possession by two persons claiming adversely to one another. Here, in this case the claims of the appellant and respondent being adverse, the party to be found to be in actual possession from the facts and circumstances of this case is the respondent. The plaintiff/appellant was a trespasser and he cannot maintain the present action against the defendant/respondent with better title and prior possession.

In the final result and for all the reasons given above, this appeal is doomed to fail. It is accordingly hereby dismissed. The judgments and orders of the Court of first instance and the Court of Appeal Ibadan Division are both affirmed and confirmed. There will be costs to the respondent which I assess at N500.00.

OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Oputa, J.S.C. I agree with it and I adopt the opinion expressed therein as my own. I too will dismiss the appeal with N500.00 costs to the respondent.

Learned counsel for the appellant having conceded the issue of title (wisely in my opinion) the issue of possession has by the same concession been resolved. It is settled law that where two persons claiming title and possession adversely to each other claim to be in possession, possession resides in him who can establish a better tide. See Pius Amakor v. Benedict Obiefuna (1974) 2 S.C. 67-82.

I say the concession was wisely made having regard to the concurrent findings of fact of the two courts below and the weighty findings of fact made by the learned trial judge in favour of the respondent.

  1. The appellant claimed a declaration of tide in fee simple or according to native law and custom of the land in dispute.
  2. N2,000.00 general and special damages for trespass committed by the defendant to the said land and
  3. Perpetual injunction. He lost in the High Court and the Court of Appeal.

It was common ground that Ilori family was the original owner of the land in dispute. The contention of the appellant that the land was partitioned was rejected. As his claim rested squarely on it, it had a devastating effect on the chances of the appellant to succeed and establish his claim. More so as the claim of the respondent that there was no partition was accepted by the learned trial judge. Also accepted in his favour was that the whole Ilori family sold to him and put him in possession in 1969 a few years before the appellant bought from a faction of the family. The whole family later executed a conveyance in his favour. The facts were therefore solidly and overwhelmingly in his favour.

The appeal fails and I hereby dismiss it with N500.00 costs to the respondent.

KARIBI-WHYTE, J.S.C. I have read the judgment of my learned brother Oputa, J.S.C. In his appeal. I agree entirely with his reasoning. I also agree with the conclusion dismissing the appeal.

As my learned brother, Oputa, J.S.C. pointed out, after the concession by Mr. Oseni, learned counsel for the appellant on the issue of title, the only issue left which was that of possession to enable appellants succeed on the claims for trespass and injunction, had been decided against appellants in the two courts.

The policy of the Court has been established beyond controversy that the concurrent findings of facts of two lower courts in an appeal before it should be left undisturbed, unless appellant is able to point out from such concurrent findings a serious error of law or procedure, which if corrected was bound to result in a miscarriage of justice – See Nnajiofor v. Ukaonu (1986) 4 N.W.L.R (pt. 36) 505; lbodo v. Enarofia (1980) 5-7 S.C. 56.

In the instant case the two courts have found that the defendant/respondent and plaintiff/appellant are in possession. Accordingly the plaintiff/appellant’s possession was not exclusive. Again the two courts below preferred the defendant/respondents title in Exhibit D to plaintiff/appellants’ title per Exh. P1. It is well settled that where two persons in possession are claiming title to the land, the person with better title wins. The two courts below have found that respondent had better title and right to possession. Since the two whose claims are adverse cannot be in possession concurrently, the respondent held to have a better title was rightly held to be in possession.

Mr. Oseni could not satisfy this Court that the concurrent findings of fact are wrong and ought to be reversed. We therefore accept them as found.

I therefore agree with the conclusion by my learned brother, Oputa, J.S.C., that the plaintiff/appellant was a trespasser and cannot maintain an action against the defendant/respondent with both better title and prior possession.

There will be costs for the respondents assessed at N500.00.

KAWU, J.S.C. I have read in draft the lead judgment of my learned brother, Oputa, J.S.C. 1 agree that for the reasons stated in the judgment this appeal should be dismissed and it is hereby dismissed with N500.00 costs awarded to the respondent.

AGBAJE, J.S.C. I have had the opportunity of reading in draft the lead judgment of my learned brother, Oputa, J.S.C. I agree with him and the reasons he gave that this appeal lacks merit. Accordingly I too dismiss the appeal with costs as assessed in the lead judgment.

Appeal dismissed.


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