ADEBAYO v. EGBEYEMI & ANOR

CITATION: (2018) LPELR-45942(CA)

In the Court of AppealIn the Ado-Ekiti Judicial Division

Holden at Ado-Ekiti

ON FRIDAY, 6TH JULY, 2018Suit No: CA/EK/52/2016

Before Their Lordships:

AHMAD OLAREWAJU BELGORE Justice, Court of AppealFATIMA OMORO AKINBAMI Justice, Court of AppealPAUL OBI ELECHI Justice, Court of Appeal

BetweenABAYOMI ADEBAYO - Appellant(s)

And1. CHIEF BISI EGBEYEMI2. LADIPO ANISULOWO - Respondent(s)

RATIO DECIDENDI

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1. LAND LAW - TRESPASS TO LAND: Whether a claim in trespass is based entirelyon possession of the land"Trespass to land is a wrongful entry into the land in actual or constructivepossession of another, Olaniyan v Fatoki (2003) 13 NWLR (PT837) 273, 286. Ineffect, a person who cannot prove that he is in possession cannot sue in trespass,Akibu v Azeez (2003) 5 NWLR (PT.814) 634,670. That must be so for trespass isrooted or based on exclusive possession or right to possession, Unakamba v Nze(2002) 28 W.R.N.53,64. That is the rational for the prescription that any unlawfulinterference with possession, however slight, amounts to trespass, Oyebanji vFabiyi (2003) 12 NWLR (pt. 834) 271, 302, Dantsoho v Mohammed (2003) 6NWLR(PT.817) 457, 488. Being rooted in exclusive possession or that he has the right tosuch possession of the land in dispute,Oyebanji v Fabiyi (supra) 290: Amakor vObiefuna (1974)NMLR 331. Indeed, the tort of trespass is so inextricably, tied topossession that in possession of land, even as a trespasser, can sue another personwho thereafter comes upon the land. In other words, a person who has no title overa piece of land but who is in possession, may successfully sue for trespass if anentry is made into the land without his consent. Olaniyan v Fatoki (supra) 286;Olowolagba v Bakare (1998) 3 NWLR(PT.543)528. However, such a person cannotproceed against the owner or someone who shows some title which gives him abetter right to be on the land, Aromire v Awoyemi (1972) 2SC 182; Tumo v Murana(2000)12NWLR (PT. 681) 370; Eze v Atasie (2000) 9 WRN73,83. In this case, thedefendant/appellant/counter claimant failed to pitch the averments in his pleadingand oral evidence at the trial into these constructive requirements of the proof of aclaim for trespass. His claim was therefore bound to collapse. The trial Court madecrucial findings, that the Respondent proved his title to the land. Whilst theAppellant failed to show any valid title or indeed any form of title at all vested inhim over the said land in the face of the subsisting, valid title of the Respondentover the said land. See Ngene v lgbo (2000)4 NWLR (pt651) 131@p.143. See alsoFagunwa v Adibi (2004)12 MJSC 1@p29. Thus once exclusive possession is provedeven the slightest disturbance with it by another without a better title to the landwould suffice to constitute trespass to the land. Thus where two parties claim to bein possession of land in dispute, the law ascribes possession to the party with thebetter title and similarly where titles are being relied upon by rival claimants, theparty with a better title is entitled to succeed. See Ayinde v Salawu (1989)3 NWLR(pt.297) @p 316, where the Supreme Court held inter alia thus: "A trespass to landis an entry upon land or any direct and immediate interference with the possessionof the land. The comprehensive way of describing a trespass is to say that theDefendant broke and entered the Plaintiff's close and damage". The Court belowfound in its judgment rightly that it was not in dispute that the Respondent andAppellant claimed to have bought the land in dispute from the same vendor. Butthat the 1st Respondent proved his title by credible evidence. Even the Secretary ofthe vendor family testified before the lower Court that the family sold the land tothe 1st Respondent. I find the findings of the lower Court to be unassailable and lsee no reason why the decision of the lower Court should be disturbed."PerAKINBAMI, J.C.A. (Pp. 51-53, Paras. A-F) - read in context

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FATIMA OMORO AKINBAMI, J.C.A.(Delivering the

Leading Judgment): This is an appeal against the

judgment of the Ekiti State High Court, Ado -Ekiti Judicial

Division, delivered on 24th day of July, 2015 by Hon. Justice

A.L. Ogunmoye, granting all the claims of the first

Respondent.

FACTS:

This is a claim that borders on damages for trespass and

injunction. The first Respondent instituted the action

against the Appellant and the second Respondent jointly

and severally-vide a writ of summons dated 14th

September, 2010 which was later amended on the 6th day

of March, 2013. See pages 1-6 and 113-118 of the record.

In response the Appellant filed a Statement of Defence and

Counter-Claim dated 11th January, 2011 which was also

amended by the order of the Court granted on the 16th day

of September, 2014. See page 8-12 and 206-210 of the

record.

The first Respondent further filed a reply to the Statement

of Defence and Counter-Claim dated 20th April, 2011. See

pages 13-15 of the record.

According to the first Respondent, sometime in the year

2000, first Respondent approached his

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Royal Majesty, the Ewi of Ado-Ekiti for a piece of land along

Iworoko Road, Ado-Ekiti for the purpose of running a hotel

business. The Ewi gave him an appointment to enable the

first Respondent meet with one of his traditional sons,

Chief Clement Famuagun who happens to be the Olokun of

Ilokun.

On the said day of appointment, first Respondent met with

the Ewi and Chief Famuagun, the Olokun of Ilokun at the

palace of the Ewi where the issue of his acquiring a piece of

land at Ilokun was discussed. Thereafter Chief Famuagun

asked him to come to Ilokun village the following day for

more talks.

The following day, first Respondent met with Chief

Famuagun at Ilokun. After discussion, Chief Famuagun

brought out the layout plan of the land to be allotted to

him. First Respondent was allotted fourteen plots (14 plots)

on that day for a price which he paid, thereafter Chief

Famuagun asked him to come with his Surveyor.

According to first Respondent, he came to Chief with his

Surveyor and others and he was shown the extent of the

already pegged 14 plots of land. Who pegged it?

First Respondent also said he was given an affidavit of sale

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of the aforesaid 14 plots of land deposed to by the Chief

and the Secretary of the Olokun family.

Subsequently, he did the survey of the 14 plots in his name

and the name of his company.

Appellant on the other hand, was contracted by the Olokun

family in 1989, to carry out the surveying and planning of

Olokun family land lay out along Iworoko Road, Ado-Ekiti.

Upon the completion of the work, the family allocated to

the Appellant's company three hundred and forty (340)

plots of land as remuneration for the work done. Since then

he had been in possession and warding off trespassers to

the land.

In March, 1996, when there was an encroachment on the

Appellant's land by the workers of Omolayo Standard Press

Company, the Appellant reported the matter at the palace

of Ewi, of Ado-Ekiti where the matter was adjourned on

several occasions without any resolution.

On the 20th April, 1996 when the Appellant visited the

palace again on the matter he reported, he met the first

Respondent in the office of the Ewi. The first Respondent

who was present there, demanded for a copy of the layout

of the Olokun land from the Appellant, and the

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Appellant innocently gave it to the first Respondent being a

Chief to the palace, without knowing that the first

Respondent had evil intention.

Upon giving the layout copy to the first Respondent, he

made some marks on the layout and gave it to the Ewi who

in turn signed on it before they returned it to the Appellant

who left the palace in annoyance.

The first Respondent having marked the layout, and signed

by the Ewi made sure he used his influence with the palace

to take over the land from the Appellant, having promised

to do so.

In 2006, ten years after the palace incident, the Appellant

was invited to the palace Court on the complaint of

trespass brought by the first Respondent in respect of the

same land which the Appellant had earlier lodged a

complaint against Omolayo Standard Press Company.

A panel from the palace of Ewi visited the land in an

attempt to settle the matter but eventually the panel could

not resolve the matter. Also Chief Olokun of Ilokun

requested that the matter be withdrawn from the palace to

enable the family settle it but all to no avail.

Hence, the present case that led to this appeal.

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In proof of his claim before the trial Court, first Respondent

called three (3) witnesses including himself as CW1, and

tendered Exhibits 1-3 whilst the Appellant called four (4)

witnesses including himself as DW4, and tendered Exhibits

4-8.

Learned counsel for the parties filed their written

addresses and adopted same respectively.

The trial Court in its final judgment granted all the claims

of the first Respondent.

Dissatisfied with the said judgment the Appellant appealed

against same vide his Notice of Appeal filed on 3rd

September, 2015.

The Appellant in this appeal has formulated five (5) issues

for determination and the issues were distilled from the

fifteen (15) grounds of appeal as contained in the Amended

Notice of Appeal thus:

a. Whether on the basis of the pleadings and the evidence

adduced and accepted by trial Court, 1st set Respondent

did prove the identity of the land in dispute. Grounds 1 and

2.

b. Whether there was conflict or contradiction between the

pleadings and the evidence of the 1st Respondent and

whether the trial Court can choose and pick which one to

accept between two contradictory evidence on oaths.

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Grounds 3, 4 and 13.

c. Whether the trial Court was right to have placed the

burden of proof of the 1st Respondent's land on the

Appellant and whether such misplaced burden of proof

does not occasion miscarriage of justice to the Appellant.

Grounds 7 and 12.

d. Whether the trial Court properly evaluated the evidence

of the parties before arriving at its decision. Grounds 5, 6,

10, 14 and 15.

e. Whether the trial Court was right to have granted the 1st

Respondent's claims when same were not proved as

required by law. Grounds 8, 9 and 11.

ARGUMENT AND SUBMISSION ON THE ISSUES

ISSUE A

"Whether on the basis of the pleadings and the

evidence adduced and accepted by trial Court, 1st set

Respondent did prove the identity of the land in

dispute."

The 1st Respondent claims before the trial Court are for

damages for trespass and injunction against the Appellant

and the 2nd Respondent. See paragraph 24 of the Amended

Statement of Claim on pages 113-118 of the records.

Learned counsel submitted that where there is claim for

trespass and injunction, title to the land involved is put in

issue.

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See NZEKWU v. NZEKWU (1989)2 NWLR (PT 104)

373.

Therefore, for the 1st Respondent to succeed in his claims,

the 1st Respondent must have proved his title to the land in

dispute or show a better title to same. He must identify

clearly the area of the land to which his claims relate, and

failure to identify and ascertain the land being claimed as

in this case, the claim of the Claimant will fail and will be

dismissed. SeeODICHE v. CHIBOGWU (1994)7 NWLR

(PT 354) P. 78 SC.

In the present case, the trial Court while treating this issue

found as follows:

"It is therefore clear that the identity of the land in

dispute is in issue with the implication that the

claimant has the onerous duty to prove its identify."

See page 271 of the record.

But, curiously while resolving the issue of the identity of

the land, the trial Court held thus: "I believe that exhibits 1,

and 2, which were the survey plans, coupled with exhibit 3,

which was the affidavit of sale had succeeded in

ascertaining the identity of the land being claimed by the

Claimant." See page 272 of the record.

Looking at the pleadings of the Claimant, particularly

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paragraph 8 of the Amended Statement of Claim, the

Claimant made reference to fourteen (14) plots being the

number of plots allotted to him by Chief Famuagun.

However, by paragraphs 16 and 17 of the Amended

Statement of Claim, Claimant averred that part or a portion

of his land was sold by the Appellant to the second

Respondent.

It is therefore crystal clear that it is not the whole fourteen

(14) plots purportedly allotted to the Claimant that were in

dispute in this case.

Both Exhibits 1, and 2, relied upon by the trial Court in this

case covered the entire fourteen (14) plots purportedly

allotted to the Claimant and not the part or a portion

allegedly sold by the Appellant to the second Respondent.

The plots of the land involved in the alleged trespass were

not delineated. They were neither pleaded nor given in

evidence. Despite the fact that two survey plans (Exhibits 1

and 2) were tendered, there was no evidence showing the

survey plan upon which the alleged trespass was

committed.

Learned counsel submitted that the issue of proof of

identity of land in dispute is sine-qua-non to establishing a

case of title to land. See OLUSANMI v. OSHASONA

(1992) 6

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NWLR (PT 245)22 at 23 and 24; ONWUKA v. EDIALA

(989)1 NWLR (PT 96) 182 @ 184.

Therefore, in a claim for title as in this case, the onus of

proof is on the Claimant and he must succeed on the

strength of his case, and not on the weakness of the

Defendants case.

It is the duty of the Claimant to describe the land in dispute

with such reasonable degree of certainty and accuracy, that

its identity will no longer be in doubt. In other words, the

land must be indentified positively and without ambiguity.

See ECHENIM OFUME v. NGBEKE (1994)4 NWLR (PT

341) 746 R. 2.

It is also the duty of the Claimant who has to establish with

certainty the identity of the land he claims in order to

succeed, to file composite plan to show the relative

positions of the areas claimed by either side. See

BANKOLE v. PELU (1991) 8 NWLR (PT 211) 523 R. 3.

All the above duties the law bestowed on the claimant, the

claimant failed to do. The two survey plans, Exhibits 1 and

2 relied upon by the trial Court in proof of identity could

not help the case of the Claimant.

Exhibit 1, which was purportedly made or carried out on

Block BH of the Olokun family layout, does not exist on

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the layout. Exhibit 5, in the certified true copy of the

Olokun family layout, procured from the Ministry of Lands,

Ekiti State. On it, there is no block referred to as Block BH.

Exhibit 5, is the only authentic layout of the Olokun family.

It is the pillar or foundation, upon which any survey plan

with respect to Olokun family land can stand. Therefore,

Exhibit 1, on having been traceable on Exhibit 5, cannot be

the basis for the process of the identity of the land in

dispute in the case.

The trial Court ignored the contents of Exhibit 5, and shut

its eyes to same. No finding was made on Exhibit 5, as to

the existence or otherwise of Block BH, that is Exhibit 1.

Only Exhibit 2 falls on Block K of the Olokun family layout,

that is Exhibit 5. Even the said Exhibit 2 did not show the

trespassed area and as such the Exhibit also failed to

establish the identity of the land in dispute.

In all, both Exhibits 1 and 2 did not prove or establish the

identity of the part of the land in dispute in this case as the

plots affected were not delineated.

Further to the above, the Claimant pleaded in paragraph of

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the Reply to the First Defendant's Statement of Defence

and Counter-Claim that his land is between the Appellant's

land and Dr. Omolayo. Surprisingly, both Exhibits 1, and 2,

did not indicate or show this averment that appellant and

Dr. Omolayo are both boundary men of the Claimant. Both

Exhibits 1, and 2, showed that Claimant has proposed road

as boundary.

Learned counsel submitted that the above is a further proof

that the first Respondent did not prove the identity of the

land in dispute.

It is also common place in the law of evidence that he who

asserts must prove. It is the first Respondent who asserted

the existence of Exhibit 1, on Olokoun family layout, who

should also prove with evidence that Exhibit 1 exists on the

layout, the moment the Appellant produced the layout

Exhibit 5 in rebuttal. This he failed to do.

Appellants counsel submitted that the trial Court also

wrongly held that the Appellant did not produce or tender

any Counter-Survey Plan of his own throughout the

proceedings. This is against the principle that the Claimant

must succeed on the strength of his own case and not on

the weakness of Defendant's case. The production of a

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Counter-Survey by the Appellant would not have proved the

case of the Claimant who must first succeed on his own

case.

Also, the trial Court relied on Exhibit 3, to hold that the

Claimant had succeeded in ascertaining the identity of the

land being claimed by the Claimant. Learned counsel

submitted that Exhibit 3, did not prove the identity of the

land in dispute. The Exhibit cannot even be relied upon in

aid of the case of the Claimant. The Exhibit did not state

the identity of the land in dispute. The Exhibit only showed

that land was allocated and the land was fourteen (14)

plots. The Exhibit did not indicate the portion in dispute

since it is part of land that was trespassed upon. So, the

same fate that befell the first two Exhibits (Exhibit 1 and 2)

also befalls exhibit 3. Appellant's counsel urged this Court

to so hold.

On the whole, the Claimant (First Respondent) did not

prove the identity of the land in dispute therefore learned

counsel urged this honourable Court to resolve this issue in

favour of the Appellant.

ISSUE B

"Whether there was conflict or contradiction between

the pleadings and the evidence of the 1st

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Respondent and whether the trial Court can choose

and pick which one to accept between two

contradictory evidence on oath."

The Claimant in proof of his title to the land in dispute

adopted the production of documents of ownership. The

Claimant tendered Exhibits 1, 2, and 3, thereof in proof of

same.

Exhibits 1 and 2, were survey plans purportedly made or

carried out in December 1996. While Exhibit 3, was an

affidavit of transfer of land made in 2002.

By paragraphs 5, 6, 7, 8 and 9 of the Amended Statement of

Claim and Claimant's Written Statement on Oath, Claimant

was allotted land by Olokun's family in year 2000 through

Ewi of Ado-Ekiti.

Also, by paragraph 11 of the Amended Statement of Claim,

Claimant "subsequently" asked his surveyor to survey the

aforesaid fourteen (14) plots of land which he did.

But by his evidence CW2, who claimed to be a principal

member of Olokun family stated that the family granted

land to the Claimant in 1995.

There was no purchase receipt tendered evidencing the

said sale either in 1995 or 2000. When asked under cross-

examination, neither Claimant nor CW2, was able to

produce any receipt.

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Throughout his pleadings, Claimant did not plead that he

bought the said land in 1995.

However, the trial Court held that the variation in the year

of purchase is a discrepancy and not contradiction.

Probably, his Lordship has forgotten that pleading is the

origin or pillar upon which evidence stands. Evidence

thrives upon pleadings and where there is no pleading,

evidence goes to no issue. Again, it is often said that parties

are bound by their pleadings. See ONAMADE v. A.C.B.

LTD (1997)1 NWLR (PT 480) 123 @ 145 PARAS C-D;

OSUJI v. EKEOCHA (2009) 39 NSCQR 532 @ PP. 590,

593-594; AMASIKE v. THE REGISTRAR GENERAL OF

CORPORATE AFFAIRS COMMISSION & ANOR (2000)

43 NSCQR 581 @ P. 654.

Furthermore, CW2's, evidence on the year of the sale of the

land by his family to the Claimant conflicted or

contradicted the Claimant's evidence both in pleading and

in the Written Statement on Oath. Therefore goes beyond

mere discrepancy as observed by the trial Court.

Probably, the trial Court also forgot that both Exhibit 3 and

Claimant's Written Statement on Oath are depositions

before the Court. Both were paid for, sworn and signed

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before the Commissioner for Oath. So the trial Court

cannot choose and pick which of the two oaths to believe

and accept as correct.

In the case of PANACHE COMMUNICATION LTD v.

AIKHOMU (1994)2 NWLR (PT 372)420 @428 PARAS

D-E, R. 5, the Court held thus: "Where a witness gives

evidence which contradicts earlier evidence on the

same issue both evidence should be disregarded and

ignored."

Beyond the claim that the land in dispute is part of the

three hundred and forty (340) plots of land allocated to the

Appellant, by paragraphs 3 and 12 of the Amended

Statement of Defence and Counter-Claim, the Appellant

denied the sale of the land in dispute to the Claimant.

Assuming without conceding that the Olokun family sold

land to the Claimant in 1995 as claimed by CW2, Exhibit 3

was not made until 2002. What then is the document

evidencing the sale between 1995 and 2000? No family

receipt was tendered during trial. There was no evidence

that the Claimant is an illiterate who could not easily

remember dates, as to not know when he approached the

family through Ewi, for land. Counsel submitted that it is

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strange and surprising that a literate person like the

Claimant who is a lawyer would not also collect document

of title of the land he bought for seven (7) years. Why will

the Claimant wait for this long before he could be given an

affidavit of sale - Exhibit 3?

Learned counsel submitted also that Exhibit 3, could not

have evidenced the transfer of Exhibit 1, a piece of land

which did not form part of Olokun family approved layout

as contained in Exhibit 5.

He submitted further that the trial Judge, who could not

disregard the contents of Exhibits 1, 2 and 3 because they

were pleaded, tendered and admitted in evidence,

disregarded the contents of Exhibit 5, which was also

pleaded, tendered and admitted in evidence in rebutting

the existence of Exhibit 1.

Learned counsel also submit that the pieces of evidence

given by the Claimant and CW2 in this case cast serious

doubt and aspersion on the case of the Claimant as to the

reliability of their evidence in proving Claimant's title to the

land in dispute.

It is trite that a party must be consistent, in presenting his

case before a Court of law, and where there are

inconsistencies, a Court is bound not to choose any of

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them. See ABUBAKAR v. YAR'ADUA (2008)19 NWLR

(PT 1120) P. 1; I.B.B IND LTD v. MUTUNCI CO (NIG)

LTD (2012)6 NWLR (PT 1297) AT P. 525, PARAS A-B.

Learned counsel for Appellant urged this Court to resolve

this issue in favour of the Appellant.

ISSUE C

"Whether the trial Court was right to have placed the

burden of proof of the 1st Respondent's land on the

Appellant and whether such misplaced burden of

proof does not occasion miscarriage of justice to the

Appellant."

Both in his pleadings and his Written Statement on Oath,

Appellant stated that three hundred and forty (340) plots of

land were given to him (his company) by the Olokun family

for the work done in the preparation of the family layout.

Exhibit 4 is the document evidencing the allocation of the

340 plots to the Appellant.

The evidence of the 340 plots, being shared among five

professionals given by the appellant was elicited under

cross-examination. Neither Claimant nor appellant pleaded

facts relating to sharing of the 340 plots among five

professionals, therefore it goes to no issue.

It is trite that no amount of oral evidence can vary or

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alter documentary evidence, in this case, exhibit4. See

Section 132(1) Evidence Act, ANYANWU v. UZOWUAKA

(2009) 40 NSLQR 1 @ 22.

Moreover, Claimant sued Appellant for selling part of his

land to second Respondent, Claimant did not sue any other

person or professional, which means Claimant knew who he

wanted to sue.

Learned counsel therefore submitted that the trial Court

was wrong to have held that the piece of evidence (elicited

under examination, which was not pleaded by any of the

parties) was fundamentally contrary to his pleadings and

evidence in Chief, that three hundred and forty (340) Plots

belonged to him.

Exhibit 2, tendered by Claimant showed that Claimant is

claiming eleven (11) plots on Block K, which the Appellant

contended formed part of the three hundred and forty (340)

plots, allocated to him vide Exhibit 4.

Both pleadings and evidence led by Appellant showed that

Appellant had previously allocated two plots of the land to

DW 3, before relocating him when the workers of Dr.

Omolayo trespassed to the land in 1996. See paragraphs 7

and 16 of the first Defendant's Amended Statement of

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Defence and Counter-Claim on pages 206 - 210 of the

record.

Both pleadings and evidence given by the Claimant showed

that the land in dispute in the present case is between

Appellant's land and Dr. Omolayo's.

However, dispute over the land in dispute had earlier

occurred between the Appellant and Dr. Omolayo, which

the Appellant reported at the palace Ewi of Ado-Ekiti to the

knowledge of the Claimant. It is the same land which the

Claimant is now claiming. Counsel then asked, "why was it

the same land over which the Appellant and Dr. Omolayo

had dispute that was allocated to the Claimant?"

The trial Court also held that the Appellant ought to have

told the Court the exact number of the tree hundred and

forty (340) plots, that he had sold out if any of the already

sold plots fell within Block K.

In response to the above, learned counsel submitted that

Claimant did not claim 340 plots of land, before the trial

Court. Claimant's claim is that part of his 14 plots, was

trespassed upon. The part or portion trespassed upon not

known. Counsel is asking the Appellant therefore, to tell

the Court the exact number of the three hundred and

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forty (340) plots that he had sold out will be wrongly

placing a burden on him, which is not covered by the claim

before the Court. After all Claimant did not complain that

any other person aside from the Appellant, and second

Respondent, trespassed on his land. The same Court did

not ask the Claimant to tell the exact number of his plots,

that was trespassed upon. Moreover, the Appellant pleaded

by paragraph 16 of his Amended Statement of Defence and

Counter-Claim the people he had allocated plots of land to

on Block K.

The appellants counsel is of the view that the trial Judge

erred when he held that: "What is more, the DW4 testified

that in 2005, the Claimant started claiming eleven (11)

plots of land in Block K, which he verged out with red

tempo pen on the layout. He however forgot to tell the

Court from which block the remaining three plots were

claimed by the Claimant. This is contrary to his claim that

the disputed plots were from Block K.

In response to the above, learned counsel submitted that

the Claimant did not claim that the whole fourteen (14)

plots, he was purportedly allocated fell on Block K. That

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was the reason he tendered Exhibits 1, and 2. Looking at

the two Exhibits, only Exhibit 2 fell on Block K, and the

plots of land on Exhibit 2, were eleven (11) plots. The onus

lies on the Claimant to establish the location of the

remaining three (3) plots of his land. He is the one claiming

that his land is fourteen (14) plots. The burden is on him to

prove, not on the Appellant. The burden does not shift. In

the case of ONWUAMA v. EZEOKOLI (2002) FWLR (PT

100) 1213 @ 1224-1225 PARAS H-B, SC. The Supreme

Court held:

"The standard of proof in a claim for declaration of

title is not different from that which is required in

civil cases generally. The only difference, if we may

say so, rests on the fact that the burden of proof is on

the Plaintiff who is claiming title and that it never

shifts to the Defendant throughout the trial. The

difference therefore lies, not in the standard of proof,

but on the burden of proof."

Therefore, the onus is on the Plaintiff to adduce credible

evidence to prove his case before it becomes necessary for

the Defendant to call evidence to rebut, in the Plaintiff's

assertions weakness in the defendant's case does not

21

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CA)

prove the Plaintiff's case. See NWAGA v. REGISTERED

TRUSTEES RECREATION CLUB (2004) FWLR (PT

190) 1360 Rs. 2 and 6.

Appellant's counsel submitted further that it is not the law

for the Defendant to prove a negative assertion. The burden

is on the Plaintiff who has made a positive assertion to

prove it by evidence. See the case of AIYETORO

COMMUNITY TRADING CO. LTD v. N.A.C.B LTD

(2003) 12 NWLR (PT 834) P. 346 R. 2; ALHAJI OTARU

& SONS LTD v. IDRIS (1999) 6 NWLR (PT 606) P.

330, SECTIONS 135 and 136 Evidence Act.

On the whole, the trial Court misplaced the onus of proof in

this case and this has however occasioned miscarriage of

justice on the Appellant.

Learned counsel for Appellant urged this Court to so hold

and resolve this issue in favour of the Appellant.

ISSUE D

"Whether the trial Court properly evaluated the

evidence of the parties before arriving at its

decision".

Both the pleadings and the evidence of the Claimant

showed that the Claimant approached the Olokun family

through Ewi of Ado-Ekiti for land in year 2000. And that the

family took him to the land and showed him the already

22

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8) LP

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CA)

pegged land, which he paid for and subsequently surveyed.

The survey plans tendered as Exhibits 1, and 2, were made

in 1996. No purchase receipt was tendered despite same

being pleaded. An affidavit of ownership was purportedly

made in 2002, which was tendered as Exhibit 3, paragraph

5 of Exhibit 3 showed that land was sold to the Claimant in

1995, contrary to the pleadings? The tendering of the

purchase receipt pleaded, would have however resolved

this conflict in both the pleading and evidence. Failure to

tender the receipt by the Claimant amounted to

withholding of evidence which offends against Section 149

(d) of the Evidence Act.

Learned counsel submitted that the evidence of the

Claimant and his two witnesses contradicted one another

and this makes their evidence unbelievable. The Claimant

pleaded and gave evidence that he bought 14 plots of land

in 2000. CW2 gave evidence that his family sold land to

claimant in 1995. Claimant did not plead that he bought

land from CW2's family in 1995. It has been variously held

that where evidence adduced is at variance with pleading,

the proper order to make is to dismiss the claim. See the

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8) LP

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CA)

case of NSIEGE v. MGBEMENA (2007) ALL FWLR (PT

372) 769 @ 795 PARAS F-G.

Appellant's counsel submitted that, what is more, the two

survey plans Exhibits 1, and 2, were purportedly made on

Olokun family layout, that is Exhibit 5. Surprisingly, a close

look at Exhibit 5, showed that there is no Block tagged as

Block BH, which is Exhibit 1. Yet the trial Court shut its

eyes to the obvious when it failed to give attention or

consideration to Exhibit 5, which is the primary source of

any survey plan. Instead the Court went on to state that:

"There is unassailable evidence before me that the

claimant bought fourteen (14) plots from the Olokun

family. The CW2 also maintained in his testimony that

the fourteen (14) plots covered by survey plans

(Exhibit 1 and 2) did not fall within the three hundred

and forty (340) plots earlier allocated to the 1st

Defendant in the Olokun layout" see page 277 of the

record".

When it was obvious that Exhibit 1 does not exist on Olokun

family layout. Hence the failure of the trial Court to

consider Exhibit 5, in his judgment makes its judgment

perverse and counsel urged this Court to set aside the

24

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8) LP

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CA)

judgment of the trial Court. See the case of CHIEF

CYPRIAN CHUKWU v. INEC & 3 ORS (2014) 21 WRN

1 AT 35, LINES 36-37, 45.

Appellant's counsel asked, why will the trial Court grant

the Claimant's claim, over a land that does not exist on the

Olokun family layout, where it was purportedly made?

Exhibit 1, could not be any other thing than fraud. The

affidavit of ownership, Exhibit 3 which also purportedly

transferred Exhibit 1, is equally a fraud. Counsel urged this

Court of Appeal to so hold.

Appellant's counsel reiterated the fact that, the trial Court

also erred when it granted the Claimant's claim, based on

the evidence of the ownership of fourteen (14) plots.

Counsel submitted that the Claimant in this case did not

claim that fourteen (14) plots of land are in dispute. His

claim was that part or a portion of the fourteen (14) plots

he bought from Olokun family was in dispute. One may

therefore ask, if fourteen (14) plots are not in dispute, why

did the trial Court make case over fourteen (14) plots,

which are not in dispute? The part or portion in dispute was

not properly delineated. There was no pleading

25

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8) LP

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CA)

containing the particular location of the land in dispute on

the Exhibits 1, and 2. Consequently, Appellant's counsel

concluded that what the trial Court succeeded in doing in

this case, was to make a case for the Claimant contrary to

his pleadings and evidence. It has been held that a Court

should not or cannot make a case for the parties different

from what they set out in their pleadings. See the case of

ISHOLA v. U.B.N LTD (2005) ALL FWLR (PT 256)1202

@ 1213 PARA F.

Furthermore, referring to Exhibit 5, tendered by the

Appellant, was a rebuttal to the existence of Exhibit, 1.

Therefore, Exhibit 1, could not have established the

description of the land in dispute or the case of the

Claimant itself.

On his part, the Appellant did not claim that the fourteen

(14) plots purportedly bought from Olokun family by the

Claimant, fell within the three hundred and forty (340)

plots, earlier allocated to him by the Olokun family. There

was no where either in his pleadings or written Statement

on Oath, where the Appellant referred to or mentioned

fourteen (14) plots. Rather, the Appellant mentioned eleven

(11) plots of Block K, contained in Exhibit 2. Exhibit

26

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8) LP

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CA)

2, on Block K formed part of the three hundred and forty

(340) plots, allocated to the Appellant in 198- vide Exhibit

4. Paragraph 21(a) of the Appellant's Statement of Defence

, and Counter-Claim showed that Block K, formed part of

the three hundred and forty (340) plots allocated to the

Appellant. DW3, also gave evidence that the Appellant had

earlier allocated two plots of land to him, which he

confirmed formed part of the land now being claimed by

the Claimant. There was evidence that the Appellant had

been exercising right and acts of ownership over Block K,

before the present claim of the Claimant and at no time did

the CW2's Olokun family challenge the Appellant on Block

K.

Appellant's counsel noted that there is evidence on record

by both parties that, the Appellant was the first person to

be allocated land on Olokun family layout. There is also

evidence on record given by the parties that, there was

dispute between the Appellant and Dr. Omolayo on the land

before the present dispute. There is also evidence on

record given by the Claimant that, the land now in dispute

is between the Appellant's land and Dr. Omolayo's. The

27

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8) LP

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CA)

dispute between the Appellant and Dr. Omolayo was in

1996, before the Claimant approached the Olokun family

for land. There is evidence on record by the Claimant

himself that he was aware of the dispute between Appellant

and Dr. Omolayo. There is no evidence that Claimant made

any claim then over the land until ten years after, that is in

2006. Learned counsel contended that all these damaging

evidence against the Claimant, the trial Court ignored and

shut its eyes to the obvious. Counsel also asked, at what

point did the Claimant suddenly come in to own the land

between the Appellant and Dr. Omolayo? Why was it the

land over which the Appellant, and Dr. Omolayo had

dispute and which the Claimant was aware of that the

Claimant bought?

Another area of concern is the involvement of Ewi of Ado-

Ekiti. The Claimant confirmed that the Ewi, of Ado-Ekiti

collected Olokun family layout from the Appellant, and

marked out the portion belonging to various allottees. Ewi,

is not known to be a member of the Olokun family.

Appellant's counsel asked the question how did he know

the various allottees of the Olokun family land, when he

was not their grantor? Counsel is of the view that

28

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8) LP

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CA)

there is more to this than meets the eyes. There was a

conspiracy between Ewi, and the Claimant to deprive the

Appellant of the benefit of the three hundred and forty

(340) plots allocated to him, for the work done for the

Olokun family. The Claimant stated in his pleadings, and

evidence that he approached the Olokun family for land,

through Ewi, of Ado-Ekiti yet the trial Court shut its eyes to

the above evidence.

Learned counsel also submitted that, the trial Court was

selective in its assessment of the evidence of the parties.

And the Court was also carried away by the two Exhibits 1

and 2 which purportedly showed that the Claimant bought

fourteen (14) plots of land. Counsel submitted that this has

however blinded the trial Court to the real claim before it.

It has been held that parties are bound by their pleadings.

Similarly, the Court is bound by the pleadings. See U.B.N

PLC v. AYODARE & SONS (NIG) LTD (2007) ALL

FWLR (PT 383) @ 26 PARAS E-F.

Further, in his assessment of the testimonies of the

witnesses, the trial Court treated the evidence of DW1, and

DW2, as amounting to hearsay whereas the testimonies of

29

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CA)

DW1, and DW2, was to the effect that there had been

dispute over the land before, which involved the Appellant

and Dr. Omolayo which was to their knowledge. On his

part, DW3's evidence, was to the effect that the two plots

he earlier bought from the Appellant, formed part of the

land now in dispute in the present case. Juxtaposing the

above evidence with the evidence from the two sides of the

month, yet the trial Court held that his testimony however

remains unassailable.

Counsel submitted that the finding of the trial Court with

regard to the testimony of CW2 was enough to have

disbelieved whatever piece of evidence he has to offer. His

evidence is unreliable, yet the Court made use of it.

Furthermore counsel submitted that, the trial Court

wrongly accepted and used Exhibits 1, and 2, as proof of

ownership of the land in dispute by the Claimant. It has

been held that, the purpose of survey plan in a land case is

to identify the land in dispute. It is also to delimit the land

with sufficient particularity. SeeNNADOZIE v. OMESU

(1996) 5 NWLR (PT 446) @ P. 126 PARAS D-E.

Referring to Exhibit 3, which the trial Court relied upon as

transferring

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ownership to the Claimant, counsel submitted that it is

deficient in that it did not contain the Blocks where the

land allocated to the Claimant are located, other than

making reference to Exhibits 1, and 2. It did not contain the

price the land was sold to the Claimant.

Counsel submitted that, there is also evidence on record

from the Claimant as CW2, that the Appellant got to the

land before the Claimant. There is evidence that the

Appellant had been exercising right of ownership on Block

K, without challenge from the Olokun family, and before

claims came to the scene. Even if Exhibit 4, does not

contain the Blocks, where the Appellant's three hundred

and forty (340) plots are located, which the trial Court

observed have probably not been agreed to before Exhibit

was made, the mere fact that Appellant had been exercising

right over Block K, without challenge from the Olokun

family is enough proof of his ownership of Block K. Counsel

contended that this is so, and since both Claimant and

Appellant are now claiming from the same grantor, the

doctrine of first in time ought to come into play. Since

Appellant got to the land in 1989, by virtue of Exhibit 4

and

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Claimant got there in 2000 or 1995, either way, the

Appellant takes priority. In AMINU v. OGUNYEBI (2004)

10 NLWR (PT 882)457 @ 482 PARAS A-B R.9. It was

held, that where both parties to a land in dispute claim and

succeed in tracing their title in respect of the same parcel

of land to the same grantor, the latter in time to obtain a

grant cannot maintain an action against the person who

first obtains a grant.

The maxim nemo dat quod non habet is applicable here.

See the case of OLUKOYA v. ASHIRU (2006) ALL FWLR

(PT 322) 1479 @ 1501 PARAS A-C, where it was held:

"It is in accord with common sense that after a person

had effectively divested himself of its interest in land

or other res, no right naturally vest in him with such

land or res any more, for nemo dat quod non habet,

meaning that no one can give that which he does not

have".

Appellant's counsel urged this Court to so hold in this case.

Since the Olokun family divested their right over the land

in dispute in 1989, to the Appellant, the family has no land

again to grant the Claimant in either 1995 or 2000.

Counsel submitted that, the trial Court misplaced the onus

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CA)

of proof when it held that Appellant should prove the

location of the remaining three (3) plots land claimed by

the Claimant, which does not exist on the Olokun family

layout, Exhibit 5. The principle is he who asserts must

prove.

Appellant's counsel submitted that, the trial Court relied on

evidence elicited from the Appellant under cross-

examination, when such evidence was not pleaded by any

of the parties. It has been held that only evidence elicited

from the cross-examination of a defence witness which is in

line with the facts pleaded by the Plaintiff which forms part

of the evidence produced by the Plaintiff, in support of facts

pleaded in the Statement of Claim, and can be relied upon

in proof of the fact in dispute between the parties. Since

none of the parties pleaded facts relating to five

professionals being the beneficiary of the allocated Exhibit

4, it then goes to no issue. Counsel urged this Court to so

hold.

He urged this Court to hold that the trial Court did not

accord the case the necessary weight it deserves. See the

case of AKINLAGUN v. OSHOBOJA (2006) ALL FWLR

(PT 325) 53 @ 76 PARAS B-D; OLUKOYA v. ASHIRU

(2006) ALL

33

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8) LP

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CA)

FWLR (PT 322) 1479 @ 1501 PARAS A-C.

Learned counsel for Appellant urged this Court to resolve

this issue in favour of the Appellant.

ISSUE E

"Whether the trial Court was right to have granted

the 1st Respondent's claims when same were not

proved as required by law".

In arguing issue E, Appellant's counsel referred to the

claims of the Claimant as contained in his Amended

Statement of Claim, these claims postulate that title is in

issue. When a claim for trespass to land is coupled with an

order for injunction, title is thereby put in issue and the

onus is certainly on the Claimant to prove this by proving

ownership and exclusive possession. See ALHAJI

AHMADU ALAO v. ALHAJI OBA ALABI (Supra). Where

there is claim for declaration of title to land, the Plaintiff

must rely on the strength of his own case and not on the

weakness of the Defendant's case. Where the Plaintiff fails

to discharge the onus placed on him, the weakness of the

Defendant's case will not help him and the proper judgment

is for the defence. It is the duty of the Plaintiff to show

clearly the

34

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area of land to which his claim relates even when the

location and the identity of the land is not in dispute as no

declaration of title can be made where the land in dispute

is not properly defined and ascertainable with precise

boundaries. See ECHEMIN OFUME v. ISAAC NGEKE

(Supra). The burden of proof is however on the Claimant.

See JIMOH ATANDA v. MEMUDU ILIASU (2013)18

WRN 1 @ 26, LINES 30-35.

Appellant's counsel asked if, it can therefore be said that

the Claimant in this case has proved his case as required by

the law?

In proving his case, the Claimant tendered and relied on

Exhibit 1, 2 and 3. Exhibit 1, and 2, are two separate survey

plans purportedly made on Block BH and K of Olokun

family layout. Exhibit 1 and 2 covered fourteen (14) plots of

land which were purportedly allocated to the Claimant by

the Olokun family. From the state of the pleadings, by

paragraphs 16 and 17 of the Amended Statement of Claim,

it was only a part, or a portion of the purported Claimant's

land that was involved in the alleged trespass. That part or

portion of the Claimant's land as contained in Exhibit 1,

and 2, was not identified or ascertained since it is

35

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CA)

presumed that it is not the entire fourteen (14) plots, on

Exhibit 1, and 2, that were trespassed upon. The identity of

the particular plots allegedly trespassed upon was not

known. Appellant's counsel contended that on this failure

alone, the case of the Claimant ought to have been

dismissed by the trial Court. See ODICHE v. CHIBOGWU

(Supra). Counsel however urged this Court to do so in this

appeal.

Furthermore, both Exhibits 1 and 2, were purportedly

made on the Olokun family layout. The said Olokun family

layout, was tendered by the Appellant at the trial and the

trial Court admitted same as Exhibit 5. No other Counter-

Layout was tendered. CW2, confirmed that the family has

only one layout. The said layout was registered and the

Certified True Copy obtained from the Ministry of Lands,

Ekiti State. Going through the entire layout, there is no

Block tagged Block BH. The implication of this is that the

said Block does not exist on the layout and therefore does

not form part of the Olokun family land, from where it was

purportedly made. Yet, the trial Court made declaration of

title over a non-existent land.

In effect, the identity of the land being claimed by the

36

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CA)

Claimant is not proved or established, hence his case is

bound to fail. Appellants' counsel urged this Court to so

hold.

Again, the Claimant also failed to identify which of the two

Exhibits 1 and 2, the alleged trespass took place.

Learned counsel submitted that the Claimant has failed to

prove trespass. He urged this Court to so hold.

Counsel also submitted that an award of damages is based

upon a successful proof of trespass, which was not proved

in this case and when the claim for trespass fails, the claim

for injunction also fails.

In all, Appellants' counsel submitted that the trial Court

was wrong to have granted the Claimant's claims, when

same were never proved as required by law. The findings of

the trial Court that it is therefore not in doubt that the

Olokun family actually sold fourteen (14) plots of land to

the CW1 (Claimant), was equally wrong in that there was

no evidence of sale of the land to the Claimant. No receipt

was tendered evidencing the transaction despite being

pleaded. Exhibit 3, relied upon could not help the Claimant,

as the Exhibit did not spell out the amount the land was

37

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CA)

sold, neither did it spell out the block containing the

fourteen (14) plots. The presumption of regularity enjoyed

by Exhibit 3, was to the extent that it was made but not as

to the truth of the deposition therein in view of the non-

existence of Exhibit 1, on the Olokun family layout from

where it was presumed to have been carried out.

Learned counsel for Appellant urged this Court to resolve

this issue in favour of the Appellant and hold that the

Claimant failed to prove his case and therefore not entitled

to the reliefs sought.

On the totality of the argument and submissions above, it is

Appellant's conclusion that the trial Court did not properly

evaluate the pleadings and the evidence of parties before it

before arriving at its decisions; hence, its judgment is

perverse.

Learned counsel urged this Court to allow this appeal,

reverse the judgment of the trial Court and dismiss the 1st

Respondent's claims before the trial Court or in the

alternative to order a retrial before another judge of the

Ekiti State High Court.

ARGUMENT AND SUBMISSION ON ISSUES

In his reply Respondent's learned counsel on

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Issue 1 "whether from the totality of the evidence on record

the 1st Respondent proved his case before the trial Court

on the preponderance of evidence, referred to the

Respondent's claim before the Trial Court, that it is for

general damages for trespass and an order of perpetual

injunction".

It is trite law that in civil cases, he who asserts must prove.

See ORJI v. DORJI TEXTILE MILLS (NIG) LTD (2010)

ALL FWLR (PT579)999 at PAGES 1013-1014. The 1st

Respondent's claims put title in issue. The recognized

methods by which party can prove title to land in dispute as

enunciated in IDUNDUN v. OKUMAGBA (1976) NMLR

200 are as follows:

"a. by traditional evidence;

b. by production of documents of title which are duly

authenticated;

c. by acts of selling, leasing, renting out all or part of

the land, or farming on it or on a portion thereof;

d. by proof of possession of connected or adjacent

land, in circumstances rendering it probable that the

owner of such connected or adjacent land would, in

addition, be the owner of the land in dispute;

e. by acts of long possession and enjoyment of the

39

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land which may also be prima facie evidence of

ownership of the particular piece or quantity of land

with reference to which such acts are done;"

See ASHIRU v. OLUKOYA (2006)11 NWLR (PT 990) PP

17-18 PARAS H-D, 28-29 PARAS G-A.

The 1st Respondent and the Appellant, are both laying

claim of ownership on the land in dispute and traced their

root of title to a common grantor, the Olokun family of

Iworoko, Ado-Ekiti. The 1st Respondent tendered in

evidence the affidavit of sale of the disputed land given to

him by the said Olokun family, and same was received in

evidence by the trial Court and marked as Exhibit 3. In

Exhibit 3, the head and secretary of the said family,

deposed to the fact that the family allocated the land in

dispute to the 1st Respondent. Not only that, the secretary

of the said family, Pius Famuagun, gave evidence before

the trial Court for the 1st Respondent, attesting to the sale

of the land in dispute to the 1st Respondent, when he

testified thus on page 123 of the record.

"I am the secretary of Olokun family. I know the

claimant very well as well as the land in dispute. I

also know the first Defendant in this suit. The land in

40

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CA)

dispute is not within the land allocated to the 1st

Defendant by Olokun family of Ado-Ekiti. Myself as

the secretary of Olokun family and the head of the

said family who is a bit indisposed now swore to an

affidavit evidencing allocation of the fourteen (14)

plots of land to the claimant. If I see the affidavit I

w i l l b e a b l e t o i d e n t i f y i t . T h i s i s t h e

affidavit.. . . . . . . . . . . . . . . . . ."

Under cross-examination by the learned counsel for the

Appellant, on page 67 of the record, the secretary said

thus:

"I know the CW1. My family sold land to him in 1995.

We gave him a purchase receipt to evidence the sale.

We sold 14 plots to him. I cannot remember how

much he paid. He brought the money to the family

elders. I was present when the family sold the land to

him."

The witness who gave evidence as CW2, testified further

under cross-examination that the 1st Respondent came to

show the family the survey plans in respect of the land in

dispute which were tendered in evidence and marked as

Exhibits 1,& 2. In fact on page 169 of the record the

witness stated that he could identify the 14 plots of land

which

41

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CA)

his family allocated to the 1st Respondent if a visit to locus

in quo is to be carried out.

The Appellant who is now claiming ownership of the land in

dispute, albeit erroneously, stated in his evidence in chief

on page 22 of the record that the land in dispute falls on

the land allocated to his company by the Olokun family at

Ilokun Village, Iworoko Road, Ado-Ekiti. On page 23,

paragraph 9 thereof the Appellant stated further thus:

"9. That after the completion of the work sometime in

1989, Chief Famuagun and his family gave my

company 340 (Three hundred and forty) plots of land

for our labour for the work done."

He went further to say on page 23 paragraph 14, thereof

that his company had been allocating the purported 340

plots of land to people and also allowing the Ebira people to

cultivate and farm thereon.

Under cross-examination by learned counsel for the 1st

Respondent, the Appellant on page 182 of the record

testified thus:

"It is true that I did not survey the plots given to me

by Chief Olokun. This was because five of us were

involved as professionals. The Olokun family gave us

42

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CA)

340 plots, which we shared immediately. Everybody

sold his own portion. It was the individuals who

bought the land then did the survey of the plots of

land referred to."

The Appellant having testified expressly that he had sold

the portion of land shared to him cannot now lay claim of

ownership over the said portion of land or part of which,

according to the Appellant, formed the land in dispute.

DW3, Olugbenga Ogundele, under cross-examination by the

learned counsel for the 1st Respondent corroborated the

evidence of the Appellant, that he had sold his shared

portion of land to individuals when he stated thus on page

179-180 of the record:

"The original owner of the land is the Olokun family.

When I wanted to buy the two plots of land from the

1st Defendant, he told me that the land belonged to

the Olokun family but that he was the family surveyor.

I then went to Chief Olokun and asked if the 1st

Defendant, was a member of the family. He answered

in the negative. He added that the 1st Defendant

worked for him and he was to pay him in kind through

plots of land. I went to Chief Olokun with Dele

Olokose. Once Chief Olokun told me that, I

43

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became confident and then paid the 1st Defendant

that two plots, that was how I became the owner of

the two plots."

Learned counsel for the respondent submitted that, if any

person is to lay claim of ownership over the land in dispute

aside for the 1st Respondent, it is the person or persons to

whom the Appellant purportedly sold same and not the

Appellant who had divested himself of ownership of same.

See the cases of FARAJOYE v. HASSAN (2006)6 NWLR

(PT 1006) 463 AT499 PARAS C-E and YUSUF v. KODE

(2002)6 NWLR (PT 762)231.

The Appellant's learned counsel in his brief of argument

made heavy weather of the identity of the land in dispute to

the effect that the 1st Respondent did not prove same. He

referred this honourable Court to the pleadings and

evidence of the parties.

The 1st Respondent in his Amended Statement of Claim on

pages 115-118 of the record, averred that the land in

dispute is well known to both parties. He averred in

paragraph 4 and 24 (a) of the Amended Statement of Claim

this:

"4. The land in dispute is situate, lying and being at

Ilokun Village of Ado-Ekiti. It is well known to all

parties.

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24 (a). A sum of N50 million as damages for trespass

committed and still being committed by the

defendants, their agents, privies and servants on the

Claimant's plots of land situate, lying and being at

Ilokun Village, Ado-Ekiti which is well known to both

parties."

Appellant admitted paragraph 4 of the Amended Statement

of Claim in his Amended Statement of Defence and

Counter-Claim in paragraph 2 thereof at page 206 of the

record. More importantly, the Appellant in paragraph 21 (a)

of the Amended Statement of Defence and Counter-Claim

on page 209 of the record averred thus:

"(a). A declaration that the land in dispute which is

known to the parties as which is on Block K of the

Olokun family layout along Iworoko Road, Ado-Ekiti

which form part of the 340 plots of land allocated to

the 1st Defendant by the Olokun family of Ado-Ekiti

vide an agreement dated 6th day of December, 1989

belongs exclusively to the 1st Defendant and not to

the Plaintiff."

Appellant clearly testified that he did not survey the plots

of land shared to him. 1st Respondent tendered the two

survey plans, showing the land in dispute in evidence and

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8) LP

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same were admitted as Exhibits 1, & 2.

Respondent's counsel submitted that, what was required of

the 1st Respondent on the issue of identity of the land in

dispute, in view of the admission of the Appellant, that the

land in dispute was well known to the parties in this case is

a minimal proof which the 1st Respondent discharged

before the trial Court. Also the findings of the learned trial

Judge on page 277 of the record thus:

"Since the Claimant had tendered the survey plans in

respect of the fourteen (14) plots, it then became a

burden on the 1st Defendant to actually proof that

the fourteen (14) plots were part of his three hundred

and forty (340) plots. This he could have done by the

production of a counter-survey plan or a composite

plan. Such a composite plan would have easily

revealed the exact position of the three hundred and

forty (340) plots viz a viz the 14 plots, claimed by the

Claimant. He however failed to do this despite the

fact that he had a counter-claim before the Court."

Referring to the above findings of the Court respondent's

counsel submitted that, this findings of the learned trial

Judge was unassailable as same was born

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out of the evidence before it. Therefore this Court will not

recklessly disturb or interfere with the findings of fact of

the trial Court, which had the opportunity of listening to

the witnesses, and watching their demeanor except same is

perverse. This is not the position in this appeal.

Respondent's counsel, urged this honourable Court to

resolve issue 1 in favour of the 1st Respondent.

Issue 2 "whether the Appellant adduced sufficient and

cogent evidence in proof of his counter-claim before

the trial Court to entitle him to judgment."

On the second issue, Respondent's counsel adopted his

argument and submissions on issue No 1, and added the

following:

a. That the Appellant's evidence is full of contradictions

which are material, and warranted the dismissal of his

counter-claim by the trial Court.

b. In one breath the Appellant claimed that, the Olokun

family gave his company 340 plots of land.

c. In another breath, the Appellant testified that five of

them were given the said 340 plots of land, by the said

Olokun family.

d. Appellant claimed to have sold his own shared portion

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to individuals who subsequently surveyed their respective

portions of land.

e. In another breath, Appellant is claiming ownership of the

same piece of land which he had sold to other persons.

Consequently Appellant is not in exclusive possession of the

land, having purportedly put people in possession of same,

including the Ebira people, and at the same time divested

himself of the ownership of same.

Both the 1st Respondent and the Appellant rely on a

common root of title to the disputed land. 1st Respondent,

called the Secretary of the Olokun family of Ado-Ekiti, to

give evidence in support of his claim. 1st Respondent,

tendered the affidavit of sale of the disputed land in

evidence, and same was marked as Exhibit 3, by the trial

Court. Exhibit 3, was deposed to by both the head and

secretary of the said Olokun family. Appellant neither

called any principal member of the Olokun family to give

evidence in support of his counter-claim nor tender before

the trial Court any document evidencing transfer of the

land in dispute to him. It is trite law, that where both

parties in a land dispute rely on common root of title, any

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of the parties who show a better title to the land would

succeed. See ADESANYA v. OTUEWU (1993) 1 NWLR

(PT270) 414; AJIDE v. KELANI (1985)3 NWLR

(PT12)248; ALABI & ANOR v. Doherty & ORS (2007) 2

JNSC (PT 31)312 (2005)32 WRN 27.

The learned trial Judge was right when he held on pages

286-287 of the record:

"At the risk of repetition in an action for declaration

of title the onus of proof lies on the Claimant and he

must succeed on the strength of his own case and not

on the weakness of the defence except where the

Defendants case supports claimant's case. See

BANKOLE v. PELU (Supra). It is the duty of the

Claimant seeking the indulgence or discretion of the

trial Court for his declaratory relief to prove and

claim. This, in my opinion, the 1st Defendant counter-

claimant in the instant case had failed to do. This

issue is accordingly resolved against the 1st

Defendant/Counter-Claimant...........................the

counter-claim of the 1st Defendant is hereby

dismissed. "

Respondent's counsel submitted that, the aforesaid

decision of the learned trial judge represents the position of

the law in respect of this

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matter. It is borne out of evidence which this honourable

Court will not ordinarily disturb.

Finally, respondent's counsel urged this honourable Court

to resolve the second issue in favour of the 1st Respondent

The decision of the learned trial Judge was based on the

evidence adduced by both parties which his Lordship

properly evaluated. The 1st Defendant, showed a better

title to the land in dispute which is well known to both

parties. The Appellant has no interest in the disputed land,

having divested himself of ownership of same neither is he

in exclusive possession. He failed woefully to give cogent

and convincing evidence in support of his counter-claim.

The trial Court had no difficulty in granting the reliefs

sought by the 1st Respondent and dismissing the

Appellant's claim.

Respondent's counsel prayed this honourable Court to

dismiss appeal as same is lacking in merit.

The Appellant's counsel filed a Reply Brief, which in my

view was a complete re -argument of appellant's brief.

Parties are not allowed to have a second bite at the cherry.

Consequently I will discountenance the Reply Brief.

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Trespass to land is a wrongful entry into the land in actual

or constructive possession of another, Olaniyan v Fatoki

(2003) 13 NWLR (PT837) 273, 286. In effect, a person

who cannot prove that he is in possession cannot sue in

trespass,Akibu v Azeez (2003) 5 NWLR (PT.814)

634,670. That must be so for trespass is rooted or based

on exclusive possession or right to possession, Unakamba

v Nze (2002) 28 W.R.N.53,64. That is the rational for the

prescription that any unlawful interference with

possession, however slight, amounts to trespass, Oyebanji

v Fabiyi (2003) 12 NWLR (pt. 834) 271, 302, Dantsoho

v Mohammed (2003) 6NWLR (PT.817) 457, 488. Being

rooted in exclusive possession or that he has the right to

such possession of the land in dispute,Oyebanji v Fabiyi

(supra) 290: Amakor v Obiefuna (1974) NMLR 331.

Indeed, the tort of trespass is so inextricably, tied to

possession that in possession of land, even as a trespasser,

can sue another person who thereafter comes upon the

land. In other words, a person who has no title over a piece

of land but who is in possession, may successfully sue for

trespass if an entry is made into the land without his

consent.

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Olaniyan v Fatoki (supra) 286; Olowolagba v Bakare

(1998) 3 NWLR(PT.543)528. However, such a person

cannot proceed against the owner or someone who shows

some title which gives him a better right to be on the land,

Aromire v Awoyemi (1972) 2SC 182; Tumo v Murana

(2000) 12 NWLR (PT. 681) 370; Eze v Atasie (2000) 9

WRN 73,83.

In this case, the defendant/appellant/counter claimant

failed to pitch the averments in his pleading and oral

evidence at the trial into these constructive requirements

of the proof of a claim for trespass.

His claim was therefore bound to collapse. The trial Court

made crucial findings, that the Respondent proved his title

to the land. Whilst the Appellant failed to show any valid

title or indeed any form of title at all vested in him over the

said land in the face of the subsisting, valid title of the

Respondent over the said land. See Ngene v lgbo (2000)4

NWLR (pt651) 131@p.143. See also Fagunwa v Adibi

(2004)12 MJSC 1@p29. Thus once exclusive possession is

proved even the slightest disturbance with it by another

without a better title to the land would suffice to constitute

trespass to the land. Thus where two parties

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claim to be in possession of land in dispute, the law

ascribes possession to the party with the better title and

similarly where titles are being relied upon by rival

claimants, the party with a better title is entitled to

succeed. See Ayinde v Salawu (1989)3 NWLR (pt.297)

@p316, where the Supreme Court held inter alia thus:

"A trespass to land is an entry upon land or any direct

and immediate interference with the possession of

the land. The comprehensive way of describing a

trespass is to say that the Defendant broke and

entered the Plaintiff's close and damage".

The Court below found in its judgment rightly that it was

not in dispute that the Respondent and Appellant claimed

to have bought the land in dispute from the same vendor.

But that the 1st Respondent proved his title by credible

evidence. Even the Secretary of the vendor family testified

before the lower Court that the family sold the land to the

1st Respondent. I find the findings of the lower Court to be

unassailable and l see no reason why the decision of the

lower Court should be disturbed.

Consequently, this appeal lacks merit and it is hereby

dismissed.

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The judgment of the lower Court in Suit No: HAD/87/2010

is hereby affirmed.

Costs is assessed at N50, 000.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had been

privileged to read in advance, the judgment just delivered

by my learned brother F.O Akinbami, JCA and I agree that

the appeal is lacking in merit.

I dismissed the appeal and the judgment of the lower Court

in Suit No; HAD/87/2010 is hereby affirmed. A cost of

#50,000.00 is awarded to the Respondents.

Appeal dismissed.

PAUL OBI ELECHI, J.C.A.: I have had the benefit of

reading in draft the lead judgment of my learned brother

Fatima Omoro Akinbami, JCA just delivered.

I agree with his reasoning and conclusion that the Appeal is

devoid of merit and ought to be dismissed.

I therefore order accordingly and affirm the judgment of

the lower Court and abide by the consequential order

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made in the said judgment inclusive the order as to costs.

Appeal Dismissed.

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Appearances:

S. A. Aruleba, Esq. with him, C. A. Oduluyi, Esq.For Appellant(s)

Adedayo Adewumi, Esq. with him, OyebolaBabalola, Esq., Olawale Ajayi, Esq. for 1stRespondent.

Victor Ojetayo, Esq. for 2nd Respondent ForRespondent(s)

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