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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
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
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
23
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
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
30
(201
8) LP
ELR-45
942(
CA)
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
31
(201
8) LP
ELR-45
942(
CA)
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
32
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
CA)
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
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
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
38
(201
8) LP
ELR-45
942(
CA)
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
(201
8) LP
ELR-45
942(
CA)
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
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
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
(201
8) LP
ELR-45
942(
CA)
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.
44
(201
8) LP
ELR-45
942(
CA)
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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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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