Anthony Idesoh & Anor V. Chief Paul Ordia & Ors (1997)

LAWGLOBAL HUB Lead Judgment Report

O. ADIO, J.S.C. 

The reliefs sought in the action instituted by the appellants against the respondents in the High Court of Justice of the defunct Bendel State of Nigeria, Warri Judicial Division, were as follows:-

“(1) As against the 1st, 3rd, 4th, 5th and 6th defendants jointly and severally the sum of N10,000.00 (ten thousand naira) damages for trespass in that between the month of August, 1969, and 31st March, 1971 without the plaintiffs’ consent first obtained they broke and entered plaintiff’s piece of land lying and situate on Udu Road in Kolokolo village and committed various acts of trespass within the jurisdiction of this Honourable Court.

(2) An order for perpetual injunction restraining the said defendants, their agents, servants, and privies from committing any further acts of trespass on the/plaintiffs’ piece of land aforesaid.

(3) As against the second defendant only an order for perpetual injunction restraining it, his (sic) servants and agents from entering plaintiff’s piece of land lying and situate on Udu Road in Kolokolo village near Enerhen village and/or committing any acts of trespass thereon.”

The evidence led by the appellants was that they were the owners of the land in dispute which they called Kolokolo land which was near Enerhen village. The 3rd to the 6th respondents claimed that the land in dispute belonged to them according to the respective portions owned by their respective families. The 1st respondent relied on separate grants he got from the families of the 3rd to 6th respondents in respect of the portions of the land in dispute which he said were made between 1966 and 1971. The 2nd respondent got an assignment of an unexpired lease of a parcel of land within the land in dispute. The appellant’s father, Chief Sam Warri Essi, in his claim to the land and following the 1st respondent’s activities thereon, seemed to have made efforts to assert ownership.

He claimed to represent Egborodje family of Igbudu; The appellants on the one hand and the 3rd to 6th respondents on the other hand pleaded and relied on traditional history and acts of ownership and possession to support the contention that the land in dispute belonged to them.

The learned trial Judge gave consideration to the evidence led by both parties and the submissions of their learned counsel. He entered judgment for the respondents. He rejected a document tendered by the appellants and held that the traditional evidence led by the appellants was unsatisfactory but that the traditional evidence adduced on behalf of the 3rd to 6th respondents was reasonably cogent enough to support their defence. In his view, as far as the appellants were concerned, there was no proof of any act of ownership. He held that the evidence in support of the respondent’s case on acts of ownership was numerous and positive enough to warrant the inference that they were the owners of the land in dispute.

Dissatisfied with the judgment of the learned trial Judge, the appellants lodged an appeal against it to the Court of Appeal. The court below dismissed the appeal and the appellants have lodged a further appeal to this court.

The parties, in accordance with the rules of this court filed and exchanged briefs. Two issues were raised in the appellants’ brief and one issue was set down in the respondents brief for determination. The two issues set down in the appellant’s brief for determination and the third, one formulated by me are reasonably sufficient for the determination of this appeal. They are as follows:-

“(1) Whether the Court of Appeal was right in rejecting the appellants complaint about the manner in which the learned trial Judge rejected a document offered by them in evidence.

(2) Whether the Court of Appeal could rightly hold that the appellants ” did not prove any acts of possession on the land in dispute.”

(3) Whether the appellants proved that they were entitled to the reliefs claimed by them.

The appellants claim was for damages for trespass and injunction. Trespass is an unlawful interference with land in the possession of another. See Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt.93) 215. What is, however, involved in the present case is far more than mere proof of possession of the land at the time that trespass was committed on it. Where a plaintiff claims damages for trespass land injunction and the defendant alleges that the land belongs to him, the plaintiff, in order to succeed, has to prove not only that he was in possession of the land when the trespass was committed on it but also that his own title to the land in dispute is better than that of the defendant. See Amakor v. Obiefuna (1974) 3 S.C 67. This is because, in the circumstance, title to the land in dispute is put in issue. See Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370.