Atipioko Ekpan & Anor. V. Chief Agunu Uyo & Ors. (1986) LLJR-SC

Atipioko Ekpan & Anor. V. Chief Agunu Uyo & Ors. (1986)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

The main issue raised for determination in this appeal is as to the absence of any locus standi in the plaintiffs’/respondents’ to institute the proceedings in respect of which the judgment delivered in the High Court led in the first instance, to the appeal to the Court of Appeal, and now, in the second instance, a further appeal to this Court from the judgment of the Court of Appeal.

The claim before the High Court of Bendel State, Sapele, was a simple claim of damages for trespass and an order of perpetual injunction. More particularly, the endorsement on the writ of summons reads:

“The plaintiffs claim from the defendants jointly and severally as follows:

(a) N200.00 damages for trespass as a result of the defendants’ entry in February and March, 1975 into the plaintiffs’ land at Okweka village in Jesse clan within the Sapele Judicial Division to plant food and economic crops without the consent of the plaintiff. This land has been in the exclusive possession of the plaintiffs for centuries on end.

(b) An order of perpetual injunction to restrain the defendants and their agents from further acts of trespass on the land.”

(Italics mine)

But the pleading in the statement of claim complains of different acts of trespass as is disclosed in paragraphs 9, 10 and 12 of the amended statement of claim dated 15th day of December, 1978 which read;:

“9. The 2nd defendant came to the land for the first time in 1974 as a result of a marriage consideration between the 2nd defendant and 1 miroro, a daughter of Are who is a descendant of Arigbe of the plaintiffs’ family. Momo came in 1974 to ask for a small piece of land which the plaintiffs allowed him to plant cassava and yams only for that year because of his wife. The next year that is 1975 the plaintiffs refused to renew his request as the land was not enough for their own children. It was then Momo and his father, Atipioko, broke into the land to disturb plaintiffs and their tenants and started to lay claim to the farmland as belonging to him.

10. Sometime in 1975 the defendants entered the land to disturb the plaintiffs’ tenants Ezebue Ukavwe who is a son in law to the 2nd plaintiff, Anderson Ujobo/Odo. The defendants also uprooted cassava and yams planted in the same area surrounding the “Ezenoha” pond edged pink in the plaintiffs’ plan. The defendants entered the plaintiffs’ said farmland without the consent, knowledge and approval of the plaintiffs’ family.
11. The defendants have never before 1975 farmed anywhere on the plaintiffs’ land edged pink in the plaintiffs’ plan M/G 1685/75 prepared by the plaintiffs’ surveyor Me. G. A. Obianwu in suit No. S/23/75 between the same parties which was struck out on 29/11/76 because the plaintiffs did not appear in court on the date on which the case was fixed for mention:’

(Italics mine)

The facts pleaded in paragraph 12 are, in my view, not reconcilable but in direct contradiction to the facts pleaded in paragraph 9 of the statement of claim.

The area of land in dispute called Ezenoha is described in paragraphs 7 and 8 of the statement of claim “which read in part:

“7. The area edged pink in the plan which is the cause of the dispute in this suit is a pond called Ezenoha dug by Agbani Enadeji shown in the plan. Agbani Enadeji is a member of the plaintiffs’ family and he used Ezenoha as a fish pond. After Agbani’s death, his children have been using this large fish pond till today. The cotton tree at the edge of the pond was planted by Agbani Madojo.

8. The land in dispute has boundaries with Ugbovwe people’s land, Jesse – Igbinoba Road and Benin people’s land on the north. The land on the other side of the road is farmed by plaintiffs and Mossoger people.”

(Italics mine)

H The statement of claim could have been more elegantly drafted. Unlike the endorsement of claim on the writ of summons, the plaintiffs in paragraph 13 of their amended statement of claim set out their claim for trespass and injunction this time in a modified form as follows:

The plaintiffs therefore claim from the defendants the following reliefs:-

1. N200.00 damages for trespass arising from the defendants’ entry into the plaintiffs’ land without the plaintiffs consent, knowledge or approval sometimes in 1975.
2. An order of perpetual injunction to restrain the defendants from further acts of trespass on the plaintiffs plan No. MWC/2209/78 dated 24/11/78 filed with this amended statement of claim.” Although it is the law that a statement of claim supersedes the writ of summons, parties are not allowed to set up a totally different allegation in their statement of claim without amendment.

Whereas in the endorsement of claim in the writ of summons the allegation is that the defendants entered the plaintiffs’ land to plant food and economic crops, in the statement of claim paragraph to the complaint alleged is that the defendants entered the land to disturb their tenant Ezebue Ukavwe and proceeded to uproot from the land the cassava and yams planted by the tenant in the farm. However, the point was not taken before us.

The defendants’ Reply to paragraph 10 is a denial. This is contained in paragraphs 8 and 9 of the statement of defence. The relevant portion of paragraph 8 of the statement of defence reads:

“…1974. With particular reference to paragraph 10 of the amended statement of claim, the defendants deny the acts of trespass alleged. In further answer, the defendants say that the said Ezebue Ukavwe whom the plaintiff claim to be their tenant is a defendant in suit Number MS/55/75 between Mama Atipioko v. Ezebue Ukavwe which is an action for trespass to the farmland Ezenoha and its appurtenances. The 2nd defendant sued Ezebue Ukavwe before the Chief Magistrates’ Court, Sapele, when in or about February, 1975, the latter broke and entered 2nd defendant’s farmland, known and called “Ezenoha farmland” same as now claimed by the plaintiffs and inter alia, cut and uprooted growing crops, like plantain. cassava, cocoyams etc., belonging to and in the possession of the 2nd defendant. The present action is merely a retaliatory step by plaintiffs in aid of Ezebue and to divert defendant’s attention.”

In paragraph 9, the defendants pleaded in the alternative the failure of the amended statement of claim to disclose any reasonable cause of action and raised the issue of locus standi. It reads:

“In the alternative, the defendants say that by reason of the averment in the said paragraph 10 of the amended statement of claim, the plaintiffs have no cause of action in trespass, wherefore, they may at or before the trial raise this as preliminary point of law to dispose of the action.”

The evidence of P. W. 5, Ezebue Ukavwe and 2nd plaintiff, Anderson Ejobotodo, in my view, support the facts pleaded in paragraph 10 of the statement of claim and completely establishes the defendants’ objection raised in paragraph 9 of the statement of defence. The 2nd plaintiff testifying in chief on 25th October, 1979 said, inter alia:

“1 know P.W. 5. I know 2nd defendant. He married my first cousin called Miroro. Some time ago. 2nd defendant came to our family to ask for land. We gave it to him for that year. It was in Ezenoha land near the Okun. He was to plant yams and cassava. He did plant cassava and yams. It was about 5 years ago. Nothing happened again. He asked again but we did not give him. 1st defendant accompanied 2nd defendant when we gave him the land. We did so because he married our daughter. P. W. 5 is my father-in-law…Thereafter, he asked me for land to plant yams, cassava and cocoyam. I told him that the land was family land. 1 however took him to see our elder called Obarakpo and informed him. I requested for land for him to farm cassava, yams and cocoyams. Family met and agreed and sent two others to accompany me to give him the land. He paid 121- plus two bottles of gin. Hausa and Ovuakporai accompanied me. We showed him an area near Ezenoha-Okun-Atun. After he planted crops the 2nd defendant went and uprooted them. P.W. 5 reported to me. I went there to see things for myself. It was part of the farm…The land given to P. W. 5 did not contain any crops of 2nd defendant.

We claim injunction against the defendants and N200.00 for trespass. We did not permit defendants to enter the land to disturb P.W.5.”

(Italics mine)

P.W. 5 Ezebue Ukavwe (or Ezebue Ukavwe) also testified. In his testimony in chief on the 25th day of October, 1979 before Akpovi, J., he said, inter alia:

“When I wanted to farm, I approached 2nd plaintiff who told me that the land was communal. I then asked him to approach the family to give me farmland. A family meeting was conveyed to Obarokpa’s house who is head of the family. I went. He asked them and they agreed as I was an in-law. They asked for gin. I gave them 2 bottles of gin and 121-. They sent 2nd plaintiff and two others, Hausa and Ovuakporo to indicate the place to me. They told me the bush is Ezenoha where a lake is – Okun…

The site given to me is close to the lake. I farm there and planted yams. The 2nd defendant came to me after I had planted and told me the land belongs to him. He uprooted some cassava, yams and cocoyams. He then sued me to Magistrates Court, Sapele. ‘then went to report to my grantors.”

Under cross-examination, he said, inter alia:

“The matter was not first of all taken to Ogue- Edion. When Momo (2nd defendant) uprooted the crops, I quarrelled with him so he left the rest. We did not go to Ogue-Edion. , continued to farm at Okweka. I moved to other part of Ezenoha land. I harvested the old farm…It was the same Momo who uprooted my yams that I reported to 2nd plaintiff 2nd plaintiff then sued 2nd defendant Momo. I had no knowledge whether 2nd defendant farmed the land the previous year…2nd defendant sued me about 4 years ago. He sued me for uprooting his yams and cassava – falsely. I did not report Momo to police. The crops uprooted belong to me not 2nd plaintiff.”

(Italics mine)

The learned trial Judge, at the conclusion of the evidence, and addresses of counsel, delivered a considered judgment in which he dismissed the claim for damages for trespass but granted the order of injunction against the 2nd defendant.

Discussing the issue of locus standi or entitlement to sue the learned trial Judge, Akpovi, J. said:

“The plaintiff claims damages for trespass., This certainly arises from the unauthorised entry into the land where Ukavwe had his crops which were destroyed by the 2nd defendant. The situation which arises is who is entitled to maintain the action ….. The law is clear on the point that if is the person whose possession is affected who maintains the action except against the true owner, who may still have a right to sue if the reversion is permanently injured. See Christopher Okolo v. Eunice Uzoka (1978) 4 SC 77 at 87…The facts in the instant case are however clear in that it is Ukavwe’s crops that grounded the acts of trespass and that it is he who could sue. He appears to be in exclusive possession of his farm for the one year duration for which he was given the area to farm. The claim for trespass therefore fails.

The position of a grant of injunction against the 2nd defendant is however different. He does not only contend the possession of the plaintiffs, he has sued their tenant Elebue Ukavwe for what amounts to a direct challenge of the plaintiffs’ right and a serious threat to appropriating their land. An order of injunction will issue to stop this incessant approach and such order is attached to the plan Exhibit A, the area verged PINK.

(Italics mine).

Dissatisfied with the judgment, both the plaintiffs and the defendants appealed to the Court of Appeal. The Court of Appeal (Okaghue, Karibi-Whyte and Pepple, JJCA.) heard the appeal of the’ defendant, and the cross appeal of the plaintiffs. The Court of Appeal, Karibi-Whyte, J.S.C., dissenting, allowed the plaintiffs’ cross appeal and dismissed the defendants’ appeal. It then Set aside the decision of Akpoyi, J, in respect of the claim for damages for trespass awarded N200.00 damages for trespass and granted the order of injunction prayed for. Okagbue, JCA, allowed plaintiffs;appeal on the ground that in his own words:

“In the instant case what we have is in effect a licence and I do not think that can oust the possession of the owner.”

After disagreeing with Akpovi, J. that Ukavwe was in exclusive possession of his farm for the year he went on to comment

“Ukavwe’s crops might have grounded an action for conversion and perhaps trespass to goods but as he has not got exclusive possession Ukavwe could not bring an action in trespass to land and what was before the Court was an action in trespass to land.”

With the greratest respect to the learned justice of the Court of Appeal, his mind must have been operating on facts not before him or on the record. The facts before the Court on the record are that the plaintiffs’ family decided to and did give the land to Ukavwe for farming, that Ukavwe paid 121- and two bottles of gin in respect of the land, and that Ukavwe was.put into and took possession of the land and farmed, planted crops yams and cassava on it. There is no evidence of any rights reserved by the plaintiffs’ family during the period of grant. It is a misconception to regard damage for crops growing on land as not belonging to a claim for trespass to land. Quic quid plantatur solo, solo cedit.I find myself unable to accept that a tenant given a parcel of land and put in possession by a family to farm has no exclusive possession of the land for the duration of his grant.

The idea of giving out farmland in parcels and putting allottees or tenants in possession of their respect parcels is to give them exclusive possession to their respective parcels of land notwithstanding any easement that may be available. Without revocation of the grant, the use to which the land was put by consent, i.e. farming, cannot be disturbed without attracting liability in damages for trespass. The action filed by the plaintiffs/respondents by itself is eloquent testimony to the fact that no one is allowed to disturb the possession of land given to the tenant by the family. Also if a tenant’s possession is disturbed, our 1963 Constitution and the Constitution of the Federal Republic of Nigeria 1979 as the laws of the land give him a right to sue for redress.

It is noteworthy that the plaintiffs avoided or omitted to sue for a declaration of title which seems to be the appropriate claim they should have made since they were out of possession of the land trespassed on at the relevant time. The opinion of Okagbue, JCA, that Ukavwe’s crops might have grounded an action for conversion cannot, in the light of the evidence, be right. It is a misconception and misdirection to hold that to enter the land is trespass if to dig up the land and uproot the crops, – yams, cassava and cocoyams – growing on the land is not trespass to land but to goods.

Planting of crops on land is one of the most effective means of asserting possession of the parcel of land. The maxim is quic-quid plantatur solo, solo cedit. Whatever is fixed to the soil belongs to the soil. So long as the crops remain standing on the farm, the tenant, 5th P.W. is in exclusive possession.

Pepple, JCA., in concurrence with Okagbue, JCA., fell into the same error of holding that that clear evidence of possession gave 5th P.W. only a licence and both of them sought refuge in the Book Nigerian Land Law 4th Edition by Dr. T. O. Elias pp.157 to 160 where the learned author now the President of the International Court of Justice at the Hague dealt with loan of land for farming for short period and long term grants of land described as customary leases. I do not think that is a safe sanctuary for their opinion in the absence of any evidence of lesse customary law to that effect. The learned justice was of the view that since the issue of title was raised and it was resolved in favour of the plaintiffs/respondents, then it follows that possession of the land was in them because in law possession reside in the party who has a better title. I agree that where two persons claim possession at the same time that is the correct proposition of law as there is nothing like concurrent possession of land by two persons. If the party who has a better title has divested himself of possession in favour of a third party he has no possession which can be disturbed by mere entry and which will entitle him to sue for damages for trespass.

Pepple, JCA. crystallising his conception of the grant of land to Ezebue Ukavwe, 5th P.W., said in his judgment.

“The above transaction is obviously nothing more than a loan of land for temporary use for a season’s farming. It does not, in my opinion, invest in Ezebue Ukavwe exclusive possession of the area allowed to farm on. Possession still remains in the plaintiffs and trespass to that area is actionable at the suit of the plaintiffs.”

Karibi-Whyte, JCA, dissenting quite rightly, in my view, summed up the correct legal position when he said:

“In Okolo v. Uzoka (1978) 4 SC.77, plaintiff had sued defendants for damages for trespass and injunction. In the proceedings and in the pleadings, plaintiffs clearly indicated that the portion of the land in respect for which action was brought bad been demised to a third party who at the time of the trespass was in possession. The action was brought because of the damages done to the area held by the third party. It was clear from the action that the claim for damages for trespass was tied to the damage to the possession of the third party. It was held that only the third party in possession can sue for trespass.

The situation is quite similar in the appeal before us. Plaintiffs have parted with possession at least for one farming season, and put P.W.5 Ukavwe in occupation and who was in exclusive possession having been disturbed by 2nd defendant; plaintiffs have brought action for trespass, claiming damages and injunction. The claim for trespass would seem to me undoubtedly to be tied to the invasion of the possession of P.W.5. Plaintiff did not as much as include any other trespass however slight. See Nwosu v. Otunola (1974) 1 All NLR (Pt.1) p. 533. 1 do not think such a claim is actionable on behalf of the plaintiffs, who are in law not in exclusive possession of the farm in respect of which action for trespass has been brought and are in no legal relationship to bring the action.”

That was the voice of Karibi-Whyte, JCA, dissenting. That opinion was not the opinion of the Court of Appeal. As stated earlier on in this judgment, the opinion of the Court (represented by the majority opinion) was otherwise. This was not acceptable to the defendants. They were dissatisfied, so they appealed to this Court against the decision of the Court of Appeal. Three grounds of appeal were filed. As the grounds of appeal are prolix, I will not set them out in full but will reproduce them without all or some of their particulars for the purpose of this judgment. They read:

1. The learned Justices of the Court of Appeal (Okagbue and Pepple, JJCA.) erred in law or misdirected themselves in law in their majority (dissenting) judgment allowing the plaintiffs/respondents cross-appeal and dismissing the defendants/appellants’ appeal when they gave judgment for the plaintiffs/respondents in damages for trespass by an application of the principle of law enunciated in the case of Okorie & Ors. v. Udom & Ors. (1960) 5 FSC. 162 at 165 (per Okagbue JCA.) and Aromire & Ors. v. Awoyemi (1972) 1 All NLR 101 at 112 (per Pepple. JCA) to ascribe possession of the land in dispute or the pertinent portion thereof to the plaintiffs/respondents by virtue of the finding of fact made by the learned trial Judge that the plaintiffs/respondents are the true owners thereof when the said decisions and others besides to which reference was made in the said judgment were inapplicable to the facts of this case.

Particulars of Error

(i) ….

(ii) …

(iii) ….

(iv)….

(v) There was a point of law raised by the defence of the defendants/appellants challenging the legal competence of the plaintiffs/respondents to bring the action which point called for resolution before an issue can arise as to the alternative defence of the defendants/appellants alleging possession and title in themselves.

2. The learned justices of the Federal Court of Appeal erred in law in their majority (dissenting) judgment aforesaid by finding for the plaintiffs/respondents on the specific issue of possession of the land or the disputed portion thereof on a postulation of law or customary law without the benefit of evidence establishing same when they held as follows:

Per Okagbue, JCA. “In the instant case what we have is in effect a licence and I do not think that that can oust the possession of the owner” ” I therefore agree with Chief Grorho that the community or family have always been in possession of their land subject to a temporary licence given to all allottees to use the land for farming purposes “Per Pepple, JCA.” The above transaction is obviously nothing more than a loan of land for temporary use for a season’s farming possession still remains in the plaintiffs and trespass to that area of land is actionable at the suit of the plaintiffs.”

Particulars of Error

(a) ….

(b) The plaintiffs/respondents in their pleadings called 5th P.W. a tenant, it was he who was disturbed on the land in dispute and the evidence of plaintiffs/respondents viz a viz 5th P.W. was intended to and did establish the alleged tenancy which was for a consideration; but no evidence of any terms or conditions of the said tenancy was alleged or given in evidence besides its duration;

(c) There was evidence from the 5th P. W. under cross examination that his presence in the said area of farming was not casual or transitory as he still farms on the land but a different portion of it.

(d) …..

(e) …..

3. The learned justices of the Federal Court of Appeal erred in law in their majority (dissenting) judgment not only dismissing the appeal against the order of injunction made by the Court below against the 2nd defendant/appellant but also in substituting therefore an order of their own by holding that such an order followed as a matter of course.

Particulars of Error

(i) Like the court below, there was no material before the Court of Appeal on which to base the said order of injunction; a fortiori, it was not proved in support of the relief by way of injunction that acts of trespass are being continued or that the 2nd defendant/appellant threatened to commit further acts of trespass

(ii) ….

(iii) The evidence of the 5th P.W. was that there was only an isolated act of trespass in 1975 involving an entry on the land to uproot or destroy his 5th P.W.’s farm crops otherwise he, 5th P.W.’s nevertheless farmed the land to completion and still farms in other parts of it without hindrance.”

I will briefly, before continuing this judgment, make two points of observation.

(1) Grounds of appeal need to be drawn up with the greatest legal skill, accuracy, elegance, and expertise a solicitor instructed can muster. It is a misrepresentation of the true position of the law to describe the majority judgment of the Court of appeal as a dissenting judgment as the solicitor to the Appellants has done in the notice of appeal filed. See section 258(3) Constitution of the Federal Republic 1979. The fatalistic effect of such description was however avoided by the fact that it was indicated that it was the judgment of majority against which the appeal was lodged. Under the Constitution of the Federal Republic of Nigeria 1979 Section 258(3) the majority judgment is the judgment of the Court and the minority judgment the dissenting judgment is not the judgment of the Court. See Ige v. Olunloyo and Ors. (1984) 1 SC. NLR 158.

(2) The format for the briefs of arguments which the appellants and the respondents are enjoined to file should follow the guidelines laid down in the Supreme Court Rules 1985 particularly Order 6 Rule 5(1).

The Rules of Court made to regulate the practice and procedure in the Supreme Court and indeed Rules made for the regulation of practice and procedure in the various courts in Nigeria have not been made for or to lie only in the statute books. They are made for the benefit of courts on the one hand and the legal practitioners and litigants in our courts on the other hand being guidelines for steps to be taken in any proceeding they must be followed.

The briefs of arguments filed by both the appellants and the respondents contain and show no evidence of any knowledge of the 1985 Supreme court Rules Order 6 Rule 5(1) relating to the filing of briefs of argument in this appeal. I hope that in future counsel will pay more attention to the requirement of the Rules.

As stated in the opening paragraphs of this judgment, the main issue or question for determination in this appeal is whether the plaintiffs had any locus standi to institute the action claiming damages for trespass and an order of injunction against the defendants/appellants;

The other subsidiary questions are:

(ii) whether the plaintiffs/respondents have proved and established a case of trespass against the defendants/appellants; and

(iii) whether the plaintiffs/respondents were entitled to be granted an order of injunction against the defendants/respondents on the pleadings and evidence.

Locus Standi:

On the issue of locus standi, Dr. Enemeri, learned counsel for the appellant submitted that both on the pleadings and the evidence the plaintiffs/respondents have no locus standi to bring the action for trespass against the appellants. He submitted, and quite correctly, in my view that only a person in possession and a person entitled to possession can sue in trespass if his possession is disturbed but that a person not in possession although entitled to the reversion on the expiration of a tenancy or lease cannot claim for the disturbance of his tenant’s possession in trespass. Dr. Enemeri further submitted that since the plaintiffs/respondents were not in possession of the land in dispute they have no locus standi to sue in trespass.

Chief Ororho, learned counsel for the plaintiffs/respondents contended on the other hand that the plaintiffs granted only a licence to the 5th P.W. Ezebue Ukavwe to farm on their land. They, he contended, did not part with possession to the 5th P. W. Ezebue Ukavwe and that since it was only a licence or permission to farm that was granted the plaintiffs/respondents had locus standi and were entitled to take action against anyone who enters the land and disturb their licensee without consent.

I am unable to accept the contention of learned counsel for plaintiffs/respondents. The evidence of the 5th P.W. and the 2nd plaintiff on the issue of grant of the farmland to the 5th P.W. cannot bear the meaning the learned justices (Okagbue and Pepple, JJCA) attached to it. Firstly, it should be observed and noted that land required for farming is meant for growing crops. The crops to be planted whether yam seedling, maize seeds or cassava cuttings have to be planted in the soil. They take time to germinate, to grow, to mature and to be harvested. In the con of the case, only the crops belonging to the 5th P.W.

Ezebue Ukavwe have to be grown on the farm land granted to the 5th P.W. for the duration of the grant no matter how short it is. There is no evidence that the plaintiffs or any of them can also plant their crops on the same piece of land given to the 5th P.W. at the same time as he growing his crops on it. It is therefore clear that the grant to him cannot give him anything less than exclusive possession of the area granted to him for farming to enable him protect the land and crops from any trespasser.

Whatever easements there are (and there is no evidence) which the landlords may enjoy do not, in my view, derogate from the grant of exclusive possession for farming purposes. If the concept of grant of possession is detached from the concept of allotment of parcels of family land among members of the family for farming, the purpose of allotment is totally defeated. I fail to see the rationale for embarking on the exercise of allotment if the intention were not to confer rights of possession or exclusive use of the parcel alloted on the allottee notwithstanding that the reversion is in the family. In the instant appeal, the evidence of 2nd plaintiff which reads

“…I requested for land for him to farm cassava, yams and cocoyams. Family met and agreed and sent two others to accompany me to give him the land. He paid 121- plus two bottles of gin. Hausa and Ovuakporai accompanied me. We showed him an area near Ezenoha-Okun-Atun.”

clearly established that land was requested, land was given and 5th P.W., put in possession by 2nd plaintiff and 2 others on the instruction of the family.

The learned trial Judge was therefore perfectly justified in his finding that the 5th P.W. was in exclusive possession. If it was the case that under Jesse custom the 5th P.W. was not in exclusive possession but the family was despite the grant, it was the duty of plaintiffs/respondents to plead the custom and establish it by evidence for it is the law that custom and customary law is a question of fact to be pleaded and proved by evidence unless firmly established in judicial decisions of the superior court of records. See Taylor, FJ. in Giwa Abiodun v. Erinmilokun (1961) 1 All NLR. 294 at 296

See Section 14(1) Evidence Act and See Aderonmu Okiji & Anor. v. Adejobi (Bale) & 5 Ors. (1976) 5 FSC. 44 at 48.

This they have not done. There was therefore no basis whatsoever for disturbing the findings of fact made by the learned trial Judge that the 5th P.W. was in exclusive possession and was the person whose possession was disturbed and the Court of Appeal erred in so doing. Since the plaintiffs/respondents had parted with possession of the land to the 5th P.W. for farming and since the Crops damaged on the land were the crops of the 5th P. W., the plaintiffs/respondents had no locus standi to institute this action for damages for trespass and injunction. Their interests did not suffer any damage and they cannot, under our law, claim damages for the disturbance of the possession of their tenant which did not damage the reversion.

See Christopher Okolo v. Eunice Uzoka (1978) 4 SC. 77 at 87.

The question as to the civil rights and obligations of the plaintiffs/respondents did not arise for determination so they have no locus standi.

See Dr. Irene Thomas v. Archbishop Olufosoye & Ors. (1986) 1 NWLR (Pt.19) 669.

The appeal succeeds on ground 1 of the grounds of appeal.

The second issue is whether the plaintiffs/respondents established or proved a case of trespass to their land. The learned trial Judge and the Court of Appeal were justified in holding that the issue of title was raised on the pleadings and the evidence. The issue raised was who owns the land Although raised. it was not an issue necessary for the determination of the issue whether the plaintiffs were in possession. The plaintiffs/respondents pleaded ownership in their statement of claim. They did not plead that they were in possession. The defendants/appellants raised the issue of possession and also claimed ownership. The plaintiffs/respondents pleaded that they had a tenant whose possession of the land was disturbed. But as there was no claim for a declaration of title by the plaintiffs/respondents before the Court, all that the evidence led by the plaintiffs/respondents before the Court all that the evidence led by the plaintiffs/respondents did was to establish their title which enabled them grant the land (Ezenoha area) in dispute to the 5th P. W. for farming. The learned trial Judge found as a fact that the (Ezenoha) land in dispute is at the centre of a large parcel of land owned by the plaintiffs/respondents and that it was granted to 5th P.W. for farming. The fact that entry to (Ezenoha) the land in dispute cannot be made without first entering and traversing the other lands of the plaintiffs/respondents brought the intention of the plaintiffs/respondents to confine their claim to Ezenoha farm area in possession of 5th P.W. into sharp focus. This was further amplified and emphasised by the 2nd plaintiff when in his testimony before the learned trial Judge, he said:

“After he planted crops 2nd defendant went and uprooted them.

P. W. 5 reported to me and I went there to see things for myself …………… The land given to P. W. 5 did not contain any crops of 2nd defendant.

We claim injunction against the defendants and N200.00 for trespass. We did not, not permit defendants to enter the land and disturb 5th P. W. ”

(Italics mine)

It should be observed that the disturbance was a passing phase on a solitary occasion for it did not continue and it did not drive the 5th P.W. from the land or make him give up farming on the land. This was graphically brought out in parts of 5th P.W. ‘s testimony under cross-examination before the learned trial Judge which reads:

“The 2nd defendant came to me after I had planted and told me the land belongs to him. He uprooted some cassava, yams and cocoyams. He then sued me to Magistrates Court, Sapele. I then went to report to my grantors When Mama uprooted my crops, I quarelled with him so he left. We did not go to Ogua-Edion. I continue to farm at Okweka….I harvested the old farm ….

The crops uprooted belong to me not 2nd plaintiff.”

(Italics mine)

It is the duty of the plaintiff to prove conclusively that they were in exclusive possession of the area in dispute before the alleged trespass.

See Silas Okoye v. Chief Agogbua Kpajie & Ors. (1972) 6 SC. 176.

In order to succeed in an action of trespass to land, plaintiff must prove and have present exclusive possessory title i.e. he must be in exclusive occupation. See Wuta Ofei v. Danguel (1961) 1 WLR 1238; Amakor v. Obiefuna (1974) 1 All NLR (Pt. 1) 119.

What is possession of a parcel of land What does possession of a parcel of land mean Possession of a parcel of land means the occupation or physical control of the land either personally or through an agent or servant. Mogaji & Ors. v. Cadbury Fry (Export) Ltd. (1972) 2 Sc. 97 at p. 104 (1972) 1 All NLR (Pt.1) 81 at 88.

A trespasser does not by the act of trespass secure possession of the land in law, Jimoh Adebakin v. Sabitiu Odujebe (IY72) 6 Sc. 208 at 210.

In Mogaji & Ors v. Cadbury Fry (Export) Ltd. (supra) at p. 88, Madarikan, JSC, delivering the judgment of the Supreme Court said:

“Possession of a parcel of land means the occupation or physical control of the land either personally or through an agent. As stated by Lord Fitzgerald in Lord Advocate v. Young (1887) 12 App. Cas. 544 at p. 556, by possession is meant possession of that character of which the thing possessed is capable. Thus, if a person adduced evidence that he or his agent or servant were cultivating a farmland that would be evidence sufficient to establish that he was in possession of the land. Similarly, if a person erects on a parcel of land a signboard bearing his name, he hereby gives notice to all and sundry that he is in possession of the land.”

In Mayfair Property Company v. Johnston (1894) 1 Ch 508. It was held that where there was injury of a permanent nature to the land in dispute, reversioner would be granted an injunction although the tenant in possession made no complaint.

From the above authorities, it is my opinion that the 5th P.W. Ezebue Ukavwe was in possession of the land and there being no evidence of injury of a permanent nature to the land in dispute, the plaintiffs are not entitled to a grant of an order of injunction. Where a plaintiff fails to prove possession or a better right to possession, his claim must fail.

K. Nwosu v. J. Otunola (1974) 1 All NLR (Pt. 1) 533

The case of Kola v. Uzoka (supra) is very much in point in this case.

Although in Mounslow London Borough council v. Troikenham Garden Dev. Ltd. (1970) 3 All ER. 326, Megarry, J. has suggested that in recent years that a person who has more than a mere licence may yet have possession of land, I have no doubt in my mind it is possession of land and not just more than a mere licence that was given to a person Who is given a parcel of land for farming after payment of customary consideration. P.W. 5 had the exclusive power of using the rights given him to farm on the land. No other person had the right to farm on the land given to him. He was in occupation or physical control of the land. He had the exclusive power of using the land for farming for the period. What does exclusive occupation mean I will adopt the definition given by Scrutton, L J. in Back v. Daniels (1925) 1 KB.525 CA at p. 543. There he said:

“I agree…that exclusive occupation does not mean the power of excluding one else from the land but does mean the exclusive power of using the rights given him in the soil.”

The exclusive occupation by the 5th P.W. does not mean the power of excluding everyone else from the land but does mean the exclusive power of using the rights of farming given him in the soil. The appeal also succeeds on ground 2.

The final question posed by the grounds of appeal is whether in the, the circumstances of this case the plaintiffs/respondents are entitled to a grant of an order of injunction. There was no injury of a permanent nature to the land which would have entitled the plaintiffs to this equitable relief to preserve the reversion. The damage was to the crops planted by the 5th P.W. Ezebue Ukavwe.

Learned Counsel for the respondents relied on Ayeni Oluwi v. Daniel Eniola (1967) NMLR 339; Alhaji J. Aromire v. J. J. Awoyemi (1972) 1 All NLR. 101 and Pius Amakor v. Bennedict Obiefuna (1974) 3 SC. 67 at 78 to support his contention that the finding of possession in favour of the plaintiffs/respondents followed the declaration of the respondents as owners. This is not the correct statement of the law in the light of the evidence and the authorities cited proved the contrary. The claim for trespass is not dependent on the claim for declaration of title.

In George Ayeni Oluwi v. Daniel Eniola (supra) the Appellant was the plaintiff in the court below and he sued the defendant/respondent for a declaration of title to a piece of land, 100pounds being damages for trespass and injunction to restrain the defendant. The plaintiffs action was dismissed by the lower court because the area of land which the plaintiff alleged was granted to him was not sufficiently established by evidence.

On appeal to the Supreme Court, counsel for the appellant, while conceding that the claim for declaration of title was rightly rejected, argued that sufficient evidence of the possession of the plaintiff had been adduced to warrant a finding for him on his claim for damages since that was a separate issue.

The Supreme Court held (1) the claim for trespass is not dependent on the claim for declaration of title as the issue to be determined on the claim for trespass was whether the plaintiff had established his actual possession of the land and the defendants trespass on it which are quite separate and independent issues to that on his claim for a declaration of title.

Lewis, JSC. at p. 340 of the report 1967 NMLR, said, and I agree with him:

“The learned trial Judge after dealing at some length with the claim for a declaration of title turned towards the end of judgment to the issue of trespass and said:

‘With regard to the claim for damages for trespass, I must say there is no clear proof of possession on the plaintiffs’ part. There must be sufficient possession to maintain trespass. As Best, CJ. stated in Reveth v. Brown (1828) 5 Bing Reports 7 “Possession alone is indeed sufficient to sue in trespass but it must be clear and exclusive possession.’

In our judgment the learned trial Judge rightly appreciated that the claim for trespass here was independent of the claim for a declaration of title and rightly appreciated that the success of the claim must first turn on whether the plaintiff had proved his possession of the land in issue and the learned trial Judge found he had not.”

(Italics mine)

In the instant appeal, Akpovi, J. rightly treated the issue of trespass independently and found that the plaintiffs/respondents failed to prove their possession of the land. Indeed, he found that they did not have possession of the land in dispute at the material time.

In the case Alhaji J. Aromire and 2 Ors. v. J. J. Awoyemi (supra) the plaintiff/respondent claimed 500pounds special and general damages for trespass, recovery of possession, and an injunction restraining the defendants, his servants and or agents from committing further acts of trespass on all that piece or parcel of land situate at Oniwala Court, Awoyemi compound, Lagos. The defendant, Alhaji Jubrilla Aromire filed a counter affidavit in which he stated, inter alia, that he was only an agent for one Alhaji Elias who claimed to have owned the said land which he had sold to one O. J. Mazelli. Later O.J. Mazelli and Alhaji Elias were joined as the 2nd and 3rd defendants respectively. On their own motion, Joshua Faji, Buraimoh Awoyemi and Mutairu Salu were joined as 4th, 5th and 6th defendants respectively and were all defendants/respondents. George, J. gave judgment in favour of the plaintiff with costs against the appellants awarding damages against the 1st appellant and dismissed the defendants/respondents from the action.

The appellants complained that the learned Judge misconceived the point of the entire proceedings since it was not established that the plaintiff had a superior title to that of the 3rd appellant who also claimed to have bought the land and to have always been in possession of the land and that therefore he could rightfully maintain an action for damages for trespass against the 3rd defendant whose title was not superior to his own.

Coker, JSC delivering the judgment of the Court said at p. 108 that the learned trial Judge was faced with the problem of locus standi as they, 4th, 5th, and 6th defendants/respondents were not parties to the case originally and the plaintiffs had no cause of action against them and had not sued them for anything. The Supreme Court dismissed them from the appeal and went on to make the memorable legally loaded statement that

“claim in trespass pre-supposes that the plaintiff is in possession of the land at the time of the trespass.”

Conversely, a plaintiff who cannot prove that he was in possession of the land at the time of the trespass must of necessity fail in the action. The learned Justice went on to say that:

“A trespasser cannot claim to be in possession by mere act of entry and clearly a plaintiff in lawful possession still remains in possession despite a purported eviction by a trespasser. ”

In the instant appeal, the 5th P.W. was in possession of the land in dispute, he remained in possession and was not even evicted. According to the evidence, he quarrelled with the 2nd appellant for entering his farm and uprooting his cassava and yams and the 2nd appellant left. He maintained his farm to harvest time and harvested his crops. It is unrealistic for the plaintiffs/respondents to claim to be in possession. – In the issue of competing possession, Coker, JSC. continuing the judgment in Aromire v. Awoyemi said at p. 112:

“It is of course settled law that where two parties claim to be in possession of land, the law ascribes possession to the one with a better title (see Jones v. Chapman (1848) 2 Ex Ch 803. Convey Island Commissioner v. Preedy (1922)1 Ch 179). In a similar case, this court directed as follows:

‘We are in no doubt that on the pleadings, the case of the plaintiff postulates that she had a better title to the land than the defendant who admittedly was at the time of the institution of the proceedings, rightly or wrongly in possession of the land the learned trial Judge rejected the defendant’s case and passed severe strictures on the defendants’ witnesses and their conduct; but with respect, a consideration of the defendants’ case and the weakness of it did not arise until the plaintiff had led evidence showing, prima facie that she had a title to the land. She had failed to do this and it is inconceivable that she should be allowed to succeed on her claim when as indeed it is the defendant who is in possession and maintains be is entitled to remain. If it be alleged that someone in possession of land is a trespasser the person so alleging has the onus of showing that he had a better right to the possession which was disturbed and unless that onus is discharged the person so alleging cannot defeat the rival party. Such is the case here and we are of the view that the plaintiffs’ case had failed and it should have been dismissed.” (See Godwin Egwuh v. Duro Ogunkehin SC.529/66 decided on the 28th February, 1969).”

In the instant appeal, it is manifest on the pleadings and the evidence that it was not the plaintiffs’ possession of the land that was disturbed neither was it his right to the possession of the land at the point of time in issue that was disturbed. It was the 5th P.W.’s possession or right to possession of the land that was disturbed. The facts in the cases cited are all even at variance with the facts of the instant appeal. The issue of the disturbance of the tenant’s possession of the land did not arise in those cases cited.

The last case of Pius Amakor v. Bennedict Obiefuna (supra) does not help the respondents either. In the case, the plaintiff/appellant sued for 1000.00pounds damages, special and general damages for trespass to land and an injunction to restrain the defendants from further trespass. Both parties pleaded that they were put in possession of the land by the Ojora Chieftaincy family. The Supreme Court held when the matter came before it that trespass to land is actionable at the suit of the person in possession and that person can sue even if he is neither the owner nor the privy of the owner. This authority further emphasises the position of the 5th P.W. Ezebue Ukavwe in the instant appeal as the right person to sue in trespass. It did not postulate that where a tenant is in possession; the landlord can sue. Fatayi-Williams, JSC. (as he then was) said at page 126:

“It is trite law that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except a person who could establish a better title. Therefore anyone other than the true owner who disturbs his possession of the land can be sued in trespass and in such an action it is no answer for a defendant to show (as the defendant/respondent had sought to show in paragraph 7 of his statement of defence although he gave no evidence in support of his averment) that the title to the land is in another person.”

It is therefore clear to me that the respondents had no possession which was disturbed by the appellants at the material time to enable them to institute the action for damages for trespass to the land and an order of injunction. The order of injunction as well as the damages awarded was not justified by the evidence.

On the authority of Okolo v. Uzoka (supra) it is Ezebue Ukavwe and not the respondents who has locus standi to institute the action. Karibi Whyte, JCA, was right in his assessment of the facts and the law. The appeal succeeds and I hereby allow it.

The decision of the Court of Appeal is hereby set aside and in instead, the decision of the High Court dismissing the claim for damages is restored.

The claim for damages, trespass having been dismissed and since the respondents had no locus standi to commence the proceedings, the claim for injunction is also dismissed and this shall be judgment of the Court.

The appellants will have costs for this appeal in this court fixed at N300.00 and in the Court of Appeal fixed at N250.00.

Other Citation: (1986) LCN/2275(SC)