Jerome Adisa Enilolobo V. Zacheus Adebajo Adegbesan (2000)
LawGlobal-Hub Lead Judgment Report
ADEREMI, J.C.A.
The defendant (hereinafter referred to as the appellant) appealed against the judgment of the court below (coram Olorunnimbe J.) in suit No.ID/429/83 which was delivered on 23rd June, 1989. In the suit, the plaintiff (hereinafter referred to as the respondent/cross-appellant) had claimed the following reliefs:
(a) The sum of N20,000.00 being special and general damages for trespass committed by the defendant by himself and his agents on or about the 28th of December, 1981 when they wrongfully broke and entered on the plaintiff’s land at Alhaji Adebambo Street, Dopemu, Agege and caused substantial part of the plaintiff’s house on the said land to be demolished.
(b) An injunction restraining the defendant his servants and privies from any further trespass on the plaintiff’s aforesaid land or in any way disturbing or interfering with the plaintiff’s peaceful possession and enjoyment thereof.
Both parties, with the leave of the court, filed and exchanged amended pleadings. At the conclusion of evidence and upon taking the addresses of counsel, the learned trial Judge, in a reserved judgment found for the plaintiff/respondent. In the concluding part of the judgment he said inter alia:
“I accept the evidence of the plaintiff that he was in possession and that the defendant unlawfully went on his land in dispute and thereby disturbed his possession. A slight interference is sufficient to prove trespass. Indeed, the defendant admitted this much.
I found him liable…
From the facts and circumstances of this case, I shall award damages in the sum of N1,000.00 to the plaintiff…
I therefore grant an order of perpetual injunction restraining the defendant by his servants, agents and privies from committing, further acts of trespass on the plaintiff’s property situate, lying and being at Alhaji Adebambo Street, Magbon Area, Dopemu, Agege which is delineated in the survey plan attached to the Deed of Conveyance dated 29th December, 1973 and registered as No. 97 at page 97 on Volume 1442 of the Register of Deeds kept at Lagos Land Registry.”
Being dissatisfied with the said decision, the defendant entered two notices of appeal dated 11th July, 1989 and 24th July, 1989 respectively. He however, abandoned the notice of appeal dated 11th July, 1989. Distilled from the three grounds of appeal incorporated into the notice of appeal dated 24th July, 1989 are three issues which, as set out in the appellant’s brief of argument are:
(a) Whether considering the evidence of the parties and the finding of the learned trial Judge that the plaintiff failed to discharge the burden of proof as to the pleaded trespass against the defendant, the case of the plaintiff ought not to have been dismissed and that the non-dismissal has occasioned miscarriage of justice.
(b) Whether the defendant whose possession of the disputed land was prior in time to that of the plaintiff can be accused of trespass without a proper finding by the learned trial Judge as to which of the two rival claimants to possession (plaintiff or defendant) has a better title to the land in dispute.
(c) Whether on the totality of the evidence adduced by the parties the weight of the imaginary scale in Mogaji v. Odofin (1978) 4 SC 91 tilts in favour of the plaintiff.
The plaintiff also cross-appealed against the decision as to award of special damages. He incorporated into the Notice of cross-appeal three grounds of appeal. He identified three issues as arising for determination in both the appeal and cross-appeal: they are:
(1) Whether the learned trial Judge was on the issue of liability wrong in finding the defendant liable having regards to the pleadings and the totality of the evidence before the court.
(2) Whether the learned trial Judge was right in refusing the claim of the plaintiff to special damages having regards to the pleading and the evidence before him.
(3) Whether a party adjudged a trespasser who has paid the damages awarded and costs is entitled to an order of stay of execution of the consequential order of injunction restraining him from further trespass.
Issues a, b and c formulated in the appellant’s brief of argument and issue 1 raised in the cross-appellant’s brief can be conveniently taken together and I shall so do. I shall, however take issues 2 and 3 on the cross-appellant’s brief seriatim.
When this appeal came before us on the 30th of may, 2000, Mr. Fagbaji learned counsel for the appellant, adopted the appellant’s brief filed on 28/8/95 and the reply brief filed on 13/11/95 and urged that the appeal be allowed and the cross-appeal be dismissed. Chief Adegunle, learned counsel for the respondent/cross-appellant adopted the respondent/cross-appellant’s brief filed on 31/10/95 and urged that the appeal be dismissed while the cross-appeal be allowed.
As stated above, the plaintiff’s case is rooted in trespass. The law as settled by judicial authorities is that trespass is actionable at the suit of the person in possession of the land at the time of trespass and a trespasser cannot claim to be in possession by the mere act of entry. Therefore, a plaintiff in lawful possession at the time of the alleged trespass still remains in lawful possession despite a purported eviction by the trespasser. See Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421) 515 and Ekpan & An v. Uyo & An (1986) 3 NWLR(Pt. 26) 63. Again, I wish to say that where in an action for damages for trespass both parties claim the right to possession by virtue of their respective titles, as in the instant case, the trial Judge should resolve the issue of their competing titles, for the law ascribes possession to the one of them with better title and the law does not allow concurrent possession of the same parcel of land by two persons who claim adversely to each other.
As said, possession resides in the person with better title see (1) Amakor v. Obiefuna (1974) 3 SC 67 (2) Aromire & Ors. v. Awoyemi (1972) 1 ALL NLR. (Pt.1) 101, both the appellant and the respondent rely on deeds of conveyance in support of their respective claim to title to the land. The arms to prove the due execution of the deeds of conveyance rests on each of the appellant and the respondent as regards the deed of conveyance put forward by each side. Due execution of a deed of conveyance, a document of title, must be proved by evidence, unless that deed of conveyance is produced in circumstances giving rise to the presumption in favour of its due execution in that its execution is shown to be twenty years old or more at the date of the contract See (1) Johnson v. Lawanson (1971) 1 ALL NLR 56 (2) Cardoso v. Daniel (1966) 1 ALL NLR (Pt.1) 101 (1986)) 2 NWLR (Pt.20) 1; (3) Obawole v. Williams (1996) 10 NWLR (Pt.477) 146 and (4) section 130 of the evidence Act. The guideline for the presumption in favour of its due execution as given by the Supreme Court in Atunrase & Ors. v. Phillips 7 Ors. (1996) 1 NWLR (pt.427) 637 (1996) 1 SCNJ 145 when the apex court said:
“A deed to be competent for the presumption contemplated by section 129 (now section 130) of the Evidence Act, must be 20 years old at the date of the contract in which the deed is sought to be relied upon and not 20 years old at the date of the proceedings at which such deed is being offered in evidence.
The deed containing the recitals in respect of which the presumption under section 130 is being sought is different from the contract which must come into being at least 20 years after the deed.” Perhaps I should further say that the guiding principles on proof of title by document of title are well adumberated by the Supreme Court in Promaine v. Romaine SCNJ 25 (1992) 4 NWLR (Pt. 238) 650 where at page 36 it said that the production and reliance on an instrument of grant of title inevitably carries with it the need for the court to inquire into some of all of a number of questions, including:
(1) whether the document is genuine and valid.
(2) whether it has been duly executed stamped and registered.
(3) whether the grantor had the authority and capacity to make the grant.
(4) whether in fact the grantor had in fact what he purported to grant; and
(5) whether it has the effect claimed by the holder of the instrument. In effect, mere production of a valid title of grant does not necessarily carry with it automatic grant, of the relief of declaration relating to such grant unless the factors adumberated above are taken into consideration. I have looked at the deeds of conveyance tendered none of them, from the decided authorities, qualifies for presumption of due execution and no shred of evidence was adduced in the proof of their due execution. But, does the non proof of due execution of the document of title relied upon automatically put an end to this case? My answer is No. The action, I repeat, is for damages for trespass and injunction. It is a settled principle of law that a claim in trespass is never dependent on the claim for declaration of title. This is so because in a claim for trespass the issue to be resolved is whether the plaintiff has established actual possession of the land by him and that the defendant has committed trespass thereon. It follows therefore that the fact that a claim for declaration of title fails does not ipso facto mean that a claim for trespass and injunction must also fail. See (1) Kareem v. Ogunde (1972) 1 ALL NLR (Pt.1) 73, (2) Oluwi v. Eniola (1967) NMLR 339 and Ajero v. Ugorji (1999) 10 NWLR (Pt.621).
- The plaintiff giving evidence said:
“The land belongs to me. In 1982, the land had been developed to decking level. I purchased the land from the accredited representative of Selia Sangonke family of Magbon Area Agege, I have an approved building plan by the Town Planning Authority… In 1981 December, the defendant caused photocopy of a letter from a lawyer to be posted on my building. Between 28 December, 1981 and 17 January, 1982, the defendant broke and entered my land and caused nearly the whole of area of that land to be demolished. I noticed the demolition on 17.1.82 .
On the 20th January, 1982 the defendant was arrested by the police when he was trying to build a fence across the area that he had demolished. I am claiming from the defendant because he had damaged my property and to recover the land back. It cost me N 15,650.00 which is made up as follows: 6000 9ins. Blocks at 90k each that N5,400.00, 600 bags of cement at N6.50 that it N3,250.00, and gravel that is N1,500. Planks that cost N500.00 labour cost N15,650.00… I am making another claim for shock, distress and mental anguish which is N4,350.00”
Cross-examined on the evidence he gave in chief the plaintiff said:
“I did not see the defendant physically destroying my building but I saw his letter.”
In his defence, the defendant/appellant said under examination-in-chief:-
“The plaintiff has a plot of land at Adebambo street. I have common boundary with the plaintiff…. In 1981, the Lagos State, Government broke the plaintiff’s land into two… The plaintiff tried to erect building in my land as I then approached my lawyer Odelusi and Oladimeji with my document. On 20th January, 1982 I visited the land I observed that part of my land had been removed and I met some pieces of broken blocks there. They removed one of my pillars. I do not know who removed the pillars on the same day that is 20th January, 1982 I called on bricklayer to erect a fence. The plaintiff and the policemen did not allow me to erect the fence… I did not enter plaintiff’s land. I did not destroy the building. I am liable to the plaintiff in the sum of N5,650.00.”
When cross-examined he said:
“When I visited the land, I saw that there was a building up to limited stage. I do not know if the building is in a flat form. The notice was pasted on the building. The notice is EX. P6, I can identify it.”
From the evidence reviewed supra. I have no doubt that the plaintiff/respondent/cross-appellant was in possession by reason of the fact that he had a building on the land. That much, the defendant/appellant admitted when he said under cross-examination that there was a building up to limited stage. He also said he caused a notice:- Ex p. 6, the letter dated 10th November, 1981 which he caused his solicitor to write; to be pasted on the building. That is a form of disturbance of the plaintiff’s possession call it a negligible disturbance. It must however be remembered that trespass to land, in law, constitutes the slightest disturbance to the possession of the land by a person who cannot show a better right to possession. See Solomon & ors v. Mogaji & Ors. (1982) 11 SC 1. The trial Judge in evaluating the evidence of both parties said and I quote:
“The pertinent question now is:-
Has the plaintiff discharged the onus of proof?
The answer, in my judgment, is in the negative. Neither the plaintiff nor any of his witnesses saw the defendant breaking or damaging the plaintiff’s property.
With due respect to the learned trial Judge, that was too sweeping a finding. I am not unmindful of the fact that in claiming damages for trespass, the plaintiff/respondent/cross-appellant claimed the sum of N15,650.00 as cost of restoring the property to its original state following the alleged destruction of some said to have been caused by the defendant/appellant and the sum of N4,350.00 for shock, distress and mental anguish said to have been caused him by the alleged acts of the defendant/appellant. First, I wish to say that the act of destroying someone else’s property is criminal in nature. It is a well settled principle of law that if the commission of crime by a party to a civil case is directly in issue, the party relying on it must prove it beyond reasonable doubt and such crime must be specifically set down in his pleading see (1) Sofekun v. Akinyemi & Ors. (1981) 1 NCLR 135 (1980) 5 SC 1 and (2) Ikoku v. Oli (1962) 1 SCNLR 307 (1962) 1 ALL NLR 194. The plaintiff cross-appellant has failed to discharge this duty that rests on him. Also the claim for N4350.00 is a special damage which must be strictly proved. Since I have said that it was not established beyond reasonable doubt that the defendant/appellant destroyed or broke they plaintiff/cross-appellant’s building it cannot be said that he (defendant/appellant) was responsible for the shock distress and mental anguish which the plaintiff/cross-appellant claimed he had. By the same token, he (appellant) cannot be taken to be liable in the sum of N4350.00 for the shock and mental anguish. That sum of money has not even been strictly proved, therefore if the finding of the trial Judge as to non-discharge of the onus that lay on the plaintiff/respondent/cross-appellant is limited to the claim for special damages I would agree with him. But that finding is wrong, in law, if it is intended to cover the entire evidence led. However, somewhere in the judgment, the trial Judge watered down the all-sweeping finding when he again held:-
“Plaintiff’s case is grounded in trespass. For the plaintiff to succeed he must prove that he is in actual possession of the land or he has a right to possession… I accept the evidence of the plaintiff that he was in possession and that the defendant unlawfully went on his land in dispute and thereby disturbed his possession. A slight interference is sufficient to prove trespass. Indeed the defendant admitted this much. I found him liable. Trespass is actionable without proof of damage. From the facts and circumstances of this case I shall award damages in the sum of N1,000.00 to the plaintiff.”
I agree entirely with the above finding as being eminently in conformity with the present day position of the law. In answering issue (a) on the appellant’s brief, I say that the former finding was too sweeping, the latter finding accords with the position of the law, I therefore say that the plaintiff/cross-appellant’s case ought not to have been dismissed as it was not dismissed. From what I have been saying issue (b) on the appellant’s brief does not arise as both parties to establish their different titles to the land and the evidence was clear that the plaintiff/cross-appellant had possession which is prior to that of the defendant/appellant I say this because of the admission made by the defendant/appellant that he caused a notice to put on the walls of the building on the cross-appellant standing on the land. I am not oblivious that this is an appellate court. But it must not be forgotten that an appellant court is on the same pedestal with the trial court where there can be no dispute about any relevant specific fact. In such a situation, the evaluation of the evidence is not based on credibility of witnesses but on the proper inference to be drawn from those facts. That I have done somewhere in this judgment see Nwaezema v. Nwaiyeke (1990) NWLR (Pt. 137) 230. Again, from what I have said supra issue (c) on the appellant’s brief cannot but be answered in the affirmative and I so do. On issue 1 raised in the cross-appellant’s brief borne out of what I have said above, I say without any hesitation that the learned trial Judge was not wrong in holding that the defendant was liable. In a similar vein, I say of issue 2 on the cross-appellant’s brief that the trial court was right in refusing the claim for special damages. There was no scintilla of evidence to establish same. As regards the 3rd issue on the cross-appellant’s brief, I am at a difficulty in finding a notice of appeal filed by the plaintiff against the ruling of the court below dated 8th June, 1990 making an order of stay of execution of the judgment delivered on 23rd June, 1989. Although the cross-appeal was dated 13th September, 1989 and filed the same date there is nothing in the two grounds incorporated into the cross-appeal which has any bearing on the ruling dated 8th June, 1990. Even the said issue 3 does not flow from any of the two grounds of cross-appeal. That issue is non sequitur.
In summary, from all I have discussed above, it is my judgment that this appeal is unmeritorious, it must be dismissed. And, I accordingly dismiss it. The judgment of the court below is affirmed in substance. The cross-appeal which dwells mainly in the refusal of the court below to award the special damages is devoid of merit. And I accordingly dismiss it as well. There shall be no order as to costs.
Other Citations: (2000)LCN/0891(CA)