Mrs. Grace Odusanya V. Mr. Kolade Osinowo (1999)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
At the High Court Ikeja, the respondent was the plaintiff and the appellant, the defendant. I shall hereafter refer to the parties as ‘plaintiff’ and ‘defendant’. The plaintiff claimed for;
“(a) Declaration that Plaintiff is entitled to certificate of Occupancy in respect of all that piece or parcel in Egbe Village, Lagos State, the Plan of which shall be filed later.
(b) The sum of N10,000.00 (Ten Thousand Naira) being special and general damages for continuous acts of trespass on the said land at Egbe Village, Lagos State from November, 1985 which acts of trespass is (sic) continuing despite repeated warnings by the plaintiff together with an order for possession.
(c) Perpetual injunction restraining the defendant, his servants and privies from further acts of trespass on the said land.”
The parties filed and exchanged pleadings after which the suit was tried by Martins J. The plaintiff testified and called a land surveyor as his only witness. The defendant testified. He called two other witnesses. In its judgment given on 8/10/96, the lower court gave judgment in favour of the plaintiff as per his writ of summons.
The defendant was dissatisfied. He has brought this appeal. In his Notice of Appeal filed on 30/12/96, the defendant raised 15 grounds of appeal. On the same date the defendant filed a “further ground of appeal” Most of the appellant’s grounds of appeal were poorly framed. They contained narrative and arguments. In the appellant’s brief filed the issues for determination were set out thus:
“(1) Did the Plaintiff and his witness lead any reliable evidence so as to succeed against the defendant in this case.
(ii) In view of the issue joined by parties and evidence before the lower court could the trial Judge place any reliance on Exhibits ‘A’ and A1 (Purchase receipts of the Plaintiff) to defeat Exhibits C and E (Purchase Receipts of the defendant) so as to award the ownership of the land in dispute to the Plaintiff?
(iii) Whether the trial judge made a correct approach to the evidence led by the Parties by coming to conclusion on the evidence led by the Plaintiff before considering that of the defence.
(iv) By the state of the pleading and evidence, whether the reliefs sought could be granted to the Plaintiff/Respondent as per the Writ of Summons and Statement of claim or at all?”
The respondents formulated the issues for determination thus:
“2.1 Whether the learned trial Judge properly evaluated the evidence before him in arriving at his decision.
2.2 That, whether the Respondent and his witnesses had led credible and uncontroverted evidence to succeed against the appellant in proof that the Respondent has superior and far better title than the appellant.
2.3 Whether the appellant by her pleading and evidence gave false and highly unreliable and contradictory evidence.
2A The propriety of the Learned Trial Judge granting relief covered by the pleadings and incidental to the claim.”
I shall in this judgment consider together the issues raised by the appellant
The said issues are similar to those raised by the respondent. In paragraphs 4, 5, 6, 7 and 8 of the Statement of claim, the plaintiff pleaded thus:
“4. The land in dispute in paragraph 4 hereof formed portion of land which belonged absolutely to Kadaki and Akeja Family under native law and Custom from time immemorial who exercised full rights of ownership and possession on the said land by cultivating the land as farmland.
- The plaintiff will at the trial of this prove ownership of the land in dispute through his vendors.
- The Plaintiff purchased the land in 1975 and was peaceable (sic) put into possession by his vendor which any hindrance or protest from anybody after he had paid the agreed purchase price which shall be relied upon at the trial of this action.
- That it is November, 1985 that the plaintiff title to the land was challenged by the defendant who illegally entered the land in dispute.
- That by reason of the averment in paragraph 7 hereof the defendant continued in her acts of trespass despite all letters written to the defendant which said letters was ignored by the defendant.”
“4. The defendant in paragraphs 4 and 6(a) pleaded thus: The defendant admits paragraph 3 of the statement of claim only to the extent that the land in dispute originally belonged to Kudaki and Akeja family of Egbe in Ikeja Local Government of Nigeria and makes no further admission. The defendant shall rely on Survey Plan No. LA 226/84 prepared by U. Uwazo, licenced Surveyor as adequately representing the description of the land in dispute.
(6h) The defendant says further that Raufu Sunmola Akeja and Yinusa Bello representing Kudaki family sold the land in dispute to her in 1974 while they are Attorneys to the Kudaki Akeja Family for valuable consideration and she was put into possession of the land sold to her without any let or hindrance from anybody.”
It is apparent from the pleadings of the parties that they were agreed that the original owners of the land were the Kudaki and Akeja Family. The plaintiff claimed that the owners sold the land to him in 1975 whilst the defendant claimed that the land was sold to her by the same family in 1974. The dispute as to who had the better title therefore fell to be determined on who of the parties was first in time in acquiring interest to the land from the owners acknowledged by both parties.
At the trial the plaintiff testified as to his title thus:
“I purchased the land in question in 1975 from the Kudaki – Akeja Family. I was issued a receipt in respect of the land in 1975 and I was also given a complimentary card of the Surveyor. It was this card that I took to the Surveyor who allocated the piece of land to me. It was members of the Kudaki-Akeja Family who actually showed me the land allotted to me. After being shown the land, I usually go to the land to make sure that the land is cleared regularly with the plan to start development. No one challenged my title and possession of the land in question from 1975 to 1985.”
The plaintiff later tendered the receipts given him as exhibits A and A 1. The only other witness called by the plaintiff testified as P.W.1. He was the Surveyor. P.W.1 said:
“On or about 25/5/79, the plaintiff was introduced to me through a card sent through him to me by one Mr. Jimoh Taiwo a member of the Kudaki Akeja of Egbe. The card was an introductory card from Kudaki Akeja to enable me allocate 2 plots of land to him on the family Survey layout at Egbe. In consequence of the introduction, I prepared survey Plan for the plaintiff in respect of 2 plots of land.”
The plaintiff did not call any member of the land-owning family to testify. When the evidence of the plaintiff is related to that of P.W.1., it is manifest that although the plaintiff claimed to have bought the land in 1975, it was not until 1979 that the P.W.1 allotted to him the land for which he paid in 1975.
The defendant on the other hand called two members of the Kudaki Akeja Family who claimed to have sold the land to her. She also testified as to how she bought the land. She tendered the receipts given her by the family as exhibits ‘C’ and E’. It is pertinent to mention here that the 1st D.W. agreed that P.W.1 was the surveyor to Kudaki Akeja Family.
The lower court in its judgment preferred the case of the plaintiff to that of the defendant. It accordingly gave judgment in accordance with the claims of the plaintiff. Was the lower court correct in its approach?
I think that I should first draw attention to the fact that the defendant did not raise a counter-claim against the plaintiff. She had come to court only to defend the suit. It is now settled law that in a claim for declaration of title, the onus is on the plaintiff to establish by evidence his entitlement to the declaration he seeks; and the plaintiff must rely on the strength of his own case and not on the weakness of the defence – see Kodilinye v. Odu (1935) 2 W.A.C.A. 336.
Further, and this is very important on the facts of this case, the consideration of the weakness in the defence case does not arise until the plaintiff has established a prima facie case. See Aromire v. Awoyemi (1972) 1 All N.L.R. page 101. Did the plaintiff in this case establish by evidence his case for a declaration of title? I think not. The failure of the plaintiff to call the evidence from the Family who sold the land to him is fatal to his case. Whereas the defendant pleaded and testified that the land in dispute belonged to the Kudaki-Akeja Family, no similar concession was made to the effect that the Kudaki – Akeja Family sold the land in dispute to the plaintiff. The plaintiff needed therefore to prove this by calling the evidence of his vendors. As the plaintiff did not do this, his claim for declaration ought to have been dismissed.
Even a plaintiff who fails on his claim for declaration of title may still succeed in an action for trespass. See Oluwi v. Eniola (1967) NMLR 339. In Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 67 at 75 the Supreme Court per ‘Fatayi Williams J.S.C. (as he then was) said:
“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 such possession the right to retain it and to undisturbed enjoyment of it against all wrong-doers 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 the defendant to show that the title to the land is in another person. To resist the plaintiffs claim, a defendant must show either that he is the one in actual possession or that he has a right to possession.”
And at pages 77-78 of the same report, the court said:
“It only remains for us to add that, on the authority of the above doctrine, an original trespasser, as against everyone but the true owner, can, if he is in exclusive possession of the land, maintain an action in trespass against a later trespasser whose possession whether taken by force or not would be clearly adverse to that of the original trespasser. Therefore assuming, without deciding that the plaintiff/appellant in the case in hand is also an original trespasser, it seems to us that he can maintain an action for trespass against the defendant/respondent who has disturbed his possession …. Generally speaking, as a claim for trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession or has the right to such possession of the land in dispute. But once a defendant claims to be the owner of the land in dispute title to it is put in issue and in order to succeed, the plaintiff must show a better title than that of the defendant.”
I observed earlier that the plaintiff did not establish his title to the land in dispute by his failure to call the original owners of the land to testify. The defendant claimed ownership of the land. But the lower court rejected her evidence. With respect to the receipts tendered by the defendant and the defence case, the lower court said:
“I am clearly of the view that Exhibits C and E are not genuine documents. They are pillars upon which the defendant has built her case. I have no iota of doubt that the plaintiff was on the land in dispute before the defendant and that he had purchased his land earlier in time than that of the defendant. That when 1st and 2nd defendants witnesses sold the land to the defendant, the Kudaki and Akeja family had divested themselves of any right or interest they might have had to the plaintiff. The family has nothing to convey to the defendant. The entire evidence of the defendant and that of her 2 witnesses are issues of untrue story.
The lower court saw the witnesses testify. It held that the defendant and her witnesses were liars. It therefore rejected their evidence. This court ought not intervene in the province of assessment and evaluation of evidence. See Woluchem v. Gudi (1981) 5 SC 3 19 at 326.
I must therefore accept that the defence case was rejected by the lower court. The lower court also held that the defendant only came on the land in 1985. At page 41 of the record in its judgment, the lower court held:
“I have no doubt that it was in 1985 the defendant entered the plaintiff’s land and despite the injunction of this Honourable Court she continued to build and complete the building on the land in dispute without any regard for this Honourable Court.”
The simple issue to be received with respect to possession is whether the possession of the plaintiff was effective enough and whether it predated the defendant’s which on the finding of the trial judge came into existence in 1985. The evidence of the plaintiff as to his possession is weak and insubstantial. It consists no more than clearing the land regularly of weed. Accordingly to P.W.1, the land of the Kudaki and Akeja Family had been laid out into building plots. Indeed the plaintiff said:
“We then cross-checked the beacon pillars, on the land with what was on the survey plan and we found them to be correct.”
The position then is that it was not the plaintiff who planted the beacon pillars. The pillars had been on the land even before the plaintiff bought. But in Wuta-Ofei v. Danquah (1961) 3 All ER 596 at 600 which was followed by the Supreme Court in Ayinde v. Salawu (1989) 3 NWLR (Pt.109) 297. Lord Guest said:
“Their Lordships do not consider that, in order to establish possession, it is necessary for a claimant to take some active step in relation to the land such as enclosing the land or cultivating it. The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unenclosed land which is not being cultivated, there is little which can be done on the land to indicate possession. Moreover, the possession which the respondent seeks to maintain is against the appellant who never had any title to the land. In these circumstances, the slightest amount of possession would be sufficient. In Brislow v. Cormican, Lord Hatherley said:
“There can be no doubt whatever that mere possession is sufficient, against a person invading that possession without himself having any title whatever – as a mere stranger; that is to say, it is sufficient as against a wrongdoer. The slightest amount to possession would be sufficient to entitle the person who is so in possession, or claims under those who have been or are in such possession as against a mere trespasser’.”
The plaintiff who never called the original owners of the land to testify that they sold the land to him must be regarded as a trespasser without any title at all to the land. The defendant on the other hand called those who were members of the land-owners’ family to testify. But the witnesses called by the defendant acted under a power of Attorney which did not permit them to act individually. That being so, the sale to the defendant by 1st & 2nd D.W was a nullity. The defendant also must be seen as a trespasser without any title to the land.
The position therefore is that the mere possession of the land by the plaintiff since 1974 is enough as against the defendants. The result is that the plaintiff could properly maintain an action against the defendant If a trespasser the plaintiff was, he could validly maintain an action in trespass against the defendant a later trespasser.
In the final result, this appeal partially succeeds. The plaintiff’s claim for declaration of title is dismissed. The claim for trespass and injunction succeed. Accordingly I award in favour of the plaintiff against the defendant N10,000.00 being damages for trespass to the land in dispute. I make an order perpetually restraining the defendant from committing further acts of trespass on the land in dispute. The plaintiff/respondent is awarded N3,000.00 costs for the appeal.
Other Citations: (1999)LCN/0642(CA)