Mrs Mulikatu Erinfolami V. Pius Oso (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment)

This appeal stems from the judgment of Honourable Justice I.O. Akeju delivered on 26th day of February 2008, in which the court granted the reliefs sought by the Plaintiff now Respondent.

The Respondent sought for the following;

A N100,000:00 (One Hundred Thousand Naira Only) general damages for Trespass committed and still being committed by the Defendant on the Plaintiff’s land at Oke-Age street Ado -Ekiti.

1. A Perpetual Injunctive order on the Defendants, his agents, servant and privies from visiting the land or doing anything whatsoever on it.

The Appellant was discontented with the judgment and filed Notice herein under reproduced.

1. The learned trial judge erred in law by his failure to consider the implication of the plaintiff’s claim that the plaintiff has put his title in issue and that to succeed, the plaintiff must prove the root of his title and his exclusive possession and that onus is entirely on the plaintiff and does not shift.
2. The learned trial judge erred in law by relying heavily or exclusively on the weakness of the case of the defence and thereby reached a perverse decision.
3. The learned trial judge erred in law by giving judgment to the plaintiff, when the standard of proof set in this case has fallen short of the requirements sufficient to establish his claim for trespass and injunction.
4. The learned trial judge erred in law when he held ‘from pleading and oral evidence in this suit the plaintiff had proved better title and should get judgment” when on the pleadings there is not a scintilla of fact adumbrating the root of the title nor on the recorded proceedings evidence which shows the plaintiff proving any title at all and thereby reaching a wrong decision.

Wherein four issues were deduced for determination thus;

1. Whether the learned trial judge was right that the burden of proof of root of title shifts from the plaintiff to the defendant when the plaintiff has not proved his root of title.
2. Whether the learned trial judge was right to rely heavily or exclusively on the weakness of the case of the defence by giving judgment for the plaintiff
3. Whether the learned trial judge was right to have given judgment to a party whose standard of proof has fallen short of the requirements sufficient to establishing a claim for trespass and injunction which is exclusive possession
4. Whether the learned trial judge was right to have given judgment to the Plaintiff when on the pleadings there is no root of title pleaded.

Whereas the Respondent on his part formulated three issues for determination thus:-

1. Whether or not, the Respondent successfully pleaded and proved his root of title to the land in dispute
2. Whether or not, the Respondent have(sic) been able to plead and prove his ownership/title to the land in dispute
3. Whether or not, the Respondent was able to discharge the burden of proof of root of title placed upon him in law?

In determining this appeal, the five issues as formulated by the Appellant will be used to determine this appeal.

Issue One

Whether the learned trial judge was right that the burden of proof of root of title shifts from the plaintiff to the defendant when the plaintiff has not proved his root of title.

On issue one the Appellant argued that where a complainant claims damages for trespass and an injunction restraining the adversary from re-entering the land, the Plaintiff must proof the root of his title and if he failed he must have his case dismissed as the onus of proof does not shift from the plaintiff to the Defendant, he thereafter submitted that the lower court erred in law to hold otherwise. Appellant further contended that it is a bad law and that onus cannot shift to the Defendant when the Plaintiff has not proved his traditional title and that there will be no need for imaginary scale to tilt. He referred to the case of NWABUOKU V ONWORDI (2006) 5 SCNJ, 368 at lines 18-25 to buttress his position, Appellant also contended that there was no evidence in support of the root of title supporting the Plaintiffs case and that where there is no scintilla of evidence as required by law that the Defendant must prove his root of title and that the respondent must prove his root of title and that the appeal should be allowed. He referred to the case of OWOADE V OMITOLA (1988) 2 NWLR 388-508 to buttress his argument and he prayed this court to hold that the Plaintiff has not proved a better title.

The Respondent on his own submitted that the Respondent’s ask for damages for trespass and perpetual injunction and that his title to the land is in dispute, he referred to the case of AKIN JERINWA V OLADUNJOYE (2006) 6 NWLR (Pt. 659) 97 at 115 to buttress his position and argued that paragraphs 4, 5, 6, and 7 of the Statement of Claim as well as paragraphs 2, 3, 4, 5, 6, 7, 8, and 9 of the Statement of Claim successfully pleaded the Respondent’s title to the land.

He referred to the evidence of the plaintiffs 1st witness and the evidence of the Respondent and he wants the court to observe that four years after pleadings were exchanged and after the close of the Respondent’s case, the Appellant was able to secure a radically amended statement of defence and he claimed that his title emanated from the Idolofin family Oke- Age, Ado- Ekiti.

The Respondent contended that the Appellant called four witnesses who are members of Idolofin family of Ado-Ekiti, but that the four witnesses gave contradictory, inconsistent and different accounts and history of the land in dispute, that they said the parcel of land belongs to Idolofin family in one breadth and in another breadth, they claimed it belongs to Roman Catholic Church. He thereafter contended that a court will not believe a party and his witnesses where there are contradictory and manifest inconsistencies in their evidence as to title to land. He referred to the cases of IGE V AOKO (1994) 4 NWLR (Pt 340) 535 at 543, EPI V AIGBEDION (1973) NWLR 192 at 196 and AMATA V MODEKWE 14 WACA 580 at 582 -583 to support his position.