Pius Amakor V. Benedict Obiefuna (1974)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILIAMS, J.S.C.

This is an appeal from the judgement of the Lagos High Court in Suit No. LD/788/1970 in which the claims of the plaintiff, now appellant, against the defendant, now respondent, for damages for trespass to land, and for an injunction restraining the defendant from further acts of trespass were dismissed.

The plaintiff averred in paragraphs 3 to 7 of his statement of claim as follows:

“3. The land in dispute forms portion of a larger area of land owned from time immemorial by the Ojora Chieftaincy Family of Lagos.

4. In or about March, 1962, a duly authorised agent of the Ojora Chieftaincy Family for a valuable consideration put the plaintiff into peaceable possession of a large area of land of which the land in dispute forms portion.
5. Immediately adjacent to the land in dispute at Ugbowankwo Street, Alayabiagba, the plaintiff caused to be erected a building consisting of 13 rooms.
6. The plaintiff also put up on the land in dispute the foundation of another building about 18 inches high from the ground level surrounded by a corrugated iron-sheet fence.
7. The plaintiff remained in an open and undisturbed possession of the land in dispute from the commencement of his tenancy in March. 1962 right up till the 30th day of August. 1970 when the defendant accompanied by a gang of several other men unlawfully entered the said land, broke down and carried away the corrugated iron-sheet fence and proceeded to demolish part of the plaintiff’s 18 inches high building foundation erected on the said land.”

In his statement of defence. the defendant admitted the averments in paragraph 3 of the statement of claim but denied those in paragraphs 4, 5, 6 and 7. He then averred in paragraphs 7 and 8 of his statement of defence as follows:

“7. The defendant avers that the land in dispute is an integral part of a larger piece of land leased by the Ojora Chieftaincy Family. the owners of the same to the defendant in 1963 and that the plan of the larger piece is as described and delineated on survey plan No. JJ.38/64 filed with an attached to the counter affidavit of the defendant/applicant and that the same was fenced all round.

8. That immediately upon leasing the said parcel of land to the defendant. the Ojora Chieftaincy Family put the defendant into possession of the same and that the defendant has been in peaceable possession from then until he went to the Eastern State consequent upon the Civil War and that he regained the possession of the same upon his return to Lagos.

In support of his claim the plaintiff testified that he has been a tenant of the Ojora Chieftaincy Family on the land in dispute since 1962 and that he was put in possession by one Bale Fakunle (now deceased) to whom he was directed by the Head of the Family. He paid rent of 3:10per annum for the land. After he took possession of the land, he went there regularly. In 1967, he started building on the land. He completed the building in 1968. Nobody disturbed him while he was building on the land. He is still the tenant of the Ojora Chieftaincy family who has not ejected him from the land. He then described what led him to take the present proceedings as follows:

“On the 30th August a friend rang me to say that certain things happened in respect of the land. I immediately went there and there I met seven men including the defendant. I saw those people breaking my foundation. They were also removing the corrugated iron sheets, i.e. the fence. I asked them to stop. I asked them if the Ojora Chieftaincy family sent them. They said I should not come near them, that if I did they would wound me. It was the defendant who told me to keep away otherwise I would be wounded. I then went to Apapa Police Station and I was given two police officers and went back to the spot. After three months, the police advised me to take civil proceedings against the defendant. The defendant now uses the land for building vehicle (lorries) bodies. ”

The plaintiff later gave detailed particulars of the cost the building foundation which he made on the land and of the fence which he erected round the land and then claimed damages as follows:

“The total cost is 336:10 which I claim as special damages. I also claim 663:10 general damages. In all I claim the sum of N31,000 general and special damages.”

One Edward Macaulay (1st P1/W.) who said that he was “the official receiver of rents and profits” for the Ojora Chieftaincy family from 1959-1964, having been so appointed by the Registrar of the High Court, confirmed that the land in dispute, consisting of two plots, was let to the plaintiff by Bale Fakunle who, at the material time, was the Bale in charge of the family land at Alayabiagba Area of Apapa. He further confirmed that to his knowledge the Ojora family did not re-allocate the plots previously allocated to the plaintiff to anybody else.

The acts of demolition complained of by the plaintiff were also confmned by one Suleman Opeaiye (3rd P1/W.), a police photographer, who was sent to the land in dispute after the plaintiff had lodged a complaint at the Apapa Police Station.

In his own testimony, Ajibola Odunsi, the Chief Ojora of Lagos (5th P/W.) denied that the late Bale Fakunle was the Bale in charge of the family land at Alayabiagba. According to this witness, Bale Fakunle was only put in charge of the family lands at Aiyetoro which is adjacent to Alayabiagba, and he (Fakunle), therefore, had not authority to deal with land at Alayabiagba which was under one Bale Awele who also had since died. Chief Ojora stated funher that Bale Awele died before Bale Fakunle and that, since the death of Bale Awele, nobody has been appointed the Bale in charge of Alayabiagba. he also confirmed that when there was a dispute in the Ojora family, Macaulay (1st P1/W.) was appointed by the Court to receive all the rents paid on the family property and that after the dispute was settled, Macaulay paid over all the money he had collected to him. Under cross-examination, Chief Ojora testified further as follows:

“Fakunle was not a member of my family. At no time was he authorised to deal with land at Alayabiagba. Macaulay was not authorised to lease land but only to collect rents.”

It is significant that Chief Ojora was not cross-examined about whether the land in dispute was allocated either to the defendant or to anybody else by either the Ojora Chieftaincy family directly or by one of their Bales. Instead, when the plaintiff closed his case after Chief Ojora had replied to questions put to him under cross-examination as indicated above, the court was informed by learned counsel for the defendant that the defendant would not be calling any evidence but would rest his case on the evidence adduced by the plaintiff. In his judgement, the learned trial judge, after summarising the evidence called by the plaintiff, observed as follows:

“The evidence of the 5th plaintiff’s witness is very damaging to the plaintiff’s claim.

It is undoubtedly true that since counsel for the defendant has elected not to call any evidence he must accept the evidence of the plaintiff’s witness. ”

He thereupon found as follows:

“The plaintiff’s claim being for damages for trespass and an injunction against further trespass postulates that the plaintiff is either the owner of the land in dispute or has, prior to the trespass complained of, exclusive possession of it. In short, the plaintiff has put his title in issue (See the observation of the Privy Council in Kponuglo & Ors. v. Kadadja 2 WACA 24). This decision has been consistently followed by a series of decisions of the Federal Supreme Court. This is a case where the title of the plaintiff is in issue and the onus is on him to establish at least a prima facie case that he was the owner of the land in dispute. As the plaintiff cannot establish his right to possession or his title, his claim is dismissed. ”

Briefly stated, the complaint of learned counsel for the plaintiff/appellant in the appeal now before us against this judgement is this. As the plaintiff/appellant based his case only on possession, the learned trial judge was in error in considering the issue of title. Moreover, having stated that the defendant/respondent, by not calling any evidence, “must accept the evidence of the plaintiff’s witnesses,” the learned trial judge was also in error in not accepting the evidence of possession given by the plaintiff/appellant and his witnesses. Learned counsel finally submitted that if that evidence of possession had been accepted, the learned trial judge would have given judgement for the plaintiff/appellant both with respect to the claim for trespass which is a tort against possession, and also with respect to the amount claimed as damaged.

In reply, learned counsel for the defendant/respondent contended that the claim for trespass was based on the grant of the land to the plaintiff/appellant by Bale Fakunle acting on behalf of the Ojora Chieftaincy family. Once Chief Ojora (5th P/W.) had stated that Bale Fakunle had not authority to rent out land at Alayabiagba area where the land in dispute is situated, the bottom had been knocked out of the case of the plaintiff/appellant and the learned trial judge was therefore right in dismissing the claim as he had done. In support of this contention learned counsel referred us to the decision of the Privy Council in Kponuglo v. Kadadja (1934-35) 2 WACA 24 at p.29.

We think there is merit in the complaint of learned counsel for the plaintiff/appellant. In the first place, by stating that the defendant/respondent “must accept the evidence of the plaintiff’s witnesses,” the learned trial judge obviously accepted the evidence himself. Secondly, Chief Ojora (5th P/W.) did not say in his testimony that Bale Fakunle did not allocate the land in dispute to the plaintiff/appellant; all he could say, and did say, was that Bale Fakunle had no authority to allocate the land which admittedly is situated at Alayabiagba. If the evidence that the land was, in fact, allocated to the plaintiff/appellant was accepted as the court had apparently done, and the evidence that the plaintiff went into possession, developed part of it, and put a fence round the remaining part, without let or hindrance from anybody until the defendant/respondent came and disturbed his possession by force, was not disputed by the defendant/respondent (since he called no evidence in rebuttal), there is abundant evidence that the plaintiff/appellant was in de facto possession of the land in dispute at the time the defendant/respondent and his people entered the land.

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’s 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 the 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 this averment), that the title to the land is in another person. To resist the plaintiff’s claim, a defendant must show either that he is the one in actual possession or that he has a right to possession.

In the case in hand, the defendant/respondent pleaded that the Ojora Chieftaincy family leased the land to him in 1963 and put him in possession and that he

“Has been in peaceable possession from then until he went to the Eastern State consequent upon the Civil War, and that he regained the possession of the same upon his return to Lagos.”

At the trial, no evidence whatsoever was led in support of this averment so that the court could not have considered it. This alleged possession must, of course, be adverse to that claimed and proved by the plaintiff/appellant, and although two or more persons may be concurrently in possession of a piece of land as joint tenants or as tenants in common, there can be no such thing as concurrent possession by two persons (such as the plaintiff and the defendant in the present case) claiming adversely to one another.

Thus, a trespasser in possession of land, as against everyone but the true owner, can devise or convey his interest in the land or transmit it by inheritance (see Asher v. Whitlock (1965) L.R. 1 Q.B. page 1). In this connection, we refer, with approval, to the statement of Cockburn, C.J. at page 5 of the judgement in the Asher’s case. It reads

“But I take it as clearly established, that possession is good against all the world except the person who can show a good title; and it would be mischievous to change this established doctrine. In Doe v. Dyeball Mood and M 346, one year’s possession by the plaintiff was held good against a person who came and turned him out; and there are other authorities to the same effect. Suppose the person who originally in closed the land had been expelled by the defendant, or the defendant had obtained possession without force, by simply walking in at the open door in the absence of the then possessor, and were to say to him ‘you have no more title than I have, my possession is as good as yours,’ surely ejectment could have been maintained by the original possessor against the defendant.”

It only remains for us to add that, on the authority of the above doctrine, an original trespasser, as against every one 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.

That being the case, we have no doubt in our mind that the learned trial judge erred in dismissing the claim of the plaintiff/appellant. It is necessary, however, to point out that the decision in Kponuglo v. Kodadja (supra), on which the learned trial judge relied, is inapplicable to the facts of the present case. That case never decided that in all claims for trespass and injunction, title must be proved. 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 he 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. This is clearly the position in the Kponuglo’s case as can be seen from the following extract at page 24 of the judgement

“It is not in dispute between the parties that, in the year 1927, the appellants or their representatives cut down an odum tree within Bunya land, and that, accordingly, if the title to that land is in the respondent, as he claims, a trespass was committed by the appellants.

The respondent’s claim being one of damages for trespass, and for an injunction against further trespass.

Bearing in mind that the person referred to above as the respondent was the plaintiff in that case, the observation in the judgement that he had put his title in issue is understandable.

In paragraph 6 of his statement of defence in the case in hand, the defendant/respondent referred to the plaintiff/appellant as “an interloper” on the land in dispute. Although no evidence was adduced in support this averment, we wish to refer, nevertheless, to the judgement of this court in Godwin Egwuh v. Duro Ogunkehin (unreported but see SC/529/66 decided on 28th February, 1969) where we observed at pages 3-4 as follows:

“If it be alleged that someone in possession of land is a trespasser the person so alleging has the onus of showing that he has a better right to the possession which was disturbed and unless that onus is discharged, the person so alleging cannot defeat the rival party.”

In the case in hand, it is common ground that the title in the disputed land is in the Ojora Chieftaincy family. Each party also pleaded that he is in possession of the land with the authority of the Ojora Chieftaincy family. The plaintiff/appellant succeeded in proving that he was in exclusive possession of the land at the material time but failed to prove the authority of the Ojora Chieftaincy family for such possession. The defendant/respondent, on the other hand, gave no evidence in support of his own averment either as to his possession of the land or as to the authority for such possession. As this is a classic example of two assumed trespassers claiming adversely to one another, the trespasser in possession, that is the plaintiff/appellant, must succeed as against the other who is not in possession. It would have been different if the Ojora Chieftaincy family had testified in support of the defendant/respondent’s contention. Considering all the circumstances, we are of the view that the plaintiff/appellant has a better right to possession of the land and to the undisturbed enjoyment of it as against all except the Ojora Chieftaincy Family. For these reasons, the plaintiff/appellant should have succeeded in his claim for trespass and for the order of injunction. As there was no scintilla of evidence in rebuttal of the testimony he gave in support of the damages suffered by him and which the learned trial judge observed that the defendant/respondent “must accept,” he should have succeeded also with respect to the amount claimed as damages. .

We, therefore, allow the appeal and set aside the judgement of the learned trial judge (including the order as to costs) in which he dismissed the claim of the plaintiff/appellant. Instead, we order as follows:

(i) That the plaintiff’s claim as per his writ of summons in Suit

LD/88/70 succeeds;

(H) That he be and is hereby awarded the sum of N2, 000.00 (1,000 Pounds) against the defendant as special general damages for the trespass committed by the defendant on the land in dispute;

(i) That the defendant, his servants and/or agents be and are hereby restrained forthwith from committing further acts of trespass on the said

land; and

(iv) That (i), (ii) and (iii) above shall be the judgement of the Court.

In addition, the plaintiff/appellant is awarded cost in the court below assessed at N100.00 and in this Court at N103.00.

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Other Citation: (1974) LCN/1941(SC)