Sunkanmi Dairo & Ors V. The Registered Trustees of the Anglican (2002)
LawGlobal-Hub Lead Judgment Report
PIUS OLAYIWOLA ADEREMI, J.C.A.
In the court below, High Court of Lagos State, Ikeja Judicial Division (Coram Adeyinka J.) the Respondent/Cross-Appellant herein who was the plaintiff in that court by the amended writ of summons dated 7/4/89 claimed against the appellant herein who were the defendants the following reliefs:
(1) The sum of N1, 000.00 being special and general damages for trespass committed by the defendants on the plaintiff’s land lying and situate at IWAYA Lagos State of Nigeria which said piece or parcel of land is covered by a Deed of Conveyance dated the 30th of June, 1948 and Registered as at Page 42 in Volume 776 of the Register of Deeds kept in the Lands Registry, Lagos;
(2) Injunction restraining the defendant’s servants and/or agents from committing acts of trespass on the said land.
It is necessary here to say that the respondent/cross appellant initially took out the writ of summons against the 1st – 6th defendants/appellants. The 7th defendant/appellant, claiming to be the overlord of the 1st – 6th defendants/appellants voluntarily applied to be joined and he was joined as the 7th defendant by the order of the Court on 30/11/88. Perhaps I should further say that the original six defendants were separately sued by the plaintiff/cross-appellant but all the cases were consolidated by court order made on 4/7/86. It is also to be noted that the 1st defendant/appellant was substituted for Jethro Dairo – the original first defendant – upon his death while the 5th and 6th defendants/appellants were substituted for M.F. I Megbuwawon and Ogunmayin – the original fifth and sixth defendants upon their respective death.
The final pleadings, filed with the leave of court, and exchanged between the parties are the further amended statement of claim dated 17/4/98, an amended statement of defence of the 1st defendant dated 27/3/96, an amended statement of defence of the 2nd defendant dated 7/11/86, the amended statement of defence of the 3rd defendant dated 7/11/86, an amended statement of defence of the 4th defendant dated 7/11/95 the 5th defendant’s amended statement of defence dated 3/10/95, the 6th defendant’s amended statement of defence dated 3/10/95 and the 7th defendant’s amended statement of defence dated 11/7/94. As I have earlier, pointed out, all the cases were later consolidated by the order of court made on 4/7/86. All sides thereafter called evidence to substantiate the different averments in their respective pleadings. After taking the addresses of counsel the learned trial judgment, in a reserved judgment delivered on the 5th of March, 1998, found for the plaintiff/respondent/cross-appellant. In coming to the conclusion reached the learned trial judge held inter alia.
“The devolution of plaintiffs title from Chief Alase of Iddo to the plaintiffs are as per Exhibits p1 – p10. However, there are breaks in the claim of plaintiffs’ title. The deed of conveyance of 31/3/1877 and registered as 39/133/24 produced in evidence as Ex p9. When, however, James Adeniyi John bought land from James Leigh, no conveyance was executed in favour of James Adeniyi John which was a fatal break on plaintiffs’ claim of title. The Will of James Adeniyi John dated 18/2/43 by which he devised his to his two children was also not produced in evidence. There was also no conveyance executed by Otepola’s children to Mr. Idowu……… The measure of the 20 years age of a deed of conveyance is not at the date of the proceedings but as at the date of the contract in which the deed of conveyance is sought to be relied upon. There was no evidence in the instant case of a contract or contracts from which plaintiffs deed’s conveyance from 1864 or EX P7 derived. The presumption of Sections 123 and 130 of the Evidence Act does not apply to plaintiff’s case. It follows that the defendants are at liberty to challenge the contents of plaintiff’s deed of conveyance Exhibits p1- p10. In view of the break in plaintiff’s claim of title, the plaintiffs have failed to prove their title to the land in dispute.
“I believe the 1st P/W, Chief G. O. Sodipo that the plaintiffs took possession of the land in dispute in 1948, planted mango, pineapples and other crops thereon and completed the St. Francis Church in 1950 and that the Anglican Churches in Lagos used to go and hold revivals and pricious on the land in dispute. It follows that the plaintiffs had exclusive possession of the land in dispute from 1948 untill the defendants moved on the land in 1954. In view of my findings of proofs by the plaintiffs of the identity and their exclusive possession of the land in dispute, I hold that the 1st, 3rd, 4th, 5th and 6th defendants had trespassed on the parcel of land situate at St. Francis Church Compound, Iwaya, Yaba. …………
The fact that contravention notice was served on the Church is no proof that the fence was demolished by the Government. The onus was however, not on the defendants to call the Lagos State Government as a witness that the Government demolished the fence because it was blocking Onifuere Street, Iwaya as per the Contravention Notice Exhibit D59. The defendants having pleaded the Contravention Notice in their various amended statements of defence, the burden was on the plaintiffs to subpoena the Lagos State Government to come and testify that inspite of the Contravention Notice dated 27/9/82, the state Government did not demolish the fence. Although the defendants admitted that the fence was demolished the plaintiffs have failed to prove that it was demolished by the defendants. Plaintiffs’ claim for N10, 000.00 special damages fails and is hereby dismissed.
Plaintiffs, claim for N1, 000.00 general damages also fails and is hereby dismissed.
Plaintiffs’ 2nd claim is for an injunction restraining the defendants from further acts of trespass. Although the plaintiffs’ case for title fails the Supreme Court has held that claim for trespass and injunction can succeed where claim for title to land fails if possession is found in the plaintiff…………. In view of the Success of the plaintiffs’ claim for trespass, their claim for injunction succeeds. An order of perpetual injunction is hereby made and the 1st, 3rd, 4th, 5th and 6th defendants, their servants, agents and privies are hereby restrained from going on and/or from committing further acts of trespass on the parcel of land known and situate at St. Francis C.M.S. Church Compound, Iwaya, Yaba, Lagos State were particularly delineated in the composite plan No.G.F/1454 dated 24th September, 1992 EX P11 prepared by Licensed Surveyor G. F. Okusanya.”
It is against this judgment that the defendants have now appealed to this court. The plaintiff, also being dissatisfied with that portion of the judgment that says that the (plaintiffs have failed to prove their title to the land in dispute, have cross-appealed to this court. The Amended Notice of Appeal of the appellants which was filed with the leave of this Court carries eight grounds. While the Notice of Cross-Appeal of the cross-appellant has incorporated into it two grounds.
In the joint brief of argument filed on 6th June, 2000 on behalf of the 1st, 4th, 5th and 6th defendants/appellants the issues for determination were identified as follows:
(1) Whether the plaintiff, though unregistered, had juristic personality to sue and maintain the action as “The Registered Trustees of the Anglican Diocese of Lagos and if not, whether the judgment given thereof in favour of the plaintiff is not a nullity?
(2) Whether having dismissed the plaintiffs’ case for damages for trespass, the plaintiff could still be said to have succeeded in trespass?
(3) Whether having regard to the plaintiff’s claim, the pleadings and evidence, the plaintiffs’ claim for perpetual injunction against the defendants ought not to fail?
(4) Whether in all the circumstances of the case, the 1st, 4th to 6th defendants are not entitled to defeat the plaintiffs’ action by reliance on the equitable defences of laches and acquiescence, long possession etc?
In the brief of the 2nd and 3rd Appellants filed on 4th March, 2001 and signed by one L.O.I. Ola six issues were raised for determination and as set-out in the brief they are in the following terms:-
(1) Whether or not the plaintiff has proved its title to the land in dispute which will warrant or warrants a perpetual injunction against all other claims to the said land.
(2) Whether or not the plaintiff has identified its land with mathematical accuracy and certainty.
(3) Whether the doctrine of laches, acquiescence and the statute of limitations have not favoured the defendants/appellants particularly the 3rd appellant
(4) Whether the plaintiffs’ case as claimed has not been destroyed by all the inconsistencies and contradictory evidence adduced by the plaintiff/cross-appellant
(5) Whether the plaintiff’s witnesses or any of the plaintiffs is really trustee of the Anglican Church and whether in fact Saint Francis Anglican Church is a registered entity as claimed by the plaintiff.
(6) What is the effect of failure to adduce evidence or tender documents showing that the Church is a registered entity or show evidence by way of documentary dispositions that the plaintiffs are infact registered Trustees of the Anglican Church, Lagos.
The 7th defendant/appellant through his brief of argument deemed to be properly filed on 27th June, 2001, identified five issues for determination; set out in his said brief they are in the following terms:
(1) Whether or not the trial courts rightly hold that the plaintiff/cross-appellant had established exclusive ownership and possession to the land the subject-matter of the dispute.
(2) Whether or not the land in dispute is sufficiently ascertainable with relative certainty.
(3) Whether or not the plaintiffs claim is caught by statute of Limitations or doctrine of laches and acquiescence.
(4) What is the effect of the irreconcilable inconsistencies in root of title paraded and relied upon by the plaintiff/cross-appellants at the trial of the suit;
(5) Whether the learned trial judge rightly came to the conclusion as relates to the true identity of J.A. Leigh, J. John and A. John without any piece of evidence before the court to justify the conclusion of the trial judge.
In the brief of argument of the plaintiff/cross-appellant filed on 14/12/99 four issues were raised for determination and they are in the following terms:
(1) Whether the trial court in the face of the uncontradicted evidence by the plaintiff’s witnesses were right to hold that plaintiffs have not proved their title.
(2) Was the trial court right in holding that the 2nd defendant’s house was outside the plaintiff’s land in the face of the clear evidence of P/W1 and P/W2 (the surveyor)
(3) What are the legal effects of the plaintiffs’ deeds of title which are well over 20 years?
ALTERNATIVELY
Is the 7th defendant and his cohorts not estopped from challenging the plaintiffs’ title having slept on their rights (7th defendant).
The above four issues were also identified for determination in the brief of argument of the plaintiff/respondent filed on 2/3/2000.
When this appeal came before us on the 15th of January, 2002, Alhaji H. A. Fasinro learned counsel for the 7th defendant/appellant adopted the brief of argument filed on 27/6/2001 and urged that the appeal be allowed, Mr. Fred Agbaje learned counsel for the plaintiff/respondent/cross-appellant, adopted the respondent’s brief filed on 2/3/2000, the reply brief filed on l12/10/2000, the reply brief to the 2nd and 3rd appellants brief which reply brief was filed on 3/4/2001 and the plaintiff/respondent/ cross-appellants brief filed on 14/3/2001 and urged that the appeal be dismissed while the cross-appeal be allowed.
Suffice it to say that the 1st, 4th, to 6th defendants/appellants urged this court in their brief of argument filed on 16/6/2000 to allow the appeal.
The reliefs sought at the lower court by the plaintiff/respondent/cross-appellant are two fold: damages for trespass and an order of injunction. Trespass to land is actionable at the instance of a person in possession of the land. The purpose of the action is to seek a redress for the violation of a possessory right. Though title may be in issue in a claim for damages for trespass: title is not a necessary issue to be determined in every claim in trespass. This is so because a person in possession can sue for trespass even if he is neither the owner of the land nor a privy to the owner. Exclusive possession of the land gives the person in such possession the right to retain it and to an undisturbed possession of it against all wrong doers except a person who can establish a better title.
However, once a defendant claims the ownership of the land in dispute, title in such circumstances, is said to have been put in issue and, to succeed, the plaintiff must show a better title than that of the defendant see (1) AMAKOR V. OBIEFUNA (1974)3 S.C 67, (2) CHINWENDU V. MBAMALI (1980)3 & 4 S.C 31 and (3) AJUWA & ORS V. ODILI (1985)2 NWLR (pt 9)710. The case of the plaintiff/respondent as could be gleaned from their pleadings is as follows: the plaintiff/respondent claimed they bought the land in dispute from one Williams Jones of Iwaya by virtue of a deed of conveyance dated 30/6/48 which was tendered in evidence as Ex. P1. The said land had formed part of a vast parcel of land which originally belonged to one CHIEF ALASE of Iddo from time immemorial Chief Alase had made a gift of the said land in dispute to one SARAH MARSH HARDEN by virtue of a Deed of GIFT. Sarah Marsh Harden according to the plaintiff later deposited the Deed of Gift with Messrs CHILD WILLS and Co. to secure a loan for her business. On running into bankruptcy, CHILD WILLS and Co sold the said parcel of land by public auction to one GEORGE GAY by virtue of a deed of conveyance dated 31st March, 1877. George Gay, in turn, sold the land to one OTEPOLA via a deed of conveyance dated 13th April, 1877. OTEPOLA sold the land to one OJO FUJA who later sold it to one JAMES LEIGH under a deed of conveyance. James Leigh sold the same land to one JOSEPH ADENIYI JOHN but executed no deed in his favour. Joseph Adeniyi John remained in free enjoyment and uninterrupted possession of the land and later bequeaths it to his children Taiwo John and Adeleye John through his WILL. Both Taiwo John and Adeleye John sold the same land to Edward Alexander Relly via a deed of conveyance dated 25/1/45 which was tendered in evidence as Ex. p2. Alexander Relly sold the said parcel of land to WILLIAM JONES, the vendor of the plaintiff/respondent. By virtue of a deed of conveyance dated 12th February, 1945 registered as No. 71/711662 tendered in evidence as Ex. P3. It is the further case of the respondents that they took physical possession of the said land from the time of sale having uninterrupted possession until sometimes in 1982 when the defendants trespassed on it.
The case of the 1st defendant appellant as explained in his amended statement of defence is that he is a boundary man with the plaintiff by virtue of a plot of land jointly owned by him and his brothers. He denied living on plaintiff’s land or having anything to do with it. The case of the 2nd defendant as stated in his pleadings is a total denial of committing trespass on the land. He however further averred that the entire land at Iwaya which includes the land in dispute belongs to the Oloto Chieftaincy Family by settlement from time immemorial denying that the Oloto Chieftaincy Family parted, with it to any of the plaintiff’s predecessor in title. To him Chief Oloto of Otto was never addressed as Chief Alase of Iddo.
He averred that he leased the land in dispute from the Oloto Chieftaincy Family in 1974. He built a bungalow on the land. The case of the 3rd defendant as explained in their pleadings is akin to that of the 2nd defendant. They sub-leased the land in dispute to one WILSON OMOREWA, a lessee of the Oloto Chieftaincy Family. The 3rd defendant through their Pleadings aver that original ownership of the land resided in the Oloto Chieftaincy Family, their overlord and that they went on the land in dispute by virtue of the transaction they had with and the authority of the Oloto Chieftaincy Family. The 5th and 6th defendants’ case follows that of the 2nd, 3rd and 4th defendants. The 7th defendant the head of the Oloto Chieftaincy Family who voluntarily joined in the suit asserted the ownership of a vast parcel of land which includes the land in dispute, denying that the head of the family was ever addressed as Chief Alase of Iddo. In his further averment, the 7th defendant said that the family exercised several acts of ownership by assigning leasing and selling parts of their family land to several people but the plaintiff. The above is the resume of the different cases of the plaintiff and the defendants as gleaned from their different pleadings.
Indeed, title is undoubtedly in issue. The root of title of the plaintiff/respondent according to their pleadings is from Chief Alase of Iddo. The defendants/appellants on the other hand, contend that the radical title to the land is in the Oloto Chieftaincy Family whose head has never been nor known as Chief Alase of Iddo but called Chief Oloto of Otto.
It is settled law that where a party’s root of title is pleaded, that root of title must be proved by positive and credible evidence in the first instance. Any consequential acts following therefrom can properly quality as acts of ownership where the root of title has not been established by evidence then it will be unnecessary to consider any acts of possession so exercised as such acts then become no longer acts of possession but acts of trespass. As I have pointed out earlier, the trial judge found for the plaintiff in terms of all his reliefs.
Dissatisfied with the judgment, the defendants have appealed therefrom to this court. When this appeal came before us on 15th of January, 2002, Alhaji Fasinro learned counsel for the 7th defendant/appellant adopted the brief of his client deemed to have been properly filed on 27th June, 2001 and urged that the appeal be allowed while the cross-appeal be dismissed. Mr. Fred Agbaje, learned counsel for the plaintiff/respondent/cross-appellant adopted the respondent’s brief filed on 23/3/2000, the reply brief of the plaintiff/respondent/cross-appellant filed on 12/10/2000 the reply brief of the respondent/cross-appellant’s reply to 2nd and 3rd appellants’ brief filed on 3/4/2001 and the plaintiff/cross-appellant’s brief filed on 14/12/99 and urged that the appeal be dismissed while the cross-appeal be allowed. As I pointed out earlier the 2nd and 3rd appellants filed a joint brief on 14/3/2001 signed by one L.O.I. Ola and the 1st, 4th 5th and 6th defendants/appellants have a joint brief of argument filed on their behalf by Fashanu Esq on 16/6/2000; no counsel appeared for them, the said two briefs are therefore deemed to have been argued. The 1st, 4th, 5th and 6th appellants identified 4 issues for determination and as couched in their brief of argument they are as follows:-
(1) Whether the plaintiff, though unregistered, had juristic personality to sue and maintain the action as “The Registered Trustees of the Anglican Diocese of Lagos” and if not, whether the judgment given thereof in favour of the plaintiff is not a nullity?”
(2) Whether having dismissed the plaintiff’s case for damages for trespass, the plaintiff could still be said to have succeeded in trespass?
(3) Whether having regard to the plaintiff’s claim, the pleadings and evidence, the plaintiff’s claim for perpetual injunction against the defendants ought not to fail.
(4) Whether in all the circumstances of the case, the 1st, 4th and 6th defendants are not entitled to defeat the plaintiff’s action by reliance on equitable defences of laches and acquiescence, long possession etc?
The 2nd and 3rd appellants identified 6 issues for determination, set out in their brief of argument they are as follows;-
(1) Whether or not the plaintiff has proved its title to the land in dispute which will warrant or warrants a perpetual injunction against all other claims to the said land.
(2) Whether or not the plaintiff has identified his land with mathematical accuracy and certainty.
(3) Whether the doctrine of laches, acquiescence and the Statute of Limitations have not favoured the defendants/appellants particularly the 3rd appellant.
(4) Whether the plaintiff’s case as claimed has not been destroyed by all the inconsistencies and contradictory evidence adduced by the plaintiff/cross-appellant.
(5) Whether the plaintiff’s witnesses or any of the plaintiffs is really trustee of the Anglican Church and whether in fact Saint Francis Anglican Church is a registered entity as claimed by the plaintiff
(6) What is the effect of failure to adduce evidence or tender documents showing that the Church is a registered entity or show evidence by way of documentary dispositions that the plaintiffs are infact registered Trustees of the Anglican Church, Lagos.
The 7th appellant, on his part, distilled 5 issues for determination and as contained in his brief of argument, they are in the following terms:-
(1) Whether or not the trial court rightly held that the plaintiff/cross-appellant had established exclusive ownership and possession to the land, the subject matter of the dispute.
(2) Whether or not the land in dispute is sufficiently ascertainable with relative certainty.
(3) Whether or not the plaintiff’s claim is caught by Statute of limitation or doctrine of laches and acquiescence
(4) What is the effect of the irreconciliable inconsistencies in root of title paraded and relied upon by the plaintiff/cross-appellants at the trial of the suit.
(5) Whether the learned trial judge rightly came to the conclusion as relates to the true identity of J. A. Leigh, T. John and A. John without any piece of evidence before the court to justify the conclusion of the trial judge.
The plaintiff/respondent/cross-appellant in response to the issues of the appellant put up 4 issues for determination and as set out in their brief they are as follows:
(1) Whether the trial court in the face of the uncontradicted evidence by the plaintiff’s witness was right to hold that the plaintiffs have not proved their title.
(2) Was the trial court right in holding that the 2nd defendant’s house was outside the plaintiff’s land in face of the clear evidence of PW1 and PW2 (the surveyor)
(3) What are the legal effects of the plaintiff’s deeds of title which are well over 20 years.
(4) Is the 7th defendant and his cohorts not estopped from challenging the plaintiff’s title having slept on his rights (7th defendant)
In respect of their cross-appeal, the Plaintiffs/respondent’ cross-appellants have distilled from the grounds contained in the cross-appeal 4 issues for determination they are contained in the plaintiffs/cross-appellants’ written brief of argument filed on 14/12/99 and they are materially the same as those which they have raised in their respondent’s brief of argument filed on 2/3/2000 in reaction to appellants’ brief.
I have had a close study of all the issues identified by the parties for determination. They appear, in each of the briefs, to be repetitive and profix or verbose. Some are even more than the grounds of the cross-appeal – a thing the Court of Appeal and the Supreme Court have frowned at in many of their decisions see (1) OYEKAN V. AKINTERINWA (1996) 7 NWLR (PT.459) 128 and (2) EDE VS. OMEKE (1992) 5 NWLR (PT. 242) 428. However, as I have earlier pointed out, the main issue that calls for resolution in this matter is who has a letter title between the two parties. Before I go on this crucial issue, I feel compelled to resolve the preliminary point as to whether the plaintiff is a juristic personality as, to be capable of instituting this action. Undoubtedly, it is the plaintiff who are asserting its juristic personality that has the onus of proof of it cast on them. It is however elementary and fundamental those issues before the court are decided on the pleadings of the parties. It is the pleadings that bring forth issues joined by the parties. But to raise an issue of fact there must be a proper traverse in the sense that the denial must be specific. A plea by a defendant that “he is not in a position to deny or confirm or a plea that the defendant puts the plaintiff to proof” or a plea that the defendant does not admit correctness of a particular allegation in a statement of claim” as reflected in the various statements of defence of the defendants/appellants, has been held to be insufficient denial indeed it has been held to tantamount to an admission see (1) MESSRS LEWIS & PEAT (N.R.I.) LTD VS. AKHIMIEN (1976) 7 S.C. 157, (2) CHIEF (MRS) AKINTOLA & ANOR V. MRS. SALAMO (1986) 2 NWLR (PT 24) 598 and (3) OSIBA & ANOR V. MUE MUE (1999) 10 NWLR (PT 622) 174 following what I have said supra, it is my view that issue of the mistic personality of the plaintiff has not arisen for determination same having, in law, been deemed to have been admitted. Issue No 1 on the 1st, 4th, 5th and 6th appellants’ brief and Issue No 6 in the 2nd and 3rd appellants’ brief are hereby resolved against them respectively.
Back to the main issue – the determination of who has a better title between the two. I shall now examine the evidence. The first witness called by the plaintiff/respondent was Chief Gabriel Oliyide Sodipo who described himself as the Deputy Registrar of the plaintiff in his testimony he said:
“The land in dispute is at Iwaya, Yaba, Lagos State. The land belonged to the plaintiff. The plaintiffs bought the land in 1948 from one William Jones and we have a deed of conveyance to that effect. This is a certified true copy of the said deed of conveyance. The land originally belonged to the Alase of Iddo. By a deed of Gift the Alase of Iddo gave the land to one Madam Sarah Harsh Harden.
The deed of conveyance dated 30/6/48 registered as No 42/42/776 was tendered as at P1. Four other deeds of conveyance recited in Exhibit P1 dated 25th January, 1945 registered as No. 1/1/662, 12th February, 1945 registered as No 35/35/662 and 24th February, 1945 as No 79/79/662 were also tendered and admitted in evidence as Exhibits P2, P3, P4 and P5 respectively. A survey plan No Be 43 dated 20/8/43 drawn by one Bola Cole in 1943 which contains the land described in Exhibits P2 and P3 was also tendered as Exhibit 6. The certified true copy of the Deed of Gift dated 23rd November, 1864 registered as No 109/546/2 was tendered as Exhibit P7 in line with their pleadings a deed of Conveyance by Which the company to whom Handen pledged the land, later sold it on its going bankrupt, was tendered as Ex P8. It should be pointed out that those other persons to whom the land was sold in succession were tendered as Exhibits P9 and 10 respectively. Other various acts of possession exercised by the plaintiffs were given in evidence they also said they challenged the defendant when they came on the land. But, continuing his testimony, he said the Oloto Chieftaincy Family have never challenged their rights on the land. Under cross-examination he said:
“The original owners of the land are the Alase of Iddo. I know that there is no iota of truth that the Oloto conveyed the land to Ogunmayin. We did not buy from Alase but from Wills Jones in 1945 and we got a conveyance in 1948. It is from that conveyance that we traced the history of our land to Alase in 1864”.
The other two witnesses – Okusanya and Ajayi, in the testimonies denied the title of the Oloto Family to the land in dispute. The 1st D/W one Dairo, a student who testified on behalf of his father the 1st defendant who was said to be sick said that his father did not demolish any fence belonging to the plaintiffs neither was he the boundary man of the plaintiff. The 2nd defendant a tenant of the Oloto Chieftaincy Family said he is on the land at the instance of the Oloto family and he attended St. Francis Church at Iwaya erected by the plaintiffs. The 3rd defendant predicated his case on that of the 2nd defendant. In his testimony the 4th defendant said his latter father was the tenant of the Oloto Family since 1925. He denied that they demolished the fence of the plaintiff. He would not know the size of the plaintiff’s land. The 5th defendant testified admitting the over lordship of the Oloto family but denied ever going on the plaintiff’s land.
The 6th defendant said he gathered from his late father, who lived and died at No 2A St. Francis Compound, Ebute-Ilaje, Iwaya and where he (6th defendant) now lives that Oloto family are their overlord. The 7th defendant – Rufai Fashola Ajayi testifying through one Yekini Amosu asserted the overlordship of the Oloto family over the land between Iddo and Ogudu which embraces the land in dispute. He would not know Alase of Iddo and never heard of him in history. The Oloto family belongs to a group of land – owning family called the IDEJOS.
The 1st – 6th defendants/appellants rest their case on the 7th defendant/appellant – their overlord. The learned trial judge upon reviewing the evidence on both sides, which evidence I have recapitulated supra, rightly in my view held that both sides have failed to prove their title to the land. But the witnesses from the defence agreed that the plaintiff/respondent was in possession of the land, their Church – St. Francis Church still remains on the land and it has been there for long. They (plaintiff/respondent) fenced their land. Both sides are ad idem that there is in existence ST. FRANCIS COMPOUND, Iwaya, Yaba. Some of them even live in that compound. There is the uncontradicted evidence that the Plaintiff/respondent cross-appellant is in possession. The plaintiff/respondent/cross-appellant’ action is for damages for trespass and injunction simplicity, for the umpteenth time, I wish to say that a claim in trespass, as in the instant case, is predicated entirely on possession of land, not necessarily on ownership of the land. It follows therefore that trespass to land is actionable at the instance of the person in possession of the land. Any slightest possession in the plaintiff enables him to maintain an action, successfully, against a defendant who -cannot show better title. I should even go further to say that an established owner of a parcel of land may be liable in trespass to a person who is in possession if the former’s right to recover possession has not ripened to one immediately exercisable in law. There is evidence from the defendants/appellants that they went on the land in dispute. Although there is the evidence that the fence erected by the plaintiff encompassing the land was demolished, there is no satisfactory evidence from the plaintiff/respondent/cross-appellants that the defendants were responsible for the demolition I agree with the finding of the learned trial judge in this wise. The claim for N10, 000.00 for unlawful demolition of the fence cannot therefore stand as rightly held by the court below. However, since 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, the claim of N1, 000.00 as general damages will stand see SOLOMON & ORS. V. MOGAJI & ORS. (1982) 11 S.C. 1. The learned trial judge was therefore wrong in dismissing the claim of N1, 000.00 as general damages for trespass. In his dealing with the claim for injunction, the learned trial judge held:
“Plaintiff’s 2nd claim is for an injunction restraining the defendants from further acts of trespass ……………
AN ORDER OF PERPETUAL INJUNCTION is hereby made and the 1st, 3rd, 4th, 5th and 6th defendants, their servants, agents and privies are hereby restrained from going on/or from committing further acts of trespass on the parcel of land known and situate at ST. FRANCIS C.M.S. Church Compound, Iwaya, Yaba Lagos State.
In the first place, the plaintiff did not claim for an order of perpetual injunction. They only claimed for an order of injunction. It is trite that a court of law does not award in excess of what a successful litigant claims. Even if they (plaintiff) had claimed for an order of perpetual injunction, having failed to establish their ownership of the land: they thus become limited owners of the land. The law is common place that an order of perpetual injunction is never granted at the instance of a limited owner when the owner of the absolute interest is not a party to the suit see CHIEF DADA, THE LOJAOKE V.CHIEF OGUNREMI & ANOR (1967) NMLR 181. What the plaintiffs’ are entitled to here is an order of injunction simpliciter. From all I have been saying issue No 2 on the 1st, 4th, 5th and 6th defendants’ brief is answered in the affirmative; Issue No 3 is answered in the affirmative – the claim for perpetual injunction must fail while Issue No 4 is answered in negative – the equitable defences are not open to the 1st, 4th and 6th defendants. Issue No 1 in the brief of the 2nd and 3rd appellants is answered in the negative; Issue No 2 is answered in the affirmative and Issue No 6 is non sequitur.
With no finding of exclusive ownership of the land in favour of the plaintiff regards to issue No 1 in the 7th defendant/appellant’s brief there was but the trial court was right in holding that exclusive possession was
in the plaintiff. Issue No 2 on that brief is answered in the affirmative. Issue No 3 is answered in the negative. As regards issue No 4 I wish to say that the effect is that the plaintiff could not be declared the owner of the land and that was what the trial judge rightly did. Issue No 5 is answered in the affirmative. Issue No 1 in the plaintiff/respondent/cross-appellant is answered in the affirmative having regard to what I have said above. The plaintiffs failed to sufficiently prove their title to the land. With respect to issue No 2 on the cross-appellant’s brief since P/W2 (the surveyor) was not categorical as to whether the 2nd defendant/appellant’s property was on the land in dispute: it must be remembered that in his testimony all he said was that most of the names were within the property of the plaintiff/cross-appellant: the trial court was therefore right in holding that the 2nd defendant’s house was outside the land in dispute. So the answer to issue No 2 is in the affirmative. As regards issue No 3 even though the plaintiffs are well over 20 years, since the plaintiffs have failed to prove their root of title with convulsing evidence the deeds are of no evidential value in establishing their root of title which by their own showing, is rooted in Alase of Iddo. Relating all I have been saying to issue No 4 and realising that the defendants did not counter – claim and since there has been failure in proving the root of title of the 7th defendant on whom 1st-6th defendants rely, the issue of sleeping on rights which were never established does not arise.
In view of the foregoing, the only conclusion I can reach and which I now reach is that the appeal succeeds in part. The order of perpetual injunction was wrongly made. The cross-appeal, to the extent to which it complains about the findings of the court below that the plaintiffs have not proved their title and that the 2nd defendant’s building does not fall within the plaintiff’s land, is hereby dismissed.
In place of the order made by the court below, I make the following:
(1) The 1st, 3rd, 4th, 5th, 6th and 7th defendants/appellants, as adjudged trespassers, shall jointly pay the sum of N1, 000.00 as damages for trespass committed by them or through their servants and/or agents on the plaintiffs/respondent/cross-appellant’s landed property at Iwaya, Lagos.
(2) An order of injunction is hereby made restraining the 1st, 3rd, 4th, 5th, 6th and 7th defendants, their servants and/or agents and privies from further entering upon the plaintiff’s said landed property and committing further acts of trespass thereon.
There shall be no order as to cost.
Other Citations: (2002)LCN/1111(CA)
