Tiamiyu Adewole V Joseph Popoola Dada (2003) LLJR-SC

Tiamiyu Adewole V Joseph Popoola Dada (2003)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C.

In the High Court of Justice holden at Ibadan the plaintiff claimed against the defendant as follows –

“1. N1,000.00 representing damages for trespass committed and still being committed by the defendant by himself and through his agents on the plaintiff’s land situate, lying and being at Idi-Ogun Awotan via 1badan.

2. Injunction restraining the defendant by himself, his agents, servants and or privies or otherwise howsoever from committing further acts of trespass on the said land.”

The pleadings ordered were duly filed and exchanged between the parties. These were later amended by leave of court. At the hearing both the plaintiff and the defendant gave evidence and called witnesses to support their respective claims.

Briefly stated the plaintiff’s case is that the land in dispute forms part of a large tract of land originally belonging to one Fijabi by settlement. In his life time, Fijabi granted absolutely a portion of his land to Alade, the great grand-father of the plaintiff. Alade gave birth to two children, Dada (male) and Iyabode (female). Iyabode died without issue and Dada inherited Alade’s landed property. The grant devolved on Dada’s children including the plaintiff’s father who exercised various acts of ownership and possession on the land right from the grant including for example a grant made by Dada to one Fagbemi, the father of the defendant for building and farming purposes. The area granted to Fagbemi by Dada is verged yellow in the plaintiff’s plan exhibit A in the proceedings. The defendant had built houses on the area granted to his father and the plaintiff is not claiming that portion of the land edged yellow.

On the other hand the defendant claimed that the land in dispute did not at any time form part of the land originally owned by Fijabi. He said one Abodunde Ajagbe Igo, his grand-father acquired same by settlement and that the property had devolved on him by inheritance. He claimed that it was Abodunde Ajagbe who made an allotment of part of the land in dispute to Dada, plaintiff’s grandfather and not to Alade, plaintiff’s great grand-father, and that it was on the basis of payment of Ishakole or tribute by Dada.

At the conclusion of evidence counsel on both sides addressed the court. The learned trial Judge in a reserved judgment carefully considered the facts of the case and the issues raised before him and found for the plaintiff when he concluded his judgment as follows-

“Having accepted the plaintiff’s case – the grant to his ancestor, I hold that the only portion granted by his grand-father to Fagbemi was that area edged yellow to which the defendant was called and on which the defendant has built three houses. The defendant, having been found on other area of the land in dispute as testified truthfully in my view by 7th plaintiff witness, has committed acts of trespass for which he should pay damages, assessed at N200.00 (two hundred Naira). As the leg of trespass of the plaintiff’s claim has succeeded, an order of injunction should follow as the plaintiff is not prepared on the evidence before me to entertain the defendant’s presence on the land in dispute, as distinguished from the area conceded to the defendant’s family. See Obanor v. Obanor (1976) 1 All NLR 39 at 43; (1976) 2 S.C.1.

In conclusion, the defendant, his agents, servants and or privies or otherwise howsoever are restrained from committing further acts of trespass on the land in dispute.”

Dissatisfied with the judgment of trial High Court, the defendant appealed to the Court of Appeal Holden at Ibadan. The following issues were formulated for determination in that court-

“1. Whether the plaintiff proved title to the land in dispute by grant to Alade by Fijabi by credible evidence of the plaintiff’s 3rd and 5th witnesses.

2. Whether on the evidence before the learned trial Judge the defendant committed and was still committing acts of trespass on the land in dispute by himself and through his agents.
3. Whether the plaintiff was entitled to the order of injunction against the defendant in respect of the land in dispute.”

The Court of Appeal (Coram Ogundere, Ogwuegbu and Salami, JJCA), carefully considered each and everyone of the above issues and found against the defendant on each of them. Salami, J.C.A. in the lead judgment (which was concurred in by the other Justices) concluded as follows –

“All the grounds of appeal canvassed on behalf of the appellant (meaning defendant) fail and are dismissed. Accordingly the appeal fails and it is dismissed by me. The respondent (meaning plaintiff) is entitled to the costs of this appeal which I assess at N300.00.”

Still dissatisfied with the judgment of the Court of Appeal, the defendant has now further appealed to this court. In obedience to the Rules of Court, counsel on both sides have filed and exchanged their briefs of argument in the appeal. These were adopted and relied upon at the hearing.

Chief Ogundeji learned counsel for the defendant has identified the following issues as arising for determination in this appeal –

“(a) Whether the plaintiff who failed to prove his title to the land in dispute could sustain his claim for trespass against the defendant in the circumstances.

(b) Whether on the pleadings and facts before the court, the defendant committed any act of trespass against the plaintiff.

(c) Whether an appellate court could go outside issues formulated before it to dismiss an appeal.

(d) Whether justice of the case warranted the grant of an injunction against the defendant.”

A careful reading of the issues above will clearly reveal that issues (a) and (b) are both rooted in the finding of trespass against the defendant. These issues are therefore the same as issue (2) in the Court of Appeal. Issue (d) here now is the same as issue (3) in the Court of Appeal as they both relate to the grant of an injunction against the defendants. The only new issue before this court now is therefore issue (c). I therefore intend to consider issues (a), (b) and (d) together and issue (c) separately.

Issues (a), (b) and (d)

As I have said already these issues relate to the findings of fact of acts of trespass on the part of the defendant by both the trial High Court and the Court of Appeal and, the consequent award of damages for trespass and the grant of an order of injunction restraining the defendant from committing further acts of trespass on the disputed land. It was the same argument in the Court of Appeal as well as in this court. The short answer is that this court ought not to disturb or lightly depart from concurrent findings of fact of the two lower courts as it has no opportunity of seeing and listening to the witnesses testify unless in exceptional circumstances when it is shown that such concurrent findings were perverse or based on a wrong perspective of the whole case, which if unconnected will lead to a miscarriage of justice (see for example Ebba v. Ogodo (1984) 4 S.C. 84; (1984) 1 SCNLR 372; Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101; Aruna & Anor. v. The State (1990) 6 NWLR (Pt. 155) 125.

Defendant’s counsel in his brief has not been able to show that the finding of trespass against the defendant by the two lower courts were perverse. The record which I have read clearly established that the finding was supported by evidence before the trial court.

As regards issue (a.), I ought to add that it is settled law that a claim for trespass as in this case, is not dependent on the claim for a declaration of title because the issues to be decided on the claim for trespass are whether the plaintiff has established his actual possession of the land and the defendant trespassed on it, as was done in this case. These are separate and independent issues from that in a claim for a declaration of title (see for example Oluwi v. Eniola (1967) NMLR 339. The case of Nwadiogbu & Anor. v. Nnadozie & Anor. (2001) 12 NWLR (Pt. 727) 315; (2001) FWLR (Pt. 61) 1625 which the defendant’s counsel said is on all fours with this case is not correct. The facts are completely different in the two cases. In that case the plaintiff did not only fail to prove title to the land in dispute, he also failed to prove that he was in exclusive possession. In the present case the plaintiff has exclusive possession.

The law is equally settled that a claim for an injunction is not necessarily to fail after a claim for a declaration of title fails provided the area of the land in respect of which an injunction is sought is clearly defined (see Oluwi v. Eniola (supra). It is clear from the record that the plaintiff in this case did not claim for a declaration of title. The defendant has woefully failed in my view to impugn the judgments of the lower court.

Issues (a), (b) and (d) are therefore each resolved against the defendant.

Issue (c)

The brief shows that this issue is clearly misconceived. The defendant appeared to be saying that (i) the removal of pillars on the land in dispute and (ii) the chasing away of plaintiff’s tenants away from the land in dispute, were not acts of trespass against the plaintiff but against the tenants who were in physical possession. The defendant also contended that the removal of pillars was not a continuing trespass. The defendant no doubt knew that the tenants on the land were put there by the plaintiff. So also were the pillars. And the land belonged to the plaintiff. What else does the defendant want Those acts constitute acts of possession on the part of the E plaintiff (see for example Alatishe v. Sanyaolu (1964) 1 AII NLR 398, Mogaji v. Cadbury (1972) 2 S.C. 97. A person can certainly be in possession through a third party, such as servant, agent or tenant as in this case. Also possession of a predecessor in title is in law deemed to be continued by his successor.

It must be noted that neither the trial High Court nor the Court of Appeal went outside the issues placed before them to dismiss defendant’s case. And the argument in the brief on the issue shows that it is clearly a misconception on the part of the defendant.

Issue (c) also fails.

All the issues having failed, the appeal must also fail. It is accordingly dismissed with N10,000.00 costs in favour of the plaintiff.

SC.44/1997