Veronica Graham & Ors V. Lawrence Ilona Isamade Esumai & Ors (1984)

Veronica Graham & Ors V. Lawrence Ilona Isamade Esumai & Ors

LawGlobal-Hub Lead Judgment Report


The appellants herein were the defendants at the Onitsha High Court in Suit No.0/47/76. In that suit the plaintiffs (respondents herein) had, in a representative capacity, sued the appellants claiming the following reliefs:

“(a) Declaration of title to the property/premises known and situate at No.3 Moore Street, Onitsha within the jurisdiction of the Honourable Court, annual value N10.00;

(b) N200.00 (Two Hundred Naira) damages for trespass;

(c) Perpetual injunction to restrain the defendants, their agents, successors in title and assigns from further acts of trespass on the said property/premises, No.3 Moore Street, Onitsha.”

Pleadings were duly ordered, filed and exchanged. The plaintiffs in their amended statement of claim pleaded that their father, late Isamade Esumai, purchased a piece of land from the Mgbelekeke Family of Onitsha, which included the property in dispute, for the purpose of erecting a building in which he would live with his family; that the purchase price paid by their father was –

(a) one bottle of gin (b) one head of tobacco and (c) one piece of cloth; that at that time one Madam Victoria Onyemulu had already built a two-room bungalow on a piece of land north west of the land in dispute; that both Madam Victoria Onyemulu and the plaintiffs’ father had been boundary neighbours all the time; that the plaintiffs’ father erected a residential building on the land purchased by him and lived there with his wife; that after their father’s death, the plaintiffs and their other relations continued to live in the house, that in 1955 after the death of their father, the 1st plaintiff, for and on behalf of the other relations granted a lease of the property in dispute to one Patrick Anyachebelu for a period of twenty-five years; that under the said lease the plaintiffs and their mother were to own and occupy some rooms on completion of the house by Patrick Anyachebelu; that the said Patrick Anyachebelu died about 1957 after erecting a bungalow of three rooms, two shops, a kitchen, a latrine and a bathroom in accordance with the terms of the lease; that the plaintiffs and their mother occupied the three rooms; that in 1967 during the civil war, the plaintiffs and their mother deserted the property; that after the war in 1970 the plaintiffs returned to the property; that as the main bungalow built by Patrick Anyachebelu had been destroyed, they erected an improvised structure on the property where they continued to live;

that in 1976 the plaintiffs entered into a new lease agreement with a company known as I. I. Udeaja & Sons Ltd; that under the terms of the lease, the company were to erect a permanent building on the property and the plaintiffs were to own and occupy some rooms in the building, while the stores and shops in the building were to be occupied by the said company as tenants; that when the said building had reached the “window- level” stage, the defendants, acting in concert, broke and entered the property, pulled down the structure so far erected, and destroyed and damaged their cement blocks, windows and door frames.

In their statement of defence, the defendants averred that the land in dispute was part of a larger area of land acquired by their relation, Madam Victoria Onyemulu, under Kola tenancy from the Mgbelekeke family of Onitsha; that the plaintiffs’ father Isamade Esumade once served as a domestic retainer of Madam Victoria Onyemulu; that it was when the plaintiffs’ father wanted to marry that Madam Onyemulu permitted him to erect a hut on the land in dispute; that in 1945 Madam Victoria Onyemulu invited the plaintiffs’ father to buy the land on which he had erected his hut or vacate the place to enable Madam Onyemulu sell the same to other people; that as the plaintiffs’ father was unable to raise the necessary amount, half of the land was sold by Madam Victoria Onyemulu to one Madam Akaba; that soon after this event, Madam Onyemulu died and no member of her family took any further action to evict the plaintiffs’ father who continued to live on the land in dispute with his family.

The defendants admitted the lease of the property to Patrick Anyachebelu as pleaded by the plaintiffs but contended that the lease was in fact authorised by their father, Charles Graham. They also admitted that the plaintiffs deserted the property during the war; that the property was in fact destroyed and that after the war, the plaintiffs returned to the place and resumed occupation of the damaged building. They, however, denied committing any acts of trespass on the property as alleged by the plaintiffs.

At the trial evidence was adduced by all the parties in support of their pleadings, and at the end of the day, the learned trial judge, Awogu, J, dismissed the plaintiffs’ claim in respect of title and injunction but non-suited the claim in respect of damages for trespass. The defendants did not appeal against the order of non-suit in respect of the claim for trespass. However the plaintiffs (i.e. the respondents herein) appealed to the Court of Appeal against the whole judgment on various grounds.

In their judgment the Court of Appeal dismissed the respondents’ claim for declaration of title and there is no appeal against that decision in this court. It also set aside the judgment of the Onitsha High Court as regards damages for trespass and injunction and awarded N200.00 damages for trespass in favour of the respondents herein as well as an order of injunction against the appellants. It is against this decision that the appellants have appealed to this court.

Originally, four grounds of appeal were filed. But when the appeal came up for hearing on 2nd October, 1984, two of those grounds – grounds 1 and 3 were struck out. This was because these grounds raised questions of mixed law and fact for which no leave was obtained pursuant to section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979.

Ground 2 of the original ground of appeal complains of an error in law and what is called ‘non-direction’. It reads as follows:

“Ground (2) Error in Law and Non-Direction:

The learned trial (sic) judges erred in law and did not direct their minds to the most recent statement of the law by the Supreme Court of Nigeria in respect of the laws of trespass and possession when they held in the majority decision in the leading judgment read by His Lordship the Honourable Mr. Justice Phil-Ebosie as follows –

‘The respondent’s counsel on the other hand maintained that the basis for the judge’s decision on the issue of trespass was right since the appellants were not in possession in law or in fact at the time of the alleged trespass. He relied on the case of Okafor vs. Uzoka reported according to the learned counsel in 1978 3 S.C. 77 at pages 86 – 89 a case I have been unable to trace in the quoted reference and other reports.”

In the particulars of error that followed this ground of appeal in the record and also in his written brief, learned counsel for the appellants explained, in some detail, what he thought might have been responsible for the inability of the Justices of the Court of Appeal to secure a copy of the law report containing Oketo’s case.

His explanation was that two published reports of the Reserved Judgments of the Supreme Court of different dates and contents were directed to be cited as “(1978) 3 S.C.”.

  1. It was learned counsel’s submission that if the learned Justices of the Court of Appeal had applied the principle of law laid down in the case cited, their decision would have been different.

Now, in-order to understand the con in which the passage of the judgment of the Court of Appeal referred to in this ground of appeal was made, it will be necessary to state briefly how the trial court dealt with the issue of trespass before it.

As stated earlier on in the judgment, the respondents in this appeal, as plaintiffs in the High Court, were claiming not only a declaration of title to the property in dispute but also damages for trespass and injunction. It goes without saying therefore that in order to succeed in their claim for damages for trespass they must satisfy the court that they were in possession of the property at the time of the alleged trespass. It would appear the respondents had no difficulty in doing this. In this regard the learned trial judge in his judgment said:

“I am satisfied, however, that both exhibit C and the admission that Charles Graham signed as a witness to the contract lease are sufficient evidence that the plaintiffs are in possession of the land in dispute. In disturbing that possession the defendants are liable in trespass.”

Having made some specific findings of fact, based on the evidence adduced, that the respondents were in possession, that their possession was disturbed by the appellants and that in disturbing that possession the appellants were liable in damages, the learned trial judge then went on and concluded thus:

“Unfortunately, the evidence of the plaintiffs discloses the fact that plaintiffs granted a lease in 1975 to Patrick Anyachebelu for 25 years. Thus plaintiffs cannot therefore be in exclusive possession of the land in dispute while the lease to Patrick Anyachebelu subsists. While the evidence disclosed that the buildings put up by Patrick Anyachebelu were destroyed during the civil war and the lessee later died, these two facts do not per se constitute termination of a lease in law, for a lease is not put to an end by frustration. ..Accordingly, I hold that the plaintiffs cannot be in possession of No.3 Moore Street, Onitsha, now in dispute, until the lease to Patrick Anyachebelu expires. The plaintiffs are hereby non-suited in respect of claim for trespass.”

Thus the learned trial judge concluded that since there was, according to him, a subsisting lease of the property in dispute to Patrick Anyachebelu, the respondents could not, in law, be said to be in possession. He therefore non-suited the respondents in their claim for trespass. In the Court of Appeal it was contended on behalf of the respondents, that the learned trial judge was wrong to have based his decision on the question of the subsistence or otherwise of the lease to Patrick Anyachebelu when the issue was neither pleaded nor relied upon by the appellants in that court.

Respondents’ counsel in that court had no answer to this complaint. He simply said that he relied upon the decision in Okafor’s case. In his judgment, Phil- Ebosie, J.C.A. having said that he was unable to lay his hand on Okafor’s case, concluded:

“In any event it is my view that both in the pleadings and evidence the respondents never joined issue that possession of the land in dispute was in another person. It does follow in my opinion that non-suiting the plaintiffs in their claim for trespass on the ground that Mr. Anyachebelu’s lease was still subsisting, was introducing a new matter which was never pleaded nor relied upon by the respondents.”

It was solely on this ground that the Court of Appeal reversed the trial court’s decision on the issue of trespass and no argument has been advanced to show that the Court of Appeal was wrong in its decision.

In Oke-Bola and Ors. vs. Alhaji A.T. Molake (1975) 12 S.C. 61 at p.62, this Court said:

“The formulation of issues by a trial court, not based on the pleadings filed by parties in a case, may invalidate a judgment, because it was based on issues, which either party in the case did not raise in their pleadings, but for which they require a judicial decision.”

Again in African Continental Seaways Ltd. vs. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 235 at p.248, Irikefe, J.S.C., delivering the judgment of the court said:

“We should like to emphasize here again the need for all courts of trial to limit themselves severely to the issues raised by the parties in their pleadings and no more. To do otherwise might well result in a denial of justice to one or the other of the two contesting parties. See N.I.P. C. Ltd. & Anor. Vs. Bank of West Africa – 1962, 1 A.N.L.R. (Part 4) at p. 559, Kalio & Ors. Vs. Katio – 1975, 2 S.C. p.15, N./.P.C Ltd. Vs. Thompson Organisation & Ors. 1969 – 1 A.N.L.A. p.138, George & Ors. Vs. Dominion Flour Mills Ltd. 1963 – 1 A.N.L.A. p.71 and METALIMPEX Vs. A.G. Leventis & Co. Ltd. 19762 S.C. p.91.”

In the circumstances, I am in entire agreement with the Court of Appeal that the learned trial judge was in error to have based his decision on an issue which was neither raised nor relied upon by either party in their pleadings. I therefore do not see any merit in this ground of appeal.

With regard to the claim for trespass, as the learned trial judge had found on the evidence before him that the respondents were in physical possession of the land in dispute at the time of the trespass, he should have given judgment in their favour. In Pius Amakor vs. Benedict Obiefuna (1974) 1 A.N.L.A. (Part 1) 119 at p.126, Fatai-Williams, J.S.C. (as he then was) in delivering the judgment of the court 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 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 his averment), that the title to the land is in another person. To resist the plaintiff’s claim, a defendant must show that he is the one in actual possession or that he has a right to possession.”

Ground 4, which complains of an error in law and a misdirection reads as follows:

”The learned trial (sic) judges misdirected themselves in law in granting an order for an injunction without inviting argument from the plaintiffs/appellants’ counsel or from the defendants/respondents’ counsel.”

There are two complaints in this ground of appeal. The first complaint is that since plaintiffs’ counsel in the High Court had, at the close of argument, abandoned the plaintiffs’ claim for declaration of title and injunction, it was not right that the same counsel should again on appeal raise the same matters. In this connection reference was made to the dialogue which took place between plaintiffs’ counsel and the learned trial judge as recorded at page 31 of the record.

The question here therefore is whether the statement made by plaintiffs’ counsel at page 31 of the record could be properly regarded as an abandonment of any part of the plaintiffs’ claims in the High Court. I do not think so. In the first place there is nothing in the judgment of the learned trial judge to indicate in any way that any concession was made by plaintiffs’ counsel in respect of any of the plaintiffs’ claims before the court. Secondly it is clear from the record that the trial judge dismissed the plaintiffs’ claims for declaration of title and injunction, not because the two claims were abandoned by plaintiffs’ counsel, but because the judge was of the view that the claims were not supported by the evidence adduced. In his judgment, having reviewed the evidence adduced in support of the claims, for declaration of title and injunction, the learned trial judge concluded:-

“It is my view that the root of title of the plaintiffs in respect of the land in dispute is as weak as that of the defendants.

The claim for declaration of title to No. 3 Moore Street, Onitsha is accordingly dismissed. Also having regard to the conflicting claims of the parties and the fact that the plaintiffs have not proved their title to the land in dispute, the claim for injunction is hereby dismissed.”

The second complaint in this ground of appeal is that since the question of injunction was not raised on appeal, the Court of Appeal was in error to have taken it suo motu.

It is true that this Court has said on a number of occasions that although a court of appeal is entitled in its discretion to take a point suo motu if it considers it desirable to do so, yet the discretion must be very sparingly exercised; and where a point is so taken, the parties must be afforded an opportunity to address the court before a decision on the point is made by the Court of Appeal. See Kuti & Anor. vs. Jibowu & Anor. (1972) 1 All N.L.R. (Part II) p. 180 at p.192; Salawu Ajao vs. Karimu Ashiru & Ors. (1973) 1 All N.L.R. (Part II) p.51 at p.63; and Atanda & Anor. vs. Lakanmi (1974) 1 All N.L.R. (Part 1) p.168 at p.178. However in this case it is not correct to say that the issue of injunction was taken suo motu by the Court of Appeal. This complaint is not bourne out by the record as paragraph 2(b) of the notice of appeal and original ground two of the grounds of appeal at page 46 of the record show clearly that the respondents did appeal against the dismissal of their prayer for injunction. I therefore do not see any substance in the complaints in this ground of appeal.

On the whole this appeal lacks merit and it is hereby dismissed. The decision of the Court of Appeal is hereby affirmed with costs assessed at N300.00 in favour of the respondents.

OBASEKI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Kawu, J.S.C. His opinions on all the issues raised accord with mine and I adopt them as my own.

The main issue raised in this appeal was whether, where both on the pleadings and on the evidence there is admission by the appellants that the respondents were in physical possession of the property in dispute before they proceeded to destroy the buildings under erection thereon pursuant to a lease granted by the respondents to a third party and witnessed by the appellants, the respondents cannot claim in trespass against the appellants.

The appellants placed total reliance on the case of Okafo v. Uzorka (1978) 3 S.C. 77 at pp.86 – 89. Learned counsel for the appellants made a mountain out of the innocuous remarks of the learned Justice of the Court of Appeal, Phil Ebosie, J.C.A. that he could not trace the authority by the citation given by appellants’ counsel, which remark learned counsel has confirmed by his explanation that there is a report of the Supreme Court law reports for April, 1978 which should have read 4 S.C. but erroneously bore 3 S.C. where the case cited could be found. However, as the case was cited in support of the submission of learned counsel for the appellants that the respondents could not obtain relief in trespass because a lease of the property had been granted to a third party and the term granted has not expired, then it is necessary to see whether the facts of this case are on all fours with Okofo v. Uzorka (1978) 4 S.C. 77. In that case, the appellant as plaintiff claimed a declaration of customary title of ownership to a parcel of Iyiokpu, damages for trespass and injunction. A part of the land in dispute was let to Ibru Seafoods Ltd., and Ibru Seafoods Ltd. took physical control and effective possession of the land. The defendant therein broke and entered the land of the plaintiff, crossed into plaintiff’s land let to the Ibru Seafoods Ltd. and destroyed the buildings under construction. At page 87 of the report, I, delivering the judgment of the Court, said:

“The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title Whittington v. Boxall (1943) 12 LJ. Q.B. 318, Nwosu v. Otunofa (1974) 1 All N.L.R.

A tenant in occupation, as Ibru Sea Foods Ltd. in this case, can sue, but not the landlord except in cases of injury to the reversion. This is where the trespass has caused a permanent injury to the land affecting the value of the inheritance. Then he may sue for injury to his interest without waiting until his future estate falls into possession. Jones v. Llanrnwst (1911) 1 Ch. 393. But for a bare trespass even though committed under a claim of right of way he cannot sue Baxter v. Tayfor (1832) 4 B & Ad 72. He can however sue for acts of trespass which, if acquiesced in, would result in loss or gain of an easement.”

The facts of this case show that the terms of the lease granted by the respondents reserve a right of occupation of some apartments in the building under construction in the respondents. The respondents therefore had possession which was disturbed by the appellants and that entitled them to sue in trespass for damages.

The action of the appellants did injure the respondents’ reversionary interest. The respondents would have been left with the building at the expiration of the lease. This building was destroyed by the appellants thereby injuring the reversion of the respondents. 50

I too will therefore dismiss the appeal and I hereby dismiss it. Costs to the respondents is hereby assessed at N300.00.

ANIAGOLU, J.S.C.: I had been privileged to read in draft the judgment just read by my learned brother, Kawu, J.S.C., and I am in complete agreement with his reasoning and conclusion.

For those reasons, I, too, would dismiss this appeal and hereby dismiss it with costs to the respondents assessed at N300.00.

COKER, J.S.C.: For the reasons given by my learned brother, Kawu, J.S.C., in his lead judgment, which I have read in draft, I agree that this appeal has no merit and should be dismissed.

The appellants in their pleading and evidence agreed, and the trial court found, that the respondents were in lawful possession of the land at the time they broke in and demolished the structure which was under construction by I. I. Udeaji & Son Ltd. The head of the appellants’ family approved and acknowledged the lease granted and executed by the respondents in favour of the company. It was immaterial whether the respondents were true owners as contended by them or, as the appellants contended, customary tenants of the appellants’ family. The important fact was that appellants were not in possession at the material time and had no lawful right to possession. The trial judge was therefore right in finding that they were trespassers. See Amusa Alii Owe v. Oshinbajo (1965) 1 All N.L.R. 72, p.76, where it was held that once the plaintiff can establish his possession, even if he be a trespasser, the defendant can only justify his entry on the land by showing a better title or right to possession. The appellants failed to discharge that onus. While the trial judge was right that they were trespassers, he erred in refusing to enter judgment for the respondents, on an irrelevant ground which was never an issue before him. I hold the view, as Phil-Ebosie, J.CA, that he was in error.

I associate myself with the reasoning and conclusion of Kawu, J.S.C., in the lead decision. The appeal therefore fails and is dismissed. I agree also with the order for costs of this appeal made by Kawu, J.S.C.

OPUTA, J.S.C.: The present appellants were the defendants in the Onitsha High Court Suit No 0/43/76. The claim of the plaintiffs now respondents in this court was for:

i. Declaration of title to the property/premises known as and situate at No.3, Moore Street, Onitsha.

ii. N200 (two hundred Naira) damages for trespass.

iii. Perpetual injunction to restrain the defendants, their agents, successors in title and assigns from further acts of trespass on the said property/premises, No.3, Moore Street, Onitsha.

Awogu, J. in the court of first instance dismissed the plaintiffs’ claim for declaration of title and non-suited them with regard to their claim for damages for trespass. The trial court was silent on the claim for a perpetual injunction although the judgment ended on a note from which it could be inferred that the claim for injunction was refused, for the learned trial judge ended thus: “On the whole, the action fails and costs in favour of defendants are assessed at N100.00.”

The plaintiffs dissatisfied with the above judgment of Awogu, J. appealed to the Court of Appeal, Enugu Division. Their appeal was allowed in part and the court below per Phil-Ebosie, J.CA with Olatawura, J.C.A. concurring, directed that the judgment of the trial court be varied as follows:

  1. Dismissing the appellants’ claim for declaration of title.
  2. N200.00 damages for trespass in favour of the appellants, and
  3. An order for injunction restraining the defendants, their servants, agents and assigns from further trespass on the land in dispute. Aseme, J.C.A. was more liberal. He non-suited the plaintiffs’ claim for declaration of title awarded them N200.00 damages for trespass and made an order for injunction. The present appeal is against the above judgment of the Court of Appeal.

Four grounds of appeal were filed dealing with:-

  1. Error in law and mis-direction;
  2. Error in law and non-direction;
  3. Error in law; and
  4. Error in law and misdirection

respectively. Briefs were also filed on both sides. On 2nd October, 1984, when the appeal came up for hearing, learned counsel for the appellants, B.O. Anyaduba, Esquire, was hard put to it, to convince the court that he could argue all the grounds he filed. It is correct that a mis-direction is an error in law. It is also correct that an error in law is a question of law. But by the very nature of what a misdirection is, it invariably happens that the particulars of an alleged misdirection will ultimately involve a consideration of issues and questions of fact. After all a misdirection is essentially a failure to submit issues of fact or the applicable law fairly and adequately for the consideration of the tribunal or jury. It is therefore safer to obtain the required leave under S. 213(3) of the 1979 Constitution for any ground of appeal alleging a misdirection, if for nothing, out of an abundance of caution.

From the particulars of the misdirections complained of in ground 1, in part of ground 2 and in ground 3, it was obvious that at best these grounds will involve questions of fact or questions of mixed law and fact. Mr. Anyaduba had to concede that leave was necessary for grounds 1 and 3. None was sought and none was obtained. Those two grounds were therefore struck out as incompetent because by the provisions of section 213(3) of the 1979 Constitution, making leave a precondition for this Court’s adjudication, it is this leave that will invest the court with jurisdiction. On ground 2 Mr. Anyaduba also conceded that, that ground will be competent, only if he limited himself to non- direction. The argument was thus limited to ground 4 and part of ground 2 dealing with non-direction.

I have had the privilege of reading in draft the leading judgment just delivered by my learned brother Kawu, J.S.C. I fully agree with his sound reasoning and conclusions.

I will however like to comment briefly on one or two aspects of this case which keep on arising in land matters namely:

  1. Proof of title by traditional evidence.
  2. The effect of S.145 Evidence Act on the burden of proof cast on a claimant
  3. The claim for trespass where plaintiff’s possession is admitted.

There is no need to set out the facts of this case fully. That has been beautifully done in the lead judgment. But I will set out as much of those facts as are necessary for my proposed comments.

Traditional Evidence


Both parties in this case pleaded and relied on traditional history as their root of title. There is no doubt that a claimant can establish his title solely on the basis of traditional evidence. In Ado v. Wusu the Asantehene’s Divisional Court B accepted the traditional history of the plaintiff, disbelieved the defendant’s version 5 and found in favour of the plaintiff although the defendant and his ancestors had been in undisturbed possession of the land for 200 years. This case came up before the West African Court of Appeal twice – first in 1938 as 4 WACA 96. and again in 1940 as 6 WACA 24. One thing appeared very clear from that case and that was, that when traditional history is put forward by the parties, it is incumbent and necessary if not imperative, that a clear and positive statement should be made by the trial court showing which story the learned trial judge accepted and which side he disbelieved before any finding is made. This seems to be perfectly logical because a finding is a conclusion upon an inquiry of the fact or facts in issue.

Therefore when two versions of an essential fact have been placed before the court, can the judge arrive at a proper finding without first believing one side and disbelieving the other In other words, there must be a trial of that issue before a finding can be made, one way or the other. And what is a trial Simply put, it is the finding out by due examination the truth of the point in issue, the truth of the essential question between the parties.

When parties to an action have answered one another’s pleadings in such a manner that they have arrived at some material points or matter affirmed on one side and denied on the other, the parties are said to be at issue. They have joined issue. When one party says yes and the other no to the same issue, both cannot be right, both cannot be believed; one has to be right and therefore believed while the other has to be wrong and therefore disbelieved. In other words, there ought to be this initial belief or disbelief before there can be any proper and meaningful resolution of the issue in dispute; before there could be any finding on that issue.

In the case on appeal, there was no clear and specific disbelief of the parties’ traditional histories before the learned trial judge found:

“It is my view that the root of title of the plaintiffs in respect of the land in dispute is as weak as that of the defendants.”

With the greatest respect to the learned trial judge, the above finding came a bit too soon for if the traditional history of the plaintiffs/respondents were believed their root of title will not be weak. The same goes for the defendants/appellants.

Occupation and User as Root of Title: Effect of Section 145 of the Evidence Act

From the pleadings and from the evidence in this case, it is common ground that both sides have been on the land in dispute for upwards of at least 60 years from 1925 or before. There is a saying that possession is nine-tenths of the law.

The plaintiffs/respondents in the court of first instance pleaded in paragraphs 20 to 26 of their statement of claim, their possession and various acts of such possession. In their paragraphs 12 and 14 of their statement of defence, the defendants now appellants admitted plaintiffs’ possession as pleaded. The question that now arises is: What is the effect of this admission on the claims for declaration and trespass I will take the claim for declaration first.

By section 145 of Evidence Act:

“When the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner”.

This court had in many cases discussed the burden of proof in land matters and what should be the correct approach by the trial court. No doubt the onus is on the plaintiffs to satisfy the court that on the totality of the evidence led, they are entitled to the declaration they seek. The judgment of the full court in Ekpo v Ita 11 N.L.R. 68 and of the West African Court of Appeal in Kodilinye v Odu 2 W.A.C.A. 336 at p. 337 have been quoted times without number to support this proposition of law which is a correct proposition. The Federal Supreme Court affirmed and followed the same proposition in Nwokafor & Ors. v. Udegbe & Ors. (1963) 1 All N.L.A. 104. This onus may be referred to as the primary one – the onus of establishing their case. This is quite apart from the secondary onus or the onus of adducing evidence. When as in this case, the plaintiffs’ possession is admitted in the pleadings in such circumstances the plaintiffs have discharged the secondary onus by the presumption which the law (section 145 of Evidence Act) makes in their favour. They have established a prima facie case. This seems to be the ratio decidendi in Onyekaonwu and Ors. v Ekwubiri (1966) 1 All N.L.R. 32 at p.34.

In this case on appeal, the admission by the present appellants of the plaintiffs/respondents’ possession strengthens the respondents’ case for trespass. There is no appeal by the respondents against the dismissal (or non-suit) of their claim for title by the court below. But that notwithstanding, section 145 of Evidence Act proves for the plaintiffs merely a prima facie case. If at the end of the day the trial judge is not satisfied that the plaintiffs have established their claim for title, he will be justified in refusing a declaration. Here the learned trial judge found that

“the root of title of the plaintiffs was weak”. It was not strong enough to sustain the declaration sought. This court emphasised this point in Vincent J. Bello v Magnus A. Eweka (1981) 1 S.C. 101 at p.102 that “where the court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence, not by admission in the pleadings of the defendant that he is entitled”, per Obaseki, J.S.C. It follows therefore that the presumption in section 145 of Evidence Act is a rebuttable presumption and it is rebutted if on the totality of the evidence led on both sides, the trial judge is not satisfied that the case in hand is a proper case for him to exercise his discretion to grant a declaration. It is perfectly legitimate for a trial judge to hold that the evidence taken as a whole (including any presumptions in favour of a claimant) does not satisfy him that a case for a declaration has been made out. The court below rightly in my view, distinguished the case of Onyekaonwu v Ekwubiri (supra).

Admitted Possession And Trespass

From the pleadings and the evidence led on both sides, the plaintiffs/respondents’ possession of the land in dispute was not in dispute. What was in dispute was whether or not they were in possession as the owners thereof. There was no averment in the pleadings and no evidence led to show that the plaintiffs/ respondents were trespassers on the land. Rather the trial court found:

“…it is clear that the plaintiffs have been on the land in dispute since 1925. What is not clear is the nature of their tenancy. In 1955, the plaintiffs granted a lease of the land in dispute to Patrick Anyachebelu and, later to S.1. Udeaja & Sons.”

The appellants having admitted the plaintiffs’ possession and the court of first instance having found that the plaintiffs/respondents have been in possession since 1925 and have granted leases of the land in dispute to the third parties, the onus shifted on the appellants to show a better title. This they did not do. Any form of possession so long as it is clear and exclusive and exercised with the intention to possess is sufficient to support an action for trespass. Even a trespasser can maintain trespass against all the world except the true owner. In this case, the learned trial judge did find that: “the earlier leases are sufficient evidence that the plaintiffs are in possession of the land in dispute. In disturbing that possession, the defendants are liable in trespass.”

5 This finding should have concluded the issue of trespass. But the learned trial judge digressed and started discussing the lease by the plaintiffs/respondents to Patrick Anyachebelu and concluded erroneously in my view that: “the plaintiffs cannot be in possession of No.3, Moore Street, Onitsha now in dispute, until the lease to Patrick Anyachebelu expires.”

If that lease expires, the land will revert to the lessors – the plaintiffs. Any damage to that reversion is still a damage to the party entitled to the reversion. Also faced with the fact of plaintiffs/respondents’ possession, the present appellants cannot successfully set up any jus tertii except where that jus derived from them.

In this case, the jus (the lease/right) derived from the respondents. The Court of Appeal was therefore right in holding that a case for trespass had been established and in varying the decision of the trial court accordingly. The appellants threatened to continue the trespass and had to be restrained by an interim injunction during the pendency of this appeal. In those circumstances, the court below was also right in restraining the appellants by an order of injunction.

It is for all the reasons given above and for the fuller reasons given in the lead judgment of my learned brother Kawu, J.S.C. that I will also dismiss this appeal. The appeal is dismissed with costs to the plaintiffs/respondents which I assess at N300 in favour of the respondents.

Appeal dismissed.


Published by

LawGlobal Hub

LawGlobal Hub is your innovative global resource of law and more. Among other things, we ensure easy accessibility to the laws of countries around the world.

Leave a Reply

Your email address will not be published. Required fields are marked *