ALHAJI MURAINA ADELELE & ORS. v. BELLO ATOYEBI & ORS.
(2003)LCN/1448(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of July, 2003
CA/I/215/90
RATIO
LAND LAW: TRESPASS TO LAND
“Therefore trespass to land is an offence against possession of land; it has nothing generally to do with title. Where the plaintiffs claims for an injunction as well to restrain further trespass against the defendants and the defendants claims ownership of the said land by decided authorities of the Supreme Court. See AMAKOR v. OBIEFUNA 1974, NMLR, P.331 at 336; or 1974 3SC 76; OKORIE v. UDOM SCNR 316 at 330, a proof of title to the said land becomes imperative…Trespass is an infraction of the right of possession of the plaintiff over his land be it ever so minute. See ENGLAND v. PALMER 1950, 1 WACA 659. See ANYADEJI VS. ADENLE (1993)9 NWLR Pt.316.” PER VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.
JUSTICES:
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
FRANCIS FEDEDO TABAI Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
Between
- ALHAJI MURANA ADELELE
2. LAMIDI OGUNKOLU
2. FATAI ORIOLA – Appellant(s)
AND
- BELLO ATOYEBI
2. ALHAJI YESUFU ADEAGA
3. AJIBADE FAKAYODE – Respondent(s)
VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. (Delivering the Leading Judgment):
In the High Court of Oyo State sitting in Ibadan in January 1986. The plaintiffs’ filed a suit against the defendants in which the plaintiffs’ suing for himself and the entire Adeaga family against the defendant and three others. In the claim the plaintiffs’ sought reliefs as follows;
(1) Fifteen thousand naira being damages for continuing trespass committed by the defendants’ their servants, and agents on that piece of or parcel of land, situate, lying and being at Aponrin on Oke Odo Ajia Road, Ibadan in 1983, which land is more particularly described and delineated on plan to be filed later in the case.
(2) Injunction restraining the defendants’ their servants, agents, privies or anyone claiming through them from entering and committing further trespass on the said land in dispute.”
Pleadings were filed and exchanged. The plan of the disputed area of land was filed by the 2nd PW2, a licensed surveyor. The plan was admitted in evidence as exhibit A. I refer to the area of land as disputed because the defendant in his pleading denies trespassing on the land; and claim the said land as his own. The boundary men to the land in exhibit A, are Ogunhelu; Kato Iwinyewa Olojo and Eho families. It is necessary to start resolution of this appeal by granting evidence of traditional history of the land given by both parties.
It is the testimony of the plaintiff, that the area of land marked red in exhibit A, is part of this large parcel of land acquired by settlement on the land by Adeyelu. Adeyelu is reputed to have hailed from Iwo, and he settled on the larger area of land at Ojagbe, Ibadan in the time of Bashorun Oluyode. Adeyelu, or sometimes referred to as Adeolu; exercised extensive rights of ownership over the said land, and made a grant of part of the land at different times to Dada, shown as parcel A on the land, exhibit A; parcel D to Isiboni, said to be his relation parcel C to Iwinyonwa; and retained parcel E, for himself and family; Adeyelu was survived by a son named Adeitan. It was Adeitan who made a grant of a parcel of land to Adeaga; the son of Wada; as a customary tenant of the parcel of land marked B.
The said area is marked red; on exhibit A; and it is the area in dispute, After the death of Adeaga; who was reputed to be a great friend of Adeitan, which was why he gave Adeaga the land; successive heads of the family of Adeaga farmed on the said land, for years, and retained exclusive use and possession of the land, until recently; Samuel Adeboye is the grand son of Isiboni; whose family occupied parcel D; on the plan; did not in his evidence in Chief deny that he went unto the area marked red, which is claimed by the plaintiffs. The plaintiffs’ deposed at the hearing that the entry unto the land in then possession is a trespass, and wrongful of their rights. That their crops, palm trees, cocoa and other crops were damaged by the depends including two sign boards on the land.
In their account of traditional title to the land in dispute, the defendant said that Adeyelu, was the younger brother of Balogun Oderinlo of Ibadan, who settled on the land is dispute during the rein of Bashotun Oluyole. At the request of Dada, Adeyelu granted a portion of the land to him in return for customary tributes to Adeyelu family. The defendant said it was the same land that was granted by Adeitan; the son of Adeyelu after the death of Adeyelu. Adeaga was granted the land as a customary tenant. Before his death Adeyelu made grants from his land to Isiboni, with Adeaga, and Iwinyonwa, who were his relations.
In 1983 Adeboye, the grandson of Isiboni was said by the plaintiff to have trespassed on the land of Adeaga, However it was the case of the defence that the land in dispute is part of the land on which Isiboni settled. Isiboni, with Adeyelu his said brother were said to have come from Ile Ife; and the former Isiboni was said to have been survived by a child called Adekanbi, who begat Adewola, Tewogbade and Moronfade, father of Samuel Adeloye.
The defendants’ aver that the area of land said to be possessed by Adeaga, was infact granted by Adeyelu to Egbinrin, who was a servant of Ogunkelu. The defendant averred that member of the family of Adeaga were trespassing on the family land of Isiboni; the said Samuel Adeboye removed the pillars buried in what he saw as Isiboni’s land; which is claimed by Adeaga. This occurred in 1976. In 1983, another incident occurred to which Adeboye reacted; and he was similarly charged to court. It was at this time the 1st, 2nd and 3rd defendants’ were taken to the land, claimed as part of its land by Adeaga family which the said Samuel Adeboye claimed belong to Isiboni’s family.
The court below Oyekan J. reviewed the traditional evidence of the root of title of both the plaintiff and the defendant and concluded that in a matter of this nature the proof of title is a necessary precursor to possession, and the court came to the conclusion that he preferred the evidence of long possession presented by the plaintiff, upon which findings the learned trial court awarded judgment of the sum of N3,000 for trespass against the defendant. The court refused the plaintiffs’ claim for special damages which were not proved. Against the judgment of the court the 2nd and 3rd defendants’ have appealed. There is no mention of the 1st defendant in the appeal.
In their brief, the 2nd and 3rd defendants’ formulated the issues following their grounds of appeal. The issues are;
(1) Whether the plaintiffs’ are not bound to rely on the strength of their case to be entitled to judgment not with standing any admission in the case of the defendants.
(2) Whether having regard to the pleadings and evidence, the plaintiffs did not fail to discharge the burden on them to prove their case as plaintiffs’ to be entitled to judgment?
(3) Did the failure of the plaintiffs’ in proving the boundaries of their grantors land vis a vis the land in dispute not disentitle them from laying any claim to the land in dispute and therefore it tilted the weight of evidence in the defendants favour:
And alternatively to 1-3 above; “Whether the award of general damages in the circumstance of this case ought not to be reviewed downwards,”
My understanding of the alternative issue formulated by the appellant is that the treatment of the alternate issue dispenses with the other issues 1-3. Since the alternate issue deal with damages awarded by the court below only; implicit in the issue is an affirmation of the judgment of the court below; and the issues above are unnecessary. The appellant would contend the issue of damages alone. The respondent has filed his own issues following the pattern of the issues formulated in the appellants’ issues 1-3.
The Respondent also responded to the appellants’ alternate issue, as Nos. 3 and 4. Since only the appellants’ issue in the alternative deals with the propriety of the damages awarded.
The consideration of the appellants’ issues 1-3, in preference to the alternative issue will consequently exclude consideration of the issue of damages in the respondents’ issue which read thus; Respondents’ issue 1; Whether the plaintiffs’ have discharged the onus of proof placed on them to rely on the strength of their case to be entitled to judgment notwithstanding any admission in the case by the defendant amended appeals Nos.6,7,8.
(2) Whether the learned trial judge weighed or evaluated the evidence before him properly or at all before giving judgment for the plaintiff.
(3) Whether the decision of judgment of the learned trial judge was against the weight of evidence,
(4) Whether the owned of N3,000 general damages by the learned trial judge the plaintiffs’ was not excessively high as the law allows only nominal general damages in a case of trespass.
I prefer to treat the three issues in the appellants’ brief and leave out the alternative issue which is deemed abandoned. The theme of the issue is where the burden of proof lies; which is also the theme of issue one in the respondents’ brief. When in both issues (1) of the appellants and the respondents they asked whether the plaintiff has discharged his burden of proof; or should the plaintiff have relied on the weakness of the defendants’ case to obtain the judgment in his favour? In this appeal, I will treat together appellants’ issues 1, 2 and 3, with the respondents’ issues 1, 2 and 3. The thrust of the case of the plaintiff in the court below is that an entry was made into the parcel of land in his possession; and those for whom he sues, without their consent. Ordinarily only the current possession of the land trespassed upon need to be proved. See BANBAGBADE v. BALOGUN 1994 1 NWLR 725.
Therefore trespass to land is an offence against possession of land; it has nothing generally to do with title. Where the plaintiffs claims for an injunction as well to restrain further trespass against the defendants and the defendants claims ownership of the said land by decided authorities of the Supreme Court. See AMAKOR v. OBIEFUNA 1974, NMLR, P.331 at 336; or 1974 3SC 76; OKORIE v. UDOM SCNR 316 at 330, a proof of title to the said land becomes imperative.
In the instant appeal both the plaintiff and the defendant gave evidence of traditional title; both claimed in the long run, Adeyelu as the first settler on the entire land, part of which both parties at unstated times became owners of a part each. The plaintiff tendered exhibit A. the plan of the larger area of land; and marked part of the said land as red; which he called the land in dispute. The defendant did not object to the survey plan when it was tendered. The area marked red remains the area in dispute on which the court adjudicated. The plaintiff is therefore by the tendering of exhibit A. relieved of the further need to prove features on the land; other than as deposed to by the PW3, the surveyor. See IGWE VS. ALOZIENWA (1990) 3 NWLR (Pt.141) at P.735.
The court below has ruled that he found more credible the testimony of the plaintiff as to the uninterrupted possession of the land in dispute in the plaintiff. The crux of the matter as to the ownership and sole possession of the said land in dispute is this specifically whether evidence shows that Adeitan gave the land in dispute to Adeaga as a customary tenant or not Adeitan became the head of the family of Adeyelu after the death of Adeyelu; he had power to make grant of land as Adeyelu had. Samuel Adeloye is described in the evidence as a grandson of Isiboni. It is in evidence that Dada is the party who all the parties agreed was granted land by Adeyelu. It is also in evidence that Adeaga was a son of Dada; and that part of the land granted to Dada, was the land granted by Adeitan the son of Adeyelu to Adeaga, who was reported to be a friend of Adeitan. The conclusion is that the grant to Adeaga has a longer ancestry to the subsequent claim by Samuel Adeloye, who as DW5, deposed that the land occupied by Adeaga was given by Adeyelu to Egburin. One servant of Ogunkolu. As both grant is traceable to one source of grantor.
I find no error in the conclusion of the court below when he found the evidence of the plaintiff/respondent credible as to the ownership in possession of the land in dispute; and I affirm same. See ATANDA & ORS. v. AJANI & ORS. (1989)3 NWLR (Pt. III) page 538.
Trespass is an infraction of the right of possession of the plaintiff over his land be it ever so minute. See ENGLAND v. PALMER 1950, 1 WACA 659. See ANYADEJI VS. ADENLE (1993)9 NWLR Pt.316.
The plaintiff in the court below averred that maize were planted on the land, worth other crops, and that the defendant destroyed some palm trees which the plaintiff and his witnesses assessed at N15,000.00.
Neither the plaintiff nor his witnesses was able to prove that the defendants’ in the court were the people who caused the damage to the crops; but in his evidence in chief the 5th defendant’s witness, Samuel Adeloye offered the evidence that he entered with the 1st, 2nd  and 3rd defendants, the parcel of land in possession of the plaintiff. It is on the basis that the learned trial judge found proved the complaint of the trespass made by the plaintiff. The court found not proved the claim of the plaintiff for special damages of N15,000.00. In the appellants’ issue one, the appellant has complained in his brief of argument that the case of the plaintiff should have failed in the court below, but for the reliance on the weakness of the defendant’s case. The respondent also asked in his issue one whether the plaintiffs have discharged the onus of proof of trespass; and concluded in his brief that the plaintiff had discharged his onus of proof.
Clearly in a civil claim, as in the instant appeal; the onus is on the plaintiffs to prove his claim on a balance of probabilities. See MBA EDE v. OKUFOR 2 NWLR (Pt.150)356 S.C. (11) OLUJINLE v. ADENGBO (1988) 1 NWLR (Pt.75) 238 SC. In that proof, the plaintiff must rely on the strength of his own case, KEDLINYE v. ODU. 19363 WACA 337. However in modem times, while the rule remains that the onus of proof of a case of the plaintiff still rests on the plaintiff; it has been held that the plaintiff may take advantage of some aspects of the weakness of the case of the defendant. See SANUSI v. AMEYOGUN (1995) 2 NWLR (Pt.237) 527 at 547. (11) OSHIYOMI v. AKINTE (1995) 2 NWLR (Pt.379) 559. (111) OYADEJI v. ADENLE (1993) 9 NWLR (pt.316) P.229.
Therefore while the rule remains true that the plaintiff must prove his case on the strength of his evidence, the plaintiff is also at liberty to take advantage of the weakness in the case of the defendant to succeed in his claim.
In the instant Case, in the court below, once the 5th defence witness has deposed viz; “I know the 1st and 2nd defendants. I put the two of them on the land in dispute in 1970, In 1976, I destroyed some survey pillars inserted in Isiboni family land.” That portion or the land has been adjudged in this Judgment as being in the exclusive possession of the plaintiff. The evidence of the defendants’ witness number 5, is an admission of committal of trespass in the area marked red on exhibit 5, in the possession of the plaintiff. What is admitted need not be proved, See Evidence Act. the obligation of the plaintiff to prove wrongful entry on their land is therefore obviated; and it is established that the defendants had made a wrongful entry unto the land of the plaintiff without the consent of the latter.
In sum, I am in agreement with the findings of the learned trial court below, that the plaintiff now respondent discharged the onus of proof; and he was then and now entitled to the judgment of the court, I resolve issues 1, 2 and 3 in the appellants’ brief, and issues 1, 2 and 3 in the respondents’ brief against the appellant, and dismiss the appeal, I feel constrained to write only one word on the issue of damages, which in issue 4 in the alternative to the issues I have now considered. It is settled law that once the court has arrived at his findings and verdict, the award of costs is in the discretion of the trial court. See ELF NIGERIA PETROLEUM LTD. v. SILLO 1994 6 NWLR (Pt.350)262; and it will not be set aside or reviewed once the basis of the award is shown.
In sum, the appeal fails in Its entirety, and it is dismissed. There will be costs in favour of the respondents in the sum of N5,000.00.
FRANCIS FEDEDO TABAI, J.C.A.: I agree.
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.: I had the opportunity of reading before now the judgment just delivered by my learned brother V.A.O. Omage JCA.
The plaintiffs claimed before the High Court of Oyo State sitting in Ibadan, reliefs as follows:-
(1) Fifteen thousand Naira (15,000,00) being damages for continuing trespass committed by the defendants their servants, and agents on that piece of or parcel of land situate, lying and being at Aponrin on Oke-Odo – Ajia Road, Ibadan in 1983 which land is more particularly described and delineated on plan to be filed later in the case.
(2) Injunction restraining the defendants, their servants, agents, privies or anyone claiming through them from entering and committing further trespass on the said land in dispute.
I agree with the reason given by my learned brother in the leading judgment for dismissing this appeal. It is trite that where a claim for trespass is coupled with a claim for an injunction – the title of the parties to the land in dispute is automatically put in Issue. OLOHUNDE V. ADEYOJU (2000) 10 NWLR PT.676 PG.562 SC. AKINTOLA V. LASUPO (1991) 8 NWLR PT.180 PG.508. OKORIE V. UDOM (1960) SC 326. THE REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH V. OLOWOLENI (1990) 6 NWLR PT.158 pg. 514.
The learned trial judge was right to have looked beyond the claims for trespass and injunction to explore into the issue of title of the parties to the land in dispute. In proving title to land the onus is squarely on a party claiming declaration of title to adduce credible and admissible evidence in support of the title. In the process the plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. In essence the plaintiff must show a prima facie case before the need to consider whether the defendant has led sufficient evidence to meet the case can arise.
However any evidence adduced by the defendant which to any extent is favourable to the plaintiffs case will undoubtedly go to strengthen the case for the plaintiff. KODILINYE V. ODU (1935) 2 WACA 336. AKINOLA V. OLUWO (1962) 15 CNLR 352. ODUARAN V. ASARAH (1972) 1 ALL NLR PT.2 PG.137 IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227. MOGAJI V. CADBURY NIGERIA LTD. (1985) 2 NWLR PT.7 pg. 393.
Both parties based the evidence in support of their claim to the land on Traditional History. Coincidentally they traced their genealogy to the same person, Adeyelu. Proof by traditional history or traditional evidence is one of the five recognized methods by which ownership of land may be established – the weight to be attached to it is a matter which is left to the experience and wisdom of a Judge. AKURU VS. OLUBADAN IN COUNCIL (1954) 14 WACA 523.
The learned trial judge adjudged that the plaintiff before the trial court proved a better title – he thereupon came to the conclusion that the plaintiff has possession of the land and he was right to have claimed for damages in trespass. It is trite that when the issue as to which of two claimants has a better right to possession of a piece or parcel of land in dispute, the law will ascribe such possession to the person who proves a better title thereto. AROMIRE v. AWOYEMI (1972) 1 ALL NLR pt. 1 pg. 101. FASORO VS. BEYIOKU (1988) 2 NWLR pt. 76 P8. 263.The defendants admitted trespass on the portion of land in possession of the plaintiffs before the trial court. This court has no reason to interfere with the award of damages made for trespass committed on the land. All the issues are resolved in favour of the respondent. I agree with the lead judgment that the appeal fails and it is dismissed accordingly. I abide the order for costs.
Appearances
Chief. A. Adisa For Appellant
AND
Respondents’ Counsel Absent For Respondent
