CHIEF D. B. AJIBULU v. MAJOR GENERAL D. O. AJAYI (RTD)(2003)

CHIEF D. B. AJIBULU v. MAJOR GENERAL D. O. AJAYI (RTD)

(2003)LCN/1457(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 16th day of July, 2003

CA/I/M.166/99, CA/I/134/2000

RATIO

LAND LAW: CLAIM OF TITLE TO LAND

“I shall examine the burden of proof which a party claiming in trespass and injunction before a court is supposed to discharge. It is basic and trite – and it is supported by a plethora of cases 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.” PER OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.

LAND LAW: PROVE OF TITLE TO LAND

“The law is that it is the duty of the plaintiff seeking title to land to show how he or his predecessor-in-title has acquired title in one of the five ways or method recognized in proving title to land.
The respondent had established to the satisfaction of the trial court – that he acquired the land in dispute by sale whereupon, the document of title the conveyance exh. A was executed in his favour – Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Piaro v. Tenalo (1976) 12 SC 31; Ige v. Fagbohun (2001) 10 NWLR (Pt. 721) 468.” OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.

EVIDENCE: PROVE OF TITLE TO LAND

“A party in a land suit who claims ownership may plead and prove title by any of the five recognized ways by which ownership of land may be proved under the Nigerian Legal system which includes:
(1) By traditional history or evidence; or
(2) By documents of title;
(3) By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership; or
(4) By acts of long enjoyment and possession of the land; and
(5) By proof of possession of adjacent land in circumstances, which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute.” PER OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.

JUSTICES

SAKA ADEYEMI IBIYEYE Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria

Between

CHIEF D. B. AJIBULU Appellant(s)

AND

MAJOR GENERAL D. O. AJAYI (RTD) Respondent(s)

OLUFUNLOLA OYELOLA ADEKEYE, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the judgment of the High Court of Justice, Osun State, Osogbo Judicial Division, delivered on the 30th day of April, 1993. The respondent in this appeal instituted this action as suit No. HOS/12/97 against the appellant as defendant claiming according to the endorsement on the writ of summons and paragraph 21 of the amended statement of claim as follows:
(i) N500,000.00 (Five hundred thousand Naira) damages for trespass committed by the defendant, his agents or servants on the plaintiff’s land situate, lying and being at Dada Estate Egbedore Local Government Area of Osun State, covered by a deed of conveyance registered as No. 43 at page 43 in volume 1502 of the Lands Registry in the office at Ibadan.

(ii) Perpetual injunction restraining the defendant, his agents, servants or privy from committing any further trespass on the land.

Parties filed and exchanged pleadings. In the course of trial before the lower court parties adduced oral evidence in support of their pleadings and tendered plan and documents of title. It was the case of the respondent as plaintiff that he bought the land in dispute from Chief Timothy Dada now deceased in 1972. It was part of a wide expanse of land – known and referred to as Dada Estate. The land was surveyed in July, 1972 and was formally conveyed to the respondent by the vendor Chief Dada by deed on the 23rd of June, 1972 – with a survey plan No. WP 89/3/72 dated 19/9/72, attached to the deed of conveyance.

The deed of conveyance registered as No. 43 at page 43 in volume 1502 of the Lands Registry in the office at Ibadan was tendered as exhibit A by PW1. He occupied the land undisturbed until 1996, when he discovered that the appellant – the defendant before the trial court, trespassed on the land. The appellant also purchased a parcel of land from Chief Dada – the same vendor as the respondent near the land in dispute.

The deed of conveyance between Chief Dada and the appellant dated 19/2/73 and registered as No.9 at page 9 in volume 1462 of the Land Registry was tendered as exhibit B. In 1996, the respondent found an uncompleted building on his land. A composite plan showing the land in dispute was tendered as exh. C by the Deputy Surveyor General of Osun State. The appellant built a house on the land he bought from Chief Dada. In 1995, the land was acquired by the Osun State Government whereupon the house erected by the appellant on the land was consequently demolished – so as to give way for the Osogbo Western Bye-Pass Express Road. Having lost his land and house the appellant’s children moved him to the land in dispute in 1995. His son gave him an agreement transferring the land to him. The agreement the appellant claimed was given to him in 1978. The land granted to the appellant by his son was supposed to have been sold to them by Sapo family. The agreement of sale sought to be tendered as IDKI was later expunged from the records as inadmissible.

In a considered judgment of the learned trial Judge all the respondent’s claims were granted in its entirety vide pages 30-44 of the records. Being aggrieved by the judgment the appellant lodged an appeal to this court. He filed a notice of appeal with three grounds and later filed four additional grounds pursuant to an order of this honourable court granted on the 2nd of October, 2000. Parties settled records – conditions of appeal imposed and record of appeal was compiled.

Parties filed and exchanged briefs pursuant to the Court of Appeal Rules, 2002. At the time of the hearing of this appeal – the appellant relied on the brief filed on 7/6/2001 and the respondent on the brief filed on 21/5/2002. In the appellant’s brief two issues were distilled for determination as follows:
(i) Whether having regards to the facts and circumstances of this case, the respondent could be said to have discharged the burden of proof that should entitle him to succeed in a claim for trespass and injunction.
(ii) Whether the learned trial Judge gave adequate and or any consideration to the principle of Mogaji v. Odofin (1978) 4 SC 91.

The two issues flow from the seven grounds of appeal filed.

The respondent identified three issues for determination as follows:
(1) Whether having regards to the facts and circumstances of this case, the respondent established his title over the land in dispute.
(2) Whether having regards to the evidence before the court the identity of the land in dispute is certain.
(3) Whether on the principle of Mogaji v. Odofin (1978) 4 SC 91, the trial Judge adequately evaluated and reviewed the evidence and facts before him before arriving at his decision.

This court shall adopt the two issues formulated by the appellant as the issues for determination of this court.

On issue No one, asking whether having regard to the facts and circumstances of this case the respondent could be said to have discharged the burden of proof that should entitle him to succeed in a claim for trespass and injunction. I observe that issues numbers one and two in the respondent’s brief are also subsumed in this issue.

The appellant argued and submitted on this issue that the learned trial Judge concluded that the plaintiff from the facts and the law has discharged satisfactorily the onus of proof required of him in a civil case pertaining to the nature of his claim to warrant judgment being given in his favour.
The appellant emphasized that the respondent has the burden of establishing his title to the land in dispute, and of identifying the land in dispute. The respondent tendered the conveyance executed in his favour by Chief Dada 43/43/1502 at the Land Registry Ibadan – exh A before the trial court. The appellant remarked that the learned trial Judge failed to appreciate that parties joined issues as to the title of the respondent’s vendor in exh. A not only on the pleadings, but also in the evidence.

The respondent did not adduce evidence to reveal the title of his vendor Chief Timothy Dada to the land in dispute DW2 was not cross-examined on his evidence denying title of Chief Dada to the land – and as such there was no finding as to who has a better title between Chief Dada and Alhaji Bello Ajani Sapo – which is fatal to the respondent’s case. The court ran into the error of first considering the case for the defence before that of the plaintiff.

As to the identity of the land in dispute, the respondent failed to establish any nexus between the land in dispute and exh. A – the conveyance. In effect, the respondent failed to establish his title to the land. The appellant also raised the fact that parties joined issues as to the exact description of the land in dispute both on the pleadings and evidence.

Both parties described the land in dispute in their respective pleadings. The appellant however, believed that the respondent does not know the land in dispute and that it was imperative that that disputed plan must have been filed. The respondent filed a composite plan showing different plots of land including the appellant’s previous land. Only 10% of the disputed land was destroyed by the express road. The learned trial Judge should have found for the appellant when the respondent could not ascertain the land. Where the respondent failed to establish the identity of the land in dispute – his case must fail. The court is urged to resolve this issue in favour of the appellant. The appellant cited the cases of Ogungbemi v. Asamu (1986) 3 NWLR (Pt. 27) 161; Agbaisi & Ors. v. Ebikorefe & Ors. (1997) 6 NWLR (Pt. 502) 630; Nnaife v. Ogadike (1959) SCNLR 12; Okorie v. Udom (1960) SCNLR 326; Maberi v. Alade (1987) 2 NWLR (Pt. 55) 101; Fawehinmi v. Abacha (1996) 9 NWLR (Pt.475) 710. Kodilinye v. Odiu 2 WACA 336; Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66; Okuoja v. Ishola (1982) 7 SC 314; Oluwi v. Eniola (1967) NMLR 339.

The respondent replied that the learned trial Judge was right in his judgment in giving judgment to the respondent. The respondent purchased the land from one Chief Timothy Dada as evidence by the deed of conveyance registered as exh. A. Appellant also bought land from Chief Dada as evidence by the deed of conveyance exh. B. The appellant’s land was acquired by the Osun State Government for the construction of an express road. When he moved to a plot of land transferred to him by his son – the document exhibited for the transfer bore the date 1978 – though the transfer was effected in 1995. The learned trial Judge referred to it as a concocted piece of defence. Alhaji Bello Sapo – from whom the appellant’s son acquired the land in dispute, did not offer credible evidence about the sale he was utterly confused – as to the identity of the person he sold the land. The appellant did not offer any creditable evidence of title.

The learned trial Judge was right in his findings and conclusion in favour of the respondent. The respondent cited the cases of Idundun v. Okumagba & Ors. (1976) 9 – 10 SC 227; Abotile Kponugio v. Ada Kdaja (1931) 2 WACA 24; Pius Amakor v. Benedict Obiefuna (1974) 3 SC 67 at 82; Ogunbiyi v. Adewumi (1988) 5 NWLR (Pt. 93) 215; Jones v. Chapman (1848) 2 Exchaq 803; Egbaran v. Akpotor (1997) 7 NWLR (Pt. 514) 559; Nwabueze v. Obi-Okoye (1988) 4 NWLR (Pt. 91) 664, (1988) 10 – 11 SCNJ 60 at 72; Ijale v. A.-G., Leventis & Co. Ltd. (1959) SCNLR 255.

The respondent submitted that where both parties to a land in dispute know and are familiar with the land in dispute the question of its identity or its certainty will cease to perplex the trial court and no disputed plan is required. The appellant did not make an issue of the identity of the land in dispute nor its area, size, location or feature shown on the respondent’s plan exh. C disputed. The appellant in paragraph 13 of the amended statement of defence at page 6 of the records pleaded that he was farming on the land in dispute in 1975. Evidence clearly show that the parties are ad idem as to the location and identity of the land in dispute. The cases of Nwogo v. Njoku (1990) 3 NWLR (Pt. 140) 570; Akinterinwa v. Oladunjoye (2000) 6 NWLR (Pt. 659) 92, (2000) 4 SCNJ 149; Odofin v. Oni (2001) 3 NWLR (Pt. 701) 488; (2001) 1 SCNJ 157 cited by the respondent.

On issue No.2 which is that the learned trial Judge did not give adequate or any consideration to the rule in Mogaji v. Odofin (1978) 4 SC 91, before coming to his decision in this suit. In that case, it was decided that in coming to its decision a trial court is obliged to consider and review the case of both parties by placing same on an imaginary scale and should weigh one against the other. In this case, the court considered the case of the defence and thoroughly destroyed same before considering what the opposition is left for the plaintiff’s case and finding none proceeded to enter judgment of the plaintiff negate the principle in Mogaji v. Odofin. That approach of the learned trial Judge was highly prejudicial to the appellant’s case. The appellant cited cases of Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24; Mogaji v. Odofin (1978) 4 SC 91.

The respondent replied that the evaluation of evidence and the ascription of probative value is the duty of the trial Judge – while the style used by the trial Judge is not a matter to be impugned. The essential thing is that a Judge should consider all the evidence before him by evaluation before arriving at his conclusion. In this trial, the learned Judge gave consideration to the totality of the evidence before him and weighed the conflicting evidence adduced by both parties before coming to his conclusions. Vide the records at page 30 line 26 to page 34 line 9, page 40 lines 4-9 and page 43 lines 10 – 22. An appellate court will not disturb the evaluation and findings made by the trial court unless such are shown to be perverse.

The respondent cited the cases of Awopejo v. State (2001) 18 NWLR (Pt. 745) 430, (2001) 12 SCNJ 293; Emeagwara v. Star Publishing Co. (2000) 10 NWLR (Pt. 676) 489, (2001) 5 SCNJ 175.I shall now proceed to address both issues – while my conclusion is that two issues as identified by the parties are similar. The first issue is for this court to consider whether the respondent as plaintiff before the lower court discharged the burden of proof that should entitle him to succeed in a claim for trespass and injunction. Before going to examine the totality of the evidence at the disposal of the trial Judge when he found for the respondent in his claim for trespass and injunction.

I shall examine the burden of proof which a party claiming in trespass and injunction before a court is supposed to discharge. It is basic and trite – and it is supported by a plethora of cases 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.

Akintola v. Lasupo (1991) 3 NWLR (Pt. 180) 508; Okorie v. Udom (1960) SCNLR 326; Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt 158) 514; Ige v. Fagbohun (2001) 10 NWLR (Pt.721) 468; Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562 SC.It is imperative from forgoing that the respondent as plaintiff before the lower court – and the appellant as defendant both must go ahead to further proof the title to the land in dispute.

Both parties according to the records gave evidence of how they came to own the land in dispute. The respondent traced his title to one Chief Timothy Dada – in July 1972. The land was surveyed by the vendor – and formally conveyed to him by deed on the 23rd of June, 1973, with a survey plan WP89B/72 dated 19/9/72 attached to the deed of conveyance. The same deed of conveyance was registered as 43/43/1502 in the Lands Registry Ibadan. The conveyance was admitted in evidence in the course of the trial before the lower court as exh. A.

While the appellant as a source of title to the land in dispute alleged that his son transferred the land to him in January, 1978 and his son gave him a document to that effect. The appellant produced two documents which were mere agreements of transfer of portion of land sold to his son by Sapo family. It is however noteworthy that when Alhaji Sapo from the family that sold land to the appellant came to give evidence as DW2 – that he sold land to the appellant and his son – but he could not even identify the appellant’s son to whom he sold land. Moreover, the appellant gave evidence that it was when he lost his plot of land sold to him by late Chief Dada in 1995, that his son offered him a portion of the land sold to him by Sapo family wherein he built. He came into the disputed land in 1995, whereas the instrument bore the date 1978.

The appellant said his son gave him the document in 1978. Vide page 40 lines 33 to page 41 lines 1 – 24 of the records. The learned trial Judge said in his judgment:
“Both parties rely on sale of land in dispute to them by different persons namely Chief Timothy Dada and Olanrewaju Ajibulu respectively. Whilst the plaintiff produced the deed of conveyance
exhibit A conveying the land in dispute to him in 1973, the defendant produced two documents which were agreement of transfer of a portion of land and sale to him and his son neither of which is sufficient in law to confer title to the land on him.” Vide page 40 lines 21 -28.

From the foregoing having weighed the evidence of both sides in support of their root of title, and particularly because of the discrepancies in the evidence of the appellant as to how he got title to the land in dispute – the learned trial Judge expressed his satisfaction as to the root of title of the respondent. Page 40 lines 4-9.

The appellant also held a grouse in respect of failure of the learned trial Judge to make a finding as to the title of the respondent’s vendor to the land in dispute.

The law is that it is the duty of the plaintiff seeking title to land to show how he or his predecessor-in-title has acquired title in one of the five ways or method recognized in proving title to land.
The respondent had established to the satisfaction of the trial court – that he acquired the land in dispute by sale whereupon, the document of title the conveyance exh. A was executed in his favour – Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Piaro v. Tenalo (1976) 12 SC 31; Ige v. Fagbohun (2001) 10 NWLR (Pt. 721) 468.
A party in a land suit who claims ownership may plead and prove title by any of the five recognized ways by which ownership of land may be proved under the Nigerian Legal system which includes:
(1) By traditional history or evidence; or
(2) By documents of title;
(3) By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership; or
(4) By acts of long enjoyment and possession of the land; and
(5) By proof of possession of adjacent land in circumstances, which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute.

The respondent proved his title by authentic document of title as in (B) above whereas the documents tendered by the appellant were mere agreement – which is not recognized as document of title. Idundun v. Okumagba (1976) 9-10 SC 227; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Mogaji v. Cadbury Ltd. (1985) 2 NWLR (Pt. 7) 393; Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177; Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562; Adesanya v. Aderounmu (2000) 9 NWLR (Pt. 672) 370.

The respondent satisfied the court on his own title – the court did not venture to inquire into the title of his predecessor in title. In this case, the respondent relied on conveyance and proved same- he does not need to go beyond and prove the title of his vendor except where it has become an issue. Dosunmu v. Jofo (1987) 4 NWLR (Pt. 65) 297; (1987) 2 NSCC 1182.

The appellant went into the issue of identity of the land – because he held that the respondent does not know the land in dispute.

There is abundant evidence that both parties know the land in dispute – as there is plan of the land attached to the conveyance exh. A, a composite plan exh. C by a witness of the respondent. Besides the respondent gave the description as plot 11 along Timi Road – Chief Timothy Dada Estate Layout and gave the names of his boundary-men. While the appellant agreed in paragraph 13 of his amended statement of defence that he once farmed on the land in 1975 to the disapproval of Chief Timothy Dada who objected that the plot was not his own.

The court was convinced that the land in dispute was ascertained and both parties knew its identity. Nwogo v. Njoku (1990) 3 NWLR (Pt. 140) 570.

The law is further that when the issue is as to which of two claimants has a better right of possession to and/or occupation of a piece or parcel of land in dispute the law will ascribe such possession and/or occupation to the person who proves a better title thereto. Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263; Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101; Ige v. Fagbohun (2001) 10 NWLR (Pt.721) 468; Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562.The learned trial Judge found that possession is in the respondent having proved a better title. Trespass is an unjustified interference or intrusion with possession of land. Ogunleye v. Adewunmi (1988) 5 NWLR (Pt. 93) 215; Onagoruwa v. Adeniji (1993) 5 NWLR (Pt.293) 317; Yusuf v. Akindipe (2000) 8 NWLR (Pt. 669) 376.The appellant admitted moving into the land building upon it when his son offered him the land – on which the learned trial Judge found trespass proved. The learned trial Judge went to grant the claim for injunction to curtail the continued act of trespass by the appellant, his agent, servant or anybody claiming through him.

It is consequently the conclusion of this court from the foregoing that the respondent discharged the burden of proof entitling him to succeed in a claim for trespass and injunction and the learned trial Judge was right to have found for him to that effect. That issue is resolved in favour of the respondent.

Issue number two is whether the learned trial Judge gave adequate or any consideration to the principle in Mogaji v. Odofin (1978) 4 SC 91 before coming to his decision in this case.

It is first and foremost appropriate to examine the principle enunciated in Mogaji v. Odofin. The rule explains the duty of court vis-a-vis evaluation of evidence that –
“Where parties testified before the trial court and called witnesses, before the trial court accepts or rejects the evidence of other side, it is enjoined to set up an imaginary judicial scale of justice by putting the pieces of evidence adduced by the plaintiff on the one side and putting the pieces of evidence of the defendant on the other side of the imaginary scale of justice and weighing both together, not by the number of witnesses called by the parties, and giving them probative value.”

This is what is meant under our adversarial system of jurisprudence that civil cases are decided on preponderance of evidence – Mogaji v. Odofin (1978) 3-4 SC 91.

The contention of the appellant on this issue is that the learned trial Judge considered the evidence led by the defence, who filed no counter-claim and demolished same even before reviewing the address of the respondents – and the appellant was highly prejudicial by so doing. What the appellant attacked was in effect the style adopted by the trial Judge in his evaluation of evidence and ascription of probative value to same. The appellant admitted in short that the learned trial Judge considered the case of both parties. This is apparent in the judgment of court particularly as from pages 40-44 of the record. If what the appellant indeed and actually criticized is the style adopted by the learned trial Judge in his judgment that is not a matter to be reproached as long as he considers all the evidence before him by evaluation before arriving at his conclusion which this court holds that he did looking at the records.

The attitude of court in respect of evaluation of evidence is that in deciding whether or not a trial court properly evaluated the evidence, the essential focus should be on whether the learned trial court made proper findings and reached the correct judgment upon facts before it. It is not the method or approach that necessarily determines these ends.

Thus, so long as a trial court does not arrive at its judgment merely by considering the cases of one party before considering the case of the other, its judgment if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case it may have adopted. Woluchem v. Gudi (1981) 5 SC 291.

A judgment will not be ruled out as bad because the trial Judge had not set out seriatim his reasons on each specific complaint in the suit. Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282.

It is pre-eminently the duty of the trial court to see, hear and assess each witness as to whether he should be believed or not, and where the trial court, has discharged that responsibility, the appellate court will not interfere with such finding unless they are shown to be perverse, unsupported by evidence or based on evidence not legally admissible. The findings of the trial court in the case do not fall into any of these groups hence, the court has no cause or reason to disturb it. Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Ebba v. Ogodo (1984) 1 SCNLR 372; Woluchem v. Gudi (1981) 5 SC 291; Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) 172; Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21. Issue No.2 is resolved in favour of the respondent.
In sum, this appeal lacks merit and it is accordingly dismissed. N10,000.00 is awarded in favour of the respondent.

SAKA ADEYEMI IBIYEYE, J.C.A.: I had the privilege of reading, before now, the judgment of my learned brother, Adekeye, JCA. I entirely agree with the reasoning and conclusion therein. The appeal lacks merit and it is accordingly, dismissed with costs of N10,000.00 awarded in favour of the respondent.

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.: This is an appeal from the decision of Sijuade, J. sitting in the High Court, Osun State, holden at Oshogbo. In the claim by the plaintiff against the defendant for N500.00 damages for trespass committed by the defendant, his servants, agents or servants over the parcel of land of the plaintiff lying and in being at Dada estate, Egbedere Local Government area of Osun State, which said land is registered as No.43 at page 43 in volume 150 of the land registry at Ibadan; now at Oshogbo,

(11) and for an order of perpetual injunction to restrain the said defendant, his servants and agents, the learned trial Court took evidence from the parties and their witnesses. In the proceedings the plaintiff tendered a deed of conveyance made between him and one Chief Dada, who laid out the landed estate, and transferred to the plaintiff Plot 10. The said deed of conveyance was admitted in evidence as exhibit A.

The defendant tendered exhibits E and F; which the learned trial Judge ruled did not convey any title to the defendant and that the said exhibits are of doubtful offence, found in favour of the plaintiff; as the owner in possession of the said land. The learned trial Court also found against the defendant for trespass committed by the defendant when he built a house, and or structures on the land of the plaintiff which constitutes an entry on the plaintiff’s land without the consent of the latter; for which the court below made an award of N10,000 in favour of the plaintiff; and an order of perpetual injunction over the said parcel of land.

The defendant was aggrieved by the decision of the court below, he filed a total of nine grounds of appeal. The appellant formulated the following two issues for determination of the appeal viz;
(1) Whether, having regard to the facts and circumstance of this case, the respondent could be said to have discharged the burden of proof that should entitle him to succeed in a claim for trespass and injunction.
(2) Whether the learned trial Judge gave adequate and or any consideration to the principle in Mogaji v. Odofin (1978) 4 SC 91.

Infact, the citation of the judgment delivered by the late Justice Fatai William, JSC, is 1978 4 SC. It is on the advice on evaluation of evidence which the learned justice suggested should be placed on an imaginary scale. In his brief, the respondent formulated from determination of the appeal, the following three issues.
“(1) Whether having regards the facts and circumstance of this case the respondent established his title over the land in dispute.
(2) Whether having regards to the evidence before the court, the identity of the land in dispute is certain.
(3) Whether on the principle in Mogaji v. Odofin (1978) 3- 4 SC 91, the trial Judge adequately evaluated and reviewed the evidence and facts before him before arriving at a decision.”

The issues formulated by the appellant and the respondent can be conveniently treated and considered together. I will do so in this judgment. The first issue formulated by the appellant, puts into contest the whole decision of the court below. In issue 2 of the respondent, he asked whether the identity of the disputed land is certain. The appellant in his brief referred to the issue of identity of the land as inclusive in the circumstance of the case which he referred to and averred that the plaintiff did not know the location of his land. In his judgment, the court below said that the land in dispute is known to both parties, sufficient to make an order of injunction on it.

Among the other issues of circumstances referred to by the appellant in his brief are the person in possession of the land; the person entitled to a claim of title to the said land, the rejection of exhibit F by the court; and the failure of the trial court to properly assess, and evaluate the evidence before him; by placing the evidence on an imaginary scale as directed in the judgment of Fatai William, JSC in Mogaji v. Odofin Supra. It is conducive to treat the appellant’s issue one with his issue 2, and I intend to take the two issues together. I will in this judgment also consider with the appellant’s issues 1 and 2, the respondent’s issues 2, 3 and 1.

The above 5 issues relate one to another, and conclude on the requirements to prove title to land on a traditional evidence tendered; the onus of proof of title based on such evidence and the need to weigh and evaluate evidence, whether or not the trial court complied with the rules. In the claim of the plaintiff before the court below, the evidence tendered by both parties is of recent traditional history, supported by title deeds tendered as exhibit A by the plaintiff; and certain receipts and documents tendered as exhibits E and F by the defendant. But before I consider the evidence of title to the disputed land, it is expedient to consider the evidence in identification of the land. The defendant has deposed that the failure of the plaintiff to file a plan of the disputed land conceals the failure of the plaintiff to identify his land.

This is submitted by the defendant despite the fact that exhibit A, the registered deed of conveyance tendered by the plaintiff showed the parcel of land, which was surveyed; and the testimony of the plaintiff that the said land is bounded by plots 9, 10 and 12 while the plot in dispute is plot 11. Plot 10 was alleged to have been previously granted to the defendant by the same grantor Dada; but plot 10 was decimated by road construction which took place in 1995, the owners of the other plots include Rev. Cannon Akinyemi, and one Onasanya.

It is said that plot 9, was the area sold to the appellant. The appellant encroached on; and finally took over plot 11, when the road construction had decimated the area of land previously known as plot 9. The incident which points decidedly to the knowledge of the land by the defendant was his own testimony which reported that the grantor and owner of the estate, the late Mr. Timothy Dada, once saw him planting crops on plot 11, and warned him not to plant permanent crops on the land because the land belonged to another person. The four plots 9, 10, 11 and 12 sold to individuals by the owner of the estate, the late Chief Timothy Dada are shown in the plan drawn by the surveyor general exhibit 6. Exhibit D, which is the original plan of the Surveyor General, shows the newly constructed express road, it shows that 75% of plot 9 was taken up by the road, and 10% of plot 11 was eaten by the road.

The evidence of the 2nd plaintiff’s witness shows that the land in dispute is edged blue in exhibit C; plot 9, sold to the defendant is edged red. It is from the above evidence that the land in dispute is very well known to both parties in the dispute; in particular the disputed land is known to the defendant/appellant. I now proceed to the traditional evidence tendered in proof of the root of title to the land. Except for the averment of the defendant/appellant that his son acquired a parcel of land from one Alhaji Ajanisapo, both the plaintiff and defendant claim a right to the parcel of land through Chief Y Dada, who created the estate. The plaintiff tendered at the hearing exhibit A relating to the land as evidence of grant of the land from Chief. Dada now reported to be deceased.

The defendant deposed that in 1978, when the street was constructed the area of his land reduced, his son Olanrewaju thereupon gave to him a parcel of land which the son bought from one Alhaji Bello Ajani; which the defendant said is the land in dispute.

He said the plaintiff does not know the location of his land, in proof of his root of title to the land, the defendant called Ajani to testify for him without going to the land and in his evidence-in-Chief, the record shows that the said Ajani Sapo, did not recognize anyone called Olanrewaju son of the defendant. Instead, he said he sold land to the defendant which is not located where the land of Chief Dada is, the defendant tendered a document of alleged transfer of land to him, which is infact not a deed of conveyance.

It is a paper purporting a transfer of land by Chief Dada to the defendant, and it shows the plot allegedly transferred as the plot eaten up by the road. It was admitted as exhibit E and a receipt of a sale of land from Ajani Sapo admitted as exhibit F. In his judgment the trial court ascribed no value to the two documents as neither of them is a deed of conveyance, the two exhibits if at all purport to be evidence of a sale of land. The receipt of sold land, the court below ruled is tainted with a false declaration. The receipt referred to the construction of the express road in 1978 as at the time when the land was bought and the document was prepared. Infact the express road was built in 1995. The receipt for a sale land bought because of the construction of the said road, cannot be made before the State of Osun was created, which embarked on the creation of the road, there is no denial of the fact that the plaintiff produce a better evidence of title.

A comparison of the two sets of evidence of the root of title tendered by the plaintiff; and these if the defendant need not be placed on an imaginary scale to see that the quality of credible evidence tendered by the plaintiff exceeds the evidence tendered by the defendant at the trial. The evidence of the defendant on the root of title over the land is uncertain, inconclusive conflicting and unreliable. See Mogaji v. Cadbury (Nig.) Ltd. (1985) 7 SC 59. A reasonable tribunal would prefer the evidence of the plaintiff/respondent to those of the defendant/applicant. I have no reason whatsoever to intervene in the reasonable and correct conclusion reached by the learned trial Judge who found in favour of the plaintiff on the evidence of the plaintiff’s right to possession of the said land.

In his judgment, the court below believed evidence of the plaintiff who deposed that he farmed in 1975, on the land and that thereafter he employed diverse people to weed the land. This concludes proof, not only of a right to possession which matures into right of ownership of the land; it is also evidence of continuous and active possession of the land. The defendant has admitted that he made an entry unto the land, and while on the land, constructed a building on the said land without the consent of the owner.

It is settled law, that any infraction of a right of possession into the land of another be it ever so minute without the consent of that owner is an act of trespass actionable without any proof of damages. See England v. Palmer (1955) 14WACA 659. See also for the definition and ingredient of trespass Hadjia Jaradat Animashaun v. G.A. Olojo (1990) 6 NWLR (Pt.154) 111; Oyadeji v. Adenle (1993) 9 NWLR (Pt.316) 224. Evidence tendered by the defendant of construction of a building on the land of the plaintiff; and it entitles the plaintiff to a claim for damages which the court below granted. The weight of evidence is in favour of the plaintiff.

I affirm the decision of the court below, and dismiss the appeal in its entirety. There will be costs to the plaintiff of N5,000.

Appeal dismissed.

Appearances