MICHAEL OSU & ORS. v. MICHAEL NWADIALO & ORS.
(2011)LCN/4659(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2007
CA/E/22/2006
RATIO
OWNERSHIP OF LAND: METHODS BY WHICH OWNERSHIP OF LAND MAY BE ESTABLISHED
In Idundun Vs. Okumagba (1976) 1 NMLR Page 200, the Supreme Court stated the five methods by which ownership of land may be established. The methods are: (i) Proof by traditional history or traditional evidence. (ii) Proof by grant or the production of document of title. (iii) Proof by acts of ownership extending aver a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are true owners of the land. (iv) Proof by acts of long possession, and or adjacent land in circumstances rendering it probable that the corner of such land would in addition be the owner of the land in dispute. PER JIMI OLUKAYODE BADA, J.C.A.
PLEA OF SETTLEMENT: WHETHER PLEA OF FIRST SETTLEMENT IS A PLEA OF TRADITIONAL HISTORY
The law is well settled that a plea of “first occupation” or “original settlement” or “first settlement” is a plea of traditional history. In Alli vs. Alesinloye (2000) 6 NWLR Part 660 Page 177 at Page 209 Iguh JSC put is succinctly as follows:- “It is now recognized that the fact of settlement upon land seems to be one of the oldest methods of acquiring land. As I have already observed, if traditional evidence, and this includes first settlement, is satisfactorily placed before the court and is accepted, title to the land can be declared on such evidence of tradition alone.” See also – Chief Odofin Vs. Ayoola (1984) 11 SC Page 72 at 144 where the Supreme Court per Oputa JSC put the matter as follows:- “First settlement seems to be the oldest method of acquiring title to land. If the traditional evidence of such first settlement is accepted, title can be declared purely on such traditional evidence.” See – Oluyola vs. Olofa (1968) NMLR Page 4621. PER JIMI OLUKAYODE BADA, J.C.A.
PROOF OF TITLE TO LAND: WHAT A PARTY RELYING ON TRADITIONAL HISTORY IN PROOF OF TITLE TO LAND MUST PLEAD AND PROVE
It is not sufficient for a party who relies for proof of title to land on traditional history to merely plead that he, and before him, his predecessors in title had owned and possessed the land from time beyond human memory. He must also plead and prove:- (i) who founded the land (ii) how the land was founded (iii) particulars of the intervening owners through whom he claims. PER JIMI OLUKAYODE BADA, J.C.A.
POSSESSION OF LAND: POSITION OF THE LAW WHERE TWO PERSONS CLAIM TO BE IN POSSESSION ON THE SAME PIECE OF LAND
It is settled law that where two persons claim to be in possession on the same piece of land, the person with the superior title is ascribed by the law to be in possession. PER JIMI OLUKAYODE BADA, J.C.A.
TRESPASS TO LAND: WHAT WILL AMOUNT TO TRESPASS TO LAND IN LAW
Trespass to land in law constitutes the slightest disturbance of possession of land by a person whole cannot show a better right to possession.See – Eze vs. Obiefuna (1995) 6 NWLR Part 404 Page 639 at 644. – Solomon vs. Mogaji (1982), 11 S.C. Page 1. – Amakor vs. Obiefuna (1974) 31 S.C. Page 1 at 37. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
(1) MICHAEL OSU
(2) PAUL ADIZUE
(3) PATRICK OBOLI
(4) OBIECHINA NZEKWE
(For themselves and on behalf of Umunkwo family of Ogbakuba) Appellant(s)
AND
(1) MICHAEL NWADIALO
(2) JOSEPH KAINE
(3) CHUKWUMA IFEJIKA
(For themselves and on behalf of Umuoga family of Ossomala) Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of an Onitsha High Court in Anambra State of Nigeria delivered on the 27th day of April 2005 in Suit No:-0/23/81: Michael Nwadialo & Others AND Michael Osu and others.
By paragraph 20 of the Plaintiffs second further amended statement of claim, the Plaintiffs now Respondents/Cross Appellants claimed against the Defendants now Appellants/Cross Respondents jointly and severally as follows:-
“(i) Declaration that the defendants have forefeited their customary tenancy of Aguasi and Anisise parcels of land verged yellow and violet respectively in the Plan NO.AGLS/AN 9/94.
(ii) N40.00 being arrears of rent for Aguasi and Anisise parcels of land for the years 1976 and 1977.
(iii) N50,000 damages for trespass
(iv) An order of Injunction restraining the Defendants, their servants and agents and any person claiming through them from entering or remaining on the plaintiff’s Aguasi, Anisise, Otiegede and plaintiff’s other portions of land all within the area verged green in the Plan NO.AGLS/AN 9/94 or from doing anything thereon or from in any way whatsoever interfering with the Plaintiffs’ right of ownership and possession of the said land.”
In a considered judgment, the learned trial Judge found in favour of the plaintiff and granted legs (i), (ii) and (iv) of the plaintiffs’ claim and dismissed leg (iii) which is for damages.
Dissatisfied with the Judgment of the lower court, the Appellants now appealed to this Court while the Respondents also Cross Appealed.
The Appellants/Cross Respondents formulated six issues for determination as follows:-
“(1) Were the pleadings of, and evidence led by the Plaintiffs, sufficient to warrant the finding by the trial court that the Plaintiffs were historically the owners of the land in dispute.
(2) Was the trial court right to find that the Plaintiffs proved their title to the land in dispute otherwise than by the traditional evidence.
(3) Was the trial court right to find, in one breath that the defendants trespassed upon the land in dispute and in another breath to dismiss the Plaintiffs’ claim for the said trespass and also still grant the Plaintiffs’ prayer for injunction forbidding the selfsame alleged trespass.
(4) Was the court below right to admit and act on Exhibits “A” and “0” as well as on Exhibits “H” and “J” and Exhibits “K” and “L” .
(5) Was the trial court right to dismiss the defendants’ challenge to the jurisdiction of the Native and customary courts embodied in Exhibits “A” and “O” respectively, simply because the said challenge was not raised in the Pleading.
(6) Was the trial court right in not considering the totality of the evidence and issues in the case before reaching its “conclusion” that the Plaintiffs were the first to settle on and the owners of, the land in dispute.”
The Respondents/Cross Appellants on the other hand formulated five issues for determination as follows:-
“(1) Whether on the pleadings, the issues for determination settled by both parties and the evidence in the case the trial court was right in finding that the Plaintiffs/respondents were the first to arrive and settle on the land in dispute and they are the original owners of the said land.
(2) Whether the trial court was right in finding that the Plaintiffs/respondents proved their title to the land in dispute by their being the first to settle thereon.
(3) Whether the trial Court was right in granting the Plaintiffs/respondents claim for injunction after refusing their claim for damages for trespass in the case.
(4) Whether the trial court was right in admitting in evidence and on acting on Exhibit “A”, “O”, “H”, “J”, “K” and “L”.
(5) Whether the trial court considered the whole evidence and issues in the case before coming to its decision that the Plaintiffs/respondents are the owners of the land in dispute.”
At the hearing, learned counsel for the parties adopted and relied on their respective briefs of argument.
The issues formulated by learned Counsel on behalf of the parties are similar. However having read through the judgment of the trial court only Issues 1, 2, 3, and 5 by the Respondents/Cross Appellants are necessary for resolution in this appeal since they are the core issues. Issue 3 is to be taken after the issue formulated in the Cross Appeal.
Issues 1, 2 and 5 (Taken together)”,-
Learned counsel for the Appellants/Cross Respondent referred to paragraph 4 of the Respondents/Cross Appellants’ second further amended Statement of Claim and submitted that the Plaintiffs’ pleading and evidence of its root of title are defective. He relied on the following cases:-
– Ewo v. Ani.(2004) 3 NWLR Part 861 Page 431.
– Kalio v. Woluchem (1985) 1 NWLR Part 4 Page 610 at 628.
– Ezeokonkwo v. Okeke (2002) 11 NWLR Part 777 at Page 20.
– Olokotintin v. Sarumi (2002) 13 NWLR Part 784 at 307.
– Anyanwu v. Mbara (1992) 3 NWLR Part 242 Page 386.
Learned counsel argued further that it is the law that traditional history as root of title must be properly pleaded and proved. And whoever relies on first settlement to prove acquisition of land must state the name of the person who first settled on the land and trace their root of title from the person. He referred to the following cases:
– Oni v. Olokun (1995) 1 NWLR Part 379 Page 189 at 202.
– Nkado v. Obiano (1997) 5 NWLR Part 503 Page 31 at 68.
He also submitted that because of the defect in the pleadings and evidence with regard to the radical title relied upon by the Plaintiffs, their case should have been dismissed by the court below and that the root of title claimed having failed, the court below was wrong to consider acts of possession and ownership as well as other circumstances.
It was stated that the trial court relied on Exhibits “A” and “O” i.e. the two Native/Customary court judgments. Learned counsel submitted that there is no nexus whatsoever between the two pieces of land in the Native/Customary court judgments and the land now in dispute in Exhibit “P”. He went further that the said Native/Customary court judgments are not tied to any plans. And their record of proceedings do not contain any description of the lands referred to.
He submitted that the courts would uphold Native/Customary court judgments for declaration of title to land not tied to survey plans provided that only if the area of land subject of the customary court award can be ascertained with certainty by passing the acid test laid down in Atekwadzo Vs. Robert Kwasi Adjei 10 WACA Page 274 namely:-
“Whether a surveyor taking the record of proceedings and judgment of the Native or Customary Court concerned, can produce a plan showing accurately the land to which the title has been given.”
He referred to the following cases:-
– Ajide v. Araba (1980) 5-7 S.C. at page 90.
– Duru v. Onwumelu (2001) 18 NWLR Part 746 Page 672 at 696.
Learned counsel stated that Exhibit “P” is the Plaintiffs plan in this case and he contended that Exhibit “A” contains no plan, sketch, or other description of the two pieces of land identified as “Aguasi” and “Anisise” in Exhibit “P”. He submitted that the trial court erred by relying on Exhibit “P” which was prepared and tendered nearly 69 years after the Native court Judgment, Exhibit “A”. He submitted further that Exhibit “O” is worthless and totally irrelevant in that it does not contain the names “Anisise” and “Aguasi” nor does it contain any plan, sketch or any description of the land in dispute.
On the issue of the boundaries it was contended that the Respondents/Cross Appellants failed to show clearly the area to which their claim relates. Reference was made to paragraph 3 of the second Further Amended Statement of Claim where it was pleaded that the land in dispute is bounded on the West by the River Niger and on the East by the Ulasi River.
It was further stated that Exhibit “P” was tendered in proof of boundaries and features on the land in dispute. And while River Niger was shown as the Western boundary, the Ulasi River was not shown on the Eastern side as pleaded. He referred to Imah v. Okogbe (1993) 9 NWLR Part 316 Page 159 at 174-175 where the Supreme Court held that-
“a plaintiff’s first duty is to establish with certainty and precision the area over which he lays claim.”
The learned counsel for the Appellants/Cross Respondent referred to the Judgment of the trial court where it was held that the Native/Customary Court Judgments embodied in Exhibits “A” and “O” are conclusive evidence of fact that the Plaintiffs granted portions of their Aguasi and Anisise lands to the defendants as customary tenants when the later arrived on the land in dispute.
He then submitted that it was after the conclusive findings that the court below now made findings on the probabilities of the case.
He stated that the approach adopted by the court below is patently erroneous. He referred to the following cases:-
– Sanusi v. Ameyogun (1992) 4 NWLR (Part 237) page 527.
– Odofin Vs. Mogaji (1978) 11 NSCC Page 273 at 278-279.
Learned counsel therefore urged that the appeal be allowed.
The learned counsel for the Respondents/Cross Appellants on the other hand stated that the land in dispute in a case is determined with reference to the Plaintiffs’ claim and plan. And that the land in dispute in this case is verged green on the Plaintiffs/Respondents Plan Exhibit “P” and as pleaded in paragraphs 4, 5, 6 and 20(iv) of the second further amended Statement of Claim.
He referred to the following cases:-
– Mabiaku Onotarie & others v. Binite Onokpase & another (1984) 12 S.C. Page 19 at Page 38.
– O. Ebevuhe & other v. Ukpakera & others (1996) 7 NWLR Part 460 Page 254.
He stated further that there are five established ways of proving ownership of title to land of which original settlement or long possession for a long period of time is one. He referred to:-
– Odofin vs. Ayoola (1984) 11 S.C. Page 72 at 93.
– Alli and 9 others Vs. Alesinloye & others (2000) 6 NWLR Part 660 Page 177 at 209.
Learned counsel went further that the Respondents/Cross Appellants pleaded their original settlement on a large area of land including the land in dispute as the basis of their ownership of the land in dispute. He referred to paragraphs 3, 4, and 5 of the second further amended Statement of Claim at pages 125 to 126 of the record of appeal and Exhibit “P”. He stated further that the Respondents/Cross Appellants did not plead traditional history as the root of their ownership of the land in dispute. He contended that traditional history as a way of acquiring title to land is different from settlement or long possession as a way of acquiring ownership of land. He submitted that the Respondents/Cross Appellants were not required by law to plead traditional History in this case, and he referred to the cases of –
– Anyanwu vs. Mbara & another (1992) 5 NWLR Part 242 Page 386 at 399
– Onwuma vs. Ezeokoli (2002) 5 NWLR Part 760 Page 353 at 366.
Learned counsel also stated that the trial court found on the evidence before it that the Respondents/Cross Appellants became the original owners of the land in dispute by being the first to arrive and settle on the land in dispute.
He went further that the Court gave dispassionate consideration to the case of both parties and exhibits “A”, “0” and other credible evidence were relied upon by the court before it came to its decision.
The learned Senior Counsel for the Respondents/Cross Appellant therefore urged that the appeal be dismissed.
In the instant appeal, the Respondents/Cross Appellants pleaded their original settlement on a large area of land including the land in dispute as the basis of their ownership of the land in dispute.
In support of their root of title to the land in dispute, the Respondents/Cross Appellant pleaded in paragraphs 3,4, 5 and 7 of the second further amended Statement of Claim as follows:-
(3) The Plaintiffs are the owners of a large parcel of land situate at Ossomala and bounded on the North by the and of Izagbo family of Ogbakuba, on the south by the land of the Ogwashi family of Ossomala, on the west by the river Niger and on the east by the Ulasi river. The said land includes portions of land known as and called Aguasi, Anisise, Otiegede, Agbobe and Obulumani.
(4) The Plaintiffs’ ancestors migrated from Igala River over 500 years ago and settled on a large parcel of land of which the area verged green in the accompanying Plan NO.AGLS/AN 9/94 forms a part. At the time of the settlement the whole of the said parcel of land was virgin forest.
And by so settling the Plaintiffs’ ancestors became the owners of the said parcel of land including the area verged green in the Plan No: AGLS/AN 9/94.
The other part of the plaintiffs’ land is East of the area verged green in the plan NO.AGLS/AN 9/94 and it forms part of the Ossomala forest reserve.
The Plaintiffs hereby specifically plead the boundaries, features and the details contained in their Plan NO.AGLS/AN 9/94.
(5) As owners in possession of the land verged green in the plan No.AGLS/1N 9/94 and the portion East of it and forming part of the Ossomala forest reserve, the Plaintiffs Incestors farmed on the said parcel of land, fished the pools and ponds thereon, killed animals on the and, cut trees on the land reaped the economic trees thereon and let portions of the land to tenants for faming under customary tenancy.
(7) About 134 years ago the defendants ancestors migrated from the hinterland across the Ulasi River and the Plaintiffs family granted to them the portions of the land verged yellow and violet in the Plan No.AGLS/AN 9/94 under customary tenancy: the yellow portion was for residential purposes and the violet portion was for farming. The defendants ancestors and thereafter the defendants’ family paid yearly tributes to the plaintiffs’ family for their occupation and use of the said portions of land verged yellow and violet in the Plan NO.AGLS/AN 9/94.”
The Appellants/Cross respondents in their amended Statement of defence on the question of their root of title pleaded paragraphs:-
(3) The defendants deny paragraphs (3) (4) and (6) of the Statement of Claim and will put the Plaintiffs to strict proof thereof.
(4) The defendants deny paragraph (7) of the Statement of Claim and will put the Plaintiffs to strict Proof. .
(5) In further answer to paragraph 7 of the Statement of Claim the defendants assert that they own lands firm time immemorial on both sides of the river Niger and in relation to the land now in dispute have indicated in their plan MEC/1939/82 and verged pink and filed with this Statement of defence the lands which they claim as owners in possession.
Part of the said land is now part of the Ossomala forest reserve. The defendants aver that they were first to settle on these lands and have common boundaries with their neighbours including the Plaintiffs. As owners in possession the defendants have exercised maximum acts of ownership and possession thereon by establishing their village thereon, farming thereon and fishing in their various ponds and lakes granting portions for forestry reserve, putting customary tenants thereon and making grants and lease to diverse persons and institutions including the Royal Niger Company and the Staff of Forestry Reserve Without let or hindrance from the Plaintiffs.”
In view of the part of the Pleadings quoted above it is clear that the Appellants/Cross Respondents did not accept the Respondents/Cross Appellants version of their root of title. And once a party pleads and traces his root of title in a land dispute to a particular service and same is challenged, that party to succeed as a plaintiff in an action must not only establish his title to such land, he must also satisfy the court as to the title of the person or source from whom he claims to derive his title to the land.
See – Adesanya vs. Aderonmu (2000) 6 SCNJ Page 242.
– Mogaji v. Cadbury Fry (Export) Ltd. (1985) 2 NWLR Part 7 Page 393.
In Idundun Vs. Okumagba (1976) 1 NMLR Page 200, the Supreme Court stated the five methods by which ownership of land may be established. The methods are:
(i) Proof by traditional history or traditional evidence.
(ii) Proof by grant or the production of document of title.
(iii) Proof by acts of ownership extending aver a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are true owners of the land.
(iv) Proof by acts of long possession, and or adjacent land in circumstances rendering it probable that the corner of such land would in addition be the owner of the land in dispute.
See also – Atanda v. Ajani (1989) 3 NWLR Part 111 Page 511.
In the instant appeal, the learned/counsel for the Appellants/Cross Respondents referred to paragraph 4 of the second further amended statement of claim and submitted that the Plaintiffs’ pleading and evidence of its root of title is defective in that the Plaintiffs failed to name their ancestor who first settled on the vast area of land referred to in paragraph 4 of the second further amended statement of claim referred to above. He also submitted that the Respondents/Cross Appellants Pleaded and relied on traditional evidence and they cannot rely on early other method to prove their title and also that the Respondents failed to plead and prove the three mandatory facts of
– who founded the land
– how he founded the land
– circumstances leading to the founding and evidence of successive persons through whom the land devolved through unbroken chain without leaving a gap.
On the other hand the Respondents/Cross Appellants’ learned Senior Counsel submitted that they did not plead traditional history as the root of their ownership of the land in dispute. He contended that traditional history as a way of acquiring title to land is different from settlement or long possession is a way of acquiring ownership of land. And that the Respondents/cross Appellants were not required by law to plead traditional history in this case.
The law is well settled that a plea of “first occupation” or “original settlement” or “first settlement” is a plea of traditional history. In Alli vs. Alesinloye (2000) 6 NWLR Part 660 Page 177 at Page 209 Iguh JSC put is succinctly as follows:- “It is now recognized that the fact of settlement upon land seems to be one of the oldest methods of acquiring land. As I have already observed, if traditional evidence, and this includes first settlement, is satisfactorily placed before the court and is accepted, title to the land can be declared on such evidence of tradition alone.” See also – Chief Odofin Vs. Ayoola (1984) 11 SC Page 72 at 144 where the Supreme Court per Oputa JSC put the matter as follows:- “First settlement seems to be the oldest method of acquiring title to land. If the traditional evidence of such first settlement is accepted, title can be declared purely on such traditional evidence.” See – Oluyola vs. Olofa (1968) NMLR Page 4621.
In view of the foregoing it is now clear that the plea of settlement by the Plaintiff’s ancestors in paragraph 4 of the second further amended Statement of Claim referred to earlier in this judgment is a plea of traditional history or evidence which must be properly pleaded and proved.
In Ewo vs. Ani (2004) 3 NWLR part 861 Page 431 Uwaifo JSC emphasized that:- It must be pleaded
(a) who founded the land
(b) in what manner the land was Founded and the circumstances leading to it.
(c) the successive persons to whom the land
I thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained. See also – Kalio Vs. Woluchem (1985)1 NWLR Part 4 Page 610 at 628 – Pairo Vs. Tenalo (1976) 12 S.C. Page 31 at 41.
Also in Ezeokonkwo Vs. Okeke (2002) 5 SCNJ Page 1 it was held among others that –
“It is not sufficient for a party who relies for proof of title to land on traditional history to merely plead that he, and before him, his predecessors in title had owned and possessed the land from time beyond human memory. He must also plead and prove:-
(i) who founded the land
(ii) how the land was founded
(iii) particulars of the intervening owners through whom he claims.
See – Olokotintin Vs. Sarumi (2002) 13 NWLR Part 784 Page 307 at 315.
Therefore it is my view that, the Respondents/Cross Appellants have failed to plead satisfactorily or lead evidence to show the root of their title and before them that of their ancestors which is a sine qua non in cases where a Plaintiff relies by evidence of traditional history in proof of his title to land in dispute.
Consequently issues 1, 2, and 5 are therefore resolved against the Respondent/Cross Appellant and in favour of the Appellants/Cross Respondents.
See – Mogaji Vs. Cadbury Nig Ltd. (1085) 2 NWLR Part 7 Page 293.
– Total (Nig.) Ltd v. Wilfred Nwako (1978) 5 S.C. Page 1 at 12.
– Elias vs. Omo-Bare (1982) 5 S.C. Page25.
At this juncture, it would be necessary to consider the Cross Appeal. It is on record that at the end of hearing, the learned trial Judge entered Judgment for the Respondents/cross Appellants for forfeiture, arrears of rent and injunction but refused to award damages for trespass to the Plaintiffs.
As a result of the refusal of the learned trial Judge to award damages for trespass, the Respondents/cross Appellants appealed to this Court.
Both counsel for the parties in this appeal formulated issues for determination in this Cross Appeal but the issue formulated by learned Senior Counsel for the Respondents/cross-Appellants is considered relevant and apt to the determination of this Cross-Appeal and it is as follows:-
“Whether the trial court was right in refusing to award the Respondents/Cross Appellants damages for trespass in this case.”
Closely related to the above issue is issue No.3 in the main appeal and it is as follows:-
“Whether the trial court was right in granting the Respondents/Cross Appellants claim damages for trespass in the case.”
ISSUE DISTILLED FROM CROSS-APPEAL
It was stated by the learned senior/counsel for the Respondents/Cross Appellants that the appellants/cross Respondents were the customary tenants of the Respondents/Cross Appellants in respect of two parcels of land, namely “Aguasi” and “Anisise” verged yellow and violet in the/Respondents/cross Appellants Plan NO.AGLS/AN 9/94 Exhibit “P”. But the area of trespass complained against the Appellants/Cross Respondents by the Respondents/Cross Appellants are competely outside “Aguasi” and “Anisise” parcels of land and verged red on the Exhibit “P”.
The trial court was said to have found that the Appellants/Cross Respondents trespassed on the Plaintiffs land at “Ikpoko” and “Otiegede” which are outside “Aguasi” and “Anisise” potions of the land, but refused to award the Respondents/Cross Appellants damages for trespass on the ground that a Plaintiff cannot sue a Defendant for both forfeiture of Customary tenancy and damages in trespass in the same suit because the two claims are mutually contradictory. He relied on the decision in Okpala v. Okpu (2003) 2 NWLR Part 812 Page 183.
The learned Senior Counsel for the Respondents/Cross Appellant submitted that the trial court was in error to have relied on the decision of the Supreme Court in Okpala v. Okpu (supra) since the decision did not say anything on the question of damages for trespass. He therefore urged that/this Cross-Appeal on the Issue of damages for trespass be allowed.
The learned Counsel for the Appellant/Cross Respondents submitted that a party cannot sue for both forfeiture and trespass over the same land on the principle enunciated in Aromire vs. Awoyemi (1977) 2 S.C. Page 1.
He went further in his submission that there cannot be damages for trespass where the plaintiffs neither pleaded nor proved the three imperative facts of the traditional evidence of title it pleaded as its root of title. He referred to the following cases:-
– Ewo vs. Ani (supra)
– Piaro vs. Tienalo (supra)
– Ezeokonkwo vs. Okeke (supra)
– Kalio vs. Woluchem (supra)
He also submitted that Exhibits “A” and “O” relied upon are inadmissible and that the defendants did not trespass on the land in dispute.
It is settled law that where two persons claim to be in possession on the same piece of land, the person with the superior title is ascribed by the law to be in possession.
Trespass to land in law constitutes the slightest disturbance of possession of land by a person whole cannot show a better right to possession.See – Eze vs. Obiefuna (1995) 6 NWLR Part 404 Page 639 at 644.
– Solomon vs. Mogaji (1982), 11 S.C. Page 1.
– Amakor vs. Obiefuna (1974) 31 S.C. Page 1 at 37.
Where a party alleges trespass to land, the remedy of injunction is a ready tool to prevent further trespass. See – Anibire vs. Womiloju (1993) 5 NWLR Part 295 at Page 623. A claim for injunction invariably follows a finding of liability for trespass. However, the remedy of an injunction will not be available to the plaintiff whose action for declaration of title and trespass failed. See – Olowu v. Eniola (1967) NMLR Page 339.
In the instant appeal, it was contended that the Respondents/Cross Appellants are the owners and in possession of the land in dispute. The Appellants/Cross Respondents on the other hand also contended that they owned and possess the land in dispute and have owned and possessed same from time immemorial.
In Nzekwu v. Nzekwu (1989) 2 NWLR Part 104 page 373 at 391 the Supreme Court held per Obaseki JSC that – “the law is all the same settled that the plaintiff in an action for recovery of land or recovery of possession who claims to have a right to immediate possession of the land…………………. The onus of proof lies on the person alleging that someone in possession is a trespasser. Also in Oyedare v. Keji (2005) 7 NWLR Part 925 Page 584 to 585 Kutigi JSC (as he then was) stated thus:- It is settled by a chain of authorities that where the pleaded title to land has not been proved as in this case, it will be unnecessary to consider acts of ownership and possession which are no longer acts of possession but acts of trespass. See for example Balogun v. Akanji (1988) 1 NWLR Part 70 at Page 301. Fasoro v. Beyioku (1988) 2 NWLR Part 76 at Page 263.”
The learned trial judge in his judgment on page 230 of the record while reviewing the evidence of the parties stated as follows:- “……………………………………………………
Both parties called witnesses who testified as to the parties’ acts of possession and ownership over the land in dispute. The PW1 is from Ugiri, Okigwe, Imo State but has PW1 is from Ugiri, Okigwe, Imo State but has lived on the land of the Plaintiffs for 39 years as a tenant of the Plaintiffs. He testified that he farmed and harvested palm nuts on the land of Agbobe and was put on the land by the Plaintiffs of Umuoga on payment of annual tribute of N1000.00, a tin of palm oil and 10 yams. There were other tenants who live on the Agbobe land of the Plaintiffs and farm thereon and were all put on the land by the Umuoga Family. The Agbobe land is shown on the Plaintiffs’ Survey Plan Exhibit “P”.
The PW2 is a native of Umuoga and lives also at the Plaintiffs’ Agbobe land. It was his evidence that he farmed on the Agbobe, Ikpoko and Otiegede lands owned by the Umuoga Family of Ossomala just as his own father did in his lifetime. He planted yams, cassava, maize and sweet potatoes on these lands. He stated that the land where the defendants live and farm belong to the Plaintiffs of Umuoga. He testified that the boundary between Ogbakuba and Ossomala is the footpath from the river Niger to the centre of Nkow Market, Ogbakuba and crosses the major road and continue to the forest reserve and then to the Ulasi River. The major road is the road that runs from Uga junction by Atani road to Ossomala.
PW3 who is the Ogele or the Okpala of the Umuoga Family testified that the land in dispute belonged to the Plaintiffs. He stated that their ancestors migrated from Igala and settled on this large area of land and lived there. The land at that time was a virgin Forest and while their ancestors lived there, they farmed, fished thereon, hunted animals and reaped the economic fruits of trees on the said land. The Umuoga people have continued to farm on the said large area of land and have put in customary tenants on the said land/who live and farm thereon, fish and collect palm nuts from the palm trees thereon and pay tributed to them. The large area of land descended to their people from their ancestors, being handed down from one generation to another until it reached them.
It was the evidence of the PW3 that the land now in dispute is the portion of the said entire large area of land extending from the River Niger to the beginning of the Forest Reserve.
……………………………………………………………………
For the defendants, the DW5 testified that he is from Ihiala and lives on the defendants “Utukan land” just as his late father who died long time ago did. His father paid rents to the defendants for living on their land and he also paid yearly rent to them of N10,000.00. Ten thousand Naira, one carton of beer, a crate of soft dring, one carton of malt, Kolanut and two bottle of native gin. It was/his evidence that there were other strangers like him who live at Umunkwo and also pay rent to the people of Umunkwo like himself. He mentioned some of these people/strangers’ who also live on the same Utukan land as Nwatibe, Okoli Osilike, Nichonus and others. The DW5 stated that the strangers cultivate Utukan Aguasi, Uboma lands. It is the one which the Plaintiffs claim was granted to the defendants as customary tenants.
Under cross-examination, DW5 stated that Okoli Osilike came to them and they directed him to go to Nwatube and that Nichonus was living with the said Nwatube.
The DW6 is the 2nd defendant on record and lives at Umunkwo. He denied that the plaintiffs gave them the lands where they farm and live. It was his evidence that the National African Company entered into agreement with his people, Exhibit Q, in respect of the land where they built living houses and traded in palm oil and kernel. The said houses turned into ruins when the company left but that there still exists evidence that they once live there.
DW6 stated that they farm and fish on their Ogbakuba land and also rear and hunt animals. They put in tenants on the land and sold lands to people. He stated that his people had never paid tribute to the plaintiffs in respect of the land in dispute, denied that the plaintiffs 06tained judgments against them in 1930 and 1959. It was his evidence that the Forestry Department obtained land from them near the burrow pit for Planting of nursery seedlings and paid them compensation. And that if however, the said Forestry Department paid the Plaintiffs any rent, his people were not aware of same.”
The learned trial Judge in arriving to the conclusion that the plaintiffs were original owners of the/land in dispute and that they have been exercising maximum acts of ownership and possession over the land in dispute for over 500 years relied on part of the evidence quoted above from his Judgment.
Where there are two competing claimants to land and both are relying on acts of ownership and actual possession, the law is that he who can prove title is in actual possession and the other is a trespasser. See Fasoro & another vs. Beyioku (supra).
The Respondents/Cross Appellants alleged that the Appellants/Cross Respondents trespassed on the land in dispute, but as could be seen earlier in this Judgment the Respondents/Cross Appellants were unable to plead and prove their title to the land in dispute successfully.
The evidence led by the Respondents/Cross Appellants as could be seen from the Judgment of the trial court on acts of ownership and possession are no longer acts of possession but acts of trespass. Even though the Appellants/Cross Respondents did not counter claim at the lower court they/gave satisfactory evidence of ownership and possession of the land in dispute as could be seen from part of the Judgment of the lower court quoted above.
In the circumstance, it is my view that effective and exclusive possession needed to establish trespass cannot be ascribed to the respondents who failed to show better title because a claim in trespass presupposes that the Plaintiff is in possession of the land at the time of trespass.
According to decided authorities it means that the Respondents/Cross Appellants acts of ownership and possession of the land in dispute is trespass. It follows therefore that the Respondents/Cross Appellants do not have better title than the Appellants/Cross Respondents.
The lower court’s finding that the Appellants/cross Respondents trespassed on the Respondents/Cross Appellants’ land cannot therefore be supported and it could not be said that trespass was proved in view of its failure to draw proper conclusion on the failure of the respondents/Cross Appellants to plead and prove his title to the land in dispute.
Furthermore, I also agree with the submission of counsel for the Appellants/Cross Respondents that baled on the principle enunciated in Aromire vs. Adeyemi (Supra) that the Respondents/Cross Appellants cannot sue the Appellants/Cross Respondents for forfeiture and trespass over the same land because the two claims are contradictory.
It is an elementary principle of law that an appellate court will not ordinarily interfere with the findings of fact made by the trial court which are supported by evidence, except in circumstances such as where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it has drawn wrong conclusion from accepted credible evidence or has taken an erroneous view of the evidence or findings of facts are perverse in the sense that they do not flow from the evidence accepted by it. See- Woluchem Vs. Gudi (1981) 5 S. C. Page 291 at 295.
In view of the foregoing it could not be said that trespass against the Appellants/Cross Respondents was proved. I think the court below was in grave error when it held that the plaintiffs were original owners of the land in dispute and that trespass was proved.
Consequently it is my view that the Respondents/Cross Appellants are not entitled to damages.
This issue distilled from the Cross Appeal is resolved against the Respondents/Cross Appellants and in favaur of Appellants/Cross Respondents.
ISSUE 3
It was submitted by the learned counsel far the Appellants/Cross Respondents that the injunctive relief granted to the Plaintiff is perverse. He went further that it is only where damages are awarded far trespass that a consequential order for injunction must follow to stop the damages complained of.
The learned Senior Counsel for the Respondents/Cross Appellant an the other hand referred t6 the judgment of the trial court an pages 2300 to pages 230p.
He stated that the trial court did not dismiss the Respondents/Cross Appellants Claim far trespass but that it was disallowed.
He argued that injunction is an ancillary relief to the other reliefs and that the Respondents/Cross Appellants having established that they awn the land in dispute they own entitled to the Order of injunction.
He referred to the following cases:-
– Gbadamosi S. Olorunfemi & others Vs. Chief Fafiu E. Asho & others (1999) 1NWLR Part 585 Page 1 at Page 9 Letter H.
– Sunday Ogunsina & others Vs. Matanmi & others (2001) NWLR Part 718 Page 286 at 297 Letter “C”.
It is settled law that it is only where damages are awarded far trespass that a consequential order of injunction must follow to stop the damage complained of. See- Obanor v. Obanor (1976) NMLR Vo1.1. Page 39 at 43.
– Enang Vs. Adu (1981) 11-12 S.C. Page 25 at 48.
– Okoro Vs. Uzoka (1978) 4 S.C. page 77.
– Oyedare Vs. Keji (supra)
However where the claim for trespass fails injunctive relief will not be awarded.
See – Olowu Vs. Eniola (supra}
– Eze Vs. Obiefuna (1975) 6 NWLR Part 404 Page 639.
In Fagunwa Vs. Adibi (2004) 17 NWLR Part 703 Page 544 at 570 Niki Tobi JSC stated thus:-
“the claim for injunction is parasitic on the claim for trespass, where therefore the claim for trespass fails, the prayer for injunction must by parity of reasoning not be granted. This is because for the grant of equitable relief in support of a legal right, the claimant must first of all establish a legal right to be entitled to such equitable relief like an injunction.
Finally on this issue which is closely related to the Cross Appeal, after taking into consideration the position of the law, I hold the view that the trial court was wrong in granting Respondents/Cross Appellants claim for injunction after/refusing their claim for damages for trespass. This is because injunction is an equitable remedy and where a claim for trespass fails, the claim for injunction must also fail.
This issue is also resolved against the Respondents/Cross Appellant and in favour of Appellants/Cross Respondents. In the final analysis, this appeal succeeds, and it is allowed. Since the Respondents/Cross Appellants were unable to plead satisfactorily and lead evidence to show their root of title and that of their ancestors, they cannot maintain a claim against the Appellants in forfeiture and arrears of rent, therefore the Judgment of the lower court which granted the Plaintiff’s claim in terms of (i) forfeiture and (ii) arrears of rent, are hereby set aside. As for the order for injunction in leg (iv) it is also set aside because the lower court having refused to grant the Plaintiffs claim in damages should not have gone ahead to grant injunction.
The Cross Appeal, concerning leg (iii) on damages for trespass in respect of the Plaintiffs’ claim also fails and it is hereby dismissed.
For avoidance of doubt, the Plaintiffs/Respondents/Cross Appellants’ Claim in paragraph 20(i), (ii,),(iii) and (iv) of the second further amended Statement of Claim in the court below are hereby dismissed with N5,000.00 costs in favour of the Defendants/Appellants/Cross Respondents before that court. This shall be the Judgment of the Court.
The Defendants/Appellants/Cross Respondents are entitled to the costs of this appeal which is fixed at (N10,000.00) Ten thousand Naira against the Plaintiffs/Respondents/cross Appellants.
JAMES OGENYI OGEBE, J.C.A.: I had a preview of the lead judgment of my learned brother Bada JCA just delivered and I agree entirely with his reasoning and conclusion and I adopt the judgment as mine.
SOTONYE DENTON-WEST, J.C.A.: I have been privileged to peruse the judgment of my learned Brother, JIMI OLUKAYODE BADA, JCA., just delivered and I am in agreement with the views expressed in the judgment and conclusions thereon. The lead judgment has adequately dealt with all the issues raised in the appeal and cross – appeal. I have nothing more to add but to adopt the judgment as mine, and thus abide by all consequential orders including orders as to costs.
Appearances
G.R.I. EGONU SAN, for the Plaintiffs/Respondents/cross Appellants with him is C. A. Nyigide Esq.For Appellant
AND
MR. J.C. EZIKE, for the Defendants/Appellants/Cross Respondents with him is I. I. Onyiuke Esq.For Respondent
