ALHAJI LIADI MUSARI & ORS v. MADAM AFUSAT BISIRIYU & ORS
(2014)LCN/6997(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of March, 2014
CA/L/152M/2007
RATIO
THE ESSENCE OF PLEADINGS
Decidedly, the main function of pleadings is to ascertain with precision, the various matters that are actually in dispute and the parts on which they agree and thus to arrive at certain and clear issues on which both parties desire a Judicial decision. Each party must give his opponent a sufficient outline of his case - ESSO PETROLEUM CO. LTD V. SOUTH PORT CORPORATION (1956) A.C. 218 @ 241.
A denial of a material allegation of fact must therefore not be general or evasive, but specific. Every allegation of fact in the pleadings, if not denied specifically or by necessary implication shall be taken as established at the hearing SAMSON AJIBADE V. MAYOWA & ANOR (1978) 9 & 10 S.C. 1 @ 6; EKO EDUME V. UME NNACHI & ORS (1964) 1 ALL NLR 329. per RITA NOSAKHARE PEMU, J.C.A.
WHETHER A COURT CAN AWARD TITLE TO LAND WHERE NO RELIEF FOR TRESPASS AND INJUNCTION IS CLAIMED
The Claimant in an action claiming such reliefs must specifically claim same in an action for trespass to land - AGBAISIS V. EBIKOREFEE (1997) 4 NWLR (PT. 502) 630. Where no relief for trespass and injunction is claimed, the Court will not award title to the land in dispute. OKORIE & ANOR V. UDUM & ORS 1960 SCNLR 362.
There is uncontroverted evidence before the Court that the Appellants trespassed on the Respondents land, and it is settled law that an established trespasser, no matter the duration of his occupation or use of the land remains a trespasser ab initio. Therefore, the length of his occupation or use of the land cannot translate to ownership of it. No trespasser in law is allowed to desire a possessory title from his trespass - OJOMO V. IBRAHIM (1999) 12 NWLR (PT.631) @ 415 @ 475. Per RITA NOSAKHARE PEMU, J.C.A.
WHETHER A COURT CAN REFUSE TO RELY ON EVIENCE RENDERED NOT INADMISSIBLE BY THE PROVISIONS OF THE EVIDENCE ACT OR EVIDENCE NEITHER CHALLENGED OR CONTROVERTED
It is elementary law and indeed settled that where evidence is neither challenged nor controverted, and where documentary evidence is rendered not inadmissible by the provisions of the Evidence Act, the Court should rely on it - LAWSON-JACK VS. SHELL PETROLEUM DEVELOPMENT CO. NIG LTD (2002) 13 NWLR (PT.783) 180; ALAGBE V. ABIMBOLA (1978) 2 SC. 39; BUHARI V. OBASANJO (2003) 17 NWLR (PT. 850) @ 587; ATTORNEY GENERAL ONDO STATE V. A-G. EKITI STATE 2001, 17 NWLR PT.743, 506.
It is trite that where evidence is uncontroverted, unchallenged and credible, the Court will be left with no option than to accept same - PHMB V. EDOSA (2001) 12 WRN 183. Per RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI LIADI MUSARI
2. MR. RAJI MUSARI
3. SALAKO MUSARI
4. NURENI LIADI
5. SHAFARI LAMIDI (For themselves and as representatives of Musari Ashade Family)
6. LAMIDI YUSUF (For themselves as representative of Omoseke Ashade) Appellant(s)
AND
1. MADAM AFUSAT BISIRIYU
2. MADAM TIRI BISIRIYU
3. MR. SALIU ALIU (For themselves and as Representatives of Bisiriyu Ashade Family) Respondent(s)
RITA NOSAKHARE PEMU, J.C.A.(Delivering the Leading Judgment): The claim, the subject matter of this appeal was instituted by Writ of Summons dated 21st November, 1994.
In paragraph 23 of the Amended Statement of Claim dated 15/4/2002 the Plaintiffs (Respondents in this Appeal) claim from the Defendants (Appellants in the present Appeal) the following:
(a) “A Declaration that the piece or parcel of land on survey plan No. FF/4117/L/84 and being at MAWAOLA/IGBO-ELERIN Town is the property of BISIRIYU ASHADE FAMILY.
(b) A Declaration that the plaintiffs are entitled to the grant of Statutory Rights of Occupancy of the said piece or parcel of land describe in (A) above.
(c) Possession of the land in dispute described in (a) above
(d) A sum of N100,000.00 damages for trespass and destruction caused to the farmland of BISIRIYU ASHADE FAMILY
(e) A perpetual injunction restraining the Defendants, their servants, thugs, Agents, privies and assigns from trespassing and selling BISIRIYU ASHADE FAMILY land at MAWAOLA/IGBO-ELERIN as showed on Survey Plain No. FF/4117/L/84” – pages 80-85 of the Record of Appeal.
FACTS
The suit commenced with three Plaintiffs and six Defendants. The original first Plaintiff Madam Afusat Bisiriyu died and also the 6th Defendant in the course of the proceedings.
At the Court below, the parties filed their respective processes, the Plaintiffs filing an Amended Statement of Claim dated 15/4/2002; the Defendants filed an Amended Statement of Defence dated 17/5/2002 – pages 86-88 of the Record of Appeal. There was a Reply to the Amended statement of Defence dated 21st October 2002 – pages 89-91 of the Record of Appeal.
Parties are agreed that they are both descendants of IDOWU BALOGUN, who founded the land in dispute, and after his death his land, part of which the land in dispute forms, devolved on ASHADE, his son.
Ashade married three wives who bore children from the three branches viz BISIRIYU FAMILY, BUSARI/MUSARI FAMILY and ESUBIYI. Parties are agreed that the Respondents (Plaintiff in the lower Court) are from BISIRIYU Family, whilst the 1st to 4th Appellants (1st to 4th Defendants in the lower Court) are from BUSARI/MUSARI FAMILY.
The Respondents contended that ASHADE had shared, in his lifetime his land to the three branches giving the names to the eldest to each branch to the respective land, for identification purposes. That BISIRIYU and his other siblings henceforth continued to exercise acts of possession and ownership over his portion to the exclusion of the other two branches. The two other branches did not interfere with any other land.
After the death of the three children of ASHADE who are BISIRIYU, BUSARI and FABIYI, members of their respective families continued to exercise rights of ownership over the land which they inherited from their respective fathers without let or hindrance, and without interference from any of them.
When it was apparent that the land’s value was enhanced and commercial activities began to extend to the area in dispute, the 1st Appellant approached the Respondents to team up with him to defend their land against their neighbours i.e. Otetuwon family of lgbo Elerin.
The Respondents refused this request because the land in dispute belonged to BISIRIYU ASHADE and that no one could claim otherwise.
Overtime the respective families sold portion of their land without interference from each other.
After the Appellants sold off their entire land, they now began to trespass on the land of the Respondents. The Respondents were then authorized to institute the suit, the subject matter of this Appeal against the Appellants, because of the trespassory acts of the Appellants.
The Appellants contend that Ashade never shared his land either in his lifetime, nor did anyone share same after his death.
The Appellants contend that each of the three families selected his person to be signatories to ASHADE FAMILY RECEIPT, by which the joint sale of land was carried out. That the entire land had been sold out to tenants jointly by the six signatories to the family receipt. The Respondent denied this fact. They never attended meeting nor participated in such sales.
At the trial, the Respondents (Plaintiffs in the lower Court) called three (3) witnesses while the Appellants (Defendants in the lower Court) called four (4) witnesses.
The 2nd Respondent’s (was 1st Plaintiff at the trial but now deceased) her name was struck out being deceased, but had testified as PW1 at the lower Court. At the close of the trial, the learned trial Judge H.A.O. Abiru of the High Court of Justice Lagos State, found for the Respondents vide Judgment delivered on the 22nd day of September 2004 – pages 144 – 162 of the Record of Appeal in Suit No. ID/28/74.
The Appellants are dissatisfied with the Judgment of the lower Court and are desirous of appealing same.
Consequent upon this, and pursuant to the Practice Direction of this Honourable Court, the Appellants filed a Notice of Appeal on the 27th of October 2004, encapsulating six (6) Grounds of Appeal.
The Appellants filed their Brief of Argument on the 11th of January 2008. It is settled by Taiwo Kupolati Esq. The Respondents filed their Brief of Argument on the 29th of February 2008. It is settled by Chief Oludare Fasae.
The Appellant filed no Reply Brief.
In their Brief of Argument, the Appellants distilled two (2) issues for determination. They are:
(i) “WHETHER FROM THE EVIDENCE LED BEFORE THE TRIAL COURT, IT WAS RIGHT OR EVIDENTIALLY JUSTIFICABLE OF THE TRIAL COURT TO HAVE HELD THAT ASHADE SHARED OR PARTITIONED HIS LAND AMONG HIS THREE CHILDREN, TO WIT: MUSARI, BISIRIYU AND FABIYI (Grounds 1, 2, 3 and 7 of the Notice of Appeal dated 27th October 2004).
(ii) WHETHER THE TOTALITY OF THE EVIDENCE BEFORE THE COURT SUPPORTS THE JUDICIAL ORDERS OF DECLARATION OF TITLE TO, AND POSSESSION OF THE LAND IN DISPUTE AS WELL AS THE AWARD OF DAMAGES AND INJUNCTION BY THE TRIAL COURT. (Grounds 4, 5, 6 and 7 of the Notice of Appeal dated 27th October 2004)
On their part, the Respondents in their Brief of Argument filed on the 29th of February 2008 distilled one sole issue for determination which is
”WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN BELIEVING THE EVIDENCE OF THE PLAINTIFF WITNESSES ON THE ISSUE OF SHARING BY ASHADE OF HIS LAND HAVING REGARD TO THE EVIDENCE ADDUCED BY THE PWS VIZ-A-VIZ THAT OF THE DWS, NON-DISCREDITING OF THE EVIDENCE OF THE PWS AND THE ADMISSIONS MADE BY THE DEFENDANTS.”
On the 12th of February 2014, the parties adopted their respective Briefs of Argument.
ISSUE NO 1
It is the Appellants’ contention that in order to ascertain whether Ashade shared his land during his lifetime, among his three children MUSARI, BISIRIYU and FABIYI, it would be necessary to X-ray the vital pieces of evidence led by the Respondents’ witnesses.
He submits that PW1’s Tiri Bisiriyu’s testimony, who claims to be the head of the Bisiriyu – Ashade land was not reliable as in one breath, she testified that Ashade divided his land into three portions and gave a portion each to Bisiriyu, Fabiyi and Musari, as representing the line of each of the three wives – page 121 of the Record of Appeal.
In another breath, she testified saying
“It was when I went to see my father on the land that he told me of the sharing. I was about 20 years old” – pages 121 of the Record of Appeal.
On the 11th of March 2003, she testified that she was about 10 years old when she was told by her father, that Ashade shared the land – page 124 of the Record of Appeal.
He submits that PW1 who said she was the head of the family stated in evidence that
“I do not have any house on Bisiriyu land”
That PW1 did not know the names of the purchasers of the land. PW2 also did not know, as gleaned from her evidence at page 128 of the Record of Appeal.
He submits that PW3 testified at page 132 of the Record of Appeal that
“I was present when the land was shared into three.
The sharing was done by my father”
He submits that there was no evidence as to who shared the land. That the learned trial Court’s distinction between sharing and division of PW3’s father and PW1’s grandfather respectively was hypothetical. That PW3’s claim that he was present when the land was shared is incredible and ridiculous by PW1’s assertion that he was 70 years old, and when he said Ashade is my paternal Grandfather. PW1 also said “I was not present at the sharing but was told by my father.
The Appellant postulates that if really PW1 who was 70 years old at the time giving evidence was only informed by her father at the age of 10 or 20 years old that her paternal grandfather had shared the land into three portions, it is hard to accept PW3’s claim that he was present when the sharing was done. That as PW1 never knew her paternal grandfather, the evidence of PW3 suggests that he knew and saw Ashade and was in fact with him when the land was purportedly shared. This would only imply that he was probably over 120 years old when he testified.
He argues that on the other hand, it is pertinent to view the evidence of the Appellant at the lower Court.
He submits that DW1 – on the 25th of February 2004 testified that Ashade land was not shared nor partitioned during his lifetime. But PW1 as head of Bisiriyu family had testified that she did not know the names of the wives of Ashade who was her grandfather.
That the necessary implication is that the Appellants know the history of the Ashade family better than the Respondents.
He submits that DW1 had testified that Ashade’s three children used the land jointly after his death.
He submits that DW4 Prince Ibrahim Owolabi Kosoko also testified that Ashade did not share his property.
That no member of Otetuwon family, who allegedly or purportedly witnessed the sharing, or division of the farmland into three testified in Court.
He submits that the trial Court resolved to believe the inaccurate, contradictory and untruthful testimony of which showed that there could never have been any sharing or division of the farmland.
That PW1 did not refer to the Otetuwon family regarding the sharing beyond the fact that the demarcation was done by Ashade, and that the Otetuwon family was present when the land was shared into three parts.
He submits that there is nothing to show that Bisiriyu held or enjoyed the possession of the disputed land, independent or separate from the larger Ashade family.
He submits that the trial Court was in error to have accepted the purported grant by Ashade as establishing the possessing rights of Bisiriyu to the land in dispute.
He submits that with regard to traditional history, the Supreme Court had established the rule, that it should first be determined whether the ancestor(s) did in fact tell the story and whether the story is true, citing IKPAN V. EDOHO (1978) 6 – 7 SC 221 AT 248 – 249.
That the test is whether
(a) Did the ancestors in fact tell him that story?
(b) Is the story true?
The Appellant queries whether PW1 actually got the story from her father, or that her unknown and unnamed or undisclosed father told her the story of the family at the age of 10.
That there is no evidence that PW3’s father carried out the actual sharing of the land or that the land was divided by Ashade. That PW3’s father was unknown and his relationship to Ashade was unstated and undefined.
ISSUE NO. 2
The Appellant submits that on the testimony that Bisiriyu family had records of meetings, no records were presented to the Court. The purchasers of the land from the Bisiriyu family were not called, neither were receipts issued to them tendered in Court. That there was nothing to show that PW1’s house on the land was demolished. There was no evidence to show this. That PW1 did not report the matter to the police or go to Court.
He submits that while the trial Court made heavy weather about the failure of the Defendants to tender receipts in the name of the Ashade family issued to tenants as well as their failure to tender notices of meetings issued to family members, the Court, on the other hand did not insist on the production of records of meetings of the Plaintiffs, neither did it bother about production of receipts from sales.
He submits that the trial Court’s observation that the Appellants trespassed on the land is erroneous. This is because there is nothing to show that possession has not been established by the Respondents.
He submits that the Writ of Summons and Statement of Claim raised no question or dispute about the heads of Ashade and Bisiriyu families.
That it is not sufficient for the Respondents to rely for proof to title of the land on the basis of traditional evidence to merely plead, vaguely, that the disputed land was shared by Ashade to Bisiriyu. The Respondents, he submits, had a duty to plead the particulars of the intervening owners through whom they presently claim.
He submits that in the present case the evidence is vague and oblique and indeed scanty pleading as to the question of sharing of the land by Ashade – citing ONUOHA V. NDUBUEZE (2001) FWLR (PT.71) 1838 AT 1840. He submits further that there is much conflict and uncertainty in the traditional evidence given in this case.
RESPONDENTS’ SOLE ISSUE
It is the argument of the Respondents that the sole issue for determination before the lower Court was whether or not ASHADE, the common ancestor, in fact shared his land into 3 amongst his 3 stripes representing his three wives.
The Respondents submits that an Appellate Court will not set aside a finding of a trial Court unless it can be shown that the finding is perverse or that it is not supported by evidence – ONU V. IDU (2006) 12 NWLR PT. 995 PAGE 657 AT 679.
That the fact is that before ASHADE died, he shared his said land inherited farmland amongst his children according to Yoruba system of Idi-Igi.
That the 1st part of the land which is not in dispute was given to BISIRIYU ABSOLUTELY representing his sisters (the same mothers) Idi-Igi.
That the three portions of the entire land were distinctly demarcated with traditional boundary trees by Ashade himself and each branch was put in possession of its portion. Bisiriyu and her siblings of same mother began to farm jointly on their own portion of land to the exclusion of their own brothers and sisters from the other two branches (Idi-Igi) without any let of hindrance.
He submits that the evidence of the Respondents witnesses were not discredited under cross-examination.
He submits that the Appellants had not denied the fact that there are three distinct families of Ashade. That each of the three distinct families has its own head, that each of the three distinct families hold its own meetings. That Respondents are members of Bisiriyu Ashade family, that the Respondents did exercise acts of membership and possession in respect of the land in dispute without consultation with the other 2 families and that the land in dispute shares boundary with the Otetuwon family of the PW3. He submits that the Appellants, not having appealed these findings on admission made by them, same stands against them.
That there was evidence that the Appellants dispossessed the Respondents of their land and are therefore entitled to damages and injunctive reliefs.
A cursory look at the issues for determination proffered by the respective parties, it seems to me that the Respondent adopts the 1st issue for determination of the Appellants and I deem it pertinent to consider this appeal on the Appellants’ issues for determination.
ISSUE NO 1: WHETHER, FROM THE EVIDENCE LED BEFORE THE TRIAL COURT, IT WAS RIGHT OF EVIDENTIALLY JUSTIFIABLE OF THE TRIAL COURT TO HAVE HELD THAT ASHADE SHARED OR PARTITIONED HIS LAND AMONG HIS THREE CHILDREN TO WIT; MUSARI, BISIRIYU, AND FABIYI.
With respect, these facts can be gleaned from the pleadings and oral evidence elicited from the witnesses for the Plaintiffs at the lower Court.
Paragraphs 5, 6, 7, 8, 9 and 9(a) of the amended Statement of Claim filed on the 15/4/2002 are apt. I hereby reproduce same verbatim.
Paragraph 5: “The Plaintiffs’ and other members of BISIRIYU ASHADE (together with the Defendants) are descendants of IDOWU BALOGUN who was one of the first settlers at Iba Town.”
Paragraph 6: “That IDOWU BALOGUN begat (a) Abosede (b) Adekanbi and (c) ASHADE who was the only child that survived IDOWU BALOGUN.”
Paragraph 7: “That ASHADE inherited all his father’s farm land at Mawaola which bounded on the West by Igbo-Elerin and on the East by Iba.”
Paragraph 8: “That before ASHADE died he shared his said inherited farmland amongst his children according to Yoruba system of Idi-Igi.”
Paragraph 9: “The Plaintiffs aver and shall contend at the trial that the first part of the land which is now the subject matter of this suit was given to Bisiriyu absolutely representing his other brothers and sisters (the same mothers) Idi-Igi, the second part absolutely to Musari and other children of his mother representing their Idi-Igi at the third portion was given absolutely to Fabiyi and the other children of her mother as their inheritance of their Idi-Igi.”
Paragraph 9a: “The Plaintiffs aver further that the three portions of land referred to above were distinctly demarcated with traditional boundary trees by Ashade himself and each branch was put in possession of its portion pursuant to which Bisiriyu and other issues of his mother began to jointly farm on their said land to the exclusion of their brothers and sisters from the other two branches (Idi-Igi) without any let or hindrance.
(Pages 81 of the Record of Appeal.)
Noteworthy is that in the Amended Statement of Defence filed on the 20th of May 2002 – Paragraph 1, thereof the Defendants at the lower Court (Appellants in this Appeal) averred thus:
Paragraph 1: “The Defendants deny paragraphs 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 of the Statement of Claim”
That in my humble view is a general traverse, which is no traverse in law.
Decidedly, the main function of pleadings is to ascertain with precision, the various matters that are actually in dispute and the parts on which they agree and thus to arrive at certain and clear issues on which both parties desire a Judicial decision. Each party must give his opponent a sufficient outline of his case – ESSO PETROLEUM CO. LTD V. SOUTH PORT CORPORATION (1956) A.C. 218 @ 241.
A denial of a material allegation of fact must therefore not be general or evasive, but specific. Every allegation of fact in the pleadings, if not denied specifically or by necessary implication shall be taken as established at the hearing SAMSON AJIBADE V. MAYOWA & ANOR (1978) 9 & 10 S.C. 1 @ 6; EKO EDUME V. UME NNACHI & ORS (1964) 1 ALL NLR 329.
A painstaking perusal at the pleadings of the Defendants (Appellants in the present appeal) depicts that the facts are not specific enough to deny the facts deposed to in the Plaintiffs’ (Respondents in present appeal) averments in the paragraphs above stated in this Judgment.
The facts in Paragraph 5, 6, 7, 8, 9 and 9(a) of the Amended Statement of Claim filed on the 15th of April 2002 are therefore deemed admitted by the Appellants.
In essence, the facts inherent in those paragraphs are that
(1) The Respondents and other members of BISIRIYU ASHADE (together with the Appellants) are descendants of IDOWU BALOGUN who was one of the first settlers of Iba Town.
(2) The said IDOWU BALOGUN begat three children including ASHADE, but Ashade it was that survived Balogun.
(3) That Ashade inherited all of his father’s farmland.
(4) That before Ashade died, he shared his inherited farmland at Mawaola, bounded on the West of Igbo-Elerin and on the East by Iba, amongst his children according to Yoruba system of Idi-Igi
(5) That the first part of the land, which is the land in dispute was shared to one of Ashade’s children and his siblings by one of his three wives ABSOLUTELY. This child was BISIRIYU.
(6) The three portions of land divided among the three Idi-Igi (i.e the three wives and their children) were demarcated distinctly by traditional boundary trees by Ashade himself, and in fact each branch was put in possession of its portion.
(7) The other two branches were MUSARI and FABIYI.
What is the oral evidence adduced to support this pleadings. This can be captured from the evidence of the Plaintiffs’ three witnesses at the trial. The 1st Plaintiff, Madam Tiri Bisiriyu testified that Ashade was dead and before his death, he divided his land into three portions which he demarcated with – “SARO” traditional boundary beacons. He gave a portion to each of BISIRIYU, FABIYI and MUSARI representing each line of the three issues, and that the three branches enjoyed their respective piece of land peaceably, and without interference from each other. That there is nothing like Ashade head. The Bisiriyu branch never attended meetings with the other branches in respect of Ashade family land. Their branch did not appoint anybody to, along with members of other branches, sell their portion of land as Ashade family land and issuing a common receipts.
It is pertinent to note that no receipts were tendered by the Appellants to show that any land was jointly sold and receipted.
PW1 testified unequivocally that they and the Appellants never agreed to jointly survey any land called Ashade family land. She tendered Survey Plan No. FF 4117/L/84 dated 7th August 1984 showing the Bisiriyu portion of land – the land in dispute. It is Exhibit P1. She stated that the portion of land shared boundary with the Otetuwon family and that Otetuwon family witnessed the sharing of the land by Ashade among his three branches.
PW1 testified that she was 70 years old under Cross-examination. She was twenty years old when her father Bisiriyu told her of the sharing of the land. Her father and Yisa Akogun’s mother were siblings of same parents. She was not physically present when the land in dispute was shared into three parts by Ashade but, all of them (siblings of the same mother) were told of the sharing by their father and shown the demarcations, who warned them not to go to the portions of land belonging to the other two branches.
She testified that her father Bisiriyu was one of those that farmed on the land with Ashade which passed to Ashade from Balogun, but that before Ashade’s death, he divided the land into three portions – she was head of Bisiriyu family after the death of one Afusat Bisiriyu.
They sold some portions of their land, and the structures put on the land by the persons to whom they sold were demolished by the Defendants.
PW2 – one ADELE SALIU, is a son to 2nd Plaintiff who is a member of the Bisiriyu Ashade family. He corroborated the evidence of PW1 in all materials particular. He testified that the land was divided into three by Ashade to BISIRIYU, MUSARI and FABIYI branches, and Musari and Fabiyi branches never disturbed them. That the Bisiriyu land has boundary with the Otetuwon family. He farms on the land and indeed has a shop on it. The Appellants sold their own portion of land in 1992, and trespassed on the Bisiriyu land, caused them to be arrested by the Police and demolished their own portions of land. The Appellants sold some portions of Bisiriyu land and gave them no proceedings. He confirmed that PW1 was appointed head of BISIRIYU FAMILY a long time go. He used to follow Bisiriyu, his grandfather and his father to the farm when he was young.
PW3 ALHAJI LIASU SANNI – member of Otetuwon family testified as to the sharing of the land in dispute by Ashade to his children, FABIYI then BISIRIYU and MUSARI, and the land was properly demarcated. He testified that the land devolved from Balogun to Ashade, also farmed thereon, planting palm trees, cassava etc. Ashade had no house on the land, but used to stay in his father house at Iba.
He knows the three children of Ashade personally, and the land shared to them. These children farmed on their respective portions of land and neither one in their lifetime trespassed on the others land. It was at the time of their children that such a thing as trespassing occurred.
He testified that Otetuwon’s family shares boundary with the land in dispute. That it was Otetuwon who granted the land to Idowu Balogun before it devolved to his children. The land originally belonged to the Otetuwon family. He was present when the land was shared into three and the sharing was done by his father.
It was Musari’s children who encroached on the land of Fabiyi and Bisiriyu.
At Page 11 of the Judgment of the lower Court (Page 154 of the Record of Appeal) the learned trial Judge observed thus
“Looking at the evidence led by the Plaintiffs, particularly the totality of the evidence of the first Plaintiff witness and the evidence of the third Plaintiff witness that he was present when the sharing of land was done by Ashade, it is obvious that the Plaintiffs neither relied on traditional history nor on traditional evidence but rather on facts of contemporary history.
The facts of traditional history and traditional evidence were thus inapplicable to the Plaintiffs’ case”
As earlier observed in this Judgment, the Appellants (as Defendants in the lower Court) did not specifically deny the fact of the sharing of the land by Ashade to his three branches of family in their pleadings. The facts are therefore deemed admitted.
The learned trial judge, having had the opportunity of hearing the witnesses and watching their demeanour, and having held that the story of the Respondents seem more credible than that of the Appellants, this Court cannot interfere with that finding.
According to the learned trial Judge, he observed at page 16 (page 159 of the Record of Appeal.
“The Defendants did not plead or lead any evidence on who became the head of Ashade family on the death of Ashade. They did not plead the successive heads of the family. They only pleaded that Liadi Busari, the first Defendant was the head of family and from the evidence of the first defence witness, it was only in 1999/2000 that the first Defendant became head of family. It is correct that the first, second and third defence witnesses said that one Chief Osilemo was head of family before the first Defendant but this fact was no pleaded. It is elementary that evidence on facts not pleaded go to no issue and should be discountenanced – See FIRST BANK OF NIG. PLC V. TSOKWA (2004) 5 NWLR (PT. 866) 271 and TOTAL (NIG) PLC. V. AJAYI (2004) 3 NWLR (PT. 860) 270. It is immaterial that the evidence of the unpleaded fact was elicited under cross examination. It is still of no value – See KAYODE V. ODUTOLA (2001) 11 NWLR (PT. 725) 659….”
I find unequivocally, that the learned trial Judge was right, and indeed evidentially justifiable, to have held that Ashade shared or partitioned his land among his three Children to wit: MUSARI, BISIRIYU, AND FABIYI, absolutely.
This issue is answered in the affirmative and same is resolved in favour of the Respondent and against the Appellants.
ISSUE NO 2
WHETHER THE TOTALITY OF THE EVIDENCE BEFORE THE COURT SUPPORTS THE JUDICIAL ORDERS OF DECLARATION OF TITLE TO, AND POSSESSION OF THE LAND IN DISPUTE AS WELL AS THE AWARD OF DAMAGES AND INJUNCTION BY THE TRIAL COURT.
In a claim for declaration of title to land, where a claimant succeeds, he is entitled to the claim for damages in trespass and injunction sought by him.
At page 160 of the Record of Appeal (page 17 of the Judgment of the lower Court) the learned trial Judge observed as follows inter alia:-
“The Plaintiffs also claimed in trespass and sought damages for trespass and perpetual injunction to restrain further trespass and selling of land. Trespass in relation to property law means interference with another’s property. As regards landed property, it is an unjustified intrusion with the possession of land. YUSUF V. AKINDIPE (2000) 18 NWLR (PT 669) 376.
It is defined as an unauthorized and direct breach of the boundaries of another’s land….”
He went on
“…Trespass is a violation of possessory right and it is trite that only a person in possession of land in dispute at the material time can maintain an action in trespass – PROVOST, LAGOS STATE COLLEGE OF EDUCATION VS. EDUN (2004) 6 NWLR (PT 870) 476 and OLUWOLE V. ABUBAKAR (2004) 10 NWLR (PT. 882) 549. In order to establish possession, it is not necessary for a Claimant to take active steps such as farming or cultivating the land as the slightest amount of possession would be sufficient – See UDE V. CHIMBO (1998) 12 NWLR (PT.577) 169 and ODUSANYA VS. OSINOWO (2000) 2 NWLR (Pt. 646) 574. And similarly, the slightest disturbance to the possession by a person who cannot show a better right to possession constitute trespass to land – see OMONIYI V. OLANIYAN (2000) 4 NWLR (PT 651) 38”
From Records, the Respondents led evidence that in 1992, the Appellants came into the land in dispute and demolished DW2’s shop thereon and also the erected structures of persons to whom they sold portions of the land. Thereafter the Appellants sold the uncompleted building of PW1. They also testified that the Appellants then commenced the sale and development of the land, which continued during the pendency of this case, despite the grant of an injunction by the Court.
Interestingly, none of the defence witnesses led evidence in rebuttal of these allegations neither did they controvert this piece of evidence.
It is elementary law and indeed settled that where evidence is neither challenged nor controverted, and where documentary evidence is rendered not inadmissible by the provisions of the Evidence Act, the Court should rely on it – LAWSON-JACK VS. SHELL PETROLEUM DEVELOPMENT CO. NIG LTD (2002) 13 NWLR (PT.783) 180; ALAGBE V. ABIMBOLA (1978) 2 SC. 39; BUHARI V. OBASANJO (2003) 17 NWLR (PT. 850) @ 587; ATTORNEY GENERAL ONDO STATE V. A-G. EKITI STATE 2001, 17 NWLR PT.743, 506.
It is trite that where evidence is uncontroverted, unchallenged and credible, the Court will be left with no option than to accept same – PHMB V. EDOSA (2001) 12 WRN 183.
Whenever an action for trespass to land is coupled with a claim for an injunction, the title of the parties is automatically put in issue.
Paragraphs 23(d) and 23(e) in the Amended Statement of Claim are in respect of reliefs for damages in trespass and perpetual injunction respectively – pages 79 of the Record of Appeal.
The Claimant in an action claiming such reliefs must specifically claim same in an action for trespass to land – AGBAISIS V. EBIKOREFEE (1997) 4 NWLR (PT. 502) 630. Where no relief for trespass and injunction is claimed, the Court will not award title to the land in dispute. OKORIE & ANOR V. UDUM & ORS 1960 SCNLR 362.
There is uncontroverted evidence before the Court that the Appellants trespassed on the Respondents land, and it is settled law that an established trespasser, no matter the duration of his occupation or use of the land remains a trespasser ab initio. Therefore, the length of his occupation or use of the land cannot translate to ownership of it. No trespasser in law is allowed to desire a possessory title from his trespass – OJOMO V. IBRAHIM (1999) 12 NWLR (PT.631) @ 415 @ 475.
The Evidence of the witnesses for the Plaintiffs was not discredited in Cross-examination.
Now the PW3, a member of Otetuwon family, and an eye-witness to the sharing of the land by Ashade to his children by his three wives absolutely, told Court that his family i.e. Otetuwon family share boundary with the land in dispute. That the actual sharing of the land was done by his own father and the three portions of land were properly demarcated and that FABIYI, BISIRIYU AND MUSARI farmed on their respective portions of land without let and hindrance, and without conflict in their life time.
There is nothing to show that this piece of evidence was discredited under Cross-examination.
The Appellants alluded to the facts that each of the three branches of the family appointed two attorneys and that it was these attorneys that leased the family land to tenants on behalf of the whole family and that they issued one receipt in the name of the Ashade family and caused documents of transfer to be executed in favour of tenants and that the documents of title were signed by three attorneys namely LAMIDI, SEIDU, LIADI BUSARI and LAMIDI YUSUF, one each from the attorneys appointed by each branch. When they further alluded to the facts that the family held meetings attended by representatives of all the branches, the Plaintiffs denied and countered each and every one of these assertions of the Defendants. The Defendants therefore had the burden of proving these facts by cogent, compelling and credible evidence, but unfortunately they failed to do so.
None of the four witnesses for the Appellants met Ashade alive. They did not state the origin of their information. I agree with the opinion of the learned trial Judge, that from the evidence of the witnesses, their interactions with Ashade farmland were of pretty recent origin.
From the facts of this case, it is apparent that the Respondents were displaced from possession of the property by the acts of the Appellants constituting trespass.
There is evidence being elicited from the Respondents, that in 1992, the Defendants went into the land in dispute and demolished the shop of the PW2, Shops and structures erected by the tenants thereon. That they also sold the uncompleted building of PW1. There is also evidence by the Respondents, that the Appellants thereafter started selling and developing the land, which action continued during the pendency of this case at the lower Court, despite a grant of injunction by the lower Court.
But none of the Appellants led evidence to deny these allegations. When the learned trial Judge at the Page 160 of the Record of Appeal observed thus
“This Court finds and holds that the Plaintiffs have led evidence to show their entitlement to the claims of declarations of entitlement to the land in dispute to grant of statutory right of occupancy in respect thereof”
He was right.
Issue No. 2 is consequently resolved in favour of the Respondent and against the Appellant.
The result is that the Appeal is lacking in merit and same is hereby dismissed in its entirety and the Judgment of H.A.O. Abiru of the High Court of Lagos State dated 22nd day of September 2004, is hereby affirmed.
N30,000.00 costs in favour of the Respondents.
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother RITA NOSAKHARE PEMU, JCA.
I agree with the reasoning and conclusion reached therein, I too join my learned brother in holding that the Appeal is lacking merit and same is hereby dismissed by me in its entirety and the Judgment of H.A.O. Abiru of the High Court of Lagos State dated 22nd day of September, 2004, is hereby affirmed.
N30,000.00 costs in favour of the Respondents.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in advance the comprehensive judgment prepared by my learned brother, Rita Nosakhare Pemu, J.C.A., with which I agree and adopt as my judgment with nothing useful to add.
Appearances
Taiwo Kupolati Esq.For Appellant
AND
Chief Foludare FasaeFor Respondent
