MR. MOSES AGEYAYE v. JOHN OGBOGBOYIBO & ORS
(2014) LCN/7025(CA)
RATIO
LAND LAW: THE LAW ON TRESPASS TO LAND WHERE TWO LAY CLAIMS ON THE SAME LAND/PROPERTY
The law on trespass to land is anchored on exclusive possession of the land by the party claiming damages for trespass. Hence where a man rents out or leased his property to another person who is currently in possession of the property, the owner of the property cannot sue for trespass on the same property that he is not living on as an exclusive possessor thereof. Imah V. Okogbe (1993) 9 NWLR (pt. 316) 159 at 172 (SC); Ekretsu V. Oyoberere (1991) 9 NWLR (pt. 266) 438 at 456 (SC); Olagbenro V. Ajagunbiade III (1990) 3 NWLR (pt. 136) 37 at 55 (SC); Ekpan V. Uyo (1986) 3 NWLR (pt. 26) 63; Ojukwu V. Ojukwu (2000) 11 NWLR (pt. 677) 65 at 88 (CA). Therefore, where two parties lay claim to possession which is disputed, trespass can only be at the action of the party who can prove that title to that land is in him. Oyeneyin V. Akinkugbe (2010) 1 SCNJ 101 at 112; Elehunde V. Adeyoju (2000) 10 NWLR (pt. 676) 562; Magaji V. Cadbury Nig. Ltd. (1985) 7 SC 59.
Undeniably, the appellant is in possession of the parcel/portion of land in dispute which is part of the family land of the Ajomata family. His reason for being on that land however, according to him, was that the said land was sold and/or alienated to him vide Exhibit D, by Ikoyo Akatapo, who he said was the head of the Ajomata family….
It is trite that it is he who asserts a fact that must prove it, as no onus is cast on the other party to dispute a fact not established by credible evidence. Kate Enterprises Ltd. V. Daewoo Nig. Ltd. (1985) 2 NWLR (pt. 5) 116; Midford Edosomwan V. Kenneth Ogbeyfun (1996) 4 SCNJ 21 at 33; Abubakar & Anor. V. Joseph & Anor. (2008) 6 SCNJ 226.
It is trite that customary law is a question of facts to be proved by evidence. Hence, a party who alleges the existence of a particular custom must adduce sufficient evidence in support thereof, in order to establish its existence to the satisfaction of the court. And it is when by frequent litigation in the court, a point of customary law has been sufficiently ruled upon, that the courts will no longer require its proof and would be prepared to take judicial notice of it. Inyang V. Ita (1929) 9 NLR 84; Lipede V. Shonekan (1995) 1 NWLR (pt. 374) 668; Magomya V. Attor. Gen. Adamawa State (2007) 5 NWLR (pt. 1028) 567 at 582. Per Tom Shaibu Yakubu, J.C.A.
