BISHOP CLEMENT AJAYI & ANOR v. CHIEF EBENEZER MAKANJUOLA & ORS
(2015)LCN/7895(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of June, 2015
CA/AK/45/2012
RATIO
LAND LAW: TRESPASS TO LAND; WHETHER A CLAIM FOR TRESPASS AND INJUNCTION AUTOMATICALLY PUTS TITLE IN ISSUE AND NEEDS NOT BE SPECIFICALLY PLEADED
Trespass to land is rooted in exclusive possession of the land in dispute but once a defendant claims to be the owner of the land in dispute title is put in issue and in order to succeed the plaintiff must show a better title than that of the defendant. It is the law that a claim for trespass and injunction automatically puts title in issue and needs not be specifically pleaded. See Adeyefa & 2 ORS v. Bamgboye (2014) Vol. 236 LRCN 32. per. JAMES SHEHU ABIRIYI, J.C.A.
PLEADINGS: EVIDENCE ON FACTS NOT PLEADED; WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS AND THE IMPLICATION OF EVIDENCE THAT IS AT VARIANCE WITH THE PLEADINGS
Evidence on facts not pleaded goes to no issue. Parties are strictly bound by their pleadings and they are not allowed to make a case that is at variance with their pleadings. To assess the strength of a party’s case, both the pleading and evidence must be examined. If the evidence is at variance with the pleadings such evidence will have no value. See Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241, Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127 and Eze v. Alasie (2000) 6 SC (Pt. 1) 214. per. JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. BISHOP CLEMENT AJAYI
2. ALADEGBAYE ALADAYIYE Appellant(s)
AND
1. CHIEF EBENEZER MAKANJUOLA
2. CHIEF OMOREGIE
(The Sao of Igoba)
3. CATHERINE VITALIS Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ondo State delivered on the 19th December, 2011 in the Akure Judicial Division holden at Akure. Appellant was the Plaintiff in that court while the Respondents were the Defendants.
The claim of the Appellant was for the following:
(a) The Plaintiff’s claim against the Defendants jointly and or severally is for the sum of N5,000,000 (Five Million Naira) special and general damages for trespass on the piece or parcel of land known as UDE situate, lying and being at Isinnigbo Junction on Layout Plan No. JOE/OD?85/420 on 11/12/85.
(b) Injunctions restraining the Defendants, Servants, Agents, Representative and or privies from further trespass on the land.
In a resume the case of the Appellant was as follows: The original owner of the land in dispute was his grandfather Falodun Aladeyiye. The Appellant was born on the land. He planted mango trees on the land. After the death of his father, he went to Ibadan to train as a carpenter. He was later employed in Ibadan where he worked for thirteen (13) years but was coming home occasionally to visit the land.
He sold four plots of land to one Vitalis for N3, 500. The four plots sold to Vitalis are not part of the land in dispute.
In 1985, he surveyed the entire land in dispute as shown by Exhibit A. He later went to the Ministry of Lands and Housing where he presented the layout of the land in dispute. He was told that his land “overlapped” that of Mr. Vitalis. He later wrote to Mr. Vitalis to warn him of trespass to his land.
When Mr. Vitalis later trespassed on the land, he wrote to him threatening to sue him.
The 1st and 2nd Respondents were always harvesting the ripe mangoes on the farm. They also set traps on the land.
In their defence, the 1st and 2nd Respondents stated that sometime in 2008 some people to whom they (1st and 2nd Respondents) gave the land came and reported that the Appellant had trespassed into their land.
According to the 1st and 2nd Respondents the land belongs to Sao Family. They belong to the Sao family which has been in control of the land for over four hundred (400) years. The Appellant is not the owner of the land. He once brought somebody to the land and the 1st and 2nd Respondents drove him away. It was their family that sold the land to the husband of the 3rd Respondent.
They did not destroy the Appellant’s blocks. They did not set traps for him on the land.
3rd Respondent denied that Appellant sold the land to her husband. Rather the husband bought it from Oba of Igoba and was issued a receipt Exhibit H. When her husband was alive nobody challenged him on the land.
After considering the evidence led by all the parties and addresses of learned counsel for the parties, the lower court in a considered judgment dismissed the claim of the Appellant.
Dissatisfied with the decision, the Appellant filed an original notice of appeal containing one ground of appeal. On 17th September, 2014, this court granted him leave to file additional grounds of appeal within fourteen days. On 25th September, 2014 instead of filing an amended notice of appeal, he filed what he titled “Grounds of Appeal”. The said grounds of appeal has four grounds of appeal from which he formulated the following issues for determination:
1. Whether by preponderance of evidence before the Honourable Court, the Appellant has proved that the title to the land indispute (sic) rest with him.
2. Whether the Learned Trial Judge properly evaluates (sic) the evidence adduced by both parties to enable him give proper judgment in the case.
3. Whether by the evidence adduced by the Appellant and the Respondents it is apparent and justifiable for the appellant to rely on the evidence of the Respondents to fortify his claim of ownership over the land indispute (sic).
The Respondents adopted the issues formulated by the Appellant with slight variations.
The issues as modified by the Respondents reproduced immediately hereunder read as follows:
1. Whether from the evidence before the lower court, the learned trial judge was right to have held that the Appellant did not prove that the title to the land in dispute rest with him.
2. Whether the Learned Trial judge properly evaluated the evidence adduced by both parties to enable him give proper judgment.
3. Whether from the evidence adduced by both parties, the appellant could rely on the evidence of the Respondents to prove his claim of ownership over the land in dispute.
On issue 1, it was submitted by learned counsel for the Appellant that when a claim for trespass is coupled with injunction as in this case, title of the parties to the land in dispute is automatically put in issue. We were referred to Olohunde & Anor v. Adeyoju (2000) 14 WRN 160 at 163. We were also referred to the case of Idundun v. Okumagba (1976) 9 & 10 SC 246 where it was established that there are five ways of proving title to land. We were also referred to Dike & 3 Ors v. Okeleodo & 2 Ors (1999) 7 SC (Pt. III) 35 at 41 and Okonyo & Ors v. Njokanma Ors. (1999) 12 SC (Pt. III) 150 at 167.
We were urged to hold that the Appellant had proved title by traditional evidence, by tendering documents and by acts of long possession from his grand father to himself. That the Appellant was always following his father to the land and his father died making him the only person to inherit the land in dispute. That for about 13 years when he was away he was always visiting the land whenever he came home and he was enjoying peaceful possession of the land until the Respondents started trespassing on the land. That the right to peaceful possession of the land was confirmed by the PW2-PW3. Apart from these, the Appellant tendered Exhibits A, B, C, D and E.
It was submitted that ownership is vested in the person who is in possession and the burden of rebuttal lies on the challenger in this case the Respondents. We were referred to Lagunro & Ors v. Toku & Ors (1992) 2 SCNJ (Pt. II) 201 at 202.
On issue 2, it was submitted that the lower court did not properly evaluate the evidence before arriving at its judgment. We were referred to Mogaji & Ors v. Odofin & Ors (1978) 4 SC 91 at 98.
Learned counsel for the Appellant proceeded to evaluate the evidence of DW1-DW3, DW5 and DW6 and submitted that the lower court was economical in its statement at page 85 of the record of appeal when it stated thus:
“Some of the Respondent witness particularly DW1, DW2, DW4, DW5, DW7 and DW8 claimed that the land belongs to Igoba Community.”
That the lower court did not evaluate the evidence of these witnesses before arriving at its conclusion. We were referred to Sha (Jnr) & Ors v. Da Rapkwan & 3 Ors (2000) 5 SC 178 at 196.
On issue 3, it was submitted that a Plaintiff must succeed on the strength of his own case but the defendant’s case may contain evidence on which the Plaintiff relies. We were referred to Akinola & Ors v. Oluwo & Ors (1999), Fasiku & 11 Ors v. Oluronke II & Ors (1999) 1 SC 16 at 27 and Olohunde v. Adeyoju (2000) WRN 160 at 164.
Exhibits 1(1) & 1(2) viewed seriously disclose that they were falsely issued, it was submitted and sent to the ministry to portray the Appellant as having agreed that the land in dispute does not belong to him and that his subsequent allegation on trespass on the land in dispute was false.
It was submitted that the evidence of the Appellant that he allowed his cousin Chief Agbogunleri Fulani to sell plots of land to the husband of the 3rd Respondent was confirmed by DW3.
In their response to issue 1, the Respondents submitted that the Appellant did not prove title to the land in dispute through any of the five (5) ways stated in Idundun v. Okumagba (Supra). It was submitted that the traditional evidence of the Appellant is contradictory and at variance with his pleading. Firstly that the Appellant pleaded that Aladegbaye Aladeyiye was his grandfather and his father Falodun Aladegbaye but in his evidence in chief he stated that his grand father was Falodun Aladeyiye while Aladegbaye Aladeyiye was his father. We were referred to pages 3 and 18 of the record of appeal.
It was submitted that where pleading is at variance with evidence, the case must fail. We were referred to Olowosago v. Adebayo (1988) NWLR (Pt. 88) 275 at 290.
It was submitted that none of the Exhibits tendered by the Appellant could convey title to the land in dispute on him. It was submitted that a survey plan per se does not convey title. We were referred to Nadi v. Oseni & 1 OR (2003) Vol. 48 WRN 19.
Exhibit B, the layout, it was submitted was cancelled by the Ministry of Lands, Housing and Environment and the Appellant could not rely on it.
Exhibits C and D, it was submitted were mere assertions which were not substantiated with cogent evidence. Exhibit E, it was submitted could be in respect of blocks used elsewhere since there was no evidence that the blocks were carried to the land either by the Appellant or his agents. Also the criminal case was instituted against the 1st and 2nd Respondents by the Appellant and they were discharged and acquitted.
On long possession, it was submitted that the admissions of the Appellant and his witnesses that they did not know any of the farmers on the land in dispute coupled with the fact that the Appellant could not produce any witness who is his tenant on the land he claimed to have been given before his father’s death in 1946 show clearly that the Appellant was not in constructive possession of the land in dispute. We were referred to Ejiofor v. Nwakabor (2011) Vol. 34 WRN 144. That 3rd Respondent’s husband to whom the Appellant claimed to have sold land to testified through the 3rd Respondent that her husband bought the land from Igoba Community.
It was submitted that the lower court was right when it held that the Appellant had not proved his entitlement to the land in dispute.
On issue 2, it was submitted that the lower court properly evaluated the evidence adduced by both parties and came to a proper judgment.
On issue 3, it was submitted that it is the duty of the Appellant to prove his case rather than searching for the weaknesses in the Respondent’s case. The onus in an action involving title to land, it was submitted, lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title claimed. In this regard the plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not avail him and the proper judgment will be for the defendant. We were referred to Ogbe v. Idowu & Ors (2004) ALL FWLR (Pt. 232) 1474 at 1490, Okelola v. Adeleke (2004) ALL FWLR 1980 at 1991 and Sections 136 and 137 of the Evidence Act LFRN 1990.
Trespass to land is rooted in exclusive possession of the land in dispute but once a defendant claims to be the owner of the land in dispute title is put in issue and in order to succeed the plaintiff must show a better title than that of the defendant. It is the law that a claim for trespass and injunction automatically puts title in issue and needs not be specifically pleaded. See Adeyefa & 2 ORS v. Bamgboye (2014) Vol. 236 LRCN 32.
Evidence on facts not pleaded goes to no issue. Parties are strictly bound by their pleadings and they are not allowed to make a case that is at variance with their pleadings. To assess the strength of a party’s case, both the pleading and evidence must be examined. If the evidence is at variance with the pleadings such evidence will have no value. See Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241, Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127 and Eze v. Alasie (2000) 6 SC (Pt. 1) 214.
In paragraph 1 of the statement of claim, the Appellant pleaded that he was the grand son of Aladegbaye Aladeyiye. This simply put is that his grand father’s name was Aladegbaye Aladeyiye. However, when the Appellant testified as PW1 he said it was his father that was Aladegbaye Aladeyiye. Hear him:
“I know late Aladegbaye Aladeyiye.
He was my father …….”
Further, down in the testimony as if to show that he was not mistaken in the earlier assertion that Aladegbaye Aladeyiye was his father, he said:
“I know one late Falodun Aladeyiye. He was my grand father.”
See page 18 of the record of appeal.
In paragraph B of the statement of claim the Appellant averred thus:
“The plaintiff never ceased going to the farm which he inherited from the grandfather as the Plaintiff’s father predeceased his grandfather and had no time been disturbed by anybody on the land.”
In spite of the above averment the Appellant while testifying in court said that the land was given to him by his father before he died. See page 18 of the record of appeal where he stated as follows:
“…… I am in court because the defendants trespassed on the land given to me by my father before he died.”
The evidence reproduced above which is at variance with the pleadings on the authorities cited above is valueless. On the above pleadings and evidence the Appellant does not know from whom he inherited the land. It particularly shows that the Appellant did not inherit the land in dispute. As the evidence has no value it cannot help the case of the Appellant one jot.
The Appellant claimed that in exercise of his rights over the land, he sold four plots of land to the 3rd Respondent’s husband. But under cross-examination, he said that he did not issue him a receipt. This takes away any semblance of truth in his claim to the sale. To further demolish the claim of the Appellant to the sale, the 3rd Respondent confirmed the Respondents’ case that the land was sold to the 3rd Respondent’s husband by the Igoba Community. Exhibit H tendered through the 3rd Respondent as DW3 confirmed that it was the Igoba Community that sold the land to the 3rd Respondent’s husband. Under cross-examination, the Appellant said he was from Ugele.
The Appellant has not shown any act of possession in respect of the land. The Appellant did not show that he dropped any blocks anywhere on the land himself. He did not show that anybody he sent dropped any blocks for him on the land.
The Appellant called PW2 who claimed to be Appellant’s brother. Without saying why only the Appellant inherited the land, he claimed that the Appellant inherited the land from his grandfather. This violently contradicts the claim of the Appellant himself that he was given the land by their father before he died. The evidence of this witness is therefore worthless.
PW3 called by the Appellant said he did not know any of the Respondents. He was therefore unhelpful to the Appellant’s case.
PW4 the last witness called by the Appellant claimed that the Appellant is a native of Igoba. This claim violently contradicts the evidence of PW1 the Appellant himself who said he is from Ugele.
None of the documents (Exhibits A-E) tendered by the Appellant is proof of title to the land by the Appellant or that he is in possession of the land.
It is not surprising that on the evidence led the lower court found the claim of the Appellant not proved.
Issue 1 is therefore resolved in favour of the Respondents.
On issue 2, the Appellant’s argument is that the lower court did not properly evaluate the evidence before it. He particularly referred, to the evidence of Defence witnesses and tried to show that they were not truthful witnesses.
In my view the Defence witnesses were truthful. For example DW1 said that the evidence of PW4 that the Appellant was from Igoba was false. He was correct because Appellant himself said he is from Ugele and not from Igoba. This is clear evidence that DW1 was a truthful witness. DW3’s evidence that the husband bought four plots of land from Igoba Community was supported by Exhibit H. This was in contrast with the evidence of PW1 the Appellant that he sold the land to her husband without a receipt to show. DW2, DW5 and DW4 testified to the fact that the said Igoba community granted them portions of the land for which they paid Isakole (tribute). This was confirmed by DW6, DW7 and DW8. DW7 and DW8 are 1st and the 2nd Respondents. They confirmed assigning the four plots to the 3rd Respondents husband because Sao family is part of Igoba Community.
Issue 2 is therefore resolved in favour of the Respondents.
There was no evidence of the Respondent that would fortify the evidence of the Appellant which had no value and was worthless.
Issue 3 is therefore resolved in favour of the Respondents.
All three issues having been resolved in favour of the Respondent, the appeal must fail.
The appeal is therefore dismissed.
Respondents are awarded N50,000 costs which shall be paid by the Appellant.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have read in draft the lead judgment of my learned brother, James Shehu Abiriyi, JCA and I am in agreement with the reasoning and conclusion arrived thereat.
The facts of this case are well stated in the lead judgment. I however wish to add a few words by way of my contribution. It is trite that a claim for trespass and injunction automatically puts title in issue where a defendant claims to be the owner of the land in dispute.
Where a person relies on traditional history as his root of title to land, the onus is on him to plead and prove each of the following:-
(a) The person who founded the land and exercised act of possession.
(b) How the land was founded, and
(c) The persons on whom the title to the land devolved from its founder to the plaintiff.
The pleading of the devolution as well as evidence in support must be reliable and credible or plausible otherwise the claim for the title will fail.
In the instant case, the Appellant pleaded that he was the grandson of one Aladegbaye Aladeyiyie in one breath, and in yet another breath claimed that Falodun Aladeyiye was his grandfather from whom he alleged to have inherited the land in dispute. The Plaintiff/Appellant in paragraph 1 of the statement of claim pleaded that Aladegbaye Aladeyiye was his grandfather. In his testimony as PW1 stated thus:
“I know late Aladegbaye Adelayiye he was my father —-”
In paragraph 8 of the statement of claim the Appellant averred thus:
“The Plaintiff never ceased going to the farm which he inherited from the grandfather as the plaintiff’s father predeceased his grandfather and had no time been disturbed by anybody on the land”.
Apart from these contradictory averments, the appellant failed to lead credible evidence to prove the root of title and the history of his ancestors.
Where a plaintiff relied on traditional history as his root of title to land, as in the instant case, he should lead evidence to show or prove root of title, the names and history of his ancestors without leaving any yawning gap.
A court has no jurisdiction to support any missing link in a genealogical tree from progenitors to a claimant. See Awodi v. Ajagbe (2015) 3 NWLR (Pt. 1447) 578, Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283.
For this reason and the more detailed ones set out in the lead judgment, I too dismiss the appeal. I abide by the consequential orders in the lead judgment including orders as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal be dismissed with costs as ordered in the leading judgment of my learned brother, J. S. Abiriyi, JCA.
Title had clearly been put in issue, even though not specifically.
Respondent had pleaded the acts of trespass and sought for damages and injunction; I do agree too that a proper evaluation of the plaintiff’s evidence puts it at a preponderating leverage to the Defendant/Appellant’s case which contradicted itself. Evaluation of that evidence clearly gives it a “dive-down”.
Appeal is dismissed.
Appearances
Chief J. I. Oguntoyinbo, Esq.For Appellant
AND
Alhaji Funso Bello, Esq.For Respondent
