AKINNAWO v. FABUSUYI
(2022)LCN/16149(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, May 27, 2022
CA/AK/211/2016
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
JOSEPH AKINBINU AKINNAWO APPELANT(S)
And
SOLOMON FABUSUYI (For Himself And On Behalf Of The Family Of Late Pa. Joel Fabusuyi) RESPONDENT(S)
RATIO
THE POSITION OF LAW WHEN A CLAIM FOR DAMAGES FOR TRESPASS IS COMBINED WTH A CLAIM FOR INJUNCTION
And the position of the law is that, when a claim for damages for trespass is combined with a claim for injunction as in this case invariably title to the land is in issue, so the issue of title has to be resolved before the claims for damage for trespass and injunction could be determined. See Onyero & Anor V. Nwadike (2011) LPELR–8147 (SC). PER BASHIR, J.C.A.
THE POSITION OF LAW ON “POSSESSION”
It is trite law that possession is always presumed or ascribed in favour of one who has a valid title to a disputed land, which in this case is the Respondent. See: Akinterinwa V. Oladunjoye (2000) 6 NWLR (659) 92 and Orlu V. Gogo-Abite (2010) LPELR–2769 SC. PER BASHIR, J.C.A.
WHETHER OR NOT PERPETUAL INJUNCTION IS BASED ON FINAL DETERMINATION OF THE RIGHTS OF PARTIES
A per Adekeye JSC in Anyawu & Ors V. Uzowuaka & Ors (2009) LPELR–515 (SC).
“Perpetual injunction is based on final determination of the right of parties and it is intended to prevent permanent infringement of those right and to obviate the necessity of bringing action after action in respect of such infringement: ………
Once there is a finding for trespass an injunction must be granted so as to protect the possession in a party. Adegbite V. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578, Babatola V. Aladejana (2001) 12 NWLR (Pt. 728) 597.” PER BASHIR, J.C.A.
YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Hon. Justice O. A. Adegbehingbe of the High Court of Ondo State sitting at Ondo delivered on the 9th day of August, 2016 in respect of a land matter wherein the Learned Trial Judge granted the reliefs claimed by the Respondent who was the Claimant at the Court of Trial by his Writ of Summons which has the following endorsements:
The Claimant claims against the defendant as follows:
1. N2,000,000 (Two Million Naira) general damages for trespass.
2. perpetual injunction restraining the defendant, his agents, servants, privies or anyone whosoever deriving authority through him from further trespassing on the Claimants land.
The boundaries of the land are:
(a) Lodasa Akiyode/Gabriel Peleyeju’s land
(b) Sawes rubber plantation
(c) Sarere’s land/Onigbo Lagbai road
(d) Rock
At the close of pleadings, the case proceeded to trial where the Respondent called two witnesses, self inclusive, tendered 13 Exhibits including documents evidencing sale of land on various dates and some judgments of the customary Court, High Court and the Court of appeal.
The Appellant on the other hand testified for himself but did not call any other witness.
After analyzing the evidence adduced before the Court along with the pleadings the Learned Trial Judge found the Appellant liable for trespass and entered judgment against him in the following terms:
(A) The Defendant shall pay the sum of N500,000 (Five Hundred Thousand Naira) as general damages for trespass on the land in dispute.
(B) An order of perpetual injunction is hereby made, restraining the defendant his agents, servants or anyone whosoever deriving authority through him from further trespassing on the claimant’s land. The boundaries of the land which is in Ogbe/Onigbo/Epe Area via Ondo are as follows:
(a) Lodasa Akiyode/Gabriel Peleyeju’s land
(b) Sawes rubber plantation
(c) Sasere’s land Onigbo
(d) Rock”
Being dissatisfied, the Appellant filed his Notice of Appeal at the registry of the lower Court on 15th September, 2016 with 13 Grounds of Appeal.
The record of appeal was transmitted on 7th October, 2016 after which the Appellant filed his Appellant’s brief of argument on the 9th day of May 2018 eventually deemed on 7th March 2019. Wherein the Learned Counsel formulated four issues for determination thus:
(1) Whether the trial Judge was right when his Lordship suo motu redrafted and recouched the Respondent’s relief and thereafter went on to grant them as redrafted and recouched. From ground 2.
(2) Whether the respondent’s injunctive relief as couched is grantable so as to justify the lower Court award of perpetual injunction in favour of the respondent. Ground 3 of the Ground of Appeal.
(3) Whether this is not a case where the respondent has to establish an ascertainable identity and boundaries of the land in dispute to justify the lower Court’s decision. Grounds 4, 5 and 6.
(4) Whether the respondent who claim damages for trespass and perpetual injunction over the land in dispute against the Appellant has established his entitlement to the land in dispute by credible evidence so as to be entitled to the awards made in his favour by the lower Court. Grounds 1, 7, 8, 9, 10, 11, 12 and 13.
The Respondent on the other hand filed the Respondent’s brief of argument on 24th September, 2019 deemed on 7/10/2020. Two issues were formulated for determination.
(1) Whether the identity of the land was an issue needed to be proved as to entitle the respondent to judgment.
(2) Whether from the totality of the evidence before the lower Court, his lordship was not right in coming to the findings and conclusion arrived at in the judgment.
I have carefully considered all the issues formulated by both sides in this appeal. I am of the view that all the issues can be considered and effectively dealt with under Appellant’s issue four (4) which issue is hereby adopted for the purpose of determining this appeal.
The issue read thus:
“Whether the Respondent who claims damages for trespass and perpetual injunction over the land in dispute against the Appellant has established his entitlement to the land in dispute by credible evidence so as to be entitled to the awards made in his favour by the lower Court.”
APPELLANT’S SUBMISSIONS
The Learned Appellant’s Counsel submits that in a claim for damages for trespass and injunction over land title is necessarily involved the Court must first resolve whether the plaintiff has established his entitlement to the land before he can make the award of damages for trespass and injunction. And to succeed in a claim for title to land the Court must first be satisfied as to:
(i) Precise nature of the title claimed that is to say whether it is title by virtue of original ownership, customary grant conveyance, sale under customary law, long possession, acts of ownership or otherwise.
(ii) Evidence establishing the nature of title.
Cited Emegwara V. Nwaimo & Ors 14 WACA 347.
Appellant’s Counsel submits that by the Respondent asserting that he bought the land in dispute from the family of the Appellant he has admitted the original title of the Appellant to the land in dispute. The onus is therefore on the respondent to prove that the Appellant’s family have divested itself of the title to the land contained in Exhibits P1 and P2.
The Learned Counsel submits further that the transaction between his family and the Respondent were all done under customary law which does not recognize written agreement it must be proved by oral evidence. Submits further that although the Respondent did indeed lead some oral evidence in proof of the 1969 sale under cross-examination, telling how he was present when his father paid for the land in the house of Johnson Olorunfemi at Igbomoba Ondo who himself signed on the purchase receipt Exhibit P1. But that this piece of evidence was not pleaded it therefore goes to no issue. Salaudeen V. Mamman (2000) FWLR (Pt. 17)1.
Submits that the transaction in Exhibits P1 and P2 cannot give rise to any legal liability against the Appellant or his family. Even though Exhibit P1 was admitted in evidence without any objection.
Since the Appellant is not among signatories to Exhibit P2 the agreement must be cancelled for being not binding. See: Olowofoyeku V. A. G. Oyo State & Ors (1996) 125 SCNJ 347.
Learned Counsel further contends that the Respondent’s claim to the land contained in Exhibits P3, P4, P5 and P11 must fail as the Appellant in his pleadings and evidence denied the title of Akintade’s family to the land in dispute, he also denied the title of Yangede of Epe-in-council to the land in Exhibit P11. So whereas the Respondent did not plead or lead evidence to prove the root of title of those who sold to him. See Ogunleye V. Oni (1990) 2 NWLR (Pt 745) 782 and Uche V. Eke (1998) 7 SCNJ 1 at 14.
Finally, counsel argued that the fact that the Court dismissed plaintiff’s claim in Exhibits P7 and P8 will not relieve the Respondent of the burden of proof on him to establish his title over the larger land. With respect to the other sundry issues, the Appellant’s Counsel submits that throughout the gamut of evidence led by the Respondent, no mention was made of the situs or location of the land in dispute and in the body of the first relief sought by the Respondent in the lower Court it reads “N2,000,000 (Two Million Naira) general damages for trespass” simpliciter.
But the trial Court went on to make the following award:
(a) The Defendant shall pay the sum of N500,000.00 (Five Hundred Thousand Naira) as general damages for trespass on the land in dispute.”
With respect to the 2nd relief the Appellant contends that the Respondent did not use the term:
“Which is in Ogbe/Onigbo/Epe Area – via Ondo”
Submits that the Court used the underlined words suo motu thereby redrafting the Respondent’s claim without any application to that effect which the Court has no power to do. Counsel further submits that the Respondent having failed to draft his prayer concisely and precisely his case was good for dismissal which the lower Court failed to do.
Counsel submits that the claim for perpetual injunction as granted suggests a direct order against the Appellant, agents, servants and anyone whosoever deriving title through him, who are not parties before the trial Court. They cannot be bound by the order of perpetual injunction. See Otogbolu V. Okeluwa & Ors (1981) 6-7 SC 99.
Counsel also referred to Nwadialo Fidelis – civil procedure rules in Nigeria 2nd edition.
On the Respondent’s prayer for damage for trespass and perpetual injunction with the Appellant asserting also to be in possession of the land in dispute counsel submits title is automatically put in issue which must be resolved one way or the other. Amakor V. Obiefuna (1974) 3 SC 69.
Where title is in issue an ascertainable identity and boundaries of the land must be established. See Adesanya V. Aderonmu (2000) FWLR (Pt 15) 2492.
The Appellant contended that the Respondent in his pleadings and evidence in chief gave the description of the land in dispute thus:
“The boundaries of the land are:
(a) Lodasa Akiyode/Gabriel Peleyeju’s land
(b) Sawes rubber plantation
(c) Sasere’s land Onigbo
(d) Rock”
The Respondent failed to state or give the location of a situs of the land in dispute. This he submits is fatal to the Respondent’s claim. And that the Respondent was unable to prove the exact land his case relates in term of its boundaries by clear-cut evidence from witnesses whether in chief or under cross-examination.
Counsel contended that from the averments in paragraphs 2-24 of the statement of defence and the evidence adduced thereon at paragraphs 4-24 of his additional statement on oath joined issues with the Respondent on identity of the land on the boundaries. That it is the duty of the Respondent to establish an ascertainable identity of the land which he failed to do. See Owodunni V. Awote (No 2) (1987) 2 NWLR (Pt. 57) 366.
The Appellant being defendant has no such responsibility.
On the whole, the Learned Appellant Counsel urged this Court to allow the appeal.
RESPONDENT’S SUBMISSIONS
The Respondent’s Counsel submits that generally, the Plaintiffs have the duty to plead and prove the identity of the existing boundaries of the land claimed. See Iordye V. Ihyambe (2000) 12 SC (Pt 110) 126 at 130 that it is sufficient if the Plaintiff can give an accurate oral description of the boundaries of the land in a manner that will guide a surveyor in producing a survey plan of the said land. Ezukwu V. Ukachukwu (2004) 46 WRN 11 at 20.
Counsel submits further that in the instant case, the Respondent pleaded and gave oral description of the boundaries of the land at pages 7 and 13 of the records.
Counsel contends that from the pleadings and evidence of the parties both parties agree that the land is known to them.
Submits that where the land in dispute is known to both parties issue of proof of identity no longer arise. See Odofin V. Oni (2001) 3 NWLR (Pt 701) 488 at 502.
That there was a litigation on the land in dispute where he testified for Timothy Olasupo as his vendor. That case is still pending at the Supreme Court on further appeal. See page 12 and page 87 of the records so the evidence of previous litigation involving the parties over the disputed land is a clear proof that the land is well known to the Appellant as declaration of title and injunctive order had been made the boundaries are not disputed.
Secondly by the admission of trespass on the land by the Appellant’s identity of the land is no longer in issue, moreover the Appellant did not make identity of the land an issue during the trial.
Submit that use of a name to describe the land in dispute is not necessarily a means of identifying the land. It is the boundaries marking that is the yardstick. In Aromire & Ors V. Awoyemi (1972) 1 ALL NLR (Pt 101) at 103. It was held that no reliance can be placed on the difference in name ascribed to the same portion of land.
The difference in name will be immaterial if identity of the land is otherwise not in dispute. The implication of this is that the name by which the land is called or the location will not be material in determining the case of the parties once the land is known to them.
Since the identity of the land was not an issue at the trial Court it cannot be raised at this stage, it has become a fresh issue which can only be raised on appeal with leave of Court.
The main contention of the Respondent’s Counsel is that a party can rely on previous judgment in which declaration of title had been made to prove exclusive possession in a subsequent lawsuit. And that any form of possession is sufficient to maintain action for trespass against a wrong doer. Ugosi V. Eze Onokogu (2005) All FWLR (Pt. 271) 66 and Stirling Civil Engineering Ltd V. Ambassordor Yahaya (2005) All FWLR (Pt. 263).
Submits that the Respondent relied on judgments in his favour tendered as Exhibits P6, P7 and P8 in proof of his possession of the land alleged to have been trespassed upon by the Appellant. That the Appellant himself admitted to have entered into the parcel of land. And bulldozed same.
The Respondent’s Counsel submits that the trial Judge did a proper appraisal of the pleadings, evidence and issues in this matter in arriving at his decision which can in no way be described as being perverse having conformed with substantial justice.
By way of further submission, the Respondent’s Counsel argued that it is a wrong notion to submit that the Learned Trial judge was wrong in placing in his judgment the name or location of the land in dispute or that the order or relief for injunction is not grantable as couched. Because the identity of the land in dispute is not in issue and the fact that from the record of the Court, Exhibits tendered the land was adequately identified, the trial Judge was therefore right in coming to that decision. Supported by evidence placed before the Court having analysed the purport of the Exhibits at page 48 of the judgment which is at page 265-266 of this records of appeal.
A Judge can make use of any document in the record considered relevant in determining issues before him. See Barewa Pharmaceutical Ltd V. FRN (2019) 294 LRCN 31.
Counsel went on to submit further that Trial Judge was right in granting injunction as the area of the land in dispute is known by the parties as there was a proper description of the land by giving its boundaries. See Lawal V. Adeleke (2004) 48 WRN 35 and Adelusola V. Akinde (2004) 52 WRN 27 at 47.
What the Appellant is trying to do is an attempt to re-open the issue of title which had been determined by the judgments in Exhibits P7 and P8 as found by the Learned Trial Judge. Counsel urged us to dismiss the appeal.
RESOLUTION
Let me quickly make the point that at the Court of trial the main claim was for damages for trespass and injunction. And the position of the law is that, when a claim for damages for trespass is combined with a claim for injunction as in this case invariably title to the land is in issue, so the issue of title has to be resolved before the claims for damage for trespass and injunction could be determined. See Onyero & Anor V. Nwadike (2011) LPELR–8147 (SC).
The case put forward by the Respondent in his pleadings and evidence is that his father late Pa. Joel Fabusuyi acquired two large parcels of land from the Appellant family one in 1969 and the other in 1971 both transaction supported by sales agreement Exhibits P1 and P2 and that the Appellant was a signatory to the 1969. Agreement Exhibit P1 that his father also acquired other pieces of land from Epe Community and the Akintade family. Possession was handed over to his father who embarked on farming activities on the land. The Respondent alleged and led evidence as PW1 to support the allegation that the Appellant afterwards sold that particular portions and pieces of land to one Olasupo Timothy which resulted to a protracted litigation.
This aspect of the evidence is contained at paragraphs 22, 23, 24 and 25 of the statement on oath of the Respondent who testified as PW1 before the lower Court his evidence goes thus:
“That at the customary Court the said Olasupo Timothy sued Pa. Joel Fabusuyi for declaration of title to the land among other reliefs in suit No ODCC/111/145/2005 where the defendant (now Appellant) was the sole witness for the plaintiff, Olasupo Timothy. That the customary Court gave judgment in favour of Olasupo Timothy on 24 April, 2008 (see Exhibit P6).
That Pa. Joel Fabusuyi appealed to the High Court in Suit No HOD/5A/2008 and by a judgment dated 4th March, 2009 (Exhibit P7). The High Court reversed the judgment of the customary Court and affirmed that Pa. Joel Fabusuyi was the rightful owner of the entire land.
That the said Olasupo Timothy appealed against the judgment of the High Court to the Court of Appeal in Appeal No CA/B/95/2009 which on 30th May 2012 upheld the judgment of the High Court see Exhibit P8”
That matter is on further appeal at the Supreme Court.
That inspite of all this “that on 17/11/2014 the defendant forcefully entered the land adjudged the property of Pa. Joel Fabusuyi bulldozing and in the process destroyed the cocoa and palm tree farms of my family”
The Respondent tendered the judgments of all the three different Courts as exhibits P6, P7 and P8 respectively.
The various sales agreements by which the Respondent’s father came about the land ranging from those purchased from the Appellant’s family in 1969-1971 and those from the other families and the Epe community along with the 3 copies of the judgments in issue were all tendered and admitted in evidence without any objection.
This pieces of evidence put together is cogent consistent and credible, it goes to prove and confirm that the Respondent acquired his title to the land in dispute by way of purchase whose documents were duly produced and admitted in evidence. This is certainly one of the 5 ways of proving title to land enunciated in the popular case of Idundun V. Okumagba (1976) 10 SC 337 which was followed in Ayoola V. Odofin (1984) 11 SC 120.
The Appellant’s Counsel had tried to condemn and discredit the Respondent’s documents of title Exhibits P1, P2, P3, P4 and P5 by saying that these documents cannot confer title on the Respondent but from the effect of Exhibits P7 and P8 which are all judgments of Court in previous proceedings, it is this particular documents that were used to determine title between the Respondent and one Timothy Olasupo who allegedly got his title over the same land from the Appellant. This Court is not sitting on appeal over our own decision as in Exhibit P8 which was made in favour of the Respondent here against the interest represented by the Appellant. Who in fact was the sole witness for the said Olasupo Timothy in Exhibit P6 which, evidence in this case has shown is now on further appeal to the Supreme Court in appeal No SC/344/2012 Between Olasupo Timothy V. Joel Fabusuyi.
Having been made aware of the fact the title has since been determined in this matter in the previous decisions which in fact is now on appeal at the Supreme Court founded on the same set of facts as this one between a person who is privy in interest/title with the Appellant in this case. Suffice only for me to say that I am satisfied that the Respondent has set out by way of pleadings and evidence a good ground to suggest that he has established his title over the land in dispute. An issue that has been adjudged by a competent Court of law against the Appellant’s successor in title/interest.
The contention of the Appellant was that the Respondent did not give evidence of the situs and boundaries of the land in dispute is misleading and not tenable because the Appellant did not make identity of the land in dispute an issue in his statement of defence. Rather, He was very emphatic that he is fully aware of the land in dispute, this is gathered from paragraph 11 of his statement of defence, where he averred thus:
“The Defendant avers that it is true that he sold land to Olasupo Timothy which is the subject of an appeal before the Supreme Court in Suit No SC/344/2012. But hasten to state that the land sold to Olasupo Timothy was 1000 feet in breadth and 3000 feet in length whereas the land allegedly acquired by the claimants father from the defendant’s family in 1971 is 2000 ft in breadth and 1300 in length”.
What if anything, the Appellant is contesting is that the size of the land he sold to Mr. Olasupo is more than the land acquired by the Respondent’s father from his family in 1971. But he seems to have left out the area the Respondent’s father purchased in 1969 which he was infact one of the signatories to the sale agreement Exhibit P1. In any case, there is sufficient evidence from the Respondent (PW1) confirming that the description of the land which is the same as the one in the various Exhibits and the lower Court was entitled to use that description for the land in dispute. But more importantly, there was no duty on the Respondent to prove the identity of the land as the defendant by his statement of claim did not put the identity in issue. See Kyari V. Alkali (2001) LPELR 1728 (SC).
I am therefore inclined to agree with the conclusion of the Learned Trial Judge that in the determination of the title in this matter identity of the land is not an issue requiring proof. I so hold.
It is trite law that possession is always presumed or ascribed in favour of one who has a valid title to a disputed land, which in this case is the Respondent. See: Akinterinwa V. Oladunjoye (2000) 6 NWLR (659) 92 and Orlu V. Gogo-Abite (2010) LPELR–2769 SC.
The Respondent is therefore legally entitled and justified to bring up an action for trespass and injunction over the land in dispute against the Appellant for his acts of bulldozing the land an act the trial Court has already found as trespassory and awarded damages to the tune of N500,000.00 and also issued an injunction restraining further acts of trespass. These orders are hereby affirmed and endorsed.
With due respect to the Learned Counsel for the Appellant, all his arguments contained under issues 1 and 2 on the propriety or otherwise of the orders made viz-a-viz the reliefs sought by the Respondent is purely misleading. Because there are facts in the Respondent pleadings and the oral evidence adduced through PW1 and PW2 and within the contents of Exhibit P6, P7 and P8 containing sufficient description of the boundaries with particulars mentioning Ogbe, Onigbo, Epe Area via Ondo therefore making reference to such particulars derived from evidence duly received in the course of the trial can by no means amount to recouching the reliefs sought by the Respondent before the trial Court. In the same vein the use of the term “LAND IN DISPUTE” by the Learned Trial Judge in identifying the land to which the injunctive orders he granted relates, cannot vitiate those orders as no one is misled by that expression which in any case the Appellant himself had freely used in his statement of defence at paragraphs 8, 14, 17 and 20 in identifying the disputed land against which the contest was based. No miscarriage of justice has been occasioned therefore.
A per Adekeye JSC in Anyawu & Ors V. Uzowuaka & Ors (2009) LPELR–515 (SC).
“Perpetual injunction is based on final determination of the right of parties and it is intended to prevent permanent infringement of those right and to obviate the necessity of bringing action after action in respect of such infringement: ………
Once there is a finding for trespass an injunction must be granted so as to protect the possession in a party. Adegbite V. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578, Babatola V. Aladejana (2001) 12 NWLR (Pt. 728) 597.”
That explains why the order of perpetual injunction is usually extended to persons who derive interest directly from the party against whom the order was first made.
For all that I said above the issue for determination in this appeal is hereby resolved against the Appellant. The appeal lacks merit, it is hereby dismissed.
The judgment of the Ondo State High Court in Suit No HOD/149/2014 delivered on the 9th day of August 2016 by Hon. Justice A. O. Adegbehingbe is hereby affirmed.
Cost of N100,000.00 is awarded against the Appellant in favour of the Respondent.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft, the leading judgment prepared by my learned brother, Yusuf Alhaji Bashir, JCA; in this appeal.
I do not have anything to add regarding the consideration and resolution of the issues raised in the appeal by my learned brother in the said judgment. I agree wholly with the reasoning of his lordship and conclusions reached in the judgment including the order as to costs.
Flowing from the above is that, I too, find no merit in the appeal and consequently dismiss the same. I affirm the judgment of the lower Court delivered on 9/8/2016 in suit No. HOD/149/2014.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Yusuf Alhaji Bashir, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein.
The first complaint of the Appellant in this appeal is that in making the final orders, the lower Court included a description of the land in dispute that was not part of the description of the land as contained in the pleadings of the Respondent. Counsel stated that the boundaries of the land in dispute as pleaded by the Respondent were (a) Lodasa Akiyode/Gabriel Peleyeju’s land, (b) Sawe’s Rubber Plantation, (c) Sasere’s land/Onigbo Lagbai Road, and (d) A rock. Counsel stated that in granting the injunction sought by the Respondent the lower Court ordered as follows:
“An order of perpetual injunction is hereby made, restraining the defendant, his agents, servants or anyone whosoever deriving authority through him from further trespassing on the claimant’s land. The boundaries of the land, which is in the Ogbe/Onigbo/Epe area, via Ondo are as follows: (a) Lodasa Akiyode/Gabriel Peleyeju’s land, (b) Sawe’s Rubber Plantation, (c) Sasere’s land/Onigbo Lagbai Road, and (d) A rock.”
Counsel stated that by adding the words “which is in the Ogbe/Onigbo/Epe area, via Ondo” to the description of the land, the lower Court suo motu redrafted and re-couched the reliefs of the Respondent. Counsel conceded that the oral and documentary evidence led before the lower Court by the Respondent did show that the land being claimed was in the Ogbe/Onigbo/Epe area, via Ondo, but contended that the lower Court was not right in including the words in its description of the land.
The law is settled that it is only if the issue, matter or fact did not exist in the litigation that a Court can be accused of raising it suo motu — Enekwe Vs International Merchant Bank of Nigeria Ltd (2006) 19 NWLR (Pt 1013) 147, Mohammed vs AbdulAziz (2008) LPELR-4496(CA), Akeredolu vs Abraham (2018) LPELR-44067(SC), Great Nigeria Insurance Plc vs Zeal Trust Ltd (2021) LPELR-53107 (CA). In Ikenta Best (Nigeria) Ltd Vs Attorney General Rivers State (2008) 6 NWLR (Pt 1084) 642, Tobi, JSC, made a point in these words:
“A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”
Having conceded that there was evidence led before the lower Court showing that the land in dispute was indeed at the Ogbe/Onigbo/Epe area, via Ondo, the allegation that the lower Court suo motu redrafted and re-couched the reliefs of the Respondent is baseless. The words came about from the inference the lower Court drew from the facts as proved. It is trite law that a trial Court is entitled to draw inferences from facts and evidence put before it — Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Adebayo Vs Peoples Democratic Party (2013) 17 NWLR (Pt 1382) 1, MTN Vs Corporate Communication Investment Ltd (2019) LPELR 47042(SC). Where the inferences drawn by a trial Court are not far-fetched, are not unreasonable and are connected to the evidence led by the parties, an appellate Court has no business interfering therewith — Elike Vs Nwakwoala (1984) 1 All NLR 505, Nnadozie Vs Mbagwu (2008) 3 NWLR (Pt 1074) 363 at 387, Eromosele vs Federal Republic of Nigeria (2018) LPELR 43851 (SC).
Moreover, it is not the case of the Appellant that, by adding those words to the description of the land, the lower Court referred to another land other than that claimed by the Respondent. The principal locators of the land in dispute are the boundaries of the land as contained in the pleadings of the Respondents and these were the same locators that the lower Court used in describing the portion of land over which it made the order of perpetual injunction. Thus, the addition of the words “which is in the Ogbe/Onigbo/Epe area, via Ondo” to the description of the land over which the injunction was granted did not add to or change the claim of the Respondent and was thus of no moment. The complaint of the Counsel to the Appellant was thus a mere “storm in a tea cup”.
Counsel to the Appellant also complained about the non-proving of the identity of the land in dispute by the Respondent. Now, it is an age-long principle that any person claiming an interest in land must prove the exact location of the land and the precise area to which his claim relates. This is the foremost and a fundamental duty on a claimant in a land dispute —Epi Vs Aigbedion (1972) 10 SC 53, Dabup Vs Kolo (1993) 9 NWLR (Pt 317) 254, Ilona vs Idakwo (2003) 11 NWLR (Pt 830) 53, Okochi vs Animkwoi (2003) 18 NWLR (Pt 851) 1, Anagbado vs Faruk (2019) 1 NWLR (Pt 1653) 292. The claimant is obligated to, in his pleadings and evidence, show an identifiable area of land to which his claim relates — Iyaji Vs Eyigebe (1987) 3 NWLR (Pt 61) 523 at 529, Ofume vs Ngbeke (1994) 4 NWLR (Pt 341) 746 and Ayuya Vs Yonrin (2011) 10 N WLR (Pt 1254) 135. Such proof of identity of land is a condition precedent sine qua non to the success of the claimant’s claim — Alimi Vs Obawole (1998) 6 NWLR (Pt 555) 591, Dada vs Dosunmu (2006) 18 NWLR (Pt 1010) 134, Dauda vs Iba (2007) 2 NWLR (Pt 1018) 321, Adu vs Gbadamosi (2009) 6 NWLR (Pt 1136) 110, Fayemi vs Awe (2009) 15 NWLR (Pt 1164) 315.
This duty to establish the identity of the land in dispute with certainty is referred to as the foremost and fundamental duty of a person claiming an interest in land because where a claimant fails to plead and establish the precise area of the land to which his claim relates, whatever evidence, whether oral or documentary, he produces at the trial and however cogent and credible the evidence might appear, it cannot, in law, ground a claim of an interest in land in his favor — lordye Vs Ihyambe (2000) 15 NWLR (Pt 692) 675, lbhafidon vs Igbinosun (2001) 8 NWLR (Pt 716) 653, Jinadu vs Esurombi-Aro (2005) 14 NWLR (Pt 944) 142, Ansa vs Ishie (2005) 15 NWLR (Pt 948) 210, Nwokidu vs Okanu (2010) 3 NWLR (Pt 1181) 362.
This duty on a claimant to prove the identity of land in dispute is, however, not an absolute duty. It is settled law that the duty on a claimant to prove the identity of the land in dispute, arises only where the identity of the land is in issue between the parties; where it is not in issue, the claimant has no duty to prove it — Fatuade Vs Onwoamanam (1990) 2 N WLR (Pt 132) 322, Maigari Vs Mailafiya (2011) 1 NWLR (Pt 1228) 379, Bamikole vs Oladele (2011) 1 NWLR (Pt 1229) 483, Dakolo Vs Rewane-Dakolo (2011) 16 NWLR (Pt 1272) 22. Where the description of land given by a claimant in his pleadings is not contested by a defendant or where it is admitted by a defendant, there is no onus on a claimant to prove the identity of the land — Aboyeji Vs Momoh (1994) 4 NWLR (Pt 341) 646, Ezukwu Vs Ukachukwu (2004) 17 NWLR (Pt 902) 227, Ogbu vs Wokoma (2005) 14 NWLR (Pt 944) 118, Otanma Vs Youdubagha (2006) 2 NWLR (Pt 964) 337, Offodile Vs Offodile (2019) 6 NWLR (Pt 1698) 189.
Also, where the identity of the land is ascertained with clarity from the pleadings of the parties, the burden to establish the identity of the very land ceases to be on the claimant – Adelusola vs Akinde (2004) 12 NWLR (Pt 887) 295, Ogun vs Akinyelu (2004) 18 NWLR (Pt 905) 362, Charlie vs Gudi (2007) 2 NWLR (Pt 1017) 91. Similarly, where the area of land in dispute is well known to the parties, or where there is enough evidence for the Court to infer the identity of the land, the question of proof of the identity of the land does not arise — Akinterinwa Vs Oladunjoye (2000) 6 NWLR (Pt 659) 92, Gbadamosi vs Dairo (2007) 3 NWLR (Pt 1021) 282, Adedeji vs Oloso (2007) 5 NWLR (Pt 1026) 133, Udechukwu vs Ezemuo (2009) 14 NWLR (Pt 1162) 525.
A read through the respective cases of the parties on the pleadings shows clearly that there is no dispute over the portion of land in dispute in this case. It is the portion the land which the Respondent alleged that the Appellant entered into, bulldozed and trespassed upon. The Appellant admitted in his pleadings that he indeed bulldozed and entered upon a portion of land. Additionally, there was unchallenged oral and documentary evidence tendered that the parties and their privies and assigns had previously litigated over the portion of land in dispute from the Customary Court up to the Court of Appeal. The land in dispute was thus very well known to the parties and the Appellant did not raise the issue of the identity of land before the lower Court. There was thus no onus on the Respondent to prove the identity of land in dispute. The complaint of the Appellant on the point was totally misconceived.
It is for these reasons and the fuller exposition of the law in the lead judgment that I agree that there is no merit in this appeal. I too hereby dismiss the appeal and affirm the judgment of the High Court of Ondo State in Suit No HOD/149/2014 delivered by Honorable Justice A. O. Adegbehingbe (as he then was) on the 9th of August, 2016. I abide by the order on cost in the lead judgment.
Appearances:
Theophilus Bade Awosunle Esq with him Olayinka Anne Igobo Esq. Thompson Akinyemi Esq and Bade Awosunle Esq. For Appellant(s)
A. O. Thomas Esq. For Respondent(s)