AKINNOLA v. OLAWOYE & ORS (2020)

AKINNOLA v. OLAWOYE & ORS

(2020)LCN/14373(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Wednesday, June 17, 2020

CA/AK/240/2017

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

MR OLAKUNLE AKINNOLA (Suing For Himself And On Behalf Of The Children Of Late CHIEF SOLOMON OLU AKINNOLA) APPELANT(S)

And

1. MRS RALIAT ADENIKE OLAWOYE 2. MR FRANCIS O. OYEDELE 3. MR AYANBADE MODUPEOLA RESPONDENT(S)

RATIO

WHETHER OR NOT THE DUTY OF A PLAINTIFF IN A CLAIM FOR DECLARATION OF TITLE TO LAND IS TO ESTABLISH THE CERTAINTY AND ACCURACY OF THE IDENTITY OF THE LAND HE CLAIMS

As a general legal principle, it is the duty of a plaintiff in a claim for declaration of title to land to establish with certainty and accuracy the identity of the land he claims. This is a condition precedent sine qua non to the success of the claim. ADENIRAN V ASHABI (2004) 2 NWLR, PT 857, 357; OTANMA V YOUDUBAGHA (2006) 2 NWLR, PT 964, 337; KOLO V LAWAN (2018) LPELR – 44378 (SC) OLODO V JOSIAH (2010) 18 NWLR, PT 1225, 653 and OGBAJI V UTAHILE & ORS (2019) LPELR – 47186 (CA). The law is also settled that this burden will not arise where the identity of the land in dispute does not arise from the pleadings. This is to say where the defendant by his pleadings admitted the description, location, features and dimension of the land. In such a situation the identity of the disputed land not being a question in issue does not require proof. OGBU V WOKOMA (2005) 14 NWLR, PT. 944, 188; AYUYA & ORS V YONRIN & ORS (2011) 10 NWLR, PT 1254, 135 and BABATAYO & ANOR V OJOLO & ANOR (2017) LPELR – 43703 (CA). PER MAHMOUD, J.C.A.

THE DUTY OF THE COURT WHERE TWO COMPETING PARTIES CLAIM TO BE IN POSSESSION OF LAND IN DISPUTE

The law is settled that where two competing parties as in the instant case claim to be in possession of land in dispute in a case, the law ascribes possession to the one with the better title. See OGBU V WOKOMA (SUPRA); SORONNADI & ANOR V DURUGO & ANOR (2018) LPELR– 46319 (SC) and GIWA V ANZAKU (2019) LPELR – 46880 (CA). PER MAHMOUD, J.C.A.

WHETHER OR NOT THE COURT IS BOUND TO ACT ON EVIDENCE BEFORE IT

The settled position of the law is that the Court is bound to act on such evidence. See BUKA & ORS V LAWAN (2017) LPELR – 43315 (CA), STANBIC IBTC BANK V LONGTERM GLOBAL CAPITAL LTD & ORS (2018) 10 NWLR, PT 1626, 96; HAMISU V FRN (2019) LPELR – 48149 (CA) and MTN V CORPORATE COMMUNICATION INVESTIMENT LTD (2019) LPELR 47042. PER MAHMOUD, J.C.A.

ONE OF THE WAYS OF PROVING TITLE OF OWNERSHIP TO LAND

WHETHER OR NOT AN ORDER MADE AGAINST A PERSON NOT JOINED AS A PARTY IN A SUIT IS A NULLITY

The law is well settled that an order made against a person not joined as a party in the suit is a nullity and of no effect. See OYEYEMI & ORS V OWOEYE & ANOR (2017) LPELR – 41903 (SC); FMBN V CHINAGOROM & ANOR (2019) LPELR – 46905 (CA); NURTW & ANOR V RTEAN & ANOR (2012) 3 SCM, 171 AT 178 – 179 and ANYANWOKO V OKOYE (2010) 5 NWLR, PT. 1188, 497 AT 520, PARAS B-C. PER MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant, who was the claimant in the lower Court by a further amended Writ of Summons filed on the 01/07/2014 claimed against the defendants/respondents as follows:-
1) Ten Million Naira (N10,000,000) only being special and general damages for trespass and wanton destruction of the claimant’s property on his parcel of land situated, lying and being at the place formerly called Ekemode Road or Lafenwa Street, near Oke Obara Road, Ondo but now popularly called Gani Fawehinmi Street, Ondo bounded on the 1st side by the claimant’s landed property, on the 2nd side by the claimant’s landed property, on the 3rd side by the claimant’s landed property and on the 4th side by Road which land forms part of the land described in dispute plan No FA 6391 dated 28/6/76 prepared by A. O. Adeogun Licensed Surveyor which forms the basis of the judgment of Court in Suit No HOD/39/75 of 5th March, 1982.
2) Court declaration that any purported sale and/or alienation of the land in dispute described above to the defendant by any person or persons particularly the 2nd and 3rd

defendants without the consent of the Plaintiff is wrongful, unlawful, null and void and same should be set aside.
3) An order of perpetual injunction restraining the defendants, their servants, agents and/or privies from further entering and/or committing any further acts of trespass over the land in dispute.

The case of the claimant was that his deceased father Chief Solomon Olu Akinnola bought a parcel of land incorporating the land in dispute measuring 400ft x 300ft from the children of the late Chief Jomu Akinnawo including his customary administrator one Pa Simeon Akinmade (deceased). That after the sale the deceased father of the appellant took possession of the entire land purchased by him which included the land in dispute exercising acts of ownership thereon by cultivating arable crops on it. That sometimes in 1975, the appellant’s deceased father instituted an action for declaration of title over the piece of land in the Ondo State High Court, Ondo Division. That on the 6th of March, 1982 that Court entered judgment in favour of the appellant’s deceased father which judgment was tendered as Exhibit ‘A’ in the trial

Court. That the appellant’s deceased father exercised various acts of ownership over the parcel of land throughout his lifetime without challenge from any quarters. That these acts of ownership which included but not restricted to the building of a foundation of 31 rooms on the land in dispute. It was also the appellant’s case that the pieces of land on the three sides of the property in dispute were owned by his late father which he sold to Christ Apostolic Church, (CAC), Deeper Life Church and some individuals who built their respective houses as reflected in Exhibits G, G1 and G2. That the Udoko family was the deceased father’s vendor and the original radical title holder of the property in dispute. That this family had a boundary dispute with the Loduti/Ajaka family, family of the 2nd and 3rd defendants sometime in 1963. That this dispute went to Court and also on appeal. That the appellant tendered Exhibits H-H1 at the trial Court to show that the boundary fixed by both families was not within the area of the land in dispute. The appellant’s contention was that it was after the death of his father sometimes in 2009 that the 1st

respondent began to trespass on the land firstly in 2010 and later in 2013 when she destroyed the foundation on the land and started constructing a building on the land which had gotten to lintel level.

In proof of his case, the claimant/appellant called one witness and tendered twelve (12) exhibits which were marked as Exhibits A, B, B1, C-G, G1, G2, H and H1.

The case of the respondents on the other had is premised on the judgment obtained in Suit No. HOD /84/89 in which the 2nd and 3rd respondents’ Loduti/Ajaka family was adjudged the owner of a large parcel of land at Oke Obara, incorporating the land in dispute. That the 2nd and 3rd respondents obtained another judgment in Suit No HOD/7/2005 which granted possession of same land in their favour in respect of which they tendered Exhibits K, L and M at the trial Court. The respondents’ case was also that the warrant of execution and possession were subsequently levied over the land in respect of which the 2nd and 3rd respondents obtained judgment in Exhibits K and L which they thereafter sold to the 1st respondent as evidenced by Exhibits N and J. The position of the 1st respondent

therefore is that she was in the land legally and by virtue of Exhibits K, L, M, N and J. That she started construction work on the land which she developed to lintel level.

In support of their defence and proof of their counterclaim, two of the defendants/respondents 1st and 3rd defendants gave evidence on their own behalf and tendered six exhibits, five of which were admitted and marked Exhibits J, K, L, M and N while the sixth was rejected and accordingly so marked.

At the conclusion of hearing, the learned trial judge, Hon. Justice A. Adegoroye in a considered judgment delivered on the 9th day of June, 2017 dismissed the claim of the claimant and gave judgment in favour of the defendants in their counter claim.

Dissatisfied with this decision, the claimant/appellant by a Notice of Appeal dated and filed on the 4th day of July, 2017 but deemed 16/03/2020 appealed to this Court on five grounds as follows:-
1. That the trial Court erred in law when it said at page 26 of the judgment thus: “The claimant gave the boundaries of the land in dispute thus 1st side by the claimant’s land, 2nd side by the claimant’s land, 3rd side

by the claimants land and on the 4th side by a road. They did not file any survey or dispute plan but relied on the plan used in the case with Suit No. HOD/19/75 (sic). The survey plan was not tendered and it did not show in Exhibit “A” which is the Court’s judgment in the said case.”
2. That the trial Court misdirected itself when it said at page 29 of the judgment thus: “The claimant gave evidence and did not call other witnesses to support his story. I am not oblivious of the fact that a claimant’s sole evidence is enough to support his case but in a situation where the matter is as contentious and as wide as this the need to call other witnesses to at least throw more light on the historical claims of the claimant, is necessary moreover those whom the claimant said derived their title and possession from his father should also have been called. Some elders or other principal members of his family should have been called to buttress his claim moreso that the land is a family land and he is suing for and on behalf of the other children of late Chief Solomon Akinnola”.
3. That the trial Court erred in law

dismissing the case of the appellant in view of the available evidence before the Court both oral and documentary.
4. That the trial Court erred in law granting the counterclaim of the 1st respondent.
5. That the trial Court misdirected itself when it said at pages 28 and 29 of the judgment thus: “The claim in Exhibit A looks uncertain though the said survey plan was later tendered in the case. This Court was however not given the privilege to peruse the said plan meaning that the Court has to base his finding thereon on conjectures. The claim in Exhibit L on the other hand is precise and the plan referred to was both tendered in that case and in the case giving this Court a clean clear picture of what the defendant’s case is all about… I must not also lose sight of the fact that both cases are in respect of the same land and HOD/84/89 coupled with HOD/7/2005 are the most recent. At the time both cases were filed heard and disposed of the claimant’s father and the claimant were alive. They did nothing to challenge both judgments…

Whereof the appellant urged this Court to allow the appeal and set aside the decision of the

lower Court including the order as to costs.

In prosecuting the appeal, the appellant filed his brief of argument on the 21/11/2017 but deemed on the 16/03/2020. In arguing the appeal, MR. H. I. Akingbesote of counsel for the appellant adopted the brief as his legal arguments in support of the appeal. In it, counsel formulated five issues for determination of the Court:-
1) Whether the identity of the land in dispute in this case is in dispute between the parties as held by the trial Court.
2) Whether the trial Court is right (sic) dismissing the case of the appellant in view of the available evidence before it both oral and documentary.
3) Whether the respondents particularly, the 1st respondent has established her counterclaim as required by law to warrant the judgment of the lower Court in her favour.
4) Whether the trial Court is right to have held the appellant bound by the decisions in Exhibits K & L to which he is not a party or privy.
5) Whether the law required the appellant in this case to call any number of witnesses or a particular witness before he can successfully establish his claim before the trial Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

On issue (1) MR. Akingbesote submitted that in a claim like the appellant’s, the onus is on the claimant to establish with certainty and precision the identity of the land to which his claim relates. Counsel referred to the cases of ODICHI V CHIBOGWU (1994) 7-8 SCNJ, 317 AT 324-325; MARK UGBO & ANTHONY ABURIME (1994) 9 SCNJ, 23 AT 24; OTANMA V YOUDUBAGHA (2006) 134 LRCN, 362 AT 365 – 367 and ATANDA V ILIASU (2012) 214 LRCN 220 AT 225-226. Counsel submitted that an identity of land is put into question by the defendant who in his statement of defence can join issues with the claimant in respect of the identity. Counsel referred to the cases of FATUADE V ONWOAMANAM (1990) 2 NWLR, PT. 132, 322 AT 240 (SIC); ADELUSOLA V AKINDE (2004) 120 LRCN, 4683 AT 4700 and ATANDA V ILIASU (SUPRA) AT 240. Counsel submitted that from the statement of defence, the respondents never joined issues with the appellant on the identity of the land in dispute. Counsel referred to paragraph 14 of their further amended statement of claim and paragraph 7 of the statement of defence, paragraph 35 of the counterclaim and paragraph 16 of the statement of defence/counter

claim to submit that the identity of the land in dispute was known to the parties. That it was therefore wrong for the trial Court to have held that the identity of the land was in dispute between the parties. Counsel urged the Court to resolve this issue in favour of the appellant.

On issue (2), counsel submitted that a claim for trespass is rooted in exclusive possession or the right to such exclusive possession. That in the instant case, the defendants having asserted ownership of the land in dispute automatically put title to it in issue. Counsel relied on the cases of AMAKOR V OBIEFUNA (1974) 3 SC, 67 and FASIKUN V OLURONKE II (1999) 65 LRCN, 114 AT 148, PARAS D-E to submit that to succeed the claimant has to prove a better title. Counsel contended that the evidence of the appellant’s sole witness remained unchallenged and undiscredited. That the trial Court was therefore bound to rely and act on the said evidence. That by Exhibits A and C, the appellant had proved their title over the land in dispute. That the trial Court was wrong to have dismissed the claim of the appellant. Counsel urged the Court to resolve this issue in favour of the appellant.

On issue (3), MR. Akingbesote referred to the case of ISERU V CATHOLIC BISHOP (1997) 49 LRCN, 865 to submit that for a defendant to defeat a claimant’s claim for trespass to land when the claimant is in possession, such a defendant must show a better title to the land. That the 1st respondent who counterclaimed for declaration of title to land had a heavy burden of proof which burden she had not discharged. Counsel contended that a counter claim is a cross action whose standard of proof is like in every civil case. That the traditional evidence pleaded and led by the respondents was disjointed and fell short of the required proof for establishing title to land. Counsel submitted that the 1st respondent placed heavy reliance on Exhibits J, K, L, M & N to establish her title to the land in dispute. That the learned trial Court failed to evaluate the said exhibits in relation to the 1st respondent. Counsel further submitted that Exhibit J, though a registerable instrument was never registered. That at most it only created on equitable title in favour of the 1st respondent which cannot defeat the legal title of the appellant over the land

in dispute. That the Writ of possession, Exhibit N which allegedly empowered the 2nd & 3rd Respondents to enter the land in dispute is dated 10/07/2010 and post dated the sale agreement and purchase receipt, Exhibit J, making the entry into the land in dispute by the 2nd and 3rd Respondents and sale of same to the 1st respondent in March, 2009 wrongful and unlawful. Counsel strongly contended that there is no shred of evidence before the trial Court to show that the land in dispute falls within the land described in Exhibit M. That no registered surveyor was called to give evidence to show the location of the land in dispute on Exhibit M. That when DW2 was asked in cross examination to show the location of the land in dispute in Exhibit M he stated unequivocally that he cannot read Exhibit M. That there is no dispute between the parties that neither the appellant nor his deceased father was a party to the actions in Exhibits K & L and the warrant of possession was not addressed to either of them, yet the Court gave judgment in favour of the 1st respondent. Counsel referred to the case of ADESANYA V ADEROUNMU (2000) 9 NWLR, PT 672, 370 AT 386-387 to

submit that the failure of the 1st respondent to lead evidence and tender a survey plan at the trial Court to show that the land in dispute to which she sought a declaration of title falls within the land described in Exhibit M to which Exhibits K and L are tied is fatal to her claim. Counsel further submitted that the appellant on the other hand tendered Exhibits H-H1 to show that the land in dispute is distinct from that of the 2nd and 3rd respondents’ family land. That the 1st respondent has not established title to the land in dispute by any of the five recognizable ways in law. Counsel urged the Court to resolve this issue in favour of the appellant.

On issue (4), counsel contended that assuming without conceding that the land in dispute falls within the one described in Exhibits L & M but by virtue of Section 128 of the Evidence Act, 2011, Exhibit A tendered before the trial Court has priority over Exhibits K and L based on the legal maxim that where two equities are equal, the first in time prevails. Counsel urged the Court to so hold. Counsel also contended that neither the appellant nor his deceased father was a party to Exhibits K and L

and the alleged warrant of possession, Exhibit N was not addressed or served on the appellant. That therefore the appellant could not be bound by the said Exhibits K & L. That a perusal of Exhibits K & L show that the action was between one Chief Taye Aderoba (for himself and on behalf of the Loduti, Ajaka family) as Plaintiff against Sunday Olorunfemi and Olubunmi Olorunfemi for themselves and on behalf of the Johnson Olorunfemi family as defendants. Counsel further argued that the respondents failed to show or prove that the appellant or his deceased father was either a party to the action or a privy to the party sued or caught up by any doctrine of estoppel or that the land adjudged in Exhibit L to be enforced by Exhibit K falls within the land in dispute. That the trial Court was wrong to have held that the appellant and his deceased father were complacent in an action they knew nothing about. That Exhibit N, the alleged warrant of possession was not addressed to the appellant and no evidence of proof of its execution was led before the trial Court except the trespass of the respondents which necessitated the action leading to this appeal. Counsel

submitted that the judgment of Court binds only the parties or their privies. Counsel referred to the case ofIGE V OLUNLOYO (1984) 1 SCNLR, 158; NDULUE V IBEZIM (2002) 12 NWR, PT. 780, 139 AT 165 and two other cases (contained in the brief) to submit that making an enforceable order against the appellant without giving them an opportunity to be heard amounts to great injustice against them. That Exhibits K & L are not enforceable against the appellant contrary to the finding of the trial Court. Counsel urged the Court to resolve this issue in favour of the appellant.

On the last and fifth issue, counsel submitted that by Section 200 of the Evidence Act, 2011 no particular number of witnesses is required to be called in proof of any fact or claim. Counsel referred to the case of ALAO V AKANO (2005) 126 LRCN, 837 AT 8542; MUSA V YERIMA 53 LRCN 254 AT 2570; AGBI V OGBE (2006) 11 NWLR PT 990, 65 AT 130; ALONGE V IGP (1959) 4 FSC, 203 and VICTOR V STATE (2014) 227 LRCN, 211 AT 218 to submit that there is no rule of law or practice which requires a claimant or a defendant to be physically present in Court to testify if he can otherwise prove his

case or establish his defence. Counsel referred to the cases of FASHANU V ADEKOYA (1974) ANLR, 32; EGHAREVBA V OSAGIE (2010) 180 LRCN, 75 AT 80-81 and ANYANWU V UZOWUAKA (2009) 177 LRCN, 204 to submit that the Court is not to be influenced by the number of witnesses called by a party or the volume of documents tendered but by the quality of the evidence given. That the appellant’s witness gave evidence in support of all the facts in his pleading and also tendered exhibits in support. These exhibits include Exhibits G-G2, the purchase receipts of neighbouring property owners who derived titles to their respective properties from his deceased father. Counsel contended that it is wrong for the trial Court to have placed unnecessary evidential burden on the appellant by holding him liable for not calling a particular number or class of witnesses to prove his case. Counsel urged the Court to hold that trial Court did not properly evaluate the evidence before reaching a decision in this matter. Counsel urged the Court to resolve this issue in favour of the appellant and to allow the appeal.

The Respondent’s counsel who was served with hearing notice

on the 04/03/2020 did not come to Court for the hearing and sent no word to explain any difficulty that prevented him from being in Court. Their brief of argument filed on the 18/09/2018 but deemed on 16/03/2020 was deemed as argued pursuant to Order 19(9)(4) of the Rules of Court, 2016 as their legal arguments in opposition to the appeal. In the brief which was settled by Mr. C.O. Alaye of FAGBEMI, BODE AKINKOYE & CO, counsel adopted the five issues raised by the appellant as their issues for determination. On issue one, the respondents contended that they joined issues with the appellant as to the boundaries of the land in dispute. That there is confusion in the testimony of the claimant/appellant as to the identity of the land in dispute. That if the claimant had divested himself of interest in the land by selling part of it to C.A.C Church, Deeper Life and also bounded by container of twenty individuals, that the claimant cannot be bounded by the same land again as there cannot be concurrent possession in law. Counsel urged the Court to resolve this issue against the appellant.

On the second issue as raised by the appellant, counsel to the

respondents submitted that the claimant/appellant failed to credibly and creditably discharge the burden of proof placed on them. Counsel referred to Sections 131 & 132 of the Evidence Act, 2011 and the case of LEWIS PEAT (NRI) LTD V AKHIMIEN (1978) ANLR, PTJ, 46 to submit that the burden of proof rests on the party who would fail if no evidence at all or no further evidence is given on either side. Counsel further submitted that in a claim for declaration of title as in this case, the burden of proof is on the complainant who must succeed on the strength of his own case and not on the weakness of the defence. Counsel also submitted that there is a gaping gap in the traditional history given by the appellant which is unreliable and not plausible. Counsel urged the Court to resolve this issue against the appellant.

On issue three, counsel argued that the respondent gave traditional evidence of the land in dispute as belonging to late Oba Jilau, the Osemawe of Ondo Kingdom which land devolved on his children Loduti and Ajaka and on the 2nd respondent who sold the same to the 1st respondent in conjunction with the 3rd respondent. That Exhibits J, K and M,

the purchase receipt, judgment in respect of the property in dispute and the survey plan respectively tendered by the respondent confirm that the land in dispute falls within the land already adjudged in Exhibits K and L.

Counsel urged the Court to resolve issue 4 against the appellant because they were slow in waking up from their inertia in respect of the proceedings relating to the land in dispute.

On the fifth and final issue, counsel submitted that the failure of the appellant to call any of the boundary men whom he claimed purchased land from his father was fatal. Counsel urged the Court to invoke Section 167 of the Evidence Act, 2011 against the appellant.

Since the respondents have adopted the issues raised by the appellant, my only duty is to determine from the submissions and the evidence on record in whose favour the issues should be resolved.

Issue (1) deals with whether the identity of the land in contention is in dispute between the parties as found by the trial Court. As a general legal principle, it is the duty of a plaintiff in a claim for declaration of title to land to establish with certainty and accuracy the identity of

the land he claims. This is a condition precedent sine qua non to the success of the claim. ADENIRAN V ASHABI (2004) 2 NWLR, PT 857, 357; OTANMA V YOUDUBAGHA (2006) 2 NWLR, PT 964, 337; KOLO V LAWAN (2018) LPELR – 44378 (SC) OLODO V JOSIAH (2010) 18 NWLR, PT 1225, 653 and OGBAJI V UTAHILE & ORS (2019) LPELR – 47186 (CA). The law is also settled that this burden will not arise where the identity of the land in dispute does not arise from the pleadings. This is to say where the defendant by his pleadings admitted the description, location, features and dimension of the land. In such a situation the identity of the disputed land not being a question in issue does not require proof. OGBU V WOKOMA (2005) 14 NWLR, PT. 944, 188; AYUYA & ORS V YONRIN & ORS (2011) 10 NWLR, PT 1254, 135 and BABATAYO & ANOR V OJOLO & ANOR (2017) LPELR – 43703 (CA).

In the instant case, the identity of the land in dispute is pleaded in paragraph 14 of the claimant’s/appellant’s Further Amended Statement of Claim as follows:-
“The boundary of the 1st side of the land in dispute is the claimant’s uncompleted building

presently let out to the Deeper Life Church, the 2nd side is the property of the claimant let out to the CAC for many years before same was sold to the church by the claimant’s father shortly before his death, on the 3rd side by two uncompleted buildings built by the claimant’s father more than fifteen years which has now been laid into shops containing containers of more than 20 tenants to the claimant and on the 4th side by Road.”

By paragraphs 7 and 35 of the defendants/respondents statement of defence/counterclaim the defendants/respondents admit the stated boundaries by the claimant/appellant as those of the disputed land. In other words they did not join issues with the appellant on the identity of the land in dispute. Additionally and as held by the Supreme Court in the cases ofOSHO V APE (1998) 8 NWLR, PT 562, 492 AT 495 and OGUN V AKINYELU & ORS (2004) 18 NWLR, PT 905, 362, the identity of the land in dispute is not in issue when by the pleadings of the parties and the evidence it is obvious that the parties knew the land they were disputing about. From the pleadings of both parties in this suit it is crystal clear that

both parties know the land they are disputing about. On the strength of these authorities and the pleadings and evidence on record, I hold that the identity of the land in dispute was never in issue in the instant case. I therefore uphold the submission of appellant’s counsel that the learned trial judge was misconceived when he held that the identity of the land in dispute was in dispute between the parties. I accordingly resolve this issue in favour of the appellant.

Issue 2 is concerned with whether the trial judge was right in dismissing the case of the appellant in view of the evidence available before the Court. Issue 3 appears to me to be a corollary to issue 2. In other words which of the two parties proved a better title? I will treat the two issues together. The parties in this matter, both the appellant and the respondents lay claim to the same property in dispute. The law is settled that where two competing parties as in the instant case claim to be in possession of land in dispute in a case, the law ascribes possession to the one with the better title. See OGBU V WOKOMA (SUPRA); SORONNADI & ANOR V DURUGO & ANOR (2018) LPELR

– 46319 (SC) and GIWA V ANZAKU (2019) LPELR – 46880 (CA). The claim of the claimant/appellant from the evidence on record is that his deceased father Chief Solomon Olu Akinnola bought a parcel of land incorporating the land in dispute measuring 400ft by 300ft from the children of the late Chief Jomu Akinnawo including the customary administrator of the latter, one Pa Simeon Akinmade (deceased), same situate, lying and being at the place formerly called Ekemode or Lafenwa Street but now popularly called Gani Fawehinmi Road, Ondo vide Exhibit C tendered in the lower Court. Exhibit C is a purchase agreement evidencing this sale and is dated 30/04/1968. The case of the appellant is that after this sale his late father took possession of the land which included the land in dispute. It was also the case of the appellant that sometimes in 1975 his late father sued one Taiwo Abiodun & Ors for trespass on part of the land purchased by his deceased father. That on 6th of March, 1982 judgment was entered in favour of his late father. This judgment in suit NO HOD/39/75 was tendered as Exhibit A in the trial Court. There was no appeal on this judgment.

The appellant tendered Exhibits D, E and F to show how the properties of Christ Apostolic Church (CAC) and Deeper Life Church that share boundaries with the property in dispute were either rented or/and sold to them by his late father. He also tendered Exhibits G, G1 and G2 to show how his late father sold property contiguous to the land in dispute to some individuals who built their houses on the land many years back.

The appellant did admit that their predecessors in title and the family of the 1st & 2nd respondents who are the vendors to the 3rd respondent had a boundary dispute sometimes in 1963 which led to Suit No 86/63 and Appeal No A28/63. He however tendered Exhibits H – H1 to contend that the boundary fixed for both families by these suits are not within the area of the land in dispute. That that case was not about land strictly speaking but a confirmation that the two parties were boundary men. Only one witness testified for the claimant/appellant. He was cross examined. This cross examination did not in any way challenge these pieces of evidence given by the appellant. Neither was the evidence controverted or contradicted by the

respondents with any credible evidence.

The case of the respondents on the other hand is predicated on two judgments, Exhibits K and L in Suits Nos: HOD/84/89 and HOD/7/2005 for which they were granted judgment and possession. Exhibit K which is the suit No HOD/84/89 is quite instructive in respect of the identity of the land in issue in that suit. Chief Isaac Taiye Aderoba, the Plaintiff who sued on behalf of Loduti and Ajaka family and testified as PW1 gave the description of the land in contest in that suit as follows:-
“Okedoko family land on the left; on the right with Gbanijoke family land. At the top by Oke Otunba Street, Ondo. At the bottom it is bounded with Olalegbin near Ojojo family.”

PW2 in that suit was one MR Femi Falade, the surveyor who carried out the survey plan of the land in dispute. He gave the boundaries of the land in dispute as “Lodotu/Ajaka land to the North that is, the land of the Plaintiff that is not in dispute is on the Northern edge of the plan. The Gbanijoke land is on the East. Towards the South and West there is Idoko family land.” This suit in Exhibit K was between Chief Isaac T.

Aderoba (for himself and on behalf of the Loduti and Ajaka family) V Sunday Olorunfemi and Olubunmi Olorunfemi (for themselves and on behalf of Johnson Olorunfemi Family). There is no correlation shown between the Johnson Olorunfemi family and the appellant’s family. Also as can be seen from the 2nd page of Exhibit K, hearing commenced in the suit on 22/02/2003. By this date the CAC and Deeper Life Churches were tenants and subsequently owners of properties having boundaries with the land in dispute. There is therefore no doubt in my mind that the property in dispute in Exhibit K from which the defendants/respondents derived their title is not the same with that in dispute in this case. In other words the defendants/respondents have failed to prove that the land in dispute in this case is the same with the land in dispute in Exhibit K. The critical question to answer at this point is as between the appellant and the respondents who has proved a better title?

From my findings on Exhibit K, this question should without hesitation be answered in the negative against the respondents. Exhibit K is a declaratory judgment and the subsequent judgment in

Exhibit L is merely executory to give effect to the declaration in Exhibit K. In other words the boundaries of the land in Exhibit K is the same with those in Exhibit L.

It is noteworthy that the appellant led evidence to show that the CAC and Deeper Life Churches which are boundary men to the property in dispute purchased the properties from the appellant’s late father after having been his tenants for some years. Like I found earlier in this judgment this evidence of the appellant’s late father being the owner or former owner of one of the properties and two of the properties respectively than bound three sides of the property in dispute (the 4th side being bound by a road) remained unchallenged, uncontroverted and uncontradicted. The settled position of the law is that the Court is bound to act on such evidence. See BUKA & ORS V LAWAN (2017) LPELR – 43315 (CA), STANBIC IBTC BANK V LONGTERM GLOBAL CAPITAL LTD & ORS (2018) 10 NWLR, PT 1626, 96; HAMISU V FRN (2019) LPELR – 48149 (CA) and MTN V CORPORATE COMMUNICATION INVESTIMENT LTD (2019) LPELR 47042. I hold therefore that the lower Court was bound to act on the

unchallenged and uncontradicted evidence of the appellant that he is the owner/vendor of the three properties that bound the land in question the fourth being a road.

One of the five ways of proof of title of ownership of land is by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See: OGUANUHU & ORS V CHIEGBOKA (2013) 6 NWLR, PT 1351, 588; DUROSIMI V ADENIYI & ANOR (2017) LPELR – 42731 (CA) and DURU & ANOR V NWOSU (1989) 4 NWLR, PT 113, 24. Having proved that he is the owner/vendor of the properties that bound the disputed property on three sides, the fourth side being bound by a road the appellant has in law proved that he is the owner of the property in dispute.
The law is that the establishment of one of the five ways is sufficient proof of ownership. However, a claimant may ex abundante cautella rely on more than one method to prove his title. The claimant/appellant herein pleaded and relied on purchase and acts of long possession. In proof of the purchase he tendered Exhibit C, the receipt

evidencing that his late father purchased the disputed piece of land from the Akinnawo family on 30/04/1968 measuring 400 feet by 300 feet for £100 sterling. The appellant led evidence to show that his late father sold and used parcels from this purchased land leaving only the disputed property undeveloped. The appellant also led unimpeached evidence to show that his late father was in undisturbed possession of the property until his demise in 2009; except of course for the one incident in 1975 when he successfully challenged a trespasser in Court. The appellant successfully defended the boundaries of the disputed property. The contention of the respondents that there is apparent confusion as to the identity of the land in dispute because the claimant claimed that the property is bounded on three sides by his landed property is of no consequence. This is because being the vendors to CAC and Deeper Life Churches, I see no confusion in the description. This is based on the fact that the appellant tendered exhibits which clearly tell the story of how both churches came to be on the land and eventually purchased it. The respondents did not controvert this

evidence in any way. They cannot now be heard to complain. Another curiosity that arises from this case is that both parties have the same boundary descriptions for the disputed property. But while the claimant/appellant has adequately satisfactorily explained by documentary evidence the presence of CAC and Deeper Life Churches as boundary men to the disputed property, the respondents had nothing to say. They failed even on minimal evidence to establish a nexus between their judgments Exhibits K and L and the subject land. The contention or justification of the 1st respondent in her response to the charge of trespass is that she was put in possession legally through a Writ of Possession. There is nothing to show that this writ of possession was addressed or executed against the appellant. There is nothing in Exhibits K and L to show that the appellant or his late father was a party to the two actions in Exhibits K and L or privy to such actions. The law is well settled that an order made against a person not joined as a party in the suit is a nullity and of no effect. See OYEYEMI & ORS V OWOEYE & ANOR (2017) LPELR – 41903 (SC); FMBN V CHINAGOROM & ANOR

(2019) LPELR – 46905 (CA); NURTW & ANOR V RTEAN & ANOR (2012) 3 SCM, 171 AT 178 – 179 and ANYANWOKO V OKOYE (2010) 5 NWLR, PT. 1188, 497 AT 520, PARAS B-C.

If on the other hand, the Writ of Execution or Possession was executed against the judgment debtors in Exhibits K and L then the respondents proceeded against the wrong party in their counter claim in the trial Court. Firstly they did not show that the judgment debtors in Exhibits K and L were in possession of the subject land at the time of execution of the writ of possession in their favour. Secondly when the appellant sued them in respect of the subject land they ought to have brought a third party proceeding against the said judgment debtors instead of counter claiming against the appellant who is a stranger to their actions. More importantly, I find from the evidence on record that the respondents failed woefully at the lower Court to establish the nexus between their rights in Exhibits K and L vis a vis the subject property. This failure is fatal to their claim. It is not enough for the respondents to have a subsisting judgment(s) in their favour. They will fail if they are

unable to show by credible evidence that the property adjudged in their favour in Exhibits K and L is the same with the subject property. There is no iota of evidence offered by the respondents to establish this connection. To me it is of no moment that the respondents have copied or adopted the boundaries of the subject property as contained in the claim. I have already found in this judgment that the boundaries of the land in Exhibits K and L which give the respondents an entitlement are radically different from the boundaries in the instant case. Putting the evidence adduced in favour of the appellant and that of the respondents on the proverbial scale will without a doubt tilt heavily in favour of the appellant. I therefore have no hesitation in resolving these two issues in favour of the appellant.

Issue IV is whether the trial Court is right to have held the appellant bound by the decisions in Exhibits K and L to which he is not a party or privy. This issue whether by default or surplusage has already been determined under issues 2 and 3. It serves no useful purpose to repeat my findings herein. Suffice it to state however that by the Supreme Court

case of OYEYEMI & ORS V OWOEYE & ANOR (SUPRA) which I referred to among other authorities, the apex Court was categorical that any order/decision made against a person not joined as a party in a suit is a nullity and of no effect. The learned trial judge was therefore in grave error to have used Exhibits K and L against the appellant when it was not proved to the Court that he was either a party or a privy to that action. Did the respondents establish that the parties in dispute with them in Exhibits K and L were predecessors in title to the appellant in respect of the land in dispute? The answer to this question has to be a categorical and a very loud ‘no’. As found earlier in this judgment, the respondents led no evidence to show/prove that the property adjudged in their favour in Exhibits K and L is the same with the subject property in this suit. The learned trial judge fell into greater error when he blamed the appellant and his late father for being indolent when the matters in Exhibits K and L were going on. It is the duty of the respondents to join any party who is a successor in title to the property as a party as they would surely

be affected by the outcome of such a suit. This is however not even the case of the respondents. The respondents had a burden to plead and prove on a balance of evidence the fact that the property in dispute is the adjudged property in Exhibits K and L. They failed to do so. This failure is fatal and the learned trial judge had no legal basis to have found in favour of the respondents in the circumstances. I therefore also resolve this issue in favour of the appellant.

The last issue is whether the law requires the appellant to call any number of witnesses to establish his claim before the Court.
I have considered the submissions of both parties on this issue. Indeed, it is refreshing that the respondents referred to Section 200 of the Evidence Act, 2011 to concede that the success of a case is not dependent on the numerical strength of the witnesses but on the credibility of the evidence adduced. Counsel did feebly allude to the fact that there are exceptions to this rule. Since he did not state these exceptions or argue that the appellant’s case fall within the exceptions, I take it that the respondents were so feeble that they do not want to

be heard. I will therefore ignore any rider to the general rule in this case. The emphasis must be made however on the settled position of the law as reiterated by the respondents. This is that there is no law that requires a party to call a given number of witnesses in proof of his claim. Even in criminal cases where the standard of proof is beyond reasonable doubt, there is no such requirement. The important consideration always is that a party is enjoined to call only such number of witnesses as are required to prove his case. The apex Court stated this very categorically in the cases of ALI V STATE (2015) LPELR – 24711 (SC) OSUAGWU V STATE (2016) LPELR – 40836 (SC). See also ALAO V AKANO cited by learned counsel but also reported in (2005) 11 NWLR, PT. 935, 160 and the decision of this Court in KABURI INTL TRADING CO. LTD & ANOR V MUSTI & ANOR (2018) LPELR – 44004 (CA).

The learned trial judge was therefore clearly misconceived to have held the failure of the claimant to call more witnesses against him or to have even made it an issue. It was also out of place for the learned trial judge to make an issue out of the appellant

not testifying. I agree with the submissions that this claim being a representative action the appellant and their sole witness being his sibling are both equally parties. Again there is no law that a claimant must testify personally. If he can prove his claim through a witness who is not a party so be it. I have no hesitation in upholding the contention of learned counsel to the appellant that the learned trial judge was so fixated on the number of witnesses called or not called that he failed to properly evaluate the evidence of both parties. If he had properly evaluated the evidence, he would have found that in the face of the documentary evidence tendered by the appellant succeeded in proving that CAC and Deeper Life Churches were their boundary men in respect of the subject property. He would also have been able to put both sets of evidence on the proverbial imaginary scale and see if it tilts in favour of the appellant and not the respondent. This is especially so in this case where the respondents did not challenge or controvert the evidence of the appellant and they also adopted the same boundaries as pleaded by the appellant in their pleadings.

The respondents did not call any boundary men either in evidence especially as they have a counter claim. The burden of proving their counter claim in the same burden the appellant has to prove his claim. Rather than consider whether the respondents proved their counter claim the learned trial judge was rather engaged in giving effect to Exhibits K and L without bothering to be satisfied by evidence from the respondents that the land in dispute is indeed the same land adjudged in favour of the respondents in the said exhibits. This slip made the learned trial judge to grant judgment to the defendants/respondents in their counter claims upon holding that the appellant failed to prove his case without evaluating their own evidence to determine if they proved their counter claim on the balance of evidence. A counter claim is an independent claim which has to be proved on the balance of evidence. In the case of ANAMBRA STATE GOVT & ANOR V GEMEX INT’L (2012) 1 WLR, PT 1281, 333, this Court held that the counter claimant must succeed on the strength of their own case. In the instant case, the respondents seem to be succeeding not on the strength of their own

case but on the misconceived and alleged weakness of the appellant’s case. Be that as it may this last issue is resolved in favour of the appellant.

Having resolved all the issues in favour of the appellant, it follows that this appeal succeeds and it is hereby allowed. Consequently, the claimant/appellant’s claim is granted as prayed.:-
(1) It is hereby declared that any purported sale and/or alienation of the land in dispute, lying and being at the place formerly called Elemode Road or Lafenwa Street, near Oke Obara Road, Ondo but now popularly called Gani Fawehinmi Street to the defendant by any person or persons without the consent of the plaintiff is wrongful, unlawful, null and void and same should be set aside.
(2) An order of perpetual injunction is hereby issued restraining the defendants/respondents by themselves, servants, agents, privies or however from further entering and/or committing any further acts of trespass over the land in dispute.

The appellant claims N2,500,000 special damages being the current value of the damage done to the 31 room foundation constructed on the land in dispute. The pleading for this

claim is contained in paragraph 21 of the Further Amended Statement of claim of the claimant/appellant and it is as follows:-
“That the current value of the 31 rooms foundation on the land in dispute constructed with hard stones, loads of granite, and tones of cement with cement blocks is estimated at N2,500,000.”

This claim is declared as a claim in special damages. It has been settled in a plethora of cases that a claim in special damages must be specifically pleaded and strictly proved. This means full particulars of the items have to be given in the pleadings and evidence led in proof of each item or each of the particulars of the item(s) given. In other words, a claim for special damages succeeds only on the strict proof of the specifically pleaded facts in relation to the sum claimed. It follows that where items of special damages are not specifically and strictly proved as in the instant case, the claim will fail. See EKIYE V FRCN (2018) LPELR – 44116 (CA) and YENKARTI & ANOR V ABBAH & ORS (2017) LPELR – 43032 (CA). The implication of the above in relation to the instant case is that the claim for special

damages fails. Same is accordingly dismissed.

The claimant/appellant also claimed N7,500,000 as general damages for trespass on the land in dispute. The 1st respondent admitted going on the land and putting up a building thereon up to lintel level. She however contended that since she was legally on the land having validly purchased same from the 2nd and 3rd respondents she was therefore not in trespass. It may not be too elementary at this stage and in the circumstances to define trespass. In doing so I would adopt the definition of the term from my learned brother SAULAWA, JCA in the case of DOSUMU & ORS V NNPC & ANOR (2014) 6 NWLR, PT 1403, 282 as “an unlawful act committed against the person or property of another, most especially wrongful entry on another’s real property.” It is clear therefore that the essence of trespass is injury to possession. In the case of AKINTERINWA V OLADUNJOYE (2000) 6 NWLR, PT 659, 92 AT 105 PARAS A-B, the apex Court held that the law attaches lawful possession to the person with the better title. Thus two persons cannot be in possession of the same piece of land at the same time. One must be a

lawful possessor whereas the other is a trespasser. The position therefore is that an owner of land and a person intruding on that land without consent cannot be in possession at the same time. Possession resides in the claimant that establishes a better title.
I have already found in this judgment that the appellant established a better title to the land in dispute and ascribed lawful possession to him. The logical conclusion to draw therefore is that while the appellant had lawful possession, the respondents were in trespass. The law is well settled that trespass is actionable per se. This means the entitlement for damages for trespass is not hinged on proof of actual or any damage by the claimant:- CHUKWUMA V IFELOYE (2008) 18 NWLR PT. 1118, 204 and REGISTERED TRUSTEES OF MASTER’S VESSEL MINISTRIES (NIG) INCORP V EMENIKE & ORS (2017) LPELR – 42836(CA).
The learned trial judge had dismissed the appellant’s claim. This means that no damages were awarded for trespass. It behooves on this Court to therefore assess and make this award having allowed the appeal. As a general rule, the quantum of damages to be awarded in a claim for general damages is

at the discretion of the trial Court. For trespass however the quantum is usually nominal. The rationale for this is predicated on the fact that a plaintiff is entitled to damages for trespass even if no damages or loss is caused to him and if any damage or loss is caused to him as a consequence of the trespass; same is recoverable under special damages properly pleaded and proved. See AKAOLISA V AKAOLISA (2014) LPELR – 24148 (CA) and OSUJI V ISIOCHA (1989) 3 NWLR PT 111, 623 AT 634.

In the light of this and all the surrounding circumstances of this case, I assess general damages for trespass at N1,000,000 in favour of the claimant/appellant against the respondents.
I assess costs at N100,000 in favour of the appellant and against the respondents.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother, Patricia Ajuma Mahmoud, JCA.

For the well-reasoned opinions contained in the said leading judgment which I equally adopt as mine, I allow the appeal. The judgment of the trial Court in this matter is accordingly set aside in its entirety.

I also abide by all the consequential orders made in the leading judgment including that for costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Patricia Ajuma Mahmoud, JCA.

My noble brother considered and treated the issues judiciously and judicially and I am convinced with the resolutions arrived at. The reasoning and conclusions are agreed by me with no addition thereto.
This appeal stand meritorious and allowed as done in the lead judgment.

Consequently, the assessed general damages for trespass at N1,000,000.00 and costs of N100,000.00 in favour of the Appellant are abide by me.

Appearances:

Mr. H.I. Akingbesote, holding the brief of Mr. A. F. Adejayan For Appellant(s)

Respondents counsel was served with hearing notice on the 04/03/2020 but absent from Court For Respondent(s)

LawCare Nigeria

AKINNOLA v. OLAWOYE & ORS (2020)

admin

YOU MAY HAVE MISSED

FEDERAL UNIVERSITY OF HEALTH SCIENCES, AZARE (ESTABLISHMENT) ACT 2022

FEDERAL UNIVERSITY OF EDUCATION, PANKSHIN, PLATEAU STATE (ESTABLISHMENT) ACT, 2021

FEDERAL UNIVERSITY OF EDUCATION, KONTAGORA (ESTABLISHMENT) ACT, 2021

APPOINTMENT OF AGENT & LEGAL REPRESENTATIVE IN NIGERIA

admin

Related Story

YOU MAY HAVE MISSED