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ALAYANDE v. BANJOKO & ORS (2022)

ALAYANDE v. BANJOKO & ORS

(2022)LCN/16179(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Monday, August 08, 2022

CA/IB/275/2013

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

MRS. ELIZABETH AJOKE ALAYANDE (Substituted By Order Of This Honourable Court Made On The 17th Of September, 2020 For Jimmy Ajibola Alayande Deceased) APPELANT(S)

And

1. CHIEF SHITTU BANJOKO 2. PRINCE MURAINA BANJOKO 3. CHIEF TUNDE BALOGUN (For Themselves And On Behalf Of Salami Olorokun Family) RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURT MUST CONFINE ITSELF TO THE EVIDENCE ON THE FACTS WHICH HAVE BEEN PLEADED BY PARTIES

The parties fought their case in the trial Court on the basis of their pleadings. The law is settled that, in a case contested on pleadings, the Court has a duty to confine itself to the evidence on the facts which have been pleaded. See George v. Dominio Flour Mills (1963) 1 SCNLR 117, Emegokwue v. Okadigbo (1973) 4 SC 113, African Continental Seaways Ltd v. Nigerian Dredging Roads and General Works Ltd (1977) 5 SC 235, Woluchem v. Gudi (1981) 1 – 5 SC 291 and Sosanya v. Onadeko (2005) 8 NWLR (Pt. 926) 185. PER ADUMEIN, J.C.A.

WHETHER OR NOT A PARTY CAN APPROBATE AND REPROBATE ON THE SAME ISSUE AT THE SAME TIME

The law is that a party cannot approbate and reprobate in or with one and the same breath on an issue. A party must be consistent in his claim or defence. See Iliyasu Suberu v. The State (2010) 1 NWLR (Pt. 1176) 494 and Intercontinental Bank Ltd v. Brifina Ltd (2012) 13 NWLR (Pt. 1316) 1 at 22, per Maryam Alooma Mukhtar, JSC (as he then was later CJN). PER ADUMEIN, J.C.A.

THE POSITION OF LAW WHERE THERE IS A CLAIM FOR TRESPASS TO LAND WITH A RELIEF FOR INJUNCTION

The law is quite clear that in a claim for trespass to land, coupled with a relief for injunction, the legal implication is that the claimant has put the title of the parties in issue and the onus is on him to prove a better title to the land. See Abotoche Kponuglo v. Kodadja (1933) 2 WACA 24, Okorie v. Udom (1960) 5 FSC 162; (1960) SCNLR 326, Aromire v. Awoyemi (1972) 2 SC1, Ogunde v. Ojomu (1972) 4 SC 105, O. K. O. Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393, Joshua Ogunleye v. Babatayo Oni (1990) 2 NWLR (Pt. 135) 745, Akintola v. Alexander Amobi v. Pius Amobi (1996) 8 NWLR (Pt.469) 638, Sunmonu Olohunde v. Professor S. K. Adeyoju (2000) 10 NWLR (Pt. 676) 562 and Mr. Tajudeen Gbadamosi v. Julius Berger (Nig.) Ltd. (2021) 5 NWLR (Pt. 1770) 419.  PER ADUMEIN, J.C.A.

WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
By a very long line of judicial pronouncements, it has been settled that there are five methods or ways by which ownership of land can be proved and they are:
(i) by traditional evidence.
(ii) by production of documents of title.
(iii) by proving acts of ownership, numerous and positive enough to warrant an inference that the claimant is the true owner.
(iv) by proving acts of long possession and enjoyment of the land.
(v) by proof of possession of adjacent or connected land.
See for example, the cases ofD. O. Idundun & Ors v. Daniel Okumagba (1976) 9-10 SC 224, Sunday Piaro v. Chief Wonu Tenalo (1976) 12 SC 31, Roland Omorogie v. Oviamwonyi Idugie-mwanye (1985) 2 NWLR (Pt. 5) 41, Chief Samusideen Afolabi Ayorinde v. Chief Hassan Sogunro (2012) 11 NWLR (Pt. 1312) 460, Alhaji Lasisi Salisu & Anor v. Alhaji Abbas Mobolaji & Ors (2016) 15 NWLR (Pt. 1535) 242 and The Registered Trustees of Apostolic Church of Christ v. The Registered Trustees of Grace Church of Christ (2021) 16 NWLR (Pt.1801) 105.  PER ADUMEIN, J.C.A.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondents were the original claimants in Suit No. HCT/45/2008 which they instituted in the High Court of Ogun State, Aiyetoro Judicial Division, holden at Ilaro, wherein they claimed the following relief against one Jimmy Ajibola Alayande – the defendant in the trial Court:
“(a) A declaration that the Plaintiffs and other members of Salami Olorokun family of Otun Village are the persons entitled to the Statutory Right of Occupancy over and in respect of a parcel of land known as Olorokun family land situate, lying and being at Otun Village, via Akute, Ifo Local Government Area of Ogun State.
(b) A sum of N1,000,000.00 (One Million Naira) being damages for the Defendant’s willful and unlawful trespass on the destruction of the …
(c) Perpetual Injunction restraining the Defendant, his agents, servants and privies from further trespassing on the Plaintiffs, aforesaid land in any way or manner whatsoever.”

Jimmy Ajibola Alayande (the defendant) in the trial Court counter-claimed in his amendment of claimed state and counter-claim as follows:
“3) The Defendant counter-claimant claims from the Claimants general damage trespass on the land and special damages of N50,000,000.00 (Fifty Million Naira) for destruction of crops, economic tress, fish pond e.t.c. on the farmland as per paragraph 16 of the Statement of Defence.
4). Perpetual Injunction restraining the Claimants their heirs, agents, servants and privies from committing further act of trespass on the Defendants land subject matter of this suit.”

The respondents, as the claimants and defendants to the counter-claim, filed a notice of discontinuance and their case was struck out and the counterclaim was tried by the lower Court. On the 5th day of March, 2013 the trial Court delivered a reserved judgment on the counter-claim, and the counter-claim was dismissed with N60,000.00 (sixty thousand naira only) awarded as costs against the counterclaimant. This appeal is against that judgment.

The original appellant – Jimmy Ajibola Alayande died and was, by an order of this Court made on the 17th day of September, 2020, substituted with the present appellant – Mrs. Elizabeth Ajoke Alayande.

In the amended appellant’s brief filed on 30/09/2020 the following four issues were formulated for determination:
“(1) Whether the identity of the land over which the Appellant claims damages for trespass was in dispute. (Grounds 3 & 4 of the Notice of Appeal).
(2) Whether the learned trial judge was not wrong by failing to consider all the issues and evidence before the Court including damages for trespass and injunction and the Exhibits tendered by the Appellant. (Grounds 1, 2, 5 & 6 of the Notice of appeal).
(3) Whether the learned trial judge was not wrong when he held that the Respondents have proved titled to the land in dispute by their traditional history when their ancestor who they claimed found the land in dispute was not linked to the 3rd Respondent either in their pleading of evidence in support. (Ground 9 of the Notice of Appeal)
(4) Whether the learned trial Judge was not wrong when he held that there are rival claims to possession by both the Appellant and the Respondents when in fact the Respondents were never in possession in law but in trespass. (Ground 8 of the Notice of Appeal).”

The respondents filed a notice on 17/05/2016 contending that the judgment of the trial Court should be affirmed on the following grounds:
“GROUND ONE
1. Having regards to the evidence before the Court that the land in dispute had been acquired by the Ogun State Government even before the case was instituted the reliefs sought by the Appellant ought to be dismissed.
(a) There was evidence that the Ogun State Government acquired the land in dispute along with other parcels of land and the acquisition was published in the Ogun State Gazette tendered as Exhibit Q.
(b) The report of the Surveyor General of Ogun State confirming that the land in dispute had been acquired was also admitted as Exhibit q2.
(c) Whatever title the Appellant had has therefore become extinguished by the acquisition.
GROUND TWO
2. The evidence before the Court having shown that the root of the Appellant’s Certificate of Occupancy is at variance with the root of title he pleaded, his case ought to be dismissed.
PARTICULARS
(a) The Appellant instituted the case in respect of the land in dispute covered by his Certificate of Occupancy admitted as

Exhibit C.
(b) The appellant pleaded that he bought the land in dispute from Koleosho family.
(c) However, the purchase receipt with which the Appellant obtained the Certificate of Occupancy showed that the Appellant actually purchased the land in dispute from Talabi family and not Koleosho family.
(d) The root title pleaded is therefore at variance with the evidence on record.
GROUND THREE
(e) Having failed to prove the allegations of crime made against the Respondents beyond reasonable doubt, the claim for damages ought to be dismissed.
PARTICULARS
(A) The Appellant made several allegation of crime against the Respondents in his pleading and it was thereupon that he sought damages.
(B) The Appellant was however unable to prove the allegations beyond reasonable doubt.
(C) To succeed, allegations of crime must be proved beyond reasonable doubt even in civil proceedings.”

In their amended brief, filed on 24/02/2022 but deemed as filed on 28/02/2022, the respondents raised seven issues for determination thus:
“(1) Considering the fact that the Appellant failed to plead and lead evidence on how Koleosho family that he pleaded as his root of title became the owners of the land and the revelation that subsequently emerged at trial that it was one Talabi family that had no interest whatsoever in the land that actually sold the land to the appellant, whether the learned trial Judge was not right when he held that the Appellant did not prove his title. (Grounds 1 and 3).
2. In view of the fact that the agreement to sell dated 23/10/77 was not tendered in evidence as an exhibit, whether the learned trial judge was not right in discountenancing it in his judgment. (Ground 2).
3. Whether the learned trial Judge was not right when he held that the Appellant did not prove the identity of the land in dispute and consequently the exhibits he tendered are not relevant to his claims (Grounds 4 and 6).
4. Whether Exhibits B, F, G supported the case of the Appellant. (Ground 5)
ISSUES FORMULATED FROM THE RESPONDENTS’ NOTICE TO AFFIRM THE JUDGMENT ON OTHER GROUNDS.
5. Whether the claims of the Appellant ought not to fail having regards to the fact that the land in dispute had already been acquired by the Ogun State Government before he instituted his counter-claim. (Ground 1 of the Respondents’ notice)
6. Whether the case of the Appellant ought not to be dismissed in the light of the revelation that the Appellant actually bought the land in dispute from Talabi family and not Koleosho family which he pleaded as his root of title. (Ground 2 of the respondents’ Notice).
7. Whether the Appellant’s claim for damages ought not to be dismissed on the ground that the acts of trespass alleged against the Respondents were criminal in nature but were not proved as required by law. (Ground 3 of the Respondents’ Notice).

Upon a proper examination of the appellant’s notice of appeal, I am of the view that issues 1 to 4 framed by the respondents more appropriately cover the essence of the appellant’s complaints encapsulated in his (her) notice of appeal. I hereby adopt issues 1 – 4 in the amended respondents’ brief, and which issues adequately cover Issues 1 – 4 identified by the appellant, to determine this appeal. I will treat issue 3 first and, thereafter, issues 1, 2, and 4 will be treated together.
“Whether or not the trial Court was right in holding that the appellant did not prove the identity of the land in dispute.”

On this issue, M. O. Abudu, Esq., learned counsel for the appellant, submitted that “the identity of the land litigated upon is not in dispute and the identity is well known to the parties”. Counsel argued that:
“It is very clear on the state of the pleadings and the evidence before the trial Court that both the Appellants and their witnesses know the land in dispute. The same land had been litigated upon in HCT/273/99. In point of fact the present Respondents filed an application to join as a party to Suit HCT/273/99, which application for joinder was dismissed. My Lords, the main issue on the state of pleadings was whether or not it was the Respondents who own the land and were in possession of the land in dispute or it was the Appellant, and whether it was the Appellant who was in possession of the land or the Respondents. As to identity of the land, upon which the trespass was committed this was not in dispute.”

Relying on the cases of John Ogbu v. Best Wokoma (2005) 14 NWLR (Pt. 944) 118 and Osho v. Ape (1998) 8 NWLR (Pt. 562) 492, the learned counsel for the appellant emphasized that in a land case, where the area of land is well known to both sides, the issue of proof of identity of the land would not arise.

In response, Abraham Adeoye, Esq., learned counsel for the respondents argued that the land in dispute in Suit No. HCT/273/99 was 90.70 acres of land while the original appellant “himself testified in this case on 5th July, 2011 and said the land in dispute in this case is 12 acres”. He referred to the appellant’s evidence on page 121 of the record of appeal and exhibits “C” and “K”.

Counsel contended that the parties actually joined issues on the identity of the land in dispute.

The parties fought their case in the trial Court on the basis of their pleadings. The law is settled that, in a case contested on pleadings, the Court has a duty to confine itself to the evidence on the facts which have been pleaded. See George v. Dominio Flour Mills (1963) 1 SCNLR 117, Emegokwue v. Okadigbo (1973) 4 SC 113, African Continental Seaways Ltd v. Nigerian Dredging Roads and General Works Ltd (1977) 5 SC 235, Woluchem v. Gudi (1981) 1 – 5 SC 291 and Sosanya v. Onadeko (2005) 8 NWLR (Pt. 926) 185.

With particular reference to a land case, it has been held by this Court and the Supreme Court that before the identity of land in dispute can become an issue, there must have been a denial of knowledge of the location of the land in the pleadings – statement of defence or defence to counterclaim. See the cases of Adenle v. Olude (2002) 18 NWLR (Pt. 799) 413 and Ogunyanwo v. Oluwole (2006) 16 NWLR (Pt. 1167) 391.

In paragraphs 2, 3, 6 and 7 of his amended statement of defence, the counterclaimant averred as follows:
“2. This suit is a fall–out of the Claimants’ application for joinder in Suit No. HCT/273/99 which was dismissed by this Court on the 24th January, 2005 by the Honourable Court and which Certified True Copy of proceedings is hereby pleaded.
3. The Claimants had in the said suit admitted that the Defendant is the owner of the landed property forming the subject matter on this suit by reason of the Memorandum of Understanding dated the 7th April, 2004 which is hereby pleaded.”
6. The land the subject matter of this suit belongs to the Defendant by purchase from the Koleosho family and contained in the perimeter survey drawn by one B. Benjamin, licensed surveyor dated on 28/8/1919 copy of which was filed in an earlier similar suit and which is hereby pleaded.
7. The Koleosho family land including the Defendant’s portion is covered by Survey Plan No. ASH/268/76 drawn by L. Ademola Ashipa, Licensed Surveyor and dated 30th March, 1976. The Survey Plan is hereby pleaded.”

The respondents’ amended statement of defence to counter-claim spans pages 133 to 144 of the record of appeal. In all the averments in their 58-paragraph further amended statement of defence to counter-claim, the respondents did not make any issue about the identity of the land, save to purportedly plead in paragraphs 13 and 14 thereof as follows:
“13. With reference to paragraph 4, 5, 6 and 15 of the Claim, the land in dispute was never at any time the property of Koleosho family and the claim of the Counter-Claimant that same was sold to him by Koleosho family is false and misleading and intended to mislead this Honourable Court; the Defendants put the Counter-Claimant to the strictest proof of his averments thereof.
14. In addition to paragraph 13 above, the two survey plans referred to in paragraphs 6 and 7 of the claim are not relevant to the land in dispute as they do not reflect its identity, location and dimension. A proper reflection and description of the land in dispute is shown in Survey Plan No. AKN/OG/011A/LD/2004, drawn by S.O. Akinde, Surveyor and dated 27/09/04 upon which the Defendants shall rely at the trial hereof.”

However, the respondents proceeded to aver in paragraphs 49 to 52 of their further amended pleadings thus:
“49. The Defendants state that the counter-claimant is a mere trespasser and has no right or interest on the land in dispute and the assertion of the counter-claimant that the land covered by Certificate of Occupancy No. 23369 dated 14th of January, 1998 was sold to him by Koleosho family is false and misleading; the land in dispute is in Otun, Ifo Local Government Area of Ogun State and formed part of the res of Suit No. HCT/273/99. A copy of the Amended Statement of Claim filed in the case is hereby pleaded.
50. The Defendants deny liability to the counter-claimant for the sum being claimed and urge the Court to dismiss the counter-claim as same is frivolous and a gold-digging exercise.
51. In addition to the foregoing, the Defendants instructed their counsel to inquired at the Bureau of Lands and Survey in Abeokuta whether the land in dispute shown in Certificate of Occupancy No. 23369 dated 14th of January, 1998 registered as No. 71 page 71 in Volume 553 of the Lands Registry in the office in Abeokuta falls in or out of the acquisition made by the Ogun State in 1998.
52. After a charting of the land in dispute, it was confirmed by a letter dated 26th of March, 2010 that the land in dispute falls within and is part of the vast expanse of land covering several villages acquired by the Ogun State Government and known as AGBADO GLOBAL ACQUISITION published in the Ogun State Gazettes No. 5, Volume 23 of 29th January, 1998, No. 27. Volume 24 of 8th July, 1999 and No. 3, Volume 17 of 16th January, 1992.”

By the above pleadings, which are later in time than the pleadings in their paragraphs 13 and 14, the respondents clearly demonstrated that they knew the land upon which the appellant/counter-claimant rested his counter-claim. The trial Court, therefore, erred in basing its decision on the respondents’ pleadings in paragraphs 13 and 14 of their further amended statement of defence to counterclaim when it held, inter alia, on page 351 of the record that:
“The Defendants to the Counter Claim has (sic) put the identity of the land in this case in issue this it has become necessary for the Claimant to state precisely the land he is claiming.”

By the respondents’ pleadings in paragraphs 13 and 14 of their further amended statement of defence to counter-claim they merely asserted that the survey plans referred to by the counter-claimant did not reflect the identity, location and dimension of the land in dispute and not that they (the respondents) did not know the identity and location of the land in dispute. Assuming that by their said pleadings the respondents could be said to have averred that they did not know the identity of the land in dispute or its location, then their pleadings in paragraphs 49 to 52 of the same further amended statement of defence to counter-claim prove the complete opposite thereof.

The law is that a party cannot approbate and reprobate in or with one and the same breath on an issue. A party must be consistent in his claim or defence. See Iliyasu Suberu v. The State (2010) 1 NWLR (Pt. 1176) 494 and Intercontinental Bank Ltd v. Brifina Ltd (2012) 13 NWLR (Pt. 1316) 1 at 22, per Maryam Alooma Mukhtar, JSC (as he then was later CJN).

To say the least, even the witnesses for the respondents – DW1, DW2 and DW3 testified in the trial Court that they knew the land in dispute.

I agree with the appellant’s counsel that the identity of the land litigated upon was not in dispute and “the identity is well known to the parties.”

Without more, I resolve this issue in favour of the appellant and against the respondents.

ISSUE 1, 2 & 4
Issues 1, 2 and 4 formulated by the respondents, which are the appellant’s issues 2, 3 and 4, can be condensed into a single issue as follows:
Whether or not the appellant, as counter-claimant, was able to prove his counter-claim having regard to the pleadings and evidence on record.

The arguments of the learned counsel for the appellant on this live issue are from pages 9 to 28 of the amended appellant’s brief and the summary of the arguments are in paragraphs 2 to 5 of the appellant’s conclusion, namely:
“2. The Respondents did not prove a better title to the land in dispute.
3. That the Appellant have proved with sufficient evidence that he was in exclusive possession and therefore entitled to the reliefs claimed.
4. The Respondents were never in possession of the land in dispute.
5. Vital Exhibits E, F and G admitted by the trial Judge which would have supported the case of the Appellant were never considered at all and failure to consider those exhibits had occasioned a miscarriage of justice to the case of the Appellant. If the learned trial Judge had considered those exhibits he would not have dismissed the case of the Appellant.”

On the other side, the submissions of the learned counsel for the respondents, on this issue, are on pages 6 to 20 and 26 to 28 of the amended respondents’ brief. The summary the respondents’ arguments are that:
“1. The appellant’s “claims damages and injunction could not have been determined (the appellant) having failed to prove his title”.
2. The appellant ”cannot discharge the burden laid on him by law by merely proving possession and that all those acts he even regarded as acts of possession are actually acts of trespass”.
3. This Court cannot accede to the appellant’s request to assess and give probate value to the agreement to sell dated 23rd October, 1997 “ because”.
The document in question is not part of the evidence in this case and it will amount to rewarding the Appellant with good for disregarding the order of the lower Court if his request is granted. Secondly, the document in question is not part of the exhibit, transmitted to this Court, there is therefore nothing before this Court to consider or pronounce upon. Thirdly, by refusing to tender it for admission as an exhibit, the Appellant denied the Respondents the opportunity of cross-examining him on it as it was not before the Court when the Appellant was cross-examined on 25th May, 2011 and 5th July, 2011. The Respondents will therefore be prejudiced if the request of the appellant is granted”.
4. “Appeals are currently pending before this Honourable Court thereon and it is the decision of this Court in those two cross-appeals that will determine whether Exhibits F and G were even admissible in the first instance”.
5. “The other document the Appellant complained the lower Court did not consider is Exhibit ‘B’ which is ruling delivered in another case i.e. Suit No: HCT/273/99. The Appellant is arguing in this appeal that the ruling in question (Exhibit B) has determined the issue of ownership and shows that the Appellant is the owner of the land in dispute and that the Respondents are trespassers thereon”.
6. “We however submit that the argument of the Appellant is grossly incorrect and misleading. The first point we want to quickly make is that the Respondents herein were not parties to Suit No: HCT/273/99 in which the ruling in question (Exhibit ‘B’) was delivered and as such they are not bound by the pronouncement of the Court in that case in which they were not parties”.
7. “Secondly, as stated in paragraph 10.8 above, the subject matter of Suit No. HCT/273/99 in which Exhibit B was delivered is different from the subject matter of this case. As such, the ruling (Exhibit B) delivered in that suit cannot constituted an estoppel against the Respondents herein.
8. Also, Exhibit B is a ruling delivered in an application brought by the Respondents to join Suit No. HCT/273/99 as co-defendants which the Court however refused Exhibit B is not a final decision that can constitute res judicata and even the case itself, Suit No. HCT/273/99, was later struck out when it was abandoned by the parties thereto.
9. Fourth, the ruling (Exhibit B) was predicated on Exhibits ‘F’ and ‘G’ which was just said are subject matter of the lending cross-appeals. Relying on Exhibit B would invariably mean reliance on Exhibit F & G which however are subject to the pending cross-appeals in which the Respondents are contending that the two exhibits were made without prejudice and ought not to have been admitted in the first instance.
10. Fifth, Exhibit ‘b’ was an interlocutory ruling on affidavit evidence not tested by cross-examination at trial and the sole issue decided therein was whether the Respondents were necessary parties to Suit No. HCT/273/99 or not Exhibit ‘B’ cannot therefore override the facts adduced at trial in this case or the findings of facts made thereon in the judgment.”

I have read the totality of the arguments of the parties and the legal authorities they cited on this issue.

The law is quite clear that in a claim for trespass to land, coupled with a relief for injunction, the legal implication is that the claimant has put the title of the parties in issue and the onus is on him to prove a better title to the land. See Abotoche Kponuglo v. Kodadja (1933) 2 WACA 24, Okorie v. Udom (1960) 5 FSC 162; (1960) SCNLR 326, Aromire v. Awoyemi (1972) 2 SC1, Ogunde v. Ojomu (1972) 4 SC 105, O. K. O. Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393, Joshua Ogunleye v. Babatayo Oni (1990) 2 NWLR (Pt. 135) 745, Akintola v. Alexander Amobi v. Pius Amobi (1996) 8 NWLR (Pt.469) 638, Sunmonu Olohunde v. Professor S. K. Adeyoju (2000) 10 NWLR (Pt. 676) 562 and Mr. Tajudeen Gbadamosi v. Julius Berger (Nig.) Ltd. (2021) 5 NWLR (Pt. 1770) 419.

By a very long line of judicial pronouncements, it has been settled that there are five methods or ways by which ownership of land can be proved and they are:
(i) by traditional evidence.
(ii) by production of documents of title.
(iii) by proving acts of ownership, numerous and positive enough to warrant an inference that the claimant is the true owner.
(iv) by proving acts of long possession and enjoyment of the land.
(v) by proof of possession of adjacent or connected land.
See for example, the cases ofD. O. Idundun & Ors v. Daniel Okumagba (1976) 9-10 SC 224, Sunday Piaro v. Chief Wonu Tenalo (1976) 12 SC 31, Roland Omorogie v. Oviamwonyi Idugie-mwanye (1985) 2 NWLR (Pt. 5) 41, Chief Samusideen Afolabi Ayorinde v. Chief Hassan Sogunro (2012) 11 NWLR (Pt. 1312) 460, Alhaji Lasisi Salisu & Anor v. Alhaji Abbas Mobolaji & Ors (2016) 15 NWLR (Pt. 1535) 242 and The Registered Trustees of Apostolic Church of Christ v. The Registered Trustees of Grace Church of Christ (2021) 16 NWLR (Pt.1801) 105.

In its judgment, the trial Court dismissed the counter-claimant’s case on the sole ground that he “failed to clearly describe the identity of the land in dispute” and this is evident from the trial Court’s conclusion on page 352 of the record of appeal and which is hereby reproduced:
“Having failed to clearly describe the identity of the land in dispute all other exhibits tendered by the Counter-Claimant in this case becomes irrelevant as the foundation on which they stand has been swept away. The contradiction in the description of land the identity of the land presented by the Counter Claimant are such as to cast serious doubt on his case. I therefore found against the Counter Claimant on issue one.
The second issue for consideration is whether the Counter Claimant is entitled to the reliefs sought –
As stated earlier on the claim for trespass and perpetual injunction puts the issue of title of the Counter Claimant in issue, having found on the 1st issue for consideration against the Counter-Claimant, it is obvious that the Counter-Claimant is not entitled to the reliefs damages for trespass and perpetual injunction, it will also not be necessary for me to consider whether or not the land was validly acquired by the Ogun State Government.
I therefore hold that the claim of the Counter-Claimant fails, the Counter-Claim is hereby dismissed.”

The counter-claimant gave copious evidence of how he purchased the land in dispute from Koleosho family in the 1970s and paid for it “bit by bit as he was getting money in the 70s”; how he took possession of land and surveyed same, “made a concrete wall fence round the land and carried on farming of crops of (sic) economic trees, fish pond and grazing field with his workers and cattle herdsmen on the fenced land, in addition to this, he carried out extensive development of the land, erecting thereon buildings in which his staff and self resided” – see pages 334 – 335 of the record of appeal. The trial Court further found, on pages 335 of the record, as follows:
“… and he remained in peaceful possession of the land until the Defendants to Counter-Claim commence unwarranted, interruption with thugs vit-et-arms, that the same land was the subject of certificate of Occupancy No 23369 dated 14th day of January, 1998 and registered as No 71 page 71 in vol. 553 of the Lands Registry in their office at Abeokuta admitted as Exhibit ‘C’ in his favour annexed to which was the Survey Plan of the land.”

The trial Court also found that the counter-claimant’s witness– Dr. Makinde Abiodun “a veterinary medical practitioner” gave unchallenged evidence that “his services were secured by the counter-claimant to take care of his poultry animal farm… in the years between 2003 – 2006, that the poultry is on a very large acres of land fenced with two gates, that there are various specimen of animals such as cattle’s, various sizes of hens and hatched eggs for sales, he took medical care of about 40 (forty) matured cows and each one of them at the time cost between forty thousand naira (N40,000.00) to sixty thousand naira (N60,000.00) that his service charge for taking care of the Cows was N30,000.00 (thirty thousand naira) monthly apart from the money to buy drugs and injections for the animal care, he further stated that the Defendants to the Counter-Claim forcefully entered into the farm, they destroyed the two gates thereby exposing the animals to dangers, this made the Counter Claimant to move about 20 twenty (20) Cows to his place along Ray Power Road for rearing but because his place was not conducive to the animals, they became uncomfortable and they all died one after the other, they the farm was in layers of various cash product such as palm trees, oranges, mango trees, tangerine, very large fish pond and a large expense of palm trees, this made the area to be known and called “Oko Ope” i.e Palm Tree Estate till today, all these show that the Counter Claimant had been on the land for a very long time, that the farm had been propagated into maturity before the Defendants to the Counter Claim forcefully entered the place with thugs, that as a medical practitioner he had collected well over one million as his professional fees for a period spanning three years that he managed the farm.”

Another aspect of the judgment of the trial Court, which has not been appealed against, is on page 336 of the record and it is as follows:
“The witness tendered the following document:
1. Purchase Receipts – Exhibits ‘A’ – ‘A3
2. Ruling in suit No. HCT/273/99 – Exhibit B
3. Certificate of Occupancy No 2336 marked as – Exhibit
4. Receipts for payment of Ground Rent – Exhibit D1 – D6
5. Receipt dated 9th December, 1985 – Exhibit E
6. Memo of understanding dated 7th April, 2004 – Exhibit F
7. Family undertaking – Exhibit G
8. Survey plan dated May 1919 – Rejected Exhibit A
9. Revenue Receipt – Exhibit H (Ground rent 2011)
10. Certified True Copy of National Libib of Nigeria – Newspaper cutting Exhibit J.”

On behalf of the respondents, one Madam Fausat Koleosho testified, inter alia, that “her family did not sell the land in dispute to the counter-claimant”. One Mr. Yomi Akinduro also testified on behalf of the respondents and he stated, amongst things that “it is possible that the Koleosho family sold the land in dispute to the counterclaimant”.

It should be noted that the 1st respondent, then the 1st defendant to the counter-claim – Mr. Shittu Banjoko testified, inter alia, that:
“ … their recent enquires at the bureau of lands and survey in Abeokuta confirms that the land in dispute falls within and is part of the vast expanse of land covering several villages acquired by the Ogun State Government in 1998 in what is termed AGBADO GLOBAL ACQUISITION Published in Ogun State Gazettees No. 5, vol 23 of 29th January 1998 No. 27, vol 24 of 8th July, 1999 and No. 3 vol 17 of 16th January, 1992, that by virtue of the foregoing, the counter-claimant has no locus standi to institute this counter-claim.”

All the above findings I have reproduced in this judgment are quotations, paraphrases or summaries from the judgment of the trial Court.

As stated earlier, the trial Court, save the issue of identity of the land in dispute, failed to make findings on the counter-claimant’s claim of possession and various acts of ownership over the land in dispute.

I have carefully examined the evidence of the parties and the exhibits before the trial Court and it is very clear that the counter-claimant tendered commanding and preponderant evidence of sundry acts of ownership, possession and enjoyment of the land in dispute, which are long, numerous and sufficient enough to warrant a very reasonable inference that he was indeed the owner of the disputed land. The counter-claimant tendered his purchase receipts, receipts of payment of ground rent, and certificate of occupancy which conclusively proved his superior title to the land in dispute over the spurious and untenable claim of the respondents.

If the respondents were genuinely or truly convinced or sure that the land in dispute had been acquired by the Ogun State Government, they (the respondents) ought to or would have applied for the joinder of Ogun State Government as a defendant to the counter-claim. There is nothing on record that the Ogun State Government had appointed the respondents as its attorneys to defend the counterclaimant’s action.

“Trespass” is defined as “An unlawful act committed against the person or property of another; especially wrongful entry on another’s real property” – Black’s Law Dictionary, Deluxe Ninth Edition, page 1642.

The counter-claimant pleaded and proved that the respondents committed various acts of trespass on his land, including “unwarranted interruption” of his peaceful possession of the land “with thugs vit et armis”.

On the claim for special damages, the counter-claimant pleaded in paragraphs 18 and 19 of his amended statement of defence and counter-claim as follows:
“18. The Defendant in the course of developing the land built and nursed the land and incurred the following:
i. Cost of acquisition of nursery shoots of 1,000 “terena” breed at N200.00
ii. Clearing and Land preparation – 800.00
iii. Five (5) years nurturing of Plantation trees (popularly known in the area as Oko – Ope) to maturity and harvest – 9,000,000.00
iv. Clearing and land preparation for citrus trees acquisition of young plants and seven (7) years nurturing to maturity and harvest – 5,000,000.00
v. Acquisition of nursery shoots of Coconut Trees. Seven (7) years nurturing to maturity and harvest – 1,000,000.00
vi. Clearing and land preparation and nurturing of Plantain and banana trees to maturity and harvest – 1,000,000.00
vii. Cost of construction and erection of 6ft high cement block fence to enclose 9.72 acres of land – 25,000,000.00
viii. Cost and installation of gates for agricultural tractors and implements and farm workers – 1,000,000.00
ix. Cost of sinking and upkeep of borehole for water provision – 2,000,000.00
x. Cost of digging, construction and upkeep of fish pond – 2,000,000.00
TOTAL – 50,000,000.00
19. The claimants have by their acts of trespass caused the said plantation to be destroyed without Defendant’s permission or authority and are therefore liable in damages to Defendant for the act of trespass.”

The counter-claimant proceeded to give unchallenged evidence on oath as follows:
“16. That in the course of developing the land building and nursing the land, I incurred the following:
i. Cost of acquisition of nursery shoots of 1,000 “terena” breed at N200.00
ii. Clearing and Land preparation 800.00
iii. Five (5) years nurturing of Plantation trees (popularly known in the area as Oko – Ope) to maturity and harvest – 9,000,000.00
iv. Clearing and land preparation for citrus trees acquisition of young plants and seven (7) years nurturing to maturity and harvest – 5,000,000.00
v. Acquisition of nursery shoots of Coconut Trees. Seven (7) years nurturing to maturity and harvest – 1,000,000.00
vi. Clearing and land preparation and nurturing of Plantain and banana trees to maturity and harvest- 1,000,000.00
vii. Cost of construction and erection of 6ft high cement block fence to enclose 9.72 acres of land- 25,000,000.00
viii. Cost and installation of gates for agricultural tractors and implements and farm workers – 1,000,000.00
ix. Cost of sinking and upkeep of borehole for water provision – 2,000,000.00
x. Cost of digging, construction and upkeep of fish pond – 2,000,000.00
TOTAL – 50,000,000.00
16. The claimants have by their acts of trespass caused the said plantation to be destroyed without Defendant’s permission or authority and are therefore liable in damages to Defendant for the act of trespass.”

The counter-claimant/appellant proved the claims for trespass and special damages as required by law. He was also entitled to the general damages claimed.

Without further ado, this live issue is hereby resolved in favour of the appellant against the respondents.

RESPONDENTS’ NOTICE
My decisions on the live issues on the appellant’s appeal have disposed off all the issues arising in the respondents’ notice. I will only add that whether or not the evidence on record shows that the counter-claimant bought the land in dispute from Talabi family instead of Koleosho family is not enough reason to discountenance the preponderance of evidence that the counterclaimant successfully proved sundry acts of enjoyment, ownership and possession of the land to warrant the inference that the counterclaimant actually owned the land.

Also, the claim for trespass was proved by the counterclaimant as required by law.

The respondents’ notice is hereby dismissed, as it is bereft of any merit.

CONCLUSION
In conclusion, this appeal is allowed for being very meritorious.

The judgment of the trial Court delivered on the 5th day of March, 2013 in Suit No. HCT/45/2008 between: JIMMY AJIBOLA ALAYANDE (counter-claimant) v. CHIEF SHITTU BANJOKO & 2 ORS (Defendants to counter-claim) is hereby set aside.

In place of the decision of the trial Court dismissing the counter-claim, the counter-claim is granted as prayed by the counter-claimant/appellant.

The sum of N100,000.00 (One Hundred Thousand Naira only) is hereby awarded as costs in favour of the appellant and against the respondents.

BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the judgment delivered by my learned brother, Adumein, JCA. I am in full agreement with the lucid reasonings expressed therein and the conclusion thereby reached. I adopt those reasonings as mine, by which I too find merit in this appeal.

By way of emphasis only, I shall briefly add a few words on what clearly appears be a perverse finding by the trial Court resulting in its dismissal of the Appellant’s counter-claim. It is very clear that by its unfounded, inordinate treatment and findings on its issue of identity of the land in dispute, when the relevant pleadings of the parties submitted no such dispute specifically, the trial Court, with respects, slided off track and in reality created a dispute, as it were, and proceeded on that unsolicited, erroneous line to reach its perverse finding that formed the basis for its dismissal of the Appellant’s counter-claim. The germane pleadings of the parties, more particularly the Respondents’ neither made the identity of the land in issue a point of specific dispute nor is it reasonably deducible from those facts.

In his leading judgment, my noble lord has gone to great lengths to reproduce in verbatim the clear, relevant pleadings of the parties. By no stretch of imagination can a dispute on identity of the land in issue be rationality inferred therefrom. Aside from the legal gymnastics by the Respondents, both sides knew exactly and specifically the land that was the bone of contention between them. It was also the recurring theme in their pleadings. In this situation, the trial Court therefore erred in its findings against the Appellant on the identity of the land in dispute. Identity of land does not mean arithmetical or geographical exactitude. It is sufficient if the parties know and have no misapprehension of the particular land in dispute. See Atanda vs. Iliasu (2012) LPELR- 19662 (SC), Akinterinwa & Anor vs. Oladunjoye (2000) LPELR-358(SC), Fatunde vs. Onwoamanam (1990) LPELR- 1253 (SC).

What is equally, if not more worrisome, is the trial Court’s unexplained silence on the evidence of the Appellant at the trial. In it, documentary and oral evidence was laboriously and abundantly led in proof of the Appellant’s root of title. There was no significant rebuttal by the Respondents. Yet, the trial Court simply ignored these without a single pronouncement. This is not only a miscarriage of justice but a failure to discharge statutory responsibility by the trial Court. See Nyati Anor vs. Galadima (2015) LPELR- 25693 (CA). From the state of the Appellant’s evidence in that regard, if considered, the decision would have obviously resulted differently in her favour. In a somewhat anticlimax however, the trial Court somersaulted into a completely illogical, unsupportive conclusion on the unfounded issue of identity of land.

It is the duty of the trial Court to pronounce on all material pleadings and evidence before it in its judgment. Short of it easily results in miscarriage of justice as has now happened in this case. See Onwe & Ors vs. Nwaogbuinaya & Ors (2001) LPELR-2709 (SC), Ito & Ors vs. Ekpe & Ors (2000) LPELR- 1561 (SC).

I therefore join my learned brother in the leading judgment in allowing the appeal and setting aside the judgment of the trial Court.

I abide by the order on cost.

KENNETH IKECHUKWU AMADI, J.C.A.: I had the privilege of reading the draft copy in advance of the lead judgment just read and delivered by my learned brother, Moore Aseimo Abraham Adumein JCA. I agree with the reasons given therein and the conclusion reached. I allow this appeal and grant the counter-claims of the counter-claimant. I abide by the order as to cost.

Appearances:

M. O. Abudu, Esq. For Appellant(s)

Abraham Adeoye, Esq. For Respondent(s)