AMUSA OGUNSOLA AKINBODE & ANOR v. ALIMI ADEDIRAN & ORS
(2015)LCN/7865(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of May, 2015
CA/I/92/2008
RATIO
TORT: TRESPASS TO LAND; THE MEANING OF TRESPASS TO LAND AND WHAT THE PLAINTIFF NEEDS TO ESTABLISH TO SUCCEED IN A CLAIM FOR TRESPASS
Trespass to land is an unjustified interference or invasion by another person on the land in possession of Plaintiff. See: Gbemisola v. Bolarinwa (2014) 9 NWLR (Pt.1411) 1 at 26 and Chukwu v. Akinpelu (2014) 13 NWLR (Pt.1424) 359 at 381. In a claim for trespass to land all that the plaintiff needs to establish to succeed is that he is either in exclusive possession or has the right to such exclusive possession of the land in dispute. See Garan v. Olomu (2013) 4 SCNJ 47 at 70. per. JAMES SHEHU ABIRIYI, J.C.A.
PRACTICE AND PROCEDURE: CLAIM FOR TRESPASS AND INJUNCTION; WHETHER TITLE TO LAND WILL BE PUT IN ISSUE AND NEED NOT BE SPECIFICALLY PLEADED WHERE THE CLAIM IS FOR TRESPASS AND INJUNCTION
However where the claim is for trespass and injunction as in the instant case title to the land is automatically put in issue and needs not be specifically pleaded. See Adeyefa v. Bamgboye (2014) 11 NWLR (Pt.1419) 520 at 546 and Onovo v. Mba (2014) 14 NWLR (Pt 1427) 391 at 421. per. JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
SONTOYE DENTON-WEST Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. AMUSA OGUNSOLA AKINBODE
2. RAMONI AKINBODE
(For themselves and on behalf of Members of Akinbode Family of Akinbode Village, Ede) Appellant(s)
AND
1. ALIMI ADEDIRAN
2. WAHAB ADEKALE
3. SAKA ADEKALE
4. GANIYU ADEKALE
(For themselves and on behalf of Members of Adeyoola family of Logun Village of Ede) Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State delivered on 30th March, 2006 at Ede, Ede judicial Division.
The Appellants were the Plaintiffs at the Lower Court. The Respondents were the Defendants.
The claim of the Appellants against the Respondents at the Lower Court was for the following:
(a) N2.0 Million as special and general damages against the Defendants (sic) for the trespass committed by the Defendants on the land lying and being at Oniyanrin Village, Ede and which land had been in possession of the Plaintiffs and bounded by (i) Lasisi Asunmo’s farm, (ii) Sule Atanda Bababanla, (iii) Labiyi and (iv) Logun Alimi.
(b) Injunction Restraining the Defendants by themselves, their servants, agents, privies and whosoever from further trespassing unto the land in dispute.
According to the Appellants, the land in dispute is at Oniyanrin in Logun village. About 40 – 50 years ago, Oba Toyese Laoye Timi of Ede gave Logun Safiriyu consent to grant the land to the Appellants. In 1983, the 1st Respondent trespassed into the land and he was reported to the Timi at that time. On 4/4/2002, the 2nd – 4h Respondents trespassed into the land and cut teak trees from it. When they were challenged, they claimed ownership of the land. The Appellants then reported the Respondents to the police. The Respondents were subsequently taken to the Magistrate Court.
The case of the Respondents according to the 1st Respondent is as follows: The Respondents’ land is called Olokun Ogunbunmi. The first Logun gave the land to the Respondents and Timi Akangbe was, the reigning Timi then. Logun Safiriyu gave the Appellants their land.
Sometimes in 2002, the Respondents reported to the 1st Respondent (head chief of Logun village) that 1st Appellant cut teak trees from their land. 1st Respondent stated that the teak trees cut on 4th April, 2002 by the Respondents were cut on their land.
According to the 1st Respondent the Appellants instituted an action against him because they knew he would tell the truth.
After hearing evidence adduced on both sides and considering addresses of learned counsel for both parties, the Lower Court dismissed the claim of the Appellants. Dissatisfied, the Appellants have approached this court. They filed a notice of appeal containing eight grounds of appeal.
The following issues have been presented by the Appellants for determination:
1. Whether the identity and dimension of the land in dispute were not established by the plaintiff in this case.
2. Whether the trial judge could abandonee (sic) the evidence of the plaintiff and use the contradicted evidence of the defendants to dismiss the plaintiff’s case when there are abundant evidence to sustain the claim of the plaintiff.
3. Whether ascription of different names to the same land would adversely affect the identify of the land in dispute.
4. Whether the failure of the plaintiff to file survey plan is fatal to the case of the plaintiff in the circumstance of this case.
On the other hand, the Respondents submitted the following issues for determination:
i. Whether the plaintiffs discharged the onus of proof expected of them in proof of their case.
ii. Whether the Plaintiffs established the identity of the land, they are claiming with certainty in accordance with the law.
On 4th March, 2015 when the appeal came up for hearing the Respondents were not in court and were not represented. K. O. Ijatuyi learned counsel for the Appellants adopted the brief of the Appellants and the Respondents brief was deemed argued as provided by the Rules of this court.
On issue 1, learned counsel for the Appellants submitted that the Appellants established the identity and dimension of the land in dispute and the Lower Court erred when it concluded that the dimension and identity of the land in dispute are not known.
It was submitted that the dimension of the land was pleaded as hectares and PW5 gave evidence that the land in dispute measured 25 acres which equals to 10 hectares. The averments of the dimension and the evidence of PW5, it was submitted were not contradicted in the pleadings of the Respondents or evidence and are therefore deemed admitted and the evidence remains unchallenged. We were referred to: Baba-Iya v. Sikeli (2005) ALL FWLR (Pt 289) 1230, N.B.A. v. Iteogu (2006) ALL FWLR (Pt.333) 1662, NBA v. Fabour (2006) ALL FWLR (Pt 333) 1739, Nigerchin Industries Ltd v. Oladehin (2006) ALL FWLR (Pt.327) 557 and Santi v. Bagobiri (2006) ALL FWLR (Pt.292) 100.
On issue 2, it was contended that the Lower Court did not consider the strength of the Appellants’ case at all in its judgment but only relied on the evidence of Respondents’ witnesses before coming to the conclusion to dismiss the Appellants’ claim. The Lower Court, it was submitted, referred to the land in dispute as Papa – Olokun when issues were not joined on Papa-Olokun, it was submitted.
It was contended that although the Respondents laid emphasis on the fact that the land in dispute is Papa-Olokun, they admitted under cross-examination that the land in dispute is at Oniyanrin.
On issue 3, it was submitted that the ascription of different names to the same land will not adversely affect the identity of the land. This is moreso when the boundary-men were admitted, it was argued and DW2 – DW3 and DW5 admitted that the Appellants have land at Oniyanrin as against their claim in the statement of defence that the Appellants have no land at all.
On issue 4, it was submitted that the filing of a survey plan is not a sine qua non in all land cases. The survey plan, it was submitted, is just a guide. If a surveyor could with adequate description draw an accurate map, then a survey plan may not be necessary. We were referred to: Oshodi & Ors v. Eyifunmi & Anor (2000) Dikeocha v. Dike (2006) ALL FWLR (Pt.315) 185, Bajoden & Anor v. Iromwanimu (1995), 9 SCNJ 205, Bunyan & Ors v. Akingboye & Ors (1999) 5 SCNJ 25, Awoyoolu v. Aro (2006) ALL FWLR (Pt.308) 1319 SC and Ilona v. Idakwo (2003) FWLR (Pt.17) 1715 SC.
It was submitted that from the averments in the statement of claim and the reply and the evidence of PW5 on the dimensions and boundary men that are deemed admitted, an accurate survey plan can be drawn. The Lower Court, it was submitted, was wrong to have held that the dimension of the land was not known.
The Respondents on their part submitted that the Respondents pleaded and led evidence to the effect that they were granted title to their land before the Appellants but that the Appellant did not react to this defence. It was submitted that where two rival parties to land in dispute are claiming through the same source, the first in time prevails. We were referred to Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 245, Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511 and Bassey v. Fajebe (1990) 6 NWLR (Pt.155) 172.
Evidence of PW1, it was submitted, supported the case of the Respondents. Evidence of PW5 it was submitted, also supported the case of the Respondents.
Respondents witnesses, DW1-3, it was submitted, gave uncontradicted evidence of priority of grant of their land before that of the Appellants.
Respondents, it was again argued, pleaded and proved that their father was granted their land earlier in time by Oba Timi Akangbe and Loogun Ogunbunmi who reigned before Timi Laoye and Loogun Safiriyu. They also proved that they are customary tenants of the Oba of Ede (Timi) and that this evidence was confirmed by PW1. That the evidence of the Defendants that they are customary tenants of the Timi is unchallenged and is also supported by evidence of PW1.
From the foregoing, it was submitted, the Appellants cannot claim a better title to the land the Respondents are claiming to be their land as customary tenants and they hold their land in perpetuity and until an order of forfeiture is made the customary tenants right subsists and the landlord has no right to grant the land to another person. We were referred to:
Akinlagun v. Oshoboja (2006) ALL FWLR (Pt.325) 53 and Ogundipe v. Adenuga (2006) ALL FWLR (Pt.336) 266.
The Appellants, it was submitted, failed to prove the extent of the land in dispute.
In my view the only issue for determination in this case is whether the Appellants proved their claim against the Respondents to entitle them to judgment.
Trespass to land is an unjustified interference or invasion by another person on the land in possession of Plaintiff.
See: Gbemisola v. Bolarinwa (2014) 9 NWLR (Pt.1411) 1 at 26 and Chukwu v. Akinpelu (2014) 13 NWLR (Pt.1424) 359 at 381.
In a claim for trespass to land all that the plaintiff needs to establish to succeed is that he is either in exclusive possession or has the right to such exclusive possession of the land in dispute. See Garan v. Olomu (2013) 4 SCNJ 47 at 70.
However where the claim is for trespass and injunction as in the instant case title to the land is automatically put in issue and needs not be specifically pleaded. See Adeyefa v. Bamgboye (2014) 11 NWLR (Pt.1419) 520 at 546 and Onovo v. Mba (2014) 14 NWLR (Pt 1427) 391 at 421.
Have the Appellants in this case led evidence to establish title to the land in dispute? Where a Plaintiff as in this case seeks an injunction coupled with damages for trespass and fails to identify the land he is claiming his action should be dismissed. See: Gbadamosi v. Dairo (2007) 3 NWLR (Pt.1021) 283, Idehen v. Osemwenkhae (1997) 2 NWLR (Pt.525) 358 and Dada v. Dosunmu (2006) 18 NWLR (Pt 1010) 134.
In both their pleadings and evidence before the court, the Respondents denied trespassing on the land claimed by the Appellants. According to the Respondents, their farmland is Olokun farmland and was granted to them about 100 years ago. Rather than join issues with the Respondents on these crucial issues the Appellants undoubtedly supported the case of the Respondents. The Appellants never in pleadings controverted the averment that the farmlands were different. The Appellants did not make any attempt to establish that their farmland at Oniyanrin was the same as the farmland at Olokun.
To clearly demonstrate what I have been trying to state above I will proceed to produce very short extracts from the record of appeal. In paragraph 3 of the Appellants’ Amended Statement of Claim the Appellants deposed thus:
“The land in dispute is located at Oniyanrin village which is part of Logun Area, Ede.”
The Respondents in paragraph 2 of the statement of defence averred thus:
The Defendants aver that there is no Oniyanrin village at Logun village Ede and in anyway their farmland is Olokun farmland and not Oniyanrin.”
Although a reply was filed to the statement of defence, there is no averment indicating that the claim was in respect of the same farmland.
As if this was not bad enough for the Appellants’ claim PW1 and PW5 who were Appellants’ star witnesses demolished the case of the Appellants when under the fire of cross-examination they showed that the land which they claim the Respondents trespassed into was different. This is what the PW1 stated under cross-examination as contained at page 11 of the record of appeal:
“I know the Adekale family in Logun. They are farmers at Logun village but their farm is different. I don’t know the father of the Defendants but I heard it in history that their father lived there and they still live there I cannot say how old their father is but I know the Defendants. I did not meet their father in any particular farmland before his death. I did not know how their father got to Logun village and I don’t know the Logun that granted him land…… The parties in this case also pays Isakole to Timi of Ede through Logun even the present Logun.”
At page 16 of the record of appeal PW5 under cross-examination stated thus:
“The Defendants were in Logun village farming before we were granted land there.”
Undoubtedly this could not be the virgin land that PW1 said was granted to the Appellants. Also that the land claimed by the Appellants was different was put beyond doubt by the PW1 under cross-examination as shown above where he said the farmlands of the Respondents were different. Adekale referred to in the quoted extract is one of the Respondents.
From the foregoing, the only issue formulated by me should be resolved in favour of the Respondents and against the Appellants.
It is accordingly resolved in favour of the Respondents and against the Appellants.
Consequently, the appeal is dismissed for lacking in merit.
Respondents are awarded N30,000 costs to be paid by the Appellants.
SOTONYE DENTON WEST, J.C.A.: I have had the advantage of reading the judgment of my learned brother, James Shehu Abiriyi, JCA. I agree with him that the appeal lack merit and it should be dismissed.
I hereby dismiss the appeal. I abide by orders made in the lead judgment including order as to cost.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.
Appearances
K. O. Ijatuyi with G. A. Adesina and A. FataiFor Appellant
AND
B. A. AkandeFor Respondent
