ANIMASHAUN v. OJOBE
(2022)LCN/16222(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Wednesday, August 03, 2022
CA/IB/317/2010
Before Our Lordships:
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
ADEKOLA ANIMASHAUN APPELANT(S)
And
MRS. OJOBE RESPONDENT(S)
RATIO
THE DUTY OF A CLAIMANT OF TITLE TO LAND TO SUCCESSFULLY MAINTAIN AN ACTION IN TRESPASS AND INJUNCTION
Where a claimant of title to land or landed property maintains an action in trespass and injunction, he has put his title or ownership of the land to which his claim relates in Issue hence he is bound to first prove his title and the Court has a duty first to resolve the issue of title. See Egbubefu Onyero & Anr. Vs. Augustine Nwadike (2011) LPELR–8147 (SC); Ekweozor & Ors. Vs. the Registered Trustees of Saviours (2014) LPELR–23572 (CA); Olaniyan & Ors. Vs. Fatori (2013) LPELR–20936 (SC); Agboola vs. UBA Plc. & Ors. (2011) LPELR–9353 (SC). The claimant thus, must lead evidence of such quality as to establish the fact of his entitlement to the land to which his claims relates. He can succeed only on the strength of his own case and not on the weakness of defence case. See: Obed Okpala & Ors. Vs. Richard Ibeme & Ors. (1989) LPELR–2512 (SC). The claimant thus, to succeed, must lead evidence to prove the identity of the land to which his claim relates but this duty on the claimant to prove the identity of the land will no longer hold if the land in dispute is known to the parties on both sides. See Akinterinwa vs. Oladunioye (2000) 6 NWLR (pt. 659) 92; Gbadamosi vs. Dairo (2007) 5 NWLR (pt. 1021) 292, Adedeji vs. Olaso (2007) 5 NWLR (pt. 1626 133. Apart from the requirement for the claimant to prove the identity of subject property where applicable, the claimant must also lead evidence to establish the root of his title. PER HUSSAINI, J.C.A.
WHETHER OR NOT FINDING OF THE LOWER COURT NOT APPEALED AGAINST REMAINS VALID AND SUBSISTING
Thus in relation to the location or identity of the land in dispute the parties are well acquainted with the land in dispute, no matter by what name it is referred to by the parties. The finding made by the trial Court on the identity or location of the land being at Elemi-Oseba, Olorunda Aba Road Ibadan has not been appealed against by either the appellant or the respondent to this appeal. it is trite that the finding and order of lower Court not appealed against remain valid and subsisting and without a ground of appeal challenging that finding and order, the appellate Court lack the jurisdiction to interfere with such findings and order. See: Dapub vs. Kolo (1993) 12 SCNJ 1, Onafowokan vs. Wema Bank Plc (2011) 5 SC (pt. 11) 1; Agbom vs. Aza (2015) LPELR–40634 (CA). The parties thus, are coming into this appeal not on or over the settled issue of the identity of the land in dispute but on other grounds set out in grounds 1, 2, 3, 4 and 5 in the Notice of Appeal at pages 64-66 of the record of appeal. PER HUSSAINI, J.C.A.
THE PURPOSE OF PLEADINGS
The purpose of pleading is to avoid surprises by way of taking the party on the other side unprepared, of facts he was not earlier put on Notice. See: Agboola vs. UBA Plc (2011) 3 SCNJ 208. Parties are not allowed to shift the goal post in the middle of the game and the Courts as arbiters must not succumb to that. In the instant case on appeal, the lower Court, unfortunately succumbed and allowed the respondents to shift the goal post when it held that the land in dispute was at Road 2 Omolayo Avenue, Ojirin, Ibadan and that the land sold to PW2 was at Road 4, Omolayo Avenue Akobo Ojurin Ibadan, whereas those facts were not pleaded by defence. That is not all. The Courts must not rely on or act or inadmissible hearsay evidence of witnesses to enter judgment. The lower Court at page 61 of the record of judgment further held thus: –
“That the evidence of the DW1 that the PW2 told the policeman who investigate this matter that he (PW2) had sold the four-acre land he took from the second defendant’s family and at Elemi-Oseba also remain unchallenged.” PER HUSSAINI, J.C.A.
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The action leading to this appeal was commenced by two Plaintiffs, Opeyemi Animashun and Adekola Animashaun in the suit filed at the High Court of Oyo State vide suit No. I/581/2001 wherein the Plaintiffs claimed against two Defendants namely Mrs. Ojobe and Mrs. Okadokun Olaniyan, the reliefs in the Statements of claim at Paragraph 20(i)(ii) namely: –
(i) The sum of N2,200,000.00 (Two Million Two Hundred Thousand Naira) being special and general damages for trespass committed on the plaintiffs’ land situate lying and being at Ogbagba Village, Koko Area, off Olorunda Road, Ibadan, Oyo State by the defendants (2) Perpetual Injunction restraining the defendants by themselves, their agents, servants and/or privies or otherwise howsoever from committing further acts of trespass on the said Plaintiffs’ land.
The claim was denied by reason of the joint Statement of defence filed on behalf of the defendants. Defendants did not however file a counter-claim for title except the Statement of Defence filed on their behalf on the 19th September, 2002. The plaintiffs filed a Reply on the 2nd May, 2003. The case proceeded into hearing thereafter with the plaintiffs calling evidence of four (4) witnesses PW1-PW4 and tendered documents marked as Exhibits A, B, 3, 3A and 3B among others which were admitted in evidence. In the course of hearing the case of the plaintiffs, some documents were identified and marked as such as ID1 and ID2.
The plaintiffs closed their case thereafter hence defence opened their own case and called evidence of two (2) witnesses. Exhibits 4, 5 and 6 among others were admitted in evidence in support of defence case.
At the close of evidence of parties and witnesses their counsel respectively addressed the Court.
The facts leading to this appeal as can be garnered from the evidence on the printed record. The facts, from the perspectives of the plaintiffs are that their father in his lifetime, bought the land in dispute under native law and custom from PW. 2 (Alhaji Oyebamiji Alagbe) who himself bought a 2-acre piece of the land from the 2nd defendant’s (DW1’s) family in 1977 or thereabout and partitioned the land into about fourteen or fifteen plots and sold the plots to various individuals including the claimant’s father to whom was sold the plot of land in dispute. According to the pleadings, of the claimants, the land in dispute is situated at Eleni Ogbagba village Area Bashorun Akobo, off Olorunda Road, Ibadan. The claimants alleged that the 1st defendant/respondent demolished the buildings their father built on the land as well as the grave where their father and his wife were buried on that land in dispute and in its place, the 1st defendant put up her own building, thus prompting the plaintiffs to institute this suit on appeal against defendants for trespass and injunction restraining them from further acts of trespass.
From the perspectives of the defendants, the story is that the land sold to PW2 (Alhaji Oyebamiji Alagbe) is at Elemi Oseba Village, Along Olurunda Abaa Road, Ibadan and that the land in dispute is never part of the land sold to PW2 (Alhaji Oyebamiji Alagbe). The second defendant (DW1) claimed that there was an action instituted against the DW1’s family in 1986 by Alaseri family in respect of family land including the land in dispute and judgment was given in favour of DW1’s family. By the writ of possession executed, those persons found on the land were advised to remove all their belongings. The 1st defendant has claimed that she had not destroyed any building on the land in dispute sold to her as there was none. That nobody confronted her or stopped her from laying foundation and the completion of her building on the land.
The trial Court in the judgment reserved and delivered on the 9th July, 2009, found for the defendants and dismissed the claim of the Appellants. The judgment of the trial Court can be found at pages 51-63 of the record. Against that judgment of the trial High Court, the plaintiffs vide the Notice of Appeal dated and filed on the 2nd October, 2009 appealed to this Court on five (5) grounds.
The said grounds without the particulars are reproduced here below: –
Ground 1
“The lower trial Judge erred in law and misdirected himself and came to a wrong conclusion when it held that the land in dispute is at Road 2, Omolayo Avenue Akobo Ojurin, Ibadan contrary to the pleadings of the parties that the land in dispute is at Alemi Oseba, Olorunda Aba Road, Ibadan.
Ground 2
The lower trial Court erred in law when he held that the fundamental issue is the location of the land in dispute which fact is the pleadings, particularly the statement of defence.
Ground 3
The lower trial Court misdirected itself by not ascribing probative value to the uncontroverted evidence of the Plaintiffs and their witnesses before considering the evidence of the defendants on the issue of the identity and location of the land in dispute.
Ground 4
The lower trial Court erred in law when he failed to discountenance the contradictory evidence of the defendants as to the location and identity of the land in dispute but went ahead to ascribe probative value to such contradictory pieces of evidence.
Ground 5
The lower Court erred in law when he relied heavily on DW1’s oral evidence proffered on the investigation carried out by the policemen when such evidence was not put to the PW2 under cross-examination.”
Briefs of argument were filed and exchanged between the parties through their counsel upon the record of appeal being transmitted hence the briefs before the Court are the:-
1. Amended Appellants’ Brief of Argument filed on the 13th December, 2021.
2. Respondents’ Brief of Argument filed on the 25th January, 2022.
3. Appellants’ reply brief filed on the 18th February, 2022.
The 1st plaintiff and 2nd defendant both gave up the ghost during the pendency of this appeal and their names accordingly were struck out leaving Adekola Animashaun and Mrs. Ajobe respectively, as the appellant and respondent in this appeal.
The briefs of argument filed by respective counsel were adopted by them when the appeal came before us for hearing on 10th May, 2022.
In the amended appellant’s brief of argument, the appellant identified just one (1) issue for determination of Court, namely: –
Whether from the facts of this case, the Appellant’s case was rightly dismissed?
Learned counsel for the appellant in answer to this question argued that the trial Court acted on facts that were not pleaded by defence in their statement of defence in relation to the location of the land in dispute and by that, the Court gave judgment in favour of the respondents. What is more, the trial Court in the evaluation of evidence before it considered only the case or evidence put in by the defence and believed them without reference to the evidence of the plaintiffs/appellants let alone assess the probative value of same in relation to the question as whether or not the land in dispute is the same land or part of the land sold to PW2. Learned appellant’s counsel argued that the trial Court was wrong by its failure to assess the evidence elicited from appellant’s witnesses before coming to the conclusion that the land in dispute was not the land sold to PW2. He referred us to decisions in Osuji vs. Ekeocha (2009) 16 NWLR (PT. 1166) 81, 116; Omotola vs. State (2009) 7 NWLR (pt. 1139) 148, 168.
It is argued that the 2nd defendant did not deny ever selling land to PW2 (Alhaji Oyebamiji Alagbe). That the only defence put forward by the DW1 (2nd defendant) is that, the land sold to PW2 is not the land in dispute that is to say, that the land in dispute is different from the land sold to PW2. It is argued that the 2nd defendant who claimed that the land in dispute was different from the land sold to the PW2, had the burden duty on him to prove it and this it was argued, was not proved. It is argued further that reference being made to Road 2 Omolayo Avenue Akodo Ojurin, Ibadan, and to Road 4 Omolaye Avenue Akodo, Ajurin, Ibadan respectively as the place sold or not sold to the PW2 by 2nd defendant’s family were not pleaded as a fact and same not having been pleaded must be discountenanced as not forming part of 2nd defendant’s pleading. The case of Sodipo vs. Ogidan (2008) 4 NWLR (pt. 1077) 342; Akaninwo vs. Nsirim (2008) 9 NWLR (pt. 1093) 439 (SC) were cited and relied on. It is further argued that since PW1 and DW1 (2nd defendant) are members of the same Olaniyan family and the two of them along with another person jointly sold the land to PW2 hence the issue of what was sold and what was claimed did not arise, more so that the PW1 was not cross-examined on that point as to whether the place sold was a layout with streets or roads. By a further submission with reference to the evidence of PW2, it was argued that there is no other land sold to PW2 by Olaniyan family of Ibadan other than the two acres of land at Eleni Oseba, Ibadan which PW2 himself confirmed in his evidence.
It is argued that since PW2 was not confronted with the fact whether the land sold to him was Road 4 or Road 2 Omolayo, Akobo Ojurin Ibadan, the burden was on the 2nd defendant to discharge rather, the 2nd defendant in his evidence as DW1 admitted that he was a signatory to the Agreement over the land at Elemi village which himself and PW1 sold to Alhaji Oyebamiji (PW2). It is further argued that since the issue of Road 4 and Road 2 were not pleaded if that piece of evidence were expunged from the record it means that there is no defence to the claim hence the trial Court’s reliance on those unpleaded facts as to the issue of Road 4 and Road 2 was wrong. We were further urged to hold that the trial Court’s further reliance on hearsay evidence of DW1 to reach a decision in favour of the Respondents was wrong. In other words, the conclusion reached by the trial Court that PW2 had no right to sell the land or any part of the land in dispute to the appellant’s predecessors is also wrong given the fact that the 2nd defendant had failed to lead evidence to prove that the land sold by them to PW2 was other than the portion of land in dispute. In that regard, it was argued for the appellant that PW2, as the person vested with title over the two-acre land he purchased from DW1 and PW1 reserve the right to dispose any portion of the land if he so wish. We were urged to resolve this issue in favour of the appellant.
The Respondent, arguing per contra in her brief of argument emphasized on the need for the person seeking for declaration of title to land to significantly identify that land otherwise the claim cannot succeed. This duty, it is claimed, is the first and foremost task which a claimant must surmount in his quest for a declaration of title to land in his favour. He cited the decision in Basil v. Fayebe (2001) 21 WRN 58 (SC); IBHAFIDON VS. IGBINOSUN (2001) 20 WRN 132 (SC). It is argued by the Respondent that the whereas the appellant in his Statement of Claim pleaded that the land claimed by them was at Elemi Ogbagba village the evidence led by plaintiff’s witness indicate that the land they are claiming is at Elemi Oseba village or near Elemi Oseba village. In reference therefore to the decision in Ministry of Lands and Housing Bauchi State & Anr. Vs. Tirwin (2017) 43 314 (CA) and Ayodele vs. Jubilee Life Savings & Loans Ltd. (2019) LPELR–48018 (CA) it was argued that the appellant has not identified the land to which the claim relates in the sense that the claimants have not clearly shown the area to which their claim relates by a description good enough to make a survey plan of the land. It is further argued that the appellant whose duty it was to give accurate description of the land he claimed failed to prove the exact location of the land sold to them. That it was only the DW1 that bailed them out so to say, has the land sold to them (the PW2 and the plaintiff) in that the land sold by DW1’s family was at Road 4 at Elemi Oseba. It is argued therefore that the land in dispute is not the same as the land DW1 sold to PW2 as the identity or location and features in two lands, differ.
In reference to the decision covered by Exhibit 4, it is argued that the Court in Exhibit 4 adjudged DW1’s family as the owners of the land in dispute. It is further argued that if indeed the appellants are the owners of the land in dispute they would not have waited for that long until a structure was put in place by the 1st defendant on that same land. It is further argued that the lower Court was right in its conclusion when it held that the land in dispute is not part of the land sold to PW2 hence PW2 cannot transfer title on what it does not have. We were referred to decisions in Kyari vs. Senaram (1997) 2 NWLR (PT. 488) 380, 403; Ajuwon vs. Akanni (1993) 9 NWLR (pt. 316) 182, 202; Sanyaolu vs. Coker (1983) 3 SC 124, 163-164.
Learned Respondent’s Counsel dismissed the submission made to the effect that the trial Court did not consider the evidence of the appellant as a misconception on the facts insisting that parties are bound by their pleadings and that the land sold to PW2 is situated at Eleni Oseba village as pleaded by the respondent as against Eleni Ogbagba village hence the trial Court was right, based on the preponderance of evidence to hold that the land sold to PW2 is at Road 4, Omolayo Avenue, Akoba Ojurin, Ibadan whereas the land in dispute is situated at Road 2 Omolayo Avenue, Akobo Ojurin, Ibadan. We were urged to affirm the decision of the lower Court and dismiss this appeal.
Resolution of the lone issue
The claim before the trial Court is for the sum of Two million two hundred thousand Naira against the defendants/respondents as special and general damages for trespass committed by the respondents in respect of plaintiffs’ land situated, lying and being at Ogbagba village, Ako Area, Off Olurunda Road, Ibadan, Oyo State and for perpetual injunction restraining the defendants, now respondents or their agents from committing further acts of trespass on the said land.
Where a claimant of title to land or landed property maintains an action in trespass and injunction, he has put his title or ownership of the land to which his claim relates in Issue hence he is bound to first prove his title and the Court has a duty first to resolve the issue of title. See Egbubefu Onyero & Anr. Vs. Augustine Nwadike (2011) LPELR–8147 (SC); Ekweozor & Ors. Vs. the Registered Trustees of Saviours (2014) LPELR–23572 (CA); Olaniyan & Ors. Vs. Fatori (2013) LPELR–20936 (SC); Agboola vs. UBA Plc. & Ors. (2011) LPELR–9353 (SC). The claimant thus, must lead evidence of such quality as to establish the fact of his entitlement to the land to which his claims relates. He can succeed only on the strength of his own case and not on the weakness of defence case. See: Obed Okpala & Ors. Vs. Richard Ibeme & Ors. (1989) LPELR–2512 (SC). The claimant thus, to succeed, must lead evidence to prove the identity of the land to which his claim relates but this duty on the claimant to prove the identity of the land will no longer hold if the land in dispute is known to the parties on both sides. See Akinterinwa vs. Oladunioye (2000) 6 NWLR (pt. 659) 92; Gbadamosi vs. Dairo (2007) 5 NWLR (pt. 1021) 292, Adedeji vs. Olaso (2007) 5 NWLR (pt. 1626 133. Apart from the requirement for the claimant to prove the identity of subject property where applicable, the claimant must also lead evidence to establish the root of his title.
I have indicated a short while ago, in the course of this judgment that the lower Court made some significant findings of fact in its judgment and one of those findings is contained in the record of appeal where the Court held or found that: –
“After a careful review of the Court Processes that were filed in this case, and the evidence adduced by the parties to this action on this issue, this Court is of the considered view that the land in dispute does not form part of the two-acre land that the family of the second defendant sold to PW2.”
Among the reasons advanced by the lower Court for coming to this conclusion is the fact that “(i) parties to this action know the land in dispute. They all agreed that it is situated at Elemi Oseba Olorunda Aba Road, Ibadan.”
Thus in relation to the location or identity of the land in dispute the parties are well acquainted with the land in dispute, no matter by what name it is referred to by the parties. The finding made by the trial Court on the identity or location of the land being at Elemi-Oseba, Olorunda Aba Road Ibadan has not been appealed against by either the appellant or the respondent to this appeal. it is trite that the finding and order of lower Court not appealed against remain valid and subsisting and without a ground of appeal challenging that finding and order, the appellate Court lack the jurisdiction to interfere with such findings and order. See: Dapub vs. Kolo (1993) 12 SCNJ 1, Onafowokan vs. Wema Bank Plc (2011) 5 SC (pt. 11) 1; Agbom vs. Aza (2015) LPELR–40634 (CA). The parties thus, are coming into this appeal not on or over the settled issue of the identity of the land in dispute but on other grounds set out in grounds 1, 2, 3, 4 and 5 in the Notice of Appeal at pages 64-66 of the record of appeal.
The trial Court giving further reasons for coming to the conclusion it reached that the land in dispute was different from the land sold to PW2 held at page 61 of the record as follows: –
The 2nd defendant as DW1 in his viva-voce evidence testified that he sold two-acre piece of land to the PW2 at Eleni-Oseba, but particularly as Road 4, Omolayo Evenue, Akobo Ojurin Ibadan. He also testified that the land in dispute in this case is situated at Eleni-Oseba, but particularly at Road 2, Omolayo Avenue, Akobo Ojurin, Ibadan, in effect, the 2nd defendant has established by preponderant evidence that the land he sold to the PW2 is situated at Road 4, Omolayo Avenue, Alobo Ojurin Ibadan, whereas the land in dispute in this suit is situated at Road 2, Omolayo Avenue, Akobo Ojurin, Ibadan: that the land in dispute is not part of the land he sold to the PW2.
That the evidence of the DW1 that the PW2 took four acres of his family land when he paid for only two acres at Elini-Oseba and that the land in dispute falls within the two acres at Eleni-Oseba and that the PW2 took from his family land without the consent of his family remains uncontroverted and unchallenged.
That the evidence of the DW1 that the PW2 told the policemen who investigate this matter that (PW2) had sold the four-acre land he took from the 2nd defendant’s family land at Eleni-Oseba also remains unchallenged.
The PW2 had no right nor title to the land in dispute, so he had no right to sell it to the late father of the plaintiffs as he could not give what he did not have by virtue of the legal maxim of nemo dat quod non ha bet. “
I will begin with reason No. 2 above as noted by the lower Court. First the trial Court before coming to the conclusion that the land in dispute is situated at “Elemi Oseba but particularly at Road 2, Omolaye Avenue, Akobo Ojurin Ibadan”, the Court relied almost exclusively on the evidence of DW1 i.e. the 2nd defendant to the suit without adverting its mind to the evidence on the other side i.e evidence of plaintiff’s witnesses on this point, let alone comparing the competing evidence of the parties on both sides by placing those evidence on an imaginary scale to see to which side, the evidence preponderates, especially given the evidence of PW1 at pages 14 and 15 of the record of appeal.
Both PW1 and DW1 are members of the same Olaniyan family and the two of them along with one other person, together, sold the two-acre land at Elemi Oseba village Ibadan to Alhaji Oyebamiji Alagbe (P.W. 2). On this occasion, PW1 and DW1 were called as witnesses by the parties on the opposite sides. It is therefore incumbent on the trial Court to evaluate and assess the evidence of the party on the other side on this point. See Osuji vs. Ekeocha (2009) 16 NWLR (pt. 1166) 81 116; Omotola vs. State (2009) 7 NWLR (pt. 1139) 148, 168; Ogba v. Onwuzo (2005) 14 NWLR (pt. 945) 331, 345. PW1 is on record as stating at page 15 lines 15-25 of the record thus: –
“We sold the land to Alhaji Oyebamiji Alagbe at Elemi Oseba village, Ibadan. We sold two-acres of the land to Alhaji Oyebamiji Alagbe. We sold the land to him for six thousand Naira at three thousand per acre. I know Alhaji Oyebamiji Alagbe before we sold the land to him. … We sold no other land apart from the said two acres’ land to Alhaji Oyebamiji Alagbe….”
The lower Court was wrong to refuse to consider this evidence of PW1, in the evaluation of the piece of evidence considered by the trial Court.
On the question of the location of the land in dispute the respondent in his statement of defence pleaded or averred at paragraph 3, page 8 of the record of appeal, thus: –
“The 2nd Defendant avers that the land sold to Oyebamiji Alagbe is at Elemi Osebe village, along Olorunda Abaa Road, Ibadan…”
That is the description and the location of the land as given by the defendants/respondents. There is no pleading by them to suggest that the same land is located, particularly at Road 2 Omolayo Avenue Akobo Ojurin, Ibadan. The lower Court ought not to have relied and acted on facts not pleaded by defence to enter judgment in their favour. See: Sodipo vs. Ogidan (2008) 4 NWLR (pt. 1077) 342 Akaninwo vs. Nsirim (2008) 9 NWLR (pt. 1093) 439 (SC).
It is significant to note that PW1 was not confronted with that question under cross-examination whether or not the land sold to PW2 was at Road 4 or Road 2 at Omolayo Avenue, Akobo Ojurin, Ibadan, which in any case was not pleaded.
The purpose of pleading is to avoid surprises by way of taking the party on the other side unprepared, of facts he was not earlier put on Notice. See: Agboola vs. UBA Plc (2011) 3 SCNJ 208. Parties are not allowed to shift the goal post in the middle of the game and the Courts as arbiters must not succumb to that. In the instant case on appeal, the lower Court, unfortunately succumbed and allowed the respondents to shift the goal post when it held that the land in dispute was at Road 2 Omolayo Avenue, Ojirin, Ibadan and that the land sold to PW2 was at Road 4, Omolayo Avenue Akobo Ojurin Ibadan, whereas those facts were not pleaded by defence. That is not all. The Courts must not rely on or act or inadmissible hearsay evidence of witnesses to enter judgment. The lower Court at page 61 of the record of judgment further held thus: –
“That the evidence of the DW1 that the PW2 told the policeman who investigate this matter that he (PW2) had sold the four-acre land he took from the second defendant’s family and at Elemi-Oseba also remain unchallenged.”
What DW1 said, PW2 told the police is inadmissible, being hearsay evidence hence the lower Court ought not to have relied on same as reason for giving judgment in favour of the respondents. By reason of Section 126 of the Evidence Act, oral evidence which the Courts must act on must be the direct evidence of the person who saw, heard or perceived those facts, otherwise, such evidence is hearsay evidence and same is not admissible to prove a fact or matter. See: Sections 37 and 38 of the Evidence Act 2011 also refers: Buhari vs. Obasanjo (2005) LPELR 815 (SC).
On the question whether PW2 had any interest or title in the land in dispute to transfer to appellant’s father, the trial Court had this to say based on what DW1 told the Court and held that: –
“PW2 had no right nor title to the land so he had no right to sell it to the late father of the Plaintiffs as he could not give what he did not have by virtue of the legal maxim of memo dat quod non habet.”
The land over which the respondents anchored their case is the land at Elemi-Osebe village, along Olurunda Abba Road, Ibadan. They did not plead any other land and since the respondents did not plead any other land as the land sold to PW2 by the three members of Olaniyan family, which the PW2 also sold a portion of it to appellant’s father it then follows that the appellant or their father reserved the right to take action over that the land was tampered with. The evidence elicited from witnesses for the plaintiffs/appellants i.e. from PW1, PW2, PW3, PW4 confirm that the land in dispute was the land sold to plaintiffs’ father by PW2. DW1 himself did not deny the fact that he was a party to the transaction in which a 2-acre land was sold to PW2, in a transaction or deal which himself has executed along with PW1.
Although the document identified and marked as ID1 at page 15 of the record of appeal, the PW1 by that has alluded to this point in his evidence in chief.
Given the evidence on record of PW1, the evidence of PW2 among others, there was indeed a sale transaction which led to the transfer of a piece of land of two (2) acres to Alhaji Oyebamiji Alagbe, the PW2 in this case. PW2 in turn sold a part of the 2-acre piece of land to plaintiffs’ father, Mr. Mukaila Animashaun Olaoni in 1977 after the payment of the sum of N1,600.00 as consideration for one plot of land in 1977 as evidenced by Exhibit 1. PW2 had partitioned the two-acre land into plots of about 15 plots and sold them to various but interested individuals including Plaintiffs’ father.
DW1 did not deem it necessary as at then to proceed against PW2 when the latter partitioned the land and sold them out to people until much later sometimes in the middle of the 1980s when by dint of Exhibit 4 i.e. the judgment delivered in favour of Olaniyan family against Aselari family vide suit No. I/28/86 on 2nd June, 1987, the 2nd defendant in what appeared to be an exercise of control and ownership over the land in dispute, the Olaniyan family through DW1, sold the land in dispute to the 1st defendant/respondent.
I have before now taken the position that the land in dispute is the same land which PW2 had sold to plaintiff’s father in the exercise of his right of ownership over that land. This is the same land that DW1 purportedly sold to DW2 (1st defendant) in the purported exercise of his right of ownership vide the receipt of payment marked as Exhibit 6, cannot convey good interest or title to DW2 (1st Defendant) who is also the respondent. Accordingly, DW2 is a trespasser to the land having come into that land to put up a structure or building where she now lives. The doctrine quid quid plantator solo solo cedit applies here in other words whatever the respondent has put on that land now belongs to the appellant who is adjudged as the owner of the land in dispute.
By the reason of the earlier sale agreement covered by transaction between DW1, PW1 and one other person on the one side as Vendors and PW2, the purchaser on the other side the Olaniyan family through DW1 had divested all their interest over and in respect of the land in dispute having invested ownership of the land on the PW2 the purchaser of the two-acre piece of land sold to him by the original owners. It is not being contended that the sale transaction which transferred ownership from Olaniyan family through DW1 and PW1 to PW2 was not valid and that being the position, the purchaser that is (PW2) had acquired a good title over the land in dispute as the new owner and new owner i.e PW2 in exercise of his right of ownership over the land, rightly transferred his ownership over the portion i.e the land in dispute to the plaintiffs’ father through whom the plaintiff/appellant acquired the land in dispute.
DW2 (the 1st defendant) acquired no title from DW1 or Olaniyan family, the latter having earlier divested their interest to PW2. They had no interest left in the land to transfer to the respondent herein that is DW2 hence the only issue identified for determination in this appeal must be and same is hereby resolved in favour of the appellant(s). The appeal before us has considerable merit and same is allowed and I make and order as follows:
(i) The judgment delivered at the High Court of Justice Oyo State on the 9th July, 2009 in suit No. I/581/2002 is set aside and in its place is entered this Judgment.
(ii) The Respondent(s) are trespassers to the land in dispute at Elemi-Oseba village along Olurunda Abaa Road, Ibadan now declared for the appellant(s) and accordingly the respondent(s) ordered forthwith to vacate the land for the appellant(s).
(iii) An Order of perpetual injunction is hereby entered restraining them (Respondents) and their agents and previse and heirs from committing further acts of trespass on the land of the plaintiffs/appellants.
(iv) The sum of N2,200,000.00 (Two Million Two Hundred Thousand Naira) is ordered as general damages against the respondents, jointly and severally for the pains and sufferings inflicted on the appellants arising from their unlawful entry into the land of the appellant.
(v) Cost in the sum of N200,000.00 is assessed against the Respondents and in favour of the Appellant.
(vi) That is the order and judgment.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother Sa’idu Tanko Hussaini, JCA. I agree with the reasoning and conclusion that this appeal succeeds and is hereby allowed. The judgment delivered on 9th July,2009 is hereby set aside. I abide by all the consequential orders in the lead judgment.
ABBA BELLO MOHAMMED, J.C.A.: I had the privilege of reading a draft of the lead judgment just delivered by my learned brother, SAIDU TANKO HUSSAINI, JCA. I agree with His Lordship’s reasons and conclusions and I adopt same as mine. For those reasons and conclusions, I also allow the appeal, set aside the judgment of the trial Court of 9th July, 2009, and abide by all the other consequential orders made in the lead judgment.
Appearances:
F. B. Aladeniyi, Esq. with him, O. E. Akinya-Eji, (Mrs.) Esq. and Odunlami O. R., Esq. For Appellant(s)
L. A. Olagunja, Esq. hold the brief of Wahab Okinlola Olatoye, Esq. with him, Lethyf Aderemi Olagunju, Esq. and Ayotunde Esther Ogundare, Esq. For Respondent(s)
