CHIEF E.K. STANLEY ONOSIGHO v. GLOBACOM LIMITED & ANOR
(2016)LCN/8239(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2016
CA/B/236/2013
RATIO
LAND LAW: TITLE TO LAND; WHEN IS TITLE TO LAND PUT IN ISSUE
The position of the law is that once a claim for trespass and injunction is placed on the burner by a claimant, then title/ownership of the land is put in issue. As stated by Ayoola JSC in Agu vs. Nnadi (2002) 18 NWLR (pt. 798) 103 at p. 117, where he stated: Title to land can be put in issue in a court by pleading expressly that the plaintiff™s claim is based on his title or impliedly by claiming damages for trespass and injunction. See also Akinawo vs. Adewoye (2015) All FWLR (pt. 787) 627 at 644; Mrs. Florence O. Carrena & Anor. vs. Chief Gafaru Arowolo & 2 Ors. (2008) 167 LRCN 85 at 93; Michael Udenze & 5 Ors vs. Nwosu Nwosu & 4 Ors. (2008) 154 LRCN 110; Omotayo vs. C.S.A (2010) 16 NWLR (pt. 1218 p1 at P. 21, where Ogbuagu stated: Once a defendant claims to be the owner of the land in dispute as in the instant case, title is put in issue and to succeed in his action, the plaintiff must establish by credible evidence that he has a better tile that the defendant. And this he does by relying absolutely on the strength of his case and not the weakness of the defence except where that weakness tends to strengthen or support the plaintiffs case. per. HAMMA AKAWU BARKA, J.C.A.
EVIDENCE: BURDEN OF PROOF: ON WHICH OF THE PARTY DOES THE BURDEN OF PROOF LIE UPON
The established position of the law is that the burden of proof lies upon that party who affirms and not upon him who denies. The Apex Court in Elias vs. Omo-Bare (1982) 5 SC 25 stated:
It is the established position of the law that the burden of proof lies on the party who alleges the affirmative. The burden of proof lies on the party who will fail in the case where no evidence is given. Depending on the state of the pleadings, the burden which commences usually with the plaintiff or claimant may shift to the defendant. per. HAMMA AKAWU BARKA, J.C.A.
LAND LAW: TITLE TO LAND; WHAT A CLAIMANT MUST PROVE TO BE ENTITLED TO JUDGEMENT
The imperative position of the law remains that he who asserts must prove. Civil suits are decided on preponderance of evidence. Where a claimant fails to prove his case as required by law, then he cannot be entitled to judgment. It was the contention of the learned counsel for the Respondents that where there is a claim for damages for trespass and injunction and the defendant alleges that the land belongs to him, the plaintiff must prove not only his title to the disputed land, but also prove that they had a better title than that of the defendant. I am in full agreement with learned counsel on that score; for as stated in Anthony Idesoh & Anor. vs. Chief Paul Ordia & 5 Ors (1997) 47 LRCN 520 at 522 523: Where plaintiff claims for damages for trespass and injunction and the defendant alleges that the land belongs to him, the plaintiff in order to succeed has to prove not only that he was in possession of the land when the trespass was committed on it but also that his own title to the land in dispute is better than that of the defendant. This is because in the circumstances, title to the land in dispute is put in issue. Therefore in order to succeed, the appellant in this case had the burden of proving not only that they were in possession when the alleged trespass was committed by the respondents but also that their own title was better than that of the respondent.
Furthermore, this court in Ololuwa Fayemi vs. Awe (2009) 15 NWLR (pt. 1164) 315 faced with a similar situation not unlike the instant case, held: Firstly, that in the instant case, Respondent relied on the deed of conveyance as his source of ownership duly authenticated and executed without fault, but by virtue of Section 45 of the Evident Act, where the title or interest in family or communal land is in issue, oral evidence of the family or communal tradition concerning such title is relevant. See Dike vs. Nzeka II (1986) 4 NWLR (pt 34) 144. per. HAMMA AKAWU BARKA, J.C.A.
EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTY HAS THE ONUS OF PROOF TO ESTABLISH THE CLAIM TO AN EXCLUSIVE GRANT OF FAMILY OR COMMUNAL PROPERTY
This position of the law has not changed for as stated in Apena vs. Aileru (2015) All FWLR (pt. 790) 1256 at 1283, the onus is upon that party and anyone claiming through him to establish the claim to an exclusive grant of the family or communal property.
The reason for this state of the law as stated by my brother Abiriyi JCA in Akinawo vs. Adewoye (2015) All FWLR (pt. 787) 627 at 644 , 645, is that: It is settled law that where two parties claim to be in possession of land, the law ascribes possession to the one who has a better title. See Olusanya vs. Osinleye (2013) All FWLR (pt. 693) 1930. per. HAMMA AKAWU BARKA, J.C.A.
LAND LAW: POSSESSION; THE TYPES OF POSSESSION
In Ameen vs. Amao (2013) All FWLR (pt. 682) 1663, Peter Odili JSC stated thus:
There are two types of possession;
1. Actual physical possession;
2. Possession imputed by law, which is derived by title. As a follows up, the issue of possession takes a back seat where title has been proved to reside in the other party. It is in the light of that, that once in an action for trespass such as the current one and title is put in issue, the decisive question that arises is who has proved the better title. Then when the claiming party fails in his bid to prove title or radical title as called, then it is not necessary to consider the act of possession that stems from such a failed title claim. per. HAMMA AKAWU BARKA, J.C.A.
EVIDENCE: PROOF OF TRADITIONAL HISTORY; WHAT THE CLAIMANT MUST PROVE IN ORDER TO SUCCEED IN A CLAIM OF TITLE TO LAND
The legal principle therein is that in order to succeed in a claim of title to land, based on traditional history, the claimant must plead and lead evidence showing:
(a) How his ancestor derived title to the land
(b) The person who founded the land
(c) Particulars of the intervening owners.
(d) The person(s) on whom the title to the land devolved since the founding of the land. per. HAMMA AKAWU BARKA, J.C.A.
JUSTICES
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
CHIEF E.K. STANLEY ONOSIGHO
(For himself and on behalf of the members of Late Chief Peter Ohwotu Onosigho) Appellant(s)
AND
1. GLOBACOM LIMITED
2. CHIEF PETER IGBINI
(For himself and on behalf of the Omovwiare Family of Iwherkpokpor Town Ughelli) Respondent(s)
HAMMA AKAWU BARKA, J.C.A.(Delivering the Leading Judgment):
The instant appeal is against the judgment of the Delta State High Court of Justice sitting in Ughelli in Suit No. UHC/36/2009, Chief E.K. Stanley Onosigho (for himself and on behalf of Late Chief Peter Ohwotu Onosigho family of Otor-Edo) and Globacom Ltd; Chief Peter Igbini (for and on behalf of the Omovwaire family of Iwhrekpokpor Town Ughelli) delivered on the 12th of March, 2013; whereof the appellants claim was dismissed. The facts relevant to the present appeal in brief are as follows:
The Appellant as plaintiff before the Lower Court caused a writ of summons dated the 5th of March, 2006 to issue against the two defendants. By paragraph 13 of the plaintiffs statement of claim filed on the 20/04/2009, the plaintiff claimed against the defendants jointly and severally the following reliefs:
(a) The sum of N100,000,000 (One Hundred Million Naira) only being aggravated punitive and general damages when defendant without consent or authority of the plaintiff trespassed on to plaintiffs land aforesaid and continued the trespass despite protest from the plaintiff.
(b) An order of court nullifying any purported sale, assignment or grant of any interest/charge whatsoever over any portion of the said parcel of land to the 1st defendant by the 2nd defendant.
(c) An order of perpetual injunction restraining the defendants, their privies, agents association or any person whatsoever claiming through, for or by the defendants from entering, trespassing upon carrying out any work, building on, erecting on any structure or in any manner interfere with the plaintiffs ownership/possessory rights/interest over all that piece or parcel of land being at Emechenukpode opposite Imonoyame holding behind Safari Guest House off Lady Akpoguma Street, Iwhrekpokpo-Ughelli.
Upon being served the plaintiffs statement of claim, the defendants filed an amended joint statement of defence, and save for paragraphs 1 3, which was admitted by the defendants, paragraphs 4 13 of the statement of claim was denied and plaintiff put to the strictest proof thereof.
At the close of pleadings, the case proceeded to a full blown trial with the plaintiff testifying and tendering some documents, while the 2nd defendant also gave evidence and called two witnesses. At the close of trial, and addresses, the Lower Court delivered the vexed judgment on the 12/3/13, wherein the case of the claimant was dismissed with N20,000 as costs and also ordered to forfeit N100,000 to the defendants.
Dissatisfied with the outcome of his complaint before the trial court, the plaintiff now Appellant appealed the said judgment predicated on six grounds of appeal filed on the 11th of April, 2013. The records of appeal having been compiled and deemed duly compiled and transmitted on the 25/11//13 with leave of court, parties filed and exchanged briefs of argument.
The Appellants brief prepared by Oghenero Okoro was filed on the 26/11/13.The Respondents brief settled by J. Alibor was filed on the 20/12/13. On the 9/2/2016, being the hearing date, both parties adopted their respective briefs. The Appellant in his brief raised four issues for determination. They are as follows:
1. Whether in the circumstance and facts of this case the appellant did not successfully establish title to the land, subject matter of this action?
2. Whether from the circumstance and facts of this case, the burden of proof did not at any time shift to the defendants and the defendants having failed to discharge that burden, the appellant is not entitled to judgment.
3. Whether the trial court having made a finding of possession in favour of the appellant ought not to have granted the claim for injunction and damages.
4. Whether the trial court was not wrong in ordering the appellant to forfeit the bond of N100,000 to the Respondent merely because his case failed?
For the Respondents, two issues were identified which call for the courts resolution. They are:
1. Whether having regard to the pleading, evidence and exhibits of both parties before the trial court, the court was right in dismissing the appellants case in its entirety.
2. Whether the trial court was right in ordering the appellant to forfeit the bond of N100,000.00 to the Respondent.
It should be noted that whereas the plaintiff/appellant hinges his claim to the land in contention upon his claim that the land devolved on him upon the death of his father, Late Chief Peter Ohwotu Onosigho who died sometime in the year 2005; and further that his late father purchased the said land from members of the Okehwie family of Iwehrekpokpo, Ughelli sometime in 1977 in two separate estate contract/transactions, and that his late father took and remained in possession up to his death without hindrance, let or challenge by anybody, including the defendant, the 2nd defendant having witnessed the sale of the land to his late father by the members of the Okevwie family; It is the case of the Appellant that upon his fathers death, he continued in unchallenged possession.
The Respondents on the other contend that the land in dispute forms part of the Ugbusi land adjudged by the Supreme Court in Suit No. SC/138/2002 as the property of the 2nd Respondents family called Omovwiare family of Iwhrekpokpo. It is further contended that the entire Ugbusi land, part of which is in dispute was founded by Imohkwe who shared same amongst her two children. Furthermore, that when the 2nd Respondents family were in court among the Omovwiare family over the ownership of the Omovwiare family land, which lasted up to the Supreme Court, strangers including the Okevwie family whom Appellant alleged sold to his late father the piece of land in dispute, trespassed onto the Omovwiare family land and started selling same to third parties. That after victory at the Court of Appeal, Omovwiare family drove all the trespassers including Appellants late father from the land in dispute.
I have consequently given due consideration to all the issues crafted for resolution. I find that issues 1, 2 and 3 formulated by the Appellant is covered by the Respondents issue 1 and issue four crafted by the Appellant is more or less the same with issue 2 identified by the Respondents. For the determination of the present appeal therefore, I will adopt the issues formulated by the Appellant and will consider issues 1, 2 and 3 at the same time, while determining issue 4 thereafter.
It is the submission of the learned Appellants counsel on whether in the circumstance and facts of this case, the Appellant established title to the land in contention, that Appellant pleaded and duly led evidence on three of the five ways of proving ownership of title as laid down in the case of Idundun vs. Okumagba (1976)9 10 SC 227. He further submits that Appellant relied on title documents, acts of ownership and long acts of possession over the land. He contends that the Lower Court actually found that Appellants father purchased the land from members of the Okevwie family, when it said:
On the face of the documents the land in dispute was sold to the father of the claimant by the vendors whose names appear on Exhibits A & B.
He further alluded to other findings made by the trial Judge to the effect that there is evidence of the claimants father exercising possessory right but against all these, still refused to grant the reliefs sought.
Learned counsel finds fault with the trial courts reason for refusing to grant the reliefs sought as the plaintiff had pleaded and led evidence to show that the 2nd defendant was a witness to the sale. He states that the trial court having made a finding of a valid document of title, acts of possession and acts of ownership of the land in favour of the Appellant, still dismissed his case. He submits that the reasoning of the trial court to the effect that no member of the Okevwie family from which claimants father bought the land testified in his favour and that claimant had already pleaded and led evidence to the fact that the land belongs to the Okevwie family, is not the position of the law. Relying on the authority of Soetan vs. Oluga SC/314/1970, counsel posits that though the evidence of a family member in respect of land sold is desirable, it is not indispensable or necessary. He contends that the failure to call on Daniel Okevwie to give evidence is neither fatal nor debilitating to the plaintiffs case. He reasoned that there is evidence on record that the defendant instigated the 1st defendant to trespass on the land, whereas he was a witness to the sale transaction. It is his further submission that though the 2nd defendant denied being a witness to the sale transaction, the trial court at pages 22 of the judgment held and accepted that the 2nd defendant signed Exhibit B which goes to show that the Okevwie family are the right owners of the disputed land. He maintains that it does not seem logical for the 2nd defendant who is claiming ownership of the land to still sign as a witness to the sale transaction, and contends that by the 2nd defendants involvement in the sale transaction as a witness, it is thus confirmed that members of the Okevwie family who sold the land in Exhibit B are the actual owners of the disputed land; and the 2nd defendant by the doctrine of estoppels enunciated in the case of Ikpuku vs. Ikpuku (1991) 5 NWLR (pt. 193) 517, estopped from laying claim to the ownership of the land. It is his further submission that though the law commands that a plaintiff claiming title must succeed on the strength of his case, where the weakness of the defence case supports the plaintiffs case as in the instant case, the plaintiff is entitled to rely on it to strengthen its case.
Giving reasons as to why the decision of the trial court should not be maintained, counsel submits that from the facts, evidence, argument and legal authorities cited, it is clear that Appellant established title to the disputed land, and the lacuna created by the absence of a witness from the family that sold the land is well accounted for from other pieces of evidence in the proceedings.
In further submission, learned counsel states that in civil matters, judgment is given upon the preponderance of evidence as against proof beyond doubt. Consequently the plaintiff was not required to call every available piece of evidence where minimal proof is sufficient to discharge the onus of proof. On this counsel cited Ogbi vs. Ogbeh (2006) All FWLR (pt. 329) 941; Alingi vs. Police (1959) 5 FSC 203 amongst others. Further still, counsel argued, that while the plaintiffs pleaded and testified that the Okevwie family were the original owners of the land sold to the claimants father by individual members, the trial court wrongly held that there was a disconnect between how the property moved from being a family property to being conveyed by individual members of the family. He posits that although same may found a cause of action for any member of the Okevwie family to void the sale, the trial court cannot suo motu use that to defeat the action.
On whether the burden of proof shifted to the defendants from the circumstance and facts of the case, learned counsel submits that from the trial courts finding at page 22 of the judgment wherein it held:
I accept the evidence of the claimant that 2nd defendant signed Exhibit B. This makes the 2nd defendant an unreliable witness whose evidence needs proper scrutiny.
the party that has a question to answer as to why the 2nd defendant signed as a witness, to a document by which members of the Okevwie family transferred ownership of the land over which he now claims ownership is the 2nd defendant himself. He argues that the burden of proof is not static but shifts from side to side, and the 2nd defendant having failed to discharge the burden placed on him strengthens Appellants case, entitling the Appellant to judgment learned counsel asserts.
On whether the trial court having made a finding of possession in favour of the Appellant, ought not to have granted the claim for injunction and damages.
It is the submission of learned counsel that the trial court in its judgment having found that Appellants father exercised possessory rights over the land in dispute, and the Respondents having admitted the fact of the claimants fathers possession, whom they alleged was driven out after the court of Appeals decision, the evidence by the Appellant that his father had been in possession from 1977 to his death in 2005 exercising various acts of ownership stood unchallenged. He asserts that a claim for injunction is not necessarily to fail because a claim for title failed unless the land for which the injunction is being sought is not well defined. He contends that the description of the land was well settled by the court having been pleaded and accepted to be known to all parties. Counsel commends the cases of Ngene vs. Igbo (supra) at p. 38 42; Ajukwere vs. Izuoji (2002) FWLR (pt. 115) 666 in support of the preposition, and maintains that the trial court having made a finding of possession in favour of the Appellant ought to have granted the reliefs for damages for trespass and injunction.
In his response to the issues canvassed under issue one distilled by him; whether having regard to the pleading, evidence and exhibits of both parties before the trial court, the court was right in dismissing the Appellants case in its entirety, learned counsel for the Respondent submits that once a claim for trespass and injunction is canvassed by a claimant, the ownership of the land is automatically put in issue. Counsel commends the following authorities on the issue: Florence O. Carrena & Anor. Vs. Chief Gaferu Arowolo & 2 Ors. (2008) 167 LRCN 85 at 93; Michael Udenze & 5 Ors. vs. Nwosu & 4 Ors (2008) 154 LRCN 110.
It is the further submission of counsel from the Appellants claim, as pleaded in the statement of claim, the ownership of the land has automatically been put in issue. The defendant from response also claiming the land in dispute puts the burden on the Appellant to strictly prove the title of the family he bought from.
Learned counsel contends that from the nature of the pleadings, the paramount issue permeating the entire case is that the Okevwie family whom the claimants father bought from, are not the rightful owners of the parcel of land in dispute. He states that the Respondents clearly led evidence to show how the land was founded by their ancestors and thereby devolving to him and other descendants of the Omovwiare family. He further contended that the Appellant in his entire pleading and evidence at the trial court, failed to lead evidence to prove the root of title of the Okevwie family in spite of the Respondents strong assertion that the land in dispute forms part of Ugbusi land property of Omovwiare family and that the Okevwie family including the claimants father were trespassers.
He contends that the Appellant having abandoned their reply to the statement of defence, and to rebut the Respondents assertions. The following facts are deemed unchallenged and undisputed:
(a) The land in dispute forms part of the Ugbusi land adjudged to be property of the 2nd Respondents family by the Supreme Court in SC/138/2002 delivered on 15th June, 2007 (see pages 104 107 and 141 142 for depositions of 2nd Respondents, DW1 and DW2).
(b) The root of title of 2nd Respondents family as regards the entire Ugbusi land including the land in dispute (see pages 104 107 of the records).
(c) Acts of ownership exercise by 2nd Respondents family over the land (See pages 105 106 of the record).
(d) Okevwie Family has no right to sell the land in dispute as they are not from Omovwiare Family but trespasser.
He further submits that where there is a claim for damages for trespass and injunction, and the defendant alleges that the land belongs to him the plaintiff must not only prove that he was in possession of the land when the trespass was committed, but must also show that his own title to the disputed land is better than that of the defendant. Reliance is placed on the case of Anthony Idesoh & Anor. Vs. Chief Paul Ordia & Ors. (1997) 47 LRCN 520 at 522. It is the further contention of counsel that Appellant cannot be said to have proved a better title than that of the Respondents in the face of the copious unchallenged evidence as to the root of title of the 2nd Respondents family. He further submits on the authority of Oyadiji vs. Olaniyi (2005) All FWLR (pt. 288) 1083 at 1086 that once a party pleads and leads evidence tracing his root of title in an action for declaration of title to land to a particular person or source, and the averment is challenged by the adversary, the plaintiff must not only establish his title to such land, he must also satisfy the court as to the title of the person or source from whom he claims. He adduced reasons as to why the finding of the Lower Court that 2nd Respondent signed Exhibit B, and the Appellant submits that the 2nd defendant ought to be estopped from laying claim as being misconceived. He is of the view that the finding of the trial court dismissing the Appellants claim as having support in law, and urged this court not to interfere. He anchors this proposition on the authority of Benedict Otanma vs. Kingdom Youdubagha (2006) All FWLR (pt. 300) 1579.
On the argument whether the Lower Court ought to have granted the claim for trespass and injunction, counsel maintains that same is not granted against a defendant who has shown a better title to the land in dispute. He cites and relies on the case of Peter Ojoh vs. Owuala Kamalu & Ors. (2006) 6 WRN 110 at 130. He contends that the finding of the Lower Court that Exhibits A & B are at variance with the Appellants statement of claim as to the size and dimension and thereby dismissed Appellants claim is supportable in law. He urged the court to consider both oral and documentary evidence before it which the court must consider in line with the decision of A.G. Anambra State vs. A.G Federation & 35 Ors. (2005) 131 LRCN 2357 at 2365 and finally to resolve the issue in favour of the Respondents.
I have accordingly given due consideration to the arguments of learned counsel on the issues in contention, and I am of the humble view that the question begging for resolution, is whether the trial court in view of the oral and documentary evidence adduced before it, was right to have dismissed the Appellants claim for damages based on trespass and injunction, and if so, whether Appellant was entitled to an order of injunction against the Respondent. The claim of the Appellant at the Lower Court as set out before now is straight forward. Appellant who is suing on behalf of the late Peter Ohwotu Onosigho family of Otoredo claims that his late father bought the land subject of this dispute from the Okevwie family of Iweherkpokpor Ughelli, and that he inherited the said land under Urhobo native law and custom. It is his claim also that while in peaceful possession of the said land, Respondents trespassed on to the said land sometimes in 2009.
The Respondents, particularly 2nd Respondent on his part asserts that the land in dispute forms part of the Ugbusi land adjudged by the Supreme Court in suit No. SC/138/2002 as the property of the 2nd Defendants family called the Omovwiare family of Iwhrekpokpor, and thus laying claim to the same land.
The position of the law is that once a claim for trespass and injunction is placed on the burner by a claimant, then title/ownership of the land is put in issue. As stated by Ayoola JSC in Agu vs. Nnadi (2002) 18 NWLR (pt. 798) 103 at p. 117, where he stated:
Title to land can be put in issue in a court by pleading expressly that the plaintiffs claim is based on his title or impliedly by claiming damages for trespass and injunction.
See also Akinawo vs. Adewoye (2015) All FWLR (pt. 787) 627 at 644; Mrs. Florence O. Carrena & Anor. vs. Chief Gafaru Arowolo & 2 Ors. (2008) 167 LRCN 85 at 93; Michael Udenze & 5 Ors vs. Nwosu Nwosu & 4 Ors. (2008) 154 LRCN 110; Omotayo vs. C.S.A (2010) 16 NWLR (pt. 1218 p1 at P. 21, where Ogbuagu stated:
Once a defendant claims to be the owner of the land in dispute as in the instant case, title is put in issue and to succeed in his action, the plaintiff must establish by credible evidence that he has a better tile that the defendant. And this he does by relying absolutely on the strength of his case and not the weakness of the defence except where that weakness tends to strengthen or support the plaintiffs case. In the instant case, the plaintiffs case was for damages for trespass and an order of injunction.
From the pleadings of the Appellant particularly paragraphs 1 and 4 of the statement of claim, the Appellant expressly stated that his claim is for damages for trespass and injunction anchored on the fact, that he is the beneficial owner and the one entitled to a statutory right of occupancy over the said land. It goes without saying that the ownership of the land has been made an issue before the Lower Court. This is more so, as the Respondents equally claims the land in issue as being part of the 2nd defendants family land.
The established position of the law is that the burden of proof lies upon that party who affirms and not upon him who denies. The Apex Court in Elias vs. Omo-Bare (1982) 5 SC 25 stated:
It is the established position of the law that the burden of proof lies on the party who alleges the affirmative. The burden of proof lies on the party who will fail in the case where no evidence is given. Depending on the state of the pleadings, the burden which commences usually with the plaintiff or claimant may shift to the defendant. The imperative position of the law remains that he who asserts must prove. Civil suits are decided on preponderance of evidence.
Where a claimant fails to prove his case as required by law, then he cannot be entitled to judgment. It was the contention of the learned counsel for the Respondents that where there is a claim for damages for trespass and injunction and the defendant alleges that the land belongs to him, the plaintiff must prove not only his title to the disputed land, but also prove that they had a better title than that of the defendant. I am in full agreement with learned counsel on that score; for as stated in Anthony Idesoh & Anor. vs. Chief Paul Ordia & 5 Ors (1997) 47 LRCN 520 at 522 523:
Where plaintiff claims for damages for trespass and injunction and the defendant alleges that the land belongs to him, the plaintiff in order to succeed has to prove not only that he was in possession of the land when the trespass was committed on it but also that his own title to the land in dispute is better than that of the defendant. This is because in the circumstances, title to the land in dispute is put in issue. Therefore in order to succeed, the appellant in this case had the burden of proving not only that they were in possession when the alleged trespass was committed by the respondents but also that their own title was better than that of the respondent.
Furthermore, this court in Ololuwa Fayemi vs. Awe (2009) 15 NWLR (pt. 1164) 315 faced with a similar situation not unlike the instant case, held:
Firstly, that in the instant case, Respondent relied on the deed of conveyance as his source of ownership duly authenticated and executed without fault, but by virtue of Section 45 of the Evident Act, where the title or interest in family or communal land is in issue, oral evidence of the family or communal tradition concerning such title is relevant. See Dike vs. Nzeka II (1986) 4 NWLR (pt 34) 144.
This position of the law has not changed for as stated in Apena vs. Aileru (2015) All FWLR (pt. 790) 1256 at 1283, the onus is upon that party and anyone claiming through him to establish the claim to an exclusive grant of the family or communal property.
The reason for this state of the law as stated by my brother Abiriyi JCA in Akinawo vs. Adewoye (2015) All FWLR (pt. 787) 627 at 644 645, is that:
It is settled law that where two parties claim to be in possession of land, the law ascribes possession to the one who has a better title. See Olusanya vs. Osinleye (2013) All FWLR (pt. 693) 1930.
In Ameen vs. Amao (2013) All FWLR (pt. 682) 1663, Peter Odili JSC stated thus:
There are two types of possession;
1. Actual physical possession;
2. Possession imputed by law, which is derived by title. As a follows up, the issue of possession takes a back seat where title has been proved to reside in the other party. It is in the light of that, that once in an action for trespass such as the current one and title is put in issue, the decisive question that arises is who has proved the better title. Then when the claiming party fails in his bid to prove title or radical title as called, then it is not necessary to consider the act of possession that stems from such a failed title claim.
In the instant case, the trial court held that appellant at the trial court failed to prove title to the disputed land as required by law. At pages 217 of the records, the court stated:
In summary claimants case is that the land in dispute was bought by his father from members of the Okevwie family in 1977 and he took possession of it. The great burden on the claimant is to establish the sale and that the vendor in the sale had a valid title to pass to his father. The burden does not shift and therefore the claimants success depends on it. Has claimant established that, outside the evidence of Daniel Okevwie. The burden does not end in establishing the sale and of greater importance and relevance to claimants case is whether the vendors have proper title to convey to the claimants father. This is more so when the 2nd defendant is claiming that the land was founded by his ancestors. The claimant in his evidence understandably could not properly trace how the Okevwie family came about the land since he is not a member of the family. Not being a member of the Okevwie family, his evidence as to how the Okewvie family became owner of the land will amount to hearsay and such evidence will be inadmissible.
This holding of the Lower Court is based upon a sound established principle of law. The Appellants having traced their root of title to the Okevwie family as the vendor in Exhibits A and B the documents of title and the defendant having challenged the title to the disputed land, the Appellant has the legal duty placed on them to prove the root of title of their vendor (the Okevwie family) failing which their claim would have no leg to stand on. This court in the case of Bureimoh Oyadiji vs. Osulolae Olaniyi & 4 Ors. (2005) All FWLR (pt. 288) 1083 at 1086 also cited as (2005) 5 NWLR (pt. 919) 561, held:
Once a party pleads and traces his root of title in action for declaration of title to land to a particular person or source and the averment is challenged, to succeed the plaintiff must not only establish his title to such land, he must also satisfy the court as to the title of the person or source from whom he claims.
The legal principle therein is that in order to succeed in a claim of title to land, based on traditional history, the claimant must plead and lead evidence showing:
(a) How his ancestor derived title to the land
(b) The person who founded the land
(c) Particulars of the intervening owners.
(d) The person(s) on whom the title to the land devolved since the founding of the land.
The trial court was eminently correct when it observed that the death of one Daniel Okevwie, whose deposition hitherto filed, cannot be used not having been adopted, dealt a big if not fatal blow to the claimants case. This is because the claimant now failed to lead evidence as to how the Okevwie family became owners of the land sold to his father. Indeed there is a fundamental disconnect between the land in dispute and how their vendor became owners of the land.
Interestingly, the Appellants appreciated this position of the law, but argued that the 2nd defendant/Respondent having signed the document of sale as a witness thereto is estopped from laying claim to the land in dispute thereby satisfying this important requirement that the claimant must establish the root of title of their vendor. The Lower Court faced with this argument stated:
If the vendors in Exhibit A & B have no valid title to pass, it means whatever title passed is void. The void transaction will not necessarily become valid simply because the 2nd defendant signs or sanctions the transaction.
The trial court is absolutely correct. The position of the law is that it is not permitted for a plaintiff who pleads a particular root of title and fails to prove that particular root of title to rely on another mode of acquisition of land not pleaded by him as his root of title to support his claim. In other words, the plaintiff cannot rely on the 2nd defendants signature on the title documents to shore-up their contention that the Okevwie family are without more the owners of the disputed land. See Ude vs. Chimbo (1998) 12 NWLR (pt. 577) 169; Omotayo vs. CSA (supra) at p. 169.
On whether the trial court ought to have granted the claim for trespass and injunction in spite of the plaintiffs failure to prove title, the stand of the Lower Court to the effect that a claim for trespass and injunction is not granted against the defendant who shows a better title to the land in dispute. The cases of Anthony Idesoh & Anor. (supra); Omotayo vs. CSA (supra) and Apena vs. Aileru (supra).
The state of the law long established is that where a court of trial which saw, heard and watched the demeanor of the witnesses has come to specific findings of fact upon the evidence adduced before it, an appellate court based on the cold records placed before it should refrain from reaching a different finding(s) unless and until it can be shown that the findings and or the conclusions did not emanate from the evidence adduced.
I am of the view that the Lower Court fully comprehended and appreciated all the issues raised in this case, and adequately dealt with them. The conclusions reached on the points cannot be faulted and this court must be slow in interfering with the findings and conclusions reached. The inevitable conclusion is that issues 1, 2 and 3 submitted by the Appellant must be determined against him.
Issue 4.
Whether the trial court was not wrong in ordering the appellant to forfeit the bond of N100,000 (One hundred thousand Naira) to the respondents merely because appellants case failed.
It is the contention of learned counsel for the Appellant that the trial court was wrong when it held that the suit was frivolous and thereby ordered the Appellant to forfeit the bond merely because the Appellant lost his case. It is the further contention of learned counsel that from the records, the Appellant pursued the case diligently up to the judgment stage, and all the Respondents was entitled to was costs, as costs follow events. He urged upon the court to hold that the trial court was wrong to have ordered the Appellant to forfeit the bond to the Respondent merely because Appellant lost his case, and when the court did not adjudge the case as frivolously being the basis for forfeiting the bond.
In his response on the issue Mr. Alibor is of the opinion that the trial court was right in ordering the Appellant to forfeit the bond to the Respondent, his reason being that the order for injunction sought i.e to prevent the construction of the mast by the 1st Respondent. He contends that the purpose for seeking the injunction as at that time was frivolous and the court was right to have made the order in terms of the order as it was meant to be forfeited to the Respondents.
It should be recalled that the Appellant by way of a motion on notice dated the 4/3/2009 and filed on the 05/03/2009, prayed for an order of interlocutory injunction restraining the defendants/Respondents, their agents, privies, servants, employees, workmen, builders or whosoever through whom the defendants/Respondents may act from further entering upon, trespassing, building on, erecting on or in any way further interfere with the plaintiff ownership/possessory rights over all that piece or parcel of land ………………., pending the determination of the substantive suit. On the 17th of July, 2009, the Lower Court manned by C.E. Achilefu (Mrs) J, granted the application, wherefore the Appellant entered into a bond in the following manner:
In Chief E.K. Stanley Onosigho, the plaintiff/appellant herein do hereby put myself under bond and make myself liable to pay the sum of N100,000 to the defendant/Respondents in this case should the order of interlocutory injunction granted by this court on 17/7/2009 in my favour and against the defendant/Respondents turned out to the undeserved and or frivolous.
That I enter into this bond pursuant to the aforesaid order.
Dated this 5th day of August, 2009.
Signed
Chief E.K. Stanley Onosigho
Plaintiff/Applicant
The order being referred to is the order of court granting the interlocutory injunction to the effect:
The claimant/Appellant shall enter into a bond of understanding to the tune of N100,000 as required by law to pay damages to the defendants/Respondents in the event that this application is found to be frivolous and should not have been granted. There shall be no order as to costs.
The Lower Court in furtherance thereof stated:
The motion was granted in favour of the claimant and having lost the substantive case, the claimant is hereby ordered to forfeit the bond of N100,000 only to the defendants.
A frivolous claim according to the Blacks Law Dictionary 8th Edition is that claim that has no legal basis or merit especially one brought for an unreasonable purpose, such as harassment. The fact that because a party lost a case does not necessarily impute that the action is frivolous. Obaseki JSC in Obeya Memorial Specialist Hospital vs. A.G of the Federation & Anor. (1987) 7 SC (pt. 1) 52 stated the law wherein he stated that an interim relief by way of an injunction does not depend nor is it necessary that a plaintiff or applicant should make out a case as he would on the merits, it being sufficient that he should establish that there is a substantial issue to be tried at the hearing. See also Agbaje vs. Ibru Sea Foods Ltd. (1972) 5 SC 7: Laddunni vs. Kukoyi (1072) 3 SC 30; Buhari vs. Obasanjo (2003) 11 SC 74.
It has been established that the Appellants father did buy the land in dispute. This is by virtue of Exhibits A & B. There is also the contention by the Appellant that since the year 1977, his late father had been in possession of the land, which unfortunately could not translate to ownership. It is my view therefore that the Appellants application seeking to protect that piece of land he fervently believed belongs to him, and having pursued and prosecuted his case with vigor, he cannot be said to be frivolous. As rightly indicated, the Appellant having lost his case, the victor can be compensated with costs. I agree with the Appellant therefore that the action not being frivolous, the terms of the bond cannot be executed to his disadvantage. Moreover, as to whether the application was frivolous or not was not determined by the Lower Court. This issue succeeds in favour of the Appellant.
The end result is that the appeal on issues 1, 2 and 3 are adjudged as lacking in merit and the appeal dismissed on same.
Issue 4 however succeeds and the appeal on same is allowed thus setting aside the order for forfeiture made by the Lower Court. For Clarity, the judgment of the Lower Court on issues 1, 2 and 3 formulated by the Appellant which is akin to issue 1 formulated by the Respondents is hereby upheld, and thereby affirmed while issue 4 by the Appellant, which is issue 2 by the Respondents is allowed, and the decision of the Lower Court as to the N100,000 to be forfeited to the defendant is hereby set aside.
This appeal succeeds in part and I make no order as to costs.
PHILOMENA MBUA EKPE, J.C.A.:
I had the advantage of reading in draft, the judgment just delivered by my learned brother H. A. BARKA JCA. He has painstakingly ploughed through all the issues canvassed by learned counsel in this appeal. I am in total agreement with the reasoning and the conclusions arrived therein that issues one, two and three be resolved in favour of the Appellant while issue No.4 is resolved in favour of the Respondent. Consequently, this appeal is also allowed in part and I make no order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.:
I have been afforded opportunity of reading in advance the lead judgment of my learned brother HAMMA AKAWU BARKA, JCA. I am in agreement with the reasoning and conclusion expressed in the judgment which I adopt as mine.
For the reasons adumbrated in the lead judgment, I also hold that the appeal succeeds in part and I abide with the consequential order on cost.
Appearances
Oghenero Okoro, Esq.For Appellant
AND
J. Alibor, Esq.For Respondent
