CHIEF JIMOH WUSU & ORS v. CHIEF AMOS DAVID & ORS
(2014)LCN/6862(CA)
RATIO
LAND LAW: ONUS OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND
On issue one, it is settled law that the normal onus of proof in a claim for declaration of title to land is on the plaintiffs to prove their case and in so doing they must rely on the strength of their case and not on the weakness of the defendants whose duty is only to defend the action brought against them. See BANKOLE V. PELU (1991) 8 NWLR (PT 211) 523 FAMORUTI V. AGBEKE (1991) 5 NWLR (PT 189) 1; OBIASO V. OKOYE (1989) 2 NWLR (PT 119) 80; KODILINYE V. ODU (1935) 2 WACA 336.
However, in BURAIMOH V. BAMGBOSE (1989) NWLR (PT 109) 352, the Supreme Court point out that the acronym that a plaintiff must, in a claim for declaration of title, rely on the strength of his own case and not on the weakness of the defence now admits of a number of recognized exceptions. Thus it has no place where there are facts and factors in the defendant’s case which support that of the plaintiff. See also MADAM I. ARASE V. PETER I AROSE (1981) 5 SC 33 at 35. In OKPALE V. IBEME (1989) NWLR (PT 102) 208 two exceptions were given on when a plaintiff can rely on the case for the defence. Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
WHO IS ENTITLED TO BRING AN ACTION FOR TRESPASS TO LAND
It is now established by authorities, that every person in possession of land can bring action for trespass against any person other than the true owner, or a person with a better title in respect of an interference with his possession. This is because exclusive possession gives the person in possession the right to remain in possession and to undisturbed enjoyment of it against every person except one who can establish a better title. See AMAKOR V. OBIEFUNA (1974) 3 SC 67, ADESHOYE V. SHOWONIKU 14 WACA 86 and ATUNRASE V. SUNMOLA (1985) 1 NWLR (PT 1) 105.
It is also the law that in order to maintain an action for damages for trespass to land the plaintiff must have possessory right to the land to which his claim relates. AYANBOYE V. BALOGUN (1990) 9 – 10 SC 1; ECHERE V. EZURIKE (2006) 12 NWLR (PT 994) 386 and WOLUCHEM V. GUDI (1981) 5 SC 291.
It must also be pointed out that a claim for trespass is not dependent on the success of the claim for declaration of title. They are both separate and independent of each other and the claimant can succeed in a claim for trespass and injunction even where his claim for declaration of title fails. See BALOGUN V. AKANJI (2005) 10 NWLR (PT 933) 394. Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
