EKONG ARCHIBONG v. UTIN J. UTIN
(2012)LCN/5249(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of March, 2012
CA/C/142/08
RATIO
TORT: ON THE DEFINITION OF TRESPASS TO LAND AND ON WHOM LIES THE ONUS TO ESTABLISH EXCLUSIVE POSSESSION OF A LAND IN QUESTION IN ORDER TO SUCCEED IN A SUIT
Generally in law, trespass to land connotes and means an unauthorized interference with exclusive possession of such land. Every unauthorized invasion of or intrusion into private property in possession of a person, be it so minute or no matter how slight, would amount in law to the tort of trespass to land. Trespass involves a wrongful entry into a land in possession of another who did not consent to the entry and is the slightest disturbance to possession by a person who cannot show a better title to the land in question. See ATUNRASE v. SUNMOLA (1985) 1 SC. 349, (85) 1 NWLR (1) 105; FOREIGN FINANCE V. L.S.P.D.C. (1991) 5 SCNJ, 52 at 74; ADEGBITE v. OGUNFAOLU (1990) 4 NWLR (146) 578 (90) 211 NSCC (3) 65; RUNSEWE V. ODUTOLA (1996) 4 NWLR (441) 143; INYANG V. REG. TRUSTEES, F.C.G.C. (2006) ALL FWLR (314) 278 AT 301. From the above definition, it is clear that an action in trespass is based on exclusive possession of land and it lies against the whole world, so to say, except a person who, ‘has and can show a better title to the land in question. So for a claim in trespass to succeed, a plaintiff must either show that he, in law, has exclusive possession of the land or that he is the owner of the land. The degree of control that amounts to exclusive possession sufficient to ground a claim on trespass, would vary from case to case and depend largely on the peculiarities of each case. However a trespasser ab initio, does not by his act of trespass secure possession in law against the person in respect of whom he was in trespass. See AROMIRE v. AWOYEMI (1972) 2 SC 1; AYINLA v SIJUWOLA (1984) 1 SCNLR 410; AKINGBADE v. ALIMOSHO (1964) 1 ALL NLR 154; UDE v. CHIMBO (1998) 12 NWLR (577) 169 at 194; ADELAJA V. FANOIKI (1990) 2 NWLR (131) 137; OLAOYE V. BALOGUN (1990) 21 NSCC (3) 212. The law places the burden of proof on a claimant to establish exclusive possession of the land in question in order to succeed in the suit. AJEIGBE v. ODEDENA (1988) 3 SCNJ 52; ANIMASHAUN v OLOJO (1990) 21 NSCC (3), 306; OSHO v FOREIGN FINANCE CORP. (1991) 4 NWLR (184) 157; UGORJI v ONWU (1991) 3 NWLR (178) 177. Per. MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: THE POSITION OF THE LAW WHERE AN EVIDENCE UNCONTROVERTED AND UNCHALLENGED
It is not the law that the court must at all times accept and use unchallenged and uncontroverted evidence, hook, line and sinker to as a matter of course, enter judgment for a party giving the evidence. The court still has the duty to assess such evidence along with the claim made in respect of which it was given and be satisfied of its credibility and sufficiency to sustain the claim, in law. In the case of ADELAKUN v ORUKU (2006) ALL FWLR (308) 1360 at 1373, it was held that:- “The proposition that when evidence is uncontroverted and unchallenged, it must be accepted in proof of the issue in contest is applied only when the evidence itself is credible.” See also IFEANYICHUKWU CO. LTD. V. AKHIGBE (1999) 11 NWLR (625) 1; IYERE V. B.F.E.M. LTD. (2008) 18 NWLR (1119) 300 at 341-2; INIAMA V. AKPABIO (2008) 17 NWLR (1116) 225. Per. MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
EKONG ARCHIBONG Appellant(s)
AND
UTIN J. UTIN Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant had taken a writ of summons against the Respondent at the High court of Akwa Ibom state, sitting at Ikot Ekpene on which the following claim was endorsed:-
“1. N35,000.00 special and general damages in that in about the month of March, 1990 and in subsequent months of 1990 and also in 1990 the defendant without the consent or authority of the plaintiff broke and entered into the plaintiff’s farm at Ukpom that in the quiet and undisturbed possession of the plaintiff and harvested palm fruits, cassava tubers, plantains and bananas.”
The above claim was repeated at paragraph 4 of the Statement of Claim dated the 31/7/91 and a further claim for special damages was made at paragraph 5. A Statement of defence was filed for the Respondent and the matter proceeded to trial during which the Appellant testified as the sole witness In support of the claims and tendered three (3) exhibits. Though an application was filed for the Respondent to be granted leave to call evidence in support of the statement of defence, after the appellant closed his case and it was adjourned by judgment, there is no record that evidence was called by the Respondent in support of the statement of defence. Eventually, in a judgment delivered on the 12/3/2003, the Appellants claims were dismissed by the High Court for lacking in merit completely.
Being aggrieved by the dismissal of his claims, the Appellant filed an initial notice of appeal, containing a single ground, dated the 31/3/2003, against the decision. The Appellant was granted leave by the court to amend the notice of appeal and the Amended notice of appeal was filed by the Appellant on 12/8/2011.
In the Appellant’s brief filed and deemed the same date with the amended notice of appeal, two issues were distilled from the two grounds of appeal contained therein as follows:-
“1. Whether the land, upon which this action in trespass is founded, was from the alleged acquisition of the school by the government the property of government. (Distilled from Ground 1 of the appeal).
2. Whether the plaintiff did not prove his claim in the trespass against the Defendant. (Distilled from Ground II of the grounds of appeal).
Two substantially similar issues were formulated in the Respondent’s brief of argument filed on the 3/01/2012. An Appellant’s Reply Brief was also filed on the 25/01/12 and the briefs were adopted at the oral hearing of the appeal on the 1/2/2012 as the submissions by learned counsel for parties in support of their respective positions in the appeal which they urged us to uphold.
Since the issues raised by the learned counsel for the parties are substantially the same, I would adopt the issues submitted in the Appellant’s brief for determination of the appeal.
The submissions of the Appellant on his Issue 1 are that the land upon which his action was founded remained his property even after the acquisition of the Archibong Memorial Secondary School by the government. After setting out definitions of “school” and “Assembly’, it was contended that “school” is not synonymous with lands and buildings and that the land in dispute was not formally acquired in accordance with regulations on land acquisition and as directed in the Government White Paper. That where a Government White Paper conflicts with the provisions of the law, the law prevails and that Appellant had led evidence to establish that the land in dispute is different from the school and was in his possession. It was then submitted for the Appellant that since no evidence was led in support of the statement of defence, his evidence remained unchallenged and uncontroverted and that the law is that it should be accepted and acted upon by the court. reliance was placed on CAPPA v. AKINTILO (2003) 14 NSCLR 419 at 474 and HALI v. ALLIED COMM. EXPORTERS LTD. (1961) ALL NLR, 917 and we were urged to hold that the High Court was in error when it held that the land in dispute was that of Government from the time of the acquisition of the school. We were urged to resolve the issue in Appellant’s favour.
On Issue II, it was submitted that the Appellant had proved that he was in possession of the land in dispute by planting crops and economic trees and so was entitled to claim for trespass except against the owner of the land. The cases of SALAMI v. LAWAL (2008) 161 LRCN 3 at 5; EKPAN v. UYO (1996) 3 NWLR 26; OKOROBO v. AIGBE (2002) 3 SCNJ 109 at 112 were cited and it was further argued that the Appellant had led unchallenged evidence that Respondent had entered the land and harvested the crops without permission and authority of the Appellant and so liable for trespass. In addition, it was argued by learned counsel for the Appellant that the Appellant had given evidence of special damages which entitled him to succeed on such claim on the authority of CROSS LINES v. THOMPSON (1993) 2 NWLR (273). We were urged to resolve the issue in Appellant’s favour and in conclusion, to allow the appeal on the two grounds and set aside the decision of the High Court.
For the Respondent, it was submitted on the Issue 1 that by the acquisition of the school by the Government the land in question was the property of the government as it was part of the school acquired. It was pointed out that since the Appellant had conceded that he was not challenging the acquisition of the school, the school includes the buildings and the land on which they were built. That where giving ordinary meaning to a statute would lead to manifest absurdity or injustice, the court is enjoined to resort to the rule of interpretation that will not lead to such absurdity or injustice. The case of TEXACO v. SHELL (2002) 2 SCNJ, 102 at 105 – 6 was referred to on the position and it was argued that the issue of compensation for the acquisition of the school was not an issue before the High Court and cannot be raised in this appeal. According to the learned Chief State Counsel who settled the Respondent’s brief of argument, Samuel Essien, the government had been in actual possession of the school and its premises since the acquisition in 1975 and that by his pleadings evidence, the Appellant had admitted that he planted crops and economic trees in the school premises. We were invited to invoke the principle of “quic quod plantatur solo solo cidit” and hold that the crops and trees belonged to the Government.
Furthermore, it was contended that Exhibits 2 and 3 are not part of the record of appeal and the court cannot go on a voyage of discovery to examine the Exhibits to determine the Appellant’s claim. We were urged however to rely on the reproduction of Exhibit 2 at page 147, lines 5 – 15 of the record of appeal and it was said that Appellant cannot maintain an action in trespass against the Respondent who was in lawful possession of the land in dispute and had better title vide the acquisition by the Government, relying on ECHERE V. EZIRIKE (2006) 12 NWLR (994) 386 at 390. We were urged to resolve the issue in Respondent’s favour.
On the Issue 2, it was submitted that the Appellant had the duty to prove his claim which is in respect of land, even when the Respondent did not call evidence because he had to succeed on the strength of his case and not on the weakness of the Respondent’s case. The cases of OYANMA v. YAKUBU-BANGHA (2006) 2 NWLR (964) 337 at 340 and EGWA v EGWA (2007) 1 NWLR (1014) 71 were cited and it was argued that Exhibit 2 had controverted the evidence of the Appellant which did not show how he acquired title to the land on which the school taken over by government was situate. Similarly, that the Appellant had the burden of proving trespass which he failed to discharge and so the High Court was said to be right in dismissing his claims. In conclusion, we were called upon to resolve all the issues in favour of the Respondent, dismiss the appeal and affirm the decision of the High Court.
In the Appellant’s Reply brief, it was said that where the provisions of a statute are clear and unambiguous, the court is enjoined to give effect to them without resort to any intrinsic or external aid, on the authority of TEXACO v SHELL (supra). It was conceded at paragraph 3.01 that compensation for the acquisition such as payment of compensation to him of the school or land in dispute was not raised before the High Court or in this appeal by the Appellant, but that the land was never acquired since conditions precedent to proper acquisition such as payment of compensation to him, were not satisfied. Exhibit 3 was referred to in the argument in which it was said the focal point was that even though the school was acquired or taken over by the government, steps to acquire the land were never taken and so, according to counsel, “the land enclosing the school remains Appellant’s land and not government land.” That Appellant was in possession since he cultivated the land by planting crops and economic trees. It was also maintained that the Appellant had established possession of the land in dispute by the unchallenged evidence which the court must accept by the authority of WELLE v. BOGUN-JOKO (2007) 6 NWLR (1029) 125 at 132. It was also submitted that since the Respondent did not lead evidence in support of his statement of defence, it was in law deemed abandoned as was held in CONSOLIDATED RESOURCES LTD. v. ABOFAR VENTURES (NIG) LTD. (2001) 6 NWLR (1030) 221 at 225. In addition, it was argued that the Appellant did not need to prove title to succeed since his claims were for trespass which is based on possession. All other submissions made in the Appellant’s Reply’ brief are mere repetitions and not answers to new points raised in the Respondent’s brief.
From the claims “for special and general damages for damages” as set out earlier, the suit by the Appellant is clearly based on the issue of trespass to the land in respect of which claims were made.
Now, speaking generally in law, trespass to land connotes and means an unauthorized intereference with exclusive possession of such land. Every unauthorized invasion of or intrusion into private property in possession of a person, be it so minute or no matter how slight, would amount in law to the tort of trespass to land. Trespass involves a wrongful entry into a land in possession of another who did not consent to the entry and is the slightest disturbance to possession by a person who cannot show a better title to the land in question. See ATUNRASE v. SUNMOLA (1985) 1 SC. 349, (85) 1 NWLR (1) 105; FOREIGN FINANCE V. L.S.P.D.C. (1991) 5 SCNJ, 52 at 74; ADEGBITE v. OGUNFAOLU (1990) 4 NWLR (146) 578 (90) 211 NSCC (3) 65; RUNSEWE V. ODUTOLA (1996) 4 NWLR (441) 143; INYANG V. REG. TRUSTEES, F.C.G.C. (2006) ALL FWLR (314) 278 AT 301.
From the above definition, it is clear that an action in trespass is based on exclusive possession of land and it lies against the whole world, so to say, except a person who, ‘has and can show a better title to the land in question. So for a claim in trespass to succeed, a plaintiff must either show that he, in law, has exclusive possession of the land or that he is the owner of the land. The degree of control that amounts to exclusive possession sufficient to ground a claim on trespass, would vary from case to case and depend largely on the peculiarities of each case. However a trespasser ab initio, does not by his act of trespass secure possession in law against the person in respect of whom he was in trespass. See AROMIRE v. AWOYEMI (1972) 2 SC 1; AYINLA v SIJUWOLA (1984) 1 SCNLR 410; AKINGBADE v. ALIMOSHO (1964) 1 ALL NLR 154; UDE v. CHIMBO (1998) 12 NWLR (577) 169 at 194; ADELAJA V. FANOIKI (1990) 2 NWLR (131) 137; OLAOYE V. BALOGUN (1990) 21 NSCC (3) 212. The law places the burden of proof on a claimant to establish exclusive possession of the land in question in order to succeed in the suit. AJEIGBE v. ODEDENA (1988) 3 SCNJ 52; ANIMASHAUN v OLOJO (1990) 21 NSCC (3), 306; OSHO v FOREIGN FINANCE CORP. (1991) 4 NWLR (184) 157; UGORJI v ONWU (1991) 3 NWLR (178) 177.
I would determine the Appellant’s Issue 1 on whether the land in dispute was property of the Government by the acquisition of the school first.
In paragraph 1 of the Appellant’s statement of claim, he had averred thus:
“The Plaintiff is a businessman and Proprietor of Archibong Memorial Grammar School, Ukpom and is the owner in possession of the entire land on which Archibong Memorial Grammar School stands within the jurisdiction of this Honourable Court.”
By this pleadings, the Appellant had claimed to be the owner in possession of the land on which the Archibong Memorial Grammar School was built. Then in paragraph 3, the Appellant deposed that he had cultivated part of the school land, to show acts of ownership and possession of the land. The Appellant while testifying in support of the claim had stated inter alia at p.135, lines 21- 25 that, “I am aware that the then Government of Cross River State had take (sic) over Primary and Schools. I am not quarelling about the Government taking over Archibong Memorial Grammar School. I am quarrelling about my crops and appurtenances that have been taken over by the defendant,”
As may be recalled, learned counsel had, also said that the Appellant did not challenge and, is not challenging the take over or acquisition of the school by the Government in this appeal. The only complaint by the Appellant was that by his understanding of the meaning of the word “school” the land on which the school in question stands or was built, was not part of or included in the take over by the Government and so he still retained ownership and possession of the land. In deciding the issue, the High Court had in its judgment made reference to the Law (Edict No, 5 of 1975) under which the school was acquired and one of the documents pleaded and, relied on by the Appellant at the trial, i.e. Exhibit 2: Report of Commission of Inquiry, of which the Appellant was a member as it affected the school in question. This is what the High Court said-
“In 1975 the government of Cross River-State, then a Military regime under the Education Edict No. 5 of 1975 secured all private schools and institutions as public Schools Act Institutions. Sections 11(3) of the Law provided thus:
“Subject to the provisions of sub section (5) of this Sections, any school’ or institution whatsoever established, prior to the commencement of this Edict; In a voluntary agency, an individual or a community or a group of communities shall be deemed to be public school or institutions established by or under the Provisions of this Edict.”
Subsections (4) and (5) make provision for payment of compensation to proprietors of private schools or institutions. Consequent upon these provisions for compensation the Government of cross River state in 1976 set up a Panel on “Compensation to Proprietors of Private Schools.” That Panel was headed by a senior Magistrate E. R. Nkop (as he then was) as the Chairman with three other members among whom was the plaintiff in this case. The report o-f the Panel was tendered before me and admitted as Exhibit 2, In Exhibit 2 the findings and the recommendations of the panel as affecting Archibong- Memorial Grammar school are to be found on pages 119 – 125. At page 124 of the report, the Panel recommended payment of compensation to the proprietor in respect of –
(a) Buildings
(b) Land
(c) Equipment
(d) Establishment of business and Goodwill
In respect of the land i.e. item (b) the Panel however had this to say:
(ii) Payment on item B, that is Land, shall be suspended until title to this land is properly assigned by Chief Akpan Udo Ekong to the said Ekong Archibong. Ekong Archibong here is the plaintiff.
Government issued a Wite Paper in respect of the panels Report. The White Paper is contained in Official Document No. 4 of 1978. Page 5, No. 8 of the White Paper deals with the report as affecting land. This is what Government had to say:
Land:
The Panel recommends that depending on the nature of the title held by the proprietor, the locations of the school and any continuing obligations as a condition for the grant of the land, Government should pay compensation for the land taken over.
Comments-
Government does not accept this recommendation. None of the proprietors claiming compensation was able to establish before the Panel his legal title to the land. In most cases, land was donated or negotiated with communities or group of families on the basis of lands scholarships without any legal transfer of title. In addition, in accordance with current government policy land for the building of schools is donated rent free by the communities as part of their contribution to the establishment of the school. Accordingly, government has decided that no compensation will be paid for land. The Chief Lands Officer should formally acquire the land in question from the communities in accordance with the existing regulations on land acquisition for the construction of educational institutions.
From the foregoing, it is clear that when in 1975, government took over private schools and institutions, government acquired the land, the buildings and other structures of the schools and institutions. Efforts by the proprietors of private schools and institution to be paid compensation in respect of the land failed. As a matter of fact, government never recognized the proprietors as having title or right to the land encompassing the schools.
This position taken by the government affected Archibong Memorial Grammar School which is involved in this case. The land from the time of acquisition of the school became the property of government.
The Panel never recommended that the proprietors of private schools taken over by the government were entitled to the crops on the land. In any case that would have been an absurd recommendation.
The conclusion is that the plaintiff had been completely divested of his right over Archibong Memorial Grammar School including the land and the crops thereof.”
The Appellant’s argument that only the school was acquired or taken over by the government and not the land on which it stands or was built is undoubtedly absurd, incomprehensible and defies wisdom ever practically, let alone under the clear provisions of the law pursuant to which the school was acquired by the Government as set out by the High Court above. Even as a matter of common knowledge, a school does not exist in the air but must be built on land, the boundaries of which are clearly marked and identified as forming the premises and part of the school. A school comprises of the buildings, other structures, appurtances and parts of the identified and demarcated land on which no buildings or other structures were built or placed by the authorities of the school. The definitions referred to and relied on by the Appellant relates only as to the number of people who can assemble for the purpose of continuing education that came under the Education Act of Eastern Nigeria, be known as a school. However, ever under that law, a school had to have a physical identity and a place of abode or address to be able to practically carry on the purpose for which the people assemble. Practically therefore, a school, for the purpose of carrying out continuous education, must be on an identified land and have buildings to be used by the people who assembled for the purpose. It would therefore be a gross misconception to suggest that a school is different from the land on which it was built or that the land on which a school stands, does not form part of the school.
Let me point out that the case of the Appellant is not that the land on which the school was built was different from the land in respect of which his claim was based. In the above premises, even though the evidence of the Appellant was not challenged, it did not establish that he is in law, the owner of the land on which the school stands as at the time the cause of action was said to have arisen. It is not the law that the court must at all times accept and use unchallenged and uncontroverted evidence, hook, line and sinker to as a matter of course, enter judgment for a party giving the evidence. The court still has the duty to assess such evidence along with the claim made in respect of which it was given and be satisfied of its credibility and sufficiency to sustain the claim, in law. In the case of ADELAKUN v ORUKU (2006) ALL FWLR (308) 1360 at 1373, it was held that:-
“The proposition that when evidence is uncontroverted and unchallenged, it must be accepted in proof of the issue in contest is applied only when the evidence itself is credible.”
See also IFEANYICHUKWU CO. LTD. V. AKHIGBE (1999) 11 NWLR (625) 1; IYERE V. B.F.E.M. LTD. (2008) 18 NWLR (1119) 300 at 341-2; INIAMA V. AKPABIO (2008) 17 NWLR (1116) 225.For that reason, the failure by the Respondent to give evidence in support of the statement of defence did not mitigate the duty of the Appellant to prove his claim by credible, sufficient and admissible evidence at the trial. The Appellant was to succeed on the viability and strength of the case he made out on both pleadings and evidence and not by the mere absence of a defence to the claim he made against the Respondent.
Since the Appellant is not challenging the acquisition of the school in question by the Government, I am in agreement with the finding by the High Court above that the Appellant was and had been completely divested of whatever right he had over the land on which the school stood and still stand, by act of the acquisition. From the date of the acquisition, the Appellant had effectively ceased to have any right of ownership over the said school and on the land forming its identified premises. The government had, with effect from the date of the acquisition, taken over ownership and control in law of the school and its premises. In the case of YESUF v OYETUNDE (1998) 12 NWLR (579) 485 at 493, it was held that:
“once there is compulsory acquisition of land, the title of the former owner becomes extinguished by the reason of the acquisition.”
In the result, the Appellant’s evidence did not establish that as at the date of his action, he was in law, the owner of the entire land on which the school stands, as claimed by him. I therefore resolved Issue 1 against the Appellant.
Issue II is whether the Appellant has proved his claim for trespass. I have stated before now that the tort of trespass is the unauthorized interference with the exclusive possession of land. Although the evidence of Appellant has been found not to have established, that he was the owner of the land in dispute, the Appellant can still claim, trespass if he is able to establish exclusive possession which may not have to be based on ownership of or title to the land. See UGORJI v ONWU (supra) FAGUNWA v. ADIBI (2004) 7 SC (II) 99; ANSA v. ASHIE (2005) 6 SC (II) 42. In line with the case of EGHERE v EZIRIVE (supra) at page 1613, the Supreme Court had stated the Principle thus:
“A claim for trespass is not dependent on declaration of title. This is because, trespass is an injury to a possession right and therefore, the proper plaintiff in such action is the person who was or who is deemed to have been in possession.”
In this appeal, the claim by the Appellant that he was in possession was based on the claim of ownership of the land in dispute made in paragraph 1 of the statement of claim set out earlier in this judgment. It was on the basis of that claim that he further claimed in paragraph 3 of the statement of claim that he had “raised cultivated oil palm, planted cassava, plantains and bananas.” Since the evidence called by the Appellant did not show or establish ownership, as found in Issue 1, the foundation, basis or ground upon which the claim for possession was made, appears to have been lost.
As noted elsewhere in the judgment, the Appellant has pleaded in paragraph 2 of the Statement of Claim and testified in his evidence that the Respondent was at the material time to the action, the Principal of the School. The effect of the averment and evidence of the Appellant is that the Respondent had a lawful right to access, or enter the school premises in the discharge of his ordinary official duties as the principal of the school. In fact, as the Principal of the school, the Respondent was the person or official who had the duty to take care of, control and manage the school both administratively and physically. He had the responsibility to secure and properly maintain the school premises for the purpose of the continuing education it was established for. In law, the Respondent as the principal, was in possession of the school for the Government whose acquisition and therefore ownership, was not disputed by the Appellant. The Respondent was therefore deemed in law to have been in lawful possession of the school and its premises covering the land in dispute in the Appellant’s suit. That possession was exclusive. That being the position, the acts of cultivating part of the land on which school stands by the Appellant did not automatically translate into lawful possession of the land by him so as to form the basis of the claim for trespass against the Respondent who, by the admission of the Appellant, had better title through the government. I have said before now and it was restated by the Supreme Court in the case of OJOH v. KUMALO (2005) 12 SC (II) 1 at 15 that:-
“Now the law is settled that a trespasser does not by his acts of trespass, secure possession.”
From the case put forward by the Appellant at the High Court, he did not prove that at the time material to his claim, he was in lawful and exclusive possession, merely by his act of cultivating the land in dispute without interference. The Respondent was in lawful possession and had a right to enter into the school which includes the land in dispute. The Appellant has, consequently failed to establish the claim for trespass against the Respondent. The issue is resolved against the Appellant.
With the resolution of the two issues in the appeal against the Appellant, the appeal is lacking in merit. It is dismissed and the decision of the High Court is hereby affirmed. Parties to bear their respective costs of prosecuting the appeal.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privileged of reading in draft form the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA.
The Appellant in his pleadings and in his oral evidence agreed that the Cross River State Government had acquired the Res as far back as 1975. At that time the Res and a lot of other private schools were acquired by Government. The white paper on this acquisition refused to pay compensation for land.
It is impossible for Government to acquire the School without the land where the building stands. The doctrine of Quic quid plantatur solo solo cedit means that whosoever owns the land also owns what is on the land, attached to the land, fixed to the land or found on the land. Ikyaawan v. Ajivah (1997) 4 NWLR pt.499 page 365.
The Appellant had never denied that the Cross River State government had acquired the School. Can it therefore be said that the government only acquired the buildings and not the land on which the school stands? I think not. I believe that the Appellant is just flying a kite. If he succeeds for trespass he may later sue for and claim back the school. Every layman knows that a building cannot stand on thin air. It must stand on a piece of land. Can the Cross River State government own the buildings making up the school and not the land the school buildings is standing on?
I think not.
The Appellant’s School has been acquired and with it the land the school is standing on. Therefore, the cross River state government owns the school and the land on which the school is standing on. If there is a trespasser it is the Appellant himself. For this and the more comprehensive reasons in the lead judgment I also find the appeal unmeritorious. This appeal is dismissed by me also. I abide by all the consequential orders contained in the lead judgment.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading before now the lead judgment of my lord, Mohommed Lawal Garba, JCA just delivered. There is no doubt that his lordship has comprehensively considered and determined the issues in the appeal and I adopt the reasoning as mine. Consequently I agree that the appeal lacks merit and it is dismissed by me while I abide by the consequential orders in the lead judgment.
I make no order as to costs.
Appearances
Chris EkpoFor Appellant
AND
Samuel Essien, CSC, MOJ, Akwa Ibom StateFor Respondent
