ISAAC SUNDAY OLUFEMI ADERINOYE v. LEGIT GLOBAL INVESTMENT LIMITED (2014)

ISAAC SUNDAY OLUFEMI ADERINOYE v. LEGIT GLOBAL INVESTMENT LIMITED

(2014)LCN/7362(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 8th day of July, 2014

CA/I/16/2011

RATIO

LAND LAW: RECLAMATION OF LAND; THE MEANING OF RECLAMATION AND WHETHER RECLAMATION OF LAND HAS OR SHOULD HAVE THE SAME EFFECT OF CONFERRING RADICAL TITLE ON THE PERSON FIRST CLEARING LAND

Reclamation semantically, is rendered as “the process of bringing economically unusable land to a higher money value by physically changing it; e.g. draining a swamp, irrigating a desert, replanting a forest” – see Black’s Law Dictionary 6th Edition.

TORT: TORT OF TRESPASS TO LAND; WHETHER IN AN ACTION FOR TRESPASS, A DEFENDANT MAY NOT SET UP A JUS TERTII

If the respondent is unable to procure the Oshola Aribido family to prove a better title than the appellant’s to whom respondent has accorded possession by payment of monetary consideration then the respondent cannot merely set up the title of a third party – the Oshola Aribido family.
This is setting up a “jus tertii” i.e. – “right of a third party” this is not permissible in the tort of trespass whether to land or chattels. In Jeffroes V. Great Western Rlyco (186) 5 E & B, the facts were that the defendant wrongfully siezed trucks in the possession of the plaintiffs and raised the defence that title to them was in a third party i.e. they pleaded jus tertii. Lord Campbell C.J. declared the law thus:
“It was essential for the interest of society that peaceable possession should not be disturbed by wrong-doers, a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrong doer, and cannot defend himself by showing that there was a title in some third person; for against a wrong doer possession is title.”
So if a defendant has infringed the plaintiff’s possession, he cannot plead the jus tertii unless he defends under the authority of a title paramount – Wilson Vs. Lombank Ltd. (1963) 1 All ER 740. In Shell BP Ltd. V. Abedi & Ors (1974) 1 All NLR 1 at 19 Fatayi Williams put the law succinctly in these terms:
“It is well settled that in an action for trespass, a defendant may not set up a jus tertii. He may set up a title in himself or show that he acted on the authority of the real owner.”
and in another powerful level, Aderemi JCA in Adelakun V. Iseogbekun (2003) 7 NWLR (pt. 819) 295 held that:
“a party cannot be heard to contend that the right to the land in dispute vest in another person.” per. NONYEREM OKORONKWO, J.C.A.

JUSTICES:

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

ISAAC SUNDAY OLUFEMI ADERINOYE – Appellant(s)

AND

LEGIT GLOBAL INVESTMENT LIMITED – Respondent(s)

NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): At the High Court of Ogun State, in suit No. AB/151/2009 that gave rise to this appeal, the learned trial judge Honourable Justice N.I. Saula, in dismissing the plaintiff’s case declared in the penultimate paragraph of his judgment of 27/10/2010 thus:
“I acknowledge the industry of the claimants counsel in this case particularly his beautiful final address – but it is trite that counsel’s address however brilliant can never take the place of evidence not given particularly as declaration of title cannot be granted a claimant on mere admission by the defendant or the mere ipsi dixit of claimant.”

Having thus dismissed the plaintiff’s claims, the plaintiff being dissatisfied lodged a Notice of Appeal dated 30th November, 2010 wherein as appellant he raised the following 8 Grounds of appeal which are herein reproduced.

GROUNDS OF APPEAL

Ground 1
The judgment is against the weight of evidence.

Ground 2
The learned trial judge erred in law which occasioned a miscarriage of justice when he held:

“The claimant only gave evidence and tendered Exhibit ‘A’ his survey plan on the land and he called no witness.
On one side of the land in dispute as depicted on the Survey Plan No. LDC/OGS/1116/2004/157P drawn by Tayo Oluwaniyi (Registered Surveyor) dated 16/3/2004, is the Badaru/Falola family land.
The claimant in this case did not call any member of that family, the boundary men of the land in dispute to give evidence of his open acts of ownership on the land. He did not call any of the wine tappers he gave palm trees to, to tap wine therefrom, neither did he call any member of his own family who derive income from the land to testify”.

PARTICULARS OF ERROR
i. The trial judge is not a judge of which person should be called as witness. That is the function of counsel conducting the case.
ii. It is a fact that the claimant gave evidence of his sundry open acts of ownership on the land in dispute.
iii. The defendant did not cross examine the claimant on his evidence of sundry open acts of ownership.
iv. That the evidence of the claimant alone, if credible and cogent is sufficient to sustain the claims of the claimant.
v. That there was nowhere in the judgment where the evidence was rejected by the learned trial judge.
vi. That the success of a declarative judgment is not premised on a plethora of witnesses but on the credibility and cogency of the evidence of the witness or witnesses.

Ground 3
The learned trial judge misdirected himself on the burden of proof and thus came to a perverse conclusion thereby occasioning a miscarriage of justice when he held:

“In a claim for title to land it is necessary for the claimant to proffer credible evidence in support of his claim and his mere ipse dixit will not suffice.”

PARTICULARS OF ERROR
i. A land case is a civil case. It does not require proof beyond reasonable doubt.
ii. There is nothing ‘mere’ about any evidence just because it was given by a person interested.
iii. Ipse dixit is admissible evidence capable of being cross examined, impeached, admitted and or left uncontradicted like any other evidence.
iv. Ipse dixit been admissible, the weight to be placed upon it depends on the circumstances.
v. The said ipse dixit is not incredible since it was not disbelieved and or rejected by the learned trial judge.
vi. The fact is that the said ipse dixit of the claimant is unchallenged, unimpeached and uncontradicted.
vii. The judgment is premised on the assumption that the claimant’s ipse dixit is no evidence capable of sustaining a declaration of title.
viii. That the assumption upon which the judgment is premised had led to a miscarriage of justice.

Ground 4
The learned trial judge erred in law when he held that:

“In his evidence before the Court he said people around particularly those having land around the swamp were surprised that he could reclaim the swamp, yet he called not even one of them to testify on his behalf.
It is unfortunate that the claimant has produced no such evidence before this court to even warrant my consideration of the defendant’s case.”

PARTICULARS OF ERROR
i. Provided the evidence of witness is admissible and relevant; it is for the trial court to evaluate the evidence and decide the case on the preponderance of evidence adduced by the parties.
ii. The fact is that there is evidence of the reclamation of the land in dispute albeit from the claimant before the court.
iii. The said evidence was unchallenged under cross examination and therefore uncontradicted.
iv. Where a fact in evidence is uncontracdicted, the need for further evidence on same becomes unnecessary.
v. The said evidence was not disbelieved and or rejected by the court.

Ground 5
The learned trial judge erred in law and fact when he held:

“It is his evidence that he reclaimed a swamp, whose owner he did not say…”

PARTICULARS OF ERROR
i. If a thing is self evident, it does not require evidence.
ii. The unchallenged and uncontradicted evidence of the claimant before the court is that the land in dispute used to be a waste swamp.
iii. Exhibit ‘B’ tendered by defendant through the claimant confirmed the land in dispute to be a waste swamp.
iv. The unchallenged and uncontradicted evidence of the claimant is to the effect that “…no person or group of persons challenged his right to reclaim same on behalf of his family.”
v. Reclamation presupposes that no other person is laying claim to the said parcel of land in dispute except the reclaimer i.e. claimant in this suit.

Ground 6
The learned trial judge erred in law when he held:

“In effect I have no alternative but to dismiss the claimant’s claims since the other claims are dependent on the success of claim 1 which he failed to prove.”

PARTICULARS OF ERROR
i. The claimant’s claims are for declaration of title, injunction and damages for trespass.
ii. Trespass is an infraction on possession and not title.
iii. Injunction is a complete answer to trespass.
iv. Prior possession of the land in dispute was not in issue on the pleadings.
v. There is unchallenged and uncontradicted evidence of claimant’s prior possession against the whole world but the true owner or person claiming through same.
vi. Failure to prove title is not fatal to trespass and injunction.

Ground 7
The learned trial judge erred both in law and fact when he held:

“As regards the issues formulated for the court’s consideration by the claimant, there was no sufficient fact placed before me upon which I could base the determination of issue 1 upon which issue 2 rests.”

PARTICULARS OF ERROR
i. It is apparent from the pleadings of the parties that the prior possession of the claimant was not in dispute.
ii. That the evidence of claimant’s prior possession was unchallenged under cross examination and thus uncontradicted.
iii. It is the duty of the court to rely and or act on unchallenged and or uncontradicted evidence in so far as same is admissible, credible and cogent.
iv. The claimant’s evidence of various open acts of ownership was unchallenged and uncontradicted.

Ground 8
The learned trial judge abdicated his duty to evaluate the evidence placed before him before arriving at his decision dismissing the claimant’s claim and thus erred both in law and fact occasioning a miscarriage of justice.

PARTICULARS OF ERROR
i. It is the duty of the trial court to evaluate all the evidence placed before it.
ii. In its duty of evaluation of evidence, the trial court will have to state whether it believed or disbelieved the evidence of a witness and also state the reason for such belief or disbelief.
iii. It is a fact in this case that no such evaluations exercise was done.
iv. The non evaluation of evidence is clearly premised on the holding of the court that “mere ipse dixit” is unavailing to the claimant in a claim for declaration of title.
v. That the non evaluation of evidence has occasioned a miscarriage of justice.

The appellant’s claim as plaintiff in the lower court and the facts of the case as narrated by the appellant in his brief is restated thus:

“INTRODUCTION:
By an Amended statement of claim dated 04/05/2010 (hereinafter called the “claim”) the Appellant as claimant before the lower court claims:

(a) Declaration of entitlement to the Statutory Right of Occupancy to the land in dispute.
(b) An injunction against the defendant and her privies from further trespass.
(c) Two Hundred and Fifty Thousand Naira (N250,000.00) only, damages for trespass thereto.
(d) Such further orders the court may deem fit and as per the Writ of Summons.

Pages 21-22 of the Records.
The case of the claimant was that he reclaimed the land in dispute which was formerly a waste swamp, same being the boundary to a parcel of land acquired by his father during his life time from the Oshola Aribido family. Upon reclamation unchallenged, he exercised sundry open acts of ownership thereon, also unchallenged from year 2000 till sometime around October/November 2007 when defendant laid claim to same though said defendant later recognized both his possession and title and negotiated with him to lease part thereof after sand-filling same which culminated in the payment of a deposit. The defendant however defaulted in payment of the balance under the pretence that it had discovered that the land is acquired land of Ogun State Government. Claimant disputed any such acquisition since he was never served any Notice of Revocation of his right over same and neither was he compensated. Claimant was thus prevented by defendant’s hoodlums from entering the land. All attempts to get the defendant to vacate the land proved futile, Pages 20-22 of the records.

By its statement of Defence dated 04/09/2009 (hereinafter called the “Defence”) the Respondent herein as Defendant before the lower court traversed in general terms all the allegations of fact contained in the claim. It stated that it bought the land from the Oshola Aribido family. That, while it was negotiating with the swamp owners, the claimant presented himself as one of such persons, relying on a Survey Plan which he dropped with the defendant to convince her. The defendant had paid N1, 500,000.00 (One Million, Five Hundred Thousand Naira) only as part payment to the claimant when it got to know that the land belonged to the Oshola Aribido family who had earlier sold same unknowingly to it. Upon investigation, it was confirmed that Oshola Aribido’s father did not sell the land in dispute to the claimant and upon discovery of claimant’s misrepresentation, it demanded for the return of its money which claimant promised to pay back. The claimant not having any locus standi to institute this suit, the defendant prayed for a dismissal of same. Pages 11-12 of the Records.

The claimant adopted as his evidence, his Statement on Oath filed 12/04/2010. Pages 17-19 of the Records. He tendered Exhibit A without objection in support of his case while Exhibits B and C were tendered through him under cross examination. He did not call any other witness. The defendant’s sole witness adopted as his evidence his Statement on Oath filed 14/09/2009 – pages 14-15 of the Records. He tendered Exhibit D. He was not cross-examined. Pages 23-30 of the Records.

At the close of evidence and address of counsel, the learned trial judge dismissed the claimant’s claim. Defendant’s address is at pages 32-37 of the Records while claimant’s address is at pages 40-45 of the Records. The judgment is at Pages 46-58 of the Records.

Being dissatisfied with the whole judgment dismissing the claimant’s claim, the claimant appealed to this Honourable Court. The Notice and Grounds of Appeal is at pages 59-62 of the Records.

From the grounds of appeal filed, the appellant formulated the following three issues for determination:

ISSUES FOR DETERMINATION IN THIS APPEAL
(i) Whether a prima facie case was not established by the claimant/appellant upon his pleadings and evidence before the trial court to warrant a consideration of the defendant’s/respondent’s evidence? GROUND 2, 3, 4 & 5.
(ii) Whether on the pleadings and evidence, the trial court was justified in dismissing the claims for damages for trespass and injunction despite the dismissal of the claim for declaration of entitlement to the right of occupancy of the land in dispute which is not conceded? GROUND 6.
(iii) Whether on a proper evaluation of the evidence before the trial court, the said court is justified in dismissing the claimant’s claims? GROUND 1, 7 & 8.

Arguing issue No.1 as formulated in his brief, the appellant contend that his (appellant) case was founded on the fact of reclaiming the land which was a wasteland swamp and upon reclaiming the land, he became possessed of the reclaimed land and exercised numerous and sundry acts of ownership and possession thereon to the exclusion of everyone from the year 2000 until the defendant/respondent’s act of trespass. As part of the act of ownership and possession of the reclaimed land, the appellant entered into negotiation and eventual agreement for a lease of part of the reclaimed land with the respondent in consideration of which the respondent paid the appellant a deposit of N1,500,000.00 which the respondent admitted although respondent now claimed that such payment was in error because respondent got to know the land belonged to a third party the Oshola Aribido family.

Appellant argue that on the fact, having regards to the admission implicit in the negotiation for a lease of part of the reclaimed land with the respondent, and the subsequent payment of the sum of N1,500,000.00 as part payment by the respondent, the respondent is estopped from denying or contesting the title of the appellant relying on Ihenacho Nwaneri & Ors v. Nnadikwe Oriunea (1959) FSC 132 at 137.

As between the appellant and the respondent, the appellant argued that the numerous acts of ownership and possession including the negotiation and payment of the sum of N1,500,000 for part of the land whether by lease or sale was sufficient to justify for declaration of title and trespass and that having regards to the state of the pleadings and the admission implicit thereby, the evidence of the appellant alone (which the learned trial judge described as “mere ipse dixit”) was sufficient evidence to justify the grant of the declaration sought and the damages and injunction claimed. On the value of such “Ipse dixit” evidence appellant cites Ahmed Debs & Anor. v. Cheico (Nig.) Ltd. (1986) 6 S.C. 179 at 179-180 where Eso JSC contributed thus:

“…I agree with him that there is nothing wrong with, “ipse dixit” as a piece of evidence. It is admissible and the weight to be placed upon it would depend on the circumstances. A party’s ipse dixit could be cross-examined like any other evidence. It could be impeached with another evidence. It could be admitted. It could be left just uncontradicted. It is for the court, in evaluating the evidence to take every circumstance into consideration.”

Appellant contends his “mere ipse dixit” evidence is valid evidence and as it stood, “was not impeached under cross examination neither was there any cross examination by respondent on appellant “sundry acts of ownership on the land”. Appellant further argue that even as “mere ipse dixit” (as the learned trial judge labeled appellant’s testimony), same was admitted and corroborated by paragraph 6 of the respondent statement of defence thus:

The Defendant states that the Claimant had received the sum of N1, 500,000.00 (One Million, Five Hundred Thousand Naira) as part payment of his alleged swamp land when the Defendant got to know from the Oshola Aribido family that the swamp belonged to the Oshola Aribido family and not to the claimant family since the said swamp was not part of the land sold to the Claimant’s father.

On the “quantity” of evidence to sustain a declaration, the appellant argue that the law does not impose on a party to litigation any duty to call a certain number of witnesses to prove a point neither does it insist on any mode of evidence citing Chief (Mrs) F. Akintola v. Mrs C.F.A.D. Solano (1986) 4 S.C. 141 at 151 where Coker JSC avowed thus:

“The law does not require in a case for declaration of title or for damages for trespass for a plaintiff to call a multitude of persons as witnesses or any particular class of persons as such…. The trial judge is not a judge of which person should be called as witness. That is the function of counsel conducting the case.”

Expatiating the point, appellant contends that there was ample pleading in this statement of claim that appellant reclaimed the land from wasteland swamp and thereafter possessed and exercised acts of ownership thereon. It was not disputed that the appellant so reclaimed the land in the defence nor was it averred that some other than the appellant reclaimed the wasteland. Appellant postulates that the fact of reclamation implies that the land in dispute belong to no one before the reclamation. On these facts, appellant posits that his evidence not having been discredited under cross-examination and the evidence of appellant’s sundry acts of ownership not having been challenged; it was open to the trial judge to act upon such evidence relying on Kopek Construction Ltd. Vs. Johnson Keleola Ekisola (2010) 1 S.C. (pt. 1) 1 at 56 as the evidence remains unchallenged and can sustain the declaration sought and the damage claimed.

On issue No.2, the appellants refer to the pleadings and restate that the question of possession of the land in dispute by the appellants and the exercise of sundry acts of possession on the land in dispute directly or through agents including the respondent was not in issue as same were admitted in the defence.

Appellant now questions the justification for the trial judge to dismiss the appellant’s claims for trespass and injunction as if those claims could not exist independently of the claim for declaration. In a claim for trespass, the appellant asserts that a defendant sued in the tort of trespass cannot set up the right of a third party as did the respondent who pleaded that title in the land resides in the Oshola Aribido family who were neither parties nor were called as witnesses.

Finding some legal substratum for the argument, appellant reasons thus:

“It is trite law that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is not the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrong-doers except a person who can establish a better title.
Therefore, anyone other than the true owner, who disturbs his possession of the land, can be sued in trespass and in such an action, it is no answer for the defendant to show, (as the defendant/respondent) had sought to show in paragraph 7 of his Statement of Defence, although he gave no evidence in support of this averment), that the title to the land is in another person. To resist the plaintiff’s claim, a defendant must show either that he is the one in actual possession or that he has a right to possession.”

On Onus of proof, the appellant contend that the appellant having been shown to be in possession of the land in dispute by the respondent who admitted same and even negotiated and paid for part or portion thereof, the onus was on the respondent to prove that inspite of such possession, the appellant was not the owner of the land. The Oshola Aribido family that the respondent pleaded as owners were not parties in the suit neither were they called as witnesses thus leaving the operation of Section 149 (b) of the Evidence Act to hold sway unaffected.

Further on this issue, the appellant argues that a claim for declaration of title to land coupled with a claim for trespass and injunction are distinctive claims capable of existing independent of each other and that it was erroneous for the trial judge notwithstanding the clear fact of possession in the appellant’s favour to proceed to dismiss the claims for damages for trespass and injunction merely because he (the trial judge) had dismissed the claim for declaration of title. Appellant put his argument in the following terms:

In Prince Ngene vs. Chike Igbo & Anor. (2000) 2 SC (pt. II) 40 at 51, Ogundare JSC stated:
“Although Plaintiff failed in his claim for title, that failure does not necessarily mean that his claim in trespass must fail because trespass is a violation of possessory right and does not involve title to land…Plaintiff’s possession in this case is good title against the whole world except the true owner of the land.”

Ayoola, JSC at page 63 thereof stated:

“the claim for trespass and injunction is not dependent on the claim for declaration of title, clear and exclusive possession is sufficient to sue in trespass….The two courts below have found that the Plaintiff was in prior exclusive possession. That is sufficient to justify the judgment against the defendant in trespass and injunction.”

The above is in line with the decision in Fagbemi Akano v. Moses Alabi Okunade & Ors. (1978) 3 SC 91 at 98 where Obaseki JSC stated:

“The issue of possession is separable from the issue of radical title … and in our opinion; there is great merit in the submission. Any form of possession, so long as it is clear and exclusive and exercised with the intention to possess is sufficient to support an action of trespass against a wrong doer.”

And as stated by Idigbe JSC, approving of Lord Kenyon C.J. in Graham Vs. Peat in the case of Nosiru Adeniji v. Morinatu Ogunbiyi (1965) NMLR 395 at 397 “any possession is a legal possession against a wrong doer.”

This Honourable court is urged to hold that the learned trial judge erred in law when at page 58 of the Records he held that “in effect I have no alternative but to dismiss claimant’s claims since the other claims are dependent on the success of claim 7 which he failed to prove.”

On issue No.3, the appellant alleges improper evaluation of evidence by the trial judge and urges the Court of Appeal to exercise that function which the trial judge failed to do especially as all the requisite materials were before the court citing S.B. Fashanu v. M.A. Adekoya (1974) 1 All NLR (pt. 7) 35 at 41. Appellant believes he (appellant) made out a prima facie case as to oblige the trial judge to consider all the appellant’s case and the respondent’s case and come to a decision after ascribing probative values to the case of each side and coming to a decision thereafter, citing A.R. Mogaji & Ors, vs. Madam Rabiatu Odofin & Ors. (1978) 4 S.C. 65 at 67.

Further on the facts and evaluation of evidence, the appellant points out the Respondent who alleged that the land in dispute belongs to the Oshola Aribido family did not plead the root of title of that family neither did it plead how or when the family put respondent in possession. Again, the appellant point out, from the Statement of Oath of the respondent at paragraph 3-6 thereof, the respondent became interested in the land in November 2007 and yet Respondent’s receipt of the land Exhibit “D” dated 07/07/2007 pre dates the respondent’s first contact with the land. On the contrary, there is Exhibit “C” pleaded by the respondent which is the receipt issued by the appellant dated 18/9/08 and by virtue of which the respondent entered upon the land in dispute. The appellant now contends that the respondent, having obtained access into the land in dispute by virtue of the grant by the appellant is now setting up the title of a third party to defeat the title of the appellant by virtue of which respondent entered. Appellant cites Uzowuru Anukanti vs. Nwahdu Ekuroneyeaso (1978) 1 SC 27 at 35 where it was stipulated thus:

“It is settled that where one party obtains possession of land by another he cannot in law use the possession to support a plea of jus tertii against that other.”

Still relying on Section 149(b) of the Evidence Act appellant contends that once he (appellant) is shown to be in possession he (appellant) by virtue of Section 146 of the same Act is presumed to be the owner citing George Onobruchere v. Ivworomeba Esegine (1986) 2 S.C. 385 at 389 where the following restatement of the law on the subject was given thus:

“Once the defendant admits the plaintiff’s possession of the land in dispute in his statement of Defence, then and there, the plaintiff has on the pleadings discharged the onus of proof cast on him and Section 145 (now Section 146) of the Evidence Act will impose a burden on the defendant to prove the negative namely that the plaintiff is not the owner.”

In conclusion, the appellant by way of summary posits the following points:

That when the admissions and presumptions arising from the pleadings and admissible evidence of the parties are considered, the defendant have no pleadings and or evidence to controvert the claims of the claimant.

It is submitted that there is no justification in law for holding that the ipse dixit of claimant will not suffice to establish a claim for title to land when same was never disbelieved and or rejected and especially when same was never controverted by way of any admissible evidence thus same was materially admitted by the defendant.

That there is no admissible evidence of how the defendant came about being in possession of the land in dispute except through Exhibit C from the claimant.

The pleading and tendering of Exhibit C by the defendant precludes him from raising a plea of jus tertii against its author i.e. the claimant.

It is submitted that there is no justification in law for holding that claimant ought to have called some other witnesses to reprove already proved facts especially since civil cases are decided on preponderance of evidence and not beyond reasonable doubt.

There is no basis to dismiss the claims of the claimant because:
(a) Ipse dixit is admissible evidence.
(b) Claimant made out prima facie case on the pleadings and evidence.
(c) There was no evaluation of the defendant’s evidence.
(d) The defendant’s pleadings contradict its evidence.
(e) The material evidence of the defendant are both incredible and inadmissible.
(f) The evidence of the defendant supports the claimant’s claims.
(g) The claimant is entitled to damages for trespass and injunction even on the pleadings since both are not declaratory in nature.
(h) The success of the claim for trespass and injunction is not dependent on the success of declaration of entitlement to right of occupancy.

and by virtue of appellant’s foregoing submissions urges that the appeal be allowed by reversing the judgment of the lower court’s and substituting for same an order granting the reliefs of the appellant as claimed.

For the respondent, three issues were raised for determination as follows:
1. Whether the learned trial judge rightly or wrongly refused the appellant’s claim for declaration of title.
2. Whether the refusal of the appellant’s claim for injunction and damages for trespass by the learned trial judge occasioned a miscarriage of justice.
3. Whether the refusal of the learned trial judge to consider the defendant’s case is right or wrong.

In arguing issue No.1 of the respondent’s brief, the respondent after giving the facts of the case as earlier given made the following submissions in paragraphs 4.6, 4.7, 4.8 and 4.9 in page 6 of the respondent’s brief thus:

On the other hand, the case of the Defendant/Respondent was that she bought the swamp now in dispute from the original land owner i.e. Oshola Aribido family. It was the case of the Respondent that he had earlier paid a part payment of the sum of N1.5 million out of about N2.5 million to the claimant for the swamp before he got to know from the Oshola Aribido family that the swamp belongs to their family and not the claimant’s family since the said swamp was not part of the land sold to the claimant’s father.

The Respondent submits that, the swamp in dispute could not belong to the claimant’s family because the claimant’s father is not a native of Arepo (where the land is situated) but hails from Ila-Orangun in Osun State. The Appellant’s father became a land owner in Arepo by purchasing same from the Oshola Aribido family and the said swamp did not form part of the land purchased by the Appellant’s father.

The Respondent finally questioned the locus standi of the Appellant to institute the suit at the court below because the claimant is evidently not the owner of the swamp based on his admission against interest that the land which his father bought from Oshola Aribido family shares boundary with the swamp in dispute.

The Respondent respectfully submits that it is crystal clear from the pleadings and evidence of the Appellant’s witness as shown in the Appellant’s case stated above that the Appellant’s family is not the owner of the swamp the subject matter of the dispute.

Concerning the claim for declaration the respondent citing Ugoji vs. Ohukogu (2005) 16 NWLR (pt. 950) argue that declaration of title cannot be granted to plaintiff who has not pleaded the root of his title and that the learned trial judge was right in refusing the declaration sought because the claimant/appellant who claimed to have reclaimed a swamp did not say who the owner was and did not call witnesses to support his claimant/appellant’s various acts of ownership and possession.

Because appellant (as claimant) did not give root of title and did not call witnesses other than himself to testify as to the founding of the land and acts of ownership thereon, the learned trial judge, the respondent argues, was right to refuse the plaintiff/appellant’s claim for declaration of title citing the case of Jinadu v. Esuronbi-Aro (2009) 9 NWLR (pt. 1145) Iroagbara v. Ufomadu (2009) 11 NWLR (pt. 1153) 587; Kodlinye v. Odu (1935) 2 WACA 236; Okulate vs. Awo sanya (2000) 2 NWLR (646) at 530.

Respondent deny that the respondent admitted that title to the land was in the appellant and restates paragraph 5 and 6 of the respondent’s statement of defence thus:

Paragraph 5 – “The Defendant in addition states that initially when they were negotiating with the swamp owners pertaining to the swamp the Claimant came forward and showed himself as one of the swamp owners.”

Paragraph 6 – “The Defendant states that the Claimant had received the sum of N1,500,000.00 as part payment of his alleged swamp land when the Defendant got to know from the Oshola Aribido family that the swamp belonged to the Oshola Aribido family and not to the Claimant family since the said swamp was not part of the land sold to the Claimant’s father.”

Paragraph 9 – “The Defendant states that as a result of the misrepresentation meted out to it by the Claimant, the Defendant made it known to the Claimant and demanded for its money the consequence of which the Claimant promised to pay back.”

and sought to distinguish the case of Ihenacho Nwaneri vs. Nnadikwe Oriuwa supra relied on by the appellant as creating estoppels in appellant’s favour.

Respondent refers to paragraph 4 of the statement of defence where respondent pleaded thus:

“The defendant in response to paragraph 3 of the claim states that there was no any reclamation on the swamp it (the Defendant) bought from the Oshola Aribido family and that the Claimant could not have reclaimed the swamp which was not part of the land bought by his father. The Defendant will rely on the receipt issued to it in exchange for money paid for the said swamp by the Oshola Aribido family – the owner of the said swamp.”

Respondent submits that declaration of title is not granted merely on admission on the pleadings of the defendant and assuming there was any admission, it did not entitle the appellant to the declaration sought and that in this case, the learned trial judge found the evidence of the appellant “non-credible and insufficient.” Respondent agree that the learned trial judge was right in holding that the “mere ipse dixit” of the appellant is not enough and that the appellant ought to have called boundary witnesses and other witnesses to testify to the appellant’s sundry acts of ownership but failed to do so. Respondent urges that this issue be resolved in its favour.

On issue No.2 of the respondent about the propriety of the refusal of the appellant’s claims for damages for trespass and injunction, the respondent argue that by the pleadings and evidence of the appellant at paragraph 9 and 12 of the amended statement of claim, it was the respondent who was in possession of the land in dispute.

Respondent, commenting on the part of the judgment that concerns the claim for trespass and injunction where the learned trial judge held thus:

“As regards the issues formulated for the court’s consideration by the claimant, there is no sufficient fact placed before me upon which I would base the determination of issue No.1 upon which issue 2 rests. In effect I have no alternative but to dismiss the claimant’s claim since the other claims are dependant on the success of claim 1 which he failed to prove.”

The respondent at paragraph 5.9 of their respondent’s brief was quick to deprecate the approach of the learned trial judge’s approach in the following terms:

“the respondent respectfully concedes to the principle of law that failure of the claim for declaration of title does not necessarily mean a failure of claims for injunction and damages for trespass. It is also conceded that claims for trespass and injunction are not dependent on the claim for declaration of title.”

Respondent however contends that having regards to the possession by the respondent which appellant admits, the misdirection by the trial judge on the claims for title and trespass and injunction did not occasion any miscarriage of justice.

Arguing that since 2007 which by the appellant’s own assertion he was removed from the land. (See para. 5.11 and 5.12 of the respondent’s brief) the respondent has been in possession and so the trial judge was right to have dismissed the appellant’s claim for trespass and injunction especially so as the judge had dismissed the claim for title citing Ugoji vs. Onukogu (supra); Olowolagba v. Bakara (1995) 4 NWLR (pt. 387) 116 at 126; Nwosu v. Okunola (1974) 4 SC 21; Amoku v. Obiefuna (1974) 3 SC 62.

Respondent contend that assuming the trial judge was wrong in tying up the claim for trespass and injunction with the rather seperate claim for declaration of title, that to succeed in trespass the appellant has to prove exclusive possession of the land but that evidence showed that it was the respondent that had come into possession and so the trial judge rightly dismissed the associated claims for trespass and injunction relying on Olagunju v. Yahaya (2004) 11 NWLR pt. 883 at p. 24; Ekanem v. Akpan (1991) 8 NWLR (pt. 211) 816 at 631. Respondent place reliance on the dicta in the case bellow, that:-

Gambo v. Tundam (1993) 6 NWLR (pt. 300) 500 at 511
“Supreme Court held in the case of Fabunmi v. Abigail A. Agbe (supra) that where the evidence shows that the Defendant is in possession of a disputed land, the onus is on the plaintiff to show that he has a better right to possession which was disturbed, unless that onus be discharged, the Plaintiff cannot defeat the defendant.”

And Fatoyinbo v. Osadeji (2009) 16 NWLR (pt. 1168) 606
“…A person who has no title over a piece of land but who is in possession may successfully sue for trespass if an entry was made into the land without his consent. However, such a person cannot proceed against the owner or someone who shows some title, which gives him a better right to be on the land. In the instant case, the trial court was right, when it refused to award damages for trespass against the respondents because they had better title, than the appellants, to the land as found by the trial court.”

Respondent argues that where two persons claim to be in possession of land in dispute at the same time, possession thereof would be ascribed to the one with a better title citing the case of Adebayo vs. Ighodalo (1996) 5 NWLR 507.

On the presumptions raised from Section 149(b) of the Evidence Act, the respondent contends that the Section does not apply as the alleged possession of the appellant amount to trespassory acts having regards to the judgment citing Bamgboye v. University of Ilorin (1996) 6 SCNJ 298 at 354 and “Law of Evidence in Nigeria by Sebative Tar. Hon. at 70-71. Respondents urges in favour appellant.

On the respondent’s third issue concerning the decision of the trial judge not to consider the case of the defence, respondent submits that in a claim for declaration of title to land the onus is on the plaintiff (herein the appellant) to satisfy the court that he (plaintiff) is entitled to the declaration sought and that the burden does not shift until the plaintiff has satisfied the court with “cogent and credible evidence.”

In this case, respondent argued, the appellant did not satisfy the trial court on the primary onus and in such situation, the trial court is not obliged to look at the defendant’s case. Respondent rely on Ibe vs. Auta (1998) 2 NWLR (pt. 538) 497; Iroagbara v. Ufomadu (2009) 11 NWLR (pt. 1153) 587; Dim vs. Enemuo (2009) 9 NWLR (pt. 1145) 55; Ugoji v. Onukogu (2005) 16 NWLR (pt. 950) 97; A.R. Mogaji & ors v. Rabiatu Odofin & Ors (1978) 4 SC 65 at 67.

Concerning Exhibit “D” the respondent receipt of purchase and Exhibit C issued by the appellant to the respondent, the respondent argue that the appellant did not make those receipts a ground of appeal and that a consideration of those receipts cannot arise on appeal and especially so as their value in evidence was not considered by the trial judge who did not consider the case of the defendant/respondent. Respondent cited in support Admin General Delta State v. Ogogo (2006) 2 NWLR (pt. 964) 366 at 383; Idika v. Erisi (1988) NWLR (pt. 78) 563 General Oil Ltd. v. Ogunyade (1997) 4 NWLR (pt. 501) 613, and urged that the learned trial judge was right in not making a consideration of the case of the defendant here respondent because the appellant’s case at the court below fell short of the standard required in declaratory actions. In urging the court to resolve issue in favour of respondent, they also urged for the dismissal of this appeal.

I will start a consideration of this appeal by reconstructing the facts as pleaded and given in evidence.

The appellant’s case was that there was a wasteland swamp that adjoins a piece of his family land which his deceased father acquired from the Aribido family. It was not stated that the swamp wasteland ever at anytime belonged to anybody. Appellant began a process of reclamation of the said swamp wasteland to the consternation of everybody around while no one offered any challenge to the appellant’s bid in the reclamation.
Appellant thus reclaimed the swamp wasteland up to where it abuts a Moving stream of water.

Upon successfully reclaiming the wasteland, appellant exercised acts of ownership directly and through others whom the appellant allowed to enter and take profits from the otherwise wasteland. Thus it was, when the respondent – a Property Development Company came and expressed a desire to take a portion of the improved otherwise wasteland from the appellant in consideration of the sum of N2 Million and thereafter a yearly payment. Upon an agreement, the respondent paid the appellant a deposit of N1,500,000.00 and was issued a receipt Exhibit “C” dated 18/9/08.

Respondent on the other hand insist that he (respondent) had negotiated with the Oshola Aribido family and purchased the swamp land and was issued a receipt dated 2/7/07 and that the appellant presented himself to it (respondent) as owner of part of the swamp and that it (respondent) negotiated and paid the appellant in the mistaken belief that it (swamp) belonged to appellant but that in truth, the swamp the appellant claims as his was part of the swamp land he (respondent) had bought from the Oshola Aribido family.

There are thus two purchase receipts Exhibit C dated 18/9/08 from the appellant to the respondent and Exhibit D dated 2/7/07 from the Oshola Aribido family to the respondent. The trial judge had the benefit of Exhibit ‘C’ and ‘D’.
Exhibit ‘D’ predates Exhibit ‘C’ implying that by early July 2007, respondent had negotiated with the Oshola Aribido family and acquired interest in the land by payment. Respondent would thus be presumed to know the extent and dimension of the land he acquired interest in from the Oshola Aribido family. Respondent is not likely then to go negotiating and paying for the same land with and from the appellant more than one year after respondent had paid for it with the Oshola Aribido family unless the later transaction relates to another land that belongs to the appellant. This was the evidence before the trial judge. How he construed it would be the subject of comment hereafter.

Next is the issue of reclamation of the wasteland swamp by the appellant. Neither in the pleadings of the appellant nor the respondent was it averred that anyone else founded the land by any of the five methods recognized by law of which authorities are replete in this case. It was only the appellant who pleaded and testified that he reclaimed the wasteland that was hitherto inhabited by dangerous wild animals.

A common postulate of reclamation in relation to land is that it was not previously owned by anyone or was abandoned. It was a kind of res nullius and the position of law is res nullius naturali ter fit primi occupantis – meaning “a thing which has no owner naturally belongs to the first finder” this is an ancient principle of law and is the basis of most customary law which stipulate that a person who is the first to clear a virgin forest becomes the owner thereof. Reclamation of land has or should have the same effect of conferring radical title on the person first clearing land.
Against this background, it becomes difficult for one to understand the learned trial judge when he said concerning the appellant thus;
“it is his (appellant’s) evidence that he reclaimed a swamp, whose owner he did not say and after reclaiming, the land he (appellant) exercised open acts of ownership over same by giving out the palm trees …”
By definition, land reclaimed presupposes that there was no owner and the person reclaiming became the owner thereof. To require such claimant to produce a prior owner is a contraction in terms.

In the judgment, at page 55 of the record the learned trial judge observed thus:

The claimant in this case did not call any member of that family the boundary men of the land in dispute to give evidence of his open acts of ownership on the land. He did not call any of the wine tappers he gave palm trees to, to tap wine therefrom, neither did he call any member of his own family who derive income from the land to testify.

It was not shown anywhere in the pleadings or in evidence that the boundary of the land in dispute was in issue. From the pleadings, it seems certain that the extent of the land in dispute is well known to the parties and adjoins a portion of land of the appellant which appellant’s father had long ago purchased from the Oshola Aribido family covered by Exhibit ‘B’ and which, perhaps formed the springboard for the reclamation alleged by the appellant. See the Commissioner of Land Tax for the City of London v. The Central London Railway (1913) A.C. 364; Marshall v. The Ulleswater & Co. L.R.7 QB 166; The Attorney General v. John Holt & Co. Etc (1915) 2 N.L.R. 57 at 62, 63, 66 and 71.

As boundary of the land in dispute was not in issue in the case presented by the parties who know the land very well and tendered Exhibit ‘B’ to show land that abuts into it. One wonders why the learned trial judge considered the non existent issue of boundary so crucial as to require that of the appellant.

At the same page 55 of the record, the learned trial judge asserts thus:

“in a claim for title to land, it is necessary for the claimant to proffer credible evidence in support of his claim and his mere ipse dixit will not suffice.”

If the learned trial judge is right, it means that the evidence of a sole claimant/witness however unchallenged and however probable will not be sufficient to justify a decree of declaration of title to land except corroborated by some other evidence or testimony. The quantity of such evidence or testimony the learned trial judge did not specify. Is this position borne out of the case law on the subject? I will consider some and their ambits
(I) In RT Hon. Rotimi Chibuike Amechi v. INEC & 2 Ors 1 SCNJ 1 it was held:
“the court does not make declarations of right either on admission or in default of defence without hearing evidence.
(II) Moses Okhuarobo & 2 Ors v. Chief Egharevba Aigbe (2002) 13 SCM 105
“The court does not make declarations of right either on mere admission or in default of defence without hearing evidence and being satisfied with such evidence.
(III) In Chief Edmun I. Akaninwo & 4 Ors v. Chief O.N. Nsirim & 3 Ors (2008) 1 SCNJ 275.
The court does not make declarations of right on mere admissions or in default without hearing appropriate evidence.
(IV) In Central Bank of Nigeria V. Jacob Oladele Amao & 2 ors (2010) 5-7 SC (pt. 1) 1
“A declaratory relief cannot be granted upon the admission of the defendant in the pleadings and/or without the plaintiff giving oral evidence. However this principle is not without exception.”
And
Chief L.L.B. Ogolo V. Joseph T. Ogolo (2006) 2 SCNJ 235.
“A declaratory relief cannot be granted without oral evidence by the plaintiff even where the defendant orally admitted same in the pleadings.”
My view of the law from a collation of the authorities is that while case law seem to unite in proscribing mere admissions as a basis for declarations, it did not similarly proscribe the sole evidence of a plaintiff in a declaratory action neither did the authorities attempt to specify the quantum of any such evidence by the plaintiff.

In this case, the learned trial judge was of the view that the mere “ipse dixit” of the appellant “will not suffice”. When quantum of evidence from the plaintiff beyond his mere words will suffice, the learned trial judge did not specify. But in Ahmed Debs & Anor. vs. Cheico (Nig) Ltd. (1956) 6 SC 179 there is dicta to the effect that “there is nothing wrong with “ipse dixit” as a piece of evidence. It is admissible and the weight to be placed upon it would depend on the circumstances.
A party’s ipse dixit could be cross-examined like any other evidence. It could be impeached with another evidence. It could be admitted. It could be left just uncontradicted. It is for the court, in evaluating the evidence to take every circumstance into consideration.

In this case, my lord, the trial judge did not seem to make any consideration or evaluation of the “ipse dixit” evidence of the appellant because it was solitary and unaccompanied by other witnesses when the proper position of law is as stated by Coker JSC in Akintola Vs. Solano (1986) 4 SC 141 where his Lordship pronounced thus:
“The law does not require in a case for declaration of title or damages for trespass for a plaintiff to call a multitude of persons as witnesses or any particular class of persons as such… the trial judge is not a judge of which persons should be called as witnesses. That is the function of counsel conducting the case.”

In this case, the learned trial judge being of the, I dare say, erroneous view that the plaintiff’s (appellant’s) evidence was not sufficient to justify a declaratory relief, did not as much as consider the probative value or weight of such evidence and did not express any opinion as to it’s credulity yet proceed to dismiss the claims of the appellant.

Regarding the points raised in issue No.1 of the appellant’s brief and in issue No.1 of the respondent’s brief, I am of the view that there was admissible evidence laid before the trial judge to enable his lordship of the trial court evaluate the evidence on declaration of title and to come to a determination but the trial judge failed to consider what evidence was available but instead proceeded albeit erroneously to dismiss the entire claims of the appellant.

But, was the claim for declaration the only claim before the trial court? No! There was a claim in the tort of trespass coupled with a claim for the equitable relief of injunction. How did his Lordship of trial deal with the claim for trespass and its ancillary accompaniment of injunction? The learned trial judge at pages 57-58 of the records held thus:
“As regards the issues formulated for the court’s discretion by the claimant, there was no sufficient facts placed before me upon which I could base the determination of issue 1 upon which issue 2 rests.
In effect I have no alternative but to dismiss the claimant’s claims since the other claims are dependent on the success of claim 1 which he fails to prove.”

For the avoidance of doubt, claim No.1 was the declaratory claim for title. Claim No.2 was the claim for trespass and injunction. The learned trial judge is of the view that the claim for trespass and injunction depends on the claim for declaration of title and the failure of the former implies the failure of the latter.

Concerning this direction to himself by the trial judge, the learned respondent’s counsel at paragraph 5.9 of page 13 of the respondent’s brief in a moment of five advocacy posited thus concerning the misdirection by the trial judge thus:
“the respondent respectfully concedes to the principle of law that failure of the claim for declaration of title does not necessarily mean a failure of claims for injunction and damages for trespass. It is also conceded that claims for trespass and injunction are not dependent on the claim for declaration of title.”

Appellant’s counsel had earlier supplied the case law on the subject in Prince Ngene v. Chike Igbo & Anor (2000) 2 SC (pt. 11) 40 at 51, where the following restatements of the law was made, per Ogundare JSC.

“Although plaintiff failed in his claim for title, that failure does not necessarily mean that his claim in trespass must fail because trespass is a violation of possessory right and does not involve title to land … plaintiffs possession in this case is good title against the whole world except the true owner of the land.”

Ayoola JSC

“The claim for trespass and injunction is not dependent on the claim for declaration of title. Clear and exclusive possession is sufficient to sue in trespass the two courts have found that the plaintiff was in prior exclusive possession. That is sufficient to justify the judgment against the defendant in trespass and injunction.”

And in Akano v. Okunade & ors (1978) 3 SC 91 at 98 Obaseki had earlier restated thus:
“the issue of (trespass and injunction) is separable from the issue of radical title…and in our opinion, there is great merit in the submission – Any form of possession, so long as it is clear and exclusive and exercised with the intention to possess is sufficient to support an action of trespass against a wrong doer.

So, on the logic of case law, the learned trial judge was in error to dismiss the claim for trespass just because he (trial judge) considered the claim for title not made out and erroneously believed that trespass and injunction was dependant on title.

In this case, as the evidence tended to show, appellant testified that he reclaimed the swamp wasteland and possessed it directly and through agents and consistent with his (appellants) acts of possession let in the respondent upon a monetary consideration evidenced in Exhibit ‘C’ dated 18/9/08 through which respondent gained entry into the land in dispute.

The evidence of the respondent was that he had earlier bought the same land from the Oshola Aribido family and obtained a receipt Exhibit “D” dated 2-7-07

This means, the respondent before paying the appellant N1,500,000.00 for the land had earlier bought the same land from Oshola Aribido family vide Exhibit “D”. One incident of customary land purchase is the handing over of the land in the presence of witnesses to the purchaser for validity. This also entails a clear identification of the land to the purchaser by the grantor.
It is therefore impossible that after buying the land and possessing it for over one year vide Exhibit “D”, and knowing its extent the same purchaser would again be fooled into buying the same land he had acquired and possessed from another grantor (appellant) more than a year after purchasing the land form the Oshola Aribido family. – see cases on customary sale of land particularly Jibowu AGFC in Cole vs. Folami (1956) FSC 66 at 68; Fafowora v. Osinesi SCN FSC 353/62; Akinbade vs. Elemosho SCN FFC 33/62; see also the general presumption in Section 167 of the Evidence Act.

The learned trial judge did not consider or evaluate the defence. If he had, he would have found that, had the respondent bought the land in dispute from the Oshola Aribido family in February 2007 and went into possession as is customary he (respondent) could not later in July 2008 buy the same land from the appellant as per Exhibit “C”.

As the learned trial judge failed to make the evaluation from obvious facts before him, this court is entitled to do so and would do so in the circumstance. The finding being that it is improbable that respondent bought the same land vide Exhibit “D” in February 2007. Because if respondent had, he would not be buying the same land from the appellant in July 2008 from the appellant vide Exhibit “C” except of course the purchases are of different parcels of land.

In this case, the respondent, having gained entry in the land through a grant by the appellant later deny the title of the appellant. The effect is to make him a trespasser ab initio except he can prove he had a better title or that he claims through someone who has a better title.
In Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 49 at 55, the law was restated thus:
“It is trite law that trespass to land is actionable at the suit of the person in possession of the land. The person can sue for trespass even if he is not the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrong-doers except a person who can establish a better title.
Therefore, anyone other than the true owner, who disturbs his possession of the land, can be sued in trespass and in such an action, it is no answer for the defendant to show, (as the defendant/respondent had sought to show in paragraph 7 of his Statement of Defence, although he gave no evidence in support of this averment), that the title to the land is in another person. To resist the plaintiff’s claim, a defendant must show either that he is the one in actual possession or that he has a right to possession.”
The onus will be on the respondent to show that he has a better title or claims through one with better title. In this regards, as the pleadings go, it will behove on the respondent to prove the title of the Oshola Aribido family through whom he (respondent) claim. Respondent did not call the Oshola Aribido family to prove a title better than the appellant.

If the respondent is unable to procure the Oshola Aribido family to prove a better title than the appellant’s to whom respondent has accorded possession by payment of monetary consideration then the respondent cannot merely set up the title of a third party – the Oshola Aribido family.
This is setting up a “jus tertii” i.e. – “right of a third party” this is not permissible in the tort of trespass whether to land or chattels. In Jeffroes V. Great Western Rlyco (186) 5 E & B, the facts were that the defendant wrongfully siezed trucks in the possession of the plaintiffs and raised the defence that title to them was in a third party i.e. they pleaded jus tertii. Lord Campbell C.J. declared the law thus:
“It was essential for the interest of society that peaceable possession should not be disturbed by wrong-doers, a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrong doer, and cannot defend himself by showing that there was a title in some third person; for against a wrong doer possession is title.”
So if a defendant has infringed the plaintiff’s possession, he cannot plead the jus tertii unless he defends under the authority of a title paramount – Wilson Vs. Lombank Ltd. (1963) 1 All ER 740. In Shell BP Ltd. V. Abedi & Ors (1974) 1 All NLR 1 at 19 Fatayi Williams put the law succinctly in these terms:
“It is well settled that in an action for trespass, a defendant may not set up a jus tertii. He may set up a title in himself or show that he acted on the authority of the real owner.”
and in another powerful level, Aderemi JCA in Adelakun V. Iseogbekun (2003) 7 NWLR (pt. 819) 295 held that:
“a party cannot be heard to contend that the right to the land in dispute vest in another person.”
In this case, the Oshola Aribido family through whom the respondent’s claim were not joined as party neither did the respondent call the family to validate respondent’s claim that there is a title paramount as stated in Wilson V. Lombank Ltd. (supra).
As I have indicated earlier, the respondent having conceded prior possession to the appellant cannot in turn somersault to raise the title of a third party whole title, the respondent made no effort to prove. In this case, the court can only adjudicate between the parties before it. E.T. Adewoyin & ors. v. Jones Adeyeye (1963) 1 All NLR 52 at 59.

From the foregoing, it is not difficult to hold that the respondent from the point of denying the title of the appellant and setting up a jus tertii was in trespass ab initio against the appellant and it was erroneous for the trial judge not have considered the issue of trespass but erringly proceeded to dismiss the claims with those of title as if the claims are intertwined and mutually inclusive, I resolve this issue poignantly raised by both the appellant and the respondent against the respondent.

Finally, in my view, the learned trial judge misdirected himself on the law in relation to declaration of title to land and trespass and came to a wrong conclusion. If his Lordship had appraised the fact and the law appropriately and taking into consideration presumptions that arise from the pleadings and fact, he (trial judge) would have found that there was no challenge to the appellant’s claims and on the basis of the evidence appellant presented, appellant would be entitled to his claims.

In consequence, this appeal succeeds and is hereby allowed. The judgment of the High Court of Ogun State Per N.I. Saula (Judge) delivered on 27/10/2010 is hereby set aside. In its stead, the appellant as claimant is entitled to judgment in terms of his amended Statement of Claim (a), (b), (c), thus:

(a) Declaration of entitlement to statutory right of occupancy to all that piece or parcel of land situate at Arepo Town, Obafemi Owode Local Government Area, Ogun State which is more particularly described in Survey Plan No. LDC/OCS/1116/2004/157P prepared by Tayo Oluwaniyi (registered Surveyor) and dated 16th March 2004 in claimant’s favour.
(b) An injunction restraining the defendant, her servants, privies, agents and those claiming through under or in trust for her from further entering on the said claimant’s said parcel of land.
(c) Two Hundred and Fifty Thousand Naira (N250, 000.00) only being general damages for the destruction of the claimant’s swampland and the trespass thereto.

There will be cost of N50, 000.00 in favour of appellant against the respondent.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Nonyerem Okoronkwo, JCA. I fully agree with his reasonings and conclusions. I adopt them as mine in allowing this appeal. Appeal is allowed. I too would order for N50,000 costs against the Respondent in favour of the Appellant.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading before now, the judgment delivered by my learned brother N. Okoronkwo, JCA.

My learned brother comprehensively considered and admirably resolved all the pertinent issues that came up for determination in this appeal. I have nothing else to add. I therefore agree that the appeal has merit and is hereby allowed.

I abide by the consequential orders made in the lead judgment, including the order on costs.

Appearances

V.O. Orimalade Esquire For Appellant

AND

Sola Ogunleye Esquire with P.C. Dioji For Respondent