MR. PETER ODERINDE v. ENGR. J. A. AYODELE & ANOR (2014)

MR. PETER ODERINDE v. ENGR. J. A. AYODELE & ANOR

(2014)LCN/7435(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of August, 2014

CA/AK/65/2011

RATIO

TORT: TORT OF TRESPASS; WHETHER IF TRESPASS HAS BEEN PROVED THEN DAMAGES AND INJUNCTION FOLLOW CONSEQUENTIALLY WITHOUT OBLIGATION OR NEED TO PROVE SPECIAL DAMAGES

If trespass has been proved then damages and injunction follow consequentially without the obligation or need to prove special damages. That is why it is said that trespass is actionable perse. In Omotoye v. C.S.A. (2010) 16 NWLR (Pt. 1218), Adekeye, J.S.C. held at page 31 paragraphs G – H thus:- “Every unlawful and authorized entry on land in the possession of another is trespass for which an action in damages lies even if no actual damage is done to the land and fixture on it. When a person alleges to have possession, an interference with it is an actionable trespass.” per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

LAND LAW: TITLE TO LAND; WHETHER A PLAINTIFF CAN STILL SUCCEED IN HIS CLAIM FOR TRESPASS WHERE HE HAD FAILED TO PROVE TITLE TO LAND

Even if the Plaintiff/Appellant had failed to prove title to the premises as claimed by the Respondent (which as the Appellant insists in his pleadings and evidence at the trial that he does not claim title nor is he fighting the case of the original or radical owner i.e. his landlord therein), he can still succeed in his claim for trespass as he insists. In Omotosho v. C.S.A. (supra) at page 31, paragraph H – Adekeye, JSC stated thus:-
“It has been decided in a number of cases that where a Plaintiff has failed to prove title to land, it may be necessary to consider evidence of possession in order to ascertain whether he is in any event, entitled to damages and injunction claimed for trespass if it is shown that he was in possession which was disturbed. This is on the basis that trespass is essentially an issue of who is in possession. (Underlined by me for emphasis).
A person who is in possession of land even as a trespasser can sue another who thereafter comes upon the land unless that other is the owner or shows some title which gives him a better right to be on the land. There is cogent evidence that the Respondent was in possession of the land in dispute and therefore can sue without asking for declaration. Oluwi v. Eniola (1967) NMLR 339; Kareem v. Ogunde (1972) 1 ALLNLR (Pt. 1) page 73; Amakor v. Obifuna (1974) 1 ALL NLR (Pt. 1) page 119; Oduola v. Nabhan (1981) 5 SC 197; Aromire v. Awoyemi (1972) 2 SC 57; Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) page 414; Jodi v. Salami (2009) ALL FWLR (Pt. 458) page 385; Ekpan v. Uyo (1986) 3 NWLR (Pt. 26) page 63. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

EQUITABLE REMEDY: INJUNCTION; WHETHER THE COURT HAS THE JURISDICTION TO GRANT THE EQUITABLE REMEDY OF INJUNCTION ONCE IT HAS FOUND FOR TRESPASS

TORT: TORT OF TRESPASS; WHETHER A CLAIM IN TRESPASS IS A NOT INDEPENDENT ON A DECLARATION OF TITLE
I should re-iterate that the law is settled that a claim in trespass is not dependent on a declaration of title. Trespass being an injury to possessory right, the proper Plaintiff to an action in trespass is the person who was or who was deemed to be in possession at the time of the trespass.
See the cases of Will v. Will 5 NLR 76; Pan Bros Ltd v. Landed Properties Ltd & Anor (1962) 2 ALL NLR (Pt. 1) 22; Wuta-fei v. Danquah (1961) 1 WLR 1238 and Halbury’s Laws of England vol. 38 page 744 Par. 1244. See generally, the leading judgment of Ogbuagu, JSC in Omotayo v. C.S.A. supra. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE AND APPRAISE EVIDENCE AND THE GUIDING FACTORS OF THE EVALUATION OF EVIDENCE

It is the primary role of a trial court in a trial to listen to and watch the demeanor of witnesses. After trial the duty of evaluating and appraising the evidence based on the pleadings, the oral testimony of witnesses and documents tendered, coupled with his advantage of having seen and heard the witnesses belongs to the trial judge.
This duty is exercised by the learned trial Judge who is guided by factors such as:
1. Admissibility of the evidence at the disposal of the trial court.
2. Relevancy of the evidence.
3. Credibility of the evidence.
4. Conclusiveness of the evidence.
5. Probability, in the sense that it is more probable than the evidence of the other party.

After due consideration of the foregoing, the court shall now apply the law to the situation presented in the case before it, so as to arrive at a conclusion one way or the other. The trial Judge must then evaluate the evidence placing the evidence of each side on an imaginary scale to see which weighs heavier. It must not consider the number of witnesses or documents but only the quality thereof.
See Mogaji v. Odofin (1978) 4 SC 91; Adeyeye v. Ajiboye (1987) 2 NWLR (Pt. 61) 432; Onwuka v. Ediala (1989) 1 NWLR (Pt. 642) page 532; Akintola v. Balogun (2000) 1 NWLR (Pt. 642) page 532; Basil v. Fajebe (2001) 11 NWLR (Pt. 725) page 592 at pages 608 – 609; Akibu v. Opaleye (1974) 11 SC page 139 all referred to in Anyanwu v. Uzowuaka (2009) 177 LRCN 204 at 244. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

TORT: THE TORT OF TRESPASS; WHAT IS TRESPASS TO LAND AND WHAT AMOUNTS TO TRESPASS

Trespass to land is a wrongful entry into land in actual or constructive possession of another. Trespass is therefore rooted in exclusive possession therefore all that a Plaintiff needs to prove is that he has exclusive possession or that he has the right to such possession of the land in dispute.

TORT: TORT OF TRESPASS; WHETHER TRESPASS TO LAND IS ACTIONABLE AT THE INSTANCE OF THE PERSON IN POSSESSION AND WHETHER THE CONSENT OF THE OWNER OF THE PROPERTY IS NOT REQUIRED OF THE LAW FOR A COMPETENT AND SUCCESSFUL CLAIM IN TRESPASS

It must be emphasized that trespass to land is actionable at the instance of the person in possession. If the land is in possession of a tenant and not the landlord, it is he who can sue for trespass because in almost all cases, it is the person in possession of the property who can sue for trespass. See Adepoju v. Obe (1999) 3 NWLR (Pt. 594) 194.

COURT: PERVERSE EVIDENCE; WHEN IS AN EVIDENCE SAID TO BE PERVERSE

The facts of this case and the evidence laid before the trial court were such that a decision other than what was arrived at was the inevitable judgment. That is to render a favourable decision for the Plaintiff/Appellant. In Osuji v. Ekeoch (2009) 16 NWLR (Pt. 1166) page 81, Adekeye, JSC (Rtd) held thus:
“A decision will be held to be perverse where:
a. It is speculative and not based on any evidence or
b. The court took into account matters which it ought not to have taken into account or
c. The court shuts its eyes to the obvious.
Adimura v. Ajufo (1988) 3 NWLR (Pt. 80) pg. 1; Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) pg. 192; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) pg. 360; Duru v. Nwosu (1989) 4 NWLR (Pt. 113) pg. 24; Ihewuezi v. Ekeanya (1989) 1 NWLR (Pt. 96) pg. 239; Adeosun v. Jibesin (2001) NWLR (Pt. 744) page. 290. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

MR. PETER ODERINDE Appellant(s)

AND

1. ENGR. J. A. AYODELE
2. MR. JIMOH OLAEGBON Respondent(s)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the High Court of Osun State delivered by Hon. Justice Akin Oladimeji on 31st March 2010 at the Oshogbo Judicial Division.

The Appellant had at the lower court instituted an action against the present Respondents as Defendants claiming damages for trespass and injunction in the following terms:
1. The sum of One Million Naira being damages for the Defendant’s unlawful trespass unto the business premises known as Groovy Cafe and Restaurant lying and being at opposite Osogbo Grammar School, Iwo Road, Osogbo, which premises is in the lawful possession of the Plaintiff and which trespass and unlawful entry has caused damages and hardship to the Plaintiffs business.
2. An order restraining the Defendants from doing any further act that may violate the Plaintiff’s peaceful possession of the premises.

At the trial, the Plaintiff testified and called two (2) other witnesses and tendered some exhibits, which were admitted in evidence and marked as Exhibits P1 – P14.

On his part, the Respondent testified for himself and called two witnesses. The Respondent tendered a document which was rejected by the trial court upon the objection of the Appellant. The trial Judge however proceeded to dismiss the claims of the Plaintiff and per his judgment delivered in Suit No. HOS/89/2008 31st March 2010 and which is contained on page 152 – 167 of the records of this appeal.

Being dissatisfied, the Plaintiff has bought this appeal upon eight grounds of appeal as contained on pages 168 – 170 of the Records. It is desirable to restate the summary of the case of the respective parties for the proper appreciation of this appeal.

The Appellant’s Case:
The Appellant is the proprietor of the Groovy Cafe and Restaurant where he carried out his hospitality business which includes a restaurant, beer parlour, night club, games and event centre, where at he has been in lawful occupation of the premises thereof as a yearly tenant for about 10 years before the action in 2008. The Appellant who was enjoying the said premises together with the open space and all appurtenances thereto, rented the said premises from one late Chief Rasaki Alli and was paying rent to him as could be seen in Exhibits P1 – P4.

After the death of the said Chief Rasaki Alli, his children through a Management Committee wrote to the Appellant in respect of the Rented Property vide Exhibit P5. The Appellant paid rent to the said Management Committee and subsequently to the firm of M. A. Laogun & Co. as the family’s Solicitors in charge of the estate of late Chief Rasaki Alli. Receipts for the payment of rent were tendered and admitted as Exhibits P6 – P9.

In January 2008, the Appellant was issued a quit notice by the law office of Remi Ayoade & Co. purportedly for the 1st Respondent as a purported new owner of the rented property.

The Plaintiff/Appellant was told by M. A. Laogun & Co, the solicitors to his landlord and the Management Committee of the Chief Rasaki Alli estate to disregard the said Notice as it was not their act and that the 1st Respondent had no such interest/title in the said property.

The Appellant wrote Exhibit P10 informing the 1st Respondent of the reaction of the Rasaki Alli family and warned against any further interference with his peaceful enjoyment of his tenancy. The said letter was admitted in evidence at the trial court as Exhibit P10.

Not done yet, the Respondent in November 2008, by the firm of Badmus Kazeem Esq., Akashic Chambers issued a Notice to quit within 7 days to the Respondent; the said letter was admitted in evidence as Exhibit P11. The Appellant’s landlord, through the late family again re-assured him to ignore the Notice. This he did, but not without responding by a letter to the Respondent through his solicitors. Notwithstanding all the aforesaid, the 2nd Respondent led a group of people to the premises and purporting to be acting for the 1st Respondent, on November 16th 2008, made a fence round it and blocked the access or entrance thereto, such that no motor vehicle could enter or park nor the space for the use of customers be used. That his business was disrupted such that he had to invite the police, who invited the 2nd Respondent to the police station. Plaintiff proceeded to write through his counsel, Badmus Kazeem demanding the removal of the fence blockade to the Business premises while the 1st Defendant/Respondent may sort out his problems with the late Chief Alli family in respect of the ownership of the premises. The said letter was tendered and marked Exhibit P12.
There being no response to Exhibit P13, the Plaintiff instituted the action leading to this appeal. Exhibit P13 was admitted as the letter of administration obtained by the late Rasaki’s Estate and which included the property subject of this appeal. Appellant insisted that he was the sole occupant of the premises i.e. Groovy Caf’E9 and Restaurant and had never met the 1st Respondent before, nor was the 1st Respondent ever introduced to him as a purchaser of the said premises.
On the other hand, the case of the 1st Respondent is that the premises in dispute belong to one Mrs. Rosemary Alli, alleged to be one of the wives of the late Chief Rasaki Alli and that the premises was sold to him in 2006 together with shops near to the building by the said Rose Mary Alli. That the late Rose Mary introduced the 1st Respondent to the Appellant and the occupants of the shops, who vacated the shops on the 1st Respondent’s order, except the Appellant who refused to leave the premises. He admitted that the 2nd Respondent was in the premises to carry out renovation work, including the fencing of the premises on the instruction of the 1st Respondent, and that the police invited the 2nd Respondent upon the Appellant’s report. He denied any act of trespass but admitted that the Appellant was in occupation and paying rent and for many years to Chief Rasaki Alli and after his death to his family Management Committee. He acknowledged the correspondences between the parties prior to the suit and the fact that there was no prior court order for the taking of possession, There was no document in proof of Rose Mary Alli’s title to the property as alleged, however the document of purported sale by her to the Respondent was tendered and rejected in evidence, for not being an admissible registrable instrument in law.

At the close of hearing, the learned trial Judge dismissed the Plaintiff’s case on the ground that the Plaintiff had not proved that he was in occupation or exclusive possession of the premises and that the entry into the premises was not an invasion, such as to constitute trespass as according to the learned trial judge, the 1st Respondent had purchased the premises from the late Rose Mary Alli and that the Appellant had become a mere licensee on the land after the purchase. Peeved and so disappointed with the decision of the learned trial Judge, the Plaintiff has appealed to this court upon a prolix 8 (eight) grounds of appeal as contained on pages 168 – 170 of the record of appeal upon the grant of leave for the transmission of the record of appeal granted on 31/5/12 and also for the regularization of the Appellant’s Brief of Argument, the Record of Appeal was deemed compiled, transmitted and properly served on 31/5/12. So also the Argument dated and filed 20/10/11 was deemed properly filed on the said 31/5/12. On their part, the Respondents by order of court granted on 24/2/14, their Respondents’ Brief of Argument dated 20th May 2013 and filed on 27/5/13 was deemed properly filed and served on 24/2/2014. The Appellant formulated 6 (six) issues for the determination of this appeal; the said issues were also wholly adopted by the Respondents in their opposition to the appeal.

I shall, therefore, set out the issues and consider them in the split form in which the parties have formulated for a proper appreciation of their common areas of concern in the determination of this appeal.

THE COMMON ISSUES FOR DETERMINATION ARE AS FOLLOWS:
i. Whether the learned trial Judge was right in his decision that the description of the premises on which the Appellant sued is not clear. Relates to Ground 2 of the grounds of appeal.
ii. Whether the learned trial Judge was right in his decision that the possession of the premises on which the Appellant sued cannot be ascribed to the Appellant (Ground 4 of the Grounds of appeal).
iii. Whether from the nature of the claims before the lower court, the reaction of the Appellant’s landlord to the entry into the premises by the Respondents is necessary for the success of the Appellant’s claims against the Respondents (Ground 5)
iv. Whether the learned trial Judge was right in his decision that he believed that the 1st Respondent purchased the premises from Mrs. Rose Mary Alli (Rerate to Ground 6).
v. Whether the learned trial Judge was right in dismissing the Appellant’s claim for damages, for trespass and injunction. (Relates to grounds 3, 7 and 8 of the grounds of appeal).
vi. Whether the decision of the learned trial Judge can be supported by the weight of evidence adduced before the lower court. (Relates to grounds of appeal).
ARGUMENTS
Arguing issue No. 1, the Appellant’s learned counsel submitted that the trial judge was wrong in his decision that the description of the premises upon which the suit was brought was unclear. That the endorsement of the claims on the writ of summons and paragraph 26 of the statement of claim describes the premises as Groovy Cafe and Restaurant lying and being at opposite Oshogbo Grammar School, Iwo Road, Oshogbo. Furthermore that paragraphs 2, 4, 5, and 6 of the Appellant’s Reply to the Statement of Defence have re-emphasized the description and the component of the business premises as sued upon. (see page 43 of the record).

That these averments have been testified to in evidence vide paragraphs 5 and 6 of the Appellants Statement on oath (see page 7 of the record) and paragraphs 3, 4, 5, 6 and 7 of the Further Statement on oath (page 46 of the record).

Exhibits P14 and P15 being Photographs and negatives relating to the premises were tendered in evidence. That the Respondent’s evidence showed that they knew the premises in dispute as they agreed that the Appellant was the sole occupant of the business premises. That the parties were ad idem as to the existence of the Groovy Caf’E9 and Restaurant and that the Respondent made a fence round it, and that the judge had found that there was only a small opening in the wall that could serve only as a foot path and not wide enough to take a vehicle.

That there was, therefore, no guess work or speculation needed in the description of the property. That there was no question of the distance between the wall fence and the premises or the open space as emphasized by the trial court.

Counsel submitted that, having admitted the making of a fence round the premises, that admission was sufficient and no further proof was necessary. Jolasun v. Bamgboye (2010) II SCM 127 at 145 & 148 referred.

That the issue of entry into the premises by the Defendant/Respondent had been admitted and that the extent of the entry was unnecessary. That the Defendant/Respondent justified his entry on the basis of ownership and therefore the decision that the description of the land was not certain was perverse and should be set aside on the authority of C.S.S. v. The Registered Trustees (2006) 4 SCNJ 310 at 335 as being perverse. That the perversity extended even to the consideration of the evidence of PW2 in respect of which the trial Judge made the ownership of a car, and its use or parking in the premises a basis for disbelieving the said PW2 on his evidence of the alleged trespass.

On his part, the Respondent submitted that the description given by the Appellant is at variance with his pleadings and exhibits tendered in proof of his description of the premises and that the Judge was therefore right in so holding that the description was uncertain.

That a court will not embark on a voyage of discovery to arrive at a conclusion that a party has discharged the onus of proof on him.
The cases of: A.C.B. Plc v. Emostrade Ltd (2002) 4 SCNJ 299 at 308; Overseas Construction Ltd v. Greek Enterprises Ltd (1995) 16 NSCC (Pt. 2) 137 at 1375; Ivienagbor v. Bazuaye (1991) 9 NWLR (Pt. 620) 552 at 561.

That the 1st Respondent had registered his presence in the premises since 2007, when he removed the roofs of 5 of the shops adjourning the Appellants, Groovy caf’E9 and Restaurant in his capacity as the owner thereof.

Furthermore, that Quit Notices variously issued to the Appellant as found by the trial judge was not denied by the Appellant. Learned counsel contended that the 1st Respondent had no obligation to seek permission from the Appellant before erecting a perimeter fence on his property. That the decision of the trial court was not perverse; urging that a decision was perverse only where it has been shown that the trial court took into account matters which it ought not to take into account or where it shuts its eyes to the obvious or where such findings has occasioned a miscarriage of justice. The cases of (i) Messrs v. Ibrahim (1975) 5 SC at 55; (ii) Incar Ltd v. Adegboye (1985) 2 NWLR (Pt. 8) at 453 (iii) Ramonu Atolagbe v. Sharun (1985) 1 NWLR (Pt. 2) 360 Adimesa v. Ajufo (1988) 3 NWLR (Pt. 80) 1 (v) Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373 referred.

From the pleadings of the parties and in particular the paragraph 26 thereof the relevant premises in dispute has been described as “The Groovy Caf’E9 and Restaurant situate opposite Oshogbo Grammar School, Iwo Road, Oshogbo”.

Paragraphs 2, 4, 5 and 6 of the Appellants’ Reply re-emphasize the description of the subject matter. See pages 2, 3 and 4 of the record of Appeal.

The description of the property has been amply testified to by the Appellant per his statement on oath as adopted at the trial court. See paragraphs 5 and 6 of the evidence in chief at page 7 of the record of appeal and the further evidence at paragraphs 3, 4, 5 6 and 7 at page 46 of the record. The Exhibits P14 and P15 being photograph and negative of the Hotel, clearly is known to the parties in this appeal as being the subject matter litigated upon for trespass. The fact that the Respondent issued quit notices severally on the Appellant as Defendant in respect of the premises was a clear statement that the premises in dispute and in occupation of the Appellant was well known to the Respondent. The court had no reason to doubt the description as the issue was not a claim of declaration of title to a piece of land of a specified dimension.

The simple question related to whether the Respondent had trespassed into the said premises. If there was an unlawful interference with the right of peaceful enjoyment of the Restaurant by somebody in lawful occupation thereof the dimension or specific area of the said subject property was an irrelevant fact for any consideration. The slightest act of interference be it by the physical presence there at unlawfully, or by fencing as done or the quit notices severally issued without basis amounted to trespass against the Appellant’s right of occupation and use as a tenant.

Issue No. 1 should be resolved in favour of the Appellant. That is to say, that the trial Judge was wrong to hold that the description of the premises on which the Appellant sued was not clear. The term premises refer to the subject property and all appurtenances thereto which could be the space upwards or side wards and down wards.

If the Groovy Cafe and Restaurant was known to the parties and the court, I fail to understand the point of uncertainty harped upon by the Respondent and the trial court. The size or extent of the premises is not the reason that justifies or creates a cause of action in trespass nor is it the reason that could determine the amount of damages and injunction if liability is established. Issue No.1 is resolved in favour of the Appellant.

On Issue 2, the Appellant submitted that there was abundant evidence on record that the Appellant was in possession of the subject matter of this appeal, i.e., the Groovy Cafe and Restaurant.
That the findings of the learned trial Judge on page 167 lines 17-20 thus:-

“Both the Plaintiff, and the Defendant agree that the Plaintiff was in physical possession of the premises as at the time the Defendant entered the premises sometimes on 16/11/2008. The Plaintiff had been a tenant of late Chief Rasaki Alli for about nine years prior to the entering of the premises by the Defendant”.

That the tenancy under which possession was made by the Appellant had not been determined by law. Learned Counsel referred to the evidence of the 1st Respondent (DW3) in cross-examination on page 149 lines 11 – 12 wherein he stated thus: “The Plaintiff is the sole occupant of Groovy Cafe and Restaurant. I am not aware of Exhibit P12. I did not obtain a court order before going into the premises.” It was therefore submitted that there was nothing on the record to impinge the defacto and dejure possession of the Appellant of the premises where at he was a tenant paying rent as shown by Exhibits P1 – P9. That he had not been ejected and therefore possession was in him.

Learned Counsel argued that the claim was based on trespass hinged on fact of lawful occupation by tenancy and not upon any question of ownership of the property.

It was, therefore, submitted that a tenant in possession or occupation of land can maintain an action in trespass against all parties including his landlord.

See Akinkugbe v. Ewulum Holdings (2008) 6 SCM 23 at 40; Salami & Anor v. Lawal (2008) 12 SCM (Pt. 1) 148 at 158.

It was therefore submitted that even if the 1st Respondent had become the owner of the premises by the alleged purchase from Mrs. Rose Mary Alli this did not affect the tenancy and possession of the premises by the Appellant, as the purchaser of a premises in which they is/are tenant(s) takes it subject to the tenants or tenancy of the tenants which in law creates an encumbrances on his right of possession of the premises. See Salami & Anor v. Lawal (supra) at 162 – 163.

Learned Counsel further submitted that a landlord who forcefully or enters a premises in the possession of a tenant, and thereby disturbs the possession of the tenant is liable in damages for trespassing at the suit of the tenant. See Calabar East Cooperative v. Ikot (1999) 12 (SCNJ) 321 at 336; Governor of Lagos state v. Ojukwu (1996) 1 NWLR (Pt. 18) 621 at 648.

That the alleged purchase of the premises or failure of the family of late Chief Rasaki Alli, the Appellant’s landlord to react to it will not affect the Appellant’s claims. That it is not the law that a change of ownership to land converts a tenant into a mere licensee or temporary occupant of a demised or rented property. Learned Counsel submitted that the question of “better title” did not arise as the parties were not both claiming ownership by fact of any possession. That parties were not each claiming possession Ezeokonkwo v. Okeke (2002) 5 SCNJ at 19 referred and that title was, therefore not in issue. That issue No. 2 be resolved in favour of the Appellant.

The Respondent in answer to this issue submitted that the Respondents had exercised various acts of ownership over the premises such that he had proved better title than the Appellant. That by virtue of section 168(3) of the Evidence Act 2011, the 1st Respondent had shown that the presumption of ownership annured in his favour.
Oshundun v. Olabode (2004) ALL FWLR pg. 90 at 115 referred. It was contended that the respondent had shown a better title and citing Amakor v. Obiefuna (1974) 3SC 67; Oloshunde v. Oladele (1991) 4 NWLR (Pt. 188) pg. 713 and Oyebanji v. Lawanson (2004) All FWLR (Pt. 238) page 757 at 772.

We are urged to resolve Issue 2 in favour of the Respondent. The simple issue in the Issue No. 2 is the question whether the Judge was right in not ascribing possession to the Appellant. From the evidence of the Plaintiff and his witnesses in consonance with the pleadings, the Appellant was clearly in possession of the premises known and called Groovy Cafe and Restaurant. DW3, the 1st Respondent had conceded this fact of possession of the Appellant. At page 149 lines 11 – 12 of the record, DW3 – i.e., the 1st Respondent stated thus:- “The Plaintiff is the sole occupant of Groovy Restaurant. I am not aware of Exhibit P12. I did not obtain a court order before going to the premises.”

What a better way of admission than this evidence of possession by the Appellant as stated by the 1st Respondent. This same 1st Respondent proceeded to point out that he had no court order to enable him go into the premises in the sole occupation of the Appellant before he (the 1st Respondent) went in. The DW4 (2nd Respondent) admitted to the same effect. The trial judge was wrong therefore, in so holding that the possession of the premises could not be ascribed to the Appellant. Issue 2 is resolved against the Respondent and in favour of the Appellant.

ISSUE 3
It was submitted that there was no dispute that the Appellant was the occupant of the premises in respect of which he sued the Respondents at the trial court; and had been in the said possession for up to 9 years before the Respondent’s entry on 16/11/2008. That the Appellants were the tenants of Chief Rasaki Alli. Learned Counsel referred to the evidence of DW2 who claimed to be a child of Mrs. Rose Mary Alli – who in cross-examination at page 144 lines 23 – 32 of the record stated thus:-
“I know that they sell beer at Groovy Restaurant. I do not know if they sell food. I have entered the premises before.
The restaurant has a big hall and boys’ quarters at the back. It is only one person that occupies the restaurant; i.e., the big hall and boys’ quarters. There are other shops surrounding the groovy restaurant which are occupied by different tenants. Groovy restaurant is being occupied by the proprietor for about 10 years now. It was my father late Alhaji Alli who let out the premises to the proprietor. At that time my mother Rose Mary Alli was still alive. The proprietor was praying (sic) yearly rent to my father.”

Counsel submitted that the Appellants never claimed ownership but trespass against his possession right as a tenant; that ownership tussle may have existed between the family members and the Restaurant but if was not his cause of action or complaint. That it was the Appellant that was dissatisfied and injured by the acts of the Respondent and therefore the reaction of the Chief Rasaki Alli’s family was not necessary in the proof of the injury complained of.

Learned Counsel submitted that it was a perverse view to think that the Rasaki Alli’s family reaction was necessary and that the Issue 3 be resolved in favour of the Appellant.

In response, the Respondents adopted their arguments in respect of Issues 1 and 2. And added that the 1st Respondent was the new owner of the premises and had been in possession to the knowledge of the Appellant as he had exercised acts of ownership, such that the Appellant ought to have called for the reaction of his landlord to prove that title had not changed to the Respondent as new owner.

On this Issue, I do not agree with the Respondent’s argument as the Issue of title of ownership was not at stake. What was relevant was whether the Appellant was in possession and whether that right to peaceful possession had been tampered with. The Appellant had so pleaded and testified. The DW1 and DW2 all testified to the possession of the Appellant, except to say that they were of the view that the DW3 who was the 1st Defendant now 1st Respondent had bought the property from their mother Mrs. Rose Mary Alli; the late wife of the owner of the property at stake. The transmission of title to Mrs. Mary Alli, though not the issue would appear not to have been established, let alone the transfer of title to the 1st Respondent. Relatively, is the fact that for an action in trespass, the Appellant who was in possession could maintain an action for the interference against the 1st Respondent who had proved no better right to possession nor ejected the Appellant by due process of law. The consent or reaction of the Rasaki family was not necessary nor a legal condition precedent for such an action against the 3rd party/tort feasor.

Issue 3 is resolved against the 1st Respondent and in favour of the Appellant.

ISSUE 4
On whether the trial Judge was right in his decision that the 1st Respondent purchased the premises from Mrs. Rose Mary Alli, Appellant’s Counsel argued that the burden of proving this assertion of fact was on the Respondents, and that they had not proved same. S. 135 of the Evidence Act, now S.137 of the Evidence Act 2011 and the case of Jolasun v. Bangboye (supra) at page 148 referred. It was submitted that there was, from the record no evidence of proof of ownership of the premises by Mrs. Rose Mary Alli, no documents of title was tendered and the evidence adduced by the Respondents in respect of her title were contradictory and conflicting, pleadings of the Respondents was that the premises with adjourning shops were originally owned by Mrs. Rose Mary Alli (see page 8 of the Amended Statement of Defence on page 96 of the records) that this was contradicted by the evidence in chief of DW1, and DW2 who said the premises was an outright gift to the said Mrs. Rose Mary Alli. That an original owner in contradistinction to a grant or gift meant that there was no prior owner unlike the situation in the later instances of grant or gift. That the case of the Defence must fall for this contradiction. That there was no document of ownership by gift from Rasaki Alli to Rose Mary Alli as testified to by DW1 and DW2 nor any proof of ownership as exercised by Mrs. Rose Mary Alli shown by the DW1 and DW2.

Learned Counsel submitted that when a person claims title to land through purchase or grant from a known person, or family, he has a duty of first proving the title of his vendor or grantor before his own title can be considered. See Ogunleye v. Oni (1990) 2 NWLR (Pt. 137) 745 at 782 – 783; Alli v. Alesinloye (2000) 2 SCNJ 264 at 282 – 283. That the Respondents having failed to prove the ownership of the land by Rose Mary Alli, the belief by the trial Judge that the 1st Respondent purchased from her was baseless. That the title by the 1st Respondent in paragraph 9 of the Amended Statement of Defence is a deed of Assignment dated 4th July, 2006 see page 96 of the Records and which deed of Assignment having been rejected by the trial Judge (see page 146 – 148 of the records), makes the title relied upon by the 1st Respondent unavailing.

It was therefore contended that with the failure of the Respondent’s proof of title, any act of ownership such as claimed amounts to trespass.

Ogbechie v. Onochie (1988) 2 SCNJ 170 at 196; Diocese of Aba v. Nkume (2002) 1 SCNJ 15 at 23.

We have been urged to resolve that the decision that 1st Respondent purchased the premises was wrong and to set same aside. In response, the Respondents argued that while the Respondent asserted his title to the premises, the Appellant said he was not interested about the title or ownership and did not venture to prove any. That Respondents had called witnesses and tendered documents in proof of their title by valid sale under Yoruba native law and custom of the premises.

He referred to Yusuf v. Matthew (1999) 13 NWLR (Pt. 633) page 30; Aminu v. Ogunyebi (2004) All FWLR 1528 at 1550.

It was also argued that the Appellant did not prove his title nor that of his alleged landlords and that the evidence of purchase remained unchallenged and that the Judge was right in acting on same. It was finally argued that where issue was not joined or properly joined the question of burden of proof did not arise.

Messrs Lewis & Peat NRL Ltd v. E. A. ALCHIMIEN (1976) 1 ALL NLR (Pt. 1) 460 at 468 – 469 and that it does not lie in the mouth of the Appellant to dispute the ownership of the 1st Respondent in the face of acts of ownership exercised by him, to the Appellant’s knowledge.

RESOLUTION
The simple resolution of this issue is that the trial Judge was wrong in holding that the 1st Respondent had purchased the property from the Appellant’s Landlord.

Aside from that finding being obiter, as it did not arise from the claim and question put forward for determination and the relief sought, I am of the view that there was no basis or proof by evidence for the conclusion of the trial court as he did. The Appellant did not raise the issue of ownership. The Respondent, who sought to so raise it, led contradictory evidence in that regard. The law is that where the witnesses of a party give conflicting evidence, it is not the duty of the court to choose and pick which to believe; as such evidence is rendered unreliable.

What is even worse is that evidence that go contrary to pleadings go to no issue and so pleadings that the 1st Respondent was the owner and the purchaser of the premises and the evidence thereto conflict as the evidence assert both original ownership and grant of title by gift simultaneously. The evidence was uncertain and not in aid of the pleadings of the Respondent. Worst of again, is that there was a plea of conveyance of title relied upon; the proof of which was faulted as the so-called deed of conveyance was rejected by the trial court and could not be relied upon as a document of title. Where then, is the basis for the finding complained about that the 1st Respondent purchased the property or premises from Mrs. Rose Mary Alli? That finding was perverse and I so hold and resolve issue 4 in favour of the Appellant and against the Respondent, therefore.

ISSUE 5
Whether the learned trial Judge was right in dismissing the Appellant’s claims for damages for trespass and injunction. For this issue, it was contended that action for damages for trespass lies at the suit of a person in possession and that the slightest act of possession suffices. It was emphasized that an action in trespass is not conterminous with ownership claim as the person entitled to claim need not be the owner of land forming the subject matter of the trespass.

See Echere & ors v. Ezerike (2006) 5 SCNJ 120. It was also submitted that there was no need to prove actual injury as the mere stepping of foot on the land or premises in possession of another person without consent gives rise to damages for trespass even when no physical injury or loss occurred.

Anyawu & Ors v. Uzouaka & Ors (2009) 10 (SCM) 1 at 21 – 22.

That once possession and trespass is proved, injunction will follow.

See Kele v. Nwerekere (1998) 3 SCNJ 84 at 95. That evidence abound in the record that the Appellant was in lawful possession of the premises – Groovy Cafe and Restaurant, and that the Respondents entered the premises on 16/11/2011. That the trial Judge also found at page 164 of record lines 17 – 20. It was contended that once there was an entry admitted by the Respondents and as found by the court, trespass had been established and absence of proof of physical harassment or arrest by the police of the Respondents will not detract from the fact that there had been entry without permission. That there was a report made to the police against the entry and the 1st Respondent admitted been invited to the police station. See page 149 lines 29 – 30 of the record. That the fact that there was no prosecution of the criminal offence did not derogate from the civil trespass.

We were urged to hold that the decision was perverse and that we should resolve this issue in favour of the Appellant.
In response, the Respondent submitted that a possessor of premises or land can maintain a valid action in reaction to the slightest disturbance of his possession against everyone except a person who can show a better title to possession. See Solomon v. Mogaji (1992) SC 1 at 37; that the action is maintainable by a person who is in exclusive possession of the property, the subject of the action.

Pages 78 and 43 of the record, 38 – 31 and the court findings on page 165 of the record were referred to: Amakor v. Obiefuna (1974) ALL NLR (Pt. 1) 119 also referred. That there was no proof of any special loss caused by the loss of any particular customer. That the loss of a particular customer was an item of special damages which must be strictly proved. See Duyile v. Ogunbayo (1988) 3 SC 1 at 5; Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623.

That the alleged loss of financial loss was not property pleaded and proved and was, therefore, property dismissed by the trial court.

The case of Abashe v. Messrs Borini Brono (1996) 1 NMLR 1; Yau v. Dikwa (2001) FWLR (Pt. 62) 1987 at 2005; Shell B.P. v. Cole (1977 – 1978) 11 NSCC. That the trial Judge was therefore, right in not granting the reliefs sought and in dismissing the suit as according to the Respondent’s Learned Counsel the Appellant as a tenant, at best was a limited owner and who was therefore not entitled to perpetual injunction as the owner of the absolute interest is not a party to the action before the court.

See Chukwuma v. Ifaloye (2009) 10 WRN 1 at 57; Dada v. Ogunyemi (1967) NWLR 181; Performing Right Society Ltd v. London Theatre of Variety Ltd (1924) AC 1 (SC).

That trespass was not proved, nor damages or any specified type of injunction.

RESOLUTION OF ISSUE 5

This issue simply calls into focus whether trespass had been established by the Appellant at the trial court when he sued as a Plaintiff. If trespass has been proved then damages and injunction follow consequentially without the obligation or need to prove special damages. That is why it is said that trespass is actionable perse. In Omotoye v. C.S.A. (2010) 16 NWLR (Pt. 1218), Adekeye, J.S.C. held at page 31 paragraphs G – H thus:-
“Every unlawful and authorized entry on land in the possession of another is trespass for which an action in damages lies even if no actual damage is done to the land and fixture on it. When a person alleges to have possession, an interference with it is an actionable trespass.”

The evidence of PW1 and PW2 showed that the Appellant was in possession of the Groovy Cafe and Restaurant, and exclusively. DW2 who was Respondent’s son testified to the fact that the Appellant was in possession of the Groovy Cafe and Restaurant. Exhibits P1 – P9 were receipts indicating that he was paying rent to the owner of the property/premises i.e. Alhaji Alli and later his estate.

The trial court in spite of the facts and evidence, found against the Appellant. The findings were perverse and against the law as shown above. The Respondent’s defence to the action in the tort of trespass by the Appellant is that he was the new owner of the land. As it is not permitted for a Plaintiff who pleads a particular root of title and fails to prove that root of title to rely on another mode acquisition of land not pleaded by him as his root of title to support his claim, (see Ude v. Chimbo (1998) 12 NWLR (Pt. 577) 169 referred to in Omotayo v. C.S.A. (supra) at page 31 paragraph B), the 1st Respondent could not have by his evidence of title pleading a failed conveyance, contradictory title of his grantor, as being rooted in a gift and original ownership and devolution to him – the 1st Respondent, by a sale under an unproved Yoruba Customary law and conveyance, could not have shown a better right to possession than the Appellant, herein. This, therefore, means that even if the Appellant were a trespasser, he was in a better position and being in possession could maintain the action as he did against the 1st Respondent, for the unlawful disturbance of his possessory right. The 1st Respondent was not in possession and the question of competing claim or better right to possession or occupation in his favour did not arise. His claim to title had been faulted.

The learned Counsel for the 1st Respondent had argued that no order of injunction and particularly perpetual injunction can be granted to a person that was not the owner of land. This is far from the position of the law.

In Omotayo v. C.S.A. (supra) Ogbuagu, J.S.C. stated at page 25 par. ‘F’ thus:-
“Even where an injunction was not sought, once a court has found for trespass, it has the jurisdiction to grant the equitable remedy of injunction. See the case of Sorungbe v. Matum Wase (1988) 19 NSCC (Pt. 2) 252 at 268; Reported as Matum Wase v. Sorumgbe (1988) 5 NWLR (Pt. 92) 90. An injunction can be made as a consequential order and it will not amount to a count giving or granting to a party what he did not claim. See the cases of Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 and Ilona v. Idakwo & Anor (1003) 11 NWLR (Pt. 830) 53 at 87.
In the case of Olorunfemi & 8 Ors v. Chief Asho & 2 Ors (1999) 1 NWLR (Pt. 585) 1 at 9; (1999) 1 SCNJ 1 at 7, Belgore, JSC (as he then was later CJN) stated inter alia, thus:
“…There ought to be a finding in trespass which the trial court did. Consequent upon findings in trespass there must be a verdict of perpetual injunction asked for. Similarly, for trespass, there must be an award of damages”.
I should re-iterate that the law is settled that a claim in trespass is not dependent on a declaration of title. Trespass being an injury to possessory right, the proper Plaintiff to an action in trespass is the person who was or who was deemed to be in possession at the time of the trespass.
See the cases of Will v. Will 5 NLR 76; Pan Bros Ltd v. Landed Properties Ltd & Anor (1962) 2 ALL NLR (Pt. 1) 22; Wuta-fei v. Danquah (1961) 1 WLR 1238 and Halbury’s Laws of England vol. 38 page 744 Par. 1244. See generally, the leading judgment of Ogbuagu, JSC in Omotayo v. C.S.A. supra.

The Appellant having been shown to be in possession and the trial judge having found so, the Appellant had established his case for trespass and entitlement to the reliefs claimed in the face of the interference with his tenancy status, possession and issuance of quit notices etc. The Judge was, therefore wrong in dismissing the Appellant’s claim for damages, trespass and injunction.
Issue 5 is resolved in favour of the Appellant.
ISSUE 6
This issue asks the question whether the decision of the lower court was supported by the weight of evidence before the lower court.
This issue enjoins this count to deliberate on the evaluation of evidence adduced by the parties by the trial court. It is the primary role of a trial court in a trial to listen to and watch the demeanor of witnesses. After trial the duty of evaluating and appraising the evidence based on the pleadings, the oral testimony of witnesses and documents tendered, coupled with his advantage of having seen and heard the witnesses belongs to the trial judge.
This duty is exercised by the learned trial Judge who is guided by factors such as:
1. Admissibility of the evidence at the disposal of the trial court.
2. Relevancy of the evidence.
3. Credibility of the evidence.
4. Conclusiveness of the evidence.
5. Probability, in the sense that it is more probable than the evidence of the other party.

Where the Appellant questions the evaluation of evidence at the trial court if the court has carried out the essential duty satisfactorily, an appeal court will be left with no option than to affirm the decision. An appeal court will however be at liberty of re-assessing or re-evaluating the evidence in situations:-
1. Where the findings of the trial court are perverse
2. Where the findings have not been arrived at as a result of a proper exercise of judicial discretion.
3. The trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial.
4. The findings were reached as a result of wrong application of some principles of substantive law or procedure.

Learned Counsel for the Appellant has submitted in his Brief of Argument that civil actions are determined by preponderance of evidence. Chami v. UBA (2010) 3 SCM 59 at 682. In this wise, the Learned Counsel argued that the Appellant had proved by the evidence the following:
a. That the Appellant was in possession of the premises in respect of which he sued – Groovy cafe and Restaurant.
b. The Appellant was using the premises for his business operation.
c. That the Respondents entered the premises on 16/11/2008.
d. That the entry and the act done by the Respondent on it and the fencing of it, adversely affected the Appellant’s possession and business.
e. The Respondents agreed that it was late chief Rasaki Alli who let the premises out to the Appellant and after his death, his family became landlord of the Appellant.
f. The Respondents did not establish the title of the late Mrs. Rose Mary Alli whom the 1st Respondent claimed sold the premises to him.
g. The Respondent did not establish the alleged purchase of the premises from late Rose Mary Alli.
h. There has been exchange of correspondences between the Appellant and the Respondents on the Issue of the Appellant’s tenancy and occupation of the premises.

Exhibits P10 – P12 referred.

1. The Respondents did not obtain a court order before entering the premises.
It was therefore argued that the preponderance of evidence tilted towards the Appellant’s case and that the trial court did not properly evaluate the evidence before him and more so that he proceeded to apply the law wrongly and came to the wrong conclusion which runs contrary to the evidence before the court.

In response, the Respondent contends that whilst an Appellate court may re-evaluate evidence and draw necessary inferences, it may not make findings as to the credibility of witnesses which he contends is what the Appellant is by implication is inviting this court to do. He referred to the cases of Akad Industries Ltd v. Olubode (2004) 4 NWLR (Pt. 514) 599; Makinde v. Ojeyinka (1997) 4 NWLR (Pt. 497) 80. Finally, the Respondent contends that the complaint of the Appellant as contained on his Ground 1 of the Notice of Appeal covered in this No. 6 is misplaced and an appeal to sentiments, which has no place in Judicial deliberations.
Adejobi v. The State (2007) 22 WRN 156 at 186 – 189; Ezeugo v. Ohanyere (1978) 5 NWLR (Pt. 40) 138.

To start with, it should be clear that the issue No. 6 raised from Ground Number 1 of the Notice of Appeal is clear and arising from the judgment of the court. I, therefore, see no sentiments, expressed by raising same as contended by the learned Counsel for the Appellant. That argument and authorities cited in opposition to the argument in the respect of issue 6 is baseless and disregarded.

From the resolution of Issue 1 – 5, I had shown that the Appellant was in possession of the premises.

DW1, Alhaji Sikiru Alli also known as Alhaji Sikiru Abiodun Alli, younger brother to Chief Rasaki Alli testified in cross-examination as follows:-
“I know the land and the house that is in dispute called Groovy Caf’E9 and Restaurant. It was Rose Mary Alli who originally owned the land on which Groovy Restaurant was built…. I do not have any document to show that the land was owned by Rose Mary Alli.

I have deposed in paragraph 5 of my statement on oath that the land was a gift of Alhaji Alli Rasco, but I will not remember when the gift was made and I do not have a document evidencing the plaintiff is the proprietor of Groovy restaurant. He has been there since 1999. I am aware that it was my late brother who rented the premises to the Plaintiff…”

The 1st Defendant built a fence round the premises to enclose both the Restaurant and the shops.”
DW2 in cross examination stated thus:
“It is only one person that occupies the hall and the boys quarter. It is only one person that occupies the restaurant, i.e. the big hall and the boys quarter… The Groovy restaurant is being occupied by the proprietor for about 10 years now. It was my father late Alhaji Alli who let out the premises to the proprietor. At that time my mother Rose Mary Alli was still alive.
The proprietor was paying yearly rent to my father. My father originally owned the land and building and later gave it to my mother as a gift. I now say that my father built the Groovy Restaurant and the shops for my mother. There is a document bearing my mother’s name relating to the premises but I do not have the documents here.” See pages 144 – 145 of the Record of Appeal.

The 1st Respondent in cross-examination at page 148 of the record stated thus:
“The 2nd Defendant is my representative in all the procedure leading to the purchase and thereafter including the taking of possession.
I do not have any document here now to show that Mrs. Rose Mary Alli was the owner but she gave me a building plan but it is at home. I caused my lawyer to write a quit notice to the Plaintiff and the Plaintiff’s Counsel replied with exhibit P10. It is true that I caused the chambers of Kazeem Badmus to write to the Plaintiff again and the Plaintiff through his counsel replied that they do not know me… I sent workers to the premises to start the renovation of the premises and in compliance with my directive the 2nd Defendant went to the premises. …The Plaintiff is the sole occupant of Groovy Restaurant. I am not aware of Exhibit 12. I did not obtain a court order before going into the premises.”

The trial court matched the evidence of the Appellant and his witnesses with those of the Respondents (Defendants) and their witnesses and held at page 166 – 167 thus:
“The Plaintiff is not contesting the ownership of the premises. He was just a tenant on the land. Perhaps, he had become a mere license on the land after the purchase of the premises by the 1st Defendant. I do not say that a licensee cannot maintain an action in trespass. The Plaintiff is not representing the interest of his former landlord nor does he have the interest of his landlord to do so. Can the temporary occupation of the premises by the Plaintiff confer on him possession as against the various acts of ownership of removing the roofs of the adjourning shops which form the same premises with the building occupied by the Plaintiffs couple with the construction of the fence by the Defendant. It is to be noted that:
1. The Plaintiff had been given the Notice of purchase by the Defendant long before 16/1/2008 when the Plaintiff complained of wrongful entry.
2. The Plaintiff’s landlords have not reacted one way or the other against the various acts of the Defendants for some years and they are not dead.
3. The Landlords of the Plaintiff had not authorized the Plaintiff to fight their cause for them. I hold that the failure of the Plaintiff’s landlord to react one way or the other does not help the case of the plaintiff. Such sitting on the fence may amount to admission by the Plaintiff’s landlord that the Defendant had purchased the land. An occupant of a land need to prove better title before possession can be ascribed to him. See Ige v. Fagboun (2002) FWLR (Pt. 91) 1545 see also Engr. Bayo Kinterinwa v. Cornelius Oladunjoye (2000) FWLR (Pt. 1) 1690.

I hold that the possession cannot be ascribed to the Plaintiff in this case. The Plaintiff’s claim in trespass therefore fails.”

Did the Plaintiff actually establish his actual possession of the land? Yes, he did. He did this by the Evidence of PW1, PW2 and PW3.

DW1 and DW2 confirmed this possession as brought out in the extract from their evidence in cross-examination, supra. DW3, the 1st Respondent confirmed the possession by the Plaintiff as a tenant and the entry into the said premises by his agent and workmen for renovation thereat, as shown earlier in this judgment.

The decision that possession cannot be ascribed to the Plaintiff/Appellant in this case, cannot be supported by the evidence copiously available at the trial court.

The learned trial Judge, having found that the Plaintiff was in possession and later on having jettisoned the submission of the Appellant’s Counsel (at the trial court) that the issue of competing interest or title did not arise and was not an issue curiously raised the issue of a possessor proving better title before possession can be ascribed to him.

As such any unlawful interference with possession however slight amounts to trespass. See Anyawu v. Uzowuaka (supra). Plaintiff/Appellant herein, had (1) established possession, and (2) The trespass thereon the premises.
The issue of competing right to possession and therefore a better right to possession would only arise where both sides are able to show possessory rights. In the instant case, the Respondents had no proof of possession. They relied on the acts of removing the zinc on roofs of adjourning buildings and fencing as acts of ownership and possession of the subject property covering the tort of trespass. They also rely on issuance of quit Notices on Appellant and his landlord’s silence or non-reaction as proof of their title and possession. It is trite that no findings of liability can be made against a person (third party) that is not a party in a proceedings or suit nor inferences appertaining him be used as a basis of liability against a litigant. See Yusuf v. INEC.

The Respondents were clearly not in competing possession with the Appellant nor had the 1st Respondent proved in the slightest that he had any transfer of title of the Groovy Cafe and Restaurant to himself, let alone terminated the Appellant’s actual possession and possessory right over the said property.

The findings and conclusion of the trial court is perverse the evidence on record, and against the position of the law as shown in this Judgment.

Issue No. 6 is therefore, resolved in favour of the Appellant and against the Respondent.

In conclusion, it is the judgment of this court that the judgment of the trial court is perverse and has occasioned a miscarriage of Justice as the Plaintiff/Appellant had proved the tort of trespass by the evidence led.

The Appellant was entitled to succeed on his claim for damages and injunction, as after all even a trespasser or licensee in possession can maintain a successful claim against the slightest interference with his possession (in trespass) against the whole world, except a person with a better right to possession or the actual owner.

The Respondents, have not been shown to be such persons. It must be emphasized that trespass to land is actionable at the instance of the person in possession. If the land is in possession of a tenant and not the landlord, it is he who can sue for trespass because in almost all cases, it is the person in possession of the property who can sue for trespass. See Adepoju v. Obe (1999) 3 NWLR (Pt. 594) 194.

The reaction/consent of the landlord or owner of the property, (a non-party to the suit) is not a requirement of the law for a competent and successful claim in trespass, contrary to the submissions of the Learned Counsel to the Respondent. The facts of this case and the evidence laid before the trial court were such that a decision other than what was arrived at was the inevitable judgment. That is to render a favourable decision for the Plaintiff/Appellant. In Osuji v. Ekeoch (2009) 16 NWLR (Pt. 1166) page 81, Adekeye, JSC (Rtd) held thus:
“A decision will be held to be perverse where:
a. It is speculative and not based on any evidence or
b. The court took into account matters which it ought not to have taken into account or
c. The court shuts its eyes to the obvious.
Adimura v. Ajufo (1988) 3 NWLR (Pt. 80) pg. 1; Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) pg. 192; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) pg. 360; Duru v. Nwosu (1989) 4 NWLR (Pt. 113) pg. 24; Ihewuezi v. Ekeanya (1989) 1 NWLR (Pt. 96) pg. 239; Adeosun v. Jibesin (2001) NWLR (Pt. 744) page. 290.

Where a trial court has carried out satisfactorily its function of proper and dispassionate appraisal of evidence given in support of each party’s case, an appeal court will be left with no option but to affirm such a decision. Where the findings and conclusions have been found to be perverse or where wrong inferences have been raised or drawn from accepted facts or wrong principles have been applied to facts, or as in the case when the consequential orders do not flow from the conclusion of the trial court in the judgment, it was the duty of the lower court to re-evaluate and re-assess the offensive order made by the trial court, unsupported by the evidence adduced by both parties. Woluchem v. Gudi (1981) 5 – 7 SC page 291; Ebba v. Ogodo (1984) 1 SCNLR 372; Ibodo v. Enorofia (1980) 5 SC 42; Akinloye v. Eyiyola (1968) NMLR pg. 92; Thompson v. Arowolo (2003) 7 NWLR (Pt. 818) page 163; Fatoyinbo v. Williams (1956) SCNLR page 214; Balogun v. Agboola (1974) 10 SC page 111.

The appeal herein has shown that the judgment of the lower court is perverse in all ramifications. The wind cannot be put out of the sail of the Appellant herein. His appeal succeeds and is allowed. In consequence, I set aside the decision of Akin Oladimeji, J. delivered on 31/3/2010 in Suit No. HOS/89/2008 between Mr. Peter Oderinde v. Engineer J. A. Ayodele.

The Appellant has not asked for a retrial and I do not find it to be an appropriate case in which to make such an order in view of the conclusion I have already arrived at in finding that the Appellant was in occupation of the premises and have had the enjoyment of that right breached by the Respondent’s entry, which I had adjudged constituted an act of trespass.

Can this court proceed to order the reliefs as claimed or as may be found to be the entitlement of the Appellant at the trial court?

The Plaintiff/Appellant claimed one million naira being damages for unlawful trespass unto the business premises known as “Groovy Cafe and Restaurant” and an order of injunction restraining the Defendants from doing anything that may violate the Plaintiff’s peaceful possession of the premises. An appellate court, such as this court has the power and duty to re hear the case. This is done by a review of the evidence on record.

The court has an obligation to re appraise the evidence led, including the document(s) (if any) tendered with a view to arriving at a just decision. By this exercise, the Appellate Court is enabled to arrive at the decision that it thinks the trial court would have justly arrived at. It has the power of re-hearing and in the case based on the record and evidence/exhibits.

See section 15 of the Court of Appeal Act, 2004. The section provides thus:-
“The Court of Appeal may, from time to time make any order necessary for determining the real question in controversy in the appeal…. (omitted) and may make interim order or grant any injunction which any injunction is authorized to grant… and generally have shall full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a court of first instance and may re-hear the case in whole or in part…”

The Evidence on the printed record of appeal does not disclose any special Damages nor has any basis for same been disclosed. It is clear that the trial court would have been entitled to exercise its discretion on the issue of the quantum of damages if it had found, as it ought to have done, that trespass which is actionable perse had been proved.

Can this court usurp the discretionary power of the trial court more so that the trial court has not exercised it one way or the other? I think, in the circumstances of this case on appeal, it can be done; as the award of damages herein does not depend on the credibility of witnesses or their demeanor.

Accordingly, I hold that:
Trespass having been proved, the claim for damages in respect thereto as made at the trial court must succeed.
2. Damages in the nominal sum of N10,000.00 only is awarded to the Plaintiff/Appellant as damages at the trial court. I ward nominal damages, because, it appears to me, from the Deed of Conveyance, the Exhibit that was tendered but rejected at the trial that the Respondent innocently believed that he had obtained good title to the said Groovy Cafe and Restaurant which he relied upon to found his action and defence of ownership and possession. The tenor of his evidence suggests that he is a forthright person who unfortunately, with his Agent – the 2nd Respondent, prevaricated and were not consistent in their case. While they denied that the Appellant was a tenant of Rasaki Alli since 1999 and in possession (as far as their joint Statement of Defence goes), they admit same in their statements on oath – but sought cover under the unproved title and exercise of acts in purported reliance and pursuant thereto. The Defence witnesses did not rebut but strengthened the Plaintiff/Appellant case as relating his tenancy and possession.
There was evidence at the trial vide Exhibit P1 that the 1st Respondent wanted the Appellant to quit the premises for his personal use. PW2 showed that the Respondent’s agents were at the premises forcefully – not for renovation (which they had no right to do, in any case).
In Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) page 621 at 648, the apex court deprecated the use or threatened use of force to take over possession.
The Respondent who did not apply to the court for possession so as to act only on the authority of the court as acknowledged by the DW3 and DW4, had unwittingly courted the order of injunction restraining their action in pursuance of the recovery of the said Groovy Cafe and Restaurant as an inevitable guest.
Accordingly, it is ordered that an order of injunction be and is accordingly hereby issued restraining the Respondents herein personally or through or by their agents, personal representatives, Attorneys, Assigns or otherwise or however, from interfering with the possessory right of the Appellant as a lawful tenant of the late Chief Rasaki Alli, in respect of the Groovy Cafe and Restaurant described in this suit except as may be made lawfully under the law.
Appeal allowed. The decision of Akin Oladimeji, J. in Suit No. HOS/89/2008 delivered on 31/03/10 is accordingly set aside.
COSTS
A cost of N30,000.00 only (thirty thousand naira only) is awarded against the 1st Respondent and in favour of the Appellant, herein.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the Judgment Delivered by my learned brother Mohammed A. Danjuma, J.C.A.
I agree with the conclusion and I also abide with the consequential orders.

JAMES SHEHU ABIRIYI, J.C.A.: Trespass to land is any unjustifiable interference with land in the possession of a party. It constitutes the slightest disturbance to the possession of land by a person who cannot show a better right to possession. See Eze v. Ibuefuna, (1995) 6 NWLR (Pt. 404) 639.
The appellant was in possession of the property and the forceful entry of the respondents into it amounted to trespass.
I had the privilege of reading in advance the judgment of my learned brother Mohammed Ambi-Usi Danjuma, J.C.A. just delivered.
He had dealt exhaustively with all the issues for determination.
I agree entirely with him that there is merit in this appeal.
I too allow the appeal and set aside the judgment of the Lower Court I abide by all the consequential orders made by him in the lead judgment.

Appearances

M. O. Okediya Esq.For Appellant

AND

Remi Ayoade Esq.For Respondent

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MR. PETER ODERINDE v. ENGR. J. A. AYODELE & ANOR (2014)

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