OBA SUNDAY OLAGBENI (ONIPETU OF IJERU) V. CHIEF JAMES ADEBAYO OYEWUSI & ORS (2013)

OBA SUNDAY OLAGBENI (ONIPETU OF IJERU) V. CHIEF JAMES ADEBAYO OYEWUSI & ORS

(2013)LCN/5886(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of February, 2013

CA/I/147/08

RATIO

LAND LAW: WAYS TO ESTABLISH TITLE TO LAND

ON THE DEFINITION OF INJUNCTION

On the injunctive order granted, it is true that an injunctive relief is usually made to protect exclusive possession of a party and would not be granted if the party against whom it is sought proves a better title. It is made to Protect a legal right. In the case of BABATUNDE ADENUGA & 5 ORS. V. K. ODUNEWU & ORS. (2001) 2 NWLR (PT.696) 184 at 195 the Apex Court as per Karibi-Whyte, JSC defined injunction thus: “An injunction is an equitable order restraining the person to whom it is directed from doing the things specified in the order or requiring in exceptional situations the performance of a specified act. A claim for an injunction is a claim in equity. The order for injunction is available to restrain the defendant from the repetition or the continuance of the wrongful act or breach of contract complained of, see EGAN V. EGAN (1975) 2 ALL ER 167. It is generally granted to protect a legal right which is in existence. See UNION BEVERAGES LTD. V. PEPSICOLA INTERNATIONAL LTD. & ORS. (1994) 3 NWLR (PT.330) 1 SC. This is with the object of keeping matters in status quo until the question at issue between the parties is determined – OKAFOR V. NNAIFE (1987) 4 NWLR (PT. 64) 129, ODUMEGWU OJUKWU V. LAGOS STATE GOVERNMENT (1986) 3 NWLR (PT. 26) 39. The applicant must show that he has sufficient interest in the reliefs sought – see ABIODUN AKERELE V. CHIEF OBAFEMI AWOLOWO & ANOR (1962) WNLR 220, 224.” The above decision was followed by this Court in the case of ANNE KADIYA & 2 ORS. V. JIBO KADIYA & 2 ORS (2001) 14 NWLR (PT.734) 578 at 591 his Lordship Musdapher (JCA) as he then was re-emphasized in this respect thus: “An injunction granted is generally to protect a legal right which is in existence, with the object of keeping matters in status quo until the question at issue between the parties is determined. To succeed, an applicant must show that he has sufficient interest in the reliefs sought.” Per. CHIDI NWAOMA UWA, J.C.A.

JUSTICES

M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

OBA SUNDAY OLAGBEMI (ONIPETU OF IJERU) Appellant(s)

AND

1. CHIEF JAMES ADEBAYO OYEWUSI (For himself and on behalf of Ikolaba Ayoola Chieftaincy Family)
2. DIEKOLA OLATUNBOSUN
3. JOHN OLA AWONIYI
4. DAVID ORODIRAN
5. SAMUEL OYEGBAMI
6. MRS. TOYIN GEORGE
7. SAMUEL MATIKU
8. BAMIDELE OGUNDELE
9. DANIEL AFON (For themselves and on behalf of Farm Settlement of Ogbomoso Farm Settlement)
10. GOVERNOR OF OYO STATE
11. ATTORNEY-GENERAL OF OYO STATE Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Oyo State, sitting at Ogbomoso Judicial Division delivered by Mas’ud A. A. Abbas, J delivered on 7th March, 2007.
The Appellant herein was the 3rd Defendant while 1st-9th Respondents were the 1st to 9th Plaintiffs and the 10th-11th Respondents were the 1st and 2nd Defendants in the trial court.
The background facts are that the 1st Respondent as 1st Plaintiff sued in a representative capacity for himself and on behalf of Ikolaba Ayoola Chieftaincy Family, and the 2nd to 9th Respondents as the 2nd to 9th plaintiffs who sued for themselves and other Farm Settlers of Ogbomoso Farm Settlement sued the 1st, 2nd and 3rd Defendants now Appellant, 10th and 11th Respondents for the following reliefs as stated in paragraph 55 of the Claim as follows:
“55 WHEREOF the Plaintiffs claim as follows:-
(i) DECLARATION that the purported transfer, grant of the land in dispute situate, lying and being at Ogbomoso Farm Settlement by the Oyo State Government to the 3rd Defendant is illegal, unconstitutional, unlawful, irregular and null and void.
(ii) DECLARATION that the 1st and 2nd Defendants are not entitled to transfer to the 3rd Defendant the land acquired from the 1st Plaintiff’s family by Oyo State Government for the purpose of Ogbomoso Farm Settlement.
(iii) N50 Million Damages for trespass committed and still being committed by the 3rd Defendant on the land in dispute.
(iv) DECLARATION that the 1st Plaintiff is the family entitled to any reversionary interest, release, transfer and or grant of the land in dispute made by the 1st and 2nd Defendants.
(v) INJUNCTION restraining the Defendants by themselves, agents, servants and or privies or otherwise however from interfering or further interfering with the Plaintiff’s possession and enjoyment of the land and for further trespassing of the land.”

The then 1st and 2nd Defendants (now 10th and 11th Respondents) in their Statement of Defence denied the claim of the Plaintiffs. In response the 3rd Defendant (now Appellant) also denied the Plaintiffs’ claim in its entirety.

In a nutshell, the 1st Respondent’s case is that the lands in dispute (Old Farm School and Farm Settlement) were acquired from his family in 1948 through what the 1st Plaintiff termed “a negotiated acquisition” and that between 1960 to 1962 there was an enlarged acquisition which incorporated the 1948 negotiated acquisition from the Western Region Government from his family which was published in a gazette and compensation was paid to his family on the 2nd acquisition.

While the 2nd to 9th Plaintiffs’ (2nd to 9th Respondents herein) case was that the 1st acquisition of 1948 and the 2nd acquisition of 1960 to 1962 though from the 3rd Defendant’s family (Appellant’s family), the family had been paid compensation on the two acquisitions and as such that the 1st and 2nd Defendants had no right to reverse the interest back to the 3rd Defendant’s family who were said to be original owners having been paid compensation.

The case of the 1st and 2nd Defendants (10th and 11th Respondents) was that the Government never acquired any land from the 1st plaintiff’s family but it leased one of the two portions of land, the Old Farm School and Farm Settlement lands from the 3rd Defendant’s family for a term of 10 years and also acquired the second land from the 3rd Defendant’s family and compensation paid to the 3rd Defendant’s family on the acquired portion of land.

The case of the 3rd Defendant was said to tally with that of the 1st and 2nd Defendants.
At the close of hearing the trial court gave judgment in favour of the plaintiffs and granted the reliefs claimed but for the N50 Million Naira damages which was reduced to N500,000.00.

Dissatisfied with the said judgment, the Appellant appealed to this Court vide his Notice of Appeal which was subsequently amended by the order of this court containing eleven (11) grounds of appeal.

At the hearing of the appeal, I. G. Orji Esq, holding the brief of Olugbenga Ogunniran Esq. learned Counsel to the Appellant adopted and relied on his brief dated and filed on 7/2/11 and his reply brief dated and filed on 14/2/11. he urged us to allow the appeal. Kunle Sobaloju Esq, appearing with Raphael Agbanyi Esq., learned Counsel for the 1st to 9th Respondents adopted and relied upon their brief dated 8/2/11 filed on 11/2/11 and urged us to dismiss the appeal. The 10th and 11th Respondents did not file any brief, vide an application granted on 3/5/11, this Court ordered that the appeal be determined without any brief filed by the 10th and 11th Respondents.

Mr. Sobaloju learned Counsel to the 1st – 9th Respondents drew our attention to his preliminary objection argued in his brief after the Appellant had adopted and relied upon his briefs, in effect after the Appellant’s Counsel had argued the appeal. We were urged to consider the preliminary objection as it did not prejudice the Appellant who had notice of it and responded to same in his reply brief. On the Appellant’s reply brief he submitted that the issues were re-argued. We were also urged to disregard paragraphs 3.5 to 3.14, 4.2, 4.3 of the Appellant’s brief as they are fresh issues. We were urged to dismiss the appeal.

The Appellant raised the following issues for determination by this Court. They are:
“ISSUE NO. ONE
Whether the non-consideration of the effect of the compensation paid by the Government to the Appellant (sic) family on the Farm Settlement land has not thereby occasioned a miscarriage of justice in this suit. (This issue is formulated on ground 11 of the grounds of appeal).

ISSUE TWO
Whether the Plaintiffs (1st to 9th Respondents) who were the Claimants have discharged the burden of proof in view of Exhibits 30 and 30A and the evidence of compensation paid to the Appellant (sic) family on the Farm Settlement which is Exhibit 32N and 35. (This issue is garnered from grounds 4, 5 and 7 of the grounds of appeal).

ISSUE THREE
Whether the learned trial judge is correct in his judgment delivered in this suit in view of the pleadings and the evidence adduced on the basis of the pleading. (This issue is distilled from grounds 1, 2, 3, and 8 of the grounds of appeal).

ISSUE NO. FOUR
Whether or not the 1st to 9th Respondents are entitled to the award of damages in the sum of N500,000,00 in view of the evidence before the trial court. (This issue is formulated based on the ground 10 in the grounds of appeal).

ISSUE NO. FIVE
Whether the 1st Respondent proved better title to the Old Farm School and the 2nd-9th Respondents proved exclusive possession to the Old Farm School to entitle them to an injunctive order that was given in this matter. (This issue arises from ground 9 of the grounds of appeal).”

On the part of the 1st to 9th Respondents, they formulated two issues for determination thus:
“(i) whether the Plaintiffs/Respondents did proof (sic) or establish their case by preponderance of evidence before the court or not.
(This relates to grounds 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the grounds of appeal and issues 2, 3, 4 and 5 formulated by the Appellant.)
(ii) Whether the learned trial judge failed or refused to consider Appellant’s evidence that he was paid compensation on the farm settlement by the Government and whether such failure if any did occasion a miscarriage of justice. (This relates to ground 11 of the grounds of appeal and Issue 1 formulated by the Appellant.)”

The 10th-11th Respondents did not file any brief and pursuant to an order granted by this Court on 3rd May, 2011 that this appeal be heard and determined on the briefs of the Appellant and the 1st-9th Respondents alone the 10th – 11th Respondents having failed to file any brief, the appeal was therefore argued in absence of any brief filed by 10th and 11th Respondents.

In arguing his first issue, the learned Counsel to the Appellant elaborated on the effect of Exhibit 35, the evidence of compensation said to have been paid on the Farm Settlement land which covers an area larger than the Old Farm School being the land in dispute and the said Farm Settlement Land being the land adjacent or connected with the land in dispute. It was argued that from the pleadings and evidence led, the case of the Appellant as 3rd Defendant in the trial court is that the land in dispute is the Old Farm School and that his family was paid compensation on the Farm Settlement land. Reference was made to paragraphs 5, 6 and 7 of the 3rd Defendant’s Consequential Statement of Defence to the Further and Better Amended Statement of Claim at page 83 of the printed records.

It was the contention of learned Counsel that there was no evidence before the trial court for the award of special damages in favour of the Plaintiffs on the grounds of discretion. We were urged to hold that the trial judge had no right to so hold, reliance was placed on the case of AGIRI V. OGUNDELE (2005) ALL FWLR (PT.250) P.81 at 103 paragraph E. We were urged to interfere with the award of the special and general damages by the trial court.

It was stressed that one of the ways of proving ownership of land is by establishing that you have been exercising right of ownership by way of collecting rent on the land or by proof of ownership of land so connected with the land in dispute so as to render it more probable that what is true of one would be true of the other. It was the contention of the learned Counsel to the Appellant that the trial court did not consider the effect of Exhibit 32N that is also Exhibit 35 until it arrived at its final decision; thus not considering the case of the Appellant and found for the 1st to 9th Respondents. Further, that proof of one of the ways suffices in proof of ownership to establish title to a disputed land and in the present case the fact of compensation paid on Farm Settlement land which is tantamount to the Appellant’s family selling the land to the government which is enough as proof of title, reliance was placed on the cases of BABA-IYA V. SIKELI (2005) ALL FWLR PART 28 PAGES 230 at 1244. paras C-E; NWOBI V. AMUKAM (2000) FWLR PT. 18 PAGE 323 at 338-330 paragraphs G-A. We were urged to re-evaluate the evidence on record and resolve issue one in favour of the Appellant.

In respect of the Appellant’s issue two, it was submitted that the burden of proving ownership of the land in dispute was on the 1st plaintiff as the 1st Respondent herein and that the burden never shifts as the Appellant did not counter claim by virtue of Section 137 of the Evidence Act. It was submitted that Exhibit 36, the lease of 1951 which the 1st Respondent relied upon in form of negotiated acquisition cannot stand. Further, that no document was put in evidence to prove the negotiated acquisition as claimed by the 1st Respondent, so as to know the terms of negotiation. It was the contention of the learned Counsel to the Appellant that the 1st Respondent failed to prove that his family was the one that was paid compensation over the Farm Settlement. The evidence of the PW1 (1st Respondent) at pages 86-89 of the records was reviewed to the effect that no compensation was paid to the 1st Respondent’s family during the first acquisition in 1948 but, that his family was paid compensation in subsequent acquisitions in 1960 and 1962 of the adjacent land to the land in dispute, proceed of which he used to build his house.
It was argued that the Plaintiffs by their pleadings and evidence did not prove their case.

On the Appellant’s third issue, it was the submission of the learned Counsel that parties are bound by their pleadings and as such any evidence outside the pleadings of the party goes to no issue and cannot be relied upon by the court to find for such party, see ADEMESO V. OKORO (2005) ALL FWLR PT. 277 PAGE 844 at Pages 852-853 Paragraphs H – A & B and ILOABACHIE V. ILOABACHIE (2007) ALL FWLR PT. 363 PAGE 173 at 177 paragraphs B-C. Further, that 1st plaintiff’s case was fought on negotiated acquisition, he could not make use of the lease, Exhibit 36 to strengthen his case which was not based on Exhibit 36, outside the pleadings of the 1st and 2nd Defendants who tendered it. It was submitted that a Plaintiff succeeds on the strength of his case and cannot rely on the weakness of the defence to prove his case.

It was the contention of the learned Counsel (in respect of Exhibit 36, the lease agreement) that it was never pleaded by the 1st-9th Respondents as plaintiffs rather, the 1st Plaintiff anchored his case on negotiated acquisition. Similarly, it was submitted that Exhibits 32-32N also related to a lease and cannot be rightly utilized by the 1st Respondent. We were urged to hold that the 1st Plaintiff did not by his pleadings and evidence prove that the land in dispute, that is the Old Farm School, belongs to his family and that the learned trial judge was wrong to have found for the Plaintiff as entitled to the old Farm School. We were urged to resolve issue three in favour of the Appellant.

In arguing his fourth issue, the learned Counsel adopted his submissions on issues two and three.
It was the submission of the learned Counsel that the 1st – 9th Respondents would only be entitled to the N500,000.00 or any sum if they had proved their respective Claims as to the ownership of the land in dispute and exclusive possession of same. It was contended that the 1st Respondent did not prove his title to the land in dispute when their pleadings and evidence as to negotiated acquisition is placed alongside Exhibits 32-32N and Exhibit 36 which relates to lease and not acquisition.

It was submitted that it is the law that, where two parties are laying claim to the same thing the person who proves by sufficient fact through documentary evidence which is not contested by the other party is the one whom the law would favour.

It was contended that there are contradictions between the 1st Respondent’s case and the 2nd – 9th Respondents’. The learned Counsel basically re-argued issues two and three to justify why the special damages ought not to have been paid to the first set of Respondents bearing in mind that the family of the 1st Respondent are entitled to the Farm Settlement and the Old Farm School.

The Appellant’s fifth issue relates to the injunctive order made against the Appellant. The learned Counsel re-argued his submissions in respect of issues 1, 2, 3 and 4 above. It was argued that the Appellant proved a better title to the land in dispute than the 2nd to 9th Respondents who had claimed to be in possession of the land in dispute. 1st Respondent was said not to have been in possession of the land in dispute. Further, that from the evidence placed before the Court the reversionary interest in the Old Farm School has not been vested in the 1st and or 2nd to 9th Respondents as the 10th and 11th Respondents who were shown to also be in possession are yet to relinquish their interest in the Old Farm School.

We were urged to reverse the injunctive order made against the Appellant, allow the appeal and set aside the judgment of the trial court.

As I stated earlier in this judgment, at the conclusion of the submissions of the Appellant’s Counsel’s argument, the learned Counsel to the 1st to 9th Respondents (hereafter referred to as the 1st set of Respondents) urged us to consider his preliminary objection at pages 4-6 of his brief as it has not prejudiced the Appellant who had Notice of it and responded to same in his reply brief. Learned Counsel thereafter proceeded to respond to the arguments of learned Counsel to the Appellant in his brief of argument details of which was earlier given in this judgment. The learned Counsel highlighted in oral argument the issue of Exhibit 32A, a lease agreement tendered by the 10th and 11th Respondents (hereafter referred to as the 2nd set of Respondents) in the lower court. We were urged to discountenance the reply brief as it reargued the issues, we were also urged to disregard paragraphs 3.5-3.14 and 4.2 and 4.3 as they raised fresh issues and dismiss the appeal.

In his brief of argument, Mr. Sobaloju, the learned Counsel to the first set of Respondents, in arguing his first issue which covered the Appellant’s issues 2, 3, 4 and 5 agreed with the principle laid down in IDUNDUN V. OKUMAGBA (1976) (SUPRA). It was submitted that the 1st Respondent’s case as 1st Plaintiff was that Soun Kumaye granted the land in dispute to his ancestor, Ikolaba Olufimo several years back. It was submitted that the PW9 (Soun Kumaye) in his evidence confirmed the grant at pages 134-135 of the record of Appeal, that is the grant of the land in dispute to the 1st Respondent’s family by his predecessor in office and also traced the history of how his family settled on the land, see pages 134-139 of the printed records, also relied upon are Exhibits 32-32N said to have been issued in course of the process of the acquisition of the land.

Meanwhile the 3rd Defendant (Appellant) was said to have acquired the land by settlement but failed to adduce any evidence in support of this to prove how he came to own the land, pages 82-85 of the record of appeal, paragraph 12 of the Appellant’s consequential statement of defence to the further and better amended statement of claim. The Appellant had made out that the land in dispute was leased from his family.
It was the contention of the learned Counsel that the trial court was right in its conclusions as same is supported by evidence and ought not to be interfered with as the finding is not perverse; see WOLUCHEM V. GUDI (1981) 5 SC 291 at 326; NWAKASI V. NWACHUKWU (2004) ALL FWLR (PT. 210) 1292 at 1299.

The Appellant’s fourth issue was as to whether the 1st – 9th Respondents are entitled to the award of N500,000.00 damages for trespass. Reference was made to paragraph 55(iii) of the Plaintiff’s claim where the sum of N50 Million Naira was claimed as damages for trespass committed by and still being committed by the Appellant on the land in dispute. The Plaintiff alleged interference with his right of possession having traced his root of title and subsequent acts of ownership exercised on the land in dispute before the land was released to the Government.

It was argued by the learned Counsel to the first set of Respondents that in a claim for trespass all that the Plaintiffs need to prove is that they are in exclusive possession before the trespasser trespassed on the land, once it is established, the Plaintiffs would be entitled to damages with or without proof of any damages, see ARO V. BABAYEMI (2004) ALL FWLR (PT. 204) 64 at 73. We were urged to hold that the trial court was right in awarding damages against the Appellant for trespass.

On whether the Plaintiffs established their claim for an order of injunction, it was submitted that the 1st to 9th Respondents established their claim for an order of injunction, reference was made to the evidence adduced by the 1st Plaintiff to the effect that his family is the original owner of the land and the evidence adduced by the Plaintiffs in proof of their claim for trespass. It was argued that the trial court rightly found the 1st Plaintiff’s family as the original owner of the land that the Appellant trespassed unto and was right to have granted the injunction.

The issue of whether the judgment of the trial court is supported by legally admissible evidence before the court or not was argued under the Appellant’s issue three. It was submitted that Exhibit 36 was rightly admitted and acted upon by the trial court and that the Plaintiffs were in order to have relied on same as it supports their case. It was argued that from Exhibits 32-32N the land was used by the Oyo Province which preceded the Western Region Government, for the establishment of Ogbomoso Farm School. We were urged to resolve this issue in favour of the 1st – 9th Respondents.

The 1st – 9th Respondents’ second issue borders on the Appellant’s first issue that is: Whether the trial court did not consider the effect of the compensation paid to the Appellant by the government on the Farm Settlement.

The land in dispute was identified in the judgment at pages 251 – 252 of the records from paragraph 2, that is, Exhibit 18 the area verged red which represents “the Old Farm School”. It was submitted that the learned trial judge considered Exhibit 35 in his judgment at page 259 of the records, contrary to the argument of the learned Counsel to the Appellant that he did not, that is considering the evidence of compensation as presented by the Appellant and offered his reason for not relying on the evidence, we were urged to hold so.

It was further submitted that the parties are ad idem that the land in dispute is the Old Farm School and that the Old Farm School is distinct from the Farm Settlement, reference was made to Exhibits 2, 3, 4 and 18. The evidence of the DW3 was also referred to the effect that he was paid compensation on the Farm Settlement as opposed to the Old Farm School.

It was submitted by learned Counsel that Exhibit 30, a letter from the then Counsel to the 2nd – 9th Respondents admitting that the Appellant is the owner of the Farm Settlement, we were urged to treat same as an admission against interest, a letter from the 2nd – 9th plaintiffs who are not claiming ownership of the land. It was argued that an admission is not conclusive proof of the matter; S.26 of the Evidence Act was cited and relied upon.

It was also the contention of the learned Counsel that Exhibit 35 relied upon by the Appellant did not state the area or size of the land within the Farm Settlement for which the compensation was paid. Also, that Exhibit 36 has established from whom the land was acquired. It was argued that the land was acquired from the 1st Plaintiff’s (1st Respondent) family and not the Appellant’s.

It was submitted that Exhibits 32-32N and 36 which the trial court, relied upon to find for the Plaintiffs were faulted as unable to stand the test of time without any reason given by the Appellant. We were urged to resolve the second issue in favour of the Respondent and dismiss the appeal. The Appellant responded to the preliminary objection of the 1st set of Respondents in his reply brief as well as his response to the arguments in the main brief.

It was submitted that the only evidence of compensation in this matter is Exhibits 32N and 35 which was said to have been paid to the Appellant’s family, which was also highlighted in the Further and Better Statement of Claim which was argued to be an admission by way of pleading which the Appellant has no burden to prove, but the Plaintiffs. It was stressed that where the Defendant did not counter claim on title to land, the burden is always on the Plaintiff and he must rely on the strength of his case and not on the weakness of the Defendant’s case. We were urged to discountenance the 1st – 9th Respondents’ issue one.

In respect of the second issue it was argued that the evidence of PW5, PW7 (Licensed Surveyor) and Exhibit 18 made the area in dispute clear. We were urged to allow the appeal and set aside the judgment of the trial court.

I would start with the preliminary objection. The learned Counsel to the 1st to 9th Respondents, Mr. Sobaloju mentioned his preliminary objection after the learned Counsel to the Appellant Mr. Orji had argued his appeal and urged us to consider same since the Appellant had responded to it in his reply brief. This is not tenable in that the preliminary objection ought to have been highlighted and moved before the argument of the learned Counsel to the Appellant. The Preliminary Objection at pages 4-6 of the 1st – 9th Respondents’ brief is deemed abandoned and is hereby discountenanced together with the response to it in the Appellant’s reply brief at page 4.

With the main appeal, I would utilize the issues as formulated by the 1st – 9th Respondents as appropriate in the resolution of the issues raised in this appeal. The two issues adequately cover all the issues raised by the Appellant and are more concise. I would resolve the two issues in reverse order, starting with the second issue, which covers the Appellant’s first issue. That is:
“Whether the learned trial judge failed or refused to consider appellant’s evidence that he was paid compensation on the farm settlement by the Government and whether such failure if any did occasion a miscarriage of justice.”

The above issue covers the Appellant’s first issue formulated from ground eleven of the grounds of appeal.

There is no dispute that compensation was paid on the Farm Settlement land covering an area of 6,116 acres. The 1st Respondent as 1st plaintiff made out that his family was paid compensation when government acquired the land while the Appellant as 3rd Defendant with 10th and 11th Respondents (1st and 2nd Defendants) argued that the compensation was paid to the Appellant’s family evidenced by Exhibit 35 (letter dated 17th September, 1973 evidencing payment of the compensation to the family of the Appellant) which was admitted in evidence through the DW3.

From the pleadings and evidence led by the Respondents the Old Farm School and the Farm Settlement are part of the acquired land from the 1st Respondent’s family through a negotiated acquisition in 1948 and a second acquisition in 1960 which made up the area of 6,116 acres’ see paragraphs 26, 27, 28 and 30 of their Further and Better Amended statement of claim, page 118 of the printed records. The PW1 (1st Respondent) at page 87 of the printed records gave evidence to the effect that after the acquisition of 1948, the Government established a Farm School which was expanded in 1960 (2nd acquisition) for which he was personally paid the compensation, in other words the 1960 acquisition was an expansion of the “negotiated acquisition” of 1948.

The PW3 (3rd Respondent/3rd Plaintiff) testified at pages 123-124 of the records that he was an old student of the Old Farm School who started farming after graduation at the Ogbomoso Farm School, on the acquisition of more land by the Government in 1960 it became the Ogbomoso Farm Settlement.

Through PW9 (H.R.M. Oba Jimoh Oyewumi Ajagungbade III JP C.O.N. and the Soun of Ogbomosoland) Exhibit 32N was tendered, which was also tendered through the DW3 as Exhibit 35. At page 137 of the records, he gave evidence to the effect that Exhibit 32N is not related to the land in dispute and that it was issued in 1973. As rightly submitted by the learned Counsel to the Appellant, the land referred to in Exhibits 32N or 35 is Ogbomoso Farm Settlement and was headed: “Acquisition of land at Ogbomoso for Farm Settlement payment of Compensation”.

The Appellant made out throughout his defence that it was in respect of the Ogbomoso Farm Settlement that his family was paid compensation and that the 1st Respondent has not established that the Ogbomoso Farm Settlement is separate or different from the land the Appellant’s family claim they have been paid compensation. The PW9 was the guarantor of the land to the 1st Respondent who agreed that compensation was paid to the Appellant’s family, he made out that it was in respect of a separate land but, the land referred: to in Exhibits 32N and 35 evidencing the compensation to the Appellant’s family specifically mentioned the Ogbomoso Farm Settlement. The Farm Settlement land was not in dispute but, rather the Old Farm School as shown in the Appellant’s pleadings and evidence led. It was clearly shown that the Farm Settlement land is adjacent to the land in dispute. The learned trial Judge rightly identified the land in dispute as the area verged red in Exhibit 18 and at pages 251 to 252 of the records in his judgment and also the part referred to as the Farm Settlement as not being in dispute, see also page 259 of the records where the lower court in its judgment made it clear that from the caption in Exhibit 35 that the compensation was paid to the Appellant family in respect of the Farm Settlement. The evidence of the DW3 (Appellant) also was clear as to the fact that his family was paid compensation in respect of the land acquired from them by Government between 1960 and 1962. The 1st Respondent has also agreed to this fact, see also Exhibits 2, 3, 4 and 18 (Survey Plans). It was argued by the learned counsel to the Respondents’ that the Appellant failed to establish the exact area or size of the land within the Farm Settlement for which compensation was paid but, the area of the Farm Settlement is not in doubt as the area has been distinctly identified by the Appellant, which the Respondents also agreed is the Farm settlement land, adjacent to the old Farm school. One thing is clear, the Appellant did not counter claim, his duty is to defend. In his defence he has made out that his family owns the Farm settlement land which is adjacent to the land in dispute, the Old Farm School which is connected to the Farm Settlement to the effect that what is true of the one would be true of the other.

The parties are agreed that compensation was paid on the Farm Settlement which is connected with or next to the land in dispute and Exhibits 32N and 35 show clearly that compensation was paid to the Appellant’s family.
The learned trial judge agreed that the Appellant’s case was based on the fact of compensation paid to his family but the question that arises as alleged by the Appellant is whether the trial court considered the effect of Exhibits 32N and 35 and the evidence of compensation.

The 1st – 9th Respondents filed a joint brief of argument and were plaintiffs in the trial court and their case in the trial court is that the Old Farm School was first acquired and later enlarged to the Farm Settlement when there was need for expansion while the Appellant has established that the Old Farm School was never acquired and does not form part of the Farm Settlement but a boundary land to the Farm Settlement which was acquired from the Appellant’s family as shown in Exhibits 32N and 35.

The 1st Respondent who claimed that compensation was paid to his family over the 1960 and 1962 acquisitions by the Government did not tender any document to that effect rather, the PW9 the Soun of Ogbomoso tendered Exhibit 32N as evidence of compensation paid by Government, this Exhibit is the same as Exhibit 35 tendered by the Appellant, both showed that compensation by Government was paid to the Appellant and not the 1st Respondent’s family in respect of the Farm Settlement. Similarly, Exhibits 30 and 34, letters written by I. O. Ogundele & Co. (Solicitors to the Association of Farm Settlers, the 2nd-9th Respondents) to the Government.

The 1st Respondent has not alleged that only the land in dispute was acquired from his family, but rather that the Farm Settlement was also acquired.

It is clear that the Respondents were also Plaintiffs in the trial court as stated earlier in this judgment and in this Court filed a joint brief but, while the 1st Respondent has claimed ownership of the land in dispute the 2nd – 9th Respondents have conceded that the Farm Settlement Land belongs to the Appellant’s family to which compensation was paid by Government, the land which is adjacent to the land in dispute, whereas the 1st Respondent consistently insisted that the land in dispute and the Farm Settlement land belong to his family, their stories are not consistent.

As rightly argued by the learned Counsel to the Appellant, the learned trial judge agreed that compensation was paid to the family of the Appellant, so did the 1st set of Respondents claim to have been paid compensation and this was the main thrust of the Appellant’s case. I am of the respectful view that had the learned trial judge properly considered the effect of the compensation paid to the Appellant’s family in respect of the Farm Settlement land he would have arrived at a different decision. This is so because acknowledgment of such compensation confirms the family’s title to land as they would not be paid compensation by Government if the land did not belong to the Appellant’s family. I resolve the Respondent’s second issue, which covers the Appellant’s first issue in favour of the Appellant.

The 1st – 9th Respondents’ first issue covers the Appellant’s issues 2, 3, 4 and 5, the issue as to whether the Respondents did prove or establish their case by preponderance of evidence before the court or not. As rightly submitted by both parties, the burden of proving ownership of the land in dispute is on the party that claims title, in the present case the 1st Respondent. The burden does not shift, the Appellant not having counter claimed. The 1st Respondent as 1st Plaintiff asserted that the Old Farm School (the land in dispute) was acquired from his family of Ikolaba Ayoola family in 1948 for which no compensation was paid and claimed that it was a negotiated acquisition. Also, that there was a subsequent acquisition for which his family was paid compensation. He gave evidence as PW1 and stated that it was in the extension sought (2nd acquisition) that the 2nd acquisition was paid for and that he utilized the money to build his house. See, pages 86-91 particularly page of 87 of the printed records. Under cross examination the 1st Respondent as PW1 made it clear that he did not know the size of the 2nd acquisition for which he said his family was paid compensation.

There is nothing on record to prove that there was a negotiated acquisition from the 1st Respondent’s family in 1948, Exhibit 36 is the lease relied on by the Respondents, the said Exhibit was made in 1951 and on the face of it, cannot confirm negotiated acquisition of the land in dispute by the Government from the family of the 1st Respondent.

The 1st Respondent who claimed that his family had been paid compensation over the Farm Settlement, did not produce or tender any document to prove such compensation over the Farm Settlement land adjacent or connected with the Old Farm School for which compensation was paid as shown by Exhibits 32N and 35.

The 2nd – 9th Respondents who were also Plaintiffs in this case tendered the two letters from their Solicitors Exhibits 30 and 30A, (earlier highlighted in this judgment) by these Exhibits stated that the land in dispute originally belongs to Onipetu of Ijeru family, the family of the Appellant to which they attached Exhibit 35 evidencing payment of compensation to the Appellant in respect of the Farm Settlement. Also in paragraph 37 of the Further and Better Amended Statement of Claim at page 119 of the records pleaded as follows:
“In 1973 through letter dated 17th September, 1973 the Ministry of Lands and Housing of the then Western State rejected a fresh claim being made by the predecessor in office of the 3rd defendant in respect of part of the acquired land on the ground that his family had been paid compensation of #24,464 ($12,232) in free and complete discharge of all claims made in respect of all rights and interest in the land acquired from 3rd defendant’s family.”

On the part of the Appellant in paragraph 5 of the third consequential Statement of Defence at page 83 of the printed records made it clear that it was only his family that was paid compensation on the Farm Settlement land and that Soun of Ogbomoso through whom the 1st plaintiff claim had no land in the area. Thus, paragraph 37 above is an acknowledgment that the Appellant’s family had been paid compensation earlier and therefore a fresh claim from the family was not acceptable.

The case of the 1st Respondent was not based on the lease Exhibit 36 but on negotiated acquisition from their joint pleadings (as 1st – 9th Respondents) and oral evidence in the trial court.It is trite that in an action for declaration of title to land the onus is on the party claiming ownership of the land to prove how he became the owner, in other words he must prove his title upon preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See ONWUGBUFOR V. OKOYE (1996) 1 NWLR (424) 252; SHITTU V. FASHOWE (2005) 14 NWLR (946) 671; EZE V. ATASIE (2000) 9 WRN 73 at 88; ADESANYA V. ADERONMU (2000) 13 WRN 104 at 115 lines 10-35; KOSILE V. FOLARIN (1989) 3 NWLR (PT.107) 1 at 12; and ADEWUYI V. ODUKWE (2005) ALL FWLR (PT.278) 110 at 112.

The Apex Court settled the methods by which a Plaintiff may establish title to land in the case of IDUNDUN VS. OKUMAGBA (1976) 9-10 SC 227, also relied upon by both parties in this case. They are:
(a) By traditional evidence;
(b) By production of documents of title duly authenticated and executed;
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;
(d) By acts of long possession and enjoyment;
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. (Underlined mine for emphasis.)
A Claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them. It was the 1st Respondent’s case that compensation was not paid to his family on the first acquisition of 1948 but that his family was paid compensation in the subsequent acquisition of 1960 and 1962 which he used to build his house, pages 87 and 90 of the printed records, the Appellant’s evidence as PW1. The question is: Was there any evidence of such compensation paid to the Appellant and his family? From the records and documentary evidence tendered before the trial court, the only evidence of compensation is as shown in Exhibits 32N and 35 which are the same, paid to the family of the Appellant and as stated in paragraph 37 of the plaintiffs’ Further and Better Statement of Claim, earlier highlighted while resolving the second issue.

The 1st Respondent gave their boundary men on the land in dispute before 1948 acquisition as Ikolaba Ajibosin on one side, Dawodu Laleye Oyewumi family on the other side, on the third side Asagba family and Ogbomoso/Oyo Road on the fourth side. According to the 1st Respondent, the first acquisition was the Old Farm School while the subsequent acquisition was the Farm Settlement land which is adjacent and connected to the Old Farm School which he as PW1 said he did not know the extent. In my respectful view the 1st Respondent has failed to prove that his family is the owner of the Farm Settlement as to have entitled them to any compensation, even though any compensation paid to his family has not been proved.

No doubt from the survey plans tendered the Old Farm School is adjacent and connected to the Farm Settlement. The Appellant’s family has been shown to be the owner of the Farm Settlement which bounds the land in dispute, hence the invocation of Section 46 of the Evidence Act in their favour which also satisfied paragraph (e) in IDUNDUN V. OKUMAGBA (SUPRA) that is: possession of connected or adjacent land.

Even though the Respondents pleaded negotiated acquisition but relied on Exhibit 36 a ten (10) year term lease which was not pleaded as well as Exhibits 34A and 32J which relate to a lease of 99 years to the Government. These Exhibits do not tally with Exhibit 36 (pleaded by the 1st and 2nd Defendants) and its terms. It is trite that pleadings must tally with evidence for it to have any value, see EMEGOKWE V. OKADIGBO (1973) 4 SC 113; PAN BISBUILDER (NIG.) LTD. V. FIRST BANK OF NIGERIA LTD. (2000) 1 SC 71; (2000) 1 NWLR (642) 684 and AMERICAN CYNAMID CO. V. VITALITY PHARMACEUTICALS LTD. (1991) 2 NWLR (171) 15; ADEMOSO V. OKORO (2005) ALL FWLR (PT.277) PAGE 844 at pages 852-853 paragraphs H-A & B and ILOABACHIE V. ILOABACHIE (2007) ALL FWLR PART 363 PAGE 173 at 177 paragraphs B-C.

Further, Exhibit 36 had 1951 date on it long after the 1948 first acquisition date of the 1st Respondent and his family as alleged. There was a consideration of one shilling per annum while the 1st Respondent made out there was, no compensation or, payment over the first negotiated acquisition. The name of the 1st Respondent’s family was not contained in Exhibit 36, they cannot therefore claim to be part of it. In my respectful view the 1st – 9th Respondents who based their case on negotiated acquisition and not lease did not prove their case and I so hold

On the award of damages, it is the law that a party would be entitled to award of damages, if such party in this case proves ownership of the land in dispute and exclusive possession of same. Having held that the 1st-9th Respondents have not proved their respective claims and/or title to the land in dispute, the award of damages ought not to have been awarded against the Appellant.

On the purpose of damages, damages are compensation in money, a sum of money given to a successful Plaintiff(s) as compensation for loss or successful plaintiff as compensation for loss or harm of any kind. See. SOETAN V. OGUNWO (1975) 6 SC 67; (1975) 6 SC (REPRINT) 57 at 63-64.

On the injunctive order granted, it is true that an injunctive relief is usually made to protect exclusive possession of a party and would not be granted if the party against whom it is sought proves a better title. It is made to Protect a legal right. In the case of BABATUNDE ADENUGA & 5 ORS. V. K. ODUNEWU & ORS. (2001) 2 NWLR (PT.696) 184 at 195 the Apex Court as per Karibi-Whyte, JSC defined injunction thus:
“An injunction is an equitable order restraining the person to whom it is directed from doing the things specified in the order or requiring in exceptional situations the performance of a specified act. A claim for an injunction is a claim in equity.
The order for injunction is available to restrain the defendant from the repetition or the continuance of the wrongful act or breach of contract complained of, see EGAN V. EGAN (1975) 2 ALL ER 167. It is generally granted to protect a legal right which is in existence. See UNION BEVERAGES LTD. V. PEPSICOLA INTERNATIONAL LTD. & ORS. (1994) 3 NWLR (PT.330) 1 SC. This is with the object of keeping matters in status quo until the question at issue between the parties is determined – OKAFOR V. NNAIFE (1987) 4 NWLR (PT. 64) 129, ODUMEGWU OJUKWU V. LAGOS STATE GOVERNMENT (1986) 3 NWLR (PT. 26) 39. The applicant must show that he has sufficient interest in the reliefs sought – see ABIODUN AKERELE V. CHIEF OBAFEMI AWOLOWO & ANOR (1962) WNLR 220, 224.”
The above decision was followed by this Court in the case of ANNE KADIYA & 2 ORS. V. JIBO KADIYA & 2 ORS (2001) 14 NWLR (PT.734) 578 at 591 his Lordship Musdapher (JCA) as he then was re-emphasized in this respect thus:
“An injunction granted is generally to protect a legal right which is in existence, with the object of keeping matters in status quo until the question at issue between the parties is determined. To succeed, an applicant must show that he has sufficient interest in the reliefs sought.”
An injunctive order can be likened to a preservative order from the Court to the party sought against not to perform the particular act or to do anything that will be prejudicial to the subject matter of the litigation, in this case the Defendants’ (Respondents in this Court) interference or further interference with the Plaintiffs’ possession of the land in dispute and further trespass on the land as sought in the trial court. From the evidence adduced, the Old Farm School was never acquired. The Appellant has been shown to have a better title to the land in dispute than the 2nd – 9th Respondents who had claimed to be in possession.

The 2nd-9th Respondents themselves pleaded that the land in dispute belongs to the Appellant’s family from whom they leased it for a period of 10 years as shown in the then 1st and 2nd Defendants’ statement of defence, paragraphs 11, 13g and 16(d)-(h). The 1st – 9th Respondents have not in any way proved that they are in exclusive possession of the land in dispute to have been entitled to the injunctive relief granted by the trial court.

The 10th and 11th Respondents as 1st and 2nd Defendants did not reverse any interest on the land in dispute to the 1st Respondent who they did not admit to be the original owners, and did not admit that of the 2nd – 9th Respondents who were their tenants. At the visit to locus in quo the learned trial judge, also acknowledged the presence of structures, hatchery, fishery etc. put up by the 10th and 11th Respondents. The 2nd – 9th Respondents have not established that they are in exclusive possession of the land in dispute.

The 1st – 9th Respondents not having established their claim did not prove any interference or trespass by the Appellant and are therefore not entitled to the injunctive relief granted by the trial court. This issue is resolved in favour of the Appellant.

In the final analysis, I allow the appeal. The judgment of the trial court of the Oyo State High Court, in Suit No. HOG/8/2002 delivered on 7th March, 2007 is hereby set aside. I award costs of N30,000.00 (Thirty Thousand Naira) to the Appellant.

MONICA B. DONGBAN-MENSEM, J.C.A.: I had the privilege of reading in draft, the lead Judgment prepared by my learned brother C. N. UWA JCA. I agree with and hereby adopt as mine, the said Judgment to which I have nothing useful to add.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the robust judgment pronounced by my learned brother, Chidi Nwaoma Uwa, J.C.A., and would adopt it as mine.

In an action for disputed possession of land, person with the better title and/or right to possession prevails – See Amakor v. Obiefuna (1974) 9 N.S.C.C. 128. The respondents having failed to establish better and superior title to the disputed land, the court below should have dismissed their claim.

For the reason given above coupled with the elaborate reasons contained in the judgment of my learned brother, Uwa, J.C.A., I too would allow the appeal and set aside the judgment of the court below with N30,000 costs to the appellant.

Appearances

I.G. Orji holding the brief of Olugbenga Ogunniran Esq.;For Appellant

AND

Kunle Sobaloju Esq. with Raphael Agbanyi for the 1st – 9th Respondents
10th – 11th Respondents served but absent.For Respondent