OLUWASEUN O. OLUWOLE v. OLAYIWOLA ABUBAKARE
(2011)LCN/4992(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of December, 2011
CA/I/173/99
RATIO
TRESPASS TO LAND: WHETHER WHERE A CLAIM FOR TRESPASS IS COMPLIED WITH A CLAIM FOR AN INJUNCTION THE TITLE OF THE PARTIES TO THE LAND IN DISPUTE WILL AUTOMATICALLY BE PUT IN ISSUE
It is common ground that where a claim for trespass is complied with a claim for an injunction as in the instant case, the title of the parties to the land in dispute is automatically put in issue. See the case of GBADAMOSI VS. TOLANI (2011) 5 N.W.L.R. Part 7240 Page 352 at 366 Paragraph C. PER MODUPE FASANMI, J.C.A
BURDEN OF PROOF: THE BURDEN OF PROOF ON THE PLAINTIFF IN A CASE FOR DECLARATION OF TITLE TO LAND
The onus is on the Plaintiff in a case for declaration of title to land to prove that he is entitled to judgment based on the evidence adduced by him in connection with the declaration sought. He can only rely on his own evidence alone and not on the weakness of the Defendant’s case. See SHITTU VS. FASHAWE (2005) 14 N.W.L.R. Part 946 Page 677, ADESANYA VS. ADERONMU (2000) 9 N.W.L.R. Part 672 at 370 and BAMIDELE VS. OLADELE (2010) 34 W.R.N. Page 15. PER MODUPE FASANMI, J.C.A
TITLE TO LAND: POSITION OF THE LAW WHERE THERE IS AN ISSUE AS TO WHICH OF TWO CLAIMANTS HAS A BETTER RIGHT TO POSSESSION OR OCCUPATION OF A PIECE OF LAND IN DISPUTE
It is also the law that when the issue as to which of two claimants has a better right to possession or occupation of a piece of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title. See AROMIRE VS. AWOYEMI (1972) 1 ALL N.L.R. Part 1 and 19 and FASORO VS. BEYIOKU (1988) 2 NWLR Part 76 page 263; OGUNKEYE VS. ONI (1990) 2 N.W.L.R. Part 135 at 745 and OLADUNJOYE VS. AKINTERINWA & ANOR (2000) 6 NWLR Part 659 at 92. PER MODUPE FASANMI, J.C.A
SPECIAL DAMAGES: DUTY OF THE PLAINTIFF TO SUCCEED IN A CLAIM FOR SPECIAL DAMAGES
It is trite law that for the Appellant to succeed in a claim for special damages, it must not only be pleaded but strictly proved. See ABDULLAHI VS. RAJI (1998) 1 N.W.LR. Part 534 at 481, SHEHU VS. AFERE (1998) 7 NWLR Part 556 at 115 and OBASUYI VS. BUSINESS VENTURES LTD (2000) F.W.L.R. Part 10 at 1722. PER MODUPE FASANMI, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
OLUWASEUN O. OLUWOLE Appellant(s)
AND
OLAYIWOLA ABUBAKARE Respondent(s)
MODUPE FASANMI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Ota Judicial Division, Ogun State delivered on the 15th of December 1994.
Appellant was the Plaintiff at the lower Court. He claimed in his further amended Statement of Claim and plan dated 17th May 1993 the following reliefs:
(a) The sum of N322,000:00k being special and general damages for the Defendant’s trespass and destruction of the plaintiff’s bread baking building and numerous baking and electrical equipments such as oven and burner, cassava machine, baking pans, cutting machine, mixing machine, electrical equipments etc fixed unto the baking building situate lying and being at Oke-Giwa, Agbado Railway Station, Ifo, Ogun State.
(b) Injunction restraining the Defendant, his servants, agents and privies from continuing and committing further acts of trespass on the said plaintiff’s baking building.
Appellant based his claim on the ownership of the land in dispute having lease the land from the Nigerian Railway Corporation in 1989. Appellant Stated that there is a building on the land in which he carried out bread baking. He was from 1983-1989 a sub tenant of one Mrs Babayomi who was baking bread in the building before granting the tenancy to the plaintiff. The Respondent came one day and destroyed the building and fixtures.
The Respondent also depended on the same source by stating that he purchased the land and the mud house in dispute from Ramoni Buraimoh D.W.3 and that he further took leasehold of the land from the Nigerian Railway Corporation.
Appellant called six witnesses while the Respondent called five witnesses. The learned trial Judge in a reserved judgment struck out the Appellant’s claim at the lower court. Dissatisfied with the judgment, Appellant appealed to this court. Appellant filed four grounds of appeal. Pursuant to the rules of this court, Appellant’s brief of argument is dated and filed on 8th of December 1999 while the Respondent’s brief of argument is dated 17th July 2008 but filed 18th July 2008. It was however deemed properly filed and served pursuant to the Order of this court granted on the 30th of June 2008 whereby Respondent was granted leave to file his brief within 21 days. At the hearing of the appeal, the Respondent and his Counsel were absent. However there is proof of service of the hearing notice of the appeal on the Respondent through his Counsel Bisi Opeyemi Esan on the 13th of September 2011. Respondent’s brief is therefore deemed argued pursuant to Order 18 Rule g (4) of the Court of Appellant’s Counsel adopted and relied on the arguments in the Appellant’s brief of argument.
Appellant’s distilled three issues for determination from the four grounds of appeal thus:
(a) Whether it is proper for the lower court to hold that there was no trespass and whether the law on trespass was followed.
(b) Whether the lower court properly evaluated the evidence on special and general damages and whether the law on same was followed.
(c) Whether the lower court properly applied the law on injunction
The Respondent distilled a sole issue for determination thus:
Whether having failed to prove and/or adduce any evidence of trespass on the Respondent’s part, the Appellant is entitled to damages and declaration of injunction sought.
The issues formulated by both parties are touching on the complaints of the Appellant against the decision of the lower court although couched differently.
I therefore intend to consider the appeal on the issues formulated by the Appellant. The issues will be taken together as they are interwoven.
Learned Appellant’s Counsel submitted that the Appellant gave evidence at page 42 of the record that the Respondent came one day and destroyed the building and all fixtures. He supported his evidence by tendering the proceedings in the Customary Court exhibits G and G1 wherein the Respondent admitted that he took over the bakery building. The result of the takeover was the demolition of the building and damages to the equipments which led the Appellant to counter-claim for damages in the Customary Court where the Respondent filed an action for ownership of the land upon which the Nigerian Railway Corporation granted a leasehold to the Appellant. He submitted that the law of trespass is stated in the case of ATUNRASE & ORS vs. ALHAJI SUNMOLA & ORS (1985) 7 S.C. Page 34g and EKPAN & ORS VS. CHIEF UYO & ANOR. (1986) 5 S.C. Pages 29-37, Submitted further that the lower court did not properly evaluate the evidence before it. He contended that the lower court had imported into civil case the concept of proof beyond reasonable doubt applicable in criminal cases when it held that the equipments damaged were not tendered and that Appellant failed to prove the destruction of the things claimed to have been destroyed.
Learned Counsel for the Appellant further submitted that the lower court should have relied on Section 149 of the evidence Act to presume that since the Respondent admitted being in possession of the building, then he was responsible for the damage to the bakery building and to the fixtures which occurred during the period that he was unlawfully in possession. Submitted that the law on trespass was misconceived and wrongly applied.
He contended further that the evidence on special and general damages were not properly evaluated. He tendered exhibits C and C1 and exhibits D and D1 through P.W. 2 and the Estate Surveyor P.W.6 tendered exhibits 4. He submitted that the Appellant had established special and general damages on the preponderance of evidence.
On the issue of injunction, Learned Counsel for the Appellant submitted that the lower court having found that the Appellant was in possession ought to have granted an injunction to protect the possessory title. He urged the court to allow the appeal since the Appellant has proved his case before the lower court on the preponderance of evidence and also proved the claim for special and general damages as required by law.
Learned Counsel for the Respondent in the brief of argument submitted that the evidenced of the Appellant and all his witnesses did not show or establish any unlawful interference by the Respondent with the Appellant’s possession of the bakery building or the bakery equipments allegedly destroyed. He submitted that Appellant can only rely on the strength of his case and not on the weakness of the defence. He referred to the case of OKEDARE VS. OBA ADEBONA & ORS. (1994) 6 S.C.N.J. Part 2 Page 254 at 257. He submitted that the Respondent has completely discharged the onus on him in showing better title to the premises in dispute. The evidence of the Respondent was that the said premises was purchased by him from D.W.3, which fact was corroborated by D.W.3 himself and D.W.3. He placed reliance on the case of LADIPO VS. AJANI (1997) 8 N.W.L.R. Part 517 Page 356 at 369.
Learned Counsel for the Respondent further submitted that the Appellant failed to proffer any evidence of special or general damages to enable the trial court award same. For the Appellant to succeed in a claim for special damages, it is trite law that the same must not only be pleaded but strictly, proved. He placed reliance on the cases of:
(1) ABDULLAHT Vs. RAJI (1998) 1 N.W.L.R. Part 534 at 481
(2) SHEHU VS. AFERE (1998) 7 N.W.L.R. Part 556 at 115 and
(3) OBASUYI VS. BUSINESS VENTURES LTD (2000) F.W.L.R. Part 10 at 1722.
Learned Counsel for the Respondent further submitted that Appellant failed to show how and when the alleged destruction of his bakery building was done by the Respondent. None of the Appellant’s witnesses testified to having seen any baking equipments that were destroyed or laid in ruins in the building. At best, they merely alleged that they found a partly demolished building when the site was visited. He submitted that the learned trial Judge was therefore correct when he held that the Appellant had failed to prove the destruction of all the things that he claimed were destroyed. On injunction, submitted that the remedy of an injunction will not be available to the Plaintiff whose claim for declaration of title and/or trespass failed. He finally urged the court to dismiss the appeal as lacking in merit.
It is common ground that where a claim for trespass is complied with a claim for an injunction as in the instant case, the title of the parties to the land in dispute is automatically put in issue. See the case of GBADAMOSI VS. TOLANI (2011) 5 N.W.L.R. Part 7240 Page 352 at 366 Paragraph C.
The onus is on the Plaintiff in a case for declaration of title to land to prove that he is entitled to judgment based on the evidence adduced by him in connection with the declaration sought. He can only rely on his own evidence alone and not on the weakness of the Defendant’s case. See SHITTU VS. FASHAWE (2005) 14 N.W.L.R. Part 946 Page 677, ADESANYA VS. ADERONMU (2000) 9 N.W.L.R. Part 672 at 370 and BAMIDELE VS. OLADELE (2010) 34 W.R.N. Page 15.
It is also the law that when the issue as to which of two claimants has a better right to possession or occupation of a piece of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title. See AROMIRE VS. AWOYEMI (1972) 1 ALL N.L.R. Part 1 and 19 and FASORO VS. BEYIOKU (1988) 2 NWLR Part 76 page 263; OGUNKEYE VS. ONI (1990) 2 N.W.L.R. Part 135 at 745 and OLADUNJOYE VS. AKINTERINWA & ANOR (2000) 6 NWLR Part 659 at 92.
In the case at hand, the claim of the Appellant postulates that he is either the owner or prior to the trespass of the Respondent, he had possession of the disputed land having leased the land from the Nigerian Railway Corporation. The approach and duty of the court is to consider the activities of the parties in the exercise of their rights and decide whether it accords with the evidence and averments in the pleadings of both parties as the law ascribes possession to the one of them with the better title based on balance of probabilities.Appellant called Julius Okankwo an Estate Surveyor of the Nigerian Railway Corporation and the 3rd P.W. Mr Okankwo said that the Appellant had been a tenant of the Nigerian Railway Corporation since 1989. Under cross examination, this witness said that he also knew the Respondent as a tenant of the Nigerian Railway corporation. He tendered exhibits E-E2 and exhibits F-F3 but said that they were not in respect of the same land.
At page 64 of the record, 5th D. W. was Sonola Sopeju a Higher Technical Officer (Estates) under the Nigerian Railway claimed to have been to the site of the land in dispute and that it was not part of the Railway land. He referred to the area marked red in Exhibit ‘B’ which was shown as being on the Railway land but physically it was not. He even said that the land allocated to the Appellant was still vacant. I therefore hold the view that Appellant has not shown a better title to that of the Respondent.
On the issue of trespass, there must be sufficient possession to maintain an action for trespass and such possession must be clear and exclusive possession. The Appellant merely stated that the Respondent came one day and destroyed the bakery building. He did not call any of his staff to attest to this fact. He did not lead evidence as to how the Respondent destroyed his possession in any form. The learned trial Judge in his findings at page 65 of the record of appeal had this to say:
“In the instant case after placing the evidence of the Plaintiff side by side with that of the defendant, I find it difficult to say with certainty who is in possession. While the plaintiff depended upon his lease from the Railway Corporation, the Respondent also depended upon the same source.
The evidence of the 5th D.W. which was not challenged cast doubt on the evidence of the 3rd P.W. and not much weight could now be attached to it. Now from the available evidence, neither the plaintiff nor the Defendant is on any portion of Railway land. It would appear that both of them have a misconception as to their respective land.”
From the available evidence on the printed record, Appellant has failed to prove exclusive possession of the land on which trespass has been committed. See the cases of OLUWI VS. ENIOLA (1967) 7 N.W.L.R. at 332 FABUNMI VS. AGBA (1985) 7 N.W.L.R. Part 2 at 229, AMAKER VS. OBIEFUNA (1974)3 S.C. at 76, EKRETUS VS. OYOBEBERA (1992) 9 N.W.L.R. Part 266 at 455 and YUSUF VS. KEINSI (2005) 13 N.W.L.R. part 943 page 554 at 568 Paragraphs C-D.
Appellants reliance on Exhibit G and G1 to prove trespass, goes to no issue and cannot be relied on in the instant case. The uncontroverted evidence of the Respondent was that he withdrew the action i.e. Suit No.AGB/82CV/91 at the Agbado Customary Court before any judgment or pronouncement was made thereon, and ultimately it was struck out. The Customary Court did not therefore make any pronouncement on the alleged admission of trespass on the Respondent’s part.
The lower court rightly found that the Appellant has not proved trespass because only a person in possession of land at the material time can maintain an action for damages for trespass. See OYADYI VS. ADUKE (1993) 9 N.WL.R. Part 316 at 224 and ALHAJA JURADAT ANIMASHEUN VS. G. A. OLOJO (1990) 6 N.W.L.R. Part 754 at 111.
It is trite law that for the Appellant to succeed in a claim for special damages, it must not only be pleaded but strictly proved. See ABDULLAHI VS. RAJI (1998) 1 N.W.LR. Part 534 at 481, SHEHU VS. AFERE (1998) 7 NWLR Part 556 at 115 and OBASUYI VS. BUSINESS VENTURES LTD (2000) F.W.L.R. Part 10 at 1722.
Part of the averment of the Appellant’s pleading as contained in paragraph 16 of the further amended statement of claim and Plan dated 17/5/93 states:
“Some of the damaged equipments recovered from the debris of the damaged bakery building will be tendered.”
None of the said damaged equipments was tendered as exhibit during trial. This is fatal to the Appellant’s claim as pleading does not constitute evidence. None of the Appellant’s witnesses testified to having seen baking equipments that were destroyed or laid in ruins in the building. The learned trial Judge was therefore correct when he held that the Appellant has failed to prove the destruction of all the things he claimed were destroyed.
On issue of injunction, it is trite law that the remedy of an injunction will not be available to the plaintiff whose claim for declaration of title and/or trespass failed. See AKPALAKA VS. IGBAIBO (1996) 8 N.W.L.R. Part 468 at 533. Since Appellant has failed to prove trespass, the remedy of injunction was rightly refused by the learned trial Judge.
It is observed that this case was heard to conclusion by the trial court. One then wonders why the case was struck out. Looking at the claim of the Appellant, the lower court has jurisdiction to entertain the case and the Appellant’s locus standi had not been challenged. See the case of KHALID & DIBBO TRANSPORT LTD VS. ODUMAMADE (2000) F.W.L.R. part 77 page 763 at 171, It is appropriate for this court to interfere with the judgment of the court below as the application of the law on properly founded facts is erroneous. See EBBA VS. OGODO (2000) F.W.L.R. Part 27 Page 2094 at 2134-2135.
Learned Counsel for the Respondent has urged this court to invoke its power under section 16 of the court of Appeal Act 2004 to dismiss the claim since Appellant has not proved its case. The submission is quite appropriate because it is the law that where the Plaintiff fails to prove his claim for trespass and injunction, the proper order to make is dismissal. See Jokotoye vs. Onimalu (1998) 13 N.W.L.R. part 580 at 757.
In the final analysis, this appeal lacks merit and it is accordingly dismissed. The suit at the lower court No.HCT/71/91 which was struck out on the 15th of December 1994 is hereby dismissed.
STANLEY SHENKO ALAGOA, J.C.A.: I read before now the judgment just delivered by my brother Fasanmi (J.C.A.) and I am of the view that the appeal lacks merit and should be dismissed. I also dismiss same. I abide by the order contained in the lead judgment.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the judgment of my learned brother, FASANMI J.C.A, just delivered. I am in complete agreement with the reasoning and conclusion arrived thereat. For the reasons ably stated in the said judgment which I adopt as mine, I would dismiss the appeal as lacking in merit. The suit at the lower court No.HCT/71/91 which was struck out on the 15th of December 1994 is hereby dismissed.
Appearances
Olayinka OmosanyaFor Appellant
AND
RESPONDENT was served but absentFor Respondent
