ONAPHIE v. OTUAGOMA
(2020)LCN/15375(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Monday, September 28, 2020
CA/AS/278/2014
RATIO
POSSESSION AND TRESPASS: WHETHER ONLY A PERSON IN POSSESSION OF THE LAND AT ALL TIMES CAN MAINTAIN AN ACTION IN DAMAGES FOR TRESPASS.
It is a trite principle of law that in a claim for trespass only a person in possession of the land at all times can maintain an action in damages for trespass.
The Appellant claimed to have exclusive right of the Ugbusi land, which the lower Court found belonged to the Omovwaire family as gleaned from the suit (Suit No. UHC/41/77) at the lower Court but failed to prove how he came into exclusive ownership of the family land. It behoved on the Appellant to prove a better title to the disputed land. See ABO v AANYAM (2017) LPELR – 42453 (CA); FASUYI & ANOR v OMOLAFE (2018) LPELR – 46048 (CA); AYANRU v MANDILAS LTD (2007) LPELR – 670 (SC). PER ABIMBOLA OSARUGUE OBASEKI–ADEJUMO, J.C.A.
WORDS AND PHRASES: BURDEN OF PROOF
The position of the law is settled and it is that he who alleges must prove. See in this regard Sections 131 and 132 of the Evidence Act, 2011. The Sections read: –
“131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
See also amongst many others the case of EZEMBA V. IBENEME (2004) LPELR-1205(SC) wherein the Supreme Court stated thus: –
“In civil cases, the phrase “burden of proof’ has two distinct and frequently confused meanings. Firstly, it may mean the burden of proof as a matter of law and pleadings usually referred to as the legal burden or the burden of establishing a case; secondly, the burden of proof in the sense of adducing evidence often referred to as the evidential burden. While the burden of proof in the first sense is always stable or static, the burden of proof in the second sense may shift constantly as one scale of evidence to the other preponderates. As Aniagolu, J.S.C. correctly observed in the case of Felix O. Osawaru v. Simon Ezeiruka (1978) 6 & 7 SC 135 at 145:
“In civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff Joseph Constantine Steam Line Ltd. v. Imperial Smelting Corp. Ltd. (1942) AC 154, 174) the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses … “
See the case of Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339 at 353.”
Still on evidence/burden of proof, is the case of AKANMODE V. DINO (2008) LPELR-8405(CA) wherein this Court per Lokulo-Sodipe, J.C.A. stated thus: –
“The Appellants would appear to be tenaciously holding to the fact that the Respondents adduced no contradictory evidence in arguing that judgment ought to have been entered in their favour. The law is definitely not to the effect that whenever a defendant adduces no evidence, judgment must be entered for the plaintiff. In the case of Arabambi vs. Advance Beverages Industries Ltd (supra) relied upon by the Appellants, the Supreme Court was clear on the point that it is the production by a party of credible evidence that can entitle the said party to judgment. Indeed in the said case, the Supreme Court further held among others that a defendant is not bound to call witnesses to establish his defence where a prima facie case has not been proved by the plaintiff. The position of law was applied in the case of CHIEF SERGEANT C. AWUSE V. DR. PETER ODILI & 326 ORS [2005] All FWLR (Pt. 261) 248 at 313-316. Indeed in the case of MUSTAPHA FANNAMI V. ALHAJI GAJI BULAMA BUKAR [2004] All FWLR (Pt.198) 1210 at 1259-1260 this Court among others held to the effect that the evidence which calls for rebuttal from the opposite party must be admissible, relevant and credible. That it is not any and every evidence at all which must be matched. That if the evidence in support of an allegation is worthless, being incredible, and/or irrelevant; then the opposite party has no obligation to produce anything for the other side of the scale to match it. Where evidence led is virtually worthless, it is therefore futile to presume that the party alleging has discharged the burden of proof or that the Court ought to act on the evidence adduced because the opposite party has not presented a rebuttal.”
The position of the law is settled that the claim for trespass is not dependent on the success of a claim for declaration of title. Both are separate and independent of each other. Trespass is essentially a tort against possession and only a person in possession of a land in dispute at all material times can maintain an action in damages for trespass. Accordingly, possession alone is sufficient to maintain an action in trespass although for such possession to found an action in trespass, it must be clear and exclusive. See BALOGUN V. AKANJI (2005) LPELR-722(SC). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
POSSESSION AND TRESPASS: ISSUES TO BE CONSIDERED WHERE THE CLAIM IS FOR TRESPASS
To sustain action for trespass the plaintiff needs to show that he was in possession. Exclusive possession is a main factor in an action for trespass. See xxx
If the plaintiff is not in actual or exclusive possession, he should show that the entry of the defendant is unlawful, unwarranted or unjustifiable. The defendant on the other hand can resist the plaintiff’s claim by showing that he is in actual possession or that he has right to possession.
Against this background in an action such as this where the claim is for trespass, two separate and independent issues must be considered. They are: –
a) Whether the plaintiff established his actual/possession of the land and
b) Whether the defendant trespassed on it, see the cases of xxx. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
GODWIN ONAPHIE APPELANT(S)
And
GODWIN OTUAGOMA RESPONDENT(S)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 13/12/2013 by the High Court of Delta State sitting at Warri, presided over by Hon. Justice C.E. Achilefu (hereafter to be simply referred to as “the lower Court” and “learned trial Judge” respectively). The original Plaintiff – Pa. Johnson Ologbo, before the lower Court (now substituted by the Appellant pursuant to the order of this Court made on 14/11/2017), claimed against the Respondent as Defendant as follows: –
“1. The sum of N3,000,000.00 (Three million Naira) being special and general damages for acts of trespass by the Defendant when the Defendant and/or his servants, privies, workmen, without the consent or authority of the Plaintiff entered upon the land of Omovware Family in Plaintiff’s possession, which piece of land is measuring approximately 100 feet by 100 feet and which is now No. 4, Otuagoma Street, Off Ighwrekpokpor Road, Ighwrekpokpor, Ughelli within the jurisdiction of this Honourable Court.
2. A declaration that any purported sale or gift of the land in dispute, No. 4, Otuagoma Street, Off Ighwrekpokpor Road, Ighwrekpokpor, Ughelli to the Defendant without the knowledge, consent/concurrence of the Plaintiff is null and void ab initio and of no effect whatsoever.
3. An order of perpetual injunction restraining the Defendant and/or his servants, privies, workmen, agents, from further trespassing or remaining on the said piece of land, No. 4, Otuagoma Street, Off Ighwrekpokpor Road, Ighwrekpokpor, Ughelli.”
The case of the Appellant as set up in the statement of claim is to the effect that he was and is still a member and indeed the head of the Omovwiare Family of Ighwrekpokpor, Ughelli (hereafter to be simply referred to as “the O. Family”). That sometime in 1977, Peter Igbini Ologbo and one other (now deceased) for themselves and on behalf of the O. family sued him (Appellant) and two others (now deceased) in Suit No. UHC/41/77. That before and after the said suit (i.e. UHC/41/77) he (Appellant) was in exclusive possession of a larger portion of Ugbusi land including the parcel of land now in dispute in the instant case. That it was the possession of the larger portion of Ugbusi land by him (Appellant) and on which he had a large expanse of rubber plantation, to the exclusion of other members of the O. family that resulted in the institution of Suit UHC/41/77. That while the Plaintiffs in Suit No. UHC/41/77 claimed that the Ugbusi land belonged to O. family, the Defendants therein, claimed that the said land was given to them by Imohwe family after they deforested and planted rubber trees thereon. In other words, while the Plaintiffs in Suit No. UHC/41/77 pleaded family ownership the Appellant and his Co-Defendants pleaded individual ownership/personal ownership of Ugbusi land. That the lower Court in its judgment in Suit No. UHC/41/77 decided that Ugbusi land is the property of O. family. That the Defendants in Suit No. UHC/41/77 appealed to the Court of Appeal against the decision of the lower Court and the appeal was dismissed. That the Appellant as the only surviving Defendant in Suit No. UHC/41/77 appealed against the decision of the Court of Appeal with Peter Igbini Ologbo the only surviving Plaintiff in the said suit, as Respondent, to the Supreme Court. That the Supreme Court in its judgment dismissed the said appeal. That during the pendency of the litigation in respect of the Ugbusi land, he (Appellant) noticed some activities of the Respondent herein on the land in dispute and that he (Appellant) protested and warned the Respondent about the fact that the said land was subject of a pending litigation but that the protests and warnings fell on deaf ears. That he (Appellant) was caused to be arrested and detained by the Police on many occasions because of his claim to or defence of the Ugbusi land. That at the end of the appeal lodged before the Supreme Court, he (Appellant) found that his rubber trees had been cut down and removed by the Respondent who had built a structure on the land in dispute and presently occupies the same. It is also the case of the Appellant in the statement of claim that the Respondent not only refused to disclose his vendors in respect of the land in dispute but that as the head of O. family he was not consulted and neither was his consent sought and obtained in respect of any sale of the land in dispute to the Respondent. That no property of the O. family can be dealt with in any manner without his (Appellant’s) participation therein as head of family.
The Appellant set out the damages he was claiming in the instant suit.
In his further statement of defence, the Respondent pleaded to the effect that the O. family is a very large family with several gates who are in possession of their different portions of land as had been partitioned to them. The Respondent averred that the Appellant was not at any time the head of O. family as at the time he bought the land in dispute or presently and that the Appellant has no rubber plantation where he (Respondent) built his house. The Respondent having averred his own version of the events that led to the institution of Suit No. UHC/41/77, claimed that the Appellant did not own any parcel of land but that accredited members of the O. family who own the land sold to him. It is the position of the Respondent in his pleading that the Appellant was not and is not the head of O. family at any time and even presently; that Peter Igbini as head of O. family sold the land in dispute to his in-law Warri Salawa, many years ago and that the head of O. family then, was aware when Warri Salawa sold the land in dispute to him and gave his consent to Warri Salawa to carry out the sale. It is also the case of the Respondent that apart from the parcel of land sold to him by Warri Salawa, the said Warri Salawa equally sold a parcel of land to his (Respondent’s) wife and that the two parcels of land were surveyed together. The Respondent ended by averring that the Appellant has no proprietary interest in the land in dispute and that the allegations in the instant case are spurious and that the case be dismissed.
In his reply to the amended statement of defence of the Respondent, the Appellant pleaded that the Urhobo custom regarding headship of a family is that it is the exclusive preserve of the most senior or oldest man in the family. And that he is the head of O. family. That himself and Igbini the father of the “Defendant” are half-brothers. That Peter Igbini can be regarded as his (Appellant’s) son because he is his senior with many years. That he was the one who brought up Peter Igbini.
The Appellant testified in proof of his case and called one other witness. Documentary evidence was also tendered in support of the Appellant’s case. Likewise, the Respondent testified in proof of his case and called three other witnesses. The Respondent equally tendered documentary evidence in support of his case. The Appellant claimed that the evidence he adduced in support of his as well as that of PW1, that he is the head of the O. family and was in possession of the land in dispute at all times material to the case was not challenged under cross-examination. That this notwithstanding, the lower Court held that it was not disputed that as at 1977, one Chief Peter Igbini, DW1 was the family head and that the Appellant was not the family head as at 1977. That the Respondent in his evidence in chief testified that when he bought the land in dispute, DW1, Peter Igbini was not the head of the family. The Respondent, having first identified the pleadings of the parties upon which the instant case was fought at the lower Court, did not dispute that the Appellant testified in his own behalf and called one witness and also tendered Exhibits “A”, “B”, “B1”, “B2”, “B3” and “B4” in the proof of his case; while he (Respondent) equally testified in his own behalf and called three witnesses and also tendered Exhibits “C”, “D”, “E”, “F”, “G”, “H” and “J”.
The lower Court in its judgment appealed against, and which spans pages 65-90 of the records of appeal (hereafter to be simply referred to as “the records”) dismissed the Appellant’s claims in their entirety.
Being aggrieved by the judgment of the lower Court, the Appellant initiated the instant appeal by lodging at the registry of the lower Court on 11/3/2014, a notice of bearing the same date. An amended notice of appeal dated 17/12/2014, was subsequently lodged in the appeal. It was lodged on 17/12/2014 and deemed as properly filed and served by order of this Court made on 14/11/2017. The process contains 5 grounds of appeal. The grounds of appeal with their respective particulars read: –
“GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in law and on the facts when she held as follows: “It is my view that the plaintiff have (sic) not been able to prove that he was the head of the family when the land was sold, he testified that in 1977 he was not the head of the family and also he has not been able to prove that he was in exclusive possession of the land in dispute or that he has property on the land in dispute moreover it was confirmed by both parties that it was their family land” and thereby came to a wrong conclusion.
PARTICULARS OF ERROR
1. At all times relevant to this case which was filed in 2008, the plaintiff was the head of family, he being the oldest man in the family and under Urhobo native law and custom, the oldest man is the head of family.
2. Defendant testified that when he bought the land, the DW1, Peter Igbini was not the head of Omovwiare Family.
3. There is no credible evidence that the land in dispute was sold in 1977.
4. DW2 testified that it took up to one or two years between the alleged purchase of the land and the making of Exhibit F, the survey plan made in respect of the land, which was made in 1990s.
5. The evidence of the Plaintiff and PW1 of the Plaintiff’s possession of the land in dispute and of having properties in it was not challenged under cross-examination.
6. The Plaintiff as head of Omovwiare family or even as an ordinary member has every right to protect the family property or his interests in it.
GROUND TWO
The leaned trial Judge erred in law and on the facts in holding as follows: “It is my view that the defendant has adduced sufficient uncontroverted evidence to support his claim that he actually bought the land in dispute. That there was proof of money paid coupled with entry into possession, which has been continuously maintained and even built his house on the land, (sic) He has shown that he has right to possession.
On the whole the plaintiff have (sic) failed o (sic) establish a case of trespass against the defendant. The plaintiff’s claim therefore fails and is hereby dismissed.”
PARTICULARS OF ERROR
1. The evidence led in support of the case of the defendant was so incoherent and full of contradictions.
2. The defendant was unable to discharge the burden of proving how he divested Omovwiare family of title to the land.
3. There is no pleading and evidence whatsoever that any amount of money was paid and no pleading and evidence of the defendant been (sic) let into possession by the family.
4. The Plaintiff established a case of trespass against the defendant, who was unable to prove that he came on the land lawfully.
5. The evidence led by and on behalf of the defendant was vigorously controverted and rendered useless.
6. There is no pleading and evidence on how the defendant’s alleged vendor acquired his alleged interest from Omovwiare family.
GROUND THREE
The leaned trial Judge erred in law and on the facts in holding thus: –
”From the pleading oral evidence before me and the exhibits attached thereto the following facts are not disputed: –
…
3. That the family appointed Chief Peter Igbini being next senior man in the family as the head of the family to prosecute the case against the present plaintiff and two others.
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….
5. That the plaintiff in this case, did not state that he has any property in the family land.
6. That the family decided to sell some part of the land in other to get the money to prosecute the case.
7. That as at 1977 Chief Peter Igbini was the family head and that the present plaintiff was not the family head as at 1977.
8. That the defendant bought the land in dispute in 1977 from Warri Salawa and Warri Salawa bought the land from Chief Peter Igbini.
9. That the matter in Suit No. UHC/41/77 ended in favour of Chief Peter Igbini. The Court held that the land belongs to the family. That the present plaintiff appealed to the Appeal Court which upheld the judgment of the lower Court and still dissatisfied the present plaintiff appealed to the Supreme Court which upheld the judgment of the Appeal Court and the suit ended in 2002 in favour of the family.
10. That during the pendency of litigation Chief Peter and members of the family sold part of the family land to pursue the case.
PARTICULARS OF ERROR
1. The headship of family under Urhobo native law and custom is never by appointment.
2. Plaintiff never conceded that Peter Igbini was appointed head of family.
3. Plaintiff and his witness, PW1 gave evidence, which was not challenged under cross-examination, that Plaintiff had rubber trees on the land in dispute and the number destroyed by Defendant was stated.
4. There is no pleading and evidence that it was the family that decided that part of the land be sold to prosecute the case.
5. The alleged sale of the land in dispute by Peter Igbini to Warri Salawa and the subsequent sale to the defendant were in issue in this case.
6. The right of Peter Igbini to sell the family land was in issue.
7. The Plaintiff did not agree that Peter Igbini was head of family in 1977 and the evidence led by defendant and his witnesses did not support that.
8. The suit ended in 2007 when the Supreme Court gave judgment and not in 2002.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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- The Plaintiff and those sued with him were the elders of the family and the family land cannot be sold without their concurrence or participation.
10. There is no pleading to support the fact of any decision to sell family land and indeed of any sale of part of the land to prosecute any case.
11. The doctrine of lis pendis is against the sale of the property over which litigation is pending.
GROUND FOUR
The leaned trial Judge erred in law and on the facts in holding thus:
“The evidence of the defendant and how he got the land in dispute was not controverted by the plaintiff. Also the evidence of PW3 that the family gathered and appointed Chief lgbini as the head and that the family got the money they use to prosecute the case from High Court to Supreme Court from sales of parts of the family land was also not challenged by the plaintiff. In fact the plaintiff testified that when Peter brought them to Court he started selling the Omovwiare family land. The defendant also supported his averment with exhibit (sic) E, F and G on issue of transaction which was also confirmed by DW1 and DW2 in their oral evidence in Court.
It is my view that these uncontradicted evidence remains valid and the Court can act upon them. See KOPEK CONSTRUCTION LTD VS. EKISOLA (SUPRA).
It is my view that the unchallenged evidence shows that the land in dispute was sold to Warri Salawa who sold to the defendant.
In the Supreme Court judgment, it was held that the land in dispute belong to the family and not the personal properly of the plaintiff by the doctrine of quic quid plantator solo solo cedit the owner of the land has all that is in the land. The land belongs to the family and the family sold the said land to the defendant.”
PARTICULARS OF ERROR
1. It is not the case of the defendant that the Omovwiare family sold land to him.
2. There is no evidence whatsoever let alone unchallenged evidence of any valid sale of the family land to Warri Salawa, who cannot give what he does not have.
3. The Plaintiff challenged the bogus claim of the defendant on how he got the land in dispute and he (defendant) was not able to prove the title of his alleged vendor.
4. Apart from the plaintiff challenging every bit of material evidence led by defendant and his witnesses, there is no pleading of any gathering to appoint Peter lgbini as head of family.
5. Headship of family in Urhobo and indeed in Nigeria is not by appointment.
6. The defendant and his witnesses did not give date, year and venue of appointment and the persons who made the appointment.
7. The defendant and his witnesses gave conflicting evidence as to who was the head of family at all times material to this case.
8. Exhibits E, F, and G are not proof of any valid sale of the land in dispute to the defendant.
9. Martins Ahweyewu Mukoro was called to the bar 1990 and there is no proof that he was called to the bar in or before 1977 as to enable him prepare any deed of conveyance in 1977.
GROUND FIVE
The judgment is against the weight of evidence.”
The reliefs the Appellant seeks from this Court as contained in the amended notice of appeal are to the effect that: (i) the decision of the lower Court dated 13/12/2013 in this case be set aside; and (ii) the reliefs claimed by the Appellant before the lower Court be granted.
The appeal was entertained on 30/6/2020 with learned counsel for the parties adopting and relying on the briefs of argument filed before the Court. Appellant’s brief of argument settled by Irikefe Ovwighorienta, Esq. and dated 17/12/2014, was filed on the same date but deemed to have been properly filed and served on 14/11/2017. On the other hand, Respondent’s brief of argument settled by O. Eda (Mrs.) and dated 16/1/2018 was filed on the same date but deemed to have been properly filed and served on 23/4/2018.
The issues for the determination of the appeal as formulated in the brief of argument of the Appellant read: –
“1. Whether the learned trial judge was right to have dismissed the Plaintiff’s claim as unproved and in giving judgment in favour of Defendant on the ground that Defendant proved by uncontradicted evidence that he actually bought the land in dispute. (Grounds 1, 2 and 4).
2. Whether having regard to the pleadings and evidence, the trial Court did justice to the entire case in its conclusions and whether it properly evaluated the evidence before it. (Grounds 3 and 5).”
In his brief of argument, the Respondent adopted the issues formulated by the Appellant as being the issues for the determination of the appeal.
The issue for determination in the instant appeal, in my considered view is simply as to whether or not the lower Court was wrong in its decision that the Appellant was not entitled to the reliefs he claimed in the instant action having regard to the principles of law applicable to the reliefs he claimed. This is because there is no counter-claim for any relief from or by the Respondent. The issue I have earlier set out above, will however be determined against the backdrop of the issues formulated for the determination of the appeal by the Appellant as parties are ad idem on the said issues.
Dwelling on his issue 1, the Appellant submitted that the lower Court was wrong in dismissing his claims as unproved and in giving judgment in favour of the Respondent on the ground that the Respondent established by uncontradicted and unchallenged evidence that he bought the land in dispute and has shown that he has a right to possession. Having re-produced the reliefs he seeks in the case, the Appellant submitted to the effect that it is his case on the pleading that at all times material to this case, he was and is still a member and indeed the head of O. family. That he was in possession of the land in dispute to the exclusion of other members of the family. That this was why he (Appellant) and two other elders of the family were sued by younger members of the family in Suit No. UHC/41/77. It is the stance of the Appellant that he and PW1 a principal member of the family, adduced evidence in line the statement of claim. That his (Appellant) evidence and that of his witness that he (Appellant) was in possession of the land in dispute before the filing of Suit No. UHC/41/77 in 1977, and which suit terminated at the Supreme Court in 2007, was not challenged by the Respondent. The Appellant referred to paragraph 12 of Exhibit ‘A’, (i.e. the pleadings filed by DW1 in 1983 in Suit No. UHC/41/77) and stated that it was clearly averred therein, that the Defendants in Suit No. UHC/41/77, (the Appellant herein being one of them) are the senior males and most enlightened in the O. family. That the “Plaintiffs” possession and control of Ugbusi land of which the land in dispute in this case is a part, was the reason for filing Suit No. UHC/41/77 and that Exhibit ‘A’ was tendered to show this.
Reference was made to paragraphs 9-18 of Exhibit ‘A’ on pages 103-106 of the records.
It is also the stance of the Appellant that he pleaded that the Urhobo custom and tradition of family headship is the exclusive right of the most senior or oldest man in the family and reference was made to paragraphs 3-6 of the reply to the statement of defence (sic). That the Respondent did not plead any custom of appointment of family head. That PW1 testified that he is a principal member of O. family and that he (Appellant) is the head of O. family and that Peter Igbini Ologbo, DW1 is a very junior member of the said family and reference was made to page 36 of the records. That PW1 was not cross-examined that there is a custom to the contrary. It is the stance of the Appellant that his case is that it was while Suit No. UCH/41/77 filed against him and two others was going on, that the Respondent entered the land in dispute in his (Appellant’s) possession. That though the Respondent’s case is that he bought the land in dispute from one Warri Salawa, who bought from Peter Igbini, DW1; it is his (Appellant’s) case that the land in dispute is part of Ugbusi land of O. family and that the Respondent trespassed on it while he (Appellant) was in possession of the same. That the Respondent also agreed that O. family originally owned the land, but alleged that he bought it from Warri Salawa. The Appellant submitted that the Respondent having conceded that the original owner of the land in dispute is O. family, the onus is on him (Respondent) to prove how O. family was divested of their interest in the land. It is the stance of the Appellant that the Respondent failed to prove that he acquired a valid title to the land in dispute. That the Respondent failed to show a better title than him (Appellant), a member and head of O. family, who was in possession of the land. The Appellant submitted that for the Respondent to acquire a valid interest or title to family land by purchase, the head and principal members of the family must be part of the sale; otherwise, any purported sale would be invalid. That this is trite law. That the case of the Respondent on whom the onus lies is that he bought the land in dispute from one Warri Salawa and that Warri Salawa bought the land from Peter Igbini, DW1. That it is not the case of the Respondent that Warri Salawa bought the land in dispute from O. family. That consequently, there was no pleading and no evidence on how and when Warri Salawa acquired the interest of O. family in or over the land in dispute. That the Respondent and his witnesses did not tell the lower Court what form the alleged sale of the O. family land by DW1 took; that is whether it was a sale under customary law or a conveyance under English Law? That even though the Respondent did not provide the answer to this question, yet the lower Court held that the Respondent adduced sufficient uncontroverted evidence to support his claim that he actually bought the land in dispute. That the Respondent claimed to have bought the land in dispute from Warri Salawa vide Exhibit ‘E’, which is alleged to have been entered into on 10/01/77. That the lawyer who prepared Exhibit ‘E’, M. Ahweyevu Mukoro was called to the Bar in the year 1990, and he indeed signed and stamped Exhibit “E” on 15/10/92. That this shows that Exhibit “E” was executed in 1992, while litigation was on over the land, part of which is in dispute. That if Warri Salawa did not acquire any valid interest, then he cannot pass any to the Respondent. This is on the principle of nemo dat quad non habet (you cannot give what you do not have). The Appellant submitted that it is clear from the pleadings and evidence led in this case that DW1 was not head of the family of O. family, at any time. That even if he was, which is not conceded, he cannot sell the family land as his own. That such a purported sale as claimed by the Respondent, is void. The Appellant submitted that the Respondent having failed to prove any valid sale of the land in dispute by the O. family to Warri Salawa, Respondent’s alleged vendor, there can be no valid sale to the Respondent. That the lower Court was therefore wrong to have held that the Respondent proved by unchallenged evidence that he actually bought the land in dispute. It is the stance of the Appellant that he pleaded in paragraph 10 of the statement of claim, that he protested and warned the Respondent that the disputed land was a subject of a pending litigation, which protests and warnings fell on deaf ears and that he (Appellant) was even caused to be arrested and detained by the police and that he gave evidence in line with the pleadings in this respect. The Appellant submitted that the lower Court clearly overlooked the evidence led by him and PW1 in this regard and misplaced the onus of proof. That this is a proper case for this Court to intervene. That he (Appellant) proved his entitlement to the reliefs sought on the preponderance of evidence and balance of probability and he is entitled to judgment in his favour. That the lower Court was wrong to have dismissed his claim in its entirety.
It is also the stance of the Appellant that it is an undisputed fact that he as a member of O. family was in possession of the land in dispute and was claiming to own the land exclusively and reference was made to paragraph 6(a) of the amended statement of defence. That the Respondent came on the land without any valid sale to him. That he (Appellant) and PW1 gave evidence that the Respondent destroyed his (Appellant’s) rubber trees on the land and the evidence in this regard was not challenged under cross-examination regarding the number and value of the rubber trees destroyed by the Respondent. The Appellant submitted that as the Respondent failed to challenge the evidence adduced by him and PW1 on the number and value of the rubber trees destroyed, the Respondent cannot turn around to contend in his defence that there were no rubber trees on the land. That in any event, in Exhibit ‘A’, paragraph 5 on page 102 of the records, DW1 confirmed the presence of rubber plantations of members of O. family, which include the Appellant in this case. This Court was therefore urged to award in full the special damages claimed in this case. This is because the slightest entry into land in the possession of another without the permission of that other, constitutes trespass. That trespass is actionable per se; and even if he (Appellant) did not prove his entitlement to special damages, he is still be entitled to damages for trespass. That the grant of relief No. 2, necessarily flows from the failure of the Respondent to discharge the burden of proof on him. It is the stance of the Appellant that even if the sale of the land in dispute to the Respondent was under customary law, then the necessary prerequisites, including witnesses, purchase price and putting into possession must be pleaded and evidence led on them. And that if it was a sale under English Law, then a deed of conveyance, duly executed and registered, between the O. family and Warri Salawa ought to have been pleaded and tendered. That in the instant case, there is no such pleading and no such evidence. That it is therefore easy to conclude that the assumed sale of O. family land to the Respondent is of no effect whatsoever. That Relief No. 2, ought to have been granted by the lower Court since it was proved that the Respondent trespassed on the land in dispute. That relief No. 3 too, ought to have been granted to protect the possession of the land by him (Appellant) and other members of O. family and prevent further trespass. It is also the case of the Appellant that assuming but without conceding, that he is not the head of O. family, he is nevertheless entitled in law to seek the reliefs sought in this case to protect the family land or his interest in it. That a person has the right to protect his family’s interest in a property or title and can sue for himself and or on behalf of his family. It is the stance of the Appellant that the lower Court was wrong in dismissing his claims and in holding that Respondent proved his actual purchase of the land in dispute by uncontroverted evidence. The Appellant urged this Court to resolve this issue in his favour.
Dwelling on Appellant’s issue 1, it is the stance of the Respondent that the decision of the lower Court that he proved by uncontradicted evidence that he actually bought the land in dispute and thereby has a right to possession, is correct. This is because, the evidence and pleadings before the lower Court justified the findings of the said Court. In this regard, the Respondent referred to paragraphs 8, 9, 10, 11, 12, 13 and 14 of the further amended statement of defence as contained on pages 10 and 11 of the records and the evidence adduced in support of the same. It is the stance of the Respondent that the evidence he adduced in support of his case was clearly not at variance with pleaded facts. That the evidence showed how he bought the land in dispute from Warri Salawa an in-law to DW1 and that Warri Salawa bought the said land from DW1 the head of the O. family. That Exhibits “E”, “F” and “G” also went to show the transaction he (Respondent) had in respect of the land in dispute with Warri Salawa (now late) and how Warri Salawa took him (Respondent) to DW1 who also confirmed the transaction and signed as a witness in Exhibit “E” (the agreement between Respondent and Warri Salawa as regards the land in dispute). It is also the stance of the Respondent that the evidence of how he got the land from Warri Salawa through Exhibit “E”, was also corroborated by DW1, DW2 and DW3. The Respondent submitted that the evidence he adduced in the case regarding how he got the land in dispute was not in any way discredited or controverted by the Appellant. The Respondent stated the position of the law to be that where evidence is given by a party and is not contradicted by the other party who had opportunity to do so, such evidence remains valid and should be acted upon by the Court. It is the position of the Respondent that the Appellant was not able to show at the trial that there was an already pending Suit No. UHC/41/1997 between him and O. family before he (Respondent) bought the land in dispute. The Respondent captured the fact that the Appellant gave evidence on 13/10/2009 and 23/2/2010 having regard to pages 28 to 33 of the records. That the evidence was to the effect that while the litigation was ragging on, he (Appellant) noticed him (Respondent) on the land in dispute, and informed him (Respondent) about the pendency of the case in Court but to no avail. The Respondent stated to the effect that the pertinent question to ask is, if the Appellant actually saw him (Respondent) as alleged, why did the Appellant not join him as a party to the suit in the knowledge that his (Appellant’s) property if any, will be destroyed by him (Respondent)? It is the stance of the Respondent that the only presumption the Court will draw is that nothing as testified to by the Appellant happened. It is also the stance of the Respondent that apart from evidence of DW1 that the land in dispute was sold before Suit No. UHC/41/1977 (Exhibit “A”) was filed, the dates in Exhibits “E” and “G” clearly show that both transactions were made on the 10/01/1977 respectively; while a close look at the last paragraph before the relief(s) in Exhibit “A” as shown on page 106, line 18 to 27 of the records clearly shows that as at 23/5/1977, Suit No. UHC/41/1977 (Exhibit “A”) had not been filed as the Plaintiffs in that suit (i.e. Suit No. UHC/41/1977 i.e. Exhibit “A”) were still demanding for changes from the Defendants therein. The Respondent submitted that it was clear from Exhibit “A” tendered by the Appellant at the trial that as at 23/5/1977, Suit No. UCH/41/1977 had not been filed in Court and that this confirmed the evidence of DW1 that after he was appointed as head, the O. family sold some of their land including the one in dispute, to enable them have money to file Suit No. UHC/41/1977 against the Appellant and two others now late. The Respondent further submitted that where there is oral evidence as well as documentary evidence, the documentary evidence makes the oral evidence more credible. The Respondent further submitted that apart from the fact that the evidence he adduced before the lower Court by himself and through his witnesses was not controverted or challenged by the Appellant, Exhibits “A”, “C”, “D” “E”, “F”, “G”, “H” and “J” having been tendered without objection, became relevant Exhibits which the lower Court properly considered alongside the oral evidence before it to come to its conclusion as the said Court cannot accept only the oral evidence and throw away documentary evidence which is primary evidence under Section 86(1) of the Evidence Act 2011. That the lower Court having admitted Exhibits “A”, “C”, “D” “E”, “F”, “G”, “H” and “J” without any objection or contradictory documentary evidence from the Appellant, the said Court had a duty to rely on the said Exhibits as the best evidence to resolve the issues which permeated the respective cases of the parties to wit: “whether Respondent actually bought the land; whether the Respondent bought during the pending of a suit; whether the plaintiff was the head of Omovwiare family as at when Respondent bought the land; and whether plaintiff and two others were at any time barred from the Omovwiare family and DW1 appointed to act as the family head”. It is the stance of the Respondent that the lower Court, in carrying out its duty, actually considered both oral and documentary evidence before it and thus came to the right conclusion in dismissing the Plaintiff’s case and this Court was urged not to disturb the findings of the lower Court.
Dwelling on the issues as to “whether Respondent actually bought the land during the pending of a suit, whether the Plaintiff was the head of Omovwiare family as at when Respondent bought the land and whether Plaintiff and two others were at any time barred from the Omovwiare family and DW1 appointed to act as the family head”, the Respondent stated that these issues were material ones which the lower Court was under a duty to resolve or pronounce upon by carefully examining both the oral evidence and exhibits placed before it. That this is more so as Exhibits “A”, “C”, “D” “E”, “F”, “G”, “H” and “J”, were tendered without objection by the Appellant at the trial. It is the position of the Respondent that the lower Court carefully examined all these exhibits together with the unchallenged evidence adduced by him in support of his case, in coming to the findings and the conclusion reached by it. This Court was urged not to disturb the same.
The Respondent submitted that the stance of the Appellant that he (Respondent) did not plead any custom of appointment of family head is a misconception having regard to the issues joined by parties before the lower Court. That his defence was backed up with unchallenged evidence at the trial and it is to the effect of the barring of the Appellant and two others from the Omovwiare family for their gross misconduct and appointing of DW1 as head. Reference was made to paragraphs 6(a) and 6(b) of the further amended statement of defence as contained on pages 10 and 11 of the records. That the facts that the Appellant and two others were claiming the O. family land as their personal land and that this led to the filing of Suit No. UHC/41/1977 against them, was copiously pleaded. This is more so as the facts that before the filing Suit No. UHC/41/1977 against the Appellant and two others, DW1 (Peter Ologbo Igbini) was accepted as head of the Omovwiare family by members of the said family was also copiously pleaded and was one of the issues joined and evidence led in support, at the trial. It is the stance of the Respondent that unchallenged evidence was adduced at trial in support of this aspect of his case and regarding how the Appellant and two others were barred from the O. family and DW1 (Peter Ologbo Igbini) accepted as the head of O. family, as at when he (Respondent) bought the land. The Respondent submitted that the lower Court in carrying out its duty, actually considered both oral and documentary evidence in relation to this aspect of the case and this Court was urged not to disturb the conclusion of the lower Court on this aspect of the case it entertained. That this is more so as the Appellant was not able to establish the fact that he was the head of O. family as at when he (Respondent) bought the land in dispute and this renders the finding of the lower Court to be right. That the Appellant was unable to show by the evidence he placed before the lower Court that he was the head of O. family as at when he (Respondent) bought the land in dispute to warrant the consent of the Appellant being sought before the sale of the O. family land. That in fact, the Appellant during cross-examination on the 23/02/2010, gave evidence that as at 1977, he was not the head of O. family and reference was made to page 32, lines 12 and 13, of the records. The Respondent stated to the effect that what should agitate the mind of this Court after looking closely at Exhibits “E” and “G” (which clearly show that they were made on the 10/01/1977 and 15/01/1977 respectively) is how the Appellant who stated that he was not the head of the O. family as at 1977, could turn round to say that his consent was not sought as the head of the family in a transaction entered into in the same 1977? It is the stance of the Respondent that the Appellant has no right to complain and this Court was urged to so hold.
Dwelling on the argument of the Appellant that he (Respondent) did not prove a valid sale of the land in dispute by the O. family to Warri Salawa, the Respondent submitted that the position of the Appellant in this regard is misconceived in the face of the further amended statement of defence and the unchallenged evidence given in support of it. The Respondent stated he placed unchallenged evidence before the lower Court in line with his case that Warri Salawa bought the land from O. family through DW1 as head of the family and it was Warri Salawa who sold to him (Respondent). That the circumstances behind the sale of the land to Warri Salawa down to Respondent were all presented before the lower Court without any challenge from the Appellant. The Respondent submitted that DW1 having been appointed to act as head of family, and having so acted and accepted by the O. family, the Appellant who was barred from the O. family and who has not been able to show that he was called back at any time, cannot turn round and come to Court to ask the Court to declare acts done by the O. family under the administration of the DW1, null and void and this Court was urged so to hold.
It is also the stance of the Respondent that the submission of the Appellant that he (Respondent) did not tell the lower Court what form the alleged sale of the O. family land by DW1 took, and that as such the said Court could not have held that he (Respondent) bought the land, is misconceived and should be discountenanced. This is because there is no law which stipulates that a particular form of sale must be proved before the Court can presume sale of a land. That the law is that, where there is evidence of sale but no formal deed of conveyance, the purchaser acquires an equitable interest which can only be overridden by a legal one. It is the stance of the Respondent that in any case, the facts of the instant case do not even call for any proof of any form of sale before the lower Court can hold that the land was actually sold to Warri Salawa who in turn, sold to him (Respondent). This is because the O. family (represented by DW1) who sold the land to Warri Salawa never denied the sale; but came to testify before the lower Court that they actually sold through DW1 whom the O. family appointed to act as their head.
Responding to the argument of the Appellant that under Urhobo custom and tradition, family headship is the exclusive right of the most senior or oldest man in the family and that the Appellant being the most senior is the head of O. family, the Respondent stated that the argument is misconceived having regard to the evidence of the Appellant during cross-examination on the 23/02/2010 as contained on page 32, line 12 and 13 of the records. The Respondent submitted that the issue of headship of a family is matter of evidence and in most cases, headship of a family is usually recognized in three major ways to wit: by operation of law, election by members of the family and direct appointment by the founder of the family. The Respondent submitted that the Appellant on whom laid the burden of proof failed woefully to prove how he became head of family. The Respondent urged this Court to resolve issue 1 in his favour.
Dwelling on his issue 2, it is the stance of the Appellant that the lower Court either completely failed to evaluate or failed to properly evaluate the evidence led in the instant case. Consequently, that the lower Court failed to do justice to the entire case. That the result of the failure to evaluate or properly evaluate the evidence led in the instant case is manifest in the findings of the lower Court that the following facts among others are not disputed: –
(a) The Omovwaire family appointed Chief Peter Igbini, DW1, being next senior man in the family as the head of the family.
(b) As at that 1977, Chief Peter Igbini was the family head.
(c) The Defendant bought the land in dispute in 1977 from Warri Salawa and Warri Salawa bought the land from Chief Peter Igbini.
(d) During the pendency of the litigation, Chief Peter and members of the family sold part of the family land to pursue the case.
(e) The family decided to sell some part of the land in order to get the money to prosecute the case.
(f) The Plaintiff in this case did not state that he has any property in the family land.
It is the position of the Appellant that the facts in (a), (b), (d) and (e) above were not even pleaded by the Respondent. That evidence on those facts therefore goes to no issue. That it is trite law that evidence led on facts not pleaded goes to no issue. That the Respondent did not also plead the year he allegedly bought the land in dispute. That he (Appellant) never agreed or admitted that the Respondent bought the land in dispute in 1977. That his case is that while the litigation was on, he found the Respondent on the land in dispute and warned him but he did not listen. That even though Exhibit “E” is dated 10/1/1997, it is evident by the signature and stamp of the lawyer at the foot that it was prepared on 15/10/92. That in Exhibit “E”, the Local Government Area and State where the land is situate were cleverly avoided to aid the back-dating of the document.
Furthermore, that as at 29/8/1992, when Exhibit “F” was made, the land was still bare and the abutting roads were just proposed. That even in his oral testimony before the Court, the Respondent did not tell the Court the year he bought the land. He only told the Court that he bought the land in the 70’s and that he cannot remember the date. Also, DW2, the wife of the Respondent Defendant could not tell the Court the year the land was bought. Flowing from these, the Appellant submitted to the effect that the lower Court was wrong in holding that the fact that the Respondent bought the land in dispute in 1977 from Warri Salawa and Warri Salawa bought the land from Chief Peter Igbini, was not in dispute. It is the stance of the Appellant that apart from the absence of pleading on part of the Respondent, he (Appellant) could not have conceded that Chief Peter Igbini and members of the family sold part of the land to prosecute the case. Reference was made to the testimony of DW1 and DW3. The Appellant not only submitted that the evidence of these two witnesses confirmed that the purported sale of the land in dispute by DW1 to Warri Salawa took place during the pendency of Suit No. UHC/41/77, but that the lower Court was clearly in error when it held that it was not disputed that Chief Peter Igbini was appointed as head of family and that as at 1977, Chief Peter Igbini was the family head. That on the contrary, what was not disputed is that he (Appellant) was the oldest man in O. family and indeed the oldest man in Ighwrekpokpor community. That whether he (Appellant) is the head of O. family or whether DW1 is, was keenly disputed in this case. That while he (Appellant) contended that he is the head of family and pleaded the Urhobo custom on headship of family, the Respondent contended that DW1 is the head of family but the Respondent did not plead that DW1’s headship of family was by appointment under any particular custom. Therefore, that any piece of evidence on the purported appointment of DW1 as head of O. family goes to no issue. It is also the stance of the Appellant that besides the failure to plead the appointment of DW1 as head of O. family, the evidence led on the appointment of DW1 as head of family, is in disarray. This is because the Respondent in his evidence-in-chief on 04/08/2010 was emphatic that Chief Peter Igbini, DW1 was not the head of the family as at when he purportedly purchased the land in dispute; while DW1 in his testimony, on 23/10/2012, claimed that he was appointed, being the next most senior, to file a suit against him (Appellant) and two others. Having stated that the Respondent pleaded in paragraph 6(b) of his statement of defence that before the filing of UHC/41177, DW1, was accepted by the other members of O. family to act as the O. family head and has since then, been acting as the head of O. family for a very long time, The Appellant submitted that this pleading is at variance with the evidence of the Respondent that DW1 was not the head of the family when he purportedly bought the land in dispute. Having also referred to other parts of the records in respect of improper evaluation of evidence by the lower Court and repeating some of the submissions he had earlier made under his issue 1, the Appellant ended up by submitting that if the lower Court had properly evaluated the admissible evidence, it would have had no difficulty in granting his claims and to have held that the Respondent on whom the onus lies, did not prove how O. family was divested of its title by the Respondent’s alleged vendor, Warri Salawa. It is also the position of the Appellant that the lower Court did not appreciate or understand his claims. That the lower Court therefore failed to do justice to the case by failing to properly evaluate the evidence and holding unpleaded facts and keenly disputed facts to be undisputed. That therefore there was a miscarriage of justice and this Court was urged to resolve this issue in favour of the Appellant.
Dwelling on Appellant’s issue 2, the Respondent having adopted the argument in respect of issue 1, further went on to argue that the facts from which the lower Court came to its decision were clearly pleaded and justified by the unchallenged evidence led in support of his case. It is the stance of the Respondent that he clearly pleaded and led evidence as to how Plaintiff and two other members of the O. family during the trial, claimed to own the O. family land alone. That due to the acts of these persons, DW1 was accepted by other members of the O. family to be their head and to sue the Appellant and the two others in question. Having stated the meaning of the word “accept” as defined by the Oxford Advanced Leaner’s Dictionary, and that parties are not to plead evidence but facts in respect of which evidence has to be led, the Respondent submitted that he adduced unchallenged evidence as to how DW1 was accepted as the head of family by the use of the words “APPOINTED”. It is the stance of the Respondent that the mere fact that the word appointed was not use in his pleading will not derogate from the fact that DW1 was accepted by other members of the O. family to be their head and actually led them. The Respondent submitted that the argument of the Appellant that he (Respondent) could not tell the Court when he bought the land is misconceived and should be discountenanced. That Exhibit “E” has a date on it and it speaks for itself. The Respondent also submitted that all documents are presumed to have been written on the dates shown on them. That the fact that he (Respondent) and DW2 said they could not remember the year in which the land was bought, will not add or vary the date stated on the face of Exhibit “E”. That the argument of the Appellant pointing to the date, stamp and signature of counsel who prepared Exhibit “E” to show when Exhibit “E” was made, is misconceived. This is because, what matters is when the parties to the agreement executed it and not when a lawyer who is not a party to the agreement signed his column. The Respondent submitted that Exhibit “E” itself shows when it was made and reference was made to the last paragraph therein. The Respondent submitted that the argument of the Appellant that evidence of the Respondent saying that DW1 was not the head of O. family as at when he bought the land, is of no moment. This is because, he (Respondent) clearly stated that he is a stranger and not from the O. family or Iwhrekpokpor community. It is the stance of the Respondent that the evidence of DW1 at page 44 lines 1 to 12 of the records was corroborated by that of DW3 who is a principal member of the O. family. That the evidence clearly showed what transpired in the O. family that led to DW1 being accepted as the head of the said family. The Respondent submitted that the argument of the Appellant that he (Respondent) did not specifically plead a custom which permits appointment of DW1 as head of the O. family and that any evidence led in that regard goes to no issue, is misconceived in law. It is the stance of the Respondent his pleading in respect of which unchallenged evidence was led before the lower Court was to the effect that Appellant and two other elders of the O. family erred (were claiming the family land as their personal land) and that this made the family members to bar them and accept DW1 as their head. That members of a family need no custom or proof of any custom before they can discipline their erring members. That it is a well-known fact that erring members of a family are usually disciplined in any form accepted by the members of the family which sometimes, includes payment of fine, barring an erring member from attending meetings of the family, barring them from continuing to hold any position in the family and so on. That this was his (Respondent’s) case before the lower Court and which was not challenged. That evidence was led before the lower Court on how DW1 continued to act as head of the O. family after being accepted as head and documents were tendered to show the various acts he had performed as head without objection from the Appellant. This is despite the fact that the sole purpose of tendering them were made known to the Appellant before trial. Reference was made to page 44, lines 16 to 19, lines 24 to 26 and page 59, lines 12 to 15 and lines 19 to 22 of the records. That Exhibits “C”, “D”, “J” and “H” were tendered to show various acts of DW1 acting as head of O. family without any objection from the Appellant. This Court was invited to take a close look at Exhibit “C”, “D”, “J”, and “H” tendered by DW1 to show that he has been acting as head of O. family and that members accepted him (DW1) to act as their head as all the exhibits were signed by DW1 alongside with other members of the O. family from different gates. It is also the stance of the Respondent that it is clear from the facts and pleadings before the lower Court that the Appellant and the two others who were sued by DW1 were fully aware of the fact that DW1 was appointed by other members to act as the head, hence DW1 sued as representing the O. family without any objection from the Appellant. The Respondent submitted that the Appellant cannot turn round after 31 years (i.e. from 1977 when the Appellant found the Respondent on the land in dispute to 2008 when the suit was filed) of being aware that he (Respondent) was in possession to say that he was the head whose consent ought to have been sought when he (Respondent) bought the land. This is because the Appellant was not the most senior person in O. family as at when Suit No. UHC/41/1977. It is the submission of the Respondent that his case or defence was not that DW1 was the oldest man in O. family but that the Appellant and two other elders erred and DW1 was accepted to act as their head. That the argument of the Appellant that DW3 testified at page 56 line 2 of the records that Emawhore was the oldest man of O. family in 2002, is at variance with Respondent’s pleading, is misconceived. That in fact DW1 clearly stated that Appellant and the two other elders are senior to him and that Appellant is the youngest among the elders that were senior to him – DW1. It is the stance of the Respondent that it was therefore clear that as at 1977 when Suit No. UHC/41/1977 was filed, down to when the Supreme Court gave judgment (i.e. Exhibits “B”, “B1”, “B2”, “B3” and “B4”) in favour of O. family represented by DW1, the Appellant was not oldest man in O. family. It is the stance of the Respondent that the question that is left unanswered by the Appellant, is when he became the oldest person in O. family and thus the head in accordance with Urhobo custom to the extent that his (Appellant’s) consent was required as at when Exhibit “E” was made? This Court was urged to note that the Appellant never provided an answer to this issue at the trial. The Respondent submitted that the Appellant’s case must therefore fail.
It is also the stance of the Respondent that for the claim of the Appellant to succeed, he must prove that when the transaction in Exhibit “E” was made, he was the oldest man and the head of O. family and not thereafter. It is also the stance of the Respondent that apart from proving that he was the oldest man as at the point in time in question, the Appellant must also dislodge his (Respondent’s) defence as to the head of O. family. These, the Respondent submitted that the Appellant woefully failed to prove. That the Appellant’s case must fail and this Court was urged to so hold. The Respondent also submitted that assuming but without conceding that he never pleaded how DW1 was accepted to act as head of O. family, the Appellant having pleaded that he was the head of the said family at all material time, he (Respondent) was permitted by the Bendel State of Nigeria High Court (Civil Procedure) Rules 1998, which was applicable in Delta State as at the time when the parties fought their case before the trial lower Court, to lead evidence to disprove any facts pleaded by the Appellant in his statement of claim even though not pleaded by him (Respondent) in his statement of defence. Reference was made to Order 25 Rule 17 of the said Rules.
Now to the resolution of the issue for the determination of the appeal as earlier stated in this judgment to wit: “whether or not the lower Court was wrong in its decision that the Appellant was not entitled to the reliefs he claimed in the instant action having regard to the principles of law applicable to the reliefs he claimed.”
The issues formulated by the Respondent for the determination of the instant case as captured in the judgment on appeal are: –
“1. Whether or not defendant trespassed into the land in dispute.
2. Whether or not defendant actually bought the land in dispute and if yes, whether defendant bought same during the pendency of a suit.
3. Whether or not plaintiff has been able to prove by preponderance of evidence that he was the head of Omovwiare family when defendant bought the land in dispute.
4. Whether DW1 was at any time appointed as the head of Omovwiare family and has acted as such.
5. Whether or not from the totality of evidence and exhibits placed before this Honourable Court the plaintiff is entitled to the relief(s) claim(s).
The Appellant is not recorded as having formulated any issue(s) different from those formulated by the Respondent for the determination of the case, in the judgment appealed against.
Having identified the issues for the determination of the case before it, and having considered the submissions of parties thereon, the lower Court proceeded from pages 85-90 of the records, thus: –
“A trespasser is a person who makes an infraction on the right of possession of another person, that is the plaintiff over the land no matter how minute.
The Supreme Court made this point in the case of CHIEF ADEOYE ADIO FAGUNWA & ANR VS. CHIEF NATHANIEL ADIBI & ORS (2004) ALL FWLR (PT. 226) PG. 340 AT 360 when the Court held:
“Trespass to land in law constitutes the slightest disturbance to the possession of land by a person who cannot show better right of possession”.
Trespass to land is an unjustified interference or intrusion with exclusive possession of land. If the defendant placed a part of his foot on the plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it. See xxx
To sustain action for trespass the plaintiff needs to show that he was in possession. Exclusive possession is a main factor in an action for trespass. See xxx
If the plaintiff is not in actual or exclusive possession, he should show that the entry of the defendant is unlawful, unwarranted or unjustifiable. The defendant on the other hand can resist the plaintiff’s claim by showing that he is in actual possession or that he has right to possession.
Against this background in an action such as this where the claim is for trespass, two separate and independent issues must be considered. They are: –
a) Whether the plaintiff established his actual/possession of the land and
b) Whether the defendant trespassed on it, see the cases of xxx
In order to consider these issues properly, I deem it necessary to reproduce some paragraphs of the claimant’s statement of claim.
The plaintiff pleaded in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, of his statement of claim and I reproduce thus:
PARAGRAPH 4 – Plaintiff avers that sometime in 1977, Peter Igbin Ologbo and Ititi Ononyivwita (deceased) for themselves and on behalf of Omovwiare family of lghwrekpokpor, Ughelli sued the plaintiff and two others, Emavworhe Etajata (deceased) and Jacob Omonuwa Orhorhaworin (deceased) in Suit No. UHC/41/77.
PARAGRAPH 5 – Before and after Suit No. UHC/41/77 was filed, plaintiff was in exclusive possession of a large portion of Ugbusi land, including the piece of land now in dispute in this suit. Indeed, it was the possession of the larger portion of Ugbusi land by the plaintiff to the exclusion of other members Omovwiare family that made the said suit No. UHC/41/77 to be instituted against the plaintiff and two other mentioned in paragraph 4 above. Plaintiff had large expanse of rubber plantation on the Ugbusi land.
PARAGRAPH 6 – While the plaintiffs in suit No. UHC/41/77 claimed that the Ugbusi land belonged to Omovwiare family, the defendants therein claimed that the Ugbusi land was given to them by Imohwe family after they deforested and planted rubber trees thereon. In other words while the plaintiffs in Suit No. UHC/41/77 pleaded family ownership, the defendants, including plaintiff herein pleaded individual/personal ownership of the Ugbusi land.
PARAGRAPH 7 – Plaintiff planted rubber trees on the Ugbusi land and he deforested and cleared it including the portion which is now known as NO. 4, Otuagoma Street, off Ighwrekpokpor Road, Ighwrekpokpor, Ughelli, which measures approximately 100ft by 100ft.
PARAGRAPH 8- At the end of trial in Suit No. UHC/41/77, it was decided by the High Court Ughelli that Ugbusi land is the property of Omovwiare family of Ighwrekpokpor. The defendant including plaintiff herein appealed to the Court of Appeal in appeal No. CA/B/74/85. The Court of Appeal also delivered judgment in which the appeal was dismissed and the judgment of the High Court that the Ugbusi land is the property of Omovwiare family was confirmed.
PARAGRAPH 9- Still dissatisfied with the judgment of the Court of appeal, the plaintiff herein further appealed to the Supreme Court in SC/138/2002. Only the plaintiff herein and Peter Igbini Ologbo, the first plaintiff in UHC/41/77 were still living when SCD/138/2002 was filed, prosecuted and judgment finally given on 15/6/2007. The appeal in SC/138/2002 was also dismissed and the judgment of the Court of appeal was confirmed.
PARAGRAPH 10- While the litigation was on, plaintiff noticed some activities of the defendant on the land. Plaintiff protested and warned defendant about the fact that the land in dispute was a subject of a pending litigation. Plaintiffs (sic) protests and warnings fell on deaf ears. Plaintiff was caused to be arrested and detained by the police on many occasions because of his claim to or defence of the Ugbusi land.
PARAGRAPH 11- At the end of the appeal in SC/138/2002, plaintiff found to his chagrin that all his rubber trees were no more, they have been cut down and removed by the defendant who built and is now occupies (sic) No. 4, Otuagoma Street, off lghwrekpokpor Road, Ighwrekpokpor, Ughelli, the land now in dispute.
PARAGRAPH 12- When plaintiff confronted the defendant he was quick at claiming that he bought the land but would not disclose his vendors. Apart from the Ugbusi land being subject of litigation since 1977 which litigation only terminated on 15/6/2007 with the Supreme Court, Nigeria’s apex Court delivery judgment, plaintiff, herein as the head of Omovwiare family was not consulted and neither was his consent sought and obtained for any sale or gift of No. 4, Otuagoma Street, Off Ighwrekpokpor Road, Ighwrekpkpor, Ughelli to the defendant herein. No property of Omovwiare family can be dealt with in any form without the consent and participation of the plaintiff as the family head.
PARAGRAPH 13- Plaintiff avers that Ugbusi land which is also called Okporurhie or Okpnrurhie was founded by plaintiff’s illustrious ancestor, Omohwe (which is sometimes spelt Imowhe or Imokwe) from time immemorial. Imohwe begat Omovwiare, (f) who begat Oruru (f) who begat Etajata (m), who begat Edirin (f) who begat Pa. Johnson Ologbo- the plaintiff herein.
The plaintiff also in his oral evidence in Court testified as stated at page 1 of the judgment that sometime in 1977, Peter Igbini Ologbo and Ititi Onoyivwita summoned him and two others to Court in Suit No. UHC/41/77, Peter Igbini Ologbo and Ititi Onoyivwita claimed that the land belongs to Omovwiare family that in their defence, they claimed that it was their personal property. Judgment was delivered and he was not satisfied with the judgment and he appealed against the judgment. The Court of Appeal also delivered judgment and he was not satisfied and so he went to Supreme Court they also delivered judgment in suit No. SC/138/2002. Under cross examination, plaintiff said that he could not remember when the defendant destroyed his rubber plantation and that Peter lgbini also has right over the land.
He also testified that it was the decision of Court that Ugbusi land is not for him alone, but family land. He further testified that as at 1977 he was not the head of the Omovwiare family and as at 2002 he was the family head. That when Peter brought them to Court, he started selling the Omovwiare family land.
Also, the only witness of the plaintiff testified as stated in page 5 of this judgment that suit No. UHC/41/77 got to the Supreme Court and Court decided that it was the property of the Omovwiare family and that the judgment did not say that the plaintiff has any personal property on the land. The defendant averred in paragraphs 8, 9 & 10 and I reproduce thus:-
PARAGRAPH 8- In further answer to paragraph 10 of the statement of claim, the defendant avers that plaintiff do not own any land there but that accredited members of Omavwiare family who owns the land sold to him.
PARAGRAPH 9- In reply to paragraph 12 of the statement of claim, the defendant avers that he bought his land from Omoawiare family and that the self-styled head of family i.e. plaintiff was not and is not head of Omavwiare family at any time even now.
PARAGRAPH 10- The defendant further states that the plaintiff have no proprietary interest over his piece or parcel of land where he has his building at No. 4 Otuagorna Street, Iwhrekpokpor Ughelli.
The defendant also testified and called three witnesses. He testified as stated in page 5 of this judgment that he bought the land in dispute from Warri Salawa who took him to Peter Igbini who signed the document. He built story building on it and he also planted crops on it. That Salawa bought the said land from Peter Igbini. He also has documents of the land.
Also, Peter Igbini testified that the land in dispute is Omovwiare family land, that he sold to Warri Salawa who in turn sold to the defendant and that there is a sales agreement between Warri Salawa and the defendant that he was a witness to the transaction that he signed as the family head. That he knew Emavwhorhe Etajata and Jacob Omonuwa that they are dead. He filed a suit against them and the present plaintiff some time ago the reason why he sued them was that they were claiming the land of the family to be their land. Before he filed the suit against them, they were claiming the land to be their own. They tried to settle the matter but they refused when they had a meeting and the family members appointed him being next most senior to file a suit against the three of them on behalf of the entire family. As the head they decided to sell some of the land to have money to pursue the matter in Court. They sold to Warri Salawa then Warri Salawa sold to the defendant and he signed as a witness in the deed of conveyance dated 10/1/77. He also testified that he sold various land to enable the family prosecute this case.
He testified that the defendant built a story building on the land and have been living there for a long time and that the plaintiff knew about this very well, the plaintiff has never travelled out of town. As at the time he sold the land to Salawa the plaintiff was not the head of the family.
DW3 Imoto Jonathan Esharevire also testified as stated in page 10 of this judgment that the plaintiff and two others claimed that all the land of the Omovwiare family belongs to them alone, when they claimed the land, all the children of Omovwiare became angry, they gathered themselves together and appointed DW1 i.e. Chief Peter Igbini as their head of family. Peter Igbini told them that part of the land will be sold to pursue the case in Court. That as a member of the family he is signatory to part of some of the document’s (sic) of sale he is signatory to the document. He is No. 2 signatory in the document and Peter Igbini signed the same document as the head of the family.
From the pleading, oral evidence before me and the exhibits attached thereto the following facts are not disputed.
(1) That the land in dispute belongs to the Omovwaire family.
(2) That sometime in 1977, Peter Igbini Ologbo and Ititi Omonyiwita (deceased). (sic) For themselves and on beheld (sic) of the Omovwiare family of Ighwrekpokpor Ughelli sued the plaintiff and the others to Court in suit No. UHC/41/77.
(3) That the family appointed chief Peter Igbini being next senior man in the family as the head of the family to prosecute the case against the present plaintiff and two others.
(4) That the present plaintiff and two others were claiming the family land as their personal property.
(5) That the plaintiff in this case in that case did not state that he has any property in the family land.
(6) That the family decided to sell some part of the land in order to get the money to prosecute the case.
(7) That as at that 1977 Chief Peter Igbini was the family head and that the present plaintiff was not the family head as at 1977.
(8) That the defendant bought the land in dispute in 1977 from Warri Salawa and Warri Salawa bought the land from Chief Peter Igbini.
(9) That the matter in suit No. UHC/41/77 ended in favour of Chief Peter Igbini. The Court held that the land belongs to the family. That the present plaintiff appealed to appeal Court which upheld the judgment of the lower Court and still dissatisfied the present plaintiff appealed to Supreme Court which upheld the judgment of Appeal Court and the suit ended in 2002 in favour of the family.
(10) That during the pendency of the litigation Chief Peter and members of the family sold part of the family land to pursue the case.
The issues for the determination in this suit in my view are whether or not the defendant trespassed into the plaintiffs (sic) land (2) whether the defendant actually bought the land in dispute (3) also who was the head of the family when the defendant bought the land in dispute.
The defendant in paragraphs 9, 10, 11, 12, 13 and 14 of the statement of defence and both in his oral evidence and documentary evidence showed that he bought the land in dispute from Salawa and that Salawa bought from Peter Igbini. Chief Peter Igbini confirmed the transaction. The evidence of the defendant and how he got the land in dispute was not controverted by the plaintiff. Also the evidence of PW3 that the family gathered and appointed Chief Peter Igbini as the head and that the family got the money they use to prosecute the case from High Court to Supreme Court from sales of parts of the family land was also not challenged by the plaintiff. In fact the plaintiff testified that when Peter brought them to Court he started selling the Omovwiare family land.
The defendant also supported his averment with exhibit (sic) E, F and G on issue of transaction which was also confirmed by DW1 and DW2 in their oral evidence in Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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It is my view that these uncontradicted evidence remains valid and the Court can act upon them. See xxx
It is my view that the unchallenged evidence shows that the land in dispute was sold to Warri Salawa who sold to the defendant.
In the Supreme Court judgment it was held that the land in dispute belong to the family and not the personal property of the plaintiff by the doctrine of quic quid plantator solo solo cedit the owner of the land has all that is in the land. The land belongs to the family and the family sold the said land to the defendant.
It is my view that the plaintiff have not been able to prove that he was the head of the family when the land was sold, he testified that in 1977 he was not the head of the family and also he has not been able to prove that he was in exclusive possession of the land in dispute or that he has property on the land in dispute moreover it was confirmed by both parties that it was their family land.
It is my view that the defendant has adduced sufficient uncontroverted evidence to support his claim that he actually bought the land in dispute. That there was proof of money paid coupled with an entry into possession, which has been continuously maintained and even built his house on the land. He has shown that he has right to possession.
On the whole the plaintiff have failed to establish a case of trespass against the defendant. The plaintiffs claim therefore fails and is hereby dismissed.”
I am of the considered view that it is clear as crystal from the statement of claim upon which the instant case was tried, that the Appellant erected or founded his case on some aspects of the decision of the Supreme Court in the case of EMAVORHE ETAJATA & ANOR. V. PETER IGBINI OLOGBO & ANOR (for themselves and on behalf of Omovwiare Family Iwhrekpokpo Village, Ughelli) that he considered to be favourable to him as well as some aspects that he conceived as not being caught by the doctrine of res judicata and/or issue estoppel. The judgment of the Supreme Court in the said case was delivered on 15/6/2007. The judgment was admitted and marked as Exhibit “B” at the trial of the instant case. The facts of the case as captured in Exhibit “B” are as follows: –
“From available facts contained in the printed record of appeal, both the plaintiffs and the defendants before the High Court of the then old Bendel State (trial Court) were of the same family i.e. OMOVWIARE family of IGWREKPOKPO village in Ughelli Local Government Area. The Plaintiffs claimed to sue for themselves and on behalf of the said family. The defendants were sued in their individual capacities. They denied that the plaintiffs were suing on behalf of Omovwiare family as the plaintiffs did not seek or had the consent of that family. The dispute was on land which formed part of Ugbusi land situate and lying in Ugheli Local Government Area.
The plaintiffs claimed that some portions of the said land were sold or leased by the defendants to various persons for which the sum of over #50,000.00 (fifty thousand naira) was received by the defendants and shared amongst themselves to the exclusion of other members of Omovwiare family. The land, according to the plaintiffs contained plaintiffs’ and other members of that family’s rubber plantations; fish ponds; plaintiffs’ buildings, juju shrine, cassava plants, fish traps and many other crops. Plaintiffs and other members of Omovwiare family and their maternal ancestor, Imohkwe, had undisturbed enjoyment and possession of the said land until 1977 when the defendants challenged the rights of the 1st plaintiff and Ediri Etajata rubber plantation to one Japan for building purposes. The land in dispute was founded by Imohkwe from time immemorial and was the first person to set foot on and to occupy the land when it was virgin forest. The appellants claimed further that the said Imohkwe shared the Ugbusi land and gave part to his daughter called Omovwiare and the remaining part to his other child called Itoto. Both palintiffs and defendants are descendants of Omovwiare.
The plaintiffs claimed that in 1960, there was a dispute between members of Omovwiare family and Itoto family over the boundary between their respective portions of land. The dispute was settled on 13th of August, 1960. After the settlement, the defendants told plaintiffs and other family members that they, defendants as representatives of Omovwiare family would meet members of the Itoto family for the settlement terms to be put in writing and signed by the representatives of both families so as to avoid future boundary disputes. The defendants, according to the plaintiffs, instead of drawing up terms of settlement with the representatives of Itoto family, scrumptiously entered into an agreement dated the 1st day of April, 1961 with some members of the Itoto family which agreement purported to transfer the title in the said land to defendants exclusively. The defendants, plaintiffs further alleged, had since then kept the said agreement away from the plaintiffs and other members of Omovwiare family until early in 1977 when 1st plaintiff and his mother tried to sell a portion of the said land to one Japan. The defendants fraudulently prevented the plaintiffs and other members of Omovwiare family from having interest in and share of the proceeds from the sales of various plots. They also refused to render account of the sale proceeds. The plaintiffs pleaded the particulars of fraud alleged.”
Having set out the claims indorsed in the writ of summons and as repeated in paragraph 25 of the further amended statement of claim filed in Suit No. UHC/41/77, (and the first of the claims being for a declaration that the land in dispute called Ugbusi land is the property of the Omovwiare family to which the plaintiffs and defendants belong); the issues for the determination of the appeal; the summary of the judgment of this Court in the appeal it entertained in the case; as well as the summary of the judgment of the trial High Court; the Supreme Court concluded its judgment thus: –
“Finally, I find no merit in this appeal. I hereby dismiss it. I affirm the judgment of the Court of Appeal Benin delivered on 12th day of May 1989. The respondents are entitled to N10,000.00 costs from the appellants.”
Suffice it to say that the judgment of the trial High Court as captured by the Supreme Court in its judgment, is that the said Court (i.e. trial High Court) granted partially, the plaintiffs’ reliefs in the following terms: –
“(i) That the land in dispute is the property of the entire Omovwiare family.
(ii) Injunction restraining the defendants, their servants or agents from further sale of the land in dispute without the authority and consent of members of the Omovwiare family.
(iii) That the defendants were to account only for the sale to PW5.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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and the judgment of this Court that was affirmed by the Supreme Court in its judgment reads: –
“The Court below, on 12th May, 1989, dismissed the appeal and affirmed the trial Court’s judgment except for relief (1) which was varied to read: –
“It is hereby declared that the plaintiffs are entitled to a customary right of occupancy in respect of the land called Ugbusi land and shown on Exhibit C; less the area sold to PW5 Johnson Ighomereho.”
I cannot but note that neither of the parties in the instant suit tendered before the lower Court the judgment delivered in Suit No. UHC/41/77. However, the further amended statement of claim filed in the said action by DW1 and his co-plaintiff was admitted in the instant case as Exhibit “A”. A holistic reading of the said exhibit shows that the O. family never portrayed itself as having given the Appellant any portion of the said family land exclusively. Indeed, what was averred in paragraph 17 of Exhibit “A” is as follows: –
“In 1997 the plaintiffs and other members of the family again demanded for an account to be given by the defendants and to have their share of the proceeds, but the defendants refused so to do. Having so refused, plaintiffs, on behalf of other members of the said family decided to sell or lease portions of the said land to intending purchasers. 1st plaintiffs’ (sic) attempt to lease a portion of his mother’s rubber plantation to one Japan was rigorously challenged by the defendants. Defendants for the first time brought out an agreement dated the 1st April, 1961, and made between defendants and some members of Itoto family referred to in paragraph 12 above. Defendants then claimed that the said land was given to them exclusively by the members of Itoto family and so plaintiffs and other members of the said family have no rights or interest whatsoever over the land and in the proceeds from the sale of the various plots of land. The said agreement will be relied upon at the trial of this action.
The Appellant in his statement of claim in the instant case has averred that he had exclusive possession of a larger portion of Ugbusi land within which the land in dispute is situate, before and after the institution of Suit No. UHC/41/77 in 1977. The lower Court in resolving the issue of trespass and the damages sought therefor, which is the first of the Appellant’s claims in the instant case, came to the conclusion that the Respondent did not trespass on the Appellant’s land as the said Respondent now possesses the land in dispute and on which he had built a structure. This is because the said parcel of land, was sold to the Respondent, regularly. The Appellant has unleashed all manner of criticism against the failure of the lower Court to grant him his claim in trespass and the damages he has sought therefor.
I cannot but say that I deliberately reviewed the submissions of the parties, particularly, those of the Appellant in respect of the two issues he formulated for the determination of the instant appeal copiously, because I am of the considered view that it is very clear therefrom, that the Appellant though stating correct principles of law in respect of the reliefs he had sought in the instant case, totally misapprehended the facts of the instant case vis a vis the said principles of law; and also the party that has the burden of proof in order to establish what the said party has alleged.
The position of the law is settled and it is that he who alleges must prove. See in this regard Sections 131 and 132 of the Evidence Act, 2011. The Sections read: –
“131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
See also amongst many others the case of EZEMBA V. IBENEME (2004) LPELR-1205(SC) wherein the Supreme Court stated thus: –
“In civil cases, the phrase “burden of proof’ has two distinct and frequently confused meanings. Firstly, it may mean the burden of proof as a matter of law and pleadings usually referred to as the legal burden or the burden of establishing a case; secondly, the burden of proof in the sense of adducing evidence often referred to as the evidential burden. While the burden of proof in the first sense is always stable or static, the burden of proof in the second sense may shift constantly as one scale of evidence to the other preponderates. As Aniagolu, J.S.C. correctly observed in the case of Felix O. Osawaru v. Simon Ezeiruka (1978) 6 & 7 SC 135 at 145:
“In civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff Joseph Constantine Steam Line Ltd. v. Imperial Smelting Corp. Ltd. (1942) AC 154, 174) the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses … ”
See the case of Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339 at 353.”
Still on evidence/burden of proof, is the case of AKANMODE V. DINO (2008) LPELR-8405(CA) wherein this Court per Lokulo-Sodipe, J.C.A. stated thus: –
“The Appellants would appear to be tenaciously holding to the fact that the Respondents adduced no contradictory evidence in arguing that judgment ought to have been entered in their favour. The law is definitely not to the effect that whenever a defendant adduces no evidence, judgment must be entered for the plaintiff. In the case of Arabambi vs. Advance Beverages Industries Ltd (supra) relied upon by the Appellants, the Supreme Court was clear on the point that it is the production by a party of credible evidence that can entitle the said party to judgment. Indeed in the said case, the Supreme Court further held among others that a defendant is not bound to call witnesses to establish his defence where a prima facie case has not been proved by the plaintiff. The position of law was applied in the case of CHIEF SERGEANT C. AWUSE V. DR. PETER ODILI & 326 ORS [2005] All FWLR (Pt. 261) 248 at 313-316. Indeed in the case of MUSTAPHA FANNAMI V. ALHAJI GAJI BULAMA BUKAR [2004] All FWLR (Pt.198) 1210 at 1259-1260 this Court among others held to the effect that the evidence which calls for rebuttal from the opposite party must be admissible, relevant and credible. That it is not any and every evidence at all which must be matched. That if the evidence in support of an allegation is worthless, being incredible, and/or irrelevant; then the opposite party has no obligation to produce anything for the other side of the scale to match it. Where evidence led is virtually worthless, it is therefore futile to presume that the party alleging has discharged the burden of proof or that the Court ought to act on the evidence adduced because the opposite party has not presented a rebuttal.”
The position of the law is settled that the claim for trespass is not dependent on the success of a claim for declaration of title. Both are separate and independent of each other. Trespass is essentially a tort against possession and only a person in possession of a land in dispute at all material times can maintain an action in damages for trespass. Accordingly, possession alone is sufficient to maintain an action in trespass although for such possession to found an action in trespass, it must be clear and exclusive. See BALOGUN V. AKANJI (2005) LPELR-722(SC).
In Suit No. UHC/41/77, the exclusive possession of the Ugbusi land which the Appellant claimed to have had, was alleged by the Plaintiffs in the said case to have flowed from or to have been derived from the Itoto family. The lower Court in the said case found that the said Ugbusi land was O. family land. This finding which was affirmed in substance by this Court and the Supreme Court, clearly does not show or did not show the Appellant as having the exclusive possession to or of any part of the Ugbusi land within which the Appellant has situated the land in dispute. Even though it is not in doubt that the Appellant is a member of O. family which owns Ugbusi land, he never set up a case on the pleading that the said O. family granted him any part of Ugbusi land (particularly the land in dispute) which he (Appellant) possesses exclusively. Likewise, the Appellant adduced no evidence as to how the communal/family ownership of Ugbusi land by the O. family was destroyed as it were, and how he came to be vested with exclusive possession of the land in dispute. I must quickly add that any such evidence in any event would have gone to no issue as facts in that regard were not pleaded. The Appellant clearly disclosed in statement of claim that as at the time when Suit No. UHC/41/77, was going on the Respondent had been in possession of the land in dispute to his knowledge. A fortiori, the Respondent had been in possession of the said land prior to the issuance of the writ of summons in the instant case on 10/3/2008. The position of the law is settled that where a defendant is in possession of the land in dispute, a plaintiff who wants to oust the defendant out of possession, must prove a better title. See amongst many others the case of LADIPO V. AJANI (1997) LPELR-1736(SC).
It is also trite law, that where two parties claim to be in possession of land, the law ascribes possession to one of them with a better title. See amongst many others the case of AROMIRE V. AWOYEMI (1972) LPELR-560(SC).
I have painstakingly read the pleadings of the Appellant and evidence he adduced in the proof of his case by himself and through his sole witness, and I simply do not see any credible evidence the Appellant adduced as to how he came to possess exclusively, the land in dispute and upon which he could be said to have properly founded his claim in trespass and the damages he has claimed therefor and which evidence is worthy of any rebuttal by the Respondent. This is so despite the attack unleashed by the Appellant on the findings of the lower Court in his brief of argument. Indeed, I am of the considered view that if the lower Court had properly appreciated the position of the law in respect of evidence which require rebuttal or which does not require rebuttal in law, it would not have wasted its time in dwelling at length on the evidence of the Appellant vis-à-vis that of the Respondent and in making the findings that it did and which findings the Appellant has now lashed together as it were, in his attempt to have the judgment delivered against him set aside.
The Appellant has also made heavy weather concerning his headship of the O. family because he wants to ride rough shod on the principle of the law to the effect that disposition of family land without the consent of the head of family is invalid. The Appellant relied on the custom that as he was the oldest man alive, he was by virtue of the fact the head of O. family. The position of the law on “proof” of custom is very settled. In this regard see the case of TEMILE V. AWANI (2001) LPELR-3140(SC) wherein the Supreme Court stated thus: –
“The law is that the burden of proof of custom is on the person alleging its existence. – See Section 14(1) of the Evidence Act. Proof of native law and custom which is regarded as a question of fact to be pleaded is necessary unless where by frequent proof it has been judicially noticed. See xxx”
The custom relied upon by the Appellant apparently is not one that has been judicially recognised or is not one that had before he placed reliance on same acquired any measure of notoriety; otherwise one would have expected that at least a case in which the said custom had been applied, would have been cited by the Appellant. The said custom would appear to be known to the Appellant and his sole witness. This is however neither here nor there. I have said this because it is on record that the Appellant in his testimony in any event expressly admitted that he was not the head of O. family as at 1977 when Suit No. UHC/41/77 was instituted and when the Respondent claimed to have purchased the land in dispute; even though he claimed that he was the head of the said family as at 2002. In my considered view, it is apparent that it is because the Appellant fully appreciates the case of the Respondent that he bought the land in dispute in 1997 and tendered Exhibits “E” – “G” in support of the fact, that the Appellant in accusing the lower Court of non-evaluation or improper evaluation of the evidence before it, argued to the effect that the lawyer who signed one of the aforementioned exhibits or perhaps all of them, had not been called to the Bar as at 1997. I consider it expedient to discountenance the totality of the Appellant’s views expressed in respect of the said Exhibit “E” as captured hereinbefore in this judgment. This is because, when a lawyer was called to the Bar, is one of fact. There is no pleading to support all that the Appellant said in respect of Exhibit “E” vis-à-vis the lawyer who prepared it in the records; talk less of any evidence in respect of the fact. The manner in which the Appellant attacked the said Exhibit “E” shows desperation. The question is, if the Appellant indeed became the head of O. family in 2002, as he has alleged, can he by virtue of such headship that was acquired in 2002, bring an action whether as head of family or as a member of the family to nullify what has been done by his predecessor in office and/or the family as a whole. The clear answer in my considered view is that he cannot. Whatever the head of O. family had done in 1997, before the Appellant ascended to the office of head of family; or whatever the family held out itself to have done in 1977 , and prior to the time the Appellant claimed that he ascended to the said office, remains intact. To hold otherwise, would open the leeway to O. family to resile from previous acts done by them and or their heads after their death. This would inflict serious or great hardship on people who have had dealings with the O. family prior to the death of their family heads. Indeed, such a situation would be unequitable and might easily promote fraud which the Court must not be seen as encouraging. And with particular reference to the position of the Appellant that he as a member of the family can property maintain an action to protect the interest of the family, all that I can say. is that it is clear from the reliefs sought by the Appellant in the instant case that he is not in the least seeking to protect the interest of the family. On the contrary, the Appellant by the instant action, in my considered view is seeking to re-install to himself what the judgment of the Lower Court in Suit No. UHC/41/77, and as affirmed by this Court and the Supreme Court. has removed or divested him of. Appellant’s action in my considered view can conveniently be classified as an abuse of the process of Court. given the wide coverage of the term. Flowing from all that has been said is that the issues for the determination of the instant appeal as formulated by the Appellant, are resolved against him.
In the final analysis, this appeal is highly unmeritorious and it fails. It is hereby dismissed. The judgment of the lower Court inasmuch as it has found the Appellant not to be entitled to the reliefs he claimed in the instant suit, is upheld. Costs in the sum of N200,000.00 is awarded in favour of the Respondent and against the Appellant.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have had the privilege of reading in draft the lead Judgment aptly articulated and delivered by my learned brother AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A., and I concur that the appeal has no merit.
The Appellant/Plaintiff was not the Head of the family at the material time of the transaction relating to the gift/sale of the land in dispute and was rightly so adjudged to be legally incapable of having the transaction rendered null and void; accordingly, his claim of damages for trespass had no basis and was rightly dismissed. The subsequent maturation or attainment of a Headship does not vitiate previous transactions in family property that were legally entered into. My Lord, AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. had eloquently captured the ploy of the Appellant herein in the ingenious craft to ante-date and validate a family Headship contrary to the decisions of this Court and the apex Court and as relating vested interest in a third party conferred by the family.
There was no legal impediment against the title and possession of the Respondent, now sought to be defeated by the Appellant, herein: and this is more so that there was evidence that the family land had even been partitioned between the several gates or branches of the family.
From the records and the submissions made, I agree with my lord in the lead that this decision was rightly entered.
The appeal against same has no merit and the decision of the Court is upheld. I so do and adopt the order relating to the award of costs.
ABIMBOLA OSARUGUE OBASEKI–ADEJUMO, J.C.A.: I have been afforded the opportunity of reading in the draft the judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. and I am in agreement with the reasoning and conclusion therein, I will only add a few words for emphasis sake.
It is a trite principle of law that in a claim for trespass only a person in possession of the land at all times can maintain an action in damages for trespass.
The Appellant claimed to have exclusive right of the Ugbusi land, which the lower Court found belonged to the Omovwaire family as gleaned from the suit (Suit No. UHC/41/77) at the lower Court but failed to prove how he came into exclusive ownership of the family land. It behoved on the Appellant to prove a better title to the disputed land. See ABO v AANYAM (2017) LPELR – 42453 (CA); FASUYI & ANOR v OMOLAFE (2018) LPELR – 46048 (CA); AYANRU v MANDILAS LTD (2007) LPELR – 670 (SC).
Flowing from the above and the reasonings in the lead judgment. I also hold that the appeal lacks merit and is hereby dismissed. I join my learned brother in affirming the judgment of the lower Court.
I also abide by all consequential orders.
Appearances:
Irikefe Ovwighorienta For Appellant(s)
Alibor For Respondent(s)
