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REGISTERED TRUSTEES OF OBOSI DEVELOPMENT UNION v. BRG. GEN. ROBERT IKE ELEBOR (RTD) (2019)

REGISTERED TRUSTEES OF OBOSI DEVELOPMENT UNION v. BRG. GEN. ROBERT IKE ELEBOR (RTD)

(2019)LCN/13409(CA)

(2018) LPELR-46657(CA)

 

In The Court of Appeal of Nigeria

On Friday, the 18th day of May, 2018

CA/L/660/2015

 

JUSTICE

JOSEPH SHAGBAOR IKYEGH justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR justice of The Court of Appeal of Nigeria

Between

REGISTERED TRUSTEES OF OBOSI DEVELOPMENT UNIONAppellant(s)

 

AND

BRG. GEN. ROBERT IKE ELEBOR (RTD)Respondent(s)

RATIO

WHETHER OR  NOT THE CLAIM FOR DAMAGES FOR TRESPASS IS DEPENDENT ON THE CLAIM FOR A DECLARATION OF TITLE AS ISSUES TO BE DETERMINED ON THE CLAIM FOR TRESPASS

I think the law involved is quite clear. It is that the claim for damages for trespass is not dependent on the claim for a declaration of title as the issues to be determined on the claim for trespass are whether the Plaintiffs had established their actual possession of the land and the Defendants’ trespass on it which are quite separate and independent issues to that on their claim for a declaration of title; while a claim for injunction is also not necessarily bound to fail after a claim for a declaration of title fails, provided the area of land in respect of which an injunction is sought is clearly defined and ascertained (see for example Oluwi v. Eniola (supra), Kareem & Ors v. Ogunde & Anor (supra)
It is trite law that where the title of both parties is defective, Court can still find for the Plaintiff in the action for trespass if he establishes possession. See Kareem & Ors. v, Ogunde & Ors. (1972) All NLR (Pt. 1) 73; Adebayo v. Ighodalo (1996) 5 NWLR (Pt. 450) 507 and Akunyili v. Ejidike (1996) 5 NWLR (Pt. 449) 381. Where a plaintiff has established that he is in possession, it is necessary for an order of injunction to be obtained to protect the possession in him. See Christopher Okolo v. Eunice Uzoka (1978) 4 SC. 77. See also Enang v. Adu (1981) 11 – 12 SC. 25 and Adegbite v. Ogunfaolu (1990) 4 NWLR 573 (Pt. 146) at 592 – 593. See also Oluwi v. Eniola (1967) NMLR 339 at 340 for the proposition that the fact that a claim for title fails does not mean that a claim for trespass and injunction must fail. See also Omaha Akpapuna v. Obi Nzeka II (1983) 2 SCLR 1 (1983) 7 SC. 1. PER IKYEGH, J.C.A.

WHETHER OR NOT TRESPASS TO LAND IS ACTIONABLE AT THE SUIT OF THE PERSON IN POSSESSION OF THE LAND

It is the law and this Court has so held times without number that trespass to the land is actionable at the suit of the person in possession of the land. The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title.”
And as regards a claim for damages for trespass the West African Court of Appeal Awoonor Renner v. Anan (1934-1935) 2 WACA had this to say: –
“A trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing a trespass is to say that the Defendant broke and entered the plaintiffs’ close and did damage, and it follow that in order to maintain an action for trespass the plaintiff must have a present possessory title – an owner of land who is legally entitled to possession not being competent to maintain an action for trespass before entry. PER IKYEGH, J.C.A.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from the judgment of the High Court of justice of Lagos State (the Court below) by which it declared the respondent entitled to a right of occupancy over a plot of land No. 1711 located at 7th Avenue Festac Town Lagos and N1,500,000 general damages for unlawful trespass together with an order of perpetual injunction covering the said plot of land against the appellant in favour of the respondent

Dissatisfied with the judgment, the appellant filed a notice of appeal with fifteen (15) grounds of appeal followed with a brief of argument filed on 07-09-15, but deemed as properly filed on 04-02-16, in which it was argued that having rejected the letter of allocation dated 07-09-1990 and the demand notice dated 21-12-2007 in evidence the Court below erred when it subsequently allowed the rejected documents, to be admitted in evidence as Exhibits 25 and 26, respectively; more so, the documents are not public documents as wrongly held by the Court below citing in support the cases

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of Ngige v. Obi (2006) 14 NWLR (pt. 999) 1 at 168 169, Ita v. Ekpenyong (2001) 1 NWLR (pt. 695) 587, Oyetunji v. Akanni (1986) 5 NWLR (pt. 42) 461 at 470, Agbaje v. Adigun (1993) 1 NWLR (pt.269) 261 at 272, Bello v. Governor of Kogi State (1997) 9 NWLR (pt.521) 497 at 521, Governor, Ekiti State v. Ojo (2006) 17 NWLR (pt.1007) 95 at 129, Shyllon v. University of Ibadan (2007) 1 NWLR (pt.1014) 1 at 15 16, Egbue v. Araka (1996) 2 NWLR (pt.433) 688 at 710.

The appellant argued that it raised the issue of revocation and re-allocation of the plot of land by the Federal Housing Authority in paragraphs 14 and 19 of the statement of defence/counter claim which the respondent failed to reply to or controvert and should be deemed to have admitted the averments citing in support Sections 75 and 131 of the Evidence Act 2011 (Evidence Act), Ogunleye v. Oni (1990) 2 NWLR (pt. 135) 745 at 766 767, Joe Golday Co. Ltd. v. C.D.B. Plc (2003) 5 NWLR (pt.814) 58 at 598, Achilihu v. Anyatonwu (2013) 12 NWLR (pt.1368) 256 at 295,

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Cardoso v. Daniel and Ors. (1986) 2 NWLR (pt.20) 1 at 43, Atanda v. Iliasu (2013) 6 NWLR (pt.1351) 529 at 566.

The appellant argued that the Court below was wrong when it raised suo motu and decided the issues of the service of the revocation notice on the respondent and the power of the Federal Housing Authority to revoke an allocation when issues were not joined thereon in the pleadings of the parties in pages 184 188 and 116 120 of the record of appeal (the record) citing in support the cases of Ngige v. Obi (2006) 14 NWLR (pt.999) 1 at 117, Ohochukwu v. A.-G., Rivers State (2012) 6 NWLR (pt.1295) 53 at 84 85, P.P.F.N. v. Shogbola (2004) 11 NWLR (pt. 883) 1 at 22, Mojekwu v. Iwuchukwu (2004) 11 NWLR (pt. 883) 196 at 216.

The appellant argued that having pleaded and relied on letter of allocation as his source of title to the disputed portion of land only the document of title not extrinsic evidence of its contents should have been tendered in evidence in proof of the source of title to the disputed plot of land and having rejected the document in evidence the Court below was wrong to re-admit it in evidence as Exhibit 25 and being a registrable instrument which was not registered the letter of allocation was itself inadmissible in evidence and the Court below should not have relied on it to award title to the

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disputed plot of land to the respondent citing in support Dim v. Enemuo (2010) NWLR (pt.1149) 353 at 381, Nruamah v. Ebuzoeme (2013) 13 NWLR (pt.1372) 474 at 494, Achilihu v. Anyatonwu (2013) 12 NWLR (pt.1368) 256 at 301, Omotayo v. C.S.A. (2010) 16 NWLR (pt.1218) 1 at 31, Asuquo v. Eyo (2014) 5 NWLR (pt.1400) 247 at 264, Sections 1 and 15 of the Land Instrument Registration Law Cap. L58 Laws of Lagos State 2003, Ogbimi v. Niger Const. Ltd. (2006) 6 NWLR (pt.988) 474 at 493, Akinduro v. Alaya (2007) 15 NWLR (pt.1057) 312 at 330 331, Agboola v. U.B.A. PLC (2011) 11 NWLR (pt.1256) 413, Section 4(1)(f) of Federal Housing Authority Act Cap.F14 Laws of the Federation 2004.

It was argued that whereas what Exhibit 25 purports to grant is leasehold, what the respondent claimed contrariwise is that he is entitled to a right of occupancy of the land in dispute and that Exhibit 25 being vague and uncertain without words of demise, nor commencement date nor duration of the term amounts to an invalid agreement difficult to enforce and should not have attracted a grant of the declaration sought by the appellant citing in support Osho v. Foreign Finance Corporation (1991)

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4 NWLR (pt.184) 157 at 192, S.F. and P. Ltd. v. N.D.I.C. (2012) 10 NWLR (pt.1309) 522 at 538, Odutola v. Paper Sack (Nig.) Ltd. (2006) 18 NWLR (pt.1012) 470, Abaye v. Ofili (1986) 1 NWLR (pt.15) 134 at 177.

The appellant argued that based on the uncontroverted and unchallenged counter claim and evidence in support thereof the Court below should have entered judgment for it in terms of the counter claim citing in support Oyeneyin v. Akinkugbe (2010) 4 NWLR (pt.1184) 265 at 284, NNB Plc. v. Denclag Ltd. (2005) 4 NWLR (pt.916) 549 at 593, Oruwari v. Osler (2013) 5 NWLR (pt.1348) 535 at 557 – 558 and that the documents tendered at the bar and admitted in evidence were not pleaded nor evidence led on them and should be disregarded citing in support Sijuade v. Oyewole (2012) 11 NWLR (pt. 1311) 280 at 314 – 315; upon which the appellant urged that the appeal should be allowed and the judgment of the Court below set aside and the case of the respondent at the Court below be dismissed and judgment be given to the appellant per its counter claim.

The respondents brief filed on 27-05-16 contended that the Court below was right in admitting the

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certified true copy of the letter of allocation a public document issued by the Federal Housing Authority (F.H.A.) and the original copy of the Demand Notice a public document issued by the F.H.A. as Exhibits 25 and 26, respectively, in evidence even though uncertified true photocopies were earlier rejected in evidence by the Court below as the letter of allocation was admitted by paragraphs 14 and 17 of the statement of defence and reinforced by paragraphs 7, 12, 16 and 21 of the DW1s written deposition, more so the documents in question were admitted in evidence under cross-examination of DW1 without objection and is relevant to the case vide Shittu v. Fashawe (2005) 7 S.C. (pt.11) 107 at 118, Anambra State Government and Anor. v. Gemex International Ltd. (2011) LPELR – 19733, H.M.S. Ltd. v. First Bank (1991) 1 S.C. (pt.11) 26, Arinze v. First Bank (Nig.) Ltd. (2000) 1 NWLR (pt.639) 78, Igbinovia v. The State (1981) 2 S.C. 5, Onochie v. Odogwu (2006) All FWLR (pt.317) 544, Sections 102, 104(1) and (2) of the Evidence Act 2011 (Evidence Act), Uzoma v. Asodike (2010) All FWLR (pt.548) 853, Isibor v. State (1970) All NLR 252, Ogbunyiya v. Okudo

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(1979) All NLR 10, Magaji v. Nigeria Army (2005) All FWLR (pt.257) 1511, (2008) All FWLR (pt.420) (no pagination), Daggash v. Bulama (2004) All FWLR (pt.212) 1666, Giwa v. Yarbun (2011) All FWLR (pt.565) (no pagination), Uzor v. Delta Freeze Nig. Ltd. and Ors. (2010) LPELR 9114, Ebun v. Obun (2004) 14 NWLR (pt.892) 76, Ayilara v. Federal Ministry of Works (2013) LPELR 20772; and that Exhibits 25 and 26 being certified true copies of public documents are different in character from the photocopies thereof rejected in evidence and as the respondent had fulfilled the conditions precedent for their admissibility in evidence the Court below was right to admit them in evidence as Exhibits 25 and 26 to do substantial justice to the case videOlukade v. Alade (1976) 2 S.C. 183, Alasa v. Lajida (1975) 1 W.A.C.A. 194, Dobadina Family v. Executors of Chief J. O. Ajao (1969) N.M.L.R. 24, Adegbaiye and Ors. v. Akinrimisi and Anor. (1974) 10 S.C. 123, Advanced Law Lexicon, the Encyclopaedic Law Dictionary with Legal Mixims, Latin Terms and Words and Phrases 3rd Edition by P. Ramanatha Aiyar 1059, 3585, Webster Comprehensive Dictionary of English Language

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Deluxe Encyclopaedic Edition 951, Osbornes Concise Law Dictionary, 7th Edition 67, Blacks Law Dictionary, 8th Edition 360, Arubi v. Offshore Operators Nig. Ltd. FRC/W/13/78, Anyakore v. Obiakor (1990) 2 NWLR (pt.130) 67.

The respondent contended that the appellant raised the revocation of the plot of land and its re-allocation to it by the F.H.A. therefore it had the onus to prove the issue by showing the revocation complied with due process of law and was validly issued and served and the reasons for the revocation are approved by law which the appellant failed to establish, therefore the Court below was right in giving judgment to the respondent vide Dumez Nig. Plc. v. Ademoye and Ors. (2014) LPELR 23518, Sections 131 and 132 of the Evidence Act, Ojo v. Gharoro (2006) All FWLR (pt. 316) 197, Dada v. Dosunmu (2006) All FWLR (pt.343) 1605, Oyovbiare v. Omamurhomu (1999) 7 SCNJ 60, Adole v. Gwar (2009) All FWLR (pt.423) 1217, Sections 43 and 44(1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution), Section 10 of F.H.A. Act, Sections 28 and 44 of the Land Use Act, Osho and Anor. v. Foreign Finance Corporation and Anor. (1991) 5 S.C. 59.

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It was also argued that as CW3 had admitted in evidence that the two original copies of the letter dated 03-12-2001 purporting to be a notice of revocation of the respondents plot of land were lying fallow in File No. FHA/ES/FT/P.1711 the appellant who asserted the issue of revocation in paragraphs 14 and 19 of the statement of defence/counter-claim was not established by the appellant, as the Guardian Newspaper Publication, Exhibit 24, was not the personal service required of a revocation notice vide Olo v. Adojo (2004) All FWLR (pt.203) 2151, Odogwu v. Ilombu (2007) 8 NWLR (pt.1037) 488, Olatunji v. Military Governor, Oyo State and Ors. (1995) 5 NWLR (pt.397) 586, Ononuju v. A.-G., Anambra State (2009) 10 NWLR (pt.1148) 182, Admin/Exec. Estate of Abacha v. Eke-Spiff (2003) 1 NWLR (pt. 800) 114, Ajayi v, Ojomo and Ors. (2000) 14 NWLR (pt. 688) 447, Wuyah v. Jamaa Local Government, Kafanchan (2011) LPELR 9078, Baba-Iya v. Sikeli (2006) 3 NWLR (pt. 968) 508, Adole v. Gwar (2008) 11 NWLR (pt. 1099) 562, The Admin. And Exec. of the Estate of Abacha v. Eke-Spiff and Ors. (2009) 2 3 S.C. (pt.1139) 97.

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It was further argued that the purported revocation was not for a public purpose as the plot of land was purportedly given to another individual, more so, Exhibit 14, the letter of re-allocation, was made on 15-03-2002 while the alleged revocation, Exhibit 24, was published on 29-04-2002 showing the former pre-dated the latter and did not establish the allegation of revocation and re-allocation vide Ononuju and Anor. v. A.-G., Anambra State and Ors. (2009) 10 NWLR (pt.1148) 182; and that the Court below did not raise the issue of revocation suo motu but based it on the issues joined by the parties and the respondents final address under issue No.2 thereof.

The respondent also contended that his allocation being earlier in time and having not been validly revoked he has a better title to the disputed plot of land than the appellant whose purported allocation, Exhibit 14, from the same grantor came later in time vide Uzor v. Delta Freeze Nig. Ltd. and Ors. (2010) LPELR 9114, Olo v. Adejo (2004) All FWLR (pt. 403) 2151.

The respondent contended that failure to file reply to counter-claim does not relieve the

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counter-claimant from the burden of proof of the counter-claim, more so the success of the counter-claim depended on the failure of the respondents action vide Akpaji v. Udemba (2009) All FWLR (pt. 471) 811, and that the appellant having not tendered evidence of valid transfer of title to the plot of land to it the success of the respondents action also determined the collapse of the counter-claim, therefore the appeal should be dismissed and the judgment of the Court below affirmed vide Ogbonna v. A.-G., Imo State (1992) 1 NWLR (pt. 220) 647, Nigerian Housing Dev. Society Ltd. v. Mumuni (1972) 2 S.C. 57, Dabup v. Kolo (1993) 9 NWLR (pt. 317) 254, Aderounmu v. Olowu (2000) 2 SCNJ 180 at 192, Unipetrol v. Bukar (1997) 2 NWLR (pt. 488) 472.

The reply brief filed on 03.06.16 contended that the parties are bound by the ruling of the Court below rejecting the letter of allocation and the demand notice rightly or wrongly and that the respondent cannot perfect the rejected documents by re-tendering them in evidence as Exhibits 25 and 26 vide Okuruket xiv (2014) 11 NWLR (pt. 1419) 147, Bello v. Governor, Kogi State (1997) NWLR (pt. 521) 497

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at 521, that Exhibit 25 is a document affecting land and should have been registered and its non-registration made it inadmissible in evidence vide Sections 1 and 15 of the Land Investments Registration Law Cap. L58 Laws of Lagos State 2003 and Ogbimi v. Niger Const. Ltd. (2006) 6 NWLR (pt. 988) 474 at 493, Akinduro v. Alaya (2007) 15 NWLR (pt. 1057) 312 at 330 336; that Exhibit 25 is not a public document as it shows the respondent collected the original thereof which was not in the custody of a public officer to make it a public document vide Section 104 of the Evidence Act read with Shuaibu v. Muazu (2014) 8 NWLR (pt. 1409) 207 at 299 300, Governor, Ekiti State v. Ojo (2006) 17 NWLR (pt. 1007) 95 at 127; that Exhibits 25 and 26 were inadmissible having been earlier rejected in evidence and can be expunged on appeal vide Aminu v. Hassan (2014) 5 NWLR (pt. 1400) 287 at 324; that the respondent did not deny the averments in paragraphs 14 and 19 of the statement of defence/counter claim and the said averments on the revocation of the allocation are deemed admitted and require no further proof vide Chukwu v. Akpelu (2014) 13 NWLR (pt. 1424) 359

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at 387, Okoye v. Nwankwo (2014) 15 NWLR (pt. 1429) 93 at 124 125, Kubor v. Dickson (2013) 4 NWLR (pt. 1345) 534 at 586, Atanda v. Iliasu (2013) 6 NWLR (pt. 1351) 529 at 566; upon which the appellant concluded by requesting for the appeal to be allowed and the judgment of the Court below set aside and the action of the respondent at the Court below be dismissed and judgment be entered for the appellant on the counter claim.

Exhibits 25 and 26 are indeed public documents. They were initially tendered and rejected in evidence by the Court below because they were not certified. The respondent caused them to be certified and re-tendered them in evidence which the Court below duly admitted in evidence as Exhibits 25 and 26. The Court below reasoned that because the documents are true copies they bear different complexion and character from the ones previously rejected in evidence and it was on that basis that the Court below admitted the two documents in evidence as Exhibits 25 and 26. Both documents bear the same contents as the one earlier rejected in evidence. They are therefore the same documents.

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Having rejected both documents in evidence the Court below should not have re-admitted them in evidence as Exhibits 25 and 26. The inflexible course was for the respondent to have withdrawn the documents when the appellant objected that they were not certified true copies and should have rectified the non-certification and tendered them in evidence as certified true copies thereof. Having taken a chance and allowed the documents to be rejected in evidence, the respondent could not re-tender them in evidence and having done so the Court below was wrong in later admitting the same documents earlier rejected in evidence as Exhibits 25 and 26; therefore Exhibits 25 and 26 are not legal evidence to rely upon, nor could secondary evidence (parol or otherwise) of them could be admissible in place or lieu of the rejected documents subsequently re-tendered and admitted in evidence as Exhibits 25 and 26 vide the Supreme Court case of Nigerian Ports Plc v. Beecham Pharmaceutical PTE Ltd. and Anor. (2012) 3 N.W.L.R. (pt. 1333) 454 at 487 and 490 following U.B.N. Ltd. v. Ozigi (1994) 3 NWLR (pt. 333) 385 at 399, ACB Ltd. v. Gwagwada (1994) 5 NWLR (pt. 342) 25 at 31 and the cases (supra) cited on the issue by the appellant.

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The declaration made by the Court below in its judgment in page 527 of the record that the respondent is entitled to a right of occupancy of the plot, piece and parcel of land measuring 855,692 square metres situate at 7th Avenue, Festac Town, Lagos by virtue of the Authority dated the 7/9/1990 having not been based on legal evidence is of no moment.

The dispute is on allocation of land. A lease is a term of years. A right of occupancy resembles a lease on term of years vide Chiroma v. Suwa (1986) 1 N.W.L.R. (pt. 19) 751 at 757, Ajilo v. Savannah Bank (Nig.) Ltd. (1989) 1 N.W.L.R. (pt. 97) 305, Osho v. Foreign Finance Corporation and Anor. (supra) at 192.
Page 16 of the record contains the letter of allocation. It does not have the usual legalistic word of demise. The simple manner it is couched, however, discloses the identity of the grantor and the granted as F.H.A. and the respondent, respectively, and it is dated 7/9/90 while the duration is tied to the payment of development charge, ground rent and such other charges, as in future may arise showing by plain implication that default thereof by respondent would entitle

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the F.H.A. to terminate the grant/allocation, while the contingency upon which it would commence is stated in the last paragraph of the allocation letter to be within 7 days from 7/9/90 when the respondent would meet the Deputy General Manager of the F.H.A. for further details. The commencement date was therefore manifest from the contingency mentioned in the last paragraph of the letter of allocation vide Bosah v. Oji (2002) 6 NWLR (pt. 762) 137 at 165, Okechukwu v. Onuorah (2000) 15 NWLR (pt. 961) 597 at 613 614.
The letter of allocation in page 16 of the record read together would, though couched in pedestrian language, show generally the words of demise; the complete agreement of allocating the plot of land to the respondent; the identification of the lessor and the lessee, the premises and dimension thereof to be leased and the commencement and duration of the term which made it resemble a lease vide Osho v. Foreign Finance Corporation (supra) at 193.
Perhaps it should be emphasized that the essential terms of an agreement for a lease are the identification of the lessor (landlord) and the lessee (tenant); the premises to be leased; the

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commencement and duration for the term; and the rent or other consideration to be paid. In this case, the letter of allocation identified the F.H.A. as the lessor or landlord and the respondent as the lessee or tenant; the premises leased is also identified as No. 1711 located at 7th Avenue Festac Town Lagos; the commencement and duration date though not expressly stated is inferable from the contingency that the respondent should meet the Deputy General Manager of the F.H.A. within 7 days from 7/9/90 for further details and the right reserved by the F.H.A. to terminate the duration of the allocation is also presumed to be part of the terms of the allocation when the conditions for the payment of rent or other consideration were made part of the allocation in which case in the event of default by the lessee the lessor may be entitled to terminate the allocation on that contingency showing the commencement and duration of the allocation depended on the said contingency and is sufficient for the purpose of a lease.
The usual words deployed for the purpose of a lease is demise or let but neither those words nor any formal

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words of assignment or conveyance are necessary. Provided that the document embodying the lease shows the parties interest and that the one is to divest himself of the possession and the other is to come into the possession for a determinate time, either immediately or in the future, it operates as a lease vide Halsburys Laws of England (Fourth Editon 2006 Reissue or Lord Mackay of Clashfern Edition) Vol. 27 (1) page 149 paragraph 130. Granted the usual words of demise are not in the letter of allocation, but when read as a whole as should be the case the letter of allocation in page 16 of the record contains words showing the divesting of the possession of the demised area of land by the F.H.A. and letting into possession thereof the respondent which is in substance a lease, in my modest opinion.

A document embodying a leasehold or allocation of land affects interest in land and when not registered conveys an equitable interest in the land vide Okoye (carrying on Business as Oskol Steel Construction Company v. Dumez Nigeria Limited and Anor. (1985) 1 N.W.L.R. (pt. 4) 783 at 790 where in dealing with a lease the Supreme Court held per the lead

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judgment prepared by the great Jurist Bello J.S.C. (later C.J.N., now of blessed memory) that a registrable instrument which has not been registered is admissible to prove equitable interest and to prove payment of purchase money or rent following the cases of Savage v. Sarrough (1937) 13 N.L.R. 141, Ogunbambi v. Abowab (1951) 13 W.A.C.A. 22, Fakoya v. St. Pauls Church, Sagamu (1966) 1 ALL N.L.R. 74, Oni v. Arimoro (1973) 3 S.C. 163, Bucknor Maclean v. Inlaks (1980) 8-11 S.C. 163, Obijuru v. Ozims S.C. 48/1984 delivered on 04.04.1985 (reported: (1985) 2 NWLR (pt. 6) 167 or (1985) 4 5 S.C. 142).
Had Exhibit 25, the letter of allocation, which was unregistered, been legal evidence it would have had efficacy and potency or evidential value and been admissible and utilised in proof of the respondents equitable interest in the plot of land covered by it which, coupled with possession, ripened into ownership thereof by the respondent vide United Nig. Co. Ltd. v. Nahman (2000) FWLR (pt. 27) 1988.

The main action and the counter-claim were partly based on title to the disputed plot of land in virtue of letter of allocation

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and letter of re-allocation, respectively, which was based on declaratory relief which is not granted on admissions either in pleadings or orally but on cogent evidence by the party claiming the declaratory relief vide Motunwase v. Sorungbe (1988) 5 NWLR (pt. 92) 90 at 101 102 following Bello v. Eweka (1981) 1 S.C. 101.
The fact that the issue of revocation of the letter of allocation of the plot of land and re-allocation of the same to the appellant was pleaded in paragraphs 14 and 19 of the defence/counter claim but not specifically traversed by the respondent did not relieve the appellant who raised the issue of the burden of proof under Section 131 of the Evidence Act of establishing it by credible evidence that the letter of revocation was served on the respondent to make the revocation complete and effectual; and having raised the issue in its pleadings the Court below was entitled to look at it even by itself or suo motu as it is part of the pleadings, evidence for the respondent, and its final written address which are reflected by the portion of the appellants final written address in pages 320 321 vide

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Omokuwajo v. F.R.N. (2012) 9 NWLR (pt. 1359) 300, Gbagbarigha v. Toruemi (2013) 31 W.R.N. 35, USI Enterprises Ltd. v. The Kogi State Government and Ors. (2005) 1 NWLR (pt. 908) 494 at 517 518.
Having not established that the letter of revocation was served personally on the respondent as required by the cases (supra) cited on the issue by the respondent the appellant could not have been held to have proved the counter-claim as the re-allocation of the plot of land to it depended on valid revocation of the first allocation to the respondent which was not established on the evidence placed before the Court below. See in addition the case of Majiyagbe v. A. G., and Ors. (1957) N.R.N.L.R. 158 to the effect that letter of revocation lying in the official file of the revoking authority but not personally served on the person occupying the parcel of land does not make the revocation valid and effectual thus leaving intact the occupation of the parcel of land by the occupier.

Apart from claiming a declaration of title to the disputed plot of land the respondent claimed damages for trespass and perpetual injunction.

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The Court below awarded the respondent general damages of N1.5 million and a perpetual injunction against the appellant over the disputed plot of land vide page 527 of the record containing part of the judgment of the Court below.

The respondent pleaded and proved possession of the disputed plot of land and its invasion by the appellant by paragraphs 11, 12, 13, 16, 17, 18, 19, 20 23 of the amended statement of claim and paragraphs 8 17 of the amended written statement on oath of the respondents witness in pages 185 187 and 191, respectively, as well as the respondents written statement on oath in pages 273 275 thereof which was adopted by the respondents witness in page 483 of the record and the respondent in page 486 thereof at the trial of the action thus –
11.The Claimant states that he took over possession of the land in dispute exercising every acts of ownership whereby he paid for and obtained an approved building plan. The Claimant hereby pleads the Building Plan and the receipt for the building Plan Processing fee dated 17/5/1993.
12.The Claimant avers that he spent a huge sum of money to fence up the plot

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of land in dispute with concrete blocks of about 11 coaches high with a 16 feet long single gate whereof the Land was fully secured by a caretaker placed therein by the Claimant and was only accessible with one entrance. The Claimant also placed a Caveat Emptor in the fence. The Claimant pleads a photographic image of the fence around the land.
13. Claimant avers that the land in dispute is intended by him for the construction of a private building and had commenced plans for the construction by depositing various building materials such as iron rods gravels, laterites worth about Two Million Naira on the site.
16. The Claimant contends that the Defendants invaded the Claimant’s land demolished the fence and affixed their gate and also made away with the signpost conveying the Caveat Emptor the Claimant had affixed on the plot of land.
17.The Claimant avers that the Defendants invaded the Land and have occupied same with the intention of dispossessing the Claimant totally of the land in dispute.
18. The Claimant further avers that all the building materials that he kept on the land such as irons, laterites and gravels for construction purpose were carted away by the defendants.

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19. The Claimant states the Defendants have variously and continually invaded his said land with thugs, and hoodlums.
20. The Claimant avers that when the defendants trespassed on the land in 2008 he instructed his Solicitors, Messrs I. B. Ezeibenne & Co to write a letter of complaint dated 8th May 2008 and addressed to the Acting Managing Director, Federal Housing Authority, (Headquarters) Asokoro Abuja concerning the unlawful activities of the Defendants on his land at Plot 1711, 7th Avenue, Festac Town, Lagos.
21. Claimant avers that when the trespass continued unabatedly he further instructed his solicitors, to write a petition to the Inspector General of Police, Force Headquarters, Abuja on the unlawful activities and trespass by the Defendants. The Claimant hereby pleads his Solicitors’ letters of 8/5/2008 and 20th May 2008 respectively.
22. The Claimant avers that on or about the 22nd day of November, 2010 when he was informed by his friend, Mr. Lanre Tokunbo Dasilva of the activities of the Defendants, he visited the land in dispute only to be challenged and harassed again by the

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Defendants and their thugs who came with cutlass and other forms of dangerous weapons.
23. The Claimant avers that the Defendants will continue their act of trespass on the land in dispute unless permanently restrained by the order of this Honourable Court.

Erection of fence round the plot of land as in this case is evidence of possession; also, possession through a third party such as the respondents witness is evidence of possession vide Ajero v. Ugorji (1999) 10 NWLR (pt. 621) 1 at 14 followingAlatishe v. Sanyaolu (1972) 2 S.C. 97. The signpost fixed in the disputed plot of land by the respondent with caveat emptor to fore-warn and/or scare away potential trespassers is also evidence of possession. So also would be acts like fencing or demarcating the land vide Majekodunmi v. Abina (2002) 3 NWLR (pt. 755) 720 at 747 and Ajero v. Ugorji (supra) at 14. The appellant did not contest these issues in the written case presented by it in this appeal as it did not proffer arguments on the award of damages for trespass and on the acts of possession indicated (supra).

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There was pleading and proof that the respondent was in prior peaceful occupation or possession of the disputed plot of land for a couple of years before the appellant trespassed upon it upon which the Court below awarded general damages of N1.5 million for trespass against the appellant in favour of the respondent and that aspect of the case having not been dislodged in the appeal, the possession of the plot of land by the respondent which is independent of the claim of declaration of title to the plot of land would stand regardless of the failure to establish the claim of title to the plot of land vide Ajero v. Ugorji (supra) at 11 and 16 – 17 unedited thus –
I think the law involved is quite clear. It is that the claim for damages for trespass is not dependent on the claim for a declaration of title as the issues to be determined on the claim for trespass are whether the Plaintiffs had established their actual possession of the land and the Defendants’ trespass on it which are quite separate and independent issues to that on their claim for a declaration of title; while a claim for injunction is also not necessarily bound to fail after a claim for a declaration of title fails, provided

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the area of land in respect of which an injunction is sought is clearly defined and ascertained (see for example Oluwi v. Eniola (supra), Kareem & Ors v. Ogunde & Anor (supra)
It is trite law that where the title of both parties is defective, Court can still find for the Plaintiff in the action for trespass if he establishes possession. See Kareem & Ors. v, Ogunde & Ors. (1972) All NLR (Pt. 1) 73; Adebayo v. Ighodalo (1996) 5 NWLR (Pt. 450) 507 and Akunyili v. Ejidike (1996) 5 NWLR (Pt. 449) 381. Where a plaintiff has established that he is in possession, it is necessary for an order of injunction to be obtained to protect the possession in him. See Christopher Okolo v. Eunice Uzoka (1978) 4 SC. 77. See also Enang v. Adu (1981) 11 – 12 SC. 25 and Adegbite v. Ogunfaolu (1990) 4 NWLR 573 (Pt. 146) at 592 – 593. See also Oluwi v. Eniola (1967) NMLR 339 at 340 for the proposition that the fact that a claim for title fails does not mean that a claim for trespass and injunction must fail. See also Omaha Akpapuna v. Obi Nzeka II (1983) 2 SCLR 1 (1983) 7 SC. 1.

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It is the law and this Court has so held times without number that trespass to the land is actionable at the suit of the person in possession of the land. The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title.”
And as regards a claim for damages for trespass the West African Court of Appeal Awoonor Renner v. Anan (1934-1935) 2 WACA had this to say: –
“A trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing a trespass is to say that the Defendant broke and entered the plaintiffs’ close and did damage, and it follow that in order to maintain an action for trespass the plaintiff must have a present possessory title – an owner of land who is legally entitled to possession not being competent to maintain an action for trespass before entry.
I am therefore in entire agreement with the Appellant that having established possession and acts of trespass on the land in dispute, the Court below ought to have found in their favour damages for trespass and injunction because

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the fact that they failed on a claim for title does not mean that their claim for damage and trespass to the same land must necessarily fail, since possession and trespass have already been established in their favour. See Oluwi v. Eniola (supra) and Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296.
See also Ayinde and Anor. v. Salawu (1989) 3 NWLR (pt. 109) 297 at 317 where the Supreme Court held inter alia that-
The decision of this Court in Oluwi v. Eniola (1967) N.M.L.R. shows clearly that the fact that the plaintiff fails in her claim for title to land does not mean that her claim for damages for trespass to the same land must necessarily fail.
See further Ajukwara and Ors. v. Izuoji and Ors (2002) 6 S.C.N.J. 320 at 328, Adewole v. Dada (2003) 4 NWLR (pt. 810) 369 at 378 379, Ezukwu v. Ukachukwu and Anor. (2004) 17 NWLR (pt. 902) 227 at 259.
The appeal is therefore meritorious in part with respect to the judgment of the Court below on the declaration that the respondent is entitled to a right of occupancy over the disputed plot of land which I hereby allow in part and set aside that part of the judgment only.

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The appeal on trespass and perpetual injunction has no merit and hereby fails and is dismissed in consequence. The effect is that the respondent is still in possession of the disputed plot of land but is not entitled to a right of occupancy over it as his claim of title to the plot of land contained in the first leg of the claim was not established and should have been dismissed by the Court below. Parties to bear their costs.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother JOSEPH SHAGBAOR IKYEGH, JCA., just delivered with which I agree and adopt as mine. I have nothing more to add.

JAMILU YAMMAMA TUKUR,J.C.A.: I have read in draft the lead judgment just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH, I agree with the reasoning and conclusion contained therein. I adopt the judgment as mine with nothing further to add.

 

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Appearances:

Mr. G. C. Anyafulu, with him, Mr C. Nwude
For Appellant(s)

Mr. M. T. Ayegbusi For Respondent(s)

>

 

Appearances

Counsel:
1.Mr. G. C. Anyafulu, with him, Mr C. Nwude for the Appellant.For Appellant

 

AND

2.Mr. M. T. Ayegbusi for the Respondent.For Respondent