SUBERU GIWA & ANOR V. MURAINA AKINLABI & ORS
(2012)LCN/5770(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of December, 2012
CA/I/265/2006
RATIO
LAND LAW: WHAT A PARTY WHO BRINGS AN ACTION FOR TRESPASS MUST PROVE
It is well settled that a party who brings an action for trespass must prove his title to the land in dispute, once such party can show that he is in possession of it at the time the defendants went in without his authority or consent, he is entitled to succeed unless the defendant successfully establishes a better right to possession or title, see EKRETSU V. OYOBEBERE (1992) A NWLR (Pt. 266) 438 at 456. PER CHIDI NWAOMA UWA, J.C.A
LAND LAW: WAYS OF ESTABLISHING TITLE TO LAND
The Supreme Court in the case of IDUDUN V. OKUMAGBA (1976) 9-10 SC 227 set out the five methods by which a claimant may establish title to land. They are:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
A claimant is not required to prove all the five ways but anyone of them would suffice. PER CHIDI NWAOMA UWA, J.C.A
LAND LAW: REQUIREMENTS FOR A PARTY RELYING ON TRADITIONAL HISTORY
it is trite that a party relying on traditional history must plead and prove the following:
(i) Who founded the land;
(ii) In what manner the land was founded; and
(iii) Names and participants of successive owners through whom he claims.
See, NRUAMA v. EBUZOEME (2006) 2 WRN 133 at 158, LINES 20-45, AKINLOYE V. EYINANYA (1968) NMLR 92: MOGAJI V. CADBURY NIG. LTD (1985) 2 NWLR (7) 393; LAWAL V. OLUFOWOBI (1996) 12 SCNJ 376. PER CHIDI NWAOMA UWA, J.C.A
PLEADINGS: DUTY OF THE COURT WHERE EVIDENCE ARE GIVEN IN RESPECT OF FACTS NOT PLEADED
It is trite law that in civil cases, issues are settled on pleadings. The court ought not to allow evidence to be given in respect of facts not pleaded but, if however such evidence is received, the trial court is duty bound to discountenance same because it goes to no issue. See, IDAHOSA V. ORONSAYE (1957) 4 F.S.C. 166; (1959) S.C.N.L.R. 409; NATIONAL INVESTMENT PROPERTIES CO. LTD. V. THOMPSON ORGANIZATION (1969) N.M.LR. 99 at 104; FERDINAND GEORGE V. U.B.A. LTD. (1972) 8-9 S.C. 264 at 275 and ATANDA & ORS V. AJANI & ORS (1989) 20 S.C.C. (PT. II) 511 at 526; (1989) 3 N.W.L.R (Pt. III) 511 at 531. PER CHIDI NWAOMA UWA, J.C.A
EVIDENCE: EFFECT OF AN ADMISSION IN PLEADINGS
The effect of an admission in pleadings as in this case is that a matter of fact which is admitted does not require any proof, such fact is taken as proved and any evidence which is at variance with such pleadings would be discountenanced. See, the cases of ODUMOSU V. AFRICAN CONTINENTAL BANK LTD. (1976) 11 S.C. 55: AKIBU V. ODUNTAN (1992) 2 NWLR (pt. 222) 210. PER CHIDI NWAOMA UWA, J.C.A
JUSTICES
M. B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. SUBERU GIWA
2. LASISI GIWA
(FOR THEMSELVES AND ON BEHALF OF AMULEGBOSAN FAMILY) Appellant(s)
AND
1. MURAINA AKINLABI
2. KARIMU AKINLEYE
3. AMUSA ALI
4. RAIMI SALAMI
(FOR THEMSELVES AND ON BEHALF OF AGIDI FAMILY) Respondent(s)
CHIDI NWAOMA UWA, J.C.A (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Oyo State, presided over by M.A. Owoade J, (as he then was) who entered judgment for the Respondents for trespass and injunction, as plaintiffs, in terms of paragraph 21 of their statement of claim.
The Respondents as plaintiffs claimed against the appellants in a representative capacity as defendants as follows:-
(1) N50,000 damages for trespass committed and still being committed by the defendants on the plaintiffs property situate, lying and being on Agidi Family land at Itutaba, more particularly delineated in the plan to be filed hereafter.
(2) INJUNCTION restraining the defendants by themselves, their agents, servants and or privies or otherwise howsoever from committing further acts of trespass on the land.
Dissatisfied with the judgment the then defendants appealed to this Court vide their Notice of appeal dated 26th May, 2005 containing six (6) grounds of appeal, pages 88-90 of the records of appeal.
The background facts on the appellants’ side are that, the plaintiffs instituted this action on behalf of Agidi Family while the defendants defended it on behalf of Amulegbosan family. Fasasi Giwa who died in course of the trial was substituted by Suberu Giwa now 1st appellant.
The plaintiffs’ case is that the land in dispute belongs to their ancestor Agidi, they claimed their ancestor named Agidi first settled at Oje with Dele but, after consulting Ifa Oracle as to where they were to stay, the Oracle revealed that both Agidi and Dele could not stay together, therefore, while Dele stayed at Oje, Agidi moved further.
The plaintiffs were alleged to have pleaded and given evidence to the effect that their family (Agidi Family) granted the late 1st defendant (Fasasi Giwa) permission to use a stretch of Agidi family land to build a shop. The plaintiffs contended that the defendants’ father was given a piece of land on which he built houses which protruded into the plaintiffs’ land but which they allowed as neighbours.
The plaintiffs instituted this action alleging trespass on portions of the land which they made out they allowed Fasasi Giwa to build shops on and the portion of the land on which the defendants’ family house protruded into plaintiffs land which they said they allowed as good neighbours.
On the defendants’ part, the defendants traced their title to the land in dispute to Dele who granted same to their father named Lawani.
The plaintiffs made out that their father came to Ibadan from Ile-Ogbo near Iwo, and first lived with Akinwumi at Oke Offa and later with one Alfa at Abonde compound when the said Alfa’s house became congested he obtained a grant of land from Dele where the defendants’ family compound was built, called Amulegbosan Family Compound.
The defendants made out that it was the same Dele who granted land to them that granted land to the plaintiffs’ father on which their family compound was built. The defendants contended that the former grantee of the land on which the plaintiffs had their family compound was one Alfa who renounced his grant and vacated the land when Alfa predicted that a legless demon inhabiting the land rolling and recycling thereon would cause mass deaths amongst the occupants of the land.
On the part of the respondents as plaintiffs, they took out the action against the appellants and made out their ancestor, Agidi, migrated from Ijagbo to Ibadan and first settled at Mapo/Oja’ba but later moved away from Mapo/Oja’ba to Oje and later moved further to Itutaba and settled. The land in dispute is said to be at Itutaba. The identity of the land was shown vide Exhibit P1 (Survey plan prepared by the Respondents).
The respondents contended that Giwa’s father sought refuge at Abonde’s house, neighbours to the plaintiff after being expelled from Akinwumi’s house for gross misconduct and was given a piece of land by Abonde on which he built his house.
But the plaintiffs alleged that there is a mosque on their land and that their family granted the first defendant permission for use of the stretch of the family land behind the mosque to build temporary shops.
It was contended that when the plaintiffs discovered that the first defendant started to reconstruct the shops in a permanent form, the plaintiff warned him to stop the construction but the defendant denied the plaintiffs, title to the land and refused to vacate the area.
The appellants formulated four (4) issues for determination of this appeal. They are:-
(i) “Whether respondents’ traditional evidence was conclusive to prove ownership of the land in dispute while that of the appellants was inconclusive.
(ii) Whether the learned trial judge was wrong in law to have treated paragraph 5 of the appellants pleading as corroboration of or support of the respondents claim that the appellant required respondents consent before they could build on the land in dispute.
(iii) Whether in this case learned trial judge misapplied the principle of law laid down in KOJO V. BONSIE II (1957) 1 W.L.R. 1223 at 1226.
(iv) Whether the Respondents case was actionable in trespass.”
The respondents on their part also formulated four (4) issues for the determination of this appeal as follows:-
(1) “Whether traditional history of the Respondents was conclusive to prove ownership of the land in dispute while that of the Appellant was inconclusive.
(2) Whether or not the Appellants pleading in Paragraph 5 of the Statement of Defence corroborated and/or supported the case of the Respondents.
(3) Whether or not the principle of law laid down in KOJO V. BONSIE II (1957) 1 WLR 1223 is applicable to this case.
(4) Whether or not the Respondents case was actionable in trespass.”
Before the appeal was argued, the learned counsel to the respondents M. O. Olumakin Esq. drew our attention to his Notice of Preliminary objection dated and filed on 28th May, 2009, brought pursuant to order 10 (1) of court of Appeal Rules 2007. The argument in respect of the preliminary objection was not incorporated in the respondents, brief even after this fact was brought to the attention of the learned counsel to the respondents.
The said preliminary objection is deemed not to have been argued but rather abandoned, same is hereby struck out.
With the main appeal, the learned counsel to the appellants M. A. Oyafajo Esq. appearing with Kemi Okunogbe (Miss) adopted and relied on his brief of argument dated and filed on 18th March, 2009, but deemed as properly filed and served on 14th January, 2010. Also, his reply brief dated 15th February, 2010 filed on 17th February, 2010.
In the appellants, brief it was the submission of the learned counsel that, the learned trial judge failed to advert his mind to paragraphs 8, 9, 10 and 11 of the statement of claim alongside the evidence before the court in arriving at its decision that the traditional history of the plaintiffs was conclusive in that the plaintiffs traced and proved their title to Agidi their original settler, while it was held that the defendants’ traditional history could not be said to be conclusive. It was argued that from paragraphs 8 – 11 of the statement of claim, Dele the appellants’ grantor was already established at Oje as original settler before Agidi joined him. It was submitted that the evidence led by the respondents was different from their pleadings in respect of the above paragraphs, the evidence of the PW2 was said to be at variance with paragraphs 8 and 9 of the statement of claim, page 29, lines 5-8 of the records we were urged to disregard the evidence as it goes to no issue, reliance was placed on the case ALHAJI SARATU ADELEKE & ORS V. SANUSI IYANDA & ORS (2001) 8 SCM 29 at 39. It was the submission of the learned counsel that the issue of original settler at Oje is very vital as it is the foundation of the respondents’ case and that once they fail to prove their title or origin to the land in dispute their case would crumble. It was contended that the respondents failed to prove that Agidi was the original settler on the land in dispute which makes their case inconclusive.
The learned counsel submitted that Dele was in Oje before Agidi came, and that Agidi could not have had any land in Oje unless with the permission of Dele, and that the Respondents failed to show where Agidi settled when he moved further a bit to settle. It was also argued that the respondents did not show the boundary between Dele, the appellant’s grantor and Agidi, reference was made to paragraph 8 of the statement of defence. Further, that this is necessary from the pleadings and evidence of the respondents, show that Agidi and Dele own land along a common boundary, which also necessitates showing boundary features. It was submitted that the respondent failed to show the boundary between Dele and Agidi in Exhibit P1, reliance was placed on the following cases, AWOTE V. OWODUNNI (NO. 2) (1987) 2 NWLR (pt. 57) 366 at 371 and OKORIE V. UDOM & ORS. (1960) 5 F9C 162.
The appellants denied paragraphs 7, 8, 9 and 10 of the statement of claim vide their paragraphs 7 and 8 of the statement of defence and the evidence of the DW3 (Olaleke Delesolu).
It was argued that the traditional history of the respondents was not conclusive as Agidi’s title through which the respondents traced their title was not established. It was the submission of the learned counsel that traditional evidence would be conclusive where the party raising it traced and proved his title directly to the original owner whose title has been established. While referring to paragraphs 8-11 of the statement of defence, it was submitted that the learned trial judge failed to take advantage of the pleadings and evidence which resulted in the wrong conclusion that the defendants did not plead Lawani as their ancestor which created a gap in the traditional history of the defendants, page 82 of the printed records. It was the submission of the learned counsel that paragraphs 8-10 of the statement of defence revealed the appellants’ ancestor not that it only surfaced in the course of the proceedings as held by the trial court, paragraph 10 was highlighted. It was stressed that the appellants traced their title to Dele the original owner whose title was established by pleading and evidence and therefore proved their traditional history as required by law.
The appellants contended that both parties traced their title to Dele, and reviewed the evidence of DW1 (Suberu Giwa) to the effect that Delesolu granted Lawani land which the appellants live on, which the evidence of the DW3 (Olaleke Delesolu) a member of Delesolu family corroborated to the effect that Delesolu granted land to Amulegbosan, and that the land in dispute belongs to Amulegbosan.
In conclusion on this issue it was argued that the evidence and pleadings of both parties revealed that Dele (appellant’s grantor) had land at Oje where he settled, and as a result that the appellant had succeeded in giving conclusive traditional history, while relying on the case of MORENIKEJI V. ADEGBOSIN (2003) FWLR (pt. 163) 45, we were urged to resolve this issue in favour of the appellants.
On the appellants’ second issue, it was submitted that the learned trial judge misconceived paragraph 5 of both the statement of claim and the statement of defence in hording that the appellants required the consent of the respondents to erect shops on the land in dispute, page 85 of the printed records, lines 15-19. The appellants denied admitting that they required the consent of the respondents to build shops and also denied corroborating the pleadings and evidence of the respondents as to ownership of the land in dispute. It was argued that the decision of the learned trial judge is perverse and cannot stand in view of the clear evidence before the trial court.
It was the submission of the learned counsel that paragraph 5 of the statement of defence is not an admission that they required the consent of the respondents to erect shops on the land and does not amount to corroborating the pleadings and evidence of the respondents as to their ownership of the land in dispute. Reference was made to paragraphs 17, 18, and 19 of the statement of defence as well as the appellants’ response to the above paragraphs in paragraphs 15, 16 and 17 of the statement of defence.
It was the contention of the learned counsel that from the above pleadings, the appellant did not admit that they required any consent of the respondents to build on the land in dispute, the evidence of the DW1 (Suberu Giwa) at page 47A, lines 16-22 was reviewed to the effect that the land in dispute belongs to Amulegbosan family that put tenants on the land in dispute, and collecting rent for over 60 years unchallenged. It was also argued that, had the learned trial judge taken advantage of exhibits P2 and P3 his decision would have been different.
Reliance was placed on the cases of ALHAJI SARATU ADELEKE & ORS V. SANUSI IYANDA & ORS. (2001) SCM 29 at 38. Also, BORNU HOLDINGS LIMITED V. BOGOCO (1971) ALL NLR 325 (REPRINT), ADENIYI V. ADENIYI (1972) 4 SC 10 at 17 and SHODOINDE V. AHMADIYA MOVEMENT IN ISLAM (1983) 2SC NLR 284 at 320 amongst others, in urging us to intervene and set aside the findings of the trial judge said to be perverse. The circumstances under which a judgment could be held to be perverse were reviewed. We were urged to resolve this issue against the respondents.
On the appellants’ third issue, it was submitted that where the court is faced with two conflicting traditional histories, the court would resolve the conflict by reference to recent events to determine which of the two stories is more probable as laid down in the case of KOJO V. BONSIE 1957 1 WLR 1223, See, MORENIKEJI V. ADEGBOSIN (supra).
It was submitted that the learned trial judge did not consider any event in recent years for the respondents’ case to outweigh that of the appellant, reference was made to page 84, lines 25-31 of the printed records. It was argued that events in recent years suggested that the appellants were the owners of the land in dispute, for instance, the evidence of DW1 (Suberu Giwa) to the effect that the land in dispute belonged to Amulegbesan who had let out parts of the land in dispute to traders for a long time, unchallenged until the present suit. DW4 was said to be one of their tenants, who tendered exhibits D21-D212.
It was the contention of the appellants that the fact of their letting out shops to traders on part of the land in dispute and part of their family house being on the land in dispute suggests that the appellants’ family owns the land in dispute. The appellants denied paying any tribute to the respondents for extending their building to the respondents’ family land as claimed by the respondents. We were urged to resolve this issue in favour of the appellants.
On their fourth and last issue, it was submitted by learned counsel that no act of trespass was committed by the appellants, and gave various definitions of what amounts to trespass, reliance was also placed on the following cases amongst others, EGHAREUBA V. ORUONGHAE (2002) FWLR (pt. 121) 1945 at 1967, CHUKWUMA V. IFALOYE (2002) FWLR (pt. 115) 778 at 790 and ADIKE V. OBIARERI (2002) FWLR (pt. 131) (1907) at 1948. PARAGRAPHS 14, 15, 16 and 17 of the statement of claim were reviewed and exhibit P1 to the effect that the pleadings and evidence led by the respondents did not disclose any tort of trespass against the respondents, the evidence of PW2 – Amusa Alli at part 29, lines 27-30 of the records was also reviewed to the effect that the respondent allowed the appellants to extend their house to the portion of Agidi family land, which was allowed by good neighborliness. It was submitted that the pleadings and evidence did not support acts of trespass, the evidence of the PW2, at page 30, lines 5-10 was reviewed where evidence was given that the Agidi family consented to the 1st defendant’s request that his wife be allowed to build a shop on the stretch of land behind the mosque, the land in dispute.
It was submitted that in view of the fact that the respondents pleaded and led evidence that they gave the first original defendant permission to build a shop and appellant’s family to extend their family building to the respondent’s land, damages for trespass was not the appropriate relief to claim against the appellants. We were urged to allow the appeal.
With the respondents’ issue one, it was submitted that traditional evidence is conclusive where the party raising it traced and proved his title directly to the original owner whose title has been established, and that where the party is unable to trace his title directly to the original owner his traditional evidence is said to be inconclusive, reliance was placed on the cases of EKPO V. ITA 11 NLR 68 and MORENIKEJI v. ADEGBOSIN (2003) (supra) at 85. It was argued that in the present case the traditional history of the respondents is conclusive in that the respondent pleaded settlement on the land in dispute in paragraphs 7 – 11 of their statement of claim and proved same in evidence at page 29 of the printed records. It was submitted that the learned trial judge was therefore right to have held that the pleadings and evidence of the respondents especially the evidence of the Pw2 corroborated by the evidence of other respondents showed that Agidi, the respondents’ ancestor was an original settler on the land in dispute. It was also contended by the respondents that the appellants failed to puncture the history as pleaded and proved by the respondents and that the learned trial judge was right to have held that the traditional history of the appellants is inconclusive.
It was the submission of the learned counsel that the respondents’ case in the lower court was trespass and injunction while the respondents challenged the respondents’ ownership, therefore title is in issue. Further, that a party seeking a declaration of title to land must prove his root of title, reliance was placed on the following cases, ALLI v. ALESINLOYE (2000) FWLR (PT. 15) 2610 at 2631-2632, OGUNLEYE V. ONI (1990) 2 NWLR (PT. 135) 745 at 783 AJIBONA V. KOLAWOLE (1996) 10 NWLR (PT. 476) 22 at 32 and ADEWUYI v. ODUKWE (2005) All FWLR (278) 1100 at 1114. It was argued that the appellants failed to satisfy the principles laid down by the Apex court in the above cases and that the traditional history of the appellants is defective, reference was made to paragraph 11 of their statement of defence, where it was pleaded that their grantor was Dele having traced their title to Dele and also the evidence of the Dw1 at page 49 of the records of proceedings where under cross examination the witness agreed that his ancestor stayed with Alfa Abonde when he left Akinwumi’s house and he became their landlord, It was argued that there was no evidence that Abonde evicted or threatened to evict the appellants which made them approach Dele for a grant of land, reference was also made to paragraphs 13 and 14 of the respondents’ statement of claim that the defendants’ father i.e. the appellants came to hibernate with Abonde, Agidi’s neighbour after he left Akinwumi’s house, and was given land by Abonde on which he built houses which protruded into the plaintiff’s land. It was the contention of the respondents that it was not Dele that gave the appellants’ land to build but it was Abonde that did which was said to have been pleaded and proved in evidence by the respondents, reference was made to page 29 of the printed records where the PW2 gave evidence that Abonde gave Amulegbosan a piece of land to build his house. The respondents refuted the appellants’ version of their history that Dele was their grantor, thus challenging the appellants’ root of title.
It was further argued that there was need to prove Dele’s title for the reason that if Dele as a grantor has no title to the land at Itutaba or his title is defective, Dele would not have been able to grant land to the appellants. It was emphasised that Dele’s title as a grantor of land to the appellants was not established in this case. Further, it was submitted that the traditional history pleaded by the appellant left a gap in their history, as contained in paragraph 11 of the statement of defence in that Lawani as the person Dele made the grant of the land to the evidence of the DW3 – Olaleke Delesolu, a member of Delesolu family was said not to have mentioned in his evidence that Delesolu granted land to Lawani even though he mentioned several people Delesolu granted land to, page 52 of the printed records of court. It was submitted that the learned trial judge was right to hold that the traditional history of the appellants is inconclusive.
The respondents’ second issue is as to whether the appellants’ pleading in paragraph 5 of the statement of defence corroborated and/or supported the case of the respondents. Paragraph 5 of the statement of claim and paragraph 5 of the statement of defence. The evidence of the PW2 in support of paragraph 5 of the statement of claim at page 30 of the records was reviewed.
It was submitted that paragraph 5 of the statement of defence is an admission of paragraph 5 of the statement of claim and is inconsistent with the denial by the appellants in paragraphs 15 to 17 and needs no further proof, reliance was placed on the cases of AKANINWO V. NSIRIM (2008) ALL FWLR (PT. 410) 610 at 663, KYARI V. AKALI (2001) FWLR (PT. 60) 1481 at 1501 and YUSUF v. TOLUHI (2002) FWLR (pt. 119) 1430 at 1442. It was argued that the findings of the trial court are perverse and that paragraphs 5 of the statement of defence corroborated and/or supported the case of the respondents.
The respondents’ issue three is as to whether the principle laid down in KOJO V. BONSIE II is applicable. It was the submission of the learned counsel that the above rule was misconceived by the appellants. It was submitted that for the rule to apply there must be evidence of traditional history from both parties which are in conflict one with the other such that the court cannot justifiably prefer one to the other, see OKORO V. DAKORO (2006) ALL FWLR (PT. 336) 201 at 220. It was the contention of the learned counsel that the trial court preferred the traditional history of the respondents in the present case as conclusive and rejected the traditional history of the appellants, same being inconclusive. It was further submitted that acts of ownership and possession cannot be considered where the pleaded title has been proved, see OYEDARA V. KEJI (2005) ALL FWLR (PT. 247) 1583 at 1593. It was the submission of the learned counsel to the respondents that the appellants failed to plead the root of title of their grantor and the name of their ancestor. It was stressed that the rule in KOJO V. BONSIE II does not apply.
The respondents’ fourth issue is as to whether the respondents’ case was actionable in trespass. It was the submission of the learned counsel to the respondents that the respondents’ case is actionable in trespass, more so the respondents having proved better title than the appellants, therefore unjustified encroachment on the land in dispute by the appellants amounts to trespass, reference was made to paragraphs 5 and 17 of the statement of claim and the evidence of PW2 at page 30 of the records of appeal, It was argued that the respondents have been in possession.
It was the contention of the learned counsel to the respondents that the appellants were granted permission to use the land in dispute to build shops but not to construct permanent structures on the land. It was argued that the respondents proved title to the land in dispute, therefore possession reverted back to the respondents, and hence the encroachment by the appellants became trespass, further that the acts of possession of the appellants cannot supersede the original permission granted to them for use of the land. It was submitted that the evidence given by the tenants of the appellants cannot be used to dispossess the respondents of their title.
The respondents confirmed that the area in dispute is per exhibit P1, the survey plan, prepared by the respondents, the area verged purple, as the area alleged to have been trespassed upon by the appellants. It was concluded that the learned trial judge was right to have given judgment in favour of the appellants.
In the appellants’ reply brief, we were urged to discountenance the argument in paragraph 3.08 in respect of issue one, in the respondents’ brief as same is misconceived. It was submitted that the evidence of PW2 Amusa Alli that Agidi and Delesolu left Oja-Oba together to settle at Oje was at variance with their pleadings and goes to no issue.
On their second issue, it was submitted that the entire pleadings of the parties in this case if considered, that it is clear that the appellants did not admit the respondents’ case as contended by the respondents; we were urged to so hold.
On their third issue, it was argued that the respondents cannot make out that the principle in KOJO V. BONSIE II (supra) was not applicable since they did not appeal against its use by the learned trial judge.
The issues raised for determination of this appeal by the respondents are similar to those of the appellants except a slight difference in the wordings. I would utilise those of the appellants in resolving the issues for determination. The action before the trial court was for damages for trespass and injunction for the determination. It is of uttermost importance to understand the fundamental and well settled proposition of law that in a claim for damages, trespass and injunction as in the present case, title to the land in dispute is necessarily in issue. No doubt, in the present case, title is in issue. The respondents as plaintiffs have put the title of the land in issue while the appellants as defendants challenged same; this is clear and evident from the claim and pleadings of the Parties. See, ADESANYA V. OTUEWU & ORS. (1993) 24 N.S.C.C. (PART 1) 59 at 69, 77; 1993 NWLR (PART 270) 414 at 435, 444.
It is well settled that a party who brings an action for trespass must prove his title to the land in dispute, once such party can show that he is in possession of it at the time the defendants went in without his authority or consent, he is entitled to succeed unless the defendant successfully establishes a better right to possession or title, see EKRETSU V. OYOBEBERE (1992) A NWLR (Pt. 266) 438 at 456.
The appellants have challenged the respondents’ ownership of the land in dispute, title being in issue, the question is: Who between the appellants and the respondents has a better title? This brings us to the first issue, The Supreme Court in the case of IDUDUN V. OKUMAGBA (1976) 9-10 SC 227 set out the five methods by which a claimant may establish title to land. They are:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
A claimant is not required to prove all the five ways but anyone of them would suffice. In this case traditional evidence was relied upon to prove their claim, where it is found to be cogent it is enough to sustain their claim, where however, the other party (as in this case) also relied on traditional evidence, it is trite that a party relying on traditional history must plead and prove the following:
(i) Who founded the land;
(ii) In what manner the land was founded; and
(iii) Names and participants of successive owners through whom he claims.
See, NRUAMA v. EBUZOEME (2006) 2 WRN 133 at 158, LINES 20-45, AKINLOYE V. EYINANYA (1968) NMLR 92: MOGAJI V. CADBURY NIG. LTD (1985) 2 NWLR (7) 393; LAWAL V. OLUFOWOBI (1996) 12 SCNJ 376.
The first issue is whether the traditional history of the respondents was conclusive to prove ownership of the land in dispute while that of the appellants was inconclusive.
In paragraphs 7 to 11 of their statement of claim the respondents pleaded settlement on the land in dispute thus:
7. “The plaintiffs aver that their ancestor, Agidi, migrated from Ijagbo to Ibadan and first settled at a place now known as Mapo/Oja’ba.
8. The plaintiffs also aver that Agidi being a great warrior was among the earliest settlers at Mapo/Oja’ba Area, along with other warriors like Fijabi, Iba, Oderinlo with Iba as head.
9. The plaintiffs aver that due to congestion and the attendant problems, Agidi decided to move away from Mapo/Oja’ba Area and settled at Oje with Dele.
10. The plaintiffs aver that Agidi and Dele agreed that they could not stay together at the same location. Both Dele and Agidi consulted Ifa oracle as to where they were to stay.
11. While Dele stayed at Oje, Agidi moved forward a bit and settled.
The PW2 (Amusa Alli) at page 29 of the printed records testified as follows:
“Ayidi came from Ijagbo near Ofa-ile. Ayidi settled at Oja’oba. Many of the other warriors such as Iba Oluyole, Ogunmola, Kure, Fijabi, Oderinlo all settled at Oja-oba.
After sometime Ayidi and Delesolu left Oja-oba for Oje where they took different portions of land, Delesolu stayed at Oje while Ayidi moved a little up words (sic) to the area of the land in dispute. The two of them were warriors and they were advised that they should settle on different portions of land to avoid conflicts.
Delesolu and Ayidi on their own decided on different settlements. In the olden days people may know the future through Ifa divinity which would be a guide. Ifa divinity guided Delesolu and Ayidi to stay differently. Ayidi was also known as Oderinde, Ayidi was his nickname, Ayidi means he was a great warrior who did not care for death. His real name is Oderinde”.
On their part the defendants in paragraph 11 of their statement of defence pleaded their traditional evidence thus:
11. “In further answer to paragraphs 13 and 14 of the statement of claim, defendants state that their father came to Ibadan from Ile-Ogbo near Iwo. Defendants’ father first lived with Akinwumi at Oke-Offa and later with Alfa at Abonde compound. When Alfa’s house became congested, defendants’ father obtained grant of land from Dele and built the defendants’ family compound thereon. The defendants’ family became to be known and addressed as AMULEGBOSAN FAMILY COMPOUND because of Osan Agbalumo trees which adorned the compound”.
The Dw3 (Olaleke Delesolu) testified as follows, at page 57 of the printed records
“I know the Ayidi family, Ayidi’s is compound (sic) is to the south of Amulegbosan. It was Delesolu that also granted land to Ayidi. It is not true as alleged by the plaintiffs that Ayidi settled on his land it was Kure that brought Ayidi to Delesolu for a grant of land. Dele then told Ayidi that there are spirits on the area of land remain (sic) to be granted. And Ayidi nevertheless opted for his present Abonde. In spite of the story as to spirits. The land that Delesolu granted to Ayidi was originally given to Abonde. Abonde abandoned the land because of his claim that spirits were troubling him on the land which Dele eventually granted to Ayidi”
The respondents in paragraph 2 of their reply to the statement of defence averred thus: (page 23 of the records)
“2. In reply to paragraph 8 of the statement of defence the plaintiffs state that Dele did not grant any land to the plaintiff’s father, the true position is as stated in paragraphs 7, 8, 9, 10 and 11 of the statement of claim. The Alfa mentioned in paragraph 8 of the statement of defence was a member of Abonde’s family who granted part of their land to the defendants.”
From the pleadings and evidence on the part of the respondents as plaintiffs, Agidi was the ancestor of the respondents, who was an original settler on the land in dispute through whom they claim and traced their root of title through settlement; see the evidence of the PW2. It is in evidence and pleaded in paragraphs 9, 10 and 11 of the statement of claim that Agidi the respondents’ ancestor migrated from Ijagbo to Ibadan at the Mapo/Oja’ba with others and later moved away and settled at Oje with Dele the appellants’ ancestor. Later, due to the predictions of the Ifa divinity while Dele remained at Oje, Agidi moved further where he settled; the evidence of the PW2 made it clear as well as the evidence of the pw3, the Mogaji of Abonde family, who testified at page 36 of the records, that it was, the defendants’ family that his family granted land to as opposed to the argument of the learned counsel to the appellants that the main issue in contention is who the original settler at the land in dispute was.
Paragraph 3 of the statement of claim averred that the land in dispute is at Itutaba which is a distance from Oje, see paragraphs 10 and 11 reproduced above as to the two locations Dele and Agidi settled.
The appellants made out that it was their ancestor Dele that granted the respondents’ father the land where the respondents’ family compound was built, as rightly argued by the learned counsel to the respondents, the appellants did not prove such grant. The evidence of the DW3 at 52 of the printed records that Kure brought Agidi to Delesolu for a grant, no member of Kure’s family or anywhere else corroborated this piece of evidence, it was therefore not proved. The alleged grant by Delesolu to Agidi who was said to have been accompanied by Kure was also not pleaded. It was also contended by the appellants through the evidence of the DW3 that the land Dele granted to Agidi was originally given to Abonde who abandoned same. This piece of evidence was not pleaded. Evidence cannot hang on its own without pleadings. It is trite law that in civil cases, issues are settled on pleadings. The court ought not to allow evidence to be given in respect of facts not pleaded but, if however such evidence is received, the trial court is duty bound to discountenance same because it goes to no issue. See, IDAHOSA V. ORONSAYE (1957) 4 F.S.C. 166; (1959) S.C.N.L.R. 409; NATIONAL INVESTMENT PROPERTIES CO. LTD. V. THOMPSON ORGANIZATION (1969) N.M.LR. 99 at 104; FERDINAND GEORGE V. U.B.A. LTD. (1972) 8-9 S.C. 264 at 275 and ATANDA & ORS V. AJANI & ORS (1989) 20 S.C.C. (PT. II) 511 at 526; (1989) 3 N.W.L.R (Pt. III) 511 at 531.
No doubt the alleged grant by Delesolu to Agidi in the presence of Kure was not pleaded also the evidence of the DW3 that it was the same land that Dele granted to Agidi that was originally granted to Abonde who was said to have abandoned same. These bits of evidence are not admissible and the facts extracted from these go to no issue, since parties are bound by their pleadings. See, GEORGE V. DOMINION FLOUR MILLS LTD. (1963) 1 S.C.N.L.R. 117 and OJO OSAGIE v. ADONRI (1994) 6 NWLR (PT. 349) 131.
Further in part of paragraph 8 of the appellants’ statement of defence it was pleaded that:
8. “….
Defendants further state that the former grantee of the said land was one Alfa who renounced his grant and vacated the land when Ifa predicted that a legless demon inhabiting the land rolling and reeling thereon, would cause mass deaths amongst the occupants of the land.”
It is clear from the appellants’ pleadings that the former occupant/grantee of the land was one Alfa who renounced his grant and vacated the land contrary to this averment, in paragraph 11 of the appellants’ statement of defence where the appellants’ traditional evidence was pleaded (earlier reproduced in this judgment) the appellants pleaded that their father first lived with Akinwumi at Oke-Offa and later with Alfa at Abonde Compound.
When Alfa’s house became congested, the defendants’ father obtained a grant of land from Dele where the defendants’ built their family compound of Amulegbosan. The appellants traced their title to Dele as their grantor of the land but, Dw1 (Suberu Giwa) under cross examination at page 49 of the printed records testified thus:
It is true that my ancestor stayed with Alfa Abonde when he left Akinwumi’s house. At that time Abonde became our landlord.”
No evidence was led to show when and how the appellants left the land granted to them by Abonde for another grant by Dele.
On their part, the respondents in paragraphs 13 and 14 of their statement of claim pleaded thus:
13. “The plaintiffs further aver that Giwa’s father sought refuge at Abonde’s house after narrating what had happened to him at Akinwumi’s house.
14. The defendant’s father came to hibernate with the Abonde Agidi’s neighbour after he had been expelled from Akinwumi’s house as reprisal for a gross misconduct and he was later given a piece of land on which he built houses which protruded into the plaintiffs land.” (Underlined mine for emphasis)
From the above pleadings, it was Abonde who granted the appellants land on which they built their houses and in the respondents’ reply to the statement of defence earlier reproduced in this judgment, paragraph 2. It is also clear that it was the Abonde family that granted part of their land to the Appellants to build their houses, not Delesolu as claimed by the appellants.
The evidence of the Dw1 in this respect tallies or agrees with the pleadings and evidence led by the respondents that it was Abonde that granted land to the appellants where they built their family compound. In line with the pleadings of the respondents, the PW3 Mogaji of Abonde family at Page 36 of the records had testified under cross examination thus:
“It was only the defendant that my family Abonde gave land to.”
Similarly, the PW2 had testified at Page 29 of the records thus:
“Abonde gave Amulegbosan a piece of land to build his house.”
The respondents through their pleadings and evidence have proved that it was Abonde who granted land to the appellants and not Delesolu.
The appellants strongly traced their root of title to Dele but have not traced how Dele got his land that is, Dele’s root of title, the reason being that Dele’s title to the land in dispute must be established before he could make a valid grant. The pleadings in the appellants’ paragraph 11 averred that the appellants’ father lived with Akinwumi at Oke – Offa and later with Alfa at Abonde’s compound and the defendants’ father was said to have obtained grant of land from Dele where he built the defendants’ family compound which later became known as Amulegbosan.
The appellants did not specifically plead that Lawani their ancestor was the person to whom Dele made the grant. There is no connection between Lawani and Dele. In the case of MORENIKEJI V. ADEGBOSIN (2003) (supra) at page 85, the Apex court held that:
“Traditional evidence is conclusive where the party raising it traced and proved his title directly to the original owner whose title has been established.” (Underlined mine for emphasis)
The catch words are “whose title has been established.” In the present case Dele’s title has to be established before he could make a valid grant. Since the appellants traced their title to Dele, it is not enough to stop at this stage, they must prove how Dele got his land or how he came about having title vested in him. This was not done. The appellants’ failure to prove that Lawani was the person Dele granted the land to, created a gap in the history which makes same inconclusive as rightly argued by the learned counsel to the respondents. It is the law that where a party relies on traditional history, he must plead his root of title, trace the history of his ancestors and lead evidence in proof of same. As I stated earlier in this judgment, the name of Lawani as the grantee of the land by Dele as made out by the appellants was not pleaded. Even though the Dw1 (Suberu Giwa) in his evidence in Chief at page 47A of the printed records went thus:
“I know Lasisi Giwa the 2nd defendant.
Both of us are representing Amulegbosan family in this suit. I know the plaintiffs (representing Agidi family). I know the land in dispute. It is our land. Lawani was the found (sic) of Amulegbosan family. Lawani came to Ibadan from Ile-Igbo. Lawani first stayed with Akinwumi at Oke-Offa Atipe when he first came to Ibadan. Lawani then proceeds (sic) from Akinwumi house to live with Alfa Abonde. From Abonde’s house’ Lawani then approached Delesolu for a grant of land, Delesolu granted Lawani land and we live in the house he built till this day.”
That Lawani was the founder of Amulegbosan was not specifically pleaded in the traditional history of the appellants, same goes to no issue. As argued by the learned respondents’ counsel even though paragraph 10 of the statement of defence mentioned Lawani as the appellants, ancestor but, it was not mentioned as the person to whom the grant was made by Delesolu.
Further, the Dw3 (Olaleke Delesolu) a member of Delesolu family did not give evidence that Delesolu granted any land to Lawani when at page 52 of the records he mentioned names of several people to whom land was granted by Delesoru, this is in line with the submissions of the learned counsel to the respondents to which I am at one with that the traditional history of the appellants is inconclusive. The learned trial judge was therefore right at page 82 of the printed records to hold thus:
“In this case, where the traditional history of the plaintiffs could be said to be conclusive in the sense that the plaintiffs have traced and proved their title to Agidi their original settler, the defendants’ traditional history could not be said to be so conclusive.”
The learned trial judge went further to hold that:
“It would be pertinently observes (sic) that the name “Dele” was first and only mentioned in paragraph 11 of the defendants’ pleadings as their grantor. But then who was this “father of the defendant” referred to in paragraph 11 of the statement of defence? Could it be Giwa, Amulegbosan or Lawani whose name not pleaded but suddenly appeared in the cause of proceedings as the defendants’ ancestor?
Obviously, the land (sic) of pleading of Lawani as defendant’s ancestor creates a gap in the traditional history of the defendants which greatly reduces its cogency, plausibility and conclusiveness.”
The learned trial judge relied on the Supreme Court decision of OKPALA EZEOKONKWO & ORS V. NWAFOR OKEKE & ORS (2002) 5 S.C.N.J. 1, PP. 14-15 where it was held that:
“It is not sufficient for a party who relies for proof of title to land on traditional history to merely plead that he, and before him, his predecessors in title had owned and possessed the land from time beyond human memory.
He must also Plead and Prove:-
(i) Who founded the land?
(ii) How the land was founded and
(iii) Particulars of the intervening owners through whom he claims. See
ANYANWU V. MBARA (1992) 5 NWLR pt. 242 388 at 389, ADEJUMO V. AYANTEGBE V. ADEAGBO (1900) 2 NWLR (Pt. 75) 238.
The learned trial judge’s conclusion cannot be faulted, this is so because the appellants failed to plead satisfactorily or lead evidence to show the root of their title and before them, that of their ancestors having relied on traditional evidence history which on the part of the respondents, they proved through their pleadings and evidence that they had title to the land in dispute having also relied on traditional history.
The respondents successfully pleaded their root of title and the names and history of their ancestors, through settlement on the land in dispute by Agidi who migrated from Ijagbo to Ibadan, settled at Mapo/Oja’ba with other warriors named in paragraph 8 of their statement of claim, Agidi later moved away due to congestion to Oje with Dele, upon the divination of the Ifa Oracle, Dele remained at Oje while Agidi moved further, the evidence of the Pw2 tallied with these pleadings (earlier reviewed in this judgment Agidi, the ancestor of the respondents was shown to be an original settler, therefore the respondents traced their root of title which could not be dislodged by the appellants. See, MOGAJI V. CADBURY NIGERIA LTD. (1985) 2 NWLR (pt. 7) 393 at 423, 431; TOTAL (NIGERIA) LTD. V. WILFRED NWAKO (1978) 5 SC 1 at 12, and ELIAS v. OMO-BARE (1982) 5 S.C. 25 at 57-58 amongst other cases rightly relied upon by the learned trial judge. The learned trial judge was therefore right to have held that the traditional history of the appellants was inconclusive and I so hold.
On the appellants’ second issue as to whether or not the Appellants’ pleading in paragraph 5 of their statement of Defence corroborated and/or supported the case of the Respondents that the appellants required respondents’ consent before they could build on the land in dispute. For a proper resolution of this issue it is apt to reproduce the pleadings of both parties. In the respondents’ statement of claim, paragraph 5, it was pleaded thus:
5. “The cause of the dispute over the land is the shops built by the defendant on the land without the consent of the Plaintiffs and verged green on the Plan. See, ANNEXURE A”
While the appellants’ paragraph 5 of their statement of defence pleaded thus:
5. “Defendants admit paragraph 5 of the statement of claim only to the extent that the cause of the dispute over the land is the shop built by the 1st defendant on the land without the consent of the Plaintiffs”
In support of the plaintiffs’ pleadings above, was the evidence of the pw2 at page 30 of the records when he testified that the land in dispute belongs to the Agidi family who consented to the 1st defendant’s request to build shops on part of the land to which in 1999 the appellants objected to when he started to built permanent structures of blocks on the land without the consent of the respondents’ family. The appellants were also not granted permission to take in tenants on the land in dispute. It is clear from the appellants’ statement of defence, paragraph 5, that they admitted the respondents’ paragraph 5 of their statement of claim in clear words that the cause of action are the shops the appellants built on the land without the consent of the respondents, this admission corroborated the pleadings and evidence of the respondents as being the owners of the land in dispute. The effect of an admission in pleadings as in this case is that a matter of fact which is admitted does not require any proof, such fact is taken as proved and any evidence which is at variance with such pleadings would be discountenanced. See, the cases of ODUMOSU V. AFRICAN CONTINENTAL BANK LTD. (1976) 11 S.C. 55: AKIBU V. ODUNTAN (1992) 2 NWLR (pt. 222) 210.
With the admission of the appellants in paragraph 5 of their statement of defence as to what caused the dispute being their presence on the land in dispute without the permission and/or consent of the respondents, any contrary evidence denying the lack of consent from the respondents before putting up permanent structures and being on the land, goes to no issue, see, BELLO V. FARMERS SUPPLY CO. (1998) 10 NWLR (Pt. 568) 64 at 71.
The learned counsel to the appellants has argued that their paragraph 5 of their statement of defence was not an admission and that the respondents’ paragraph 5 of their statement of claim was denied in paragraphs 15, 16 and 17 of their statement of defence. But, the contrary is the position. As rightly argued by the learned counsel to the respondents, the said paragraphs 15, 16 and 17 of their statement of defence was an answer to the respondents’ paragraphs 17, 18 and 19 of their statement of claim. See, pages 20-21 paragraphs 10.07-10.08 of the appellants’ brief where it was clearly submitted that their paragraphs 15, 16 and 17 was in response to the respondents’ paragraphs 17, 18 and 19 of their statement of claim.
Paragraph 5 of the statement of claim was not included as having been denied in these paragraphs or anywhere else but, out rightly admitted which supported the case of the respondents. The resultant effect is that the learned trial court rightly held (at page 85 of the printed records) in his judgment thus:
“……by their own formal admission that they required the consent of the plaintiffs to erect shops on the land in dispute the defendants have corroborated the pleadings and evidence of the plaintiffs as to their ownership of the land in dispute.”
Paragraph 5 of the appellants’ statement of defence is an admission against interest and I so hold. The trial court finding to this effect is not and cannot be said to be perverse, the finding cannot be faulted.
The appellants’ third issue is whether the learned trial judge misapplied the principle of law laid down in KOJO V. BONSIE II (1957) 1 W.L.R. 1223 at 1226.
The appellants’ complaint under this issue is that the learned trial judge did not apply the test of events in recent years as laid down in the case of KOJO V. BONSIE (supra) in concluding that the respondents’ case outweighed that of the appellants, it had been argued that the learned trial judge ought to have analysed the events considered to arrive at his conclusion. Both learned counsel had rightly submitted that for the rule in KOJO II V. BONSIE to apply there must be two competing traditional histories, which are equally credible. The court would proceed to test which of the two histories is more probable by referring to events in recent years as established by the evidence of the parties and seeing which of the two competing histories is more probable. The respondents’ counsel argued that there are no competing traditional histories that for the rule to apply there must be evidence of traditional history from both parties which are in conflict one with the other such that the court cannot justifiably prefer one to the other. In this case the court preferred the traditional history of the respondents as conclusive and rejected the traditional history of the appellants as it was found to be inconclusive. Therefore the traditional history of the appellants failed, that is their traditional history was rejected by the trial court, the resultant effect is that resort to acts of ownership and possession would not arise. There would also be nothing to anchor acts of ownership upon. The appellants having pleaded, title to the land in dispute but without proof of same. I am at one with the learned counsel to the respondents’ submission in this regard.
It is the law that a party relying on evidence of traditional history must not only plead his root of title, he must show in his pleadings who his ancestors were and how they came to own and possess the land and passed it to him. See, OKOLO V. DAKOLO (2006) 14 NWLR (1000) 401 at 422 F-G; (2006) All FWLR) (pt. 336) 201 at 220; EZE V. ATASIE (2000) 10 NWLR (676) 470; and ALLI V. ALESHINLOYE (2000) 6 NWLR (660) 177.
In the present case the evidence of both parties cannot be said to be in conflict as to necessitate the application of the above rule. The appellants failed to plead and prove the root of title of their grantor and the name of their ancestor as earlier held in this judgment. Since it has a been found that there is no conflict between both histories, the learned trial judge could not have applied the rule and rightly held that even by application of the rule in KOJO II V. BONSIE the facts of events in recent years favoured the respondents (page 85 of the printed records) having considered the pleadings and the totality of the evidence adduced, preferred the plaintiffs’ case to that of the respondents. At page 87 the learned trial judge held thus:
“From the pleadings and the totality of the evidence adduced, the plaintiffs’ case is preferable to that of the defendants”
In my considered but humble opinion, the learned trial judge considered the totality of the evidence led by the appellants and rightly found that the traditional history of the appellants was inconclusive while those of the respondents were conclusive.
The appellants’ fourth and last issue was whether the respondents’ case was actionable in trespass. The appellants contended that the respondents did not prove trespass and that the learned trial judge was wrong to grant the respondents’ claim in terms of trespass and injunction with the award of damages.
Learned counsel to both parties rightly defined trespass to land and what constitutes same, which includes the slightest disturbance of possession of land by a person who cannot show a better right to possession, unlawful entry upon land or any direct or immediate interference with possession of it and/or shown to occur where the person in possession withholds his consent to the entry to the land.
It was the contention of the learned counsel to the appellants that respondents’ pleadings and evidence could not support their claim for trespass and the award of damages and injunction. It was argued that the respondents did not prove that the appellants trespassed unto the area verged purple in Exhibit P1 measuring 573.504M2. The learned counsel to the appellants referred to paragraph 14 of the statement of claim to the effect that the appellants’ father was given a piece of land on which he built houses which protruded into the respondents’ land and the evidence of the PW2 (Amusa Alli) in giving evidence concerning the above paragraph, at page 29. (Lines 27- 30) testified that by good neighborliness his ancestor granted the Amulegbosan permission to extend their building to portions of Agidi family land. The learned counsel agreed in his paragraph 17.03 at page 33 of his brief of argument that the respondents allowed the appellants to extend to portions of Agidi family land. It was argued that there would be trespass on the part of the appellants if there was forceful entry or entry without permission. Reference was made to paragraph 17 of the respondents’ statement of claim. I will reproduce the said paragraph.
17. “Some years ago, the Agidi family granted the 1st defendant permission or use of the stretch of the family land behind the Mosque and facing Akinloye Street, Itutaba, Ibadan to build temporary shop”.
(underlined mine for emphasis)
I agree with the learned counsel to the appellants that Agidi family (respondents’ family) granted the land on which the shop in question was built to the original 1st defendant. The evidence of the PW2 at page 30 of the records also established this (lines 5-10), that is, that the land in dispute behind the mosque belongings to the Agidi family, but Agidi family at a time consented to the request of the 1st defendant allowing his wife to build a shop on the land. The issue here is not the building of the shop by the 1st defendant’s wife. Paragraph 17 of the statement of claim was specific, that is, the permission was granted the defendants to build temporary shops and as earlier shown to extend their houses.
The dispute arose when the appellants exceeded the permission to build temporary shops and built permanent structures. The pleadings and evidence show that the respondents were in possession from the totality of the entire case. See, also paragraphs 5 and 17 of the respondents’ statement of claim reproduced at page 25 of the respondents’ brief of argument.
The challenge of the appellants on the land arose only when they started building permanent structures. The respondents having proved title, possession reverts to the respondents thus any unjustified encroachment or incursion amounted to trespass.
The land was granted to the appellants was for a limited purpose and would not be converted into an absolute ownership adverse to the interest of the grantor and cannot be properly used against the true owner to challenge his title, See, IGE V. FAGBOHUN (2002) FWLR (Part 91) 1545 at 1567.
From the totality of the evidence led by the parties the learned trial judge’s findings cannot be faulted in granting the claims of the respondents.
In conclusion, I hold that the appeal lacks merit, same is hereby dismissed, The judgment of the High Court of Oyo State, of M.A. Owoade, J. (as he then was) in suit No, I/490/2000 delivered on 29th April, 2005 granting the respondents’ claims is hereby affirmed.
I award costs of N30, 000.00 (Thirty thousand Naira) to the respondents.
MONICA B. DONGBAN-MENSEM, J.C.A.: I agree with the lead judgment prepared by my learned brother, Uwa, J.C.A.
The Appellants had admitted that they were the tenants when in their pleadings; they stated that they required the consent of the Respondents to build shops on the land. Why would the owners of a land require the permission of his tenant to develop his land?
The reference to the rule in Kojo v. Bonsie by the learned trial Judge shows that his Lordship did not believe the traditional history put up by the Appellants. His Lordship stated thus:
“… even by an application of the rule in Kojo II v. Bonsie and Anor. the facts of events in recent years are clearly in favour of the plaintiffs in this case.
What would have been the nearest to a defence for the Defendants from the facts and circumstances of this case would have been the defence of laches and acquiescence.
However, and as was rightly pointed out by the learned counsel for the Plaintiffs’ such equitable defences must be pleaded with full particulars.”
This appeal is without merit and is dismissed. The judgment of the learned trial Judge is hereby affirmed.
I adopt the order as to cost as in the lead judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: Paragraph 17 of the statement of claim was unequivocal that the defendants were granted permission by the grantor to build temporary shops on part of the disputed piece of land. The evidence on record disclosed that the, appellants exceeded the permission by erecting permanent structures on the disputed land. The grant was therefore for temporary occupation of the disputed land. And by extending the temporary grant to permanent settlement on the land, the appellants’ interest in the land became adverse to the grantor’s ownership of the land.
The clearest evidence of the temporary grant transforming into a permanent grant with the consent and approval of the respondents qua grantor was not forthcoming from the appellants. The court below was therefore right in the conclusion it reached in the case – See Obasi and Ors. v. Oti and Anor. (1967) N.M.L.R. 74 at 75, where the Supreme Court held that –
“In our experience an outright grant of land to live on is not uncommon; an outright grant of land for cultivation is unusual but not unheard of; but an outright grant of land which is not required either for living on or for cultivation is so exceptional that it could only he proved by the clearest possible evidence and should never be presumed”.
(My emphasis)
I would agree with the thorough judgment of my learned brother, Chidi Nwaoma Uwan J.C.A., that the appeal lacks merit. I too dismiss it and affirm the judgment of the court below with N30, 000 costs against the appellants.
Appearances
M. A. Oyafajo Esq. with Kemi Okunogbe (Miss)For Appellant
AND
M. O. Olumakin Esq.For Respondent
