TUNDE ADINLEWA & ANOR v. MRS. FUNMILAYO BAMIDELE & ANOR (2019)

TUNDE ADINLEWA & ANOR v. MRS. FUNMILAYO BAMIDELE & ANOR

(2019)LCN/13354(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of May, 2019

CA/AK/218/2017

RATIO

LAND LAW: DECLARATION OF TITLE TO LAND : DISMISSAL OF PLAINTIFF’S CLAIM DOES NOT AUTOMATICALLY MAKE THE DEFENDANT WIN

LAND LAW: TITLE IS AUTOMATICALLY PUT TO ISSUE WHERE THE DEFENDANT CLAIMS OWNERSHIP

It is the law that where the defendant asserts or claims ownership of the land in dispute, title thereto is automatically put in issue. This was the holding of the Supreme Court in the case of UDIH V IDEMUDIA (1998) 4 NWLR, PT 545, 231 where Kutigi, JSC held that …… Once a defendant claims to be the owner of the land in dispute, as in this case, title to it is put in issue and in order to succeed, the plaintiff must show a better title than that of the defendant …… See also the decision of this Court in YUSUF V OGUNOLA (2015) LPELR- 41728 (CA).PER PATRICIA AJUMA MAHMOUD, J.C.A.

LAND LAW: THE MERE ABSENCE OF A COUNTER-CLAIM WILL NOT DIMINISH THE OBLIGATION OF THE DEFENDANT TO PROVE OWNERSHIP

The mere absence of a counter-claim as in this case will not diminish the obligation of the defendant to prove all the assertions of ownership that were made in their pleadings. See the cases of OMONIYI V UBA LTD (2001) 5 NWLR, PT 706, 240 and ANUKAM V ANUKAM (2008) AFWLR, PT 413, 1254.PER PATRICIA AJUMA MAHMOUD, J.C.A.

LAND LAW: DECLARATION OF TITLE: WHERE THERE ARE COMPETING CLAIMS TO TITLE

It is the law that where there are competing claims to title such as in the instant case, once the plaintiff succeeds in tracing his title to a person whose title has been established, the onus shifts to the defendant to prove a better title. See AMINU V OGUNYEBI & ANOR (2003) LPELR 7195(CA) where this Court per Amaizu JCA held that:-
It is now settled that where there are two competing claims of ownership of a parcel of land and each contestant is relying on acts of ownership and actual possession, anyone of them who can prove title is in actual possession and the other a trespasser.
See also the cases of this Court in KAMBAI ESQ V JEMAA LOCAL GOVERNMENT COUNCIL (2017) LPELR 43162 (CA) and NDAH V WAYA (2017) LPELR 43357 (CA).PER PATRICIA AJUMA MAHMOUD, J.C.A.

LAND LAW: DECLARATION OF TITLE TO LAND: DUTY OF THE COURT WHEN TRADITIONAL EVIDENCE IS IN CONFLICT OR INCONCLUSIVE

In the case of ELEGUSHI V OSENI (2005) 14 NWLR, PT 945, 348, the Supreme Court per Onu, JSC held that where the traditional history/evidence of the parties in a land matter are in conflict or inconclusive, the Court should examine the acts of ownership/possession done by either party in recent times in relation to the land in dispute and see which of the two competing histories is more probable. See also KENON V TEKAM (2001) 14 NWLR, PT 732, 12; KYARI V ALKALI (2001) 11 NWLR, PT 724, 412 AND ODUNUKWE V OFOMATA (2011) AFWLR, PT 568, 827 AT 848 PARAS A-B which followed the rule in KOJO II V BONSIE & ANOR (1975) 1 WLR, 1223.PER PATRICIA AJUMA MAHMOUD, J.C.A.

JUDGMENT: PERVERSE JUDGMENTS MUST BE SET ASIDE

See: UDENGWU V UZUEGBU & ORS (2003) LPELR- 3293 (SC) and EDILCON (NIG) LTD V UBA PLC (2017) LPELR- 42342. A perverse judgment cannot be allowed to stand. It is liable to be set aside. See UDENGWU V UZUEGBU (SUPRA) and AGUGU V BUHARI & ANOR (2016) LPELR- 41617 (CA).PER PATRICIA AJUMA MAHMOUD, J.C.A.

JUSTICES:

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

1. TUNDE ADINLEWA
2. MRS. OLUWASUNFUNMI OGBAOMOLA
(Suing for themselves and on behalf of the entire family of Pa Oyinbo Adinlewa) – Appellant(s)

AND

1. MRS. FUNMILAYO BAMIDELE
2. MRS. IYABO AKANDE – Respondent(s)

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The claimants/appellants by a Writ of Summons dated the 14th March, 2011 and filed on the 23/03/2011 for themselves and on behalf of the entire Pa Oyinbo Adinlewa Family, Akure, claimed against the defendants jointly and severally as follows:-
i. A DECLARATION that the plaintiffs are entitled to a Statutory Right of Occupancy over that building, and the adjoining vacant land, situate, lying, being at Ayegunle Street, Akure which is more particularly shown on Survey Plan with No. JAN/OD/846/88 and Building Plan with No. AK A.T.P.O REGD. 741/77 and approved on the 23rd of December, 1988.
The sum of N500, 000 (The sum of Five Hundred Thousand Naira) only being general damages against the Defendants for the acts of trespass committed on the plaintiffs building, and the adjoining vacant land, situate, lying, being at Ayegunle Street, Akure which is more particularly shown on Survey Plan with No. JAN/OD/846/88 and Building Plan with No. AK A.T.P.O. REGD. 741/77 and approved on the 23rd of December, 1988.
ii. An order of PERPETUAL INJUNCTION

restraining the Defendants whether by themselves or through their agents, servants or privies from further trespassing on the plaintiffs building and the adjoining vacant land, situate, lying, being at Ayegunle Street, Akure which is more particularly shown on Survey Plan with No. JAN/OD/846/88 and Building Plan with No. AK A.T.P.O. REGD. 741/77 and approved on the 23rd of December, 1988.

In support of their claim the claimants filed their statement of claim on the 2nd of March, 2012. In it the claimants averred that they are the children of late Pa Oyinbo Adinlewa who was of the same parents with Aderonke Adeniyan, mother of the defendants. That Pa Adinlewa and late Aina Adinlewa had four children: Aderonke Adeniyan; Oyinbo Adeinlewa, Olofido Adinlewa and Ojo Adinlewa. That Pa Adinlewa left Akure for Lagos, leaving his wives to fend for themselves. The claimants averred that Aderonke Adeniyan, mother of the defendants was the first daughter of late Mama Aina Adinlewa while late Oyinbo Adinlewa, father of the claimants was her immediate younger brother. That Oyinbo Adinlewa was a farmer and at some point approached his mother that he wanted to buy

land to build a house for himself and the mother. That the mother took the young man to Chief Lisa of Akure, then Late Chief Elegan Amudipe, a cousin to Mama Aina Adinlewa. That impressed with the drive of the young man, late Chief Elegan Amudipe gave Oyinbo Adinlewa the land free of charge through his mother. The claimants also averred that the late Chief Elegan Amudipe was given traditional wine and five kolanuts. That late Mama Aina and Late Pa Oyinbo were led to the land at Ilesha Street Akure, but now known and called Ayegunle Street Akure, the location of the plot. That in 1936, late Pa Oyinbo erected two rooms of thatched roofing for his mother and himself. That a storm destroyed the roof of the house in 1949 when late Pa Oyinbo repaired the place and added four rooms to make it a total of six rooms. That thirteen years thereafter Pa Oyinbo obtained a building plan from the Akure Local Authority and executed by the then Deji of Akure, HRH Oba Afunbiowo. That Pa Oyinbo added four more rooms to the building in 1988 bringing the total to ten. The claimants further averred that in the same year, 1988, Pa Oyinbo got another building plan and had the land

surveyed by a licensed surveyor. That the property was duly approved by the Ministry of Land and Housing, Town Planning Division Akure. That Pa Oyinbo took possession of the land in 1936 and lived there till his death in 2010. That before his death his mother had died and he buried her on the land as her husband had no landed property where she could be buried. That upon his demise in 2010, Pa Oyinbo was buried in the shop in the house. That it was their refusal to heed to the request of the defendants to use the shop to sell their yams that made them to start laying claim to the property.

In proof of their case, the claimants gave evidence as CW1, CW2, CW3 and CW4. They tendered three documents.

The defendants on their part defended the claim in their joint amended statement of defence filed on the 25/11/2015. In it they averred that they also got their title to the land in dispute from Chief Lisa of Akure, then Chief Elegan Amudipe. That their late mother became the owner of the land about 100 years ago when the original owner High Chief Lisa Elagan Amudipe allocated same to her. That their deceased mother Aderonke Adeniyan offered to buy the land

from Lisa Elegan but he gave it to her as a gift. That Madam Aderonke used her betrothal money (Owo Ibere) to commence building on the land and erected 4 room mud building. That Madam Aderonke invited her father, Mother, brothers and sisters including the plaintiffs father to go and live in the house with her and take care of it. That Madam Aderonke later got married and left her relatives in the house, including the plaintiffs father. That the defendants grandfather added two more rooms to the already existing four rooms. The defendants also averred that when their grandfather/mother died, they were buried on the land. That the claimants father constructed additional 4 rooms to the existing six rooms in the house and was challenged by the defendants mother. That Pa Oyinbo begged Madam Aderonke with a pledge not to claim ownership of the land. That unknown to Madam Aderonke, Pa Oyinbo had a survey and building plan. The defendants further averred that sometime in late 2010/2011, when the claimants started laying claim to the land as sole owner, they reported the matter to the Deji of Akure who constituted a

committee to hear the matter. That this committee gave a decision which the claimants refused to abide by after submitting themselves to the jurisdiction of the committee.
Whereof the defendants urged the Court to dismiss the claim for lacking in merit.
In proof of their defence, the defendants called three witnesses and tendered one exhibit, exhibit D1.

At the conclusion of hearing the learned trial judge, Justice S. Adesola Sidiq of the Ondo State High Court sitting at Akure in his judgment delivered on the 30th May, 2017 dismissed the Plaintiffs claim. It is against this judgment that the appellant approached this Court vide a notice of appeal filed on the 07/08/2017 and containing three grounds:-
1. The learned trial judge erred in law when he held that the burden of proof of the root of title to the land in dispute did not shift to the Respondent going by their amended statement of defence.
PARTICUALRS OF ERROR:
(a) That the trial judge did not consider adequately the claimants root of title to the building and the vacant land in concluding at the fact that it is inconclusive.

(b) The claimant need not prove the title when the respondents have admitted or confirmed root of the land as pleaded by the claimants in paragraphs 4 and 5 of the statement of defence.
(c) The Respondent did not challenge the root of title they actually admitted in their paragraphs 4, 5 and 6 respectively
2. That the learned trial judge erred in law in dismissing all the reliefs sought for by the claimants in the suit.
PARTICULARS OF ERROR:
(a) That the trial judge evaluation of evidence erroneously state that the fact of this case is on all fours with the case of Yusuf v Adegoke (2007) II NWLR (Pt 1045) 332.
(b) That the learned trial judge did not consider the claimants case adequately as being on all fours with the case of Anukam v Anukam (2008) ALL FWLR (pt 413) 1255 at 1267-1269 paras G-F.
(c) That the learned trial judge erroneously rejected the claimants exhibits C1, C2, and C3 which are evidence of act of possession.
(d) The trial learned judge wrongly took the evidence of DW1 when he cannot give evidence than to tender document in the SUBPEONA DUCES TECUM.
3. The judgment is against the weight of evidence.

In prosecuting the appeal, the appellant filed their brief on the 13/11/2017. In arguing the appeal, Mr. S. A. Ayesa of counsel for the appellant adopted the brief as his legal arguments in support of the appeal. In it counsel formulated three issues for determination by the Court:-
1) Whether the learned trial judge was correct in its decision when he held that the burden of proof of the root of title to the land in dispute is inconclusive and did not shift to the respondent going by the amended statement of defence in paragraphs 3, 4, 5 and 6 also in paragraphs 4, 5, 6 and 7 of the statement on oath of the defendants.
2) Whether the learned trial judge was right in dismissing all the reliefs of the claimants when he erroneously held that the case at hand is on all fours with the case of Yusuf v Adegoke (2007) II NWLR (pt 1045) 332 which can be distinguished from the case of appellant but on all fours with Anukam V Anukam (2008) All FWLR (pt 413) 1255.
3) Whether the trial judge was right in holding that exhibits C1, C2, and C3 have no probative evidential value when in actual facts, the exhibits prove

possession of the house and adjoining land in dispute.

On issue (1) Mr. Ayesa submitted, relying on IDUNDUN V OKUMAGBA (1976) VOL 10 NSCC, 446 to show the five ways to prove title to land:-
a) By traditional evidence;
b) By production of document;
c) By acts of long possession;
d) By acts of person claiming land such as selling, leasing or renting out and
e) By proof of possession of connected or adjacent land.

While conceding that in a claim for declaration of title to land the claimants have to succeed on the strength of their case, counsel relied on the case of ANUKAM V ANUKAM (2008) AFWLR, PT 413, 1255 to submit that where the evidence of the defendants support the case of the claimant they are entitled to rely on it. That since the respondent claimed to have gotten their root of title from the Lisa of Akure like the appellant, they no longer needed to prove root of title. Counsel also contended that the respondents who claimed that the land in dispute belongs to their late Mother, Madam Aderonke have never been in possession of the land. That their claim that their late Mother used her

betrothal or dowry money to build the house cannot be correct as dowry is paid to the family of the betrothed and never to the woman herself. That on the contrary the claimants have shown that they had been in possession of the land in dispute since 1936 and in addition produced Exhibits C1, C2 and C3. That having claimed ownership of the house in their pleadings, the onus of proof shifted to them. Counsel cited a number of authorities in support of this proposition as contained in their brief. Counsel further submitted that the learned trial judge misdirected himself when without properly evaluating the evidence found that the pleaded root of title had not been proved and converted the acts of ownership and possession proved by the claimants into acts of trespass. He urged the Court to resolve this issue in favour of the appellant.

On issue (2), Mr Ayesa submitted that the appellants case is on all fours with ANUKAM V ANUKAM (SUPRA) and not YUSUF V ADEGOKE (2007) 11 NWLR, PT 1045, 332 as wrongly held by the trial Court. That the defendants having admitted that their root of title is from the same source as the claimants the fact is deemed proved

and required no further proof. Counsel referred to the case of WAEC V OSHIONEBO (2007) AFWLR, PT 370, 1501 AT 1561 PARA C. Counsel also contended that both parties having relied on traditional evidence in proof of their title, the trial judge was misdirected when he failed to weigh the preponderance of evidence on the imaginary scale to determine which of the two was weightier. He referred to the case of ODUNUKWE V OFOMATA (2011) AFWLR, PT 568, 827 AT 861 PARAS C-D. Counsel again enjoined the Court to resolve this issue in favour of the appellant.

On issue (3) Mr. Ayese referred to the case ofMOMOH V UMORU (2011) 15 NWLR, PT 1270, 217 to contend that the trial Court wrongly held that the documentary evidence they tendered lacked probative value. That since they and the respondents both relied on traditional evidence, the Court should have considered the exhibits as evidence of acts of recent possession to resolve title in their favour. Counsel urged the Court to allow the appeal and set aside the judgment of the lower Court and give judgment to them.

Mr. Olagbenga Daniel Olawale of counsel settled the brief of the respondent which was filed on the

26/02/2019. In adopting the brief as their legal arguments in opposition to the appeal, Ms T. O. Agbomola raised a sole issue for determination thus:-
Whether the appellants proved through credible evidence their case and therefore entitled to a declaration of title over the land in dispute.

After copying copiously from the brief of both parties counsel conceded that parties joined issues, but contended that there is no admission of the claimants root of title by the defendants as argued by the appellants counsel. That the claimants/appellants led disjointed, contradictory and unreliable evidence in an attempt at discharging the onus placed on them by law, which onus they failed to discharge. That where as in this case, the plaintiffs fail to prove their claim against the defendant, the proper order to make is one of dismissal. She urged the Court to dismiss the appeal for lacking in merit.

I think the sole issue raised by the respondents can be subsumed in the issues raised by the appellant, particularly issues (1) & (2). I am however of the opinion that this appeal can be effectively decided on this sole

broad issue:
whether from the state of pleadings and the evidence, the learned trial judge properly considered the applicable law, in dismissing the appellants claims in the Court below.

The law is well settled on a number of issues as it pertains to claims for declaration of title to land. One of such well laid down by the Supreme Court in the case of ADONE & 2 ORS V IKEBUDU & 5 ORS (2001) 14 NWLR, PT 733, 385 per Ayoola JSC is that the dismissal of a plaintiffs claim for declaration of title does not result in the award of title to the defendants who did not file a counter claim. I must pause here to observe that I find this rule rather curious. For instance in the instant case, the appellants appeal was dismissed and the defendants did not file a counter claim. What stops the defendants in the lower Court from taking possession of the land since the appellants claim has been dismissed. After all the appellants are not in any position to challenge them having had the claim against them dismissed. This not being a live issue in this appeal, I will not dwell on it.

What is apparent in this case is

whether title has been put in issue, what the Court should do and whether it did so. It will also be necessary to determine the position of the law where as in this case there are competing claims to title of the land in question. It is the law that where the defendant asserts or claims ownership of the land in dispute, title thereto is automatically put in issue. This was the holding of the Supreme Court in the case of UDIH V IDEMUDIA (1998) 4 NWLR, PT 545, 231 where Kutigi, JSC held that …… Once a defendant claims to be the owner of the land in dispute, as in this case, title to it is put in issue and in order to succeed, the plaintiff must show a better title than that of the defendant …… See also the decision of this Court in YUSUF V OGUNOLA (2015) LPELR- 41728 (CA). There is no doubt from the pleadings of the defendants in the Court below that they claim to be the owners of the property in dispute. To drive home this point, I reproduce paras 3-7 of the amended statement of defence as follows:-
3. The defendants avers that their deceased mother, Aderonke Adeniyan (Nee Adinlewa) was the bonafide

owner of all that piece or parcel of land along Ajegunle Street, off Arakale Road, Akure which is bounded as follows:-
1st side ————- Chief William Obeles land
2nd side ————- Sammy’s house Pa Ojomokoruf (sic) land/New Sammy’s
3rd side ———— Road
4th side ———— Stream
4. 2nd defendant avers that her said deceased mother Aderonke Adeniyan became owner of the parcel of land about 100 years ago when the original owner High Chief Lisa Elegan Amudipe allocated same to her.
5. Defendants aver that her deceased mother Aderonke Adeniyan offered to buy the land from Lisa Elegan Amudipe but the latter gave the land to her free of charge. But late madam Aderonke Adeniyan paid the traditional palm wine and kolanuts to Lisa.
6. Aderonke Adeniyan (Nee Adinlewa) who was at that time a spinster used her bethrotal money (owoIbere) to commence building work on the land. The bethrotal money was handed over to Pa Osho, Aderonkes uncle who in turn handed it over to Adronkes mother, Aina. The money was used to bild (sic) house on the land.

7. Aderonke Adeniyan took immediate possession of the land and erected 4 room mud building thereon.

This means that the defendants also had a burden to proof title. It was then left for the trial judge to put the two pieces of evidence on the imaginary scale to see which was weightier. This position is fortified by the legal principle that where a defendant introduces in his pleadings issues that would convert him to a claimant/plaintiff, the burden of proof shifts to him. In other words, the principle that he who asserts must prove comes into play. The mere absence of a counter-claim as in this case will not diminish the obligation of the defendant to prove all the assertions of ownership that were made in their pleadings. See the cases of OMONIYI V UBA LTD (2001) 5 NWLR, PT 706, 240 and ANUKAM V ANUKAM (2008) AFWLR, PT 413, 1254. I hold therefore that it was wrong in law for the learned trial judge to have behaved throughout the proceedings as if the defendants did not have any onus of proof in this matter simply because they did not file a counter claim. I therefore uphold the submissions of the learned counsel to the appellant when he submitted that, the

learned trial judge erred in law when he said, the onus of proof does not shift until the person asserting has discharged the duty placed on him by law.

The appellants pleaded and led evidence of traditional history to the effect that their father got the land as a grant from the Lisa of Akure, Late Chief Elegan Amudipe. This is also the contention of the respondents who pleaded and led evidence to show that their mother too got the land as a grant from Late Chief Elegan Amudipe. The appellants father was the direct younger brother of the respondents mother. In the case of THOMPSON V AROWOLO (2003) 7 NWLR PT 818163 AT 227 PARAS E-F the Supreme Court per Ogundare JSC held that where the plaintiffs claim is based on ownership by grant, he does not have to prove additional acts of ownership extending over a long time and positive period, enough to warrant the inference that he is the exclusive owner. Similarly, as held in the case of AYANWALE V ODUSAMI (2011) 12 SC, PT III, 59, a party does not need to prove the title of his vendor (and I dare add grantor) except where it has become an issue. See also ADESANYA V OTUEWU (1993) 1 SCNJ, 77. Both the respondents and the appellants trace their title to the Lisa of Akure, Late Chief Elegan Amudipe. It follows logically that the title of the appellants grantor was

not in issue. The learned trial judge in my view therefore was in grave error when he held that the traditional evidence of the claimant was inconclusive leading to a wrongful dismissal of the claim.

As it is and in law, assuming without conceding that the traditional evidence led by the appellants was inconclusive as held by the trial judge, the proper course of action is not a dismissal of the claim. In the case of ELEGUSHI V OSENI (2005) 14 NWLR, PT 945, 348, the Supreme Court per Onu, JSC held that where the traditional history/evidence of the parties in a land matter are in conflict or inconclusive, the Court should examine the acts of ownership/possession done by either party in recent times in relation to the land in dispute and see which of the two competing histories is more probable. See also KENON V TEKAM (2001) 14 NWLR, PT 732, 12; KYARI V ALKALI (2001) 11 NWLR, PT 724, 412 AND ODUNUKWE V OFOMATA (2011) AFWLR, PT 568, 827 AT 848 PARAS A-B which followed the rule in KOJO II V BONSIE & ANOR (1975) 1 WLR, 1223. In the instant case the appellants acts of long and undisputable possession of the land in dispute since 1936 when their late

father Pa Oyinbo Adinlewa was granted the land and settled thereon is far more superior to the rather fancy fairy tale story of the respondents that their mother the original grantee built the house. A sober reflection of the evidence would support this position. Had the learned trial judge properly evaluated the evidence he would have discovered that the story of the respondents is more made up than factual. In one breath the respondents alleged that their late mother used her dowry to build the first house on the land. In another breath they said she lived in the house that she built until she got married. The two positions seem diametrically opposed to each other. Curiously the respondents had no answer and they gave none to the contention of the appellant that in Yoruba custom the betrothal money or dowry is never given to the woman herself but to the family. How then could she have used it to build a house. The appellants father lived in that house from 1936 continuously until 2010 when he died and was buried there in the house. His children are still living in the house till date. The respondents never led any claim to ever being in possession of

the subject property or their late mother before then. Of importance is the fact that the appellants also tendered three documents in evidence. These were admitted and marked as Exhibits C1, C2 and C3. These are proposed building plan of the appellants father at Ilisa street Akure dated 17/01/1949; Approved plan dated 23/12/1988 and plan showing property of Mr. Oyinbo Adinlewa dated 08/11/1988 respectively. At pages 200-201 of the printed records the learned trial judge found as follows:
Let me quickly say here that exhibits C1, C2 and C3 are not title documents and cannot transfer the land in dispute to the claimants. See: Ogbahon v Registered Trustees of Christs Chosen Church of God (2002) 1 NWLR (pt. 749) page 675 CA at page 707 Paras E-F per Ibiyeye JCA. Exhibits C1, C2 and C3 therefore have no probative evidential value to the case of the claimants and I so hold.
The learned trial judge is clearly misconceived to hold that just because the exhibits are not title documents and cannot transfer the land in dispute to the claimants they

have no probative evidential value to the case of the claimants. The exhibits if nothing else are documents which prove possession or acts of ownership as against the respondents. In that regard they are not completely devoid of probative value as wrongly held by the trial Court.

I should mention Exhibit D tendered by the respondents. With all due respect to the learned trial judge, this is the document that has no probative value and should have been discountenanced. The respondents have set up a completely different case therein than in the trial Court. Before the committee the respondents alleged that the land in dispute belongs to their grandmother, Madam Aina Adinlewa, also grandmother to the appellants, it is completely irrelevant to this case in which they are claiming that their mother is the original grantee of the land, not that she inherited it jointly with their grandmother. Furthermore, what is the status and nature of Exhibit D? Was it a customary arbitration? If yes why didn’t the respondents take it before the lower Court to be enforced? Could it be because the necessary inference is that they have no real claim to the land in

question and this is simply a vendetta against the appellant for refusing to give them the shop where they buried their father to use in selling their yams as contended by the appellant?

While this poser remains a conjecture, it is obvious from all my findings in this judgment that the decision of the lower Court runs contrary to the evidence before the Court. The Court took into account matters which it ought not to have taken into account or shut its eyes to the obvious, all of which have occasioned a miscarriage of justice against the appellant. In other words the judgment is perverse. See: UDENGWU V UZUEGBU & ORS (2003) LPELR- 3293 (SC) and EDILCON (NIG) LTD V UBA PLC (2017) LPELR- 42342. A perverse judgment cannot be allowed to stand. It is liable to be set aside. See UDENGWU V UZUEGBU (SUPRA) and AGUGU V BUHARI & ANOR (2016) LPELR- 41617 (CA).

Consequently I uphold the submissions of learned counsel to the appellant and resolve the sole issue formulated by the Court in favour of the appellant. Consequently this appeal succeeds and I allow it. The judgment of Hon. Justice S. Adesola Sidiq of the Ondo State High

Court sitting in Akure and delivered on the 30/05/2017 is hereby set aside. In its place I hereby enter judgment in favour of the appellants/claimants as claimed as follows:-
(a) A declaration that Claimants are entitled to a Statutory Right of Occupancy over that building, and the adjoining vacant land behind the building, situate, lying and being at No 19 Ayegunle Street, Akure which is formerly known and called ILISA STREET Akure, which is more particularly shown on survey plan No JAA/OD/846/88 with beacon No AM 8523, AM 8524, AM 8525 and AM 8526 and building plan with No AK A.T.P.O. REGD 741/77 and approved on 23rd December 1988, and a building plan No Ak 456/49 approved by Deji of Akure HIS ROYAL HIGHNESS OBA AFUNBIOWO ADESIDA 1 OF AKURELAND on 17th January 1949.
(b) An order of PERPETUAL INJUNCTION restraining the Defendants whether by themselves or through their agents, servants or privies from further trespassing on the Plaintiffs building, and the adjoining vacant land; situate, lying, being at Ayegunle Street, Akure which is more particularly shown on survey plan No JAA/OD/846/88 and Building plan with No. AK A.T.P.O. REGD.

741.77 and approved on the 23rd of December, 1988.

In respect of the claim for general damages for trespass of N500, 000, I am not satisfied from the evidence on record that the appellants proved trespass. All that the appellants testified through their three witnesses was that the respondents were embarrassing them and their tenants in the house. Trespass is an unwarranted or unjustified entry or intrusion by one person upon land in possession of another: DANTSOHO V MOHAMMED (2003) 6 NWLR, PT 817, 457. I am aware that trespass is actionable per se without proof of actual damage. In this case there is no evidence of the wrongful acts of the respondents that resulted in the trespass. This head of claim fails and it is hereby dismissed.

I make no order as to costs in respect of this appeal. The parties are cousins and close relatives. A resolution of this dispute should unite and not further divide them. Each party is therefore to bear its own costs in this appeal.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft before now, and I agree that the appeal be allowed as the Appellants as

claimants had not proved their claim of title as against the Defendants/Respondents, alleged trespass in the circumstances.

I do not need to repeat the exercise of bringing out the facts and evidence as led at the trial as in the lead judgment, my Lord, Patricia Ajuma Mahmoud, JCA, has aptly captured all, such that I concur and allow this appeal and abide with the consequential order made therein.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: My learned brother, PATRICIA AJUMA MAHMOUD, JCA availed me the opportunity of reading in draft, a copy of the judgment delivered and also perused the record of appeal transmitted to this Court in respect of the decision. I am in agreement with the reasoning and conclusion arrived at in the lead judgment.

I also allowed the appeal and set aside the judgment of Hon. Justice S. Adesola Sidiq of Ondo State High Court sitting in Akure, delivered on the 30th May, 2017 and entered judgment in favour of the Appellants.
I abide by the consequential orders in the lead judgment.

Appearances:

Mr. S. A. Ayesa For Appellant(s)

Ms T. O. Agbomola For Respondent(s)

Appearances

Mr. S. A. Ayesa For Appellant

AND

Ms T. O. Agbomola For Respondent