Yekini Adedokun Oyadare V. Chief Olajire Keji (2005)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

In the High Court of Justice, holden at Ibadan, the plaintiff sued the defendants for the following reliefs:-

(i) Declaration that the plaintiff and other members of the Apete family are entitled to apply, for a certificate of occupancy in respect of the land in dispute which is at Aba Ayinde, Off Challenge, near Liberty Academy, near Odo-Ona, Elewe, Ibadan measuring 91.55 acres in area and more particularly shown on plan No. O.B.5136 of 22/10/1984 prepared by O. Bangbose, Esq. Licensed surveyor.

(ii) N20,000 general damages suffered by the plaintiff when the defendants unlawfully entered the plaintiff’s said land by themselves and thugs and destroyed plaintiff’s survey pillars and crops thereon sometime in August, 1984.

(iii) Perpetual injunction restraining the defendants, their servants, agents, privies, anyone claiming through or under them from –

(a) Further going into the plaintiff’s said land, that is, the land in dispute.

(b) From further committing any other acts of trespass thereon.

(c) From further terrorizing the plaintiff and members of his family on the said land.

After the exchange of pleadings the case proceeded to trial. At the trial the plaintiff gave evidence and called witnesses. The defendants also testified and called witnesses. Thereafter, counsel on both sides addressed the court.

At the end of the trial and in his judgment, the learned Judge extensively reviewed and considered the traditional evidence led by both sides and came to the conclusion rightly in my view, that the parties had adduced irreconcilable stories in form of traditional evidence and consequently disbelieved them and rejected same. Thereafter, the learned trial Judge proceeded to consider acts of ownership and of possession on each side. He came to the conclusion that the plaintiff had successfully established numerous and positive acts of ownership and possession sufficient to hold that the land in dispute belonged to him. He therefore, gave judgment in favour of the plaintiff in the following terms –

“(i) It is hereby declared that the plaintiff and other members of Apete family are entitled to apply for certificate of occupancy in respect of the land in dispute which is at Ayinde, Off Challenge, near Liberty Academy, near Odo-Ona, Elewe, Ibadan, measuring 91.55 acres in area and more particularly shown in plan No. O. B. 5136 of 22/10/84 prepared by Bangbose Esq., licensed surveyor.

(ii) It is hereby ordered that the defendants pay to the plaintiff the sum of N200.00 general damages for trespass on the said land; and

(iii) An order of perpetual injunction is hereby granted in favour of the plaintiff restraining the defendants, their servants and or agents and privies from any further trespass on the land or terrorising the plaintiff and members of his family thereon. N700 costs to the plaintiff.”

Dissatisfied with the judgment of trial court, the defendants lodged an appeal in the Court of Appeal holden at Ibadan. The main or principal issue for determination in that court was:-

“Whether a plaintiff who failed to establish his root of title can in law fall back on acts of ownership and or acts of possession to prove his title.”

In its judgment, the Court of Appeal held that the learned trial Judge having disbelieved and rejected the traditional evidence or history given by the plaintiff, he ought to have dismissed the claims of the plaintiff and should not have resorted to consider acts of ownership and possession to prove title. The Court of Appeal therefore, proceeded to set aside the judgment of the trial court and dismissed plaintiff’s claims in their entirety.

Aggrieved by the decision of the Court of Appeal, the plaintiff has now appealed to this court. The parties filed and exchanged their briefs of argument. In the plaintiff’s brief, three (3) issues have been identified for resolution. I do not need to reproduce them here as I intend to frame my own issues.

I have read the judgments of the trial High Court and that of the Court of Appeal. I have also read the briefs filed by the parties in this appeal. It is clear to me from all these that just as in the Court of Appeal, the principal issue for determination in this appeal is-

Whether a plaintiff who failed to establish his root of title can in law fall back on acts of ownership and act of possession to prove his title;

while the subsidiary issue flowing from the principal issue is-

Whether failure of a claim for a declaration of title also means failure of claims for trespass and injunction.

I intend to consider both the principal and subsidiary issues together.

The Court of Appeal in the lead judgment of Okunola, JCA which was concurred in by Mukhtar and Adamu, J.J.C.A., had this to say on page 184 of the record –

“In the instant case, after a comprehensive review of the inconsistencies between the plaintiff’s pleadings and the evidence adduced in support of same, the learned trial Judge disbelieved the traditional evidence proferred by the plaintiff to establish his root of title. The learned trial Judge also disbelieved the traditional history proferred by the defence. This is why at page 80 lines 40 – 45 of the records, the learned Judge recorded his findings on the traditional evidence adduced by both parties thus:

‘In my finding, in the instant case, neither party succeeds in proving the case by traditional history nor by production of any document of title thereto. I am however satisfied that the plaintiff succeeds in proving his title by acts of renting out and acts of long possession and enjoyment of the land and farming thereon …’ ”

“The court entered judgment in favour of the plaintiff as per his claim. The court having found that the plaintiff has failed to prove his case by traditional evidence of that alleged from which his title is derived, can he go ahead to enter judgment to the plaintiff on proof of title by acts of possession etc This poser has been resolved in the negative by the Supreme Court in Odofin v. Ayoola (1984) 11 SC 72, (1984) NSCC 711 p.720 to the effect that –

‘The basic foundation, that is traditional evidence, having been rejected, there is nothing on which to found acts of ownership.’

“In the light of the foregoing authority, I hold that the learned trial Judge was in error when he entered judgment for the plaintiff who failed to establish his root of title through traditional evidence by falling back on acts of ownership and or acts of possession to prove his title. This is more so when it is trite that the five (5) ways of proving title to land are independent of one another (see Umennadozie Ogbuokwelu & Ors. v. James Umeanafunkwa & Anor (1994) 4 NWLR (Pt.341) 676, (1994) 5 SCNJ 24.”

The Court of Appeal I think was right.

It is clear from the above extract of the judgment that the learned trial Judge rejected the plaintiff’s traditional history which he pleaded as his root of title but nevertheless proceeded to enter judgment in his favour by falling back on acts of ownership and acts of possession. All the three (3) reliefs claimed by the plaintiff to wit declaration of title to the land in dispute, damages for trespass and injunction were all granted by the High Court. That was wrong to the extent that title to the land was awarded to the plaintiff.

It is also clear from its judgment that the Court of Appeal set aside the entire judgment of the trial High Court on the sole ground that the trial court was not entitled to rely on acts of ownership and possession to give judgment for the plaintiff who has failed to prove his pleaded root of title to the land in dispute relying on the authority of Odofin v. Ayoola (supra) also reported in (1984) 11 SC 72.

I think the Court of Appeal was right when it stated that having failed to prove his root of title as pleaded, the plaintiff was no longer entitled to rely on acts of ownership and possession to prove the same title to the land claimed. But the Court of Appeal proceeded to apply the principle wrongly when it extended it to cover claims for trespass and injunction. It is settled by a chain of authorities that where the pleaded title to land has not been proved as in this case, it will be unnecessary to consider acts of ownership and possession which acts are no longer acts of possession but acts of trespass (see for example, Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301; Fasoro & Anor. v. Beyioku & Ors. (1988) 2 NWLR (Pt. 76) 263). But the law and the authorities are clearly in respect of a claim for a declaration of title to land only. It does not in my view, cover claims for trespass and injunction in respect of the land claimed which are governed by different considerations. Trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. It is also trite that possession in law means exclusive possession, and where it is not exclusive the law will not protect it. Therefore, anyone other than the true owner, who disturbs somebody else’s possession on the land, can be sued in trespass and it is no answer for a defendant to say that title to the land is in another person (see for example Amakor v. Obiefuna (1974) 3 SC 67; Mogaji v. Cadbury (1972) 2 SC 97; Ayinla v. Sijuwola (1984) 1 SCNLR 410, (1984) 5 SC 44). Once a claim for trespass succeeds, a consequential relief or order for an injunction will follow to protect possession.

The Court of Appeal was therefore, clearly in error when it proceeded to set aside the entire judgment of the trial High Court, not only in respect of relief (1) for a claim for a declaration of title to the land, but also in respect of claims (2) & (3) which are for trespass and injunction respectively. The law is that where the title of both parties are defective as in this case, the court can still find for a plaintiff in an action for trespass if he establishes possession as in the present case. The trial High Court found that the plaintiff was in possession of the land in dispute and that finding was not faulted by the Court of Appeal. The High Court ought to have granted reliefs (2) & (3) only and refusing relief (1). So, what the Court of Appeal should have done was to have set aside the order for a declaration of title or entitlement to a certificate of occupancy only, and affirm the orders in respect of trespass and injunction.

I therefore answer both the principal and subsidiary issues above in the negative. The appeal consequently succeeds in part only. The judgment of the Court of Appeal setting aside the judgment of the trial court is amended to read that the orders contained in the judgment of the High Court delivered on 27th April, 1987 are affirmed in respect of claims (2) & (3) for trespass and perpetual injunction respectively; while the order in respect of claim (1) for a declaration of title or entitlement to a certificate of occupancy in respect of the land in dispute is refused as it failed. The plaintiff is awarded N10,000.00 costs against the defendants.

KUTIGI, J.S.C.(PRONOUNCEMENT)(SEC 294(2) of the 1999 constitution):Hon. Justice S.O Uwaifo who participated in this appeal agreed at our conference to allow the appeal in part only. Plaintiff/appellant’s claims(2) and (3) succeed while claim (1) fails.

SC.228/2000