A. Ogunbiyi V. S. B. Adewunmi (1988)
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A. OPUTA, J.S.C.
This is a comparatively very short appeal as the issues in controversy have been considerably narrowed down by the substantial concession made by Mr. M. O. Oseni, learned Counsel for the Appellant. Having conceded the issue of title, there was only one subsidiary and accessory issue left for argument and calling for a decision namely:-
whether from the facts and circumstances of this case, it can be maintained that the Plaintiff/Appellant established such possession as to enable him succeed on the issues of trespass and injunction To help resolve this issue it may be convenient to set out the claims before the court of first instance and the concurrent findings of the two lower Courts.
The Plaintiff, now Appellant in the court sued the Defendant/Respondent claiming as follows:-
(i) Declaration of title in fee simple or according to native law and custom to that piece or parcel of land situate at Oniponrin near Ibadan Grammar School, Ibadan, and the survey plan of which will be later filed in this action; N2,000 being general and special damages for trespass committed
by the defendant to the said land which at all material times was in the plaintiff’s possession:
(iii) Perpetual injunction restraining the defendant, his servants and agents from committing further acts of trespass;
Pleadings were ordered by the trial High Court, filed and exchanged, From the averments in the pleadings it was common ground that the radical title to the land in dispute resided in the Ilori Family. Both parties pleaded and relied on purchase – the plaintiff from the Ashiru bra neb of the Ilori family; the defendant from the entire three branches of the Ilaori family. The plaintiff’s case was based on a partition of Ilori family land and a sale by the Ashiru branch of their own share after such partition. The defendant’s case was that there was no partition. Rather there were several allotments of land to members of the family for use but not transferring title thereby. The defendant bought the land in dispute being part of the unpartitioned Ilori family land in 1969 and successfully defended an action brought against him by Jimoh A. Odutola in 1972 in respect of the land in dispute,
Three issues arose out of the pleadings namely:-
(i) Was there a partition of Ilori family land among its constituent units
(ii) If the answer is NO could the Vendors of the plaintiff transfer to him valid title
(iii) If there was a partition and the sales to both the plaintiff and the defendant were valid which of those sales was prior in time
After due trial on the available evidence. Ogundere J, of the Oyo State High Court, (as he then was) made the following findings of fact:-
“I find that there is no conclusive evidence that Ilori family land which descended through Ayani, Disamu and Sanni was ever partitioned during Ashiru’s life time or at all.
- Ashiru in his capacity as head of the family allocated plots of land to the two persons aforementioned (those who sold to the plaintiff) for the specific purposes of farming and building thereon and that cannot by any stretch of the imagination be claimed to be partition of lIori family land.
- There was no evidence of the requirements of a sale of land to the plaintiff under native law and custom.
The Conveyance Ex. Plis ineffective to pass on the title in the land in dispute to the said plaintiff either under native law and custom or under English Common Law.
- The plaintiff could not demolish the case of the defendant that his own Conveyance Ex. D2 was signed by representatives of the entire Ilori family.
- The defendant in case 1/200/73 successfully defended an action brought by Jimoh A. Odutola in and over the land in dispute”
In the face of the above findings the learned trial Judge had no option but to dismiss the plaintiffs case which he called “a big gamble in his efforts to acquire a portion of Olopeworoko land from members of Ilori family in view of his knowledge of previous acquisitions and disputes”. The Plaintiff then appealed to the Court of Appeal Ibadan Division. This Court in a lead judgment by Omololu Thomas with Sulu-Gambari and Onu JJ.C.A. concurring again confirmed the findings and judgment of Ogundere J. and dismissed the Plaintiffs appeal. Having lost in the two courts below the Plaintiff has now appealed to the Supreme Court of Nigeria.
The policy of this court, as well as of other appellate Courts of all Common Law jurisdictions is not to disturb the concurrent findings of two lower courts unless it unmistakably appears that there was a serious error either of lower procedure which if not corrected would lead to a miscarriage of justice, see Lord Porter in Sock Mormordu Allie & Ors. v. Ahmed Alhadi 13 W.A.C.A. 320 at p. 321: Lokoyi v. Olojo (1983) 8 S.C. 61 on pp. 69-73:
Ibodo v. Enarofia (1980) 5-7 S.C. 42: Bakare v. The State (1987) 1 N.W.L.R. (pt.52)579: Nnajifor v. Ukonu (1986) 4 N.W.L.R.(pt.36)505 etc. Their name is legion for they are many, many such authorities on this point.
It is thus a difficult and uphill task for any appellant in this Court to attempt to disturb such concurrent findings. May be because of the above, but whatever his reasons were, learned Counsel for the Appellant Mr. Oseni threw in the towel and conceded defeat on the issue of title. “I am not quarrelling with the issue of title” he submitted. His only attack was that the learned trial Judge did not make any findings on the issue of possession although there was abundant evidence on both sides on this issue”.
In his Brief of Argument the sole Question for Determination was stated thus:-
“The main question which the appellant would like the Court to consider is who of the parties has a better title to the land in dispute and the subsidiary one is, assuming the appellant’s title is defective, whether having been in possession he was not entitled to damages for trespass and an injunction against the respondent with no title at all.”
With the appellant’s concession that he is not appealing on the issue of title, that puts to rest the main question for determination. Now the subsidiary question posed above rests on a wrong premise: “assuming the appellant’s title was defective.” It is not a question of defective title. It is a question of no title at all. The courts below found “that Ex. P1 was ineffective to possess title to the land in dispute to the said plaintiff either under native law and custom or under English common law.” In other words the two courts below adjudged that the plaintiff had title to all in and over the land in dispute. The two courts below also held that Ex. D2 signed by the representatives of the entire Ilori family conveyed title in and over the land in dispute to the Defendant/Respondent. This is the factual situation in this appeal and it is against the background of that factual situation, that the subsidiary question of the plaintiff/appellant ought now to be considered.
The appellant’s contention in the subsidiary issue is that having been in possession he was entitled to damages for trespass and injunction. Given the facts of this case and the findings of the two courts below, there is an intrinsic and fundamental fallacy in the appellant’s argument, claim for damages for trespass and an injunction against further trespass postulates that the appellant was either the owner of the land in dispute or was prior to the trespass complained of, in exclusive possession of the land in dispute:-
Abotche Kponuglo & Ors. v. Adja Kodadja (1933) 2 W.A.C.A.24. Now it has been proved and the appellant has conceded that he was not the owner of the land in dispute. His case for trespass will now stand or fall on his proof of exclusive possession before the trespass complained of. He from the facts as found, can never claim not be awarded an injunction.
Conceptually, trespass to land consists in any unjustifiable intrusion by one person upon land in the possession of another. Also trespass is actionable at the suit of the person in possession of land, who can claim damages or injunction or both. In this case the Plaintiff/Appellant’s possession derives from the purported sale of the land in dispute to him per Ex. P1.
With the concurrent finding that Ex. P1 did not and could not transfer title to him the foundation of his possession became extremely shaky and tenuous. Had he a right to possession My answer is No. Had he a right of possession My answer is still NO. His possession was merely physical occupation devoid of the right to possession and the right of possession. It was more in the nature of trespass.
Now coming to the facts, the trial Court found that the Defendant/Respondent bought the land in dispute in 1969. He paid the purchase money and was let into possession. There was therefore a valid sale of the land in dispute to the Defendant under customary law. The fact that the Defendant was in addition given a conveyance under English form per Ex. D2 in 1973 cannot detract from the sale under customary law. The defendant merely wanted to make assurance doubly sure.
Unlike the Plaintiff/Appellant, the Defendant/Respondent had since 1969 both a right of possession of, and a right to possess, the land in dispute. In defence of his rights in and over the land in dispute, the Defendant successfully defended suit 1/200/73 instituted against him by one J.A. Odutola. That itself, constitutes an act of possession on the part of the Defendant/Respondent. In the circumstances, it cannot be said that the Plaintiff/Appellant’s possession was exclusive. NO, it was not.
And when two people are in the same field each claiming possession he wins who can establish title. The two courts below preferred the Defendant/Respondent’s title EX.D2 to Plaintiff/Appellant’s alleged title per Ex. P1. The Plaintiff/Appellant’s attempt at physical occupation of the land in dispute constituted an act of trespass against the Defendant who was perfectly justified in removing the Plaintiff/Appellant’s Sign Board which was part of the trespass now complained of by the Appellant.
It is correct as was urged before us by Mr. Oseni, learned Counsel for the Plaintiff/Appellant, that there was no clear cut and specific finding by the learned trial Judge on the issue of possession residing in either of the parties to this appeal. But title and possession are so intimately interwoven that a finding on one may lead to an inference of the existence of the other. Possession is definitely an indicium of title, thus in Section 145 of our Evidence Law:-
“when the question is whether any person is owner of anything of which he is shown to he in possession the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”
Now title on its own part usually (but not always) comprises possession as a necessary adjunct.
In an action for trespass it has been held that an averment of ownership is consistent with and amounts to an averment of possession:- Johannes England v. J. Mope Palmer(1955)14 W.A.C.A. 659 at p. 660. By the same token a finding of ownership or a concession of ownership by one party is also a finding or concession of possession for ownership includes possession.
The Court of Appeal however dealt with the issue of possession at p.190 of the record of proceedings thus:-
“Having failed to prove partition as rightly found by the learned trial Judge, and since Exhibit P1 is ineffective to pass any title to the Appellant, the possession which the Appellant claimed he had since 1972 could not have been properly accepted by the trial Judge also as a basis for the claim of trespass, since the issue also concerns priority of the purchase and title as against the respondent’s title from 1969 ….. There is evidence that the respondent exercised his right to possession, even before the appellant installed his Sign Board on the land, when Odutola put fences on the land.
There is evidence also that the respondent removed the appellant’s sign board on the land and informed the appellant in Exhibit P.L3. All these seem to indicate the respondent’s better title and right to possession, if not actual possession in law.”
From the above it is clear that the Court below (whose judgment is now being attacked in this appeal) did consider the issue of possession by the opposing parties and found that the respondent “had better title and right to possession if not actual possession in law.”
There is no doubt that a trespasser can maintain an action against all but the true owner. The judgment of this court in Pius Amakor v. Benedict Obiefina (1974) 3 S.C. 67-82 decided that. But it also decided that there can be no such thing as concurrent possession by two persons claiming adversely to one another. Here, in this case the claims of the Appellant and Respondent being adverse, the party to be found to be in actual possession from the facts and circumstances of this case is the Respondent.
The Plaintiff/Appellant was a trespasser and he cannot maintain the present action against the Defendant/Respondent with better title and prior possession. In the final result and for all the reasons given above this appeal is doomed to fail. It is accordingly hereby dismissed.
The Judgments and Orders of the Court of first instance and the Court of Appeal, Ibadan Division, are both affirmed and confirmed. There will be costs to the Respondent which I assess as N500.00.
Other Citation: (1988) LCN/2368(SC)
