Alhaji Gafaru Salawu V. Alhaji Liadi Lawal & Ors (2006)
LawGlobal-Hub Lead Judgment Report
G. IFUNANYA UDOM-AZOGU, J.C.A.
By their writ of summons dated 13/1/84 in the High Court of Justice Ogun State the plaintiffs claimed the following reliefs from the defendants jointly and severally:
a) Declaration that they are the people entitled to rights of occupancy on that piece or parcel of land situate, lying and being at Ijoko Road, Otta
b) N500.00 as damages for trespass committed by the Defendants when they and their agents/servants entered the land and cleared part of it and destroyed plaintiffs’ crops with caterpillar.
c) Injunction to restrain the defendants, their agents, servants and privies from further trespassing on the land.
Annual rental value of the land is N2m.
In paragraph 34 of the statement of claim dated 10/1/86, the plaintiffs claimed as per their writ of summons. The statement of claim was amended on 3/1/89.
The defendants by their statement of defence and counter-claim dated 21/4/88 claimed as follows:-
i) Declaration of title in favour of 1st defendant (on behalf of other members of the Fadahun family) as the owner of the customary right of occupancy and the person entitled to the certificate of occupancy in respect of the parcel of land lying, being and situate along Otta Ijoko Road and more particularly described in the Plan attached herewith.
ii) N31,616.00 special and general damages for trespass to the said land.
Particulars of Special Damages
Value of stolen and damaged cutlasses – N10.00
Value of Wrist Watch stolen – N100.00
Value of cloth – N20.00
Value of 30 trees of kolanut at the rate of N40.000
per tree – N1,200.00
Value of Iran leaves – N40.00
Value of 18 Survey Pillars uprooted at N1.50 per
Pillar – N27.00
Value of uprooted kolanut trees planted on
7 acres at the rate of N40.00 per tree – N20,160.00
Hospital bills + expenses – N55.00
Total Special Damages – N21,616.00
General Damages – N10,000.00
Total = N31,616.00
iii) Perpetual Injunction against plaintiffs their agents and servants or otherwise from encroaching and interfering with the 1st Defendant’s possession of the said land.
iv) Annual rental value of N250.
A Reply and Defence to counter-claim was filed on 24/9/86. Paragraph 15 reads thus:-
Wherefore the plaintiffs state that 1st defendant’s counter-claim is frivolous and misconceived and should be dismissed with substantial costs.
The statement of Defence and counter-claim of 1st and 2nd defendants was amended on 7/2/89
Reply to statement of Defence and Defence to Counter-claim was filed on 9/4/91 at the court before the hearing of the suit took off on 26th day of June, 1991.
The Plaintiffs Survey Plan No. OGE 693A/84 dated 14th October, 1988 and Defendants Survey Plan No. SJA/521/89/0G were tendered by consent and marked Exhibits A and B respectively.
The Plaintiff testified as the 11th PW and called 12 other witnesses while the Defendant testified as 4th DW and called 16 other witnesses. At the close of evidence, Counsel addressed the court and judgment was delivered on 3/8/93 per F.O. Dubiyi J – where he held as follows:
“It is my judgment that the plaintiffs succeed on the 1st leg of their claim against the 1st Defendant i.e.
i) Declaration that they are the people entitled to rights of occupancy on that piece or parcel of land situate lying and being at Itoko Road, Otta and verged ‘Blue’ on the Survey Plan No. OGE 693A/84 which is Exhibit ‘A’ in this proceeding.
ii) the claim for N500.00 damages for trespass committed by the 1st Defendant is struck out while the claim for injunction is also struck out,
iii) the Plaintiffs’ claim against the 2nd Defendant is also struck out,
iv) the counter-claims of the 1st defendant against the plaintiffs are dismissed in their entirety.
In the circumstances I shall award in favour of the plaintiffs a nominal costs of N2,000 to mark their partial success.”
Dissatisfied with the judgment, the defendants/appellants have appealed to this court. They filed eleven grounds of appeal on 28th day of March, 1994 from which they have distilled three issues for determination.
- Whether the plaintiffs proved ownership or better title by non-conflicting and conclusive traditional evidence to entitle them to their claim for declaration of right of occupancy over the land in dispute.
- Whether proof of customary tenancy and payment of Ishakoles (tributes) by the defendant’s forefathers can, without more, establish the plaintiff’s ownership claim over the land in dispute in this case.
- Were the plaintiffs not liable in trespass to entitle the defendant/appellant to damages for trespass and injunction in this case?
On their part the Respondents formulated two issues for determination.
- As between the Plaintiffs and the Defendant who have succeeded in proving by preponderance of evidence their entitlement to a declaration of right of occupancy over the land in dispute.
- Whether the plaintiffs are liable in trespass which entitles the defendant to damages on the strength of the evidence adduced by the defendant at the trial of this case.
In summary the facts of the case is that the Respondents as Plaintiffs claimed through Plaintiff who testified as PW1 that the land in dispute depicted in the Survey Plan Exhibit A originally belonged to Ige Elerinko and Owolabi who migrated from Ile-Ife. During their hunting expedition they discovered a large area of land, settled and named it Ige Elerinko. The land in dispute is situate at Sango Otta, Ogun State.
The plaintiffs are members of Elerinko Ojomo and Ogundare families on behalf of whom they claimed. The land in dispute forms part of a larger area of land belonging to Ige Elerinko and his brother Owolabi. The family engaged in farming and let some out to tenants. Their deities and oracles which their ancestor brought from Ogun and shrines in Ile-lfe are there.
They built houses there too. Whereas 1st Defendant lives at Basa where his grandfather lodged. There is nothing like Temidade Elerinko within plaintiffs’ family. Members of the family lived in the compound while strangers lived outside. 1st defendant never participated in family meetings.
The defendant who testified as DW4 claimed that his ancestor was Temilade Elerinko, a farmer and hunter who first settled on the land in dispute. He traced his genealogy to his father Salawu. He claimed that he had marital relationship with the plaintiffs. He had been staying on the land for 50 years after his father’s elder brothers. He alleged that it was only in 1983 that plaintiffs disturbed him. He claimed that the land owned by his family extend beyond Itoko. He denied that plaintiffs’ ancestors gave land to his ancestors. No family member paid customary rents on the land.
Issues 1 and 2 of Respondents Brief are the same as issue 1 in the Appellant’s Brief.
Issue 2 of the Appellant’s Brief was not considered at all in the Respondents’ Brief.
I shall deal with the twin issues between the appellants and respondents first.
Both sides relied on traditional evidence in proof of their claims and counter-claim.
It is trite that the same onus lies on the claimant and counter-claimant to prove their case on the balance of probabilities. Learned Counsel for the Appellant Adelola Yaya Esq. argued that who is in present possession is not in dispute and referred to paragraph 28 of the plaintiffs amended statement of claim and paragraphs 19-20 of the Reply to statement of defence and defence to counter-claim, and alleged that the plaintiffs admitted that the defendant/appellant was the person in possession of the land in dispute at all times material to this case. He also argued that the plaintiffs averment that portions of the land granted to the customary tenants did not fall within the land in dispute edged Blue in Exhibit ‘A’, as admission that defendant/appellant was and is not one of the customary tenants. He submitted that an action in trespass is based entirely on possession of land, not necessarily ownership. He cited DOKUHO v OMONI (1999) 8 NWLR (Pt 616) 647 SC at 659-660 H-G, ADEPOJU v OKE (1999) 3 NWLR (Pt.594) 154 SC at 169 C-D.
He submitted that the traditional evidence given by either party to this action is in direct conflict. He cited KOJO II v BONSIE 1 WLR 1223 at 1226 and contended that it is settled that when either party’s traditional evidence of ownership of land in dispute is in conflict as in the present case, the legal test is that the court should not go by tradition of evaluating evidence by merely placing the traditional evidence of either party on the imaginary scale in order to decide which side to be believed and preferred to the other. In other words, “the best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.” He cited IDUNDUN v OKUMAGBA (1976) NSCC 445 at 452-454, MOGAJI v CADBURY NIG. LTD (1985) 2 NWLR (Pt. 7) 393 SC, NWAOKORO v. EGBEMOM (1997) 11 NWLR (Pt 528) at 250 C-A.
He submitted that the learned trial judge failed to apply the correct legal test to the conflicting traditional evidence of the parties before coming to the conclusion that the plaintiffs are owners of the land in dispute.
He finally submitted that the plaintiffs did not prove the root of title to the land in dispute by non-conflicting and conclusive traditional evidence to warrant a declaration of right of occupancy over the land.
The Respondents on their part acknowledged that the parties relied on traditional evidence which they are bound to establish by adducing credible convincing and conclusive evidence of their entitlement to the land in dispute. He contended that the plaintiffs as respondents who testified as PWI set out in detail the identity of the original settler, how he came to settle on the land, where he came from, the identity of the intervening persons until the eventual devolution on the plaintiffs and the use which all made of the land in dispute as pleaded.
He cited ONWUBUFOR v OKOYE (1996) 1 NWLR (Pt 424 252 at 280- 281, AKINLOYE v EYILOLA (1968) NWLR 92.
The evidence shows that the plaintiffs/respondents traced their traditional ancestor to Ige Elerinko and Owolabi original settlers who migrated from Tigbo to found the extensive land in dispute and recounted their genealogy from the founder to plaintiffs’ father and the use the family made of the land. The respondent refuted the appellants contention that there was conflict in the traditional evidence of the parties in the suit, since he contended that the plaintiffs evidence was in line with their pleadings, comprehensive, conclusive and satisfied all, legal requirements while defendant’s evidence was inconclusive and hollow. The trial court took note of the decision of the Supreme Court in BALOGUN v AKANJI (1988) 1 NWLR (Pt 70) 301 to the effect that where more than one mode of proving ownership of title is pleaded by a claimant it is sufficient if he is able to prove one. In the circumstances of this case the Rule in EKPO v ITA 11 NLR 68 will not apply since recourse will not be had to acts of possession exercised by contending parties on the land in dispute. There was no conflict in the traditional evidence of the parties. There was no such finding by the court below. He submitted that conflict will only arise where the two versions of traditional evidence rendered by the parties are conclusive and the court has to make a choice between the two conclusive versions. He cited SANUSI v ADEBIYI (1977)12 SCNJ 25 at 31-32, OGBUKWELU v. UMEANAFUKWA (1994) 4 NWLR (Pt. 341) 676 at 710. He referred to paragraph 25(a) of the amended statement of claim, 19 and 20 of Reply to statement of defence and defence to counter-claim and referred to the appellant’s claim that the respondent conceded exclusive possession of the land in dispute to him as fallacious. He reproduced those paragraphs and submitted that from the above paragraphs of the plaintiffs’ pleadings and evidence at the trial where the survey plan was exhibited as ‘A’ that the defendant was not in exclusive possession of the land in dispute but a small portion thereof edged Yellow in Exhibit’ A’ which shows that members of plaintiffs’ family and few of their grantees are on the land in dispute.
Plaintiffs’ claim for trespass was rightly struck out by the trial Judge on the ground that members of plaintiffs’ family i.e. Fagbemis ought to maintain the claim for trespass not the larger family. The learned trial Judge in line with KODJO v BONSIE (supra) considered facts in recent times relating to the activities of the parties on Elerinko property and came to the conclusion as contained at page 414 lines 11-18 of records that Ige Elerinko and Owolabi were first to settle at Ige Elerinko and Temilade Elerinko did not exist. After exhaustive evaluation of evidence before the court it came to the conclusion as at page 420 lines 7-24 and ended by stating inter alia – “that the plaintiffs have adduced’ evidence of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that they are the exclusive owners of the land in dispute. He submitted that evidence of customary tenancy and payment of Ishakole by the defendant was adduced to explain the superior title of the plaintiffs. The Respondents finally submitted that plaintiffs fully and convincingly discharged the onus imposed on them by law, in establishing their entitlement to the order of declaration made in their favour as laid down by a plethora of cases including IDUNDUN v OKUMAGBA (1976) 1 NWLR 200 at 211.
Issue 2 In Appellant’s Brief
Whether the plaintiffs are liable in trespass which entitles defendants to damages on the strength of the evidence adduced by defendant at the trial.
This issue was not part of plaintiffs/respondents’ brief of argument. I shall therefore discountenance it. The case of MAKINDE v AKINWALE (2000) NWLR (Pt. 645) 435 at 451-452 where the Supreme Court held that
“in the determination of issue of title, particularly where traditional history is pleaded, and relied upon, the issue of payment of Ishakole is not a primary consideration” is apposite.
I shall now deal with issue 2 which is common to Appellant and Respondents.
It is common ground that the defendant counter-claimed and that he has to prove his case on the balance of probabilities and will not rely on the strength of the plaintiffs claim.
The Appellant’s contention is that the defendant’s ancestors as well as defendant had exercised long and continued acts of possession on the land in dispute by cultivating the land planting crops thereon, farming and occupying same to the exclusion of plaintiffs. He submitted that trespass to land is actionable at the suit of the person in possession and the slightest possession in the person claiming damages for trespass is sufficient to entitle him maintain the action. He cited AJERO v UGORJI ( 1999) 10 NWLR (Pt. 621) 1 SC at 17 A-D. The finding of the learned trial Judge that the counter-claim for damages and trespass could not succeed was not only misconceived but was fraught with grave misapplication of the correct principles of law, he contended.
The land in dispute was alleged in paragraphs 28 and 29 of plaintiffs’ amended statement of claim to have been granted by Lamidi Fagbemi to defendant. He submitted that Emmanuel Ayeni and Jimoh Lamidi are members of the family of Ojomo on behalf of whom the plaintiffs instituted and contested his action. The implication is that plaintiffs should be held liable for acts of trespass of Ayeni and Jimoh.
He submitted that 1st plaintiffs evidence (pages 330-331 of record) did not rebut the defendant’s evidence (page 212) lines 25-30 of record) and so the plaintiffs’ acts of trespass were established by the defendant to entitle him to damages. He finally submitted that the defendant/appellant is entitled to damages and order of injunction against the plaintiffs for trespass committed by Emmanuel Ayeni and Jimoh Lamidi, members of Ojomo family who interfered and disturbed the defendant’s possession of the land in dispute.
He urged the court to set aside the judgment of the court below, allow the appeal and dismiss the plaintiffs’ action.
On his part Respondent submitted that a person in exclusive possession of land can maintain an action for trespass against all other persons citing, ABIODUN ADELAJA v OLABADE FANOIKI & ANOR (1990) 1 NSCC 347, OBIJURU v OZIM (1985) 2 NWLR 170.
Defendant was not in exclusive possession of the entire land in dispute – see Exhibit ‘A’. He was only in possession of a small faction of the land verged Yellow in Exhibit’ A’. He was not therefore entitled to redress for trespass on the land in dispute – see OKOYE v KPADGIE (1972) 6 SC 188.
He submitted that there is a dearth of evidence to nail the plaintiffs for an alleged trespass committed by persons who have been identified but not joined as parties to the action. No vicarious liability can be ascribed to the defendants without proof that there exists a master and servant relationship or agency.
He submitted that no other witness testified in corroboration of defendant’s scanty evidence on the alleged trespass. The alleged act of trespass by plaintiffs against defendant was not proved. The alleged trespass cannot be against plaintiffs as well as members of their family.
He finally submitted that evidence of the Defendant’s claim for damages for trespass and injunction was inadequate. The plaintiffs established a superior title. He submitted that the claim was rightly dismissed by the learned trial Judge. The evidence adduced by the defendant in support of the alleged trespass fell far short of what is required in law. He urged the court to uphold the Judgment of the lower court and dismiss the appeal.
As I said earlier in this judgment both sides are claiming title via traditional evidence. There is a claim and counter-claim and each side is obliged to prove his title on the balance of probabilities as required by law. In proof of their separate claims, each side must rely on the strength of their own case and not on weakness of the defendant – see KODILINYE v MBANEFO ODU (1934) 2 W.A.C.A. 336. In IDUNDUN v OKUMAGBA (2002) 26 WRN 56 (1976) 1 NMLR (1976) 9/10 SC 27 Fatai- Williams JSC stated the five methods by which ownership of land may be established under the Nigerian Jurisprudence. The methods are –
- Traditional evidence
- Production of documents of title which are duly authenticated.
- Acts of selling, leasing, renting out all or part of the land or farming on it or a portion of it.
- Acts of long possession and enjoyment of the land and
- 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.
In KODJO II v BONSIE & ANOR (1951) 1 WLR 1223 at 1226 the Privy Council said concerning traditional history inter alia –
” The best way to test the traditional history is by reference to the facts in recent years as established by evidence and seeing which two competing histories is more probable.”
In BALOGUN v AKANJI cited supra Oputa JSC observed –
“One final word on EKPO v ITA (1932) 1 ALL NLR 68 anyone who pleads acts of possession as his root of title is really relying on the presumption that possession is 9/10 of the law and that he who is in possession is presumed by section 145 of Evidence Act Cap 62 of 1958 to be the owner and that the onus of proving that he is the owner is on the person who affirms that he is not the owner….”
It is therefore clear that evidence of traditional history and acts of ownership are separate and parallel. A plaintiff may by his statement of claim rely solely for the title he asserts in a claim for declaration of title on traditional history. Since it is permissible to plead in the alternative, he may rely on both methods i.e. traditional history and acts of ownership. But where plaintiff has proved traditional history he does not need to prove acts of ownership except where the traditional evidence is inconclusive.
In this suit, the core issue of proof of traditional history was taken by 1st plaintiff who testified as PW11 and 1st defendant who testified as DW4.
As is contained in this judgment the trial court after an incisive evaluation of the evidence before it held that plaintiff conclusively proved his genealogy, the use made of the land in dispute and tenants put into it by plaintiff. The 1st plaintiff Alhaji Liadi Lawal testified that the land in dispute depicted in Exhibit ‘A’ was originally owned by Ige Elerinko & Owolabi who came with their fathers Odewale and Tigbo who migrated from Ile-Ife. During their hunting expedition Elerinko and Owolabi discovered a vast area of land, settled there and named it Ige Elerinko.
At page 391 of record he testified that the 1st defendant came into the land in dispute through Lamide Fagbemi now dead a member of Elerinko family who gave to Salawu the 1st defendant’s father a portion of land within the land in dispute for purposes of subsistence farming. 1st defendant took over the farm on his father’s death. Lamide Fagbemi also gave land to others like Fashanu.
1st defendant who testified as D.W. 4 however testified that his ancestor Temilade Elirinko first settled on the land in dispute. He has maternal relationship with plaintiffs. He had been farming on the land for 50 years.
He denied receiving land from plaintiffs’ ancestors.
Learned Counsel for the plaintiffs/respondents has rightly pointed to defendant’s/appellant’s pleadings paragraphs 5-7 which he appears to have abandoned. The learned trial Judge took note of this at page 406 of records where he said “4th DW failed to adduce evidence as regards where Temilade Elerinko migrated from as averred in paragraphs 5, 6 and 7 of the statement of defence.”
It is trite that parties are bound by their pleadings. See AKANMU v ADIGUN (1993) 7 NWLR (Pt 304) 218 AT 22999 AND 236. There is no doubt that the evidence of defendant is inconclusive. The traditional history as pleaded and narrated by plaintiff/respondent is preferable to those of the defendant/appellant. If the evidence of plaintiff/respondent and those of the 1st defendant/appellant is placed on the imaginary scale there is no doubt that the scale will tilt in favour of the plaintiff/respondents. This issue is resolved in favour of the Respondents.
It is my view that there was no conflict in the traditional evidence of the parties to warrant invocation of the Rule in KOJO v BONSIE and EKPO v ITA.
On Issue 2
As I said earlier, it is true that trespass is actionable at the suit of the person in possession and the person claiming damages for trespass is sufficient to enable him maintain the action. In his evidence defendant testified that he had been farming on the land for 50 years. His father and junior brother worked there. He was not disturbed until 1983 when he alleged that plaintiffs disturbed him. He alleged that they are Emmanuel Ayeni and Jimoh Lamide members of the family of Ojomo on behalf of whom the plaintiffs constituted and prosecuted this action. He argued that the implication is that plaintiffs should be held liable for acts of trespass of Ayeni and Jimoh. It will be recalled that the defendant/appellant submitted that the plaintiffs’ evidence was not rebutted and so the acts of trespass were established by the defendant/appellant to entitle him to damages. He finally submitted that the defendant/appellant was entitled to damages and order of injunction against the plaintiffs/respondents for trespass committed by Emmanuel Ayeni and Jimoh Lamide members of Ojomo family who interfered with their possession of the land in dispute.
It appears to me that he is trying to rely on vicarious liability. The plaintiffs/respondents submitted that the alleged trespassers have not been joined and vicarious liability cannot be resorted to in the absence of proof of agency or master servant relationship. I agree. He submitted that the evidence adduced in support of the trespass was inadequate; they fell far short of the requirement in law. This issue is resolved in favour of the respondent. It is my view that not enough evidence was adduced in proof of the alleged trespass. The plaintiff was only in possession of a small portion of the land marked Yellow on Exhibit ‘A’. Since the defendants/appellants were not in exclusive possession they cannot be entitled to damages for trespass. The actual persons in possession of the land trespassed on are Fagbemi and Fashina who can actually maintain action for trespass.
In the absence of proof of exclusive possession of the land in dispute, the defendant/appellant cannot be entitled to damages for trespass.
Other Citations: (2006)LCN/1941(CA)
