Alhaji Olumide Onanubi V. Mr. Akintunde Olajuwon Ogunfolu (2009)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI (OFR), J.C.A.

The plaintiffs sought the following reliefs against the defendant at the trial court in paragraph 22 of their amended statement of claim-

“22. WHEREOF the plaintiffs claim as follows-

i. A declaration that the plaintiffs are entitled to a statutory right of occupancy over the piece and all that parcel of land totaling six plot of land which formed part of the plaintiffs family land lying being and situate along Alakuko Road, Alagbado Near Agege Local Government Area of Lagos State and shown on composite plan No APAT/LA/349/1994 drawn by Chief A.B. Apatira, licensed Surveyor and dated 24th October, 1994.

ii. N100,000 damages for the acts of trespass committed by the defendants, his agent on the said land in dispute.

iii. Perpetual injunction restraining the Defendant by himself, agent, servant and or privies from further acts of trespass on the said land.”

The defendant filed a statement of defence which was subsequently amended. The Plaintiff filed a reply to the statement of defence which was also amended. Therefore, pleadings were eventually settled at an amended statement of claim, second amended statement of defence as well as further amended reply to second amended statement of defence.

The plaintiffs called three witnesses while the defendant called only two witnesses. Thereafter, counsel gave their respective final addresses, learned trial judge Oduneye, J., in a reserved and considered judgment stated thus –

“Having held that the plaintiffs are entitled to declaration of title to the land in dispute, I will hold that the plaintiffs are in possession of land and can maintain this action for trespass against the defendant. The defendant gave evidence that he started to build on the land. This in my opinion is trespass in that the land does not belong to him. I will award the sum of N20,000.00 as damages for trespass committed by the defendant on the plaintiffs’ land.

In other to protect the plaintiff’s right and to prevent a reoccurrence of the acts of trespass I will grant a perpetual injunction restraining the defendant by himself, agent, servant and/or privies from further acts of trespass on the plaintiffs’ land.”

The defendant is unhappy with the judgment and being dissatisfied has appealed to this court on six grounds of appeal. Pursuance of the notice of appeal, briefs of argument had been filed and exchanged which briefs were adopted and relied upon at the hearing of the appeal.

The appellant, in his brief of argument, formulated the following three issues for consideration and determination in this appeal.

“1 . Whether the Respondents proved their title to the land in dispute (Distilled from Ground One).

2. Whether from the evidence and pleadings, there has been a breach of payment of consideration in respect of the contract for the sale and purchase of land. And if so can the respondent rescind the contract (Distilled from Ground Three).
3. Whether from all the circumstances of this case and taking the pleadings and evidence on it as a whole, the trial court is right in declaring the appellant a trespasser and awarding the sum of N20,000.00 against him as damages for trespass (Distilled from Ground Four).”

It seems to me that the appellant by relating only grounds 1, 3 and 4 of his grounds of appeal to issues 1, 2, and 3 has impliedly abandoned grounds 2, 5 and 6 of the grounds of appeal which are hereby consequently struck out.

On the other hand, the plaintiffs (hereinafter referred to as the respondents) formulated the following two issues for consideration and determination –

“i. Whether from the evidence adduced at the trial, the respondents are entitled to the reliefs claimed on their Amended statement of claim which were granted by the learned trial judge.

ii. Whether ownership of the land in dispute has been transferred to the appellant despite his failure to pay the balance of the purchase price.”

The respondents while arguing their issue (i) wittingly or unwittingly related it to grounds 1, 2, 4, 5 and 6, three of which had been deemed abandoned and struck out, viz grounds 2, 5 and 6. It can reasonably be inferred from the conduct of the learned counsel for respondents that he failed or neglected or refused to study appellant’s brief of argument before embarking on the writing of the respondents’ brief of argument.

I propose to state the facts of the case albeit succinctly. The case of the respondents as the plaintiffs in the trial court was to the effect that the land in dispute was purchased by their father, Daniel Obatoki Ogunfolu from the family of Dada Agunwa in 1928. The sale was evidenced by a Deed of Conveyance dated 31st day of May, 1928 and registered as No 11 at page 11 in volume 239 at the Lands Registry, Ikeja. The respondents were in physical possession of the land in dispute, exercising acts of ownership. The defendant/appellant sought for sale of a part thereof which approach the respondents acceded to for a consideration of N12,000. The appellant paid N3,000.00 and thereafter defaulted on the payment of the balance of N9,000.00 rather he trespassed on the land and claimed ownership of the said property.

The appellant on his own side agreed to have purchased the land from the respondents for N6,000.00 and not N12,000.00. He also admitted paying N3,000.00 deposit but argued that he paid another N2,000.00 to one Inspector Osomo leaving an outstanding balance of N1000.00. The balance of either N9,000.00 or N1,000.00 was yet to be paid at the time the writ of summons was taken out and at the time judgment of the trial court was delivered.

While arguing appellant’s issue 1, learned counsel for appellant read paragraphs 3, 4, 5, 6, 7 and 8 of the amended statement of claim and the evidence of second plaintiff witness at page 123 of the record of proceedings before reciting the portion of the judgment of the learned trial judge agreeing with the learned counsel for respondents at page 291 – 2 of the record. He then submitted that the onus of proof is on the plaintiffs in an action for declaration of title on the authority of Kodlinye vs Mbanefo Odu (1935) 2 WACA 336 and to succeed the plaintiff must rely on the strength of his case and not on the weakness of the defence. See Elias vs Omo-Bare (1982) 5 SC 25 and Onibudo vs Akibu (1982) 7 SC 60, 84 – 85. He further submitted that a party seeking a declaratory relief has to satisfy the court by evidence: Bello v Eweka (1981) 1 SC 101.

Learned counsel for appellant submitted that though the respondents pleaded and gave evidence that the Dada Agunwa family originally owned the land, they failed to give evidence nor plead how that family came to own the land. Learned counsel for appellant also submitted that the finding of the learned trial judge to the effect that the plaintiffs having tendered their title deed coupled with the composite plan showing that the land in dispute is within the larger area of the plaintiffs they are entitled to the declaration sought was wrong to so hold as production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claims. He further submitted that he must go further to trace the root of his title to one whose evidence of the land has been established. See Lawson v Ajibulu. (1997) 6 NWLR (Pt 507) 14.

Learned counsel for respondent contended that they relied on a Deed of Conveyance, Exhibit B made in 1928 to prove their ownership of the land in dispute. Learned counsel further contended that the Deed of Conveyance was never challenged by the appellant either in his pleadings or evidence at the trial court. He then submitted that the production of exhibit B which was made more than 80 years ago was enough to sustain their claim for a declaration of title.

There is substance In the submission of the learned counsel for respondents that failure or neglect or refusal of appellant throughout the trial in the court below to challenge exhibits A and B both in his pleadings and evidence, the learned trial judge, therefore, rightly held that the respondents were entitled to the declaration sought on the strength of those documents. The respondents in paragraphs 3, 4, 5, 6, 7, 8 of their amended statement of claim avers as follows-

“3. The land in dispute formed part of a vast parcel of land which originally belonged to the Dada Agunwa family absolutely under Yoruba Native Law and custom

4. The Dada Agunwa family exercised maximum act of ownership and possession on the said large parcel of land (including the land in dispute) until 1928 when they sold the large parcel of land including the land in dispute to the said Daniel Obatoki Ogunfolu, the father of the plaintiffs.
5. The said Dada Agunwa family through their accredited representatives issued receipt to the said Daniel Obatoki Ogunfolu and executed a Deed of Conveyance dated 31st May, 1928 and registered as No.11 at page II in volume 239 at the Lands Registry in favour of the Plaintiffs’ father. The plaintiffs will rely on the various receipts issued and the said Deed of Conveyance at the trial of this action.
6. After the sale of the land to him the said Daniel Obatoki Ogunfolu exercised maximum acts of ownership and possession on the large parcel of land without let or hindrances by farming, it planting both cash and food crops thereon until his death.
7. The plaintiffs aver that their late father Daniel Obatoki Ogunfolu caused the land including the land in dispute to be surveyed and a survey plan dated 25th January, 1928 was produced.
8. The plaintiffs have since caused their family land to be surveyed after their fathers’ death.
9. The plaintiffs land is edged RED in plan No APAT/LA 349/1994 dated 24th October, 1994 and drawn by A.B. Apatira licensed surveyor while the land in dispute herein is edged YELLOW in the aforesaid plan drawn A.B. Apartira Esq. The plaintiffs shall rely on this plan at the trial of this suit.”

The defendant, appellant herein, failed or neglected to join issue with the plaintiffs/respondents on the facts set out in those paragraphs particularly paragraphs 3 and 4 of the amended statement of claim wherein the plaintiff pleaded their title to the land in dispute. The appellant did not deny respondents’ title. He merely aver at paragraph 1 of his statement of claim as follows-

“1. The defendants avers that he is not in a position to accept or deny paragraphs 1, 3, 4, 5, 6, 7 and 8.”

The averment in paragraph 1 of his statement of defence that “the defendant avers that he is not in a position to accept or deny paragraphs 1, 3, 4, 5, 6, 7 and 8” is not good enough. If a defendant refuses to admit a particular averment in the statement of claim, he is required to state so specifically; and does not achieve this satisfactorily by pleading thus: “defendant is not in a position to admit or deny the particular allegation and will at the trial put the plaintiff to proof’ See Messers Lewis and Peat Nig Ltd v A.E. Akhimien (1976) 7 SC 157. It appears Supreme Court has by this dictum resiled from Manadilas Karaberis Ltd v Lamidi Apena 1969 NMLR 199, 202 where the court held that a general traverse in the statement of defence sufficiently denied an allegation of false imprisonment. In Apena’s case (supra) Supreme Court adopted the observation of Lord Denning in Warner v Sampson (1959) 1 K.B 297, 310. But in Messers Lewis & Peat N.I.R. Ltd vs Akhimien (supra) at 163 – 164 Supreme Court per Jdigbe, JSC observed thus:

“We are, of course, not unmindful of the first paragraph of the statement of defence. Nowadays almost every statement of defence contains such a general denial. (See Waner v Sampson (1959) 1 Q B 287, 310 – 311) However, in respect of essential and material allegations such a general denial ought not be adopted; essential allegations should be specifically traversed (See Wallerstein v Moir (1974) 1 WLR 991 1002 per Lord Denning M.R., also Bullen & Lewce & Jacobs: Precedent of pleadings 12th Edition page 83.”

See also Olaogun Enterprises Ltd v S J & M (1992) 4 NWLR (Pt 235) 380 – 381 and Yusuf v Toluhi (2002) FWLR Pt. 119) 1430. I am, therefore, of the opinion that paragraph J of the statement of defence failed to deny the fact alleged in paragraphs 1, 3, 4, 5, 6, 7 and 8 of the statement of claim sufficiently to raise any issue in respect of those facts.

Notwithstanding the foregoing weakness, the onus on plaintiffs, respondents herein is not discharged. The weakness in the defence will not assist the plaintiff. The onus is therefore on the plaintiffs to prove their title on balance of probability: See Kodilinye v Odu 2 WACA 336. The onus still remains on the plaintiffs and never shifts in spite of defendant’s admission: See Akanji v Balogun (1988) 2 SCNJ 104; Kayaoja v Egunla (1974) 12 SC 55, 61; Lawson v Ajibulu (1997) 6 NWLR (Pt 507) 14. The plaintiffs case must, as a rule, succeed on its own strength and not on the weakness of the defence but they are not debarred from drawing solace from an admission made by the defence which would go to buttress the case of the plaintiffs. But it is manifest that a plaintiff’s case can only derive strength from evidence volunteered by a defendant if such evidence goes to an issue and therefore admissible: Otuaha Ananuna & Ors vs Obi Nzeka II 1983 7 SC 1, 25 and Lawson v Ajibulu (supra) Ibeziako vs Nwagbogu & Ors (1973) 1 All NLR 113, 114 and Akinola v F. Olowu & Others (1962) 1 All NLR 224, 225.

The respondents called three witnesses. The first plaintiff witness, a surveyor tendered exhibit A which is a composite plan showing that the land in dispute verged yellow is within the land of the respondent verged red. The land belonging to the respondents is about six acres while the land in dispute is about an acre. The plaintiffs’ second witness is the first respondent herein. He adduced evidence to the effect that the action was brought in a representative capacity for and on behalf of the children of Ogunfolu who inherited the property on the demise of their father. He went further to testify as follows-

“Our land was formerly owned by Dada Agunwa family. Our father Daniel Ogunfol u bought the land from Dada Agunwa family. A conveyance was given to our father. This is a certified true copy of the conveyance. Tendered – No objection and is marked Exhibit B.

The six plots of land that the Defendant approached me for is part of the land of Ogunfolus’ family land. Our land is lying along Alakuko Road but was called Akinyemi’s village at the time.

The respondents’ case is predicated on document of inheritance and possession of adjacent land. The respondents placed reliance on, exhibit B, a registered Deed of Conveyance dated 31st day of May, 1928 between their father and the family of Dada Agunwa. The same is registered at No. 11 at p.11 in volume 239 in the office at the Land Registry, Lagos.

The case of D.O. Idundun & Others vs Daniel Okumagba (1976) 9 & 10 SC 227 is a decision in which the Supreme Court outlined five ways by which a plaintiff can prove title in a case of a declaration of title. Any of the five ways set out in that case may be sufficient to ground the declaration for entitlement to land. The five ways in which ownership of land can be proved are as follows –

(a) ownership can be proved by traditional history.

(b) ownership may be proved by production of document of title duly authenticated.

(c) ownership of land may be proved by acts of the person (or persons) claiming the land provided the acts extend over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner.

(d) ownership of land may be proved by acts of long possession and enjoyment of the land.

(e) ownership of land may be proved by proof of connected or adjacent land, in circumstances rendering it probable that the owner of the adjacent land would, in addition, be the owner of the land in dispute.

The case of the respondents herein falls squarely within items (b) and (e) that is –

(b) ownership may be proved by production of documents duly authenticated and,

(e) ownership of land may be proved by proof of connected or adjacent land, in circumstances rendering it probable that the owner of the adjacent land would; in addition, be the owner of the land in dispute.

Another mode of acquisition of title to land is by way of inheritance:

Malifonwa & Ors vs Egbuji & Ors (1982) 9 SC 145, 162. Apart from the appellants’ failure or neglect to sufficiently deny paragraphs 3 and 4 of the amended statement of claim which are for ease of reference repeated hereunder –

“3. The land in dispute formed part of a vast parcel of land which originally belonged to the Dada Agunwa family absolutely under Yoruba Native Law and Custom.

4. The Dada Agunwa family exercised maximum acts of ownership and possession on the said large parcel of land (including the land in dispute) until 1928 when they sold the large parcel of land including the land in dispute to the said Daniel Obatoki Ogunfolu, the father of the plaintiff’ (underlining mine).

he pleaded in paragraph 5 of his 2nd Amended statement of defence.

“5. The defendant further avers that he demanded for document to ascertain their rights, and they tendered title documents, that prompted him to re-purchase the land from them without any argument.” (underlining mine)

In furtherance of this plea, the appellant testified to the effect that first plaintiff now first respondent “showed me certain document that the land belonged to their family.” Consequently he paid an initial deposit of N3,000.00.

These are admission which inures to the respondents and from which their case derives solace. It bolsters their case. The true position in proving title to land places the onus on the plaintiff to satisfy the court that he is entitled to the declaration sought. The standard of proof in such cases is not different from that required in civil proceedings. It is no more than proof on a balance of probabilities Kayaoja vs Egunla (supra). The case of Bello vs Eweka (1981) 1 SC 101 cited in the Appellant’s brief further reinforces the well known principle laid down in Kodilinye vs Odu (1935) 2 WACA 336 that a plaintiff in an action for declaration of title must succeed on the strength of his own case and not on the weakness of the defendant’s case which includes admission in the defendant’s pleading. It is instructive, at this stage, to recite the opinion of Eso, JSC in Bello vs Eweka (supra) at page 118 of the report where he stated thus –

“I agree, however, with Mr. G.O.K. Ajayi that the respondent, by pleadings, had conceded that the appellant bought the land from Osiobaifo Eweka and, as a result thereof, the appellant would no longer need to call the vendor to prove this. Indeed I take the view that the Court of Appeal was in error when they held otherwise. A statement oral or written made by a party to civil proceeding and which statement is adverse to his case is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement. See Seismograph Service Nig. Ltd vs Chief Keke Ogbenekwe Eyaufe. (1976) 9 – 10 SC 135, 146”

The appellant in his statement of defence impliedly admitted the purchase of the land from Dada Agunwa family. It is, consequently not open to him to question the respondents’ title on which he hung his own title. By his oral testimony as well as his written pleadings he appears satisfied with the respondents’ title. These are materials which substantially strengthened the respondents’ case and respondent was entitled to derive solace from it.

This respectfully disposes of the appellants issue 1 but I propose to briefly deal with the applicability of the case of Lawson vs Ajibulu (1997) 6 NWLR (pt 507) 31 to the circumstances of the instant appeal. Learned trial judge in his judgment agreed with the learned counsel for respondents that the facts of this case make the case of Ajibulu (supra) inapplicable. The four grounds on which the learned trial judge found the case of Lawson vs. Ajibulu (supra) distinguishable are as follows-

“1. The defendant in this case did not plead that Idara family owns the land while the defendant in Ajibulu’s case did so.

2. The plaintiffs in this case pleaded that the land originally belonged to Dada Agunwa family under Yoruba Native Laws and Custom unlike plaintiff in Ajibulu who did not plead that the land belong to Aina Adeniyi family.
3. The defendants in Ajibulu’s case joined issue with the plaintiff in that case on the validity of the Plaintiffs’ Deed of Conveyance, exhibit B. As a matter of fact, the defendant on been shown exhibit B believed it and made part payment.
4. The defendant in Ajibulu’s case were held to be first in time on the land in dispute before the plaintiff in that case. In the present case, the plaintiffs first came to the land through their father in 1928 while the defendant in this case even if his evidence is to be believed got unto the land in dispute in 1976.”

It is clear from the foregoing that all the elements present in Ajibulu’s case are conspicuously absent from the instant case. The appellant did not in his pleadings raise any issue which if resolved in his favour would amount to a defence. In this court, all he was able to urge on us in his brief is to the effect that the distinguishing factors were not enough to relief the respondent of the burden of proof. He has not disputed the existence of these four factors which made this instant appeal distinguishable from the facts of the case under reference.

The respondents on the authority of Idundun & Ors v Okumagba & Ors (supra) read along with Malifonwu v Egbuji (supra) proved their title to the land. Ground 1 of the grounds of appeal from which issue 1 is derived fail and is dismissed.

The next issue is appellants issue 2. In arguing this issue, learned counsel for appellant, in the Appellant’s brief of argument, read paragraphs 11, 12 of amended statement of claim as well as paragraph 16 of further amended reply. He also recited the testimony of second plaintiff witness both in – chief and cross – examination. Thereafter learned counsel for appellant proceeded to read paragraph 9 – 25 of the 2nd amended statement of defence. He equally made reference to his evidence as defendant first witness before reading some portion of the judgment.

Thereafter, learned counsel for appellant submitted that the learned trial judge should have determined the following from the pleadings and evidence

i. the balance of the purchase money of the land.

ii. whether there was a demand for the balance

iii. the reasons given by the defendant appellant for not paying the balance.

The submission of the learned counsel for appellant is not only oblivious of the respondent’s claim but also misconceived. It is common ground that the land was sold to him for N6,000.00 and he made a part payment of N3000.00. In this connection, it will be pertinent to read the paragraphs of pleadings to which the court was referred in the appellant’s brief of argument.

Respondents averred in paragraphs 11 and 12 of their amended statement of claim as follows-

“11. The plaintiff continued to exercise maximum acts of ownership and possession on the vast parcel of land until 1984 when the Defendant approached them to sell to him six plots out of the said parcel of land for N12,000.00 (Twelve Thousand Naira only).

12. The Defendant thereafter informed the plaintiff that he would deposit N3,000.00 (Three Thousand Naira only) and the balance of N9,000.00 (Nine Thousand Naira only) would be settled within three months of the deposit” (underlining mine)

In the 2nd’ amended statement of defence, the appellant aver In paragraphs 9, 10, 12, 14, 15, 16, 17, 18, 20, 23, 24 and 25 as follows-

9. That the Defendant avers that he gave the 1st Plaintiff, the three thousand naira at Ebute Metta…… and a receipt No. A12520 was issued to him with an understanding that he should continue with his developments on the land and pay the balance at his convenience.

10.That the issue of 3 months period within which to pay did not feature in their mutual agreement and the outstanding balance was not indicated on the face of the receipt.

12. That in late 1984 shortly after the payment of the three thousand deposit, one Inspector Osomor came to the land with armed policemen to disturb the defendant’s workers claiming ownership of the land and that he purchased the land from IDARA family.
13. The defendant avers that he also reported the matter to the 1st plaintiff who promised to intervene and prove to Inspector Osomor that the land belonged to the defendant but 1st plaintiff failed to show up at the land in dispute despite repeated visits to his house by the defendant.
14. That sometimes in November 1984, Inspector Osomor detained the defendant at Isokoko Police Station, Agege. The defendant was released as a result of intervention of Alhaji Dajuma.

16.The defendant further avers that at this stage he sought the assistance of Alhaji Danjuma at Agege to save him from the claims of Inspector Osomor who agreed to take Two Thousand Naira (2,000.00) as final settlement of his claim over the land in dispute.

17. The defendant avers that when the threats and intimidation by Inspector Osomor became unbearable he had to petition the Inspector General of Police as regards the acts of Inspector Osomor. A photocopy of the petition dated 24/11//1984 would be relied upon at the trial.
18. The defendant further avers that sequel to the agreement between himself and Inspector Osomor as stated in paragraph 15 above, he ran to the 1st plaintiff to intimate him of the agreement and he advised that the defendant should pay Osomor the two thousand in order to protect his properties on the land.

20.That there was no disturbance whatsoever from Inspector Osomor or any body after the settlement and the plaintiffs did not demand for the balance of their One thousand naira after the defendant paid N2,000.00 to Inspector Osomor for the same land based on the advice of the plaintiff.

23. That the defendant has paid two thousand naira out of the three thousand naira balance to inspector Osomor with the plaintiffs notice and authority.
24. The defendant avers that it was as a result of the two thousand naira he paid Inspector Osomor with the plaintiff’s advice and authority, that he was unable to pay the balance to the plaintiffs since then.
25. The defendant avers that he had the intention of paying the balance of One Thousand Naira (1,000.00) to the plaintiff at his convenience before he received court summons in respect of this suit and he was so surprised because the plaintiffs or their servants did not show any sign that they were displeased with the gentlemens’ agreement between himself and the plaintiffs.” (underlining mine)

I deliberately set out the defence of the appellant in extenso to demonstrate how phony and porous it is. It is important to note that paragraphs 18, 20, 23 and 24 of the statement of defence to the effect that the appellant made payment of N2,000.00 to one Osomor at the instigation of the respondent are at variance with pleadings and evidence. The appellant averred in those paragraphs of the statement of defence that he effected the payment of N2,000.00 to Osomor with the knowledge or advice of the first respondent. But his evidence which he referred the court to at page 206 of the record reads as follows –

“I went to meet the plaintiff to inform him about what happened at the police station. He told me that that was none of his business.”

This is consistent with the averment in paragraph 14 of the same amended statement of defence.

On the pleadings recited above as well as paragraph 10 of the second amended statement of claim which is recited immediately hereunder.

“10. That the defendant further avers that the possession of the land in dispute passed to him immediately he paid the 1st plaintiff the sum of three thousand naira deposit as agreed and he continued the physical development of the land immediately.” And evidence adduced by the parties, it is common ground that a Three Thousand Naira deposits was made. What then is the meaning of the word deposit in ordinary parlance and as applied in ordinary contract of sale is the meaning which would attach to it. A “deposit” per se is according to interpretation of businessmen a security for the completion of the sale. Since the payment of the balance of the purchase price was not made, the duty or obligation of both parties are suspended automatically under the contract: Willam Cory Sons Ltd vs. I.R.C (1965) A C 1088 and Hall vs Bumell (1911) 2 Ch D 551, 554. The payment of the balance of the purchase price in the event under the purchase of the property that did not happen which reverted the parties to the position they occupied prior to the payment of the deposit. The parties revert automatically to their previous position without need for an order of reversion.

Where the purchase price of land under customary law is not fully paid there can be no sale, irrespective of the fact that the purchaser is in possession. That possession can not defeat the title of the vendor Odufuye vs Fatoke (1977) 4 SC 11; Oloto vs Administrator-General (1946) 12 WACA 76, Akingbade v Elemosho (1964) 1 All NLR 154 and Odusoga v Rickett (1997) 7 NWLR (Pt 511) 1 at 21 where Wali JSC said-

“The fact that the respondent made part payment to the vendors for which he obtained a receipt Exhibit A did not pass the legal estate of the land in dispute to him. Where a purchaser, as in this case, paid only part of the purchase price of a parcel of land which was demarcated into plots before the sale, went into possession, develop substantial part of the land while leaving the rest bushy and undeveloped, the legal estate of the undeveloped part still remained with the vendor, particularly when the purchaser had failed to pay the balance of the purchase price after several demands”

At page 25 of the report Onu JSC stated as follows-

“In the instant case, no such customary sale did indeed take place and the trial court rightly so found.

This is because the respondent did not pay the full price for the 4 plots of land he purported to purchase from the appellants for ?950 with a balance of ?50 left unpaid. The attributes of a void sale being therefore absent from the purported sale to the respondent, title thereto not having passed, the court below seriously erred when it held that under customary law the legal representatives of Jemi Alade transferred the ownership of the land in dispute on the part payment of the purchase price thereof. A fortiori, the court below also was in error when it held that the execution in 1976 of Exhibit B was a confirmation of the purported customary sale which took place in 1965 or that delay or negligence do not come into play here.”

At page 26 of the report Adio JSC of the blessed memory also stated as follows –

“An agreement between the seller and purchaser, payment of the full purchase price and the delivery of possession in the manner required by native law and custom create a valid title to a parcel of land under native law and custom. See Ogunbambi v Abowab (1951) 13 W.A.C.A. 222; Cole v Folami (1956) SCNLR 180; 1956 1 FSC 66 and Akingbade v Elemosho (1964) 1 All NLR 154. The court below erred, therefore, when it held that under customary law the legal representatives of Jemi – Alade estate transferred the ownership of the land in dispute on the part – payment of the purchase price.” (underlinings mine)

Where part payment of the purchase price was made and the balance is tendered within the time stipulated or in the absence of prescribed time within a reasonable time, the vendor cannot rescind the sale and the purchaser in possession will be entitled to an order of specific performance. There appears to be no time fixed for the payment of the balance in this appeal. The appellant testified on 10th April, 2003 admitting that he had not paid the balance of N3000.00. Neither in his pleadings nor in his testimony did he testify that he ever offered the balance to the respondents. On 16th April, 2003, when the appellant gave his evidence, it was 19 years since he made the deposit or part payment. There is nothing before this court that he ever did so since his testimony in the court below, the delivery of the judgment of that court and now. The delay is not only unreasonable but also inordinate. There is, therefore, right in the vendor to rescind the contract of sale and resell the property since the purchaser who made part payment had defaulted on the payment of the balance: Odusoga v Ricketts (supra) at p. 16 where Supreme Court per Ogundare stated thus-

“In an attempt to distinguish Homes v Smith from the case on hand, the court below, per Ademola JCA was of the opinion that payment made by the plaintiff and receipted for in Exhibit A was not deposit but part-payment. I cannot see what difference this distinction makes in this ease. The factual situation here is that plaintiff did not fully pay for the land he bought from the family of Jemi-Alade in 1965 and the family resold the undeveloped part of it to the 1st defendant, after repeated demands made to the plaintiff to pay had yielded no results. On the authorities, there was neither a valid sale in 1965 under customary law nor had the plaintiff in 1972 equitable title to the land under the Common Law, such as would entitle him to a decree of specific performance. The question of whether what was paid was a deposit or part payment only becomes relevant when determining the right of the purchaser to a refund of what he had paid. That issue does not arise in this case. The administrator of Jemi – Alade was entitled to sell and convey the land in dispute to the 1st defendant/appellant in 1972, following the failure of the plaintiff to pay the balance of the purchase price, despite repeated demands.”

The respondent did not have to resort to long process of litigation to recover the balance of the purchase price. This is because, on the authorities, one party to a contract has his option if a party to a contract commits a breach thereon, if the breach goes to the root of the contract. He may treat the contract as still existing and sue for specific performance or he may elect to hold the contract at an end in other words no longer binding on him. The respondent’s chose to bring the contract to an end and is not obliged to sue in specific performance. The right in the circumstance of this case accrued to him inevitably or unavoidably where the purchaser who has made a part – payment of the purchase price is in default of payment of the balance the vendor has right to rescind the contract of sale and re-sell the property.

The answer to the appellant issue 2 is positive; ground 3 of the grounds of appeal from which it is derived fail and is dismissed. The next and last issue is whether appellant was rightly held for trespass. In this regard, learned counsel for appellant submitted that both parties in their pleadings and evidence before the trial court are claiming to have been in possession of the land. Learned counsel submitted further that if the trial court had put the evidence of both parties as to being in possession of the land on an imaginary scale and weighed one against the other, the trial court would have held that the defendant/appellant had been in possession of the land in dispute. Learned counsel for appellant finally submitted that if this court resolves issue 1 of appellant’s brief in favour of appellant then the defendant/appellant going by his evidence before the court should be adjudged to be the party in possession and as such the respondents are not entitled to the award of N20,000.00 as damages for trespass.

It seems to me that appellant has, by his last submission obliquely submitted to the finding of the learned trial judge. The court, having not resolved this Issue In favour of appellant but held that the plaintiffs/respondents have proved their title to the land, cannot adjudge the appellant as the party in possession. This finding is in line with a long line of cases that where two persons lay claim to be in possession of a parcel of land the law ascribes possession to one who succeeds in proving better title. See Convey Island Commissioner v Freddy (1922) 1 Ch 179. There is evidence on record that the respondents were in possession of the land in dispute before the appellant broke in and commenced construction of a fence to enclose the land. The appellants himself admitted starting construction on the land. This is not the type of possession envisaged by the law since a trespasser cannot claim possession by his own act of trespass: Aromire v Awoyemi (1972) 1 All NLR 101, 103. The appellant has not pretended to base his claim to be in possession on the inchoate sale he had from the respondents. This will not avail him because he never acquired title to the land. A sale of land under native law and custom which will transfer the legal estate from the vendor and vest it on the purchaser must satisfied these conditions:

(i) payment of the full purchase price and, not part payment as in the instant case, to the vendor by the purchaser; and

(ii) delivery of the parcel of land to the purchaser by the vendor in the presence of witnesses.

See Ogunbambi v Abowaba 13 WACA 222 and Cole v Folami (1956) 1 FSC 66, 1956 SC NLR 180; Akingbade v Elemoshom (Supra). There is no evidence that the appellant satisfied any of these conditions precedent for acquisition of the estate in the land. He failed to pay fully. The parcel of land was never formally delivered to him in the presence of witnesses. Consequently there is no evidence of his lawfully entering into possession. The incidence of a party who lawfully entered into possession and subsequently abusing his possession does not call for consideration and determination here. See Ajibade vs Pedro (1992) 6 SCNJ Pt 1 44 (1992) 5 NWLR (pt 441) 241, 257.

It is settled that a claim for damages for trespass lies at the suit of one in possession or entitled to possession: Amakor v Obiefuna (1974) 1 All NLR (pt. 1) 119. The position of the law is now well settled. The position is that trespass is a civil wrong against possession that it is an unlawful and unauthorised invasion of the right of the party in possession: Adeniran v Alao (1992) 2 NWLR (Pt 223) 350 and Foreign Finance v LSDPC (1991) 5 SCNJ 52. Any possession is a legal possession against a wrong doer: Adeniji vs Ogunbiyi (1965) NMLR 395,397. In Lord Advocate v Young (1887) 12 A.C 544, 556 Lord Fitzegerad said-

“by possession is meant possession of that character of which the thing is capable.”

The only possession appellant had was his unlawful entry on to the land which is not permissible. The answer to this question is positive. It is for that reason resolved against the appellant. His ground 4 of the grounds of appeal equally fails and is dismissed. Grounds 2, 5 and 6 from which no issue is distilled having been deemed abandoned are consequently struck out.

All the grounds of appeal having failed and dismissed the appeal fails and is dismissed.

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Other Citations: (2009)LCN/3194(CA)