Chief D. B. Ajibulu V. Major General D. O. Ajayi (Rtd) (2003)
LawGlobal-Hub Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
This is an appeal against the judgment of the High Court of Justice, Osun State, Osogbo Judicial Division, delivered on the 30th day of April, 1993. The respondent in this appeal instituted this action as suit No. HOS/12/97 against the appellant as defendant claiming according to the endorsement on the writ of summons and paragraph 21 of the amended statement of claim as follows:
(i) N500,000.00 (Five hundred thousand Naira) damages for trespass committed by the defendant, his agents or servants on the plaintiff’s land situate, lying and being at Dada Estate Egbedore Local Government Area of Osun State, covered by a deed of conveyance registered as No. 43 at page 43 in volume 1502 of the Lands Registry in the office at Ibadan.
(ii) Perpetual injunction restraining the defendant, his agents, servants or privy from committing any further trespass on the land.
Parties filed and exchanged pleadings. In the course of trial before the lower court parties adduced oral evidence in support of their pleadings and tendered plan and documents of title. It was the case of the respondent as plaintiff that he bought the land in dispute from Chief Timothy Dada now deceased in 1972. It was part of a wide expanse of land – known and referred to as Dada Estate. The land was surveyed in July, 1972 and was formally conveyed to the respondent by the vendor Chief Dada by deed on the 23rd of June, 1972 – with a survey plan No. WP 89/3/72 dated 19/9/72, attached to the deed of conveyance.
The deed of conveyance registered as No. 43 at page 43 in volume 1502 of the Lands Registry in the office at Ibadan was tendered as exhibit A by PW1. He occupied the land undisturbed until 1996, when he discovered that the appellant – the defendant before the trial court, trespassed on the land. The appellant also purchased a parcel of land from Chief Dada – the same vendor as the respondent near the land in dispute.
The deed of conveyance between Chief Dada and the appellant dated 19/2/73 and registered as No.9 at page 9 in volume 1462 of the Land Registry was tendered as exhibit B. In 1996, the respondent found an uncompleted building on his land. A composite plan showing the land in dispute was tendered as exh. C by the Deputy Surveyor General of Osun State. The appellant built a house on the land he bought from Chief Dada. In 1995, the land was acquired by the Osun State Government whereupon the house erected by the appellant on the land was consequently demolished – so as to give way for the Osogbo Western Bye-Pass Express Road. Having lost his land and house the appellant’s children moved him to the land in dispute in 1995. His son gave him an agreement transferring the land to him. The agreement the appellant claimed was given to him in 1978. The land granted to the appellant by his son was supposed to have been sold to them by Sapo family. The agreement of sale sought to be tendered as IDKI was later expunged from the records as inadmissible.
In a considered judgment of the learned trial Judge all the respondent’s claims were granted in its entirety vide pages 30-44 of the records. Being aggrieved by the judgment the appellant lodged an appeal to this court. He filed a notice of appeal with three grounds and later filed four additional grounds pursuant to an order of this honourable court granted on the 2nd of October, 2000. Parties settled records – conditions of appeal imposed and record of appeal was compiled.
Parties filed and exchanged briefs pursuant to the Court of Appeal Rules, 2002. At the time of the hearing of this appeal – the appellant relied on the brief filed on 7/6/2001 and the respondent on the brief filed on 21/5/2002. In the appellant’s brief two issues were distilled for determination as follows:
(i) Whether having regards to the facts and circumstances of this case, the respondent could be said to have discharged the burden of proof that should entitle him to succeed in a claim for trespass and injunction.
(ii) Whether the learned trial Judge gave adequate and or any consideration to the principle of Mogaji v. Odofin (1978) 4 SC 91.
The two issues flow from the seven grounds of appeal filed.
The respondent identified three issues for determination as follows:
(1) Whether having regards to the facts and circumstances of this case, the respondent established his title over the land in dispute.
(2) Whether having regards to the evidence before the court the identity of the land in dispute is certain.
(3) Whether on the principle of Mogaji v. Odofin (1978) 4 SC 91, the trial Judge adequately evaluated and reviewed the evidence and facts before him before arriving at his decision.
This court shall adopt the two issues formulated by the appellant as the issues for determination of this court.
On issue No one, asking whether having regard to the facts and circumstances of this case the respondent could be said to have discharged the burden of proof that should entitle him to succeed in a claim for trespass and injunction. I observe that issues numbers one and two in the respondent’s brief are also subsumed in this issue.
The appellant argued and submitted on this issue that the learned trial Judge concluded that the plaintiff from the facts and the law has discharged satisfactorily the onus of proof required of him in a civil case pertaining to the nature of his claim to warrant judgment being given in his favour.
The appellant emphasized that the respondent has the burden of establishing his title to the land in dispute, and of identifying the land in dispute. The respondent tendered the conveyance executed in his favour by Chief Dada 43/43/1502 at the Land Registry Ibadan – exh A before the trial court. The appellant remarked that the learned trial Judge failed to appreciate that parties joined issues as to the title of the respondent’s vendor in exh. A not only on the pleadings, but also in the evidence.
The respondent did not adduce evidence to reveal the title of his vendor Chief Timothy Dada to the land in dispute DW2 was not cross-examined on his evidence denying title of Chief Dada to the land – and as such there was no finding as to who has a better title between Chief Dada and Alhaji Bello Ajani Sapo – which is fatal to the respondent’s case. The court ran into the error of first considering the case for the defence before that of the plaintiff.
As to the identity of the land in dispute, the respondent failed to establish any nexus between the land in dispute and exh. A – the conveyance. In effect, the respondent failed to establish his title to the land. The appellant also raised the fact that parties joined issues as to the exact description of the land in dispute both on the pleadings and evidence.
Both parties described the land in dispute in their respective pleadings. The appellant however, believed that the respondent does not know the land in dispute and that it was imperative that that disputed plan must have been filed. The respondent filed a composite plan showing different plots of land including the appellant’s previous land. Only 10% of the disputed land was destroyed by the express road. The learned trial Judge should have found for the appellant when the respondent could not ascertain the land. Where the respondent failed to establish the identity of the land in dispute – his case must fail. The court is urged to resolve this issue in favour of the appellant. The appellant cited the cases of Ogungbemi v. Asamu (1986) 3 NWLR (Pt. 27) 161; Agbaisi & Ors. v. Ebikorefe & Ors. (1997) 6 NWLR (Pt. 502) 630; Nnaife v. Ogadike (1959) SCNLR 12; Okorie v. Udom (1960) SCNLR 326; Maberi v. Alade (1987) 2 NWLR (Pt. 55) 101; Fawehinmi v. Abacha (1996) 9 NWLR (Pt.475) 710. Kodilinye v. Odiu 2 WACA 336; Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66; Okuoja v. Ishola (1982) 7 SC 314; Oluwi v. Eniola (1967) NMLR 339.
The respondent replied that the learned trial Judge was right in his judgment in giving judgment to the respondent. The respondent purchased the land from one Chief Timothy Dada as evidence by the deed of conveyance registered as exh. A. Appellant also bought land from Chief Dada as evidence by the deed of conveyance exh. B. The appellant’s land was acquired by the Osun State Government for the construction of an express road. When he moved to a plot of land transferred to him by his son – the document exhibited for the transfer bore the date 1978 – though the transfer was effected in 1995. The learned trial Judge referred to it as a concocted piece of defence. Alhaji Bello Sapo – from whom the appellant’s son acquired the land in dispute, did not offer credible evidence about the sale he was utterly confused – as to the identity of the person he sold the land. The appellant did not offer any creditable evidence of title.
The learned trial Judge was right in his findings and conclusion in favour of the respondent. The respondent cited the cases of Idundun v. Okumagba & Ors. (1976) 9 – 10 SC 227; Abotile Kponugio v. Ada Kdaja (1931) 2 WACA 24; Pius Amakor v. Benedict Obiefuna (1974) 3 SC 67 at 82; Ogunbiyi v. Adewumi (1988) 5 NWLR (Pt. 93) 215; Jones v. Chapman (1848) 2 Exchaq 803; Egbaran v. Akpotor (1997) 7 NWLR (Pt. 514) 559; Nwabueze v. Obi-Okoye (1988) 4 NWLR (Pt. 91) 664, (1988) 10 – 11 SCNJ 60 at 72; Ijale v. A.-G., Leventis & Co. Ltd. (1959) SCNLR 255.
The respondent submitted that where both parties to a land in dispute know and are familiar with the land in dispute the question of its identity or its certainty will cease to perplex the trial court and no disputed plan is required. The appellant did not make an issue of the identity of the land in dispute nor its area, size, location or feature shown on the respondent’s plan exh. C disputed. The appellant in paragraph 13 of the amended statement of defence at page 6 of the records pleaded that he was farming on the land in dispute in 1975. Evidence clearly show that the parties are ad idem as to the location and identity of the land in dispute. The cases of Nwogo v. Njoku (1990) 3 NWLR (Pt. 140) 570; Akinterinwa v. Oladunjoye (2000) 6 NWLR (Pt. 659) 92, (2000) 4 SCNJ 149; Odofin v. Oni (2001) 3 NWLR (Pt. 701) 488; (2001) 1 SCNJ 157 cited by the respondent.
On issue No.2 which is that the learned trial Judge did not give adequate or any consideration to the rule in Mogaji v. Odofin (1978) 4 SC 91, before coming to his decision in this suit. In that case, it was decided that in coming to its decision a trial court is obliged to consider and review the case of both parties by placing same on an imaginary scale and should weigh one against the other. In this case, the court considered the case of the defence and thoroughly destroyed same before considering what the opposition is left for the plaintiff’s case and finding none proceeded to enter judgment of the plaintiff negate the principle in Mogaji v. Odofin. That approach of the learned trial Judge was highly prejudicial to the appellant’s case. The appellant cited cases of Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24; Mogaji v. Odofin (1978) 4 SC 91.
The respondent replied that the evaluation of evidence and the ascription of probative value is the duty of the trial Judge – while the style used by the trial Judge is not a matter to be impugned. The essential thing is that a Judge should consider all the evidence before him by evaluation before arriving at his conclusion. In this trial, the learned Judge gave consideration to the totality of the evidence before him and weighed the conflicting evidence adduced by both parties before coming to his conclusions. Vide the records at page 30 line 26 to page 34 line 9, page 40 lines 4-9 and page 43 lines 10 – 22. An appellate court will not disturb the evaluation and findings made by the trial court unless such are shown to be perverse.
The respondent cited the cases of Awopejo v. State (2001) 18 NWLR (Pt. 745) 430, (2001) 12 SCNJ 293; Emeagwara v. Star Publishing Co. (2000) 10 NWLR (Pt. 676) 489, (2001) 5 SCNJ 175.I shall now proceed to address both issues – while my conclusion is that two issues as identified by the parties are similar. The first issue is for this court to consider whether the respondent as plaintiff before the lower court discharged the burden of proof that should entitle him to succeed in a claim for trespass and injunction. Before going to examine the totality of the evidence at the disposal of the trial Judge when he found for the respondent in his claim for trespass and injunction.
I shall examine the burden of proof which a party claiming in trespass and injunction before a court is supposed to discharge. It is basic and trite – and it is supported by a plethora of cases that where a claim for trespass is coupled with a claim for an injunction – the title of the parties to the land in dispute is automatically put in issue.
Akintola v. Lasupo (1991) 3 NWLR (Pt. 180) 508; Okorie v. Udom (1960) SCNLR 326; Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt 158) 514; Ige v. Fagbohun (2001) 10 NWLR (Pt.721) 468; Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562 SC.It is imperative from forgoing that the respondent as plaintiff before the lower court – and the appellant as defendant both must go ahead to further proof the title to the land in dispute.
Both parties according to the records gave evidence of how they came to own the land in dispute. The respondent traced his title to one Chief Timothy Dada – in July 1972. The land was surveyed by the vendor – and formally conveyed to him by deed on the 23rd of June, 1973, with a survey plan WP89B/72 dated 19/9/72 attached to the deed of conveyance. The same deed of conveyance was registered as 43/43/1502 in the Lands Registry Ibadan. The conveyance was admitted in evidence in the course of the trial before the lower court as exh. A.
While the appellant as a source of title to the land in dispute alleged that his son transferred the land to him in January, 1978 and his son gave him a document to that effect. The appellant produced two documents which were mere agreements of transfer of portion of land sold to his son by Sapo family. It is however noteworthy that when Alhaji Sapo from the family that sold land to the appellant came to give evidence as DW2 – that he sold land to the appellant and his son – but he could not even identify the appellant’s son to whom he sold land. Moreover, the appellant gave evidence that it was when he lost his plot of land sold to him by late Chief Dada in 1995, that his son offered him a portion of the land sold to him by Sapo family wherein he built. He came into the disputed land in 1995, whereas the instrument bore the date 1978.
The appellant said his son gave him the document in 1978. Vide page 40 lines 33 to page 41 lines 1 – 24 of the records. The learned trial Judge said in his judgment:
“Both parties rely on sale of land in dispute to them by different persons namely Chief Timothy Dada and Olanrewaju Ajibulu respectively. Whilst the plaintiff produced the deed of conveyance
exhibit A conveying the land in dispute to him in 1973, the defendant produced two documents which were agreement of transfer of a portion of land and sale to him and his son neither of which is sufficient in law to confer title to the land on him.” Vide page 40 lines 21 -28.
From the foregoing having weighed the evidence of both sides in support of their root of title, and particularly because of the discrepancies in the evidence of the appellant as to how he got title to the land in dispute – the learned trial Judge expressed his satisfaction as to the root of title of the respondent. Page 40 lines 4-9.
The appellant also held a grouse in respect of failure of the learned trial Judge to make a finding as to the title of the respondent’s vendor to the land in dispute.
The law is that it is the duty of the plaintiff seeking title to land to show how he or his predecessor-in-title has acquired title in one of the five ways or method recognized in proving title to land.
The respondent had established to the satisfaction of the trial court – that he acquired the land in dispute by sale whereupon, the document of title the conveyance exh. A was executed in his favour – Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Piaro v. Tenalo (1976) 12 SC 31; Ige v. Fagbohun (2001) 10 NWLR (Pt. 721) 468.
A party in a land suit who claims ownership may plead and prove title by any of the five recognized ways by which ownership of land may be proved under the Nigerian Legal system which includes:
(1) By traditional history or evidence; or
(2) By documents of title;
(3) By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership; or
(4) By acts of long enjoyment and possession of the land; and
(5) By proof of possession of adjacent land in circumstances, which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute.
The respondent proved his title by authentic document of title as in (B) above whereas the documents tendered by the appellant were mere agreement – which is not recognized as document of title. Idundun v. Okumagba (1976) 9-10 SC 227; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Mogaji v. Cadbury Ltd. (1985) 2 NWLR (Pt. 7) 393; Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177; Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562; Adesanya v. Aderounmu (2000) 9 NWLR (Pt. 672) 370.
The respondent satisfied the court on his own title – the court did not venture to inquire into the title of his predecessor in title. In this case, the respondent relied on conveyance and proved same- he does not need to go beyond and prove the title of his vendor except where it has become an issue. Dosunmu v. Jofo (1987) 4 NWLR (Pt. 65) 297; (1987) 2 NSCC 1182.
The appellant went into the issue of identity of the land – because he held that the respondent does not know the land in dispute.
There is abundant evidence that both parties know the land in dispute – as there is plan of the land attached to the conveyance exh. A, a composite plan exh. C by a witness of the respondent. Besides the respondent gave the description as plot 11 along Timi Road – Chief Timothy Dada Estate Layout and gave the names of his boundary-men. While the appellant agreed in paragraph 13 of his amended statement of defence that he once farmed on the land in 1975 to the disapproval of Chief Timothy Dada who objected that the plot was not his own.
The court was convinced that the land in dispute was ascertained and both parties knew its identity. Nwogo v. Njoku (1990) 3 NWLR (Pt. 140) 570.
The law is further that when the issue is as to which of two claimants has a better right of possession to and/or occupation of a piece or parcel of land in dispute the law will ascribe such possession and/or occupation to the person who proves a better title thereto. Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263; Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101; Ige v. Fagbohun (2001) 10 NWLR (Pt.721) 468; Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562.The learned trial Judge found that possession is in the respondent having proved a better title. Trespass is an unjustified interference or intrusion with possession of land. Ogunleye v. Adewunmi (1988) 5 NWLR (Pt. 93) 215; Onagoruwa v. Adeniji (1993) 5 NWLR (Pt.293) 317; Yusuf v. Akindipe (2000) 8 NWLR (Pt. 669) 376.The appellant admitted moving into the land building upon it when his son offered him the land – on which the learned trial Judge found trespass proved. The learned trial Judge went to grant the claim for injunction to curtail the continued act of trespass by the appellant, his agent, servant or anybody claiming through him.
It is consequently the conclusion of this court from the foregoing that the respondent discharged the burden of proof entitling him to succeed in a claim for trespass and injunction and the learned trial Judge was right to have found for him to that effect. That issue is resolved in favour of the respondent.
Issue number two is whether the learned trial Judge gave adequate or any consideration to the principle in Mogaji v. Odofin (1978) 4 SC 91 before coming to his decision in this case.
It is first and foremost appropriate to examine the principle enunciated in Mogaji v. Odofin. The rule explains the duty of court vis-a-vis evaluation of evidence that –
“Where parties testified before the trial court and called witnesses, before the trial court accepts or rejects the evidence of other side, it is enjoined to set up an imaginary judicial scale of justice by putting the pieces of evidence adduced by the plaintiff on the one side and putting the pieces of evidence of the defendant on the other side of the imaginary scale of justice and weighing both together, not by the number of witnesses called by the parties, and giving them probative value.”
This is what is meant under our adversarial system of jurisprudence that civil cases are decided on preponderance of evidence – Mogaji v. Odofin (1978) 3-4 SC 91.
The contention of the appellant on this issue is that the learned trial Judge considered the evidence led by the defence, who filed no counter-claim and demolished same even before reviewing the address of the respondents – and the appellant was highly prejudicial by so doing. What the appellant attacked was in effect the style adopted by the trial Judge in his evaluation of evidence and ascription of probative value to same. The appellant admitted in short that the learned trial Judge considered the case of both parties. This is apparent in the judgment of court particularly as from pages 40-44 of the record. If what the appellant indeed and actually criticized is the style adopted by the learned trial Judge in his judgment that is not a matter to be reproached as long as he considers all the evidence before him by evaluation before arriving at his conclusion which this court holds that he did looking at the records.
The attitude of court in respect of evaluation of evidence is that in deciding whether or not a trial court properly evaluated the evidence, the essential focus should be on whether the learned trial court made proper findings and reached the correct judgment upon facts before it. It is not the method or approach that necessarily determines these ends.
Thus, so long as a trial court does not arrive at its judgment merely by considering the cases of one party before considering the case of the other, its judgment if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case it may have adopted. Woluchem v. Gudi (1981) 5 SC 291.
A judgment will not be ruled out as bad because the trial Judge had not set out seriatim his reasons on each specific complaint in the suit. Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282.
It is pre-eminently the duty of the trial court to see, hear and assess each witness as to whether he should be believed or not, and where the trial court, has discharged that responsibility, the appellate court will not interfere with such finding unless they are shown to be perverse, unsupported by evidence or based on evidence not legally admissible. The findings of the trial court in the case do not fall into any of these groups hence, the court has no cause or reason to disturb it. Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Ebba v. Ogodo (1984) 1 SCNLR 372; Woluchem v. Gudi (1981) 5 SC 291; Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) 172; Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21. Issue No.2 is resolved in favour of the respondent.
In sum, this appeal lacks merit and it is accordingly dismissed. N10,000.00 is awarded in favour of the respondent.
Other Citations: (2003)LCN/1457(CA)
