Chief R.A. Adeagbo V. Prince M. A. Williams (1997)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A. 

By a writ of summons dated 22/9/96, the plaintiff claims against the defendant-

(1) the sum of N6000.00 (Six thousand Naira) being damages for trespass committed on or about the 13th day of September, 1986 on the plaintiffs land and situate at 12 Prince Hamidu Williams Way, Okota, Isolo and shown on survey plan no. JLA/18/81.

(2) An injunction restraining the defendant, his servants and or agents from committing further acts of trespass on the said land.

The facts of the case are that the plaintiff now the respondent stated that he is in possession of a parcel of land situate at 12 Prince Hamidu Williams Way at Okota, Isolo which land forms part of a larger area of land belonging to Okota family and which he bought from the family at Okota in 1975. He stated that he erected a building on the land, but between 1984-85 he was detained by the Military Government and even though he had erected a building on that land, the defendant appellant used his misfortune of incarceration to make ingress into that land. He stated that he had a well and a wooden mosque on the land. When the appellant was challenged, he claimed that he purchased the land in dispute on or about 25th of December, 1976 from the same Okota family who gave him a receipt which was an evidence of sale and he was accordingly put into possession at the instance of one Sura Agbabiaka and Billy Apena of the Okota family. The respondent called three witnesses none of who was from Okota family while the appellant called 2 witnesses one of whom was the head of the Okota family.

In his judgment, the learned trial Judge held:

“The land in dispute was sold to the plaintiff in 1975 by the Okota family of Isolo the same vendor of the plaintiff proceeded to sell the same land to the defendant in December 1976. Plaintiff receipt is dated 25/10/75 No. 82. Defendant receipt is dated 25/12/76 No. 4376.

It is the same land the plaintiff produced Exhibit ‘F’ Survey Plan drawn in 1982 in respect of the land Exhibit C approved Building Plan. There was abundant evidence before me coming from the plaintiff his witnesses and from the defendant that the plaintiff had built on his own plot and the portion utilised is the one being sold to him by Okota family. From the above, I have no difficulty in coming to the conclusion that the plaintiff in this case (is) in actual physical possession. The story of the defendant and his witnesses cannot be true and I do not find it difficult in coming to conclusion that they are not speaking the truth. The defendant in this case has not produced any plan of the land he was claiming. He relied on the plaintiffs plan. If this is so, can it be said that the plaintiff broke into this land in 1986 as per the story of the defendant. This goes to show that the story of the defendant is not a truthful story. The plaintiff had built his house in 1982 on the land. If the defendant was in possession since 1976 what was he looking (sic) in 1982 when the plaintiff started erecting building and completed the building.

Having held that the plaintiff was in physical possession and that his possession was lawful having regard to the fact that the common radical owner had put him in possession in 1975 at the time he purchased the land in the presence of his wife. See Exh. A and the radical owner having recognised him as owners of plot sees Exh. E. Can the common radical owner sell the same land or portion of it to any other person having divested their ownership of the land? The answer to this is in the negative.”

Having lost the case and desirous of pursuing the matter of the presumed infraction of his interest in his land, the appellant lodged an appeal in which he detailed five grounds of appeal from which he thereafter formulated 3 (three) issues. They are the following:

(1) Since title to the land in dispute is in issue whether the plaintiff has proved a better title than that of the defendant to entitle him to judgment.

(2) Whether the plaintiff has proved exclusive possession of the land in dispute as to entitle him to award of damages against the defendant.

(3) Whether Section 45 of the Evidence Act is applicable to the facts of the case.

The respondent having accepted the facts of the case as made out by the appellant formulated the following issues arising out of the grounds of appeal.

(a) Whether the plaintiff had by preponderance of Evidence shown a better title than the defendant/appellant.

(b) Whether the plaintiff was in exclusive possession when the defendant entered the land to entitle him to damages in trespass.

I shall first comment in the matter of fact kind of way the statement of the learned trial judge on the issue of the relevance or otherwise of Section 45 of Evidence Law of Lagos State or Section 46 of Evidence Act of the Laws of the Federation.

It is not in issue that both parties claimed having purchased the land from Okota family at different dates. The question is who purchased first and was the first to be put in possession of the land in dispute. In considering that particular statement of the court, I will make mention of the plan put in evidence having been made in 1982 – some years back before the alleged trespass.

The respondent in his evidence told the court that he bought the land from Okota family in 1975 without specifically mentioning the names of the people who actually sold the land to him or whose names are put in Exh. D which was the purchase price. In respect of the receipt he said in his evidence,

“I cannot deeper (sic) the signature on Exh. A. The receipt carried Okota family. It is from Okota family. The signatory represent Okota family.”

Okota family is not a human person capable of putting a signature to a receipt. The family has to act through living human beings. The persons whose names feature in Exh. A are not known. The expression “I cannot deeper the signature in Exh. A” seems to convey the message that the appellant as defendant could not decipher the name or names of people whose names were mentioned in the receipt given to him. His wife equally did not know the names of the people who sold to him yet interestingly both are literate. Although the evidence as to the actual persons from Okota family who were the actual vendors left yawning gap is it conceivable that the respondent would commence erecting a big building on the land and doing all acts of possession in the land of Okola family without the family doing anything to stop him if there had been no sale. From the evidence of the respondent and his wife, the respondent put up three flats house on the land in 1982 but only moved into one of them in 1987. Prior to the trespass he had sand, gravel and a well dug on the land and he constructed a wooden mosque there. From his survey plan the surveying of the land was done in 1982 before even the suit was commenced.

What were the acts of ownership between 1975 when the respondent bought the land and in 1982 when he dumped sand and gravel and other items on the land as well as when he erected the 3 plots. I shall pause here and consider assiduously the case of the appellant. The appellant who had said he bought the land in 1976 at which date he was put in possession stated that there had not been any challenge on the land. He admitted that the respondent had a house adjacent to the land in dispute and is separated by a wall. He denied seeing a caretaker on the land or a wooden mosque or a well. He testified that he had no notice of any adverse intent occasioned by the prior purchase of the land by the respondent. He in so many words refused to agree that Exh. G relates to the property which he bought from Okota family. His evidence was to some extent corroborated by the evidence of his witnesses such as Surajudeen who denied. He denied that the respondent bought any land from them and stringently repudiated Exh. A as coming from their family. He further said that he is not aware that the respondent built on the land. The act of possession is testified by bricklayer who stated that in 1979 he did some filling up, erected a front fence and culvert and that during the course of the work, nobody disturbed him. But he was aware that the respondent owned a living house on the land. The sum total of the testimonies is that both would on the face of it appear to be enjoying equal possession of the land at the same time. But in law there cannot be a concurrent possession of the same land by adverse parties. What then is the truth?

It is to be observed that the appellant filed no plan yet he insisted that the description of the feature on the land such as the house built on the land could not be true. In his evidence in court he stated that after purchasing the land, he made a plan yet it is significant to note that he filed no plan in his pleadings, it is now settled that it ought to be borne in mind always that at common law where question of title to land arises in litigation, the court is concerned only with the relative strength of the title proved by the rival claimant. If party A can prove a better title than Party B, then he (Party A) is entitled to succeed per Diplock in Ocean Estates Ltd. v. Norman Pinder (1969) 2 AC. 19 at 24-25.

What the respondent is saying is that the house he built and which the appellant said he is well aware of is the building that is situate in the plot forming part of the land in dispute. If the appellant failed to file a plan in order to identify and particularise the land in dispute, he cannot be allowed to say that the area of land depicted in the respondent’s plan does not represent the geographical area of the land in dispute. It has to be presumed of him that he is inevitably bound by the plan of the (plaintiff) respondent to give the court at least a bird’s eye view of the identity of the land in dispute. He pleaded none and tendered none. Furthermore, the respondent did make available before the court series of documents to show his undoubted possession. This is apart from the building and the wall on the land which is even recognised by the appellant. It is to be noted that it was when he was in detention that the appellant entered the land ostensibly to establish his rights of possession. The respondent’s ability to describe the area being disputed by a graphic representation is to enable the court know the land in dispute and if he wins to be able to determine the area of land over which an order of injunction was be remade.

It is the primary duty of the plaintiff to show the court clearly the area of land to which his claim relates. See Baruwa v. Ogunsola 4 W.A.C.A 159; Udojia v. Ajia 6 W.A.C.A 216. If he cannot do this, his action will fail. The respondent did this. Inevitably, the issue of possession backed by a more detailed description of vesting of the land in the respondent seems to be better stated by the respondent than the appellant as rightly found by the trial Judge. In the issue of application of Section 45 of the Evidence Act I regard the statement of the court below as mere expression of opinion an orbiter not forming in any way part of the decision making process of court. Therefore no party should lose sleep on it. However although the point is not pleaded but it was held in Higgs v. Nassarian Ltd. (1875) AC 464 by the Privy Council that:

“It is clearly settled that acts of possession of tracts of land provided there is such common character of which title is sought may be evidence of the possession of the whole.”

See also Lord Advocate v. Lord Blantyre (1879) 4 A.C. 770 at 791 where Blackburn said:

“All that tends to prove possession as owners of parts of the tracts tends to prove ownership of the whole tracts.”

The respondent has shown himself to have built a house on the land. He filed a plan of the area in dispute. The appellant filed none. Therefore he is bound by the plan of the respondent as he would be deemed to approve of it regardless of his denial. Mere ipse dixit of the appellant without a plan should be discountenanced. The respondent as stated by the learned trial court showed significant acts of possession and demonstrated a greater understanding of issue at stake. Both obviously bought from the same family but it is certain that by the erection of the building and a well (acknowledged by the appellant) a wooden mosque that the respondent shows that he has firmer grips of the land than someone else coming into the property at a time he was in detention. From 1976 – 86, a period of ten years, the appellant did nothing on the land. In Aromire v. Awoyemi (1972) 1 All N.L.R. (Pt. 1) 101, it was held there and followed in a recent case of Iseru v. Catholic Bishop of Warri Diocese (1997) 3 NWLR (Pt. 495) 517 that where two parties claim to be in possession thereof the one who can show that he has a better title, is in proper possession.

In my view the court below came to a correct finding and conclusion. I have no reason to disturb the judgment of the court below. It stands and the appeal is hereby dismissed with costs to the respondent assessed at N3.000.00.

Other Citations: (1997)LCN/O319(CA)