E.K. Iseru Vs Catholic Bishop Of Warri Diocess (1970)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.S.C.

The Court of Appeal, Benin Division, dismissed the appellant’s appeal against the decision of Warri High Court Bendel State (now in Delta State). The judgment of the High Court was delivered by Uwaifo, J(as he then was) on the 5th day of February, 1985.
The suit was filed by the Catholic Bishop of Warri Dioceses against the appellant claiming for the following reliefs:
“(a) The sum of N100,000.00 (One Hundred Thousand Naira) being special and general damages suffered by the plaintiff when in the month of April, 1977, and thereafter the Defendant by himself and or his agents broke and entered onto the land of the plaintiff (Catholic Mission) lying and situate along Warri/Sapele Road by Bowen Avenue, Warri within the jurisdiction of this Honourable Court without the consent of the plaintiff and against his will and thereby damaged and or destroyed the plaintiff’s fence, cash crops, sugar cane, etc., and started to construct a building thereon.
(b) Perpetual injunction restraining the defendant, his agents and or servants from further trespass into the said land”.
The facts stated briefly are in the following narrative:
The respondent is the sole trustee and custodian of all the properties belonging to the Catholic Mission within the Warri Catholic Dioceses. The land in dispute forms a portion of a parcel of land owned and possessed by the respondent either through a grant or by possessory right. In the case presented before the trial High Court, through the evidence of P.W.1, the respondent tendered a copy of the leasehold granted by the crown to the Catholic Mission Warri in respect of the land in dispute. It was admitted in evidence as exhibit “A”. The Catholic Mission took possession of the land and developed it.

PW1, explained further, in his evidence as follows:
We built Church, and School, Convent, old people’s home, Rev. Fathers quarters, Cathecists houses, boys quarters, gardening etc.

In 1945 the Catholic Mission got another leasehold but it is not related to the land shown in Exh. A. The lease as per Exh. A is still subsisting. In 1951, a road was constructed through the land in Exh. A by the local authority. The road cut the land into two.

There was a swamp area nearby. The Catholic Mission demanded that the portion taken by swamp area be given to them as compensation for the road constructed through their land. The road which was constructed through the Catholic Mission’s land in Exh. A is now called Bowen Avenue.

The District Officer who was administering the local authority then was called Bowen and the road was named after him. Eventually, a licence for temporary occupation of Crown Land was granted to the Catholic Mission. This covered part of the swamp area. I have a certified true copy of that licence.

Here it is, court: Document tendered. Admitted as Exh. B. Witness continues: The Catholic Mission reclaimed the swamp area and planted crops such as sugar cane, yams etc.”
Five more witnesses testified for the respondent. The appellant was the only witness for the defence. In his testimony he alleged that the land in dispute was leased to him by Agbassa people and he registered the leasehold in the Land Registry at Benin City. The appellant who is relying on the leasehold granted him by Agbassa people did not call any of those people who executed the leasehold in his favour to testify and confirm what he told the trial court. After the addresses, the learned trial judge considered all the evidence adduced before him and entered judgment in favour of the respondent, granting to him the following reliefs:

“(a) N3,000.00 (Three Thousand Naira) as General Damages for trespass and
(b) Perpetual injunction restraining the appellant, his servants, workmen, agents, tenants and otherwise whosoever collectively and individually from entering the land in dispute or part thereof with N500.00 costs in favour of the respondent”.
Dissatisfied with the trial court’s decision the appellant filed an appeal before the Benin Division of the Court of Appeal.

The appellant was again not successful because the Court of Appeal affirmed the decision of the High Court. The appellant has finally reached this court appealing against the judgment of the Court of Appeal and urging us to reverse the two concurrent findings of fact given by the two lower courts in favour of the respondent.
The learned counsel for the appellant filed three grounds of appeal but submitted in the appellant’s brief that he would argue only the third ground which reads as follows:-
“The Court of Appeal erred in law and came to the wrong conclusion on the facts when it confirmed the decision of the court of first instance that the defendant trespassed upon the two parcels of land in dispute that is parcel “A” and parcel “B” respectively when the evidence in connection therewith clearly shows that the plaintiff/respondent was never in exclusive possession of either parcel “A” or parcel “B”.

Particulars of Error
i. Having reclaimed the swampy area granted to it per exhibit “B” the plaintiff/respondent applied for a leasehold of the said area per exhibit “H”.
ii. Exhibit “B” shows clearly the features of entire swampy area which the respondent applied for and got.
iii. Exhibit “H” is in conflict with exhibit “L” the survey plan of the land in dispute and related to Exhibit “L” the plaintiff was never in possession of parcel “B” and only partly in possession of parcel “A”.

In the single issue raised from the third ground of appeal (reproduced above), the appellant questioned whether the appellant could be adjudged a trespasser when the respondent was not in exclusive possession of the land allegedly trespassed upon by the appellant. Before I consider the argument in support of this issue it is pertinent to note that there are two concurrent findings of fact in which the two lower courts agree that the evidence before the trial court had shown the location and extent of the land in dispute.

The lower courts also made decisive findings that the respondent was in exclusive and effective possession of that land. It is for the appellant, to bear in mind that the rule of practice is that, in the absence of special circumstances, this court will not allow a question of fact to be re-opened where there have been two concurrent findings of fact by two lower courts. This was clearly stated in our decisions in Mogo Chinwendu v. Nwanegbo Mbamali (1980) 3 SC 31 and Ukpe Ibodo & Ors. v. Enarofia and Ors (1980) 5-7 SC 42 at 55.

Learned counsel for the appellant, Chief Debo Akande, SAN, took the main issue upon which this appeal rests. The issue is whether the respondent could succeed in his claim against the appellant based on trespass to the land in dispute when the Mission was not in exclusive possession of the land in dispute.

The learned S.A.N. , referred to Exhibit “L” which was the Survey Plan made by Licensed Surveyor, Chief Ufougbune who gave evidence for the plaintiff/respondent as P.W. 3. Exh. “B” is the licence and sketch of the land given to the Catholic Mission in compensation for the use of the Mission’s land which was used to construct a road linking Warri/Sapele road with Alder’s Town in Daudu Area of Warri. Chief Akande submitted that the respondent pleaded that the Catholic Mission reclaimed the swamp land which was granted to it by the Local Authority, but gave evidence that the Bishop reclaimed the creek.

It is evidently clear that the Learned Senior Advocate is not correct to say that the mission gave evidence contrary to their pleadings. The evidence of PW2, Mr. Simon Okene, who was a teacher when the road, later named Bowen Road, was constructed through the land of the Catholic Mission is very clear. He was present in the Mission when the road was constructed. He knew when the swamp land was granted to the mission. He was present together with Rev. Father Healey who was then in charge of the mission when the District Officer offered to grant swamp land to the mission. Mr. Okene’s evidence continued thus:

“Mr. Crudas said if the Bishop needed land he was prepared to give him the nearby swamp land on application. In the end the Bishop agreed to the proposal. Construction of the road through mission land then commenced. Rev. Fr. Healey got a contractor to reclaim the swamp land. The Catholic Mission reclaimed the entire land up to Agbasa creek from 1944. I, with the help of my school pupils who were usually big boys in those days took part in the reclamation to the best of our efforts. Mr. Bowen himself came and met us when he came to supervise the bridge. I remember he used to write with his left hand. The reclaimed land was thereafter used by the Catholic Mission as farm land”.

In fact it was the appellant who gave evidence contrary to his pleading in this case. In paragraph 8(iii) the appellant pleaded as follows:
“(iii) Since 1963 the defendant pursuant to acts of ownership performed by him as aforesaid had reclaimed the swamp land which was originally leased to him by the people of Agbassa and later confirmed in a Deed of Lease registered as 14/14/227 of the Lands Registry in the office of Benin City;thereafter the defendant has continously been in undisturbed possession thereof until this day, and this to the knowledge of plaintiff. The defendant contends that he has been on this land nee clam nee vi nee precario”.

In his testimony before the trial court the appellant gave evidence that, in 1963 the Agbassa people leased to him a piece of land along Bowen Avenue portion of that land was a creek running into Agbassa creek. He said he had to reclaim that portion of the creek. This evidence is clearly contrary to what the appellant had pleaded above. In his pleadings the appellant did not say that he reclaimed a creek running into Agassa creek but that he reclaimed a swamp land.

The appellant adduced no other evidence supporting the averment that he reclaimed a swamp land and it is quite well known to the learned counsel that evidence on facts not pleaded goes to no issue – see Akin Adejumo and 2 others v. Ajani Yusuf Ayantegbe (1989)All NLR. 468; (1989) 3 NWLR (pt.110) 417.

Another big dent in the defence put up by the appellant is the averment in the Statement of Defence that the land in dispute was obtained by him through a leasehold granted to him by Agbassa people.

The lease hold was tendered as Exhibit “M”. It was dated 20th December, 1966 and registered as No. 14 page 14 in Volume 227 of the Lands Registry, Benin-City. Learned counsel for the respondent submitted that the land which was said to have been leased to the appellant had been confirmed to be Crown or State Land in Exhibits A, B, C, E, F, G and H and that the evidence of PW4 clearly showed it to be so. The appellant failed to call a single witness from the Agbassa people to confirm the grant of the leasehold by the Agbassa people in his favour. I quite agree that the land having been established to be a Crown or State Land could not be leased to anyone by the Agbassa people. Exhibit “M” has a number of features which establishes clearly that the learned trial judge was right to call it a fake document.

The Deed of Lease was said to have been executed on 20th December, 1966. It had no plan attached to it. A plan was later drawn in 1973 and attached to it. The dimension of the land in dispute in the plan did not agree with the area of the land leased by the Agbassa people to the appellant, which was given in the leasehold. In a claim for trespass to land once the plaintiff is shown to be in possession, the defendant, in order to defeat plaintiff’s claim must show better title to the land. This is so since a trespasser or squatter can maintain an action in trespass against the whole world except the true owner or the one with a better title. see Amakor v. Obiefuna (1974) 1 All NLR 119.

The appellant has failed, both in documentary and oral evidence to establish that he was lawfully put in possession of the land in dispute. The feeble attempt to establish special circumstances which would permit me to disturb the concurrent findings of the two lower courts, in this appeal has failed.

In the result, this appeal has failed. The judgment of the Court of Appeal in which it affirmed the decision of the trial High Court is hereby affirmed by me. The appeal is dismissed. I award N1,000.00 costs in favour of the respondent.

Other Citation: (1997) LCN/2760(SC)