Echenim Ofume V. Isaac Ngbeke (1993)
LawGlobal-Hub Lead Judgment Report
JUSTIN THOMPSON AKPABIO, J.C.A.
This is an Appeal against a Judgment of Amissah, J., of the High Court of the then Bendel State, Holden at Agbor in suit No.AG.28/82 delivered on 29th May, 1986, wherein he entered judgment in favour of the Plaintiff by declaring for him entitlement to Statutory Right of Occupancy in respect of the land in dispute: he also awarded him N230.00 as Special and General Damages for trespass, plus Injunction with 250.00 costs. The Defendant being dissatisfied with the judgment appealed to this court.
At the trial court the claim of the Plaintiff was worded as follows:-
CLAIM
“1. The Plaintiff is in possession of a piece and parcel of land lying, situate along Okobi/Efeizomor/Ebu Owa Road, Boji-Boji Owa within Agbor Judicial Division this is to be more particularly described in Plan to be filed later.
- On or about 26th day of July, 1982, the Defendant, his servants, agents and/or privies braked and entered without the authority of the Plaintiff, upon the said piece and parcel of land and unlawfully arrested the Plaintiff’s workmen who were working on the said piece and parcel of land. The Defendant at the same time and place unlawfully cut down some quantities of rubber trees belonging to the Plaintiff.
- WHEREOF the Plaintiff Claims:-
(a) Declaration that the Plaintiff is entitled to the Statutory Right of Occupancy to the said piece and parcel of land which would be more particularly delineated in a plan to be filed later.
(b) One thousand Naira (N 1,000.00) as Special and General Damages for trespass.
(c) Perpetual Injunction restraining the Defendant, his servants, agents and/or privies from continuing his further acts of trespass on the said piece and parcel of land.”
The evidence for the Plaintiff was that the land in dispute known as and called Eku Mgbeke was given to his late father NGBEKE NWAJIE by the OWANTA COMMUNITY in 1930 in appreciation of his efforts towards the economic and cultural development of the area Plaintiff’s father accordingly deforested the area, farmed on it, and also planted economic crops such as rubber on it. When Plaintiff’s father died in 1964, the land in dispute devolved on Plaintiff as his eldest son, Plaintiff continued to farm on the said land inherited from his late father, and also contracted with one Ibo man by name John Ikem to tap the rubber trees for him at the rate of one shilling (1) per rubber tree. The Plaintiff thus continued to enjoy the land unmolested until sometime in July, 1982, when the Defendant together with his servants, agents and privies entered unto the land in dispute without Plaintiffs authority or consent as earlier stated. The matter was reported to the Police and Elder’s of Owanta. But when no settlement could be effected, the Plaintiff had to institute this action.
In response to the above, it was the case of Defendant that he (Defendant) owned, not only the land in dispute, but also the large expanse of land that surrounded it, which was verged green in his survey plan Exhibit ‘B’. He then averred that the whole of the said land was founded and deforested by his great grand father by name Ejeogwu Ebo over 200 years ago, who also farmed and hunted on it. At the death of Ejeogwu Ebo, his land was inherited by his children including Ubo and Onyeamai, with whom he (Defendant) later lived and grew up.
On his becoming of age, the said Ubo, Onyeamai and their other brothers gave the said land verged green to the Defendant. The Defendant thereafter planted rubber seedlings on the land about 45 years ago, and they have since grown to maturity. He tapped the rubber trees until the trade in rubber fell. He then fell the rubbers on part of the area and farmed on it. A large part of the land is still covered with rubber trees as shown in the area verged blue in his Survey Plan. He and his family have since been in occupation of the said land until the Plaintiff trespassed into it in 1982. Defendant then enumerated in his Statement of Defence several acts of ownership performed on the said land, prominent among which were the fact that he successfully defended actions in respect of the land in 1961 at the Owa Customary Court including Suit No.20/61 – Chief Olaton of Owanta v. Echenim Ofume, where it was held that as an Owa man, he, the Defendant, could not pay rent for the land. He also sold portions of his said land to diverse persons as shown on his survey plan and also donating a part of the land to His Royal Highness the Obi of Owa Efeizomor II who later testified as D.W.3 in this suit. Lastly, Defendant conceded that in 1982 they arrested the Plaintiff and his servants, agents or privies, when they cut down some rubber trees, plantains, mangoes and orange trees from the area in dispute (verged, pink in his survey plan; (but claimed that to be part of his acts of ownership of “defending and warding off trespassers from the said land, among whom were the Plaintiff his servants or agents”
At the end of the day, the learned trial judge took a critical look at the Pleadings and evidence of both parties, and came to the conclusion that there were contradictions between the pleadings of Defendant and evidence of his witnesses as to his root of title, i.e., how he came by the land. One said he inherited the land, while the other said it was given to him. Also the Defendant said the land was registered with the local plot Allocation committee, yet no Certificate of registration was ever tendered. Learned trial Judged said nothing about the alleged acts of ownership of both parties – whether they were positive or not positive, numerous or not numerous, and who was exercising them.
Finally he fell back on the question of credibility and concluded that:
“I am satisfied from the evidence before me that it is the Plaintiff and not the Defendant who has been in possession of the land in dispute. On the other hand I do not believe the evidence of the Defendant and his witnesses. I am very satisfied that the Defendant has not, with legally admissible evidence, traced his title to Ogogu Ebor. On the preponderance of evidence the Plaintiff’s case appears to me to be more credible than that of the Defendant…”
He therefore gave judgment in favour of the Plaintiff as already stated above.
The Defendant being dissatisfied with the said Judgment has now appealed to this court on six Grounds as follows:-
“1. The learned trial judge erred in law and in fact in granting declaration of title of the land in dispute to the Plaintiff/Respondent in spite of the overwhelming evidence that the Appellant is in long possession of the land in dispute and has since been exercising numerous and positive acts of ownership over it, (the land in dispute) together with the adjourning land.
- The learned trial Judge erred in law in granting a declaration of title (to Plaintiff/Respondent) and an injunction (against the Appellant) in respect of a piece of land which has not been clearly defined.
- The Learned trial Judge erred in law in holding that the Appellant’s failure to call his grantor is fatal to his case.
- The Learned trial Judge erred in law and in fact in holding that the Plaintiff/Respondent has proved title to the land in dispute by traditional evidence.
- The learned trial Judge erred in law in failing to consider the Appellant’s pleas of long possession, estoppel and acquiescence.
- The Judgment of the learned trial Judge is against the weight of evidence.”
Briefs of Arguments were later filed and exchanged, and issues for determination formulated. The Defendant who will hereinafter be referred to as the Appellant, formulated five issues for determination as follows:-
ISSUES ARISING IN THE APPEAL
Five main issues arise for determination in this Appeal and they are:-
“1. Whether the Respondent has proved that the Owanta Community granted the father (MGBEKE) any land.
- Whether the Respondent has shown the Court the land which his claims relate (that is, whether he has shown the Court the land he claims the Owanta Community granted his father) to enable the court to grant him Statutory Right of Occupancy and Injunction.
- Whether the Appellant is bound to call his grantor in order to succeed or whether the onus of proof is on him (the Defendant/Appellant) in this case.
- Whether it is the Appellant or the Respondent who is in possession and exercising positive and numerous acts of ownership.
- Whether the Respondent has proved his case to enable him to get judgment.”
On the other hand, the Plaintiff, who will hereinafter be referred to as the
“Respondent” formulated three issues as follows:-
ISSUES FOR DETERMINATION:
“A. Whether the identity of the land has been proved i.e. was the Respondent and Appellant referring to the same land in dispute?
B. Whether the Respondent had proved title to the land; or better put, who has proved a better title to the land in dispute amongst the parties?
C. Was the learned trial Judge not correct in dismissing the Appellant’s case as he claimed nothing from the Respondent?
In other words, was the learned trial Judge wrong in allowing the Respondent’s claim based on Pleadings and evidence before him on Record.”
I shall now proceed to resolve these issues, however, having regard to the fact that Appellant himself argued both his issues (1) and (2) together, and issue (5) was treated as a “summary of other Grounds”, I consider that this appeal could conveniently be disposed of under three issues as follows:-
“1. Whether identity of land in dispute was proved.
- Whether Appellant was bound to call his grantor to prove his root of title.
- Which of the parties proved a better title to land, based on traditional evidence and acts of possession and ownership.”
Re Issue No.1
Under this issue it was submitted on beha1f of the Appellant by his learned counsel, Mr. J. I. Ojeh, that there were conflicts between the description of the land in dispute as given in the Statement of Claim and that contained in the Survey Plan, Exhibit ‘A’, as well as those given in the evidence of P.W.1, P.W.3 and P.W.4 in their oral testimony.
It was then submitted that the first duty of a Plaintiff who comes to court to claim a Declaration of Title is to show the court clearly the area of land to which his claim relates. (Akinola Baruwa v. Ogunshola & Ors. 4 W.A.C.A. 159; Olakunle Elias v. Omobare (1982) 5 S.C. 25 at 39-41)
The proper Order to make when a Plaintiff fails to prove his boundaries is one of dismissal and not a retrial. (Muka Iyayi v. Sufe Eyigebe (1987) 3 NWLR (Pt.61) 523). The exact location of the land in dispute must be proved. (Agbonifor v. Aiwereoba (1988) 1 NWLR (Pt.70) p.325 ratio 11.
Since the description of ‘the land in dispute by the Respondent and his witnesses contradicted one another, the proper order was for the learned trial Judge to have dismissed Respondent’s claim.
In reply to the above it was submitted on behalf of the Respondent by his learned counsel, Mr. Gbenoba, in his Brief, that the law was that where the parties, by the evidence adduced, both oral and documentary, were “ad idem” on the identity of the land in dispute, the fact that different names were ascribed to it or that the area where it was located was called by different names was not fatal to the case of the party claiming, even if different names were called as boundary neighbours. (Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192, ratio 3; Iwuno v. Dieli (1990) 5 NWLR (Pt.149) 126 ratios 4, 5 & 6) were cited as authorities.
It was also pointed out that the learned trial Judge in the instant case, in his, evaluation and findings held that from the evidence led by both parties, and from their Pleadings and Survey Plans (Exhibits ‘A’ and ‘B’ the parties were referring to the same parcel of land as the land in dispute, and that the Defendant/Appellant was in no doubt about the identity as well as the extent of the said land. (Ekwealor v. Obasi (1990) 2 NWLR (Pt.131) 231 ratio 16). This court was therefore urged to hold that this issue has been rightly resolved by the learned trial Judge who had the opportunity of watching the parties and comparing the plans. (Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301, ratio 3).
I have carefully considered the two arguments canvassed above, and also carefully examined the two Survey Plans filed in this case, and find that it is a correct statement of our law that:
“It is the duty of a Plaintiff claiming from the court a declaration of title to land to show clearly the area of land to which his claim relates, and this is so, even where the location and identity of the land in dispute is not in dispute as no declaration of title can be made where the land in dispute is not properly defined and easily ascertainable with precise boundaries. This duty a Plaintiff can discharge either by describing the land with such particulars that a Surveyor can from his description produce an accurate plan of land or by himself producing an accurate Plan of the land showing precise boundaries (Kwadzo v. Adje (1944) 10 W.A.CA. 274; Baruwa v. Ogunshola (1938) 4 W.A.C.A. 159.)”
See also the case of Olosunde v. Oladele (1991) 4 NWLR (Pt.188) 713 at731, where Ibadan Division of this court held per Adio J.C.A. that:-
“The identity of a parcel of land in dispute can be established by a Survey Plan or by an oral description that will enable a surveyor produce a plan (Awote v. Owodunni (No.2) (1987) 2 NWLR (Pt.57) 367 applied.)
With these principles in mind, I have looked at not only the survey plan filed by the Respondent Exhibit ‘A’, but also his Statement of Claim, and his oral evidence in court, and find that they say the same thing as they are expected to do in a successful land case. The description of the land as contained in paragraph 4 of the Statement of Claim is as follows:-
“4. The land in dispute verged PINK is part of a larger expanse of land owned by the Plaintiff and it is situate on the North West of the area of land verged YELLOW in the Survey Plan No.LSF1991. The land itself is bounded on the North by the farm land of Akaru and the farm land of Owanta Community; on the South abating Council Street, then Owanta Community farm land, on the West by the farmland of Owanta Community and on the East by Benin/Asaba Old Road.”
The same description was reproduced in its abridged form by the Respondent himself in the course of his evidence at p42 of the Record as follows:-
“The boundaries are as follows Northern boundary is the land of Akaru Alionye. Western boundary is Owanta Community land Southern boundary is the Council Street and the Eastern boundary is old Lagos/Asaba Road or old Benin/Asaba Road.”
The above were also the same boundaries that were depicted in the survey Plan Exhibit ‘A’. It is my view therefore that the Respondent had adequately discharged the onus placed on him by law, even though the description given by some of his witnesses might have varied from the above. Issue No.1 must therefore be answered in the affirmative, namely that the identity of the land in dispute was proved.
RE ISSUE NO.2
“Whether Appellant was bound to call his grantor to prove his root of title.”
Under this issue, the complaint of the Appellant was that the learned trial Judge erred in law in holding that the Appellant’s failure to call his grantor is fatal to his case. It was argued very vigorously for the Appellant that there was no law that a party in a land case cannot succeed unless he called his grantor as a witness. That was so because the onus of proof in a land case was not on the Defendant but on the Plaintiff. The Plaintiff has to succeed on the strength of his case and not on the weakness of the Defendant’s case. The learned trial Judge failed to consider the Appellant’s long possession and positive and numerous acts of ownership over the land in dispute. The case of Alhaji V.S. Ola Ishola v. E. L. Ogunjimi (1974), 4 UILR was cited as authority in support.
In reply to the above, it was submitted on behalf of the Respondent that it was our law that one must plead and prove title to land by one of the five ways laid down in the cases of Idundun v. Okumagba (1976) 1 NMLR 200.
It was further submitted that in cases of this nature, i.e., on a claim for title, the decision was based on the relative strengths of the claim of two parties in litigation.
Based on the above he submitted that the learned trial Judge was right in holding that the Respondent had proved a better title.
I have carefully considered the above arguments and must say that it is not strictly correct to say that “there is no law that a party in a land case cannot succeed unless he calls his grantor as a witness”. With due respect to learned counsel for the Appellant there is such a law or rule, if one is basing one’s title to land on a grant. In such a situation the grantor or his successor in title must be called to prove his root of title. What is meant by “root of title”. To my mind “root of title” simply means how one came to be the owner of the land in dispute. According to the rule in Idundun v. Okumagba (supra) there are five ways of doing this for example, if one is basing his root of title on purchase of the land in dispute according to English Law, he must produce and tender hid Deed of Conveyance in order to succeed. If his purchase was under Customary Law, then he must call his vendor or other persons who witnessed the transaction to testify (Ajadi v. Olanrewaju (1969) 1 All NLR 382; Folarin v. Durojaiye (1988) 1 NWLR (Pt.70) 351; Olosunde v. Oladele (1991) 4 NWLR (Pt.188) 713. Similarly if one was claiming title by inheritance, he has to produce either the will of his testator or call witnesses to testify that he had performed the appropriate burial ceremony of the deceased, and so was entitled to inherit his landed properties under native law and custom. In the same way, if a claim was founded on grant then one must either produce and tender a Deed of Gift if the grant was under English Law, or call his grantor, successor in title or a witness of the transaction to testify at the trial. If none of these it done, he cannot succeed.
In the instant case, the Appellant appears to have based his claim not on inheritance, but on a grant under native law and custom. Paragraph 9-10 of Appellants Amendment Statement of Defence at pages 34-35 of the record, which are partiment read as follows:-
“In further answer to paragraphs 5 and 6 of the Statement of Claim, the Defendant avers that his entire land (the area verged green in the said survey Plan) was founded and deforested by the Defendant’s great grand father (Ojeogwu Ebo) over two hundred years ago. He also farmed and hunted on the land. By native law and custom of Owanta (and or Owa) these are marks of ownership and acquisition. At his death the land was inherited by his children including Ubo and Onyeamai.
Still on paragraphs 5 and 6 of the Statement of Claim the Defendant avers that he lived with Onyeamai and served her and took care of her and when he grew of age to farm on his own Ubo, Onyeamai and their other brothers gave the said land verged GREEN to the Defendant. After the Defendant had farmed on the land for sometime he planted rubber seedlings on the land and this is about forty-five years ago. The rubber frees had since grown to maturity,”
From the above averments one certainly expected the Appellant to call either Onyeamai or Ubo (i.e. the children of Ojeogwu) who had GIVEN him the land, or their successors to come and testify that they GAVE the land to Appellant. It should be noted that Appellant never said that he buried any of these persons in which case the mode of acquisition could have been by INHERITANCE rather than GRANT.
However, Appellant at the trial never called any body who could testify that he saw when land in dispute was given to Appellant either by Onyeamai or Ubo. Rather he called three witnesses, none of whom was his family member. The first was chief Arimoku Buzugbe (D.W.1) whose father was said to have been a former chairman of Owanta Land Allocation Committee. This witness only said that he shared common boundary with Appellant along Efeizomor Street, Agbor. The second witness (D.W.2.) was Chief Oloton Okute. The main thrust of this witness’ evidence was that he once sued Appellant for rents in respect of the land he occupied, but when he was subsequently informed that Appellant was a native of Owanta he had to withdraw the action. But at the tail end of his testimony at p.77 of the records, this witness ended with the assertion that “I do not know how Defendant got to the land in dispute. I grew up to meet him there. I am older than the Defendant. The Defendant had never shown me any document of title to land in dispute.”
Last but by no means the least was, his Highness Efeizomor II, the Obi of Owa (D.W.3.). This witness stated that his land which had a common boundary with the land in dispute was given to him by the Defendant about fourteen years ago”. That was as far as he could go. He said Defendant “inherited the land in dispute. He also had it registered. But he could not say from whom it was inherited; and no certificate of registration was tendered.
In contrast with the above was the Respondent who pleaded at paragraph 5 of his Statement of Claim that he “derived title from his father Ngbeke Nwajie who in turn derived title from the Elders of Owanta. He followed this with more details of the circumstances that led to the grant of the land to his late father, and also that when his father died in 1964, he as eldest son, buried him, and so inherited the farm land from his father in the customary way. He then followed this up at the trial by calling first his mother as P.W.1 to confirm that he inherited the land from his late father together with all the rubber trees and other economic trees planted on it by her late husband. She also testified that they later firmed out or contracted out the rubber plantation to an Ibo man by name Ikem to be tapping for them at a fee of one shilling (ii) per rubber tree. The Respondent then followed this by calling the Village Head of Owanta (Okonye Onyeagwu) who said he was then the oldest man in Owanta, to testify for him as P.W.2. This witness testified that the land in dispute was given to Plaintiff’s father and not the Defendant by him with concurrence of other elders of their community. This evidence was later confirmed by four other members of Owanta Community. This was clearly a typical example of how to prove ones root of title under Customary Law, which the Appellant in this case could not do. Issues No.2 must therefore be answered in the affirmative, namely that Appellant was bound to call his grantor in the peculiar circumstances of this case, but failed to do so.
RE ISSUE NO.3
“Which of the parties proved a better title to the land, based on traditional evidence and acts of possession and ownership.”
It was the contention of the Appellant under this issue that the Appellant both in his Pleadings and evidence had more acts of possession to show than the Respondent, and as such the Respondent’s claim should have been dismissed. In F particular it was pointed out that even P.W.1 the mother of the Appellant, conceded that when Okobi Street and Efeizomor Street were constructed many rubber trees were destroyed, and that it was the Appellant who carried them away and sold them as fire wood. This was clearly an act ownership. So also was the fact that Appellant got Police to arrest the Respondents agents when they cut down some rubber trees in 1982. The court was therefore called upon to reverse the decision of the learned trial Judge and enter judgment for Appellant, as he proved a better title. The Court was also asked to invoke its power under S. 16 of C.A. Act and grant injunction to protect Appellant’s possession which was not claimed at the court below.
In reply to the above, it was submitted on behalf of the Respondent that in deciding the question, which of the two parties had proved a better title by any of the five ways provided under the rule in Idundun v. Okumagba (supra), the learned trial Judge had a duty to look at the totality of the evidence adduced by the parties and not on the acts of possession or ownership alone. The question of radical title was also very important. Once the court has found that one of the parties has proved his radical title, while the other did not, then the question of acts of ownership or possession pale into insignificance, the court was to do substantial justice, and not rely on technicalities. It was concluded therefore that based on the totality of the evidence before the court as well a the credibility of witnesses who testified in the case, the learned trial Judge was right in entering Judgment in favour of the Respondents. It was also pointed out that the Appellants did not counter-claim for anything in the court below, therefore even if he succeeded in his appeal, he was not entitled to any relief such as an injunction he was claiming at the last minute.
I have carefully considered all the arguments canvassed under this issue, and I find it to be the law that where two persons claim to be in possession of the same piece of vacant land, whoever shows a better title should be the winner. (Amakor v. Obiefuna (1974) 3 S.C. 67 at 78; Olayioye v. Oso (1969) 1 All NLR 281; Adeshoye v. Shiwoniku 14 WACA 86.
Therefore, since the land in the instant suit was a vacant land, with no house built on it, it became necessary for the learned trial Judge to consider which of the parties proved a better title. Starting from the traditional evidence, the learned trial Judge, as was pointed out under issue No.2 found that the Respondent had the upper hand there, since he proved his root of title more convincing than the Appellant who had a missing link in his claim of evidence, coming to the acts of possession done on the land itself, there was not much to choose from, as both parties claimed to have been responsible for the rubber trees that were growing on the land. The Respondent had at least P.W.1 (his mother) and at least two other witnesses who testified that the rubber trees on the land in dispute were planted by the father of the Respondent. The Appellant on the other hand had his own “ipse dixit” and the evidence of D.W.1 and D.W.3 (his boundary men), who said they had always seen Appellant working on the land, while they never saw Respondent. So once more the position was still dicey. One was therefore obliged to apply the rule in Kojo II v. Bonsie (1957) 1 W.L.R. 1223 at 1226-1227 which prescribes that where the traditional evidence were conflicting or inconclusive, the court should not go by credibility of witnesses, but rather by examining the acts of ownership or possession done by either party in recent times in relation to the land in dispute (Italics mine). I must confess that on seeing at first sight the impressive list of acts of ownership on the land in dispute set out by the Appellant under paragraph 12(a)-(i) of his Statement of Defence I was of the view that he had made a good case. However, when these were examined critically I found that there was not one of them that could hold water. Under paragraphs 12(a), (b) & (c) Appellant averred that he was planting rubber trees on the land and tapping same. But the Respondent had the same averment in his own Pleading. He said his father planted the rubber trees and he hired one John Ikem to tap it for him at a fee of 1 Shilling per tree, which sounded more convincing. Appellant averred that he practiced shifting cultivation on the land, and the Respondent made even the same averment before him. Appellant said he planted mango trees, plantain and oranges on the land, the Respondents did the same, and even showed in their survey plan Exhibit ‘B’ palm trees that they planted on the land Under paragraph 12 (d) Appellant averred that he “successfully defended actions in respect of the land in 1961 at Owa Customary court including suit No.20/61 – Chief Olaton of Owanta v. Echenim Ofume, where it was held that as an Owa man the Defendant could not pay rent for the land. It was promised that “Certified True Copies of various Suits shall be founded and relied upon at the trial.” However, at the trial, not a single Record of Proceedings in respect of any of the suits was ever tendered. It also appeared in the course of the evidence of Chief Oloton who testified as D.W.2 that he withdrew the case himself when he was told that Appellant was an Owanta man, and so not liable to pay rents on the land he was farming on. In any case, the suit concerned farming operations on other areas of the vast area of land, which Appellant said he farmed on, and did not specifically affect any part of the land in dispute in the instant suit. Under paragraph 12(e) Appellant said he was selling bits and pieces of land from the wide area to various people about six years ago. Again all these referred to other lands and not done in relation to the land in dispute. Under sub-paragraph (g) he talked of donating part of the land to His Royal Highness, the Obi of Owa. This again was done in respect of other land adjacent to the land in dispute, and not on the land in dispute itself, Perhaps the only relevant act was that contained in paragraph 12(f) as follows:-
“(f) By defending and warding off trespassers among whom were the Plaintiff his servants, agents and or privies who were arrested by the Defendant in 1982 when they cut down some rubber trees, plantain plants mango trees and orange trees. This is the area in dispute and it is verged pink on the southern part of the Defendants Plan filed in this action.”
It should be pointed out that the above action by the Appellant and his agents, were precisely the acts of trespass complained about by the Respondent in their Writ of Summons. The said acts of trespass were alleged to have been committed on the 26th day of July, 1982. The fact that the Respondents are the people who dragged Appellant to this court appears to be a more potent act of ownership than that of breaking into the land to make trouble. However, it is our law that:-
“A trespasser does not by the act of trespass secure possession in law.”
(Aromire v. Awoyemi (1972) 2 S.C. 1; Banjo v. Aiyekoti (1973) 4 S.C. 89.)
In effect therefore, the long list of alleged acts of ownership set out by the Appellant in his Statement of Defence prove nothing, and so could not avail the Appellant.
On the totality of the foregoing one must hold that the learned trial Judge was right in coming to the conclusion that the Respondent proved a better title than the Appellant. He also had the advantage of seeing and hearing the parties and their witnesses in the witness box, which this court, as a Court of Appeal, has not got. So Issue No.3 must be resolved in favour of the Respondent namely that he proved a better title than the Appellant, based on the totality of all evidence before the trial court.
This Appeal therefore fails, and is hereby dismissed with costs which I asses at N750.00 in favour of Respondent.
Other Citations: (1993)LCN/0155(CA)
