Edio Ekretsu & Anor Vs Millar Oyobebere & Ors (1992)

LawGlobal-Hub Lead Judgment Report

E. O. OGWUEGBU, J.S.C. 

In a writ of summons issued on 20/10/76 at the High Court of the then Bendel State of Nigeria holden at Ugheli, Ekio, Ekretsu and Evru Onorovwie for themselves and as representing Unuaro family of Uwheru sued one Miller Oyebebere claiming the following reliefs:

“1. The sum of N2,000.00 (two thousand naira) being damages for trespass committed by the defendant on plaintiffs’ land situate at Okpunoho land, Uwheru, within the jurisdiction of this Honourable Court on 14th August, 1976 wherein the defendant by himself, his servants and his agents without the plaintiffs’ consent first obtained, broke and entered into the plaintiffs’ land and started digging a building foundation on plaintiffs land.

2. An order of perpetual injunction restraining the defendant as agents and/or servants from continuing these acts of trespass complained of.”

After filing the plaintiffs’ statement of claim but before the statement of defence was filed, one Chief Onivwegha Akokini and four others applied to the High Court. Ugheli by way of motion on notice praying the court for an order authorizing them to join in the suit as co-defendants and to defend the same for themselves and on behalf of Ohoro Community of Uwheru in Ugbeli Local Government Area.

Orders were made by the trial court as prayed. The plaintiffs amended their claim in view of the order of joinder of the co-defendants. The statement of claim was similarly amended.

All the defendants filed a joint statement of defence which was amended with the leave of the court on 10/6/81.

On 12/8/83 the plaintiffs filed a motion on notice “for an order granting the plaintiffs/applicants leave to further amend writ of summons and further amended statement of claim (herewith underlined ‘RED’ and deemed filed …………..”

The application was granted by the trial court on 31/8/83. The further amended writ of summons and statement of claim were deemed properly filed and served.

The further amended claim which is at page 147 of the record of appeal reads:

“The Plaintiffs’ claim against the defendants is as follows:-

1. A Declaration that the plaintiffs are entitled to the Customary Right of Occupancy or the land in dispute known and called ‘OKPUNOHO’ lying and situate at Orhoro shown on survey plan No. ER 1774 attached to Further Amended Statement or Claim.
2. The sum or N2.000,00 (Two thousand naira) being damages for trespass committed by the 1st defendant on plaintiffs’ land situate at Orhoho, Uwheru within the jurisdiction or this Honourable Court on 14th August, 1976 wherein the 1st defendant by himself, his servants and/or his agents without the plaintiffs’ consent first obtained, broke and entered unto the plaintiffs’ land and started digging a building foundation on the plaintiffs’ land.
3. An order or perpetual injunction restraining the defendants their agents and/or servants from continuing these acts of trespass complained of.”

The plaintiffs’ case briefly stated is that the 1st defendant entered the land in dispute and started digging foundation for the erection or a building in 1976 without first obtaining the consent or the plaintiffs – Unuaro Family of Uwheru on whose behalf this action is prosecuted.

The plaintiffs stated that Uwheru Clan was founded by Uwheru who had five children, namely Erovie, Orhoro, Egbo, Ehere and Urede. It was their case that each of the five children had his own portion or land named after him. Orhoro begat six children called Unuaro, Ebo, Emedie, Asavwayega, Okhiowaren, Etakerme. The six children founded various family of Orhoro and te families are named after each child. Each of the children of Orhoro has his own land and that of Unuaro family is Okpunoho land.

It was the plaintiffs’ case that Unuaro has exclusive possession and ownership ofOkpunoho land. The construction or Ugheli-Patani road which passed through the land in dispute enhanced the economic value or the land. This made Orhoro people ask for their permission to erect buildings along the road but the request was refused.

The refusal gave rise to an action for title, damages and trespass in the Customary Court of Evwereni-Uwheru Suit EU/63/77 – Exhibit “A”. The case was settled out of court and the terms of settlement were reduced into writing (Exhibit “E”).

The plaintiffs further stated that between 1972 and 1976, anybody outside Unuaro family who wanted to build along the said road obtained their consent and paid the sum of N8.00 (eight naira) to the plaintiffs.The first defendant instead of approaching the plaintiffs, went and paid the sum of eight naira to the defendants.This action of the 1st defendants angered the plaintiffs and it was the last straw that broke the camel’s back – the institution of the present proceedings.

The plaintiffs testified that Orhoro founded Orhoro Quarters and the land in dispute was first settled by Unuaro and it devolved on his descendants and from time immemorial Unuaro and his descendents had farmed on the land, planted economic trees (palm and rubber trees and plantain) on it. They gave out portions of it on short term leases, pledged and sold parts of the land to some individuals. Some Unuaro family members built on the land and they have rubber plantations in it. They tendered the survey plan of the land in dispute as Exhibit “B”.

The case of the defendants is that about eight years ago, the 1st defendant acquired a piece of land in Orhoro Quarters to build a house and that P.W.3 (Chief John Awhiro Asarah) instigated Unuaro family to stop him. They testified that Orhoro married Ugbobie from Egbire in Ijaw and Ugbobie’s brother called Unuaro came along with her and lived with the family of Orhoro at Orhoro village. It was part of their case that Unuaro never lived at Orhoro Quartes. Unuaro later married Anekpe from Emede Isoko. They had children. The descendants of Unuaro were fully absorbed into Orhoro Community. They maintained that the land in dispute is owned by orhoro and he lived on this with Ugbobie before they moved to Orhoro village where he resided permanently. Orhoro had children before he moved to Orhoro village but the children had no separate lands.They further testified that the father of the 1st plaintiff called Ekretsu lived in Orhoro village before he died and never lived Orhoro Quartes.

They referred to the Customary Court case of 1972 which they agreed was settled out of Court but denied knowledge of Exhibit “F’.It was their case that the terms of settlement were not reduced into writing.The defendants stated that Orhoro was one of the five sons of Uwheru and no individual family owns land exclusively in Orhoro Quarters, rather, the land in dispute is a common property of Orhoro, the son of Uwheru.

After the departure of Orhoro and Unuaro to the village, the Quarters was used as farm land and when Orhoro died, he was buried at the Quarter. The whole place became desolate as nobody lived there. It was only fifty years ago that one Okpogode from Orhoro village went to live at Orhorn Quarters and other people followed his example after obtaining the consent of Orhoro community.

Some of those who joined Okpogode to live in Orhoro Quarters were Opiri Ofuge. Francis Omojinghai Urhue and Umukoro Erhore. Orhoro people gave these men permission to build on the land.

The defendants also testified that some of the people who built on the disputed land did so ever before the construction of the new Patani-Ugheli Road. They denied the claim by the plaintiffs that they gave Okpogode the parcel of land where he built on Orhoro Quarters.

D.W.4 and D.W.5 were among those who built on the land in dispute with the consent of Orhoro community. The defendants led evidence as to how the 1972 Customary Court action was orally settled out of court.

The above represents the summary of the evidence led by the parties. The learned trial Judge Maidoh, J, after hearing the evidence of the parties and the addresses of counsel found against the defendants. Special and general damages were awarded against the defendants and an order of perpetual injunction was also made against them and their agents.

The defendants appealed to the Court of Appeal, Benin Division. Their appeal was allowed. The judgment and orders made by Maidoh J., were set aside. The plaintiffs’ claim was dismissed.

The plaintiffs were not satisfied with the decision of the Court of Appeal, Benin Division. They have now appealed to this court and filed the following grounds of appeal:-

“(1) The Court of Appeal erred in law and thereby came to a wrong decision prejudicial to the Appellants” case when the court incorrectly stated and/or held that:

‘The learned trial Judge in the instant case found that the acts of ownership or possession do not extend over sufficient length of time, numerous and positive enough to warrant the inference of exclusive ownership or possession.’

(a) Nowhere in his judgment spanning pages 244 to 267 of the record of appeal did the learned trial Judge held (sic) that the appellants were not in exclusive possession of the land in dispute: and his employment of the words exclusive membership thereof.

(b) After holding that the acts of ownership testified to in the entire case did not warrant the inference of exclusive membership in favour of either side, the learned trial Judge nevertheless held that the appellants were in exclusive possession when the respondents, relying on their numerical superiority, invaded the land in dispute like locusts – pages 266 and 267 of the record of appeal refer.

(c) The learned trial Judge specifically held that the appellants’ case was essentially based on trespass and it succeeded as such – page 267 of the record of appeal.

(2) It was an error in law on the part of the Court of Appeal to have employed interchangeably, and/or to have equated, the legal concepts of possession and ownerhisp in its judgment when possession and ownership are different and distinct legal terms of art, and the Court of Appeal thereby came to a wrong decision.

(3) The Court of Appeal erred in law and thereby came to a wrong decision adversely affecting the appellants’ case when it held that the learned trial Judge found as a fact that both the appellants and the respondents were in possession of the land in dispute, when no such finding of fact was ever made by the learned trial Judge.

(4) The Court of Appeal erred in law in holding that: ‘where the claimant claims’ damages for trespass and an injunction against further trespass. it follows that he has put his title in issue: See Kponuglo’s Case Supra.”

and it thereby came to a wrong decision robbing the appellants of the chance which was fairly open to them of succeeding in the appeal.

PARTICULARS

(a) with the greatest respect, the correct and full law is that a claim for trespass coupled with injunction postulates that the claimant is either the owner of the land or had, prior to the trespass complained of, exclusive possession thereof: as stated in Kponuglo case itself supra and as enunciated and restated in Okorie & Ors. v. Udom & Ors. (1960) 5 F.S.C. 162 at P.165: (1960) SCNLR 326.

(b) An injunction is grantable to restrain trespassory acts or threatened acts of trespass in order to protect the possession of a successful claimant, even if his claim for title fails, see Fabunmi v. Agbe (1985) 1 NWLR (Pt.2) 299 at pp.319 and 321; (1985) 3 S.C. 28 at pp.77 and 82.

(5) The Court of Appeal misdirected itself on the facts and thereby came to a wrong decision in the case when it held that the learned trial Judge found that the appellants were in possession of the land merely because he found that the respondents’ 7th witness (D.W.7) did not know who planted the banana and plantain crops on the land in dispute.

PARTICULARS

Both before and after evaluating, the evidence of the respondents’ 7th witness (D.W.7), the learned trial Judge made specific findings of fact in favour of the appellants’ possession of the land in dispute as shown at pages 266 (lines 42-46) and 267 (lines 17-24) of the record of appeal.

(6) The Court of Appeal erred in law in holding that:

‘The respondents (i.e. Appellants) never pleaded planting these crops (i.e. banana and plantain) on the land and they never testified to have done so. This evidence upon which the learned trial Judge found exclusive possession on the part of the respondents (i.e. Appellants) ought to be and it is hereby expunged by me.’

PARTICULARS

(a) The Appellants duly pleaded their planting of these crops as well as others in paragraphs 10 and 11 of their further and better amended statement of claim at page 178 of the record of appeal and they also gave evidence in support of their said pleadings at page 108 of the record of appeal.

(b) The respondents admitted the facts of the appellants’ planting of the said crops in paragraph 18 of their amended statement of defence as shown at page 84 of the record of appeal.

(7) The Court of Appeal erred in law in holding that:

‘Possession of the land in dispute was by the pleadings and the evidence based on title to the land in dispute and was found by the learned trial Judge not to have been established.’ whereas the pleadings and evidence were not so based, nor did the learned trial Judge so find, and the Court of Appeal thereby came to a wrong decision.

(8) The Court of Appeal erred in law in embarking on a fresh appraisal and re-evaluation of the evidence fully evaluated by the learned trial Judge and in substituting its views for the findings of the learned trial Judge, when;

(a) It is well settled that the findings of fact are matters peculiarly within (sic) of the trial court: (b) It was not established that the learned trial Judge failed to make use of the opportunity of his having seen and heard the witnesses:

(c) It was not shown that the learned trial Judge drew wrong inferences from the evidence accepted by him:

(d) The Court of Appeal misdirected itself in its views of the findings of fact made by the learned trial Judge with respect to the crucial questions of exclusive ownership and exclusive possession of and it is not the business of the Court of Appeal to effect a reversal of the trial Judge’s specific findings of facts which are presumed correct.’”

The appellants identified the following five issues arising in the appeal:-

i. Whether the Court of Appeal was right in holding that the learned trial Judge had found that the acts of ownership and possession did not extend over sufficient length of time to warrant the inference of exclusive ownership and possession.

ii. Whether the Court of Appeal was right in holding that the learned trial judge had found that both parties in this case were in possession of the land in dispute.

iii. Whether the Court of Appeal was right in holding that the claim for trespass in this case is dependent on the claim for declaration of title.

iv. Whether the Court of Appeal was right in expunging from the record and rejecting the evidence led by the appellants concerning their planting of crops, such as banana and plantain,on the land in dispute.

v. Whether the Court of Appeal was justified in disturbing the specific findings of fact made in favour of the appellants as to their possession of the land in dispute.’”

The following three issues were submitted by the respondents for determination in the appeal:-

“1. Were the Justices of the Court of Appeal right in holding that possession in this case was dependent on the claim for declaration of title

2. Did the Justices of the Court of Appeal properly evaluated (sic) the evidence on record (as they have a right to do) was the Court of Appeal right in expunging from the record the evidence of planting of plantains and banana trees before Okpogode settled on the land in dispute in.

It was the contention of the learned appellants’ senior counsel that the learned trial Judge dealt with and considered separately the two legal concepts ownership and possession. We were referred to pages 266 lines 33 to 38 and 267 lines 17 to 22 of the record where the learned trial Judge dealt with and considered separately the concept of ownership or exclusive ownership and the issue of possession.

The learned senior counsel for the appellants stated that the Court of Appeal used the expression “ownership” and ‘”possession” interchangeably and thereby took a mistaken view of the finding of acts of exclusive possession made by the learned trial Judge in favour of the appellants.

The senior counsel further submitted that the court below allowed the appeal of the defendants/respondents on the issue of exclusive ownership rather than on the ground of exclusive possession on which the trial court based its decision and this had prejudicial effect on the case of the appellants in this appeal.

On issue two, counsel submitted that the court below was mistaken in holding that both parties were in possession of the land in dispute. This is so because the trial court found that the plantain and banana trees on the land belong to the plaintiffs/appellants before the defendants/respondents made their first incursion into the land through Okpogode when the plaintiffs’ people were already farming there.

Learned counsel stated that this mistaken view of the finding of the trial Judge on possession was a substantial misdirection which affected the result of the case of the appellants herein in the court below.

As to whether the Court of Appeal was right in holding that the claim for trespass as in this case was dependent on the claim for declaration of title, counsel submitted that the appellants’ claims for title and trespass are separate, independent and distinct claims or issues and this is obvious from the pleadings and the evidence of both parties, He referred the court to various pages of the record.

He stated that the learned trial Judge rejected the traditional evidence of both parties in support of title to the land as inconclusive and also held that the acts of ownership of or title to the land in dispute did not extend over sufficient length of time numerous and positive enough to warrant the inference of exclusive ownership.

He contended that the trial court was however conscious of the law of trespass as the interference with possession which is actionable at the suit of the person in possession. He proceeded to evaluate the evidence led by the parties as to their respective acts of possession and disbelieved the defendants/respondents. As a result of the distinctiveness of the plaintiffs’ claims, the trial Judge held that the plaintiffs/appellants’ action is essentially based on trespass.

When one claims in trespass as the appellants’ counsel has submitted, the appellants are not required to assume a larger amount of proof than is necessary for them to establish trespass and failure of a claim for title does not necessarily mean failure of a claim for trespass coupled with a claim for injunction.

It was his contention that a claim for trespass coupled with a claim for injunction to restrain further acts of trespass docs not necessarily put in issue the title of the claimant and that the exclusiveness of his possession of the land may be put in issue. He cited the cases of Kponuglo & ors. v. Kodadja (1933) 2 W.A.C.A. 24 Okorie & 3 Ors. v. Udom & 3 Ors. 5 F.S.C. 162: (1960) SCNLR 326: Obanor v. Obanor (1976) 2 S.C. 1 and Fabunmi v. Agbe (1985) 3 S.C. 28: (1985) 1 NWLR (Pt.2) 299 in support.

Senior counsel cited the case of Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578 where judgment was duly entered in favour of the appellant therein for damages for trespass as well as for injunction restraining further trespass to the land, notwithstanding that the appellant’s title to the land had failed.

We were urged to allow the appeal because of the effect of the mis-statement of the law by the court below which led that court to apply the wrong law in its determination of the appeal. He referred to Ekpenyong & ors. v. Essien & ors. (1975) 3 S.C. 107 at 114-115.

The fourth issue raised by the appellants’ counsel is whether the court below was right in expunging from the record and ignoring the evidence led by the appellants as regards the planting of crops such as banana and plantain on the land in dispute. It was submitted that the appellants pleaded the planting of banana and plantain on the land in dispute and gave evidence to that effect contrary to the view held by the court below. We were referred to paragraphs 10 and 11 of their further and better amended statement of claim at page 178 of the record and the admission of the respondents in paragraph 18 of their amended statement of defence where they averred that they are not in a position to admit or deny paragraph 11 of the further and better amended statement of claim.

He stated that in the circumstances, the Court of Appeal erred in rejecting admissible evidence given by the appellant as to acts of possession pleaded in their further amended statement of claim.

Learned counsel for the appellants finally submitted that the Court of Appeal was not justified in disturbing the specific findings of fact made in favour of the appellants as to their possession of the land in dispute.

He said that the learned trial Judge’s specific findings in favour of the appellants and against the respondents on the issue of possession of the land in dispute were matters of credibility based on the demeanour of the witnesses who testified before him. The Court of Appeal was therefore in error in reversing those specific findings of fact. He cited the cases of Woluchem and ors. v. Gudi & ors. (1981) 5 S.C. 291 at 326, Ebba v. Ogodo (1984) 4 S.C. 84 at 97 – 99 110; (1984) 1 SCNLR 372 and Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578.

The learned counsel for the respondents adopted his written belief of argument filed on 22/4/91. He made oral submissions in addition. He stated that the court below used the findings of the trial court in setting aside the said findings of that court.

He submitted that the appellants pleaded acts of ownership as distinct from acts of possession and that the appellants did not plead acts of possession. He said that the battle in the courts below raged between ownership and acts of ownership.

It was his submission that proof of ownership leads to proof of possession which the appellants should do by traditional evidence and failed to do.

He said that the learned trial Judge held that the traditional evidence of both parties were inconclusive and that both parties have a common ancestor and the land in dispute originally belonged to their common ancestor. Counsel submitted that by operation of law, both parties are jointly in possession.

He further submitted that there is no evidence that the land was partitioned. On the above findings of the learned trial Judge, it was possible that both parties are in possession. Counsel submitted that it was for the appellants to prove exclusive possession or partition of the land in dispute.

It was his further submission that possession in this case is inseparable from Ownership. Learned counsel for the respondents also referred us to the finding of fact by the learned trial Judge that the land in dispute was desolate before Okpogode came to settle on it.

Counsel also stated that the appellants did not plead that they were in exclusive possession of the land in dispute. They pleaded that they are owners of the land in dispute and proceeded to plead acts of ownership. He referred to paragraphs 10 to 13 of the further and better amended Statement of Claim at page 178 of the record and that the respondents similarly did not talk about possession. He stated that the main contest between the parties was about ownership of the land in dispute, in other words, who is the owner of the land in dispute – Unuaro family (appellants) or Ohoro (Orhorho) community (respondents)”‘

Learned counsel submitted that possession depends on who is proved to be the owner of the land. Counsel said that in the circumstance, it is wrong for the appellant to come to contend that possession in this case is separate and independent of the claim for ownership of the land in dispute.

He said that the appellants railed to plead possession and cannot at this stage contend that they were in exclusive possession which entitled them to maintain a claim for damages for trespass. Learned respondents’ counsel said that for the appellants to maintain an action for damages for trespass and injunction, they must prove exclusive possession. We were referred to Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) .393 at 402-403 and Udeeze & ors. v. Chidebe & ors. (1990) 1 NWLR (Pt. 125) 141: (1990) 1 S.C.N.J. 104.

It was contended that once the traditional proof is held to he inconclusive, the claim for title to the land failed and the claim for possession built on the inconclusive traditional evidence of possession cannot stand.

On whether the court below properly and adequately evaluated the evidence on record, it was submitted that as a general rule, appellate courts will not interfere with the findings or facts of trial courts. They will do so if the findings of fact are perverse or not supported by evidence.

He stated that in the instant case, the learned trial Judge made specific findings of fact which were not supported by the evidence and the court below was therefore justified in setting aside the judgment. Learned counsel further submitted that once a party predicated his title on traditional evidence and the traditional evidence failed, any evidence of possession built on the traditional evidence must also fail. He cited the cases of Ogungbeni v. Asamu (1986) 3 NWLR (Pt.27) 161 and Amajideogu v. Ononaku (1988) 2 NWLR (Pt.78) 614.

Learned counsel for the respondents referred to the uncontradited evidence that Okpogode was the first person to build and live on the land in 1939 followed by D.W.4 in 1959, 4th defendant in 1976 and D.W.3 in 1971 among others. He said that it was perverse for the learned trial Judge to hold that all the above members of Ohoro community who built and lived on the land in dispute for upwards of forty six years are acts of recent origin.

Counsel argued that the evidence of communal ownership led by the respondents was overwhelming and unchallenged and the learned trial Judge should not have swept them under the carpet. We were also referred to the finding of fact made by learned trial Judge where he said: “It would appear that the land in disp ute was at (sic) a very long time deserted and so became desolate’”

It was contended that this is the heart or the respondents’ case.

With respect to the planting of plantains and banana trees, counsel stated that the appellants did not plead that they planted plantain or banana before Okpogode settled on the land, He stated that evidence given on material fact which is not pleaded is irrelevant and inadmissible and the Court of Appeal was therefore right in expunging the said evidence from the record, We were urged to dismiss the appeal.

The plaintiffs/appellants instituted this action for themselves and as representing Unuaro family of Uwheru. The defendants were sued for themselves and on behalf of Ohoro (Orhorho) community of Uwheru.

The learned trial Judge made the following specific findings or fact for and against the opposing parties to the proceedings:

1. On traditional evidence, he said: “There is nothing to prefer between the evidence of one of the parties to that of the other. It is however clear that both parties hailed or claimed to have hailed from Ohoro………..Having regard to the state of the pleadings and the evidence led in support of same…………I hold that the warring parties are descendants of Ohoro” See page 264 lines 38-43 of the record.
2. Continuing, the learned trial Judge held: “Historical evidence in this case, in my view, is inconclusive but I must add that I do not believe the defendants assertion that Ohoro quarters was not owned by various families of Ohoro; having regarded to the fact and that was the pattern in Ohoro village where the people later moved to.” (the underlining is for emphasis) See page 264 lines 42-45 and p.265 lines 1-3.
3. “It would appear that the acts of ownership particularly building of house on the land, relied upon by both parties in this case are of recent origin. These acts of ownership do not extend over sufficient length of time, numerous and positive enough to warrant the inference of exclusive ownership. The burden of establishing this rests on the plaintiff.” (See page 266 lines 33-39 of the record).
4. “It is also my view that D.W.3, D.W.4, D.W.5 and D.W.6 who are essentially defendants’ people, of recent, hurriedly erected three houses on part of the land in dispute to present the protesting plaintiffs with a fait accompli” (See page 266 lines 42-46 of the record ).
5. “It would appear that the land in dispute was at a (sic) very long time deserted and so became desolate. There is however, evidence by D.W.7 Gabriel Asakpa, which is instructive. D.W.7 testified thus:

‘The house built by Okpogode was about 45 years old and before Okpogode built this house on the land, it was a forest. D.W.7 said that there were no farms on the land before Okpogode came there to live. Continuing D.W.7 said that there were, however, plantains and banana on the land, the owner of which he did not know etc.” (Page 267 lines 1-9 of the record). (The italics are mine for emphasis only).

The learned trial Judge continued:-

6. “I hold that if the plantain and banana trees, were those of the defendants who called him as witness. D.W.7 who appeared intelligent to me, would have known. I hold that the plantain and banana trees belong to the plaintiffs as testified by them. The defendants made their first incursion into the land through Okpogode when the plaintiffs people were already farming there …. (Page 267 lines 11 – 16.

Having regard to what has been stated above and weighing the evidence of the warring parties I am of the view that the plaintiffs were in possession of the disputed land ever before Okpogode and his kinsmen invaded the area like locusts.” (See page 267 lines 17-20 ofthe record).

He found that the plaintiffs’ action is essentially based on trespass and he proceeded to award damages for trespass and made an order of perpetual injunction against the defendants who are the respondents in this court.

The defendants appealed to the Court of Appeal and that court set aside the judgment of the trial court and dismissed the claims of the plaintiffs. The plaintiffs appealed to this court.

It is true that the learned trial Judge found that the acts of “ownership” did not extend over sufficient length of time, numerous and positive enough to warrant the inference of exclusive ownership. He did not find that the acts of “ownership” with “possession” did not extend over sufficient length of time. The Court of Appeal in its judgment used the expression “ownership” and “possession” interchangeably and missed the issue decided by the trial Judge to the prejudice of the appellants.

The first issue must therefore be answered in negative.

The second issue will be answered in the affirmative for the reasons which I will give later in the judgment.

The plaintiffs’ claims against the defendants are for a declaration of customary right of occupancy, damages for trespass and perpetual injunction. (See page 147 of the record). In their further and better amended statement of claim, the plaintiffs/appellants pleaded that they are the owners of the land in dispute. In paragraphs 10, 11, 12 and 13 of the said further and better amended statement of claim, they pleaded various act of ownership and possession. The defendants/respondents pleaded along the same lines as the plaintiffs.

The evidence led by both parties in support of their claims for ownership were in conflict. The learned trial Judge held that the traditional evidence led by both parties were inconclusive.

The acts of ownership claimed by both parties were also held by the trial Judge not to extend over sufficient length of time, numerous and positive enough to warrant the inference of exclusive ownership.

It is trite law that trespass to land is actionable at the suit of the person in possession of the land. Exclusive possession gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except the person who can establish a better title. Generally speaking, as a claim for trespass to land is rooted in exclusive provision, all that a plaintiff needs to prove is that he has exclusive possession, or he has a right to such possession of the land in dispute.

A claim for trespass is not always dependent on the claim for declaration of title. The failure of the claim for declaration of title to land does not necessarily defeat a claim for damages for trespass. See Akano v. Okunade (1978) 3 S.C. 129 at 137; Oluwi v. Eniola (1967) NML 339: Kponuglo v. Kodadja 2 WACA 24 and Amakor v. Obiefuna (1974) 3 S.C. 67 at 78.

The learned trial Judge used part of the evidence of D.W.7 (Gabriel Asakpa) to find possession in the appellants. The witness testified in part: “But plantains and bananas were on the land. I do not know the owners,” (See page 233 lines 34-35 of the record).

The plaintiffs led evidence to the effect that they planted plantain and banana trees on the land. They did not plead them specifically but in their pleadings, they averred that they have rubber and other trees on the land. One would have thought that the planting of plantain and banana trees are covered when the planting of rubber and other crops are pleaded. Neither party pleads the evidence by which he proposes to prove the facts on which he relies. To plead the planting of plantain and banana trees will amount to including unnecessary details when alleging material facts and that is bad pleading.

The Court of Appeal should not have expunged from the record and rejected the evidence on the planting of crops such as banana and plantain on the land in dispute.

The third and fourth issues for determination having been considered above, I will now deal with issues two and five.

The specific findings of fact highlighted above established that the plaintiffs were in possession of the land in dispute “ever before Okpogode and his kinsmen invaded the area like locusts.”

The evidence of D.W.7 is a factor to be considered. If indeed there were no farms on the land in dispute before Okpogode came to live there and there were banana and plantain trees growing on it, he could not have claimed ignorance of their ownership. The learned trial Judge was right in my view in holding that they belong to the appellants.

There is also no finding by the learned trial Judge that the land in dispute was founded by Ohoro which would have led to the inference that it is jointly owned by both parties to the proceedings.

It is trite that where the title of both parties is defective as in the present case, the court can still find for the plaintiff in the action for trespass if he establishes possession which the appellants have done here. See Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578 at 599; Kareem & ors. v. Ogunde & ors. (1972) 1 All NLR (Pt.1) 73 and Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt.93) 215.

It is also not in all cases that a plaintiff who sues for trespass must prove his title to the land in dispute. Once he can show that he is in possession of it at the time the defendant went into it without his authority or consent, he is entitled to succeed unless the defendant establishes a better right to possession or title. See Amakor v. Obiefuna (1974) 3 S.C. 76.

The Court of Appeal misdirected itself in disturbing the findings of fact made by the learned trial Judge.

In appeals on findings of fact the attitude of the appellate court is that of caution and of reluctance in interfering with facts found by the trial court.

The court below did not show that there was obvious error in the appraisal of the oral evidence or that improper or imperfect use was made of the opportunity of seeing or hearing the witnesses or that wrong conclusions had been drawn from accepted facts.

The attitude of an appellate court is to attach great weight to the opinion of the trial Judge in the absence of any shortcomings some of which have been set out above. See Federal Commissioner for Works v. Lababedi & ors. (1977) 11-12 S.C. 15 at 24; Fatoyinbo & ors v. Williams (1956) 1 F.S.C. 87; (1956) SCNLR 274 and Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41.

For the above reasons, I will allow the appeal. The appeal is accordingly allowed by me. The judgment of the Court of Appeal dated 12th May, 1989 is set aside. The judgment of the High Court of the then Bendel State, Ughelli Judicial Division and dated 21/11/85 is hereby restored. The appellants are entitled to the costs of N500.00 in the court below and N1,000.00 in this court.

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Other Citation: (1992) LCN/2545(SC)