Fagbemi Akano V. Moses Alabi Okunade & Ors (1978)
LawGlobal-Hub Lead Judgment Report
OBASEKI, J.S.C.
We allowed this appeal against the judgment of the Western State Court of Appeal on the 23rd day of February, 1978 and now give our reasons.
These proceedings were commenced in the High Court of the Western State at Abeokuta by Writ of Summons endorsed with the particulars of claim which reads:
(1) Declaration of title according to Native Law and Custom to the plaintiffs farmland lying and situate at Orile Ilugun, Abeokuta Province, Western Nigeria;
(2) Recovery of possession of the said farmland; and
(3) Mesne profits from latter part of 1959 up to the time of delivery up of possession.
Pleadings were ordered, filed and duly delivered and the matter came up for hearing before Adewale Thompson, J.
In a considered judgment, the learned trial Judge dismissed the claim for declaration of title, made an order for possession and allowed the claim for mesne profits in the sum of 270 pounds (N540.00). More particularly, the concluding paragraph of the said judgment reads:
“From the above, the remedy of declaration of title cannot enure for the benefit of the Plaintiff and that title is still in the community and it is not clear whether they have divested themselves of it. It seems to me however that the Plaintiff cannot be evicted because he had never committed any acts of customary misbehaviour. That situation might arise in future if the Plaintiff refuses to pay a new Bale on demand the confirmation fee of 32.10/.
It is therefore my judgment that the Plaitniff is entitled to possession of the land shown in the plan Exhibit A, edged red and which possession is granted to him forthwith. As regards the claim for mesne profits, there is evidence that Plaintiff makes no less than 20 pounds per month from the farm. It was pleaded that Plaintiff was evicted about 10 years ago but as there was no clear cut evidence as to the time plaintiff was evicted, I am fixing the time for the purpose of this head of claim at 25th November, 1966, the date of the writ of summons and award Plaintiff 5 pounds per month from November, 1966 to April, 1971 making a total of 270 pounds.
For the removal of doubt, the following are the final orders made in this action:
(1) plaintiff’s claim for declaration of title is dismissed;
(2) plaintiff is to recover possession forthwith of the land in dispute as shown in the plan Exhibit A edged red.
(3) plaintiff is awarded the sum of 270 pounds being mesne profits between November, 1966 and April, 1971 at 5 pounds per month.”
Being aggrieved by this decision on the claim for possession and mesne profits, defendants appealed to the Western State Court of Appeal on 9 grounds. 8 of the grounds of appeal were argued and in the course of argument, an application to amend the claim for mesne profits to read damages for trespass was refused.
In a considered judgment, only one of the grounds i.e. ground (g) which reads:
“The learned trial Judge erred in law in granting possession of all the land in dispute to the plaintiff when plaintiff admitted that the said land belonged to him and one (Salawu Akani amended by the Western State Court of Appeal suo motu to read) Rufai Popoola.”
was dealt with and the appeal was allowed. The order for possession and payment of 270 pounds mesne profits was set aside and an order of non suit entered against the plaintiff. The reasons for allowing the appeal are set out more clearly in the closing paragraphs of the judgment which read:
“On account of the order we propose to make, we shall deal only with ground (g)……From the evidence particularly the answer of the Plaintiff to the cross-examination of the defence counsel which we have quoted earlier in this judgment, it is clear that Rufai Popoola was one of the brothers of the Plaintiff. It is also clear that the land in dispute included the late Popoola’s farmland and according to the plaintiff, he did not obtain any letter of administration to administer Popoola’s estate nor was he according to customary law entitled to inherit in Popoola’s estate. He specifically referred to Salawu Akanni, a brother of the Plaintiff as entitled to inherit Popoola’s estate.
We agree with Mr. Kolawole that the Plaintiff was not in the circumstances to include the late Popoola’s estate in the subject matter of litigation between him and the Defendants……..
In the circumstances, we think the proper order that ought to have been made is one of non-suit. We will allow the appeal and enter an order of nonsuit against the plaintiff.”
It is against this decision that the plaintiff/respondent/appellant has now appealed.
After an unsuccessful attempt to add two new grounds of appeal, Chief Agbaje, learned counsel for the appellant, argued the two original grounds contained in the notice of appeal. These two grounds read as follows:
(1) The learned Justices of Western State Court of Appeal erred in law on the facts in non-suiting the plaintiff merely because he stated under cross-examination that the land in dispute included Popoola’s farm when there was no evidence before the court as to the title of Popoola and none was pleaded and the case being a straight fight between the plaintiff and the defendants.
(2) The decision is against the weight of evidence.
The short point in this appeal therefore resolves itself into the following question:
In a claim for recovery of possession of farmland containing permanent crops – cocoa, kolanuts, awusa, orange and native wrapping leaves, on grounds of unlawful ejectment of plaintiff’s caretaker while plaintiff was out of the country, does the evidence of the rule of inheritance under customary law that a senior brother does not inherit the property of the junior brother dis-entitle the plaintiff who was in possession of the farmland before ejectment from succeeding in the action when the only evidence of the late junior brother’s interest was that his farm is included in the farm in dispute
We shall now proceed to deal with this question by reference to the pleadings, the findings of the learned trial Judge and the general state of the law.
The case of the appellant was vividly set out in his statement of claim paragraphs 1, 2, 3, 4, 5, 7 and 8 of which read:
“(1) the plaintiff is a farmer, resident at Orile-Ilugun, Abeokuta Province. The defendants are resident there too.
(2) about twenty eight years ago, the plaintiff together with one Rufai Popoola, Amusa Alamu and Rabiu came from Ibadan to Orile-Ilugun in search of good farmland. The plaintiff and his said colleagues sought the help of one Busari Aworinde in this direction.
(3) the said Busari Aworinde took the plaintiff and his colleagues to the then Bale of Ilugun the late Idowu, who gave them farmlands on payment of ten pounds sterling by the plaintiff and his brother Rufai Popoola and another ten pounds (10) sterling, by Alamu and Rabiu. Busari demarcated the boundaries for the parties.
(4) the land was granted to the plaintiff by the late Bale Idowu for farming purposes and the land so granted which is the land in dispute is edged PINK on plan No. BK.5485A of 22/5/57, drawn by A. T. Bickersteth, Licensed Surveyor and attached to this statement of claim.
(5) Ever since the said grant, the plaintiff had started to cultivate the same by planting cocoa and other crops thereon.
(7) when 1st defendant became the head of the town he demanded and got two pounds and ten shillings (2.10) from each of the farmers granted land by his predecessors in office. The plaintiff also paid his own pounds and ten shillings (2.10) to the 1st defendant.
(8) The plaintiff left Orile-Ilugun temporarily to Sabe to treat a sick relative some ten years ago. The plaintiff returned to Ilugun about seven years ago only to find that his said cocoa farm had been sold by the 1st, 2nd and 3rd Defendants to the 4th defendant without any just cause.” Nowhere does the pleading, i.e. statement of claim, contain any positive averments that Rufai Popoola has any land in the land claimed by the plaintiff. It may also by pointed out that nowhere was it pleaded that Rufai Popoola was joint owner or owner in common of the farmland granted. In their reply, the defendants admitted paragraph 1 of the statement of claim, denied paragraphs 2, 3, 4, 5, 6, 7, 8, and 9 of the statement of claim and went on to plead in paragraphs 13, 14 and 15 as follows:
“13. The defendants aver that Idowu the late Bale Orile Ilugun was not authorised to grant any land to the plaintiff and neither was there any grant made to the plaintiff by the said Bale with the knowledge and consent of the chiefs of Ilugun township.
- The defendants aver that the land in dispute was sold to the 4th defendants with the knowledge and consent of the chiefs of Ilugun township about the year 1961.
- The defendants aver that the plaintiff is not a native of Ilugun or any township in Abeokuta and as such not entitled to a grant of Ilugun land by the native law and custom of Ilugun township.”
It is clear therefore that at the stage when hearing of evidence began, besides the sale of the farmland to the 4th defendant/respondent there were no admissions. In fact by the denials of paragraphs 2 to 8 of the statement of claim, possession of the farmland was denied.
We also observe that it was not made an issue in the Statement of Defence that Rufai Popoola was a part owner and that plaintiff could not sue. The main issue raised by the defence was that Idowu the late Bale had no authority to grant any land to the plaintiff and that no grant was made to the plaintiff with the knowledge and consent of the chiefs.
This is an implied acceptance that the grant was made to the plaintiff but that the person who made the grant had no authority to do so.
Happily for the appellant, the learned trial Judge in his considered judgment made very many important findings the most relevant of which, for our purpose, reads:
“There is ample evidence on record that the Plaintiff was in effective possession of the land in dispute. 1st Defendant admitted under cross-examination that Bale Idowu made a grant to the Plaintiff of land recorded in the plan Exhibit A and that the Plaintiff was cultivating it. The 1st defence witness, Sabitiu Odeogbola also admitted that Plaintiff was farming on the land when she saw him.
On the evidence before me, and judging by the demeanour of the witnesses, I believe the story of the plaintiff and his witnesses that Bale Idowu made a grant of the land as shown in Exhibit A by the plaintiff. That plaintiff cultivated it and planted cocoa, kola and other trees thereon and that while plaintiff left Ilugun temporarily leaving the farm in the care of one Alamu 1st, 2nd and 3rd defendants forcibly evicted plaintiff’s caretaker and sold the land to the 4th defendant.
“Defendants also pleaded in paragraph 15 of the Statement of Defence:
“The Defendants aver that Plaintiff is not a native of Ilugun or any township in Abeokuta and as such is not entitled to a grant of Ilugun land by the native law and custom of Ilugun township.”
There is conflicting evidence about the native law and custom. 1st defendant, the Bale, admitted that a person’s place of origin had nothing to do with his right to be a grantee of communal land but 1st defence witness said that it is strange to grant land to a stranger. Plaintiff has claimed declaration of title under native law and custom. There is evidence of a grant which I believe, but the issue which is not settled is whether the Bale has the power to sell absolutely communal land. I am not inclined to hold that the sale was absolute
From the above, the remedy of declaration of title cannot enure for the benefit of plaintiff as that title is still in the community and it is not clear whether they have divested themselves of it. It seems to me however that plaintiff cannot be evicted because he has never committed any acts of customary misbehaviour.”
(Underlining ours)
We have set out above the relevant pleadings of the parties and findings of the learned trial Judge who heard the case in the court of first instance in view of their relevance to the point taken in this appeal:
that the death of the junior brother of the appellant did not affect the possessory rights of the appellant over the farmland and that the evidence that a senior brother cannot under their native law and custom inherit the property of his deceased junior brother cannot affect his claim to possession of the farmland which possession the learned trial Judge found he had before he took his junior brother away for treatment. Further, his appointment of a caretaker to take care of the farmland while he was away to Dahomey continue his possession until it was disturbed by the defendants/respondents when they forcibly evicted him from the farm and placed the 4th defendant/respondent in possession.
The issue of possession is separable from the issue of radical title – (See Oluwi v. Eniola (1963) NMLR 339 at 340) and in our opinion, there is great merit in the submission. Any form of possession, so long as it is clear and exclusive and exercised with intention to possess is sufficient to support an action of trespass against a wrongdoer. A mere trespasser who goes into occupation cannot, however, by the very act of trespass and without acquiescence give himself possession against the person whom he has ejected (See Halsbury’s Laws of England 3rd Edition Vol. 38 paragraph 1213 page 743).
As regards the question of recovery of possession, possession in itself is a good title as against everyone except the true owner and if one who has been in possession is wrongly dispossessed, he is entitled to recover possession against the wrongdoer notwithstanding that the true title may be shown to be in a third person (See Halsbury’s Laws of England 3rd Ed. Vol. 32 paragraph 662 at page 375).
We may ask whether the death of the appellant’s junior brother, Rufai Popoola would have had the effect of removing appellant from possession of the farmland if he had not travelled and left the farmland in the charge of the caretaker.
We think not. Further, the evidence of acts of possession i.e. cultivation and payment of the premium of 310 in the 1st instance to Idowu the late Bale and 35 confirmation fee when the first defendant/respondent became Bale in succession to Idowu, the contribution of the deceased to this amount notwithstanding, projected the appellant as the person put in possession and who took effective possession of the farmland. We have taken a second look at the evidence of the plaintiff that was used to secure an order of non-suit in the Western State Court of Appeal. It was given under cross-examination and reads:
“My brother’s farm is included in the farm in dispute. Rufai Popoola has no children. He is my junior brother. We were 3 born of our mother. The third’s name is Salawu Akanni. After the death of my brother, I never applied to have his estate administered. The senior brother does not inherit the estate of the junior brother. The person entitled to inherit Rufai Popoola’s land is Salawu.”
The witness appears to make a distinction between “farm” and “land”.
This piece of evidence, in our view, went to no issue and was rightly overlooked by the learned trial Judge. The fact that his junior brother with his permission planted some crops on the land granted to him and in his possession does not establish his incompetence to sue for possession. All the evidence on record establish the fact that the land and possession of it were granted to the appellant and that he cultivated it and appointed a caretaker when he was away.
In our view, the Western State Court of Appeal was misled into simulating the term farm with farmland and the right to possession with right of inheritance. An action for recovery of land is in essence an action of trespass.
In Bramwell v. Bramwell (1942) 1 KB 370, Goddard, LJ., (as he then was) said dealing with the historical origin and import of the action for recovery of possession said: “An action for recovery of land is the modern equivalent of the old action of ejectment. That action was a personal action and sounded in damages. Then in favour of this class of remedy, the courts determined that the Plaintiff was entitled to recover as collateral and additional relief possession of the land itself (see Stephen on Pleading 3rd Ed. p. 12) but it was in fact always a specie of the action of trespass.
We will also refer to the case of Nwosu v. Otunola (1974) 1 All NLR pt. 1 page 533 a decision of this court on the point now being canvassed. The facts are almost on all fours with this instant case and briefly stated are as follows:-
“The plaintiff/appellant commenced proceedings in the Lagos High Court claiming against the defendant/ respondent recovery of possession of premises at No. 42A Bale Street, Aiyetoro Ajegunle, Apapa. Mesne profits of 320pounds per month for the period defendants is found to be in unlawful possession and finally an injunction for trespass.
Both parties agreed that plaintiff built the house in 1960 and collected rents through an agent between 1960 and 1967 when he fled to the former Eastern Nigeria on the outbreak of the civil war.
The defendant however claimed to have purchased the land from the plaintiff’s agent with the consent of the Ojora Chieftaincy family as landlord. Defendant further stated that the plaintiff and one Mr. E. Nwokedi were tenants of Ojora Chieftaincy family under customary law and that he should be joined as plaintiff. The trial court however non-suited the plaintiff. On appeal to the Supreme Court, it was held inter alia that one of the several tenants in common can bring an action in trespass against third parties so long as the order to be made could be limited to the suing plaintiff alone not extended to anyone else.”
Delivering the judgment of the Supreme Court, Elias, CJN., said at page 539
“Mr. Lardner, learned counsel for the Respondent replied that the evidence led by the Appellant at the trial contradicted the pleadings and there was no application for an amendment of his claim before the Plaintiff/Appellant had closed his case. He pointed out that the Defendant/Respondent elected not to give evidence, the result was that the Plaintiff/Appellant had failed to establish his case, his pleading was not that there was some other co-owner, but that he was solely entitled and it was only under cross- examination that he admitted that there was a co-owner – a Mr. Charles Nwokedi. He submitted that in order to succeed, the Appellant must prove that he had a better title than the Respondent, but that the appellant has failed to do so in this case.
We think that the real issue is whether the Appellants’ possession is lawful and that even if he were a trespasser in prior possession the respondent must show that he has a better title than the Appellant.
This is borne out by the following observation in Asher v. Whitlock (1865) LR. 1 QB 1 at page 5.
‘But I take it as clearly established that possession is good against all the world except the person who can show a better title.’
It is pertinent to observe that the Statement of Defence admits that appellant is a part owner of the house in question.
We agree with the learned trial Judge that the failure of the respondent to give evidence of how he bought the land and came into possession of it is fatal but we do not agree with him that the appellant must fail even though he proved that it was he who built the house at the cost of 5,484 pounds and collected rents therefrom through a Mr. Nwosu from 1960 to 1967 before the civil war forced him to flee to the former Eastern Region. Whether he had paid or defaulted in his payment of his ground rent to his Ojora Chieftaincy family landlord is a matter which may arise for determination in other proceedings. What matters in order for the appellant to succeed is to prove a superior right to possession of the premises and this he has done by his evidence which the respondent had in fact not disputed.” (Underlining ours)
The only point dealt with by the Western State Court of Appeal and on which its judgment was founded was misconceived. We have expressed no opinions on the other aspects of the case not argued before us.
For the above reasons, we allowed the appeal and restored the judgment and orders of the High Court dated 26th April, 1971 and directed that the appellant be put back into possession forthwith. We also ordered the respondent to pay the appellant N176.00 costs of this appeal.
Other Citation: (1978) LCN/2075(SC)
