J.O. Eki Vs F.M. Giwa (1977)

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OBASEKI, JSC.

This appeal has been brought by the defendant in Suit No. LD/818/70 against the judgment delivered in that suit by Agoro, J., sitting in the High Court of Lagos State in Lagos.  

The claim before the court (endorsed on the Writ of Summons and repeated in the Statement of Claim filed by the plaintiff/respondent) was for (1) the sum of £1,000.00 (One Thousand Pounds) being general and special damages for trespass committed by the defendant during the years 1966/70 on all that piece or parcel of land situate at Railway Line, Igbehin Adun Village, Ebute Metta, Lagos; and (2) Injunction.

After due hearing of evidence, the learned trial Judge gave a considered judgment in favour of the plaintiff, the concluding paragraph of which reads:   “On the question of trespass, the plaintiff gave evidence which I accept, that as far back as 1964, he was put into possession of the land in dispute by his landladies and their Estate Agent, Mr. Ogunsan. He then built a small shed on the land for the purpose of storing building materials in it.

In 1966, the plaintiff discovered that the defendant had entered the land, demolished the small shed and erected a shop on the land. This incident was reported to the plaintiff’s landladies who later went on the land to ascertain the true position. It was after this visit that Mr. Ogunsan was instructed to write the defendant as in Exhibit M. In the circumstance, I am satisfied that plaintiff was in actual possession of the land in dispute before the defendant wrongly dispossessed him in 1966.

The defendant has since remained in possession despite all the protests of the plaintiff. The plaintiff’s action succeeds and I enter judgment in his favour against the defendant for £500.00 damages for trespass. I make order for an injunction restraining the defendant, his servants or agents from any further trespass on the land.”   The only ground aruged before us was the omnibus ground which reads: “That the judgment is against the weight of evidence” The main complaint of the appellant thus raises the question of appraisal, evaluation and assessment of evidence and the principles on which an appeal court acts in such matters are very well settled. Recently in the case of Fashanu v. Adekoya (1974) 1 All NLR (Pt. 1) 35, this court at page 41 restated the principles thus:   “The appeal before us clearly attacks the findings of facts and seriously challenges the judgment in an area which is only narrowly open to a court of appeal. The appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a tribunal of trial and a Court of Appeal would only interfere with the performance of that exercise if the trial court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.”

In the early part of this century, the full court of Nigeria in Macaulay v. Tukuru (1881-1911) 1 NLR 35 enunciated similar principles which might be said to have been hallowed by time in the following words:   “When a judgment is appealed from as being against the weight of evidence, the Appeal Court must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it, if, on full consideration it comes to the conclusion that the judgment is wrong.   If however the appeal court is in doubt, the appeal must be dismissed since the burden of proof is on the appellant.” Guided by the above principles, we shall now proceed to examine the facts.   The learned trial Judge having ordered pleadings, the parties in compliance thereto filed and delivered their pleadings and we find that the averments contained in paragraphs 6, 7, 8, 9, 10, 11, 12 and 13 of the Statement of Claim formed the basis of the plaintiff/respondent’s claim and sufficiently gave the background to his case. They read as follows:   6. The plaintiff further avers that sometimes in 1964, Mesdames Lauretta Okafor Smart and M. Ajoke Smart, the successor-in-title of the owner orally agreed to let the piece of land the subject matter of this suit to the plaintiff for building purposes on payment of Annual Rental of twelve pounds (£12.00) for a period of 25years. 7. The plaintiff further avers that immediately an oral agreement of letting the said piece of land was concluded, the plaintiff went into possession immediately on the payment of 12 (Twelve Pounds) as agreed. 8. The plaintiff further avers that in addition to the oral agreement a written tenancy agreement dated 1st September, 1964 was also entered into between the plaintiff of the one part and Mesdames Lauretta Okafor Smart and M. Ajoke Smart of the other part.

9. The plaintiff maintains that he has since the year 1964 been in lawful possession of the piece of land under and by virtue of the oral and written agreements as stated above and indeed erected a shed thereon with a view to commencing building operation. 10. The plaintiff maintains that the has since 1964 been paying his yearly rent to his landladies. 11. The plaintiff further avers that during the year 1966, the defendant forcibly broke and entered into the piece of land the subject matter of this suit without any lawful justification and in spite of persistent warnings remains thereon.

12. The plaintiff maintains that he reported the matter to the police who advised civil action, the plaintiff there and then reported the matter to his landladies, the owners and both of them i.e. the owners accompanied the plaintiff to the piece of land and it was confirmed that the piece of land was let to the plaintiff, yet the defendant persists to remain thereon.   13. The plaintiff maintains that he is the tenant in lawful possession of the piece of land the subject matter of this action and on which the defendant broke and entered into, destroyed the shed on the said piece of land and still remains thereon in spite of persistent warnings and with gross disregard for the consequence. These averments were traversed by the defendant/appellant in paragraphs 2 and 3 of his amended Statement of Defence, and in paragraphs 4, 5, and 5(a) of the said Statement of Defence he proceeded to set up his title to the piece of land as follows:   4. The defendant avers that he does not know the piece of land upon which the plaintiff is litigating. 5. The defendant further avers that he is a tenant in respect of several plots of land from the descendents of Alfred Benjamin Weeks Smart since the year 1956 and has since been in undisturbed physical possession of all the plots.

5(a). The defendant further avers that he caused the several plots of land referred to in paragraph 3 supra to be surveyed by a Licenced Surveyor who produced survey plans. The defendant will refer and rely on the said survey plans at the trial.   Both parties and their witnesses including their surviving landlady, Mary Ajoke Smart (Plf/W.2) and her Estate Agent, Jackson Ishola Majaro Ogunsan (Plf/W.3) gave evidence at the hearing and the case turned out to be one of competing titles to land between the two parties.

However, the difficulty of finding out who had a better title disappeared when it became clear from the evidence that each party claimed to have derived his interest in the land from the same landladies. This is borned out by the evidence of the parties. The relevant portion of the plaintiff/respondent’s evidence reads:   “I know the land in dispute in this case, it is situated at Railway Line, Igbehin Adun village Ebute Metta. I also know that the land used to belong to one Alfred Benjamin Weeks Smart ………………………………….. The late A. B. Weeks Smart died years go. ……… Lauretta Smart and M. Ajoke Smart inherited the land in dispute and were exercising rights of ownership in respect of the land in dispute.    I remember in 1964 and through the agents of Lauretta Smart and M. Ajoke Smart, I obtained tenancy of the land in dispute to pay £12 or N24.00 a year which I am still paying. The terms and conditions of the tenancy are in an agreement in writing. This is the agreement (now admitted) as Exhibit A. …….. One Mr. Ogunsan witnessed Exhibit A.”

The relevant portion of the defendant/appellant’s evidence reads: “I know Miss Mary Ajoke Smart and also know her mother, Mrs. Kehinde Smart. Mrs. Smart is now dead. I leased four parcels of land from the two ladies. Each parcel of land was covered by a Tenancy Agreement …………………   I know the land in dispute. I have seen Exhibit ‘N’ and I confirm that it is the land the subject matter of this suit. I am the owner of the land in Exhibit N. I leased it from Smart. I leased it in 1956. Exhibit ‘O’ is the agreement in respect of the land in dispute. ………………………….. Exhibit O was executed in October, 1964 but I have been on the land since 1956,” (Underlining ours)   Under cross-examination, the testimony continued as follows: “….. There was no plan attached to Exhibit C when it was executed in 1964. I surveyed the land in dispute myself. ….. I know Mr. Ogunsan as the Rent Collector for Smart family in respect of lands in the locality of the land the subject matter of this suit.”   Exhibit A was dated 1st September, 1964 while Exhibit C was dated 13th October, 1964 over a month later. The surviving landlady, Miss Mary Ajoke Smart gave evidence as 2nd P.W. as already stated above. She was a signatory to both Exhibit A and Exhibit C so that her evidence was by and large a deciding factor. Her testimony (in its vital parts) reads:   “I know the plaintiff, Mr. Giwa and the defendant, Mr. Eki. I know the land in dispute. Mr. Alfred Benjamin Weeks Smart was my father. My father is dead. The land in dispute belonged to my deceased father. My father died intestate and it devolved on me. My mother, Sarah Lauretta Kehinde Smart and I tenanted the land in dispute to Mr. Giwa. My mother is also known as Lauretta Okafor. The land is at Railway Line, Igbehin Adun, Ebute Metta. This is the paper Exhbit A which we executed for the plaintiff. One Mr. Ishola Ogunsan was our agent. …… Three of us, my mother, Mr. Ogunsan and myself took Mr. Giwa to the land.

Mr. Eki also got land from us in the same area but it is not the land in dispute. My mother is now dead. Mr. Giwa came to complain to us that Mr. Eki was trespassing on his land and my mother and I went on the land. At the site, I met a lady who introduced herself as Eki’s sister and she admitted that the land in dispute belonged to Mr. Giwa but since he was not ready to use it, Eki erected a shop on it. ………………………. We instructed Mr. Ogunsan to write Mr. Eki to remove the structure as he was trespassing on another man’s land.”

As if that was not enough to drive the matter home, she left no room for any doubt when under cross-examination she said: “The document now shown to me was executed by us ……………………….. document now admitted as Exhibit C. The particular land in dispute was never given to Eki by us. We gave three plots of land to Mr. Eki.”   The principal argument canvassed by learned counsel for the appellant was that the appellant acquired his interest in the land in dispute earlier than the respondent in point of time. He also argued that the learned trial Judge did not give a proper appraisal to the evidence before him. He referred to the receipts for payment of rents Exhibits, E, ‘F’, ‘G’, ‘H’, J, K, L, L1, L2, L3, L4 and L5 and urged us to hold that they show that he had been in occupation of the land in dispute since 1956 and that a correct appraisal and evaluation of the evidence would have led to a conclusion different from that arrived at by the learned trial Judge. The learned counsel for the appellant was however at pains to explain why the surviving landlady, Miss Mary Ajoke Smart (Plf.W2) and her Estate Agent, Mr. Jackson Ishola Majaro Ogunsan (Plf./W3) were unable to testify in support of appellant’s case.

We find that the learned trial Judge considered every piece of relevant evidence led before him and we are satisfied that the evidence which he accepted was properly assessed and evaluated. It is here pertinent to refer to the relevant portion of the judgment of the learned trial Judge which shows clearly the application of his mind to the facts and the discharge of the duty of appraisal, evaluation and assessment of the evidence. It reads:   “The oral agreement was later confirmed by Exhibit A which is dated 1st September, 1964. The term of arrangement as explained by the plaintiff in testimony before the court was confirmed by Miss Mary Ajoke Smart (2nd P.W.) one of the signatories to Exhibit A and also by Mr. Jackson Ishola Majaro Ogunsan (3rd P.W.), the Estate Agent to the two descendants of Alfred Benjamin Weeks Smart. On the other hand, the defendant has also claimed to be a tenant in repect of the same land in dispute under Exhibit C and that Exhibit H is the first receipt issued to him in respect of the same land. Miss Mary Ajoke Smart (2nd P.W.) one of the signatories of Exhibit C has however denied that the land in dispute was ever allocated to the defendant.

This witness confirmed that the land in dispute was allocated to the plaintiff and she was one of those who put the plaintiff into possession. In the light of this piece of evidence, which I accept, the defendant and Mr. Ogun (3rd D.W.) were either mistaken about the person to whom the land was allocated or they were untruthful when they maintained that the land in dispute was allocated to the defendant. Be that as it may, I prefer the evidence of the plaintiff and Miss Mary Ajoke Smart on the question of allocation of land in dispute. Although survey plan was not attached to Exhibit A, it stands to reason that one of the lessors of the land in dispute would be in a position to identify the land which was allocated to the plaintiff. Indeed, when the plaintiff laid complaint to his landladies and Mr. Ogunsan as far back as 1966 that defendant forcibly broke and entered the said land, Miss Mary Ajoke Smart was one of the three persons who went on the land in dispute to ascertain the true position. It was this same parcel of land which the plaintiff has since surveyed in Exhibit N. And both the pliantiff and the defendant have confirmed that Exhibit N shows the area of land in dispute.”

We are satisfied that the findings have not been based on any mistaken view of the facts or that there has been an inadequate use of the written evidence for testing the veracity of the facts or the credibility of the evidence both oral and documentary which both parties rely and in respect of which they both had sworn. Although this is a claim in trespass and not for declaration of title, it is clear from the proceedings that the appellant raised the issue of title and the case was not fought on that basis.   In a claim for declaration of title where both parties trace title from the same source or root, the plaintiff in order to succeed must establish a better title to the land. See Lawrence Gregorio Da Costa v. Stella Onowale Ikomi, SC.733/66 (Unreported), delivered on 20th December, 1972. Alhadji A. W. Elias v. Alhadji B. A. Suleimon & Ors. (1973) 12 S.C. 113. Thomas v. Preston Holder (1946) 12 WACA 73.   The plaintiff/respondent’s title to the land was proved better in every respect and that knocked out the basis of the defence. There can be no such thing as concurrent possession by two persons claiming adversely to each other (Amakor v. Obrofuma (1974) 1 All NLR (Pt. 1) 119) and the evidence of Miss Mary Ajoke Smart settled the question of who had possession of the land. We find no merit whatsoever in the appeal and we hereby dismiss it with costs to the respondent assessed at N150.00, and affirm the judgment and order of the court below.

Other Citation: (1977) LCN/1936(SC)