John Fakunle V. Mrs. Grace Oke (2008)
LawGlobal-Hub Lead Judgment Report
IGNATIUS IGWE AGUBE, J.C.A.
Before His Lordship J.O. Adeyeye J. of the High Court of Ekiti State Holden at Emure Ekiti in the Emure/lse Judicial Division the Plaintiff took out a writ of summons against the Defendant and in both the writ and her statement of claim sought for the following Reliefs:-
(a) A declaration that the Plaintiff is entitled to the customary right of occupancy in respect of the piece of land lying and situate at Owode Camp, Emure Ekiti which land is bounded as follows:-
i. On the first side by Asemolegun’s land;
ii. On the second side by Agbelese’s land’
iii. On the third side by Opani Ogunro stream; and
iv. On the fourth side by Emure/Supare Road.
(b) An order directing the defendant, his agents, privies, servants and such other persons claiming through him or for him to vacate the land in dispute forthwith and restraining the defendant from entering onto or trespassing in any form on the land in dispute.
(c) The sum of N1,000,000.00 (One million Naira) being general damages for trespass committed on the land in dispute by the defendant.
After being served with the summons and statement of claim, the Defendant filed his Statement of Defence and issues were joined by the parties. In proof of the Plaintiffs case, she testified and called two other witnesses. The Defendant on his part testified and called a witness in support of his case.
At the close of hearing and addresses by counsel, the learned trial Judge granted the plaintiff the declaration of customary right of occupancy to the land, ordered the eviction of the Defendant his agents, privies servants and such other persons claiming through him and granted an injunction on the same terms as above. He further awarded the plaintiff N50,000.00 as general damages against the Defendant for trespass.
Dissatisfied with the judgment of the High Court, the Defendant gave Notice of Appeal with five Grounds which are contained in pages 129 to 133 of the Record of proceedings.
For the avoidance of doubt the said grounds are reproduced hereunder without their respective particulars as follows:-
“GROUNDS OF APPEAL:-
“(1) The lower court erred in law in giving the Plaintiff judgment when she did not prove the exactness of the land she claimed.
“(2) The lower court erred in holding that the Plaintiff is entitled to the land in dispute.
“(3) The lower court erred in law in giving judgment to the plaintiff in spite of material contradictions in her evidence.
“(4) The lower court erred in law by holding that:-
“I must say that the pieces of evidence relating to the fact that the Defendant has been working on the land are not set out in he statement of Defence and therefore could not form part of the record of this court.
“The cases cited by Learned Counsel for the defendant as regards recent act of possession of the defendant could not be considered because all the facts that the defendant has been in long possession of the farm, had crops planted thereon were not pleaded by the defendant.”
“(5) The lower court erred in law in awarding damages for trespass against the defendant when plaintiff has never been in possession of the land.
“(6) The decision of the lower court is against the weight of evidence.”
When the case came up before this court adjournments were taken following the inability of the Respondent to file her Brief of Argument until the Appellant filed a motion dated 7th November, 2007 on the 8th day of November, 2007 for the appeal to be heard on the Appellant’s Brief alone.
On the 22nd of April, 2008 when it appeared that the Defendant was not interested in contesting the Appeal, the Application was granted in accordance with order 17 Rule 10 of the Court of Appeal Rules, 2007.
The facts of this case as can be gleaned from the pleadings of the parties and the evidence elicited are that the Plaintiff Mrs. Grace Oke of No. 173 Ikare Road, Odo Emure Ekiti a teacher by profession claimed that the defendant trespassed on her father’s land. Her said father’s name was Onisere while her grand father was Adanri. The land according to her is bounded on one side by Agbelese’s Land and on the other side by Asomolegun’s land; on the right side by Oguro Stream and on the left by Ikare/Supare road.
According to her, the land belonged to her grand father and she inherited same from Onisere her father who in turn inherited it from Adanri his father. It took her too long to sue for the land because she was three years old when her father died and she was taken away from Emure and when she later returned, she was told by one Pa Asomolegun that her father had land at Owode. The said Pa Asomolegun sent Albert Asomolegun to show her the land.
On the land, she continued, are cocoa, oranges, kolanuts, boracious, palms, palm trees and economic trees like Iroko etc. She went into the land in 1990 and did not meet or know the persons on the land and she then fell one boracious palm and it was then that one Anthony Fakunle, the brother of the Defendant came out to challenge her and stopped the labourers she engaged for the felling of the palms.
She explained to the said Anthony that the land belonged to her father and returned home but two weeks later she was arrested at the instance of the Plaintiff by the police for trespassing on the Defendant’s land and stole. There was an attempt by one Reverend Idowu to resolve the matter to no avail as the Defendant sued her at the Emure Customary Court which gave judgment in favour of the Defendant but on Appeal to the Emure High Court the judgment of the Customary Court was set aside. A certified copy of the Judgment was admitted and marked Exhibit A. There was no appeal against the judgment of the High Court sitting in its Appellate jurisdiction.
On the Custom of the Emure people as far as inheritance of landed property is concerned, she stated that it is customary that female children inherit landed property of their fathers. She denied that the land belongs to the father of the Defendant. She stated that the land in dispute is now hers but that Defendant is now on the land because he refused to vacate same after he lost the case in Court.
The case of the Defendant/Appellant on the other hand is that the land in dispute belonged to his father from whom he inherited same. He started working on the land till the time of the case in Court after the demise of his father and did not know Adanri the grand father of the Plaintiff/Respondent. He knew Solomon Onisere the father of the Plaintiff who was a tailor but did not farm on the land during his life time. According to the Defendant/Appellants, he had been working on the land for the past fifty years and did not at any time meet Solomon Onisere on the land and had no dispute on the land with the said Solomon Onisere. Pa Adanri and Solomon Onisere did not at any time work on the farm, he maintained.
On the question of his boundary neighbours on the land, he stated that he shares boundaries with Osere, Anu and Agbelese on the Western side, Famakinwa and Aro Agungbale on the Eastern part; on the Southern part with Kolawole Ajagunmo and in the North with Israel Oladele and Faseemo.
He denied that pa Philip Asomolegun was ever a boundary neighbour and was never aware if Pa Philip Asomolegun at any time showed the disputed land to the children of Solomon Onisere.
On the genesis of the dispute between him and the Plaintiff/Respondent, he related that the dispute started 13 years back when he sued the Plaintiff/Respondent for felling his boracious palms and judgment was given in his favour a copy of which he tendered as Exhibit B. The Plaintiff/Respondent appealed against the judgment of the Emure Customary Court which was set aside.
It was the contention of the Defendant/Appellant that as things stood he had a right to the land because he has been faming there on for a long time. He denied that the Plaintiff/Respondent owned the land neither did Pa Solomon Onisere who was the son of Adanri. He maintained that his father was the founder of the place and neither Solomon Onisere nor Adarni at any time farmed on the land nor did Solomon Onisere inherit any land from Adanri.
Also it is not true that the land in dispute belongs to the ancestors of the Plaintiff/Respondent or that she had exclusive possession of the land or title to the land. He asserted that he cannot be restrained from the land because he met his father working on the land while growing up and that he had no damages to pay because he did not trespass on the Plaintiff/Respondent’s land.
It would be recalled that in the Brief settled by the Learned Senior Advocate on behalf of the Appellant, Five Issues were distilled from the Grounds of Appeal as calling for resolution. They are stated here under as follows:-
“A. Whether or not the Plaintiff established the identity of the disputed land with clarity and exactness? (Ground 1).
“B. Whether or not Plaintiff showed herself as having a better title than defendant to warrant her being given judgment? (Ground 2).
“c. Whether or not the lower Court did rightly evaluate the evidence before it before coming to judgment? (Grounds 3 and 4).
“D. Whether or not Plaintiff could sue for trespass and damages when she was never in possession of the farm? (Grounds 3 & 6).
“E. Whether or not the decision of the lower Court justified vis-a’-vis the evidence led before it? (Ground 3)”
Arguing Issue A AS TO WHETHER OR NOT THE PLAINTIFF ESTABLISHED THE IDENTITY OF THE DISPUTED LAND WITH CLARITY AND EXACTNESS (GROUND 1), the Learned Senior Advocate submitted as follows that:-
(a) Plaintiff testified as PW 3 that she was born around 1958 and that it was in 1990, when she was 32 years old that one Pa Asomolegun, said to be one of the boundary – men to the land in dispute, sent his sons, Joseph Asomolegun and Albert Asomolegun to show plaintiff the land in dispute,
(b) PW 1, Albert, Adesina Asomolegun testified at first that his father, Late Pa Asomolegun, before his death, showed that land and its boundaries to plaintiff, Joseph Adesina Asemolegun, himself, PW 1 and Pa Isaac Ilori,
(c) Later under cross-examination, however, he said that at the time the land was shown to Plaintiff, he could no more go to the farm, thereby contradicting himself,
(d) PW2, Clement Kolawole, testified that he was about to stray into the land in dispute in 1959 but his father dissuaded him, adding that, the land belonged to Plaintiffs’ father although he never saw Plaintiffs father or grand father on the land,
(e) Since that 1959 he did not know Adanri or Omisere, grand father and father respectively of the Plaintiff,
It was therefore, contended that from the foregoing it is plain and certain that late Pa Asomolegun who claimed to know the land did not go to show same to Plaintiff and that it is also clear that only PW 1 of all the delegates that allegedly went with Plaintiff to the farm, testified for her.
Thus, whatever the witness and/or all other delegates showed to Plaintiff is based on pure hear-say.
On the part of PW 1 the Learned Silk submitted that he gave the boundaries of the disputed land as:
a) the land of Agbelese,
b) the land of Asomolegun,
c) Oguro Stream,
d) Emure – Spare Road and for his part PW2 gave the following boundaries:-
(i) the land of Agbelese,
(ii) Oguro Stream,
(iii) The land of Asomolegun (1)
(iv) The land of Asomolegun (2)
(v) Emure – Ikare Road, crossing the land in dispute,
(vi) The land of PW2’s father,
(vii) The land of defendant John Fakunle (page 31).
The Learned Senior Advocate then posited that the two witnesses who claim to know the land disagreed as to the boundaries as neither of them nor Plaintiff herself mentioned the owners of the lands after and beyond Oguro Stream and the Emure Supare of Ikare Road.
It was further contended by the Learned SAN that PW 1 in his description of the land upon hearsay from his father who was not in the farm and PW 3 (Plaintiff) relied on the second hand hear-say of PW 1.
The Defendant for his part, the Learned Senior Counsel submitted, gave his boundary men as follows:
(i) Osere Anu and Agbelese,
(ii) Famakinwa and Agungbale,
(ii) Kolawole Ajegunmo
(iii) Israel Oladele and Faseemo; asserting that amidst all this confusion, it cannot be held that Plaintiff knows the land she is claiming and that she has failed to establish its identity, hence she cannot have a declaration or injunction.
For all the submissions above, he relied on the cases of EZUKWU V. UKACHUKWU, 2004 17 NWLR (part 902) 277 at 249, paras C-G; ONWUCHEKWA V. EZEOGU, 2002, 18 NWLR (part 799) 333 at 346, paras C-D and ABOYEJI V. MOMOH, 1994, 4 NWLR (part 341) 646 at 672, paras B-C.
It is now trite that the burden of proof is on the Plaintiff seeking a declaration of title. As was stated in the oft-quoted dictum of Webber C.J. in the antiquated yet causus classicus of KODILINYE VS. ODU (1935) 2 W.A.C.A. 336 at 337 – 338:-
“The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The Plaintiff in this case must rely on the strength of his own case and not on the weakness of the Defendant’s case. If this onus is not discharged it will not help him and the proper judgment is for the Defendant. ”
However, there are certain circumstances under which the weakness of the Defendant’s case may strengthen the Plaintiff’s case. Thus the rule that the Plaintiff must depend on the strength of his own case in order to succeed does not apply where the Defendant’s case supports that of the Plaintiff and contains materials upon which the Plaintiff is entitled to rely. See ABIDOYE V. ALAWODE (1994) 6 N.W.L.R. (Pt. 349) 242; IGWE V. KALU (1990) 5 N.W.L.R. (Pt. 149) 155.
The Supreme Court has established five ways to prove title to land in the case of IDUNDUN V. OKUMAGBA (1976) 9 -10 S.C. 227 AT 246 – 250.
These are:
1) By Traditional evidence;
2) By documents of title which must be duly authenticated in the sense that their execution must be proved, unless they are produced from proper custody;
(3) By acts of ownership numerous and positive enough as to warrant the inference that he is the true owner. (See EKPO V. ITA 11 N.L.R. 68).
(4) By Acts of possession and enjoyment of the land which may be prima facie evidence of the ownership of the particular quantity of land in dispute.
(5) By Acts of long possession of connected or adjacent land in circumstances rendering it probable that the owner of the land in dispute. See generally MOGAJI V. CADBURY (mg) ltd (1985) 2 NWLR (Pt. 7) 393. OKPURUWU VS. OKPOKAM (1988) 4 NWLR (Pt. 90) 554 and
In the case at hand, the plaintiff like every other claimant to declaration of title to land must discharge the first duty of identifying unequivicocally the precise area to which his claim relates with definitive certainty. However, where parties are ad idem on the identity of the land this burden will not arise.
In this case since parties have not tendered survey plans the test in the circumstance is whether a surveyor on a perusal of the record of proceedings, can draw a composite plan of the land in dispute as it is described therein by the parties. Again, the issue of identity of the land will arise where the Defendant raises it in his pleadings see EZEUDU VS. OBIAGU (1986) 2 NWLR (Pt 26) 208, FATUNDE V. ONWOANANAN (1990) 2 NWLR (P. 132) 322.
From the evidence elicited by the Respondent and her witnesses can it be said that she identified the land with definitive certainty? To answer this question it is necessary to have recourse to the evidence of the PW1-PW3 as given on record. It has to be recalled that in the first place from relief a (i) of the statement of claim where the Plaintiff sought for:
“A declaration that the plaintiff is entitled to the customary right of occupancy in respect of that piece of land lying at Owode Camp, Emure Ekiti which land is bounded as follows:-
(i) On the first side by Asemolegun’s land.
(ii) On the second side by Agbelese’s land
(iii) On the third side by Opani-Ogunro stream and
(iv) On the fourth side by Emure/Supare Road”, there ought to be confusion as to the land the Plaintiff/Respondent was claiming.
Apart from the imprecise nature of the description of the land in dispute no Surveyor can draw a plan of such an amorphous and imaginary land with the boundaries as First, Second, Third and Fourth sides.
Let us now proceed to see whether the evidence will help. The PW1 for instance in his evidence-in-chief described the land as follows:-
“The land is bounded as follows: On one side there is Agbelese land on the other side is Oguro stream and on the 4th side is Emure/Supare road.
The land in dispute belongs to Adanri. My late father told me that the land in dispute belongs to Adanri because my father shared the same boundary with the Plaintiff. Before my father died, he showed the land and the boundaries to the Plaintiff, Joseph Adesina Asomolegun who is my brother and myself and Pa Isaac Ilori went to show the boundaries of the land in dispute to the Plaintiff”
Under cross-examination, he stated that he neither knew Solomon Onisere nor Adanri and when they died and that “all I know in respect of the two men are stories I heard from my father. My father could not have told me lies. It was the story my father told me that I have told the Court. ”
On further cross-examination, he changed and then stated:-
“At the time the land was shown to the Plaintiff, my father could no longer go to the farm. He delegated me and others. ”
PW2 on the other hand, in his testimony as to the boundaries of the disputed land, averred in-chief that the land is bounded as follows:-
“On the right hand by Agbalese land, on the other side there is a road, on the other side by Oguro Stream and on the other side by Asomolegim land.”
Under cross-examination, he replied that Emure/lkare Road is being regarded as the boundary and that the road cuts across the land of Adanri and John Fakunle. He neither met Adanri nor Onisere on the land but he saw crops planted on the land and his father told him that Adanri and Onisere planted the crops.
As for the PW3, “The land is bounded on one side by Agbelese ‘s land on the other side by Oguro Stream and on the left is Ikare/Supare road. ”
From the foregoing descriptions of the boundaries of the land by the respective witnesses for the Plaintiff there is no doubt that a surveyor not to talk of an ordinary person will definitely be confused at the exactitude and certitude of the land claimed.
I agree therefore that in the midst of this confusion, the Plaintiff could not have known the land she was claiming. In the Supreme Court case of EZUKWU VS. UKACHUKWU (2004) 17 N.W.L.R. (Pt. 902) 227 at 249 paras. C – G, Edozie J.S.C. delivering the judgment of the apex court admirably put it beyond peradventure on how to prove identity of land, thus:-
“In an action for declaration of title to land, the onus is on the Plaintiff to establish with certainty the identity of the land in dispute to which his claim relates. This he can do in one of two ways, viz, by oral evidence describing with such degree of accuracy the said parcel of land in a manner that will guide a surveyor in producing a survey plan of the said land or by filing a survey plan reflecting all the features of the land and showing clearly the boundaries. ” See BARUWA VS. OGUNSOLA (1938) 4 W.A.C.A. 159 and AWOTE V. OWODUNMI No.2, (1987) N.W.L.R. (pt. 57) referred.
In his judgment at pages 83 – 84 the Learned trial Judge after aping the confused description of the land by the witnesses who followed the pattern of relief (a) of the claim of the Plaintiff that the land is bounded on the first side by Asemolegun’s land; on the Second side by Agbelese’s land; on the 3rd side by Opani Ogunro Stream and on the fourth by Emure/Supare Road curiously held at page 84 lines 4 – 11 thus:-
“In my view, the Plaintiff has met the requirement of the law regarding the identity of the land. All she is required to do as laid down by the Supreme Court in the case of Odiche Vs. Chibogwu (1994) 7 – 8 S.CNJ. 317 at page 323 is to state the boundaries of the area and location of the land he is claiming, his neighbours and their names on all sides of the boundaries where some of the boundaries are marked by river, Stream or road, she could mention their names and state any other physical features on the land like rocks, buildings, trees etc. that may assist in its identification. This is in my view, what the Plaintiff has done in this case.”
I am afraid that the learned trial Judge has quoted the Supreme Court out of con. Where, for instance parties did not file any plans as in this case, the appropriate method of proving boundaries is by the four cardinal points as has been done by the Defendant who gave his boundaries neighbours names and locations as follows:-
“In the west, I have as boundary men Osere, Anu and Agbelese; on the Eastern side I have Famakinwa and Aro Agungbale; on the Southern part, I have Kolawole Ajegunmo and in the Northern side, I have Israel Oladele and Faseemo. ” Definitely, in line with the time honoured dictum in BARUWA VS. OGUNSOLA Supra which has been followed in EZUKWU v. UKACHUKWU Supra, See also ADELUSOLA v. AKINDE (2004) ALL F.W.L.R. (Pt. 218) 776 at 791 S.C. paras. F – G; it was the height of travesty of Justice for the Court to have held that the Plaintiff met the requirement of the Law regarding identity of land. If a surveyor were to draw a plan from the description of the land as given by the parties certainly the description given by the Plaintiff and witnesses will wrought confusion whereas that of the Defendants can appropriately give a dispassionate person an idea of the land in dispute.
In ADELUSOLA VS. AKINDE Supra at page 780; the Supreme Court again re-echoing the voice of the West African Court of Appeal in BARRUWA VS. OGUNSOLA relied on EPI VS. AIGBEDION (1972) 10 S.C. 53; ADESOLA VS. ORDIA (1997) 3 N.W.L.R. (Pt. 491) 17 and OMOROGIE v. IDUGIEMWANYE (1985) 2 N.W.L.R. (Pt. 5) 41 to hold that an injunction and indeed a declaration of title would not be granted and binding when the boundaries of the area or areas to be affected are not ascertained, well known and properly described.
Having not properly identified the land upon which the declaration of title or injunction could be tied, I resolve Issue No. 1 in favour of the Appellant Ground 1 of his Ground of Appeal shall therefore succeed.
On ISSUE B as to WHO HAS BETTER TITLE BETWEEN THE PLAINTIFF AND APPELLANT; the Learned Senior Counsel submitted as follows that:-
(a) When two persons claim title to a land the party that has a better claim wins. Akinterinwa v. Oladunjoye, 2000 6 NWLR (part 659) 92 at 105, paras A-B refers .
(b) Plaintiff went to the land in dispute for the first time when in 1990 PW1 and others allegedly went to show her the land and that the second time, shortly after the first visit she went there to cut some palms but was challenged and chased away. Thereafter she was reported to Police and eventually taken to court as Exhibits A and B show.
The Learned Counsel further submitted that the evidence in favour of the Defendant are as follows:-
(i) That PW 1 said that he did not know Adanri and Solomon Onisere (grandfather and Father of Plaintiff) respectively nor did he ever meet either of them on the disputed land and that as at that time, his father was already on the land unchallenged and no other person was farming on the land. He said he saw yam, cassava, kola-nut and cocoa on the land, all planted by defendant.
(ii) That PW2 said that he did not know Adanri or Onisere, grand father and father of the Plaintiff respectively and that even as at 1972 when he wanted to trespass into the land and his father forbade him, the Defendant was using the land.
(iii) That Adanri and Defendant shared boundary and the Agbelemose’s are relations of Plaintiff.
(iv) That PW3 (Plaintiff) testified that she was 45 years old in 2003 when he gave evidence and went to the land in 1990 at the age of 32 years and that between his father’s death when she was 3 years old around 1961 and 1999 defendant was on the land but she did not know when defendant first entered the land.
The Learned Senior Advocate also alluded to the evidence of DW1 to the effect that he inherited the farm from his father and has been on the land for about 50 years. He had no dispute with Onisere on the land and that his father founded the land while Onisere never farmed there. His father died when he was 11 years old and was about 70 years old and that he grew to know his father on the land. That Plaintiff is not the owner of the land.
He also drew attention to the evidence of DW2 who testified that he saw Defendant’s father farming on the land without any let or hindrance and that he had not seen Plaintiff or any of her relations on the land. That Defendant planted all the crops on the land his farm being next to the land in dispute. That nobody showed the land in dispute to the Plaintiff and that he and Defendant did not trespass into Plaintiffs land.
The Learned Senior Advocate then submitted that from the foregoing it cannot be said that the Plaintiff proved her title by exercise of rights or by acts of possession and enjoyment or by possession of adjacent or surrounding land as required in Idudun v. Okumagba, 1976, 1 NWLR 200 nor can she be helped by any weakness in the evidence of Defendant. Dosunmu v Dada, 2002, 13 NWLR (part 783) 1 at 34, para G – H referred.
He maintained that indeed by long possession and exercise of rights defendant has proved his better title and that in law the rather long possession of defendant should defeat plaintiffs title, Malaa v. Dilli, 2002, 13 NWLR (part 784) 219 at 229-230 Paragraphs H -A where it was held that:
“I am satisfied that the plaintiff’s case was properly dismissed. There was nothing in his case which would have justifiably defeated the long possession the defendant has enjoyed over the land. The plaintiff failed to establish a good root of title and also at the same time did not prove that he was ever in possession of the land in dispute. The long possession of the defendant was a good defence to the claim in the Circumstances.”
He then prayed that this issue be resolved in favour of the Appellant.
In the resolution of this issue it is pertinent to note that the parties seem to anchor their claim to ownership of the land on traditional history. Each of them claims to have inherited the land from his or her ancestors. For the Plaintiff in particular she pleaded and traced her root of title to Adanri whom she claimed deforested it as a virgin land and that Adanri held the land “as farmland and owner under Customary Law. See paragraph 4 of the Statement of claim.
At the demise of Adanri, the disputed land devolved on Solomon Onisere by inheritance under Customary Law and he cultivated the land and exercised acts of possession before he died. (paragraph 5 of the statement of claim). Solomon Onisere died when the Plaintiff was 3 years and it was not until 1990 when Pa Philip Asomologun inquired from his children whether Solomon Onisere had children during his life time that the said Solomon sent for the Plaintiff as she was discovered to be the late Onisere’s daughter and detailed his (Pa Philip’s children) to show the disputed land to the Plaintiff.
In paragraph 17 the Plaintiffs pleaded that they shall contend at the trial that the parcel of land had from time immemorial belonged to the ancestors of the Plaintiff family and that the possess the exclusive right of ownership to the parcel of land, the subject matter of the case under Customary Law.
Thus clearly, the Plaintiff has traced her root of title to Adanri. What then is the quality of the evidence in support of the radical title of the land on the said Adanri.
For the Defendant although, I agree with the Learned trial Judge that his pleadings are devoid of all the pieces of evidence relating to time the Defendant started farming on the land, what he planted thereon and other acts of ownership numerous and positive enough to warrant the inference that he owns the land, the Plaintiff’s case on the other hand is fraught with hearsay evidence.
For instance, the PW1 Albert Adesina Asomolegun testified that his late father told him that the land belonged Adami because his said father before his death showed him the boundary with the Plaintiff and the said father “showed the land and the boundaries to the Plaintiff Joseph Adesina Asomolegun who is his (witness) Senior brother, himself and Pa Isaac Ilori went to show the boundaries of the land in dispute to the Plaintiff. He did not meet Solomon Onisere the direct son of Adanri or the said Adanri before they died. His late father told him all that he told the Court about the Plaintiff.
Under cross-examination he averred that his father told him the story about forty years before the case and between that period and the time the land was shown to the Plaintiff nothing happened on the land. When further pressed, he then said: “I now say that between that period John Fakunle, the Defendant was farming on the land in dispute. I did not at any time see or meet any of the two men i.e. Adanri and Onisere farming on the land in dispute. I know John Fakunle the Defendant very well. As at the time my father was telling me the story of the land in dispute, the Defendant was already on the land. I don’t know any other person farming on the land in dispute apart from the Defendant.”
To finally seal the doom of the Plaintiff’s case, the PW1 who had earlier said that his late father showed the boundaries to the Plaintiff before he died eventually stated under cross-examination by Aruleba Esq that: “At the time the land was shown to the Plaintiff, my father could no longer go to farm. He delegated me and others. ” The witness was not re-examined.
As for the PW2, he knew neither Adanri nor Onisere the father of the Plaintiff and he was told by his father that the land belonged to Adanri. According to him, when he started farming on his own portion of the land in 1959, the land in dispute was vacant. He was told that the land belonged to Adanri when he wanted to farm on the land and as at that time there were Kolanuts and palm trees on the land. When he wanted to farm on the land in dispute the Plaintiff told him to look for her sister because she (Plaintiff) alone could not release the land to him (the witness) it was in 1972 that he wanted to enter the land that his father warned not to enter the land.
Under cross-examination, he claimed that he did not meet Adanri and Onisere on the land but he saw the crops planted by them. He was also told by his father that Adanri and Onisere planted the crops. He added that nobody was on the land before as it was vacant and John Fakunle (the Defendant/Appellant) only came there in 1990/91. That the Agbelese’s are relatives of the Plaintiff the nature of relationship which he could not explain. He also mentioned one Joseph Agai as one of the relatives of the Plaintiff so was Pa Asomolegun. The Agbeleses were said to have identified the Plaintiff when Asomolegun was looking for the Solomon Onisere’s children.
He approached the Plaintiff in 1992 for land. Finally the PW2 admitted that “I have never seen any other person farming on the land apart from the Defendant.”
As for the evidence of the PW3 it all hinged on what Pa Asomolegun told her and subsequently delegated his sons Albert and Joseph to show her the land.
She admitted under cross-examination that between the time her father died and when the land was shown to her, the land was being occupied by the Defendant and his brothers and they are still on the land. She did not know when the Defendant entered the land. She was told that crops on the land were planted by Adanri by the people who took her to the land.
The evidence of the DW1 and DW2 are clear without any contradiction that he had been on the land for fifty years during which period he had no dispute with any body including Adami or Onisere none of whom farmed there.
The farms and houses of the Defendant and his brothers are all over the land. There is nothing from any of the relations of the Plaintiff to show that her ancestors were on the land. Even the hut Adanri purportedly built as a hunter was no longer on the land. Pa Ademolegun, Agbelese, Ilori and others who allegedly showed the Plaintiff the land as either friends or relations did not tell her why they did not secure the land for her after her father’s demise.
Indeed, they have not given any reason why the Defendant would continuously occupy land for fifty years while the relations of Adanri and Onisere were still alive without any intervention. On the authority of Idundun vs. Okumagba Supra, the Defendant’s claim of his inheritance of the land in dispute has not been displaced. The Defendant has been able to show:
- Traditionally that the land belonged to his father who had farmed there until he died and he inherited same for the past fifty years.
- The Defendant has shown from the preponderance of evidence that he has exercised maximum acts of ownership by farming therein and his crops both economic and others have been on the farm for over fifty years. His brother’s farms and houses are all over the land which demonstrates numerous and positive possessory acts sufficient enough to warrant ascription of ownership to him See AKINLOYE VS. EYIYOLA (1968) N.W.L.R. 02, OHIAERI VS. AKABEZE (992) N.W.L.R. (Pt 221) and OYADERE VS. KEJI (2005) ALL F.W.L.R. (Pt. 247) 1583 at 1600 paras. A-G. Sees EKPO VS. ITA 11 N.L.R.68.
- Again, the Defendant has with the tacit support of the evidence of the witnesses for the Plaintiff discharged the burden of proof as laid down in the fourth requirement of the dictum in Idundun vs. Okumagba and the presumption of law as provided for under Section 146 of the Evidence Act should have been invoked in favour of the Defendant since he has been able to show that for the past fifty years and even before Pa Asomolegun showed the Plaintiff the land, the Defendant and his brothers have been in possession of connected or adjacent land to the one in dispute in circumstances rendering it probable that the Defendant would be the owner of the land in dispute. See OYADARE VS. KEJI Supra at 1594 paras A-B.
In EZUKWU VS UKACHUKWU Supra at page 258 the Supreme Court held on the nature of possession of land that is capable of raising the presumption of ownership under Section 146 of the Evidence Act thus:-
“Possession, admission which is capable of raising a presumption of owner of land under Section 146 of the Evidence Act, must be that which amounts to de jure exclusive possession and not mere occupation. In the instant case, it was evident that the respondents people had been farming on portions of the land in dispute; the respondents’ father built houses, both permanent houses and huts on the land, they granted portions of the land to tenants …. ”
In the above case the Appellants were contending on Appeal that the Respondents who were in possession rather admitted that they (the Appellants who were given portions of the land to farm by the respondents) were in possession and the Supreme Court held that S.146 of the Evidence Act would not be invoked in favour of the Respondents.
In our instant case there is/was no rational basis for the Court below to hold as it did at page 88 that the contradictions in the evidence of the Plaintiffs witnesses did not go to the root of the case and that the case cited by the Counsel for the Defendant as regards recent acts of possession of the Defendant could not be considered because the facts that the Defendant has been in long possession of the farm and had crops planted thereon were not pleaded. Again his holding that Defendant’s long possession will not ripen to ownership because the plaintiff left her home at tender age of three after the death of his father an did not come back until 1990 and that the plaintiff has established through traditional evidence that the land belongs to her, more so as she has established the identity of the land in dispute, is not only the height of perversity but a reckless and injudicious exercise of adjudicatory powers.
I reiterate that the evidence of the plaintiff is based on hearsay and nothing has been told the court as to how the Plaintiffs father’s land in the presence of Pa Asomolegun and the Plaintiffs father’s family members would be seized by the Appellants and family for fifty years. Were they merely waiting for the Plaintiff to come and fight for her property? I think not.
On the whole, even though it is not the duty of this court to interfere with findings of fact of a court of first instance which had the advantage of listening to witnesses and watching their demeanour, the Court will intervene in the face of the very grave and patent injustice displayed by the trial judge in giving judgment to the plaintiff in the face of the overwhelming evidence of acts of undisturbed possession of the land in dispute and the connected land for years by the Defendant and his brothers.
I am of the view that such evidence of tradition as elicited by the Plaintiff and the manner of proving the identity of the land are not such that a reasonable tribunal can with all sincerity base a decision in favour of the Plaintiff.
ISSUE B is also resolved in favour of the Appellant as he has shown that he has better title to the land in dispute which should defeat the claim of the Plaintiff for Declaration of title and I so hold. See AKINTERINWA V. OLADUNJOYE (2000) 6 NWLR (Pt. 659) at 105 paras. A – B 115 paras AB.
ISSUE C WHETHER OR NOT THE LOWER COURT RIGHTLY EVALUATED THE EVIDENCE BEFORE COMING TO THE JUDGMENT? (Grounds 3, 4 & 6).
ARGUMENT ON ISSUE C:-IMPROPER EVALUATION OF EVIDENCE GROUND 3, 4 AND 6)
On this issue the Learned Counsel submitted as follows:
(a) That the lower court did not take into consideration the fact that Late Pa Asomologun who claimed to know the identity of the land in dispute did not go to show the land to the Plaintiff, and the court ought to realize that the evidence of PW1 was based on hear-say, apart from the fact that his evidence was self-contradictory,
(b) That the court did not advert its mind to the fact that the evidence of boundaries given by PW1 and PW3 on the first hand was discrepant to the one given by PW2,
(c) That the court should have noted as well that none of the witnesses said he or she ever met Adami, plaintiff’s grandfather or Solomon Omisere, Plaintiff’s father on the land in dispute.
(d) That the court did not allude to the fact that all witnesses testified that Defendant was the only person working on the land and that he planted the crops thereon,
(e) That the lower court failed to take note that as Plaintiff’s father died in 1960 Plaintiff was 3 years and it is unbelievable that the father of PW1 could wait till 1990, almost 30 years after Plaintiffs father’s death before looking for Plaintiff, who has relations in the town of Emure,
(f) That the trial court refused to take note that the hut of Plaintiff’s grandfather to which PW2 referred, was not pleaded, yet the trial court made use of it in its judgment in spite of its being elicited in cross-examination,
(g) That the trial court glossed over the self-contradictory evidence of PW1 who said that his father among others went to show the land in dispute to the Plaintiff in his examination but under cross-examination reversed this by saying that his father was at he time too old to old to farm then,
(h) That the said court refused to touch the discrepancies between the boundaries of the land as given by PW1 and as given by PW2,
(i) That in paragraph 6 of his statement of defence, defendant claims that he inherited the farmland in dispute from his father, but in his testimony in court defendant said he grew to meet his father on the farm and inherited same after his father’s death and has been on the farm for about so years without any molestation. He has on the land crops like cocoa and Plaintiff and her witnesses even confirmed that defendant had always been on the land and planted the crops thereon. But the trial court discountenanced all these saying they were not pleaded by the defendant.
It was therefore submitted that since the Defendant pleaded that he inherited the farm from his father the crops thereon are a matter of evidence which need not be pleaded. He relied on Order 25 Rule 4 (1) of the Ondo State Rules of the High Court, applicable in Ekiti State and the case of
Odunsi v. Bamgbala, 1995, 1 NWLR (Part 374) 641 at 655, para E.
He then contended that the trial court was wrong in holding that the facts emanating from Defendant and corroborated by Plaintiff and her witnesses were not pleaded. He further took the view that that there is no doubt that the trial court did not properly evaluate the evidence before it for if it did, it would have given judgment to the defendant. He urged that this appellate court can in law do what the lower court should have done and prayed that this issue be resolved in appellant’s favour.
It has now been settled by judicial authorities that in a case such as this, where pleadings have been settled, the trial court before whom evidence is adduced by the parties comes to a decision as to which party to believe or disbelieve, he must put firstly the totality of the evidence elicited in the imaginary scale of justice and weigh them together before arriving at which of the evidence outweighs the other by the quality or probative value of the testimony of the witnesses and documents tendered. See MOGAJI v. ODOFIN (1978) 4 S.C. 91 at P. 94 per FATAI -WILLIAMS J.S.C. (as then was) ESO J.S.C. in BELLO VS. EWEKA (1981) J.S.C. 101 at 118-120.
As had been said earlier and to buttress the dicta of the eminent jurists above cited, the appraisal of oral evidence and ascription of probative value to such evidence is the primary function of the trial court.
Thus, if the issue turns on the credibility of witnesses, an appellate court which has not seen the witnesses must defer to the opinion of the trial court which is normally preferred. See SAGAY VS. SAJERE (2000) 6 NWLR (Pt.661) 360 at 375 paras. D-E, FASHANU VS ADEKOYA (1974) 6 S.C. 83.
In the case at hand it is clear as the Learned Senior Advocate has ably argued that the Learned trial Judge did not take into consideration the fact that the late Pa Asomolegun who claimed to have know the boundary of the land did not go with the plaintiff to the land to show her but delegated his children by hear say to show the plaintiff the boundaries of the land. Little wonder then that their description of same is so uncertain that no Surveyor can draw a plan upon being seised of the Records of Proceedings.
Indeed all the witnesses for the Plaintiff testified that they never met either Adanri or Onisere on the land and that it was the Defendant who had been on the land since 1972 and in spite of fact that the Plaintiff’s father has relations and the Asomolegun and Agbeleses are either relatives or friends none of them ever challenged the exclusive possession and user of the land by the Appellant and his siblings for over fifty years.
I had earlier on in the first and second issues alluded to the contradictory evidence of the witnesses for the Plaintiff on the boundaries and as to whether Pa ASOMOLEGUN showed the plaintiff the land before he died.
Again, the Learned trial Judge in dismissing the Defendant’s traditional evidence and evidence of long possession did not allude to the provisions of Order 25 Rule 4 (1) of the Ekiti State High Court (Civil Procedure) Rules which is to the effect that every pleading shall contain only, a statement in summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which they are to be proved.
In this case the defendant had stated in paragraph 6 of statement of Defence where he denied being on the land unlawfully and pleaded that he is the owner of the land by inheritance. He went further to challenge the plaintiff who had trespassed into the land and she was caused to be arrested and prosecuted.
Even if his pleadings were scanty the plaintiffs witnesses all agree that the Defendant had always been in possession as the plaintiff had nothing to show on the land to establish either possession or ownership except hear say evidence.
Accordingly, I call in aid the decision of the Supreme Court Per Karibi- Whyte J.S.C. in the case of SAGAY VS. SAJERE (2000) 6 N.W.L.R. (Pt. 661) 360 at 374 – 375 where the Learned Law Lord posited:
“Evaluation of evidence is predicated on the finding of credibility of witnesses which a Court of Appeal is ill-equipped to undertake and to make findings there on. Therefore, if the Appellate Court is satisfied that the Court of trial has been guilty of improper use of its powers in the performance of its adjudicative functions to correct the error, the appellate Court must be satisfied, that the error was such as could be corrected from evidence in cold print without injustice to the other side”
SANUSI V. AMEYOGUN (1992) 4 N.W.L.R. (Pt. 237) 527; AJAKAIYE V. ADEDEJI (1990) 7 N.W.L.R. 192; IMAH V. OKOGBE (1993) 9 N.W.L.R. (Pt. 316) 159; ROYAL NETHERLANDS HARBOUR WORKS GBV V. SAMMA (1991) 2 N.W.L.R. 64 (Pt. 171) referred.
In line with the authority above cited, I am of the view that the learned trial Judge did not utilize the advantage of hearing and watching the witnesses testify properly and indeed, did not properly evaluate the evidence of the witnesses before giving judgment in favour of the Respondent. If he did he would have discovered and held that the Plaintiff/Respondent did not discharge the burden cast upon her with credible evidence to warrant her being awarded declaration of title and the consequential injunction and damages. Accordingly, this court can and has to interfere with the findings of the trial Court as had been done earlier.
That being the case, I resolve Issue C and E in favour of the Appellant. Grounds 3, 4 and 6 shall also succeed.
ISSUE D: WHETHER OR NOT THE PLAINTIFF COULD SUE FOR TRESPASS AND DAMAGES WHEN SHE WAS NEVER IN POSSESSION OF THE FARM? (GROUNDS 3 and 6).
Here the Learned Senior Advocate noted that:
(a) Plaintiff herself gave evidence that she was shown the farm in 1990,
(b) When shortly later she want there to get some palm branches she was repulsed, reported to police and taken to court,
(c) Since then and till now she never again visited to farm,
(d) She testified that defendant was at all relevant times in possession of the farm,
(e) PW1 and PW2 testified that defendant alone was on the farm on which he planted crops,
(f) PW1 and PW2 never saw plaintiffs grandfather, Adanri or Plaintiff’s father, Solomon Onisere, on the land,
(g) Defendant testified that he was about 70 years old, met his father on the land, lost his father about 50 years ago and has inherited the land since then,
(h) It is well established that at all relevant times, Defendant, and not Plaintiff was in possession, and since plaintiff is not in possession she cannot claim in trespass. See Adeniyi v. Ogunbiyi,1965, MNLR 395 at 397 and Oluwoje v. Abubakar, 2004 10 NWLR (Part 882) 549 at 562 para D-F. He then asked that the issue herein be resolved in favour of Defendant/Appellant.
I have taken cursory look at the submissions of the Learned Senior Counsel and I completely agree with him and the authorities of ADENIYI V. OGUNIBIYI (1965) N.W.L.R. 395 at 397 and OLUWOLE V. ABUBAKAR (2007) 10 N.W.L.R. (Pt. 882) 549 paras D – F that since the Plaintiff is not in possession he cannot sue for trespass.
The Court of Appeal Ibadan Division Per Ibiyeye J.C.A. was called upon to answer the question as to who can maintain an action in trespass to land and the Learned and noble Lord put it in this way:-
“The proper person to institute an action for trespass is the person in possession. Where, however, a person is not in possession there is nothing in law and in fact for the adverse party to disturb by way of trespass. A Plaintiff who fails to satisfy the Court that he is in possession of the land in dispute cannot succeed in an action in trespass. See Adeniran vs. Alao (1992) 2 N. W.L.R. (Pt. 223) 350 at 372. It is equally settled by way of expatiation that trespass is a violation of a possessory right and an action is therefore maintainable at the instance of the person in possession or person with a right to possession.” See EZEWUSIM V. OKORO & ANOR (1993) 5 N.W.L.R. (Pt. 294) 478 at 497; ATUNRASE & ORS VS. SUNMOLA & ORS (1985) 1 N.W.L.R. (pt. 1) 105, EKPANG & ORS VS. UYO & ORS (1986) 3 N.W.L.R. (Pt. 26) 63.
In the instant case there is overwhelming evidence from the Defendant that he is about 70 years and that he has been on the Land undisturbed for about fifty years or more which evidence has been corroborated by his witnesses and the Plaintiff and her witnesses. He claims to have inherited the land from his father. What is more, apart from the economic and subsistent crops scattered all over the land his brothers have houses and their farms on the adjacent lands and the land in dispute. As I had said there is nothing from the Plaintiff apart from the spurious hearsay evidence of the witnesses for the Plaintiff who in any case have admitted that for the number of years since their father warned them not the enter the land the Defendant and his brothers had been in occupation and enjoyment of the land.
Having not proved possession the Plaintiff cannot maintain an action in trespass and claim damages and injunction against the Defendant and get judgment as the Court has given her.
See Per Oguntade J.S.C. in BALOGUN VS. AKANJI (2005) ALL F.W.L.R. (Pt. 262) 405 at 424 – 425 where he reemphasized that: “It is trite law that trespass is essentially a tort against possession and only a person in possession of land in dispute at all material times can maintain an action in damages for trespass.” See OLAGBEMIRO VS. AJAGUNGBADE II (1990) 3 N.W.L.R. (Pt. 136) 37; ADEBANJO V. BROWN (1990) 3 N.W.L.R. (Pt. 141) 661 etc. See finally the Locus classicus of AMAKOR VS. OBIEFUNA (1974) 3 S.C. 67.
On the whole this issue like others is resolved in favour of the Appellant. This Appeal is meritorious and is accordingly allowed. The judgment of the Ekiti High Court delivered by J.O. Adeleye J. on the 30th day of July, 2004 granting all the reliefs sought by the Plaintiff/Respondent is hereby set aside.
I make no order as to costs.
Other Citations: (2008)LCN/2922(CA)
