K. Nwosu V. J. Otunola (1974)

LawGlobal-Hub Lead Judgment Report

ELIAS, CJN. 

In this appeal from the judgment of Adefarasin, J., in Suit No. LD/575/70 delivered in the High Court of Lagos State on June 1st, 1972, the plaintiff was non-suited on the ground that he had failed to establish his right to the possession of the premises the subject-matter of the suit.

His writ was endorsed as follows: “(1) The plaintiff’s claim against the defendant is for the recovery of possession of the property situate lying and being at No. 42A Bale Street, Aiyetoro, Ajegunle, Apapa, plus mesne profits at the rate of £10 per month for the period during which the defendant is found to be in unlawful possession until he gives up such sum as damages for trespass to the aforesaid property. (2) Injunction restraining the defendant his servant, and agents from continuing such trespass.”

In his Statement of Claim, the plaintiff averred that at all material times he was lawfully in possession of the premises at No. 42A Bale Street, Aiyetoro, Ajegunle, Apapa, in the Lagos State; that in 1960 he erected on the land a two-Storey building consisting of 18 rooms in accordance with Plan No. 120/58 and Amendment Plan No. AO73 approved by the Ikeja Area Planning Authority; that, in 1967, as a result of the crisis in the country, he went to the former Eastern Region; that, at the end of the civil war when he returned, he found the defendant in occupation of the house; that the defendant claimed to have purchased the house and the land from someone who claimed to have been his agent; and that the plaintiff had not given anyone authority to sell the house.

PAGE| 3 The defendant, in his Statement of Defence, averred that the plaintiff and a Mr. E. Nwokedi were tenants of the premises under customary law and, in 1967, he authorised a Mr. Daniel C.A. Nwokedi to act as their agent in obtaining the consent of the Ojora Chieftaincy family as the landlords to a transfer of the tenancy to anyone desiring to take it up, that he accordingly did so, paying a consideration for the transfer, and that the plaintiff “fraudulently denies his handwriting on the documents which he had signed in favour of Daniel C.A. Nwokedi”.

On June 28, 1971, the Lagos High Court ordered, on the plaintiff’s application, that the defendant should henceforth pay the rents accruing from the premises into court until a further order of the court or until the final determination of the case. The plaintiff gave evidence in support of the averments in his Statement of Claim and admitted, under cross-examination, that the land on which the house was built belonged to the Ojora Chieftaincy family of whom he and one Mr. E. Nwokedi were tenants under customary law.

He deposed that he spend £5,484 on the erection of the house and that a Mr. Nwosu, who as a witness confirmed the plaintiff’s testimony, acted as his rent collector between 1960 and 1967 when he too fled to the secessionist area. He denied that he ever instructed Mr. Daniel A. C. Nwokedi or anyone else to sell the house. The defendant on the other hand, did not adduce any evidence at all, in the words of the learned trial judge, to “prove all the serious allegations which he made in his Statement of Defence”. As the learned trial Judge said further: “It was therefore not possible for him to show how he came to be in possession of the premises or how he came to be the tenant of the Ojora family.

He was not able to establish, as he had pleaded, that he had bought the house from the agent of the plaintiff.” The learned trial Judge nevertheless proceeded to non-suit the plaintiff because, according to him, the latter failed to call the Ojora family through whom he stated that he derived title, and the plaintiff also failed to plead in his Statement of Claim how he derived his title; the plaintiff should also have joined Mr. E. Nwokedi as plaintiff, he being co-tenant of the Ojora Chieftaincy family, although the learned trial Judge preferred not to press the issue of non-joinder. Because the plaintiff failed, therefore, to establish that he was entitled to recover the house as against the person then in physical possession of the house, the learned trial Judge entered a non-suit against him. The present appeal has been brought against that judgment on the following grounds: “1. The learned trial Judge erred in law and on the facts in holding as follows: ‘The plaintiff stated that he derived possession from the Ojora family but he made no attempt to call Ojora family. In fact he did not even plead in his Statement of Claim how he derived his title.

I am not unaware of the fact that as against a mere wrongdoer, possession is equivalent to title so as to enable a man in lawful and peaceable possession when evicted by wrongdoer to recover on his possessory title alone. The plaintiff here has not established that he was in lawful and peaceable possession (See The Winkfield 1902 p. 42; see also The Tubantia 1924 p. 78; see also The Supreme Court Practice 1970 Vol. II para. 2055). The plaintiff could have called the owners of the land and his alleged landlords to show that they put in him possession.’

Particulars of Error (i) The plaintiff gave sufficient evidence of his previous possession of the property in dispute. (ii) Since the defendant did not establish that he had a bonafide claim to title derived from the Ojora Family or that he was in occupation of the land by the authority of the Ojora Family, it follows that the plaintiff has a better title to possession of the land than the defendant. (iii) The defendant having pleaded that he bought the house from the plaintiff’s agent has admitted plaintiff’s interest and right to the house and cannot rightfully oust the plaintiff from possession without proving such plea by evidence. 2. The learned trial Judge misdirected himself in law in holding as follows: ‘In an action for recovery of land a plaintiff must sate in his statement of claim his title with sufficient particularity and he must show how he derived his title to the land.

A mere general statement that he is entitled to the land is not enough. If he has not himself been in possession he must trace his title from a person who has been in possession and show the successive links in his title.’ Particulars of Misdirection (i) The statement overlooks the fact that a plaintiff without title who has been in possession and who was ousted from possession by a defendant without title is entitled to sue such defendant for recovery of possession.

(ii) In this case the plaintiff had himself been in possession of the property. 3. The learned trial Judge erred in law in failing to observe that having regard to the issues raised on the pleadings the plaintiff was entitled to judgment of his claim. 4. The learned trial Judge erred in law in stating that the principle laid down in Laribigbe v. Motola does not apply here on the question of the right of the plaintiff to maintain this action.  5. Judgment is agent the weight of evidence” Chief Williams, learned counsel for the appellant, submitted that the main claim was for damages and mesne profits and that he fact that the plaintiff (herein appellant) did not call the Chief Ojora Chieftaincy family was not fatal to the plaintiff’s case because he had sued for possession.

Learned counsel drew our attention to Oluwi v. Eniola (1967) NMLR 339, at 340, where the court held, inter alia, that the claim for trespass is not dependent on claim for a declaration of title since the issue to be determined on a claim for trespass was whether the plaintiff had established his actual possession of the land the trespass of the defendant upon it, which is a quite separate and independent issue from that of his claim for a declaration of title. Also cited by learned counsel is Halsbury’s Laws of England, 3rd Edition, Vol. 38, at p. 743, paragraph 1213 which reads: “What possession is sufficient. Any form of possession, so long as it is clear and exclusive and exercised with the intention to possess, is sufficient to support an action of trespass against a wrongdoer.

It is not necessary, in order to maintain trespass, that the plaintiff’s possession should be lawful, and actual possession is good against all except those who can show a better right to possession in themselves. 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. Such a person may eject the trespasser by force, if no more force is used than is reasonably necessary; and the trespasser cannot set up a jus tertii unless he claims under it.”

As to the question of recovery of possession, paragraph 602 at p. 375 of Vol. 32 of Halsbury’s ibid. was cited as follows: “Proof of plaintiff’s title. The plaintiff must prove that he is entitled to recover the land as against the person in possession. He recovers on the strength of his own title, not on the weakness of the defendant’s. This, however, does not mean that he is bound to show a title good against all the world. Possession in itself is a good title as against every one 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.”

Learned counsel next argued that the non-joinder of the Ojora Chieftaincy family was wrongly stressed by the learned trial Judge who must be deemed to be mistaken when he distinguished Laribigbe v. Motola & Ors. (1935) 12 NLR 17, at p. 18 from the present case, the main question being that one of several tenants in common could bring an action of trespass against third parties so long as the order to be made could be limited to the suing plaintiff alone and not extended to anyone else. Finally, Chie

Other Citation: (1974) LCN/1784(SC)