Latifu Adekanbi V. Bolaji Folami & Anor (1998)
LawGlobal-Hub Lead Judgment Report
MUKHTAR, J.C.A.
In the court below the respondent as plaintiff took out a writ of summons against the appellant for the following reliefs:-
- Declaration that the plaintiffs are entitled to statutory right of occupancy to that piece of land situate, lying and being at Alekuwodo Ogbagba Bye-Pass, Osogbo, Oyo State to be particularly delineated on a plan to be filed later.
- The sum of ten thousand naira (N10, 000.00) being special and general damages, for trespass committed and still being committed by the defendant, his agents and servants on the said land.
- An order of injunction to restrain the defendant, his agents and privies or any persons claiming through him from committing any further acts of trespass on the said piece of land, or further tampering with it in any form.
The annual rental value of the land is N50.00
Pleadings were ordered and exchanged by parties. Briefly put, the case of the plaintiffs is that the land in dispute was purchased by late Suleman Olajubu Folami from late Michael Oyegbade who was the owner vide inheritance under native law and custom, the plaintiffs are administrators of the estate of late Suleiman Folami vide letter of administration they obtained on 6/5/88. After purchase of the land in 1966 a land agreement was executed in 1968 before Michael Oyegbade’s death, but in 1982 the defendant trespassed on the unused part of the land and started constructing a house thereon. Reports were made to the police, but after persistent refusal to heed the warning of the police the 1st plaintiff sued the defendant to the Grade ‘C3′ Customary Court, Osogbo for trespass where she succeeded, but the action was struck out by the High Court for lack of jurisdiction on appeal. Hence this suit was filed.
On the other hand the appellant as per his statement of defence claimed that he is a bona fide owner of the property in dispute which he purchased from one Mrs. Mariam Tanimowa Jegede in 1969 for a sum N140.00, and an agreement was executed in 1973. The defendant’s vendor bought the land from Michael Oyegbade, the person from whom the plaintiffs’ deceased brother bought his land. When the defendant’s vendor took over the land there was no mark or feature to show previous dealings, and when the defendant’s vendor put him in possession she showed him pillars which formed pan of her boundaries with the plaintiffs. The defendant thereafter commenced the building of his house without obstruction until he erected a wall fence to check erosion and flooding of his building.
Plaintiffs adduced evidence, but the defendant rested his case on that of the plaintiffs, and his counsel addressed the court. The learned trial Judge at the end of the day, after evaluating the evidence gave judgment in favour of the plaintiff granting the order of injunction and awarded damages. Aggrieved by the judgment the defendant appealed to this court on three grounds of appeal. As is the practice in this court counsel for both parties exchanged briefs of argument which were adopted at the hearing of the appeal. Issues for determination were formulated in the briefs of argument. In my view the first two issues in the appellant’s brief of argument are the only issues that call for determination. They are:-
- Whether the land in dispute is part of the land sold to the plaintiffs or part of the adjoining land sold to the defendant’s vendor, Mrs. Jegede, by the same person (Michael Oyegbade).
- Whether the learned trial Judge was right or justified in holding that there was no evidence that Mrs. Jegede sold the land in dispute to the defendant?
I will treat the argument covering both issues above together.
It is not in dispute from the pleadings and facts of the case that the land in dispute about what both parties claim title to. The plaintiffs traced their title to one Michael Oyegbade, from whom the defendant also traced his title. In their statement of claim are the following averments:-
- The plaintiffs say that the deceased Sulemonu Olajubu Folami before his death bought the land from one Michael Oyegbade in 1966 and executed a land agreement on it in 1968 before the death of Michael Oyegbade.
- The plaintiffs say that their late brother Sulemonu Olajubu Folami has made use of 50ft. x 50ft. (15.2400 metres by 15.2400 metres) out of the said land purchased from Mr. Michael Oyegbade.
- The plaintiffs said that their late brother intended to construct another house on the remaining part of his land which is in dispute.
These averments were proved by the 1st plaintiff who testified inter alia as follows:
“I bought the land for my brother in the year 1966. I bought it for Sulemona Olajubu Folami (dead) for N50.00. Michael Oyegbade was the original owner of the land in dispute and it was he who was selling it to several people…
This is the document which Michael Oyegbade gave me in respect of the sale of land”.
The licensed surveyor engaged by the plaintiffs to draw a survey plan testified as P.W.1 and tendered the survey plan which was marked Exh. ‘A’. In his evidence he testified inter alia thus:
“The land which the plaintiff claims as hers is a bit irregular; it is almost a plot of land but it has been chopped on one side. The area in dispute is approx. 44ft. by 43 ft.”
Indeed, looking at Exh. “A” very carefully one finds that the shape of the land in dispute is a rather peculiar shape, but it corresponds with the description in Exh. “D” the purchase receipt. The boundaries and identity of the land in dispute is not in any way in doubt as can be observed from Exh. “A” in which case the cases of Musa Awosanya v. Algata & Eko (1965) NMLR p. 388, Okorie & Ors. v. Udom & Ors (1960) SCNLR 326 (1960) 5 FSC 162, and Amara v. Modekwe 14WACA p. 580 relied upon by learned counsel for the appellant are relevant to his argument. The key to the plan describes an area verged red as area claimed by the plaintiff, and the area verged blue as the area in dispute. This area in dispute is contagious to the other parcel of land which the 1st plaintiff testified as having been developed by the plaintiffs. The defendant did not adduce evidence to dislodge the plaintiffs’ case but merely filed a statement of defence which the learned counsel for the appellant has argued that the plaintiffs have not traversed some points in their reply to the statement of defence.
Is the statement of defence evidence to be used in determining the case? It is definitely not. The settled law is that pleadings must be proved by evidence and once they are not supported by evidence then they amount to nought, as they are not tantamount to evidence which invariably is required to prove a case. See Akinfosile v. Ijose (1960) SCNLR 447; (1960) 5. F.S.C. p. 192 and Akpapuna v. Nzeka II (1983) 2 SC NLR 1.
I would like to add that by virtue of sections 135 and 136 of the Evidence Act Cap. 112 1990 Laws of the Federation of Nigeria he who asserts must prove, and as it is the present case it seems the respondents discharged the onus placed on them by the said provisions. Furthermore S. 137(1) of the same Evidence Act stipulate thus:-
137(i) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.In the circumstance the statement of defence filed by the defendant is like a piece of useless paper that has no relevance to the case, and ought to be ignored.
Having not challenged the evidence of the plaintiffs on the position and ownership of the land in dispute the learned trial Judge was right when he observed as follows:-
“There is also uncontroverted evidence that the plaintiffs had since developed half of the plot of land so sold leaving half vacant for future development. It is thus half that the defendant built upon. The claim proves the nature of that possession in such a manner that the inference that he is exclusive owner may be drawn”.
In this wise I endorse the submission of learned counsel for the respondents in his brief of argument that there is a presumption under S.46 of the Evidence Act Cap. 112 laws of the Federation 1990 that acts of possession and enjoyment may be evidence of ownership or of a right occupancy.
Learned counsel for the appellant made heavy weather on the finding of the learned trial Judge that there was no evidence that Mrs. Jegede sold the land in dispute to the defendant, as according to him this finding could not be justified on the face of the pleading. I think the vital and relevant aspect of the finding which deserves attention is that in which learned trial Judge said inter alia:-
“In the absence of any evidence on oath to this effect this defence of the defendant does not call for any consideration”.
By stating the above the learned Judge was restating the principle of law on pleadings that pleading is not evidence and in order to succeed in case pleadings must be supported with evidence. I believe this position of the law has been adequately treated in the discussion supra, and it is applicable to this argument. The defendant having decided to rest his case on that of the plaintiff has offered virtually nothing in his defence. I am therefore satisfied that the respondents proved their case in support of the reliefs sought, and find the finding of the learned trial Judge reproduced below as correct.
“In the result I enter judgment in favour of the plaintiffs whom I declare as being entitled to a statutory right of occupancy of the land edged red inc1usive of the areaedged blue in Exhibit ‘A’ as against the defendant who is damnified in damages of N2,000.00 which I award in favour of the plaintiffs. The defendant, his agents, servants or privies are henceforth restrained from committing any further acts of trespass on the land in dispute”.
In the light of the foregoing reasonings I resolve the issues raised in favour of the respondents, and dismiss the grounds of appeal covering them. The end result is that the appeal fails in its entirety and the judgment of Sijuwade J. is hereby affirmed. I assess cost at N1, 500 in favour of the respondents against the appellant.
Other Citations: (1998)LCN/0450(CA)
