Miss Clementine Ricketts & Ors V. Oba a. K. Hassan (2001)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
The appellants were the plaintiffs in suit No. ID/584/89, before the Ikeja High Court, and had claimed against the respondent (as the defendant) for the following:
“(i) The sum of Two thousand naira damages for trespass.
(ii) A perpetual injunction restraining the defendant, his servants and or agents from trespassing on the said tract of land.
(iii) A declaration that they are entitled to a certificate of occupancy over the land in dispute.
The parties filed and exchanged pleadings. The suit was tried by Longe, J. On 15-4-94, the learned trial Judge in his judgment dismissed in their totality, the claims of the plaintiffs. Dissatisfied, the plaintiffs have brought this appeal. In their appellants’ brief filed on 28/1/2000, the issue for determination was identified as the following:
“Which of the parties before the court established better title to the land in dispute.”
The respondent in his brief filed on 28/4/2000, identified two issues as arising for determination, namely:
“(i) Whether the appellants, through Exhibit ‘2’ proved a good title to the land in dispute.
(ii) Whether on the state of evidence before the lower court, the appellants were entitled to succeed on their claims.”
The two issues formulated by the respondent, are covered by the appellants’ issue. In this judgment, I start a consideration of that issue, by examining the pleadings of the parties in order to determine the nature of the titles put in issue. In paragraphs 4 to 8, of their Amended Statement of Claim, the plaintiffs pleaded:
“4. The late J.A. Ricketts, purchased a large tract of land at Agbowa-Ikosi, in the Ikorodu Division of Lagos State, in a public auction from the descendants of Ademuyiwa Haastrup, in 1939.
- The purchase was evidenced by a Deed of Indenture, made on 22/2/39, and registered as No.9 page 9, in volume 403, of the Lands Registry at Lagos.
- Ever since the purchase, J.A. Ricketts and his descendants (the plaintiffs herein), have been in undisturbed possession of the said tract of land, shown on Survey Plan No. SEW/L/1059/4, dated 7/3/89 prepared by M.A. Seweje, a licensed Surveyor. Attached herewith, is a copy of the said survey plan.
- The plaintiffs exercised their rights of possession on the land in dispute, by constructing directling houses and a school on the said land. Sometime in 1988, the defendant trespassed on the said tract of land, and started a cassava farm thereon, on the portion outlined in Yellow in the said survey plan.”
The defendant in paragraphs 3, 4, 5, 6, 7, 10, 11 and 12 of his amended statement of defence pleaded:
“3. The defendant avers that the large tract of the land coloured “Red” in the plaintiff’s Plan No. SEW/L/l059/4 dated 7th March, 1989, originally, belonged to his predecessors-in-office and their Chiefs who held same in trust for the natives of Agbowa. The defendant’s predecessor-in-office granted same to one Ademuyiwa Haastrup who, as a stranger, in Agbowa requested for and was granted a portion of the said land, as a licensee for farming purposes. At the time of the said grant, His Highness, Oba Momodu-Ope Adeloju, was then in office and the grant was not absolute.
- The defendant states that, Ademuyiwa Haastrup planted food crops such as apples, grapefruits, banana, pawpaw and pineapples on the said land.
- The defendant avers further that, a portion of the land, during the reign of His Highness, Oba Edward Okuneye Olufuwa, had a school built on same, known as Ikosi Central Industries school, Agbowa, which later became known as Methodist High School, Agbowa.
- The defendant pleads that the land the subject-matter of this suit, had continuously been in effective possession of his predecessor-in-title as pleaded in paragraphs 3 and 5 of the amended statement of defence exercising diverse acts of ownership and possession, by way of grant to licencees, farming thereon, establishment of institution of higher learning and outright sale to purchasers.
- And in exercise of acts of possession and ownership, the defendant planted various food crops on a portion of the land in dispute, more particularly cassava and sometimes in 1987, the plaintiffs destroyed some of the food crops planted by the defendant and the defendant lodged a report at Epe Police Station, which led to the arrest of the crops destroyed.
- With particular reference to paragraph 1, of the amended statement of claim, the defendant avers that the 1st, 3rd and 4th plaintiffs, are not beneficiaries in law of the Estate of J.A. Ricketts, and have no valid title in law vested in them, in so far as the land pleaded in paragraphs 4 and 6, of the amended statement of claim in concerned.
- The defendant shall contend at the trail that, in so far as the land in dispute as pleaded in paragraph 4, 5 and 6 of the amended statement of claim was not legally vested in the predecessor-in-title of J.A. Ricketts by the Executors of the estate of Ademuyiwa Haastrup, the 1st, 3rd and 4th plaintiff’s predecessor-in-title purchased nothing at the Public Auction capable of being vested in law in the 1st, 3rd and 4th plaintiffs.
- With particular reference to paragraph 2 of the amended statement of claim, the defendant denies that the 2nd, 5th and 6th plaintiffs are administrators of the estate of J.A. Ricketts and avers that, the land pleaded in paragraphs 4, 5 and 6 of the amended statement of claim does not form part of the estate of J.A. Ricketts, capable of being administered by the 2nd, 5th and 6th plaintiffs.”
From the pleadings of parties, it is apparent that, the plaintiffs relied for their title on the purchase by their father Mr. J. A. Ricketts, from the descendants of Mr. Ademuyiwa Haastrup, in 1959. It was not pleaded however, how Mr. Ademuyiwa Haastrup, has derived interest in the land, which was transferred by his descendants to J.A. Ricketts.
On the pleadings, one notices that as no presumptions of law as in section 130 of the Evidence Act operated in plaintiff’s favour on the Deed of Conveyance from the Haastrup’s family to J.A. Ricketts, the plaintiff’s title was manifestly weak, and their claim for declaration of title nebulous.
The defendant on the other hand, pleaded that the land in dispute originally belonged to his “predecessor-in-office and their chiefs who held same in trust for the natives of Agbowa.” The defendant was/is the Oba or head chief of Agbowa, and would appear to have pleaded that the land in dispute belonged in succession to those who held the Obaship or head of chieftaincy before him. But the defendant did not plead who the first of these was, how he came to own the land and how the land has descended over the years till it came to his turn. The omission to state these matters would obviously not impact, as heavily on the defence case as it would on the plaintiffs.
This arose from the fact that, the defendant had merely come to defend the action and has not raised a counter-claim.
At the trial, the plaintiffs called four witnesses including their surveyor. They also tendered in evidence as Exhibit 2 the Deed of Conveyance in favour of their father J. A. Ricketts. More importantly, they testified as to the possession of the land in dispute by their father, until he died in 1976, and theirs, after his death. In his judgment, the trial Judge at page 68 of the Record of Appeal held:-
“I have carefully compared this (sic) submission of counsel what (?) of plaintiff’s counsel and I found it irresistible but to agree with defence counsel that Exhibit 2, though registered has not sufficiently proved that Ademuyiwa Haastrup, had any land fit to be publicly auctioned and sold to the late Ricketts, plaintiff’s father.
Thus, the claim of the plaintiffs for a declaration that they are entitled to the statutory right of occupancy over the land in dispute, since it is based on Exhibit 2 cannot succeed on that ground and it fails.”
Now in Elias v. Omo-Bare (1982) SC 25 at 47, the Supreme Court per Udoma JSC, observed:
“The burden in such a case which rests squarely on the plaintiff, is a heavy one; for it has as far back as 1935, been laid down as a matter of law that a plaintiff seeking a declaration of title to land must establish to the satisfaction of the court by the evidence brought by him, that he is entitled to such a declaration. The plaintiff must succeed on the strength of his own case and not on the weakness of the case of the defendant whose duty is merely to defend. If the onus of proof is not discharged, the weakness of the defendants case will not help him and the proper judgment is for the defendant. See J.M. Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337.”
See also Melifonwu v. Egbuji (1982) 9 SC 145 and Jules v. Ajani (1980)5-7 SC. 96 at 108-109.
There is no doubt that the plaintiffs’ case for declaration for title, deserved to fail as they had not pleaded how their predecessor-in-title; Mr. Ademuyiwa Haastrup, acquired his interest in the land, which his descendants could transmit to J.A. Ricketts, the plaintiffs father. The lower court was clearly correct in dismissing plaintiffs’ claim for declaration of title.
The plaintiffs also claimed for damage in trespass. For the claim in trespass, a different consideration should apply. In Oluwi v. Eniola (1967) NMLR 339 at 340, the Supreme Court observed:-
“The claim for trespass, however, is not, in our view, dependent on the declaration of title as the issues to be determined on the claim for trespass, were whether the plaintiff has established his actual possession of the land and the defendant’s trespass on it, which are quite separate and independent issues to that on his claim for a declaration of title.”
See also Amakor v. Obiefuna (1974) 3 SC 67.
In Okolo v. Uzoka (1978) 4 SC 77 at 87, the Supreme Court, discussing the nature of an action in trespass said:
“It is the law and this court has so held times without number, that trespass is actionable at the suit of the person in possession of the land (Amakor v. Obiefuna (1974) 1 All NLR (Pt.1) page 119; Adeshoye v. Shiwoniku (1952) 14 WACA 86; Emegwara and Others v. Nwaimo and Others (1953) 14 WACA 347; Tongi v. Kalil (1953) 14 WACA 331.
The slightest possession in the plaintiff, enables him to maintain trespass if the defendant cannot show a better title (Whittingdom v. Boxall (1943) 12 L.J.Q.B. 318; Nwosu v. Otunola (1974) 1 All NLR (Pt.1) 533.”
And similarly in Akano v. Okunade (1978) 3 SC 129, the Supreme Court per Obaseki, JSC at 137 said:-
“As regards the question of recovery of possession, possession in itself is a good title 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 Laws of England, 3rd Ed. Vol. 32 paragraph 662 at page 375.”
The questions are (1) were the plaintiffs in possession of the land in dispute? And if they were, did the defendant show a better title?. At page 70 of the record of appeal, the trial Judge found that the plaintiffs satisfactorily established that they were in possession of the land in dispute. He however, reasoned that as the land belonged to the Agbowa Community, the defendant had shown a better title to the land. The trial Judge in his reasoning relied on Udoakpu Eze v. Samuel Igiliegbe and 5 Others (1952) 14 WACA at 70 to 71, the trial Judge wrote:
“One other strong point the plaintiff has based, is the long possession of the Ricketts and the exercise of ownership of the land for a long time without being challenged. The plaintiffs have shown that by Exhibit 3, 5, 6 and 7, they have been dealing with the land, for several years and they have built schools and churches on it.
It is said, other people including the defendants have reorganised their presence on it. The defence testimony on that aspect is that, the Ricketts family came to Agbowa as a Missionary. The community therefore, gave them land to build schools and churches. It is said, government has paid compensation for the schools, when it took it over and that since it is the community that gave land to the Ricketts to build such schools, the land still belonges to the community. In fact in Exhibit 7, the defendant during his testimony in the Magistrate Court, Epe, did not hide the fact that it was the Agbowa community, that gave land to the Ricketts family just like to other families.
Mr. T.E. Williams, has argued that long uses and acts of ownership is sufficient to have found trespass, against the defendant. Mr. Okunuga however, submitted that while it is conceded that possession can give right of trespass to the possessor, he contended that such possession must be a rightful possession. He cited the case of Fasoro v. Beyioku (1988)2 NWLR (Pt.76) 263-277, that acts of possession community serve and be good for trespass, only it is based on good title which is established. He submitted that plaintiffs have failed to establish their title or possession through Haastrup. It cannot therefore, be claimed that the acts of ownership for several years has given them good possession to predicate trespass.
From the evidence available in this case, the plaintiffs have not found their possession on any other ground except through Exhibit 2. I therefore agree that Exhibit 2 having failed to give title, any possession derivable from Exhibit 2 can itself not stand. The challenge to the land is not on Ricketts simpliciter, but on Ricketts through Ademuyiwa Haastrup. However having accepted defendant’s contentions on Exhibit 2 one is bound to inquire whether that by itself has observed the defendant’s trespass since the defendant himself admitted the land in dispute belongs to the community.
The land in dispute is agreed by all parties to be with Agbowa community. It is therefore, a community land except and until it is proved or established that such part of a community land, has been granted to individuals either by way of licence or absolute grant.
In his Book: Nigerian LandLaw by Professor B.O. Nwabueze Re: Characteristics of Communal Land in Nigeria, have been well treated in pages 149-191. In this book expretions, are set out in the positions of the chiefs of the community as the caretaker or trustee of the community land, the rights of each member to the communal land can be said to have been given out absolutely. Nwabueze’s exposition has clearly come up in the case. Udeakpu Eze v. Sameuel Igiliegbe and 5 Others 14 WACA.”
With respect to the learned trial Judge, I think he was in error to have accepted without proof that the land in dispute, had originally been the communal land of the people of Agbowa. The case of Eze & Ors. v. Igiliegbe & 5 Ors. relied upon by the trial Judge as the basis of that decision, was a case that emanated from a Native court. The plaintiff in the case had testified concerning the customary law of the neighbourhood to the effect that land was communally owned. The native court had accepted the evidence of the plaintiff as against that of the defendants. The defendants had contended that the land was individually owned. Cousey, J.A. at pages 61-62 of the report summarised the facts leading to the appeal thus:-
“Put shortly, the plaintiffs proved that, the land in question is owned by the people of Nze as a whole, that for many years and up to the events previous to this suit, Nze as a whole, had granted portion of the land to strangers that, the rents had been collected for the community as a whole, but that in latter years, the defendant alone had placed Aku tenants on the land and received rents and tribute from them and had not given such rent and tribute to the plaintiffs and failed to account therefore.”
It was on the basis of the evidence available before the native law as to the applicable custom of the Nze people that the native court, the High Court and the West African Court of Appeal, held that the land in dispute in the case was communal land. It is not the general principle of land law, that in a dispute over the ownership of land in Yoruba Land, the court must proceed from the initial premise that land was always communally owned. This was a dispute fought in the High Court, in which parties used pleadings. Under the principle of pleadings, the parties needed to plead and prove by evidence the facts upon which they relied. In the instant case, if it was the case of the defendant, that land in Agbowa was always communally owned, he had to plead such custom and lead evidence as to it. The defendant never pleaded who first settled on the land. He did not plead how his predecessors-in-office as Oba of Agbowa came to own the land and how the land had devolved over the years until it came to his (the defendant’s) possession. All that the defendant did was testify that the land was communal land. Surely, that was insufficient to show that the defendant had a title superior to plaintiffs’ possessory title.
In the way the trial Judge approached the matter, it would mean this: In a land dispute, whenever a party pleads that a land in dispute is communal land and repeats the same in evidence, the land must be adjudged to be communal land, even if there is no evidence of the custom or traditional history under which the land came to belong to the community. I think that approach was wrong.
The plaintiffs led evidence that they and their father before them, have been in possession of the land since 1939, when Exhibit 2 was made in favour of J.A. Ricketts. Even if the plaintiffs had no title and were mere trespassers, they were entitled to keep their possession, until someone with a better title displaces them. They could successfully maintain an action against anyone who disturbs their possession and could not show a better title. As the defendant in this case failed to show a title better than the plaintiffs, plaintiffs’ case in trespass should have succeeded.
Accordingly, this appeal succeeds. The judgment of Longe, J. given on 15/4/94, including the award of costs is set aside. In its place, I make the following orders (1) The sum of Two thousand naira, being damages for trespass is awarded in plaintiff’s favour against the defendant. (2) The defendant, his servants privies and or agents are perpetually restrained from committing further acts of trespass on the land in dispute.
Other Citations: (2001)LCN/0969(CA)
