Mr. Toyin Akanbi & Anor. V. Alhaji Shuaib Kasandubu (1997)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
Alhaji Shuaib Kasandubu now deceased sued the appellants and two others before an Ilorin High Court for trespass to his land and injunction to restrain them from further trespass. Para. 18 of the respondent’s amended statement of claim summarized his claim as follows:-
“18. The plaintiff says that the defendants are the sole authority administering the school called Ilorin Grammar School in Ilorin Kwara State of Nigeria.
Whereof the plaintiff claim against the defendants is a permanent injunction restraining the defendants and their agents, privies and servants from entering or trespassing or doing anything whatsoever at the plaintiffs land at Asa Dam behind Geri Alimi Hospital Ilorin.”
The two appellants filed a statement of defence denying the claim. The respondent gave evidence on his own behalf that he bought a piece of land in 1972. He tendered an agreement which evidenced the sale and transfer of the land as Exh. 1 and a permit to alienate the land granted by the Local Government as Exh. 2 and a site plan of the land attached to Exh. 2 as Exhibit 2A. He said that he bought the land from one Basharu Asunnera who gave evidence as P.W.1 confirming the sale of the piece of land to the respondent. According to the plaintiff in the court below, trouble started when the appellants encroached upon his land and started building a wall thereon.
The appellants called one Dr. Amuda Aluko as a witness, D.W.1. He is the proprietor of Geri Alimi Hospital Ilorin. He gave evidence that he bought a piece of land from one Iya Agba Ajika in 1973 but when he started to develop the land the authorities of Ilorin Grammar School told him that the land was theirs and that they had a certificate of occupancy over it. He then took permission from them to build his hospital. He admitted that the respondent came to discuss with him and he told him that the land behind the hospital belonged to him but he was not interested in the business.
The 1st appellant who was the principal of Ilorin Grammar School gave evidence that the disputed land belonged to Ilorin Grammar School as absolute owner. He tendered records of disputes on the land before between the school and one Saudatu Lawal which went as far as the Supreme Court and Ilorin Grammar School won all along.
Under cross examination the 1st appellant stated as follows:
‘The land in dispute is between Tipper Owners Association Structure and Dr. Aluko’s Geri Alimi Hospital.”
The court visited the locus in quo where it was shown the disputed land. Thereafter counsel on either side addressed the court, and in a reserved judgment, the trial judge Gbadeyan J. gave judgment in favour of the respondent and granted the injunction sought.
Dissatisfied with that judgment the appellants appealed to this court on 5 grounds of appeal. In accordance with the Rules of this court the appellants filed a brief of argument and identified 4 issues for determination as follows:-
“1. Whether considering the totality of evidence before the trial court that court was right to give judgment to the plaintiff/respondent (Ground 1).
- Whether the trial High Court was right in laying the onus of proof on the defendants/appellants on the land facing Asa Dam Road from NUT Secretariat up to back of Gari Alimi Hospital which form part of the land claimed by the plaintiff/respondent. (Ground 2).
- Whether the land awarded to the plaintiff/respondent is certain, definite and identifiable and that the perpetual injunction thereon imposed on the defendants/appellants was proper. (Ground 5).
- Whether the land shown to the court at the locus in quo inspection is the same land as contained in Exhibits 1, 2 and 2A and the same land awarded to the plaintiff/respondent.” (Grounds 3 and 4).
The plaintiff in the court below died and was replaced by his son Ibrahim Kasandubu who is now the respondent to this appeal. The respondent filed a brief of argument and identified two issues for determination:-
“1. Whether on the totality of the evidence before the court the plaintiff justified the allegation of trespass made against the defendants/appellants. (Grounds 1 and 2).
- Whether the issue of definitive certainty of the land in dispute call for determination in this suit.” (Grounds 3 – 5).
The respondent in his brief raised preliminary objection to grounds 2, 3 and 4 of the grounds of appeal as being incompetent and contrary to Order 3 rule 2(2)(4) Court of Appeal Rules 1981.
During the course of oral argument the learned Senior Advocate for the respondent conceded that he did not give a notice of preliminary objection in accordance with the Rules of Court before raising the preliminary objection in his brief of argument. I was therefore not minded to deal with the objection as it was not properly raised. However both sides had argued on the point. While the Senior Advocate for the appellants submitted that the grounds were in order the learned Senior Advocate for the respondent submitted otherwise.
I have taken the trouble to look at grounds 2, 3 and 4 of the grounds of appeal to satisfy myself whether they are proper or not. Without their particulars they read as follows:-
“Ground 2. The learned High Court Omu-Aran erred in law and on facts when in its judgment held as follows:-
‘On the contrary, the stretch of land directly facing the Asa Dam Road from NUT Secretariat stretching up to the back yard of Geri Alimi Hospital, has not been shown to be in the school possession or has it any title to it.’
“Ground 3. The learned trial Judge erred in law and on facts when in his judgment on page 12 he stated as follows:
‘The identity of the land disputed is very important. The plaintiff was not in any doubt at all about his own land. This he showed at the inspection of the locus. He showed structures erected with his permission. He showed the encroachment. He was able to establish that on both sides of the Asa Dam Road, he allocated lands to people (sic) who have built houses and he gave the root of his title on the land described in Exhibit 2 and 2A to P.W.1′
Ground 4. The learned trial Judge erred in law and on facts when he award land that lacks definitive certainty to the plaintiff.”
They are grounds of mixed law and facts and are proper in my respectful view.
On the 1st issue the learned Senior Advocate for the appellants submitted that there were many conflicts between the evidence of the respondent and his pleadings. For example he claimed as at March 1986 that he bought the land over 20 years previously but in his evidence he said that he bought the land in 1972. He highlighted some of these conflicts and submitted that the respondent failed woefully to prove his case and the trial Judge was wrong to have given judgment in his favour.
In reply to this the learned Senior counsel for the respondent submitted that the respondent pleaded his right of title to the land in dispute from his purchase of the land from P.W.1. He pleaded the agreement of sale, alienation permit and site plan Exhibits 1, 2 and 2A. He led evidence in proof of this and P.W.1 confirmed the sale. He said that the appellants did not discredit the respondent’s evidence and that of the witness. The trial Judge was therefore right in giving judgment for the respondent.
Where a plaintiff claims for trespass and injunction and the defendant acknowledges that the land belongs to him, the plaintiff in order to succeed has to prove not only that he was in possession of the land when the trespass was committed, but also that his own title to the land in dispute is better than that of the defendant. See the case of Idesoh v. Ordia (1997) 3 NWLR (Pt.491) P. 17. In the present case the respondent tendered documents to show that he bought the land in dispute. He called P.W.1 who sold the land to him and P.W.1 who confirmed the sale. On the other hand the appellants barely stated that the land belonged to them and that they had a certificate of occupancy over it but did not tender the certificate of occupancy. As between the respondent and the appellants, the appellants clearly showed a better title. I am unable to see any serious conflicts between the pleadings and the evidence given that would warrant my interfering with the facts as found by the learned trial Judge with regard to title.
On the 2nd issue the learned Senior Advocate for the appellants submitted that the trial Judge was wrong in laying the onus of proof on the defendants/appellants on the land facing Asam Dam Road from NUT Secretariat up to the back of Geri Alimi Hospital which forms part of the land claimed by the respondent. He said that in a civil matter the burden of proof is squarely on the plaintiff to prove his case to the satisfaction of the court. He cannot rely on the weakness of the defence. He referred to the case of Achibong v. Ita 14 WACA 520 at P. 522.
In reply to this the learned Senior Advocate for the respondent submitted that while it is true that in a civil claim the burden of proof lies on the claimant, this however may shift when the claimant leads evidence that is admissible in law, credible and acceptable to the court, the other side has to prove averments made in defence in order to demolish the evidence given by the claimant. He referred to sections 137 and 139 of the Evidence Act.
It is clear from sections 137 and 139 of the Evidence Act, which I do not intend to reproduce in this judgment that the burden of proof in a civil matter is not static. Sometimes it moves from side to side. If a claimant proves certain facts which would give a judgment to him, the defendant has a burden of proving facts that would establish otherwise. The trial Judge at pages 86 to 87 of the record considered the hopelessness of the appellants’ defence. Two of the defendants before that court, namely, Kwara State Education Management Board and the Commissioner for Education Kwara State who were 3rd and 4th defendants did not defend the action at all even though they were represented by counsel. The witnesses who gave evidence on behalf of the appellants did not show any particular knowledge of the extent of the College land. The trial Judge then weighed this evidence against that of the respondent and his witness and came to the conclusion that the respondent had proved his claim. It is certainly neater and more usual for a trial Judge to evaluate the case of a claimant before that of a defendant. Be that as it may, the procedure adopted by the trial Judge in considering the hopelessness of the appellants’ defence first does not mean that he shifted the burden of proof on the appellants. From the record he considered both sides before coming to the conclusion that the respondent proved a better title to the disputed land.
On the 3rd issue the learned Senior Advocate submitted that the land awarded to the plaintiff/respondent is uncertain and indefinite. He said that a court should not do anything which is likely to worsen the situation already created. Therefore in the declaration of title to land and an application for injunction, it is necessary to have the land in dispute properly identified with certainty. He referred to the following cases: -Kwadzo v. Adjei 10 WACA 274; Nwose v. Mbaekwe (1973) 3 ECSLR (Pt.1) 136 and Ajide Arebe v. Ogunbiyi Asanlu (1980) 5-7 S.C. 78.
In reply to this the learned Senior Advocate for the respondent submitted that the identity of the land in dispute was not an issue before the lower court as both sides knew the land in dispute. He relied on the cases of Chief Ibuluya & Ors. v. Dikibo & Ors. (1976) 6 S.C. 97 and Nwoke v. Okere (1994) 5 NWLR (Pt.343) 159 at 170.
It is trite law that where the parties to an action in respect of land in dispute know precisely what area is in dispute a plan is not absolutely necessary for maintaining an action for trespass and injunction in respect of that land. See the cases of Nwoke v. Okere (supra) and Motanya v. Elinwa (1994) 7 NWLR (Pt.356) 252. From the pleadings and evidence adduced in the court below, the identity of the disputed land was not an issue. Both sides clearly knew the extent of the land in dispute. In fact, the 1st appellant put it thus in his cross examination:-
“The land in dispute is between Tippers Owners Association Structure and Dr. Aluko’s Geri Alimi Hospital.”
It therefore followed that the need to establish the boundaries of the disputed land with definitive certainty does not arise in the situation of this case. An injunction can also lie in respect of the disputed land as both parties know it.”
On the 4th issue the learned Senior Advocate for the appellants submitted that the certainty of the land in dispute is unknown both to the trial court and the respondent and as it was not shown to the court through the visit to the locus in quo, the extent of the measurement of the land. He said that it is trite law that where evidence as to boundaries of a piece of land on which the declaration is claimed is inconclusive declaration should be refused. He referred to the case of Oke v. Eke (1982) 12 S.C. 218 at P. 247 and the case of Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182.
In reply to this the learned Senior Advocate for the respondent submitted that where there is a claim of trespass without a claim for declaration of title or where the land in dispute is well-known to the parties, the tendering of a survey plan can be dispensed with. Recited in support the case of Motanya v. Elinwa (supra) where the Supreme Court held that where parties to a land in dispute know the boundaries of the land and unmistakenly admitted that in their pleadings, there is no need for a trial court to make findings of facts of the boundaries of the land.
I agree with the submission of the learned counsel for the respondent that in a case where the identity of the land in dispute is clear to both parties from the pleadings, the question of making findings of fact of the boundaries with certainty does not arise. See the case of Mark Ugbo v. Anthony Aburime (1994) 9 SCNJ 23; (1993) 2 NWLR (Pt.273) 101.
From the facts of this case it is clear that both parties knew the disputed land and both parties were laying claim to the disputed land. The trial Judge held that the respondent proved a better title. The claim of the respondent was not for a declaration of title. It was for trespass and injunction and the trial Judge accordingly granted the injunction sought I see no cause to interfere with the order of injunction made as I am of the view that it was correctly made.
From all I have said in this appeal, I am of the firm view that it is lacking in merit. Accordingly, I hereby dismiss the appeal with costs of N1,500 in favour of the respondent.
Other Citations: (1997)LCN/0308(CA)
