Olayiwola Samuel V. Mr. Adewale Adedeji (1997)
LawGlobal-Hub Lead Judgment Report
AYOOLA, J.C.A.
This appeal is from the decision of the High Court of Lagos State whereby the learned judge (Ilori J, as he then was) entered judgment for the plaintiff, and granted him a declaration of entitlement to the issuance of a statutory certificate of occupancy in respect of land situate, lying and being at 5A Onipede Street, Surulere, in Lagos State (hereinafter referred to as “the land”); awarded him general damages for trespass and restrained the defendant, from going on the land. The appellant and the respondent in this appeal were respectively the defendant and the plaintiff at the trial. They are now referred in this judgment as plaintiff and defendant.
The background facts are that the plaintiff bought the land from the Onitire family sometime in 1966 and obtained a deed of conveyance dated 29th April, 1966 from that family. It transpired that the Daniel family was adjudged in a series of actions culminating in a decision of the Supreme Court to be owners of the land. It thus became obvious that the title obtained from the Onitire family by the respondent had become worthless. The plaintiff’s case at the High Court was that consequent upon the court declaring the Daniel family to be the owners of the land, he approached that family and repurchased from that family the land on which he had in 1967 commenced a building which he had completed up to the ground floor in 1979. The action which gave rise to this appeal was brought about by the entry of the defendant on the land. The plaintiff alleged that the defendant had forcibly taken over the land and the building thereon.
The defendant’s case at the trial in summary, was that he purchased the land from the Daniel family in April 1975 and on payment of the purchase price was put in possession thereof in 1975. He alleged that he completed the ground floor in May 1976 and moved into the house in June 1976.
Rightly, the learned judge identified as the central issue in the case, the question to whom did the Daniel family sell the land in dispute?; and as subsidiary issues, the question of possession of and erection of building on the land, there being a conflict of evidence on those subsidiary questions. After a thorough and painstaking review of the evidence he made finding of fact which can be summarised thus: The plaintiff was one of the persons who bought land from the Onitire family and obtained a conveyance from that family. His neighbour, one Alhaji Onipede also bought two plots from the same family. Those plots were adjacent to the plaintiff’s plot. The plaintiff took possession of the land in 1966. At that time the land was vacant and bushy. The plaintiff prepared a building plan for the erection of a one storey house on the land. That plan was approved in August 1977. The house designed by the plaintiff for the first floor in the said plan was identical in all respects with the accommodation shown by evidence of both the plaintiff and the defendant to be on the first floor of the house now in dispute. The plaintiff completed the building up to first floor in 1979. After defeat of the Onitire family in their claim of title to the land the plaintiff among others who had bought plots of land from Onitire family negotiated for and repurchased the land in dispute through the chambers of Akin Sikuade, Solicitors, sometime in 1978. At the material time and up till the time of her death in 1985, one Madam Serafena Daniel was the head of the Daniel family.
The learned judge rejected the defendant’s evidence that the land was virgin land in 1975. He found that the defendant took over the plaintiff’s land as at that time and the existing structure thereon which he started to build on despite warnings and entreaties to leave the plaintiff’s development alone. Defendant’s entry on the land was found to have taken place sometime in 1986. The learned judge further held in regard to the title relied on by the defendant that Omotayo Daniel who purportedly sold the land to him was at the material time not the head of the Daniel family and that even if he had been so found to be, the sale would still have been void ab initio because Omotayo Daniel did not purport to sell the land as representative of the Daniel family. On these findings it was manifest that the defendant was without title whatsoever.
Consequent upon these findings, the learned judge filed that the plaintiff being in exclusive possession of the land before the entry thereon by the defendant, was entitled to succeed in trespass. Reliance was placed, rightly in my view, on the case of Amakor v. Obiefuna (1974) 1 All NLR (Pt.1) 119. He also held that the plaintiff having succeeded on the issue of trespass was entitled to an injunction against the defendant. As to the declaration of entitlement to issuance of a certificate of occupancy granted to the plaintiff by the judge, he reasoned thus:-
“….where a person is in possession of developed land over a long period of time and where the true owner of the land has granted a right to him to remain in possession the property will be sufficiently vested in him for the purpose of the Land Use Act.”
In the result, the learned judge gave the decision earlier stated which the defendant, dissatisfied with, has now appealed from.
On this appeal, the defendant had formulated seven issues for determination, but it is evident that the principal questions for determination are whether the learned trial judge had properly evaluated the evidence and had properly directed himself on the burden of proof.
In summary, the argument advanced by counsel for the defendant is that:
(1) Since the plaintiff had no document, such as purchase receipt or deed of conveyance from the Daniel family to back his claim the learned judge, notwithstanding the evidence of Mr. Sikuade in regard to the sale should not have held the plaintiff to be owner.
(2) There was no proof of purchase of land from the Onitire family.
(3) There was no evidence of who put the plaintiff in possession of the land.
(4) There were inconsistencies in the pleadings and in the evidence as to the number of rooms, shops and parlours in the building on the land and the court should have held that the plaintiff and his witnesses had lied in their evidence.
(5) The onus is on the plaintiff to show better title against the defendant who was at the time of the institution of the action in possession of the land even if his possession had been that of a trespasser.
(6) The judge should not have held that the dealings by Omotayo Daniel in respect of the land was in his personal capacity.
(7) Omotayo Daniel’s headships of the family was unchallenged and could not be challenged by the claim that his mother was head of the family.
(8) Finally, the plaintiff’s case ought to have failed because he did not call a surveyor to testify that the land on which he built was the one he allegedly bought from the Onitire family.
The plaintiff’s counsel met these arguments with somewhat meticulous care. It is not necessary to rehash the argument proferred by the respondent.
In my opinion, it is well to bear in mind that the learned trial judge had the advantage of seeing the witnesses who testified, whereas this court did not have that advantage. It is trite that where the issues of fact turn on the credibility of witnesses the appellate court should approach such findings of fact by the lower court with deference unless such findings are patently perverse or could evidently not have been a result of a proper evaluation of the evidence. The findings by the learned trial judge in this case that the plaintiff took possessing of the land in 1966 and built up to ground floor level a house thereon between 1966 and 1979, and that the plaintiff negotiated and repurchased the land from the Daniel family through the chambers of Akin Sikuade, solicitors are such findings. So also is the finding that the defendant entered the land in 1980 and proceeded to build on the structure already erected there by the plaintiff.
These findings are amply supported by the evidence which the learned trial judge was prepared to accept. It will be tedious to rehash such evidence, but it is pertinent to mention the evidence of the plaintiff himself who gave evidence of most of the facts found by the learned judge and whose evidence was in material particulars supported by that of his witnesses. His evidence of the purchase of the land from the Onitire family was supported by the deed of conveyance – Exhibit PW1-A. His evidence of the erection of a building thereon from 1867 to 1979 was substantially supported by that of his second witness. Mr. Odelola and the artisans who worked on the building, namely the 5th and 6th plaintiff witnesses respectively Kadiri and Aremu and his neighbour the 4th plaintiff witness. Furthermore, several plaintiff witnesses testified to the repurchase of the land from the Daniel family. Principal of these is Mr. Sikuade, the 3rd plaintiff witness, whose evidence the learned judge accepted and whose credibility be justifiably acknowledged having regard to the evidence of the defendant’s witness, Omotayo Daniel, who testified that Mr. Sikuade, “continued to act in all the cases after my father’s death. I changed from him because of this case.” Concerning the trespassers on the Daniel family land he said:-
“They were paying for their land, during the lifetime of my mother, she said, they – the trespasser should be paying to Akin Sikuade. I took them to Akin Sikuade myself. In all these matters of sale of land and payment by trespassers Akin Sikuade was acting for us.”
As rightly observed by the learned judge, the inference from the above passage is that up till 1981 Mr. Sikuade was empowered by the family to act on their behalf as stated in the evidence quoted above.
The suggestion in the argument advanced on behalf of the defendant on this appeal that the learned judge should not have believed the evidence of the plaintiff and his witnesses because of alleged contradictions in their evidence is one without substance. The only alleged inconsistency fastened on was the alleged contradiction in the descriptions of the apartments in the building on the land. It would have been surprising if the witnesses- artisans and neighbours – had been able to describe the nature of the apartments in the building terms. What is significant is that they are all agreed that there were eight apartments in the building. Whether an apartment was described by one witness as a parlour while it was described as a room by another is trivial and immaterial. Contradiction which would cast doubt on the credibility of witnesses must be to a material fact. Similarly the difference in the evidence of the plaintiff and his 6th plaintiff witness as to when the building was completed was not irreconcilable and was in any event not a material contradiction even if it can be described as a contradiction.
It will be inexpedient now to rehash the evidence which the learned trial judge had considered with meticulous care. It suffices to say that nothing has been usefully urged in this appeal to fault the findings of fact which he had made.
While not contesting the reasoning of the learned judge as to the meaning of “vest” in section 34(2) of the Land Use Act which was the basis on which he had granted a declaration of entitlement to a certificate of occupancy to the plaintiff, counsel on behalf of the defendant proceeded to argue on this appeal that there being no document of title or document in writing produced by the plaintiff, the plaintiff had not proved any title. This argument is in my judgment misconceived. On the evidence accepted by the judge, as between the plaintiff and the Daniel family, the plaintiff was as much in the position of a purchaser in possession of the title. Where a possessor of land negotiates with the true owner of the land and the parties have agreed on the sale of the land to the possessor and have thus agreed not to disturb his possession of the land as between the possessor of the land and the true owner, the possessor is in practical terms the owner of the land. It is when the true owner has transferred legal interest in the land to a third party that the putative title of the possessor may be in jeopardy. In this case, on the finding made by the trial judge that the defendant had no title whatsoever, the grant of a declaration to the plaintiff as contained in the judgment of the High Court cannot be faulted.
However, the defendant contends that the judgment of the High Court should not stand because the learned judge had misplaced the burden of proving title. In view of the clear findings made by the learned judge it cannot be doubted that the plaintiff had proved a right to remain in possession of the land at the time when the defendant came thereon. His position was even thus stronger than that envisaged in the passage from the judgment in the case of Amakor v. Obiefuna (1974) 1 All NLR (Pt.1) 119, 126 cited by the learned judge, where Fatayi-Williams JSC (as he then was) said:-
“It is trite law that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except a person who could establish a better title. Therefore anyone other than the true owner, who disturbs his possession of the land can be sued in trespass and in such an action it is no answer for the defendant to show. (as the defendant/respondent had sought to show in paragraph 7 of his statement of defence, although he gave no evidence in support of this averment), that the title to the land is in another person. To resist the plaintiffs claim, a defendant must show either that he is the one in actual possession or that he has a right to possession.”
In this case the plaintiff could not at the time of the entry on the land by the defendant be described as a trespasser as he had regularized his possession of the land. It is instructive to note that the passage in the judgment in Egwuh v. Ogunkitan (SC.529/66 decided on 28th February, 1969 relied on by the counsel for the defendant was referred to by Fatayi-Williams, J.S.C. in the Amakor case Notwithstanding what was said in that case Fatayi-Williams JSC in the Amakor case (ibid) at p.127 said:-
“…an original trespasser, as against everyone but the true owner, can, if he is in exclusive possession of the land maintain an action in trespass against a later trespasser whose possession, whether taken by force or not, would be clearly adverse to that of the original trespasser.”
Where an exclusive possession of land is disturbed by an entry on the land the cause of action in trespass arises from such entry. It is for the person who has entered the land to justify such entry. He can do so by showing that he is the owner or that he has entered by the authority of the owner. The responsibility of the person entering the land to show that he is not a trespasser does not disappear merely because he has persisted and continued his trespass. There is no substance in the submission that the learned judge had misplaced the burden of proof.
On the evidence of Omotayo Daniel from whom the defendant claimed to have bought the land, it is manifest that at the material time Omotayo Daniel’s mother was the head of the Daniel family. Although Omotayo Daniel in his evidence in chief claimed to be “head of the family as regards the management of family property” his admission under cross-examination that his mother was the head of family and his further evidence that his mother in her life time gave directions as to how payment by “trespasser” should be made, exposed the fallacy of his claim to be the head of family. The notion that headships of family could be split – one for the purpose of management of land and another for other purposes is to say the least outrageous. The issue as to whether Madam Daniel could or could not under customary law be head of family had not been raised in the court below and is not an issue which can now be taken on this appeal. It is a question of custom which has to be proved as a fact after the applicable customary law would have been ascertained. It is not right to assume that the applicable law to determine the headship of Daniel family is the customary law of Lagos.
Omotayo Daniel from the receipts (Exh. DW1A, 8B) tendered in evidence by the defendant purported to be dealing with the land as his property. For this reason also the defendant’s claim to title to the land is also faulty. Whichever way the matter is looked at, the defendant was purely a trespasser without a title or right to interfere with the plaintiff’s possession of the land.
One final point, the argument that the plaintiff should have called a surveyor to say whether or not the land he built upon was the one he bought from the Onitire family is to say the least, ludicrous. There was ample evidence on record to show that it was and there was no need for a surveyor to testify to that fact.
I feel no hesitation in coming to the conclusion that the conclusion of fact and law arrived at by Ilori J, (as he then was) after a careful consideration of the evidence and of the applicable legal principles, cannot be faulted.
In the result, this appeal is without merit and I would dismiss it.
I award N5000 as costs of the appeal to the plaintiff.
Other Citations: (1997)LCN/0290(CA)
