Pa Jeremiah Benjamin Hunsonnu & Anor V. Mr. Aina Denapo (2007)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
The Appellants herein who were the Plaintiffs at the High Court of Lagos State claimed against the Respondent in their further Amended Statement of Claim filed on the 24th June 2004 (see pages 66-69 of the record of this appeal) for declaration of title, damages for trespass and injunction over a parcel of land situate and lying at Ithazi along Abia – N. I. F. O. R/DlFFRI road, Igborosun in Badagary Local Government Area of Lagos State.
By a statement of defence dated 11th April 2002 and filed on the 13th January 2003, the Respondent herein, who was the Defendant at the lower court set up a counterclaim for declaration of title, forfeiture of customary grant, injunction, damages for trespass and damages for libel and slander against the Appellants.
A reply to the counterclaim of the Respondent was dated and filed on the 29th of March 2000.
Issues having been joined, the matter proceeded to trial. At the end of the trial and in a considered judgment, the learned trial Judge, Abiru J. dismissed the claims of both the Appellants and the Respondent in their entirety.
Being dissatisfied and aggrieved with the judgment, the Appellants have brought this appeal. Their notice of appeal dated 13th December 2004 and filed on the 16th December 2004 contains nine grounds of appeal.
The facts of this case according to the Appellants is that their ancestor, Late Hunzonnu founded the disputed land which forms part of a large tract of land from time immemorial and used same for hunting and farming. After the death of Hunzonnu, the disputed piece of and revolved through Hunsu Jobe, Zannu, Benjamin who are children of Hunzonnu to Gweloku and Jeremiah the 1st Appellant. Since the Appellants inherited the land, they have since exercised various acts of possession and ownership on their land which includes planting and harvesting crops and other farm products without any disturbance from anybody. It is also the Appellants case that when Lagos State Government acquired part of their land, they were paid compensation.
The Appellants’ further case is that they continued to enjoy peaceful occupation of their land until in 1997 when the Respondent was found in company of prospective buyer near the land in dispute and this fact got to the knowledge of the Oba of Ilogbo who intervened and granted part of the land to the Respondent an action which they rejected in writing, but the Respondent vowed to covet the land and has in fact negotiated with an owner of a dredging out fit to excavate sand from the said land and has prevented the Appellants from carrying out perimeter survey of the land.
The Respondent set up an entirely different set of facts in his pleadings. According to him, his ancestor Derin was the founder and first settler of Abia Village where the disputed land lies. He traced the genealogy of Derin to himself and insisted that the land in dispute is at Abia village and belongs rightfully to the Abia people. The Respondent pointed out in his pleadings that the Plaintiffs hail from lgborosun village not from Abia village and have no land in Abia. Finally, the Respondent pleaded that the averment in paragraph 10 of the statement of claim in their ordinary meaning meant and were understood to mean that the Respondent is a person of no virtue, gangster and villain and this has greatly injured his credit, character and reputation and his reputation has been brought into hatred, ridicule and contempt.
Paragraph 10 of the statement of claim reads as follows: –
“The plaintiffs aver that the Defendant a returnee from the Motor Parks as a tout started to be disturbing the plaintiffs on their land very recently precisely sometime this year i.e. 1997 when he was found in company of a prospective buyer near the land in dispute.”
From the nine grounds of appeal, the Appellants formulated live issues for the determination of this appeal at paragraph 4.0, pages 3-4 of the Appellants brief of argument. These issues without their particulars are reproduced hereunder as follows: –
I. Whether the learned trial Judge was right when he held that the Appellants did not file a composite plan and have thus failed to establish the identity of the land in dispute.
- Whether the learned trial Judge was right in holding that the traditional history of the Appellants was inconclusive.
If answered in affirmative
- Was it legally right for the learned trial Judge not to have considered and determined the issue of proven facts of acts of long possession and ownership in respect of the disputed land raised by the Appellants both in their pleadings and evidence as regards whether same could sustain their claim for declaration of title.
- Whether the proven acts of long possession and ownership exercised by the Appellants in respect of the disputed land could sustain their claim for declaration of title.
- Whether the learned trial Judge was right in dismissing the Appellants’ claims for trespass, damages and injunction, having found and held that the Appellants were in possession of the disputed land at
the time material to the said suit.
The Respondent distilled only one issue in his brief of argument dated
13th of March 2006 and filed on the 3rd April 2006. The sole issue reads as
follows: –
“Whether the judgment of the court (as far as it affects the Plaintiffs/Appellants herein) was correct in law i.e.
Whether the learned trial Judge properly evaluated the evidence before him in dismissing the claims of the Plaintiff.” The sole issue raised by the Respondent is similar to the 3rd and 4th issues raised by the Appellants, I will therefore adopt those issues raised by the Appellants for the purpose of determining this appeal.
Chief Oludare Fasae, learned counsel for the Appellants who settled the Appellants brief argued the issues formulated in the Appellants’ brief of argument separately, I will consider the 1sr and 2nd issues separately and the 3rd, 4th and 5th issues will be treated together.
On the 1st issue, learned counsel for the Appellants made extensive submission on whether the Appellants had to file a composite plan in order to establish the identity of the land in issue? Learned counsel submitted that the threshold issue to be trashed herein is the identity of the land in dispute and the law is settled that he who claims a piece of land must prove the identity and quantity of the land in dispute or else his case will fail. However, where the identity and quantity of the land is known to both parties, such burden of proof is dispensed with.
In a further argument, learned counsel submitted that in the instant case, both parties know the identity of the land and its size in that before their survey plans were made, the parties had gone to the land in dispute with some local arbitrators who having been shown the dimensions and area of the land, the local arbitrators purportedly shared the land into two, one for the Appellants and the other for the Respondent. In support of his submissions learned counsel cited several authorities. I will consider some of the authorities in course of this judgment.
In reply, Olawale Baiyewu Esq. of counsel for the Respondent submitted that the evidence by both parties overwhelmingly point to the fact that the identity of the land in dispute is in issue. Learned counsel made
reference to the Appellants’ counsel’s address on the application dated 14th April 2004 at lines 18-21 of page 118 of the Record of Appeal and contended that where the identity of the land is in issue the onus is on the Plaintiffs to file a composite plan to specifically identify the land in dispute as failure to do so will lead to the dismissal of the suit. In a further submission, learned counsel cited Ibhafidon vs. Igbinosu (2001) 6 NSCQRR 315; Owhonda vs. Ekpechi (2003) 1 FWLR (Pt 186) I at 17; Fasanva vs. Adekova (2001) FWLR (pt. 34) (no page supplied); Akulaku v. Yongo (2002) fwlr (PT. 100) 1228 AT 1249; Thompson v. Arowolo (2003) FWLR (pt. 164) 315 at 346-347: Adenle v. Olude (2003) FWLR (pt 57) 1074 at 1086 and Archibong v. Ita (2004) 3 MJSC 155 at 178 and further contended that PW 7 whose evidence the Appellants have relied on is a Survey Assistant whose evidence is not of any evidential value since he is not an expert witness. Learned counsel urged this Court to hold that the finding of the lower Court that a composite plan would have helped in ascertaining the identity of the land cannot be faulted.
At page 157 of the Record of this Appeal, the learned trial Judge made reference to the testimonies of the Appellants witnesses which showed that the disputed land was empty and exhibit DI which is a survey plan tendered by the Respondent and which showed settlements referred to as Gorokoh Compound, Medevo settlement and a well on the disputed land and concluded that the identity of the land in dispute was in issue and this could only be cured by filing a composite plan to reconcile the dispute. It is perfectly settled that in a claim for declaration of title to land, the onus is on the claimant to satisfy the Court that he is entitled on the evidence adduced by him to the declaration. He must rely on the strength of his own case and not on the weakness of his opponent’s case, except where his opponent’s case supports the claimant’s case. Where this onus is not discharged, the claimant’s case will fail. See Okafor & Ors vs. Idigo III & ors (1984)15 NSCC 360 at 361: Jinadu & ors vs. Esurombi-Aro (2005) 14 NWLR (pt. 944) 142 at 202 paragraph D-E 208 paragraph C-D; Akinola vs. Oluwo (1962) SCNLR 352; .Jules vs. Ajani (1980) 5-7 SC 96.
Where a piece of land, subject matter of an action for declaration of title is not sufficiently demarcated so as to be ascertainable, a declaration of title will not be granted. In other word, for a claimant to be entitled to a declaration of title to land in his favour, he must clearly establish the boundaries of the land in dispute by evidence describing the land either orally or with reference to the plan produced in evidence in such a way that even where there is no plan, a surveyor armed with the record of proceedings can follow the description and produce a plan. See Ordia v. Piedmont (Nig) Ltd (1995) 2 NWLR (pt 379) 516; Bajoden v. Iromwanimi (1995) 7 NWLR (pt. 40)655; .Jinadu v. Esurombi-Aro (Supra) at 202-203 paragraphs E-A.
However, where parties know the quantity and quality of the land in dispute a survey plan becomes unnecessary but the parties must give description of the land for the purpose of enforcement of the judgment that will be delivered at the end of the proceedings. In Olunjile v. Adeagbo (1988) 19 NSCC (pt. 1) 625, the Supreme Court said: –
“That it is now perfectly settled that a survey plan is not a sine qua non in every land case. This is especially so when both parties know the quantity and quality of the land in dispute between them. In this appeal both parties do know the quantity and Quality of the land in dispute and as such a plan ceases to be an absolute necessity.” See Ibuluya v. Dikibo & ors (1976) 6 SC 97 at 107; Sokpun v. Agbozo (1951) 13 WACA 241; Atolagbe v. Shorun (1985) 1 NWLR (pt. 2) 360.
Now, coming to the appeal at hand, it is pertinent to peruse the parties pleadings and the evidence adduced thereby in order to determine whether the parties know the quantity and the quality of the disputed land. The description of the disputed land is set out at paragraphs 5a, 5b of the statement of claim as follows: –
“5a. The said land is situate, lying and being at Ida-Anzi along Abia – N.I.I.O.R Road, Igborosun Area and the said land when faced whilst standing on the said Abia – N.I.FOR Road is bounded on the West by Nigerian Institute for Oil Palm Research, on the east by Talabi Olabintan family land now being claimed by the Defendant, on the south by Gbevipede-Hunpe land also now being coveted by the Defendant and on the North by a large swampy land belonging to the plaintiffs family which has over the years served as the natural boundary-between the plaintiffs land and the Ijonton land.
5b. The said land is now more particularly described and delineated in a survey plan N.OT/LA/DA/2000/04 drawn by O. T. Ogunleke, licensed surveyor.”
At paragraph 12, of the same statement of claim, the following was set
up thus:-
“The acts of trespass of the Defendant on the land in dispute got to the knowledge of Oba of Ilogbo and
the Defendant fed the said Oba with a false claim that the land belonged to him consequent upon which
the said Oba purportedly albeit wrongly granted part of the land to the Defendant.
The Respondent averted at paragraphs 27 and 28 of the statement of Defence as follows: –
“27. At this stage the matter was brought to the attention of the Oba In Council at Ilogbo Eremi, which decided that the boundaries of the land originally been bound on the north by swamp, on the south and west by Defendant land and the east by Dosa Toffiho seidu Densu land by (sic) maintained, subject to good behavior by the plaintiffs.
- Soon thereafter, the plaintiffs refused to abide by the decision aforesaid. The Defendant will rely on
the plaintiffs counsel letter of 18th June, 1997 at the trial of this case.”
In support of their pleadings PW I who is the Ist Appellant testified at page 20, paragraphs 23-31 as follows: –
“The Defendant then took the case to the Obas Palace at Ilogbo. The Oba sent for me and after hearing both parties, the Oba sent people to go and see the land. The persons came and shared into two with one portion for the Defendant and one portion for me and the portion given to the Defendant was bigger than mine. I went back to the Oba to express my displeasure at the partitioning of the land by his emissaries as the Defendant has no land in the place.” This piece of evidence is corroborated by the Respondent’s testimony at page 114 paragraph 9-18 where he said: –
“They went to report me to the Oba of Ilogbo. It was Olayemi and the 1st plaintiff that went to report. The Oba sent for us and we all went three times and the Oba sent Chiefs and emissaries to go to the land to investigate and make report of findings. The Chief and emissaries, after investigating, resolved to divide the land into two and they demarcated land into two portions by planting trees and they gave the portion near the swamp to the plaintiffs and the other portion to us. The portion given to the plaintiffs added some extra land that earlier given to their father Hunzabeni by Hunwami. We agreed to this settlement for the sake of peace.”
In further evidence the Respondent enumerated the names of the emissaries of Oba of Ilogbo. Clearly the pieces of evidence given by both sides as quoted above, amount to an admission that both parties know the identity and quality of the land in dispute. There is no way the disputed piece of land would have been shared between the parties if the identity and quantity of the land was not known to the parties. Since the parties are agreed as to the identity of the land in dispute, it does not matter whatever name or names are given to the land or its boundaries. In Ogbu v. Wokoma (2005) 7 SC (pt. 11) 123 at 136, which was cited by learned counsel for the Appellant, the Supreme Court, per Akintan JSC said: .
“The law is also settled that where the parties, by the evidence adduced, both oral and documentary are
ad. idem on the identity of the land in dispute, the fact that different names are given to the land or the area where the land is located is called different names is not fatal to the party claiming such land. See Makanjuola v. Balogun (1989) 5 SC 82.”
It is on the basis of the reasons I have set out herein above, I agree with Chief Oludare Fasae, learned counsel for the Appellant that both the Appellants and the Respondent know the identity, the size, dimension and the area of the disputed piece of land and as such a plan ceases to be an absolute necessity. Even without the plan the matter would have been determine. Since a survey plan is not a necessity here, it follows that a composite plan ceases to be necessary also.
This issue is therefore resolved in favour of the Appellant and the ground I and 2 upon which the issue is formulated are allowed.
The 2nd issue is whether the learned trial Judge was right in holding that the traditional history of the Appellants was inconclusive. This issue is distilled from grounds three and four of the grounds of appeal. To resolve this issue, I wish to take a look at the statement of claim of the Appellants, which I have already set out elsewhere in this judgment.
At paragraph 6 of the statement of claim the Appellants pleaded that their ancestor Late Hunzonnu, a farmer and a hunter of Asupa clan of Igborosun owned the land in dispute which form a larger portion of land from time immemorial.
At paragraph 7 of the same statement of claim the Appellants pleaded that Hunzonnu was the founder of the land, part of which is now in dispute when the said land was a virgin land.
At paragraph 8 of the said statement, the Appellants pleaded that their ancestor with his family hunted in and farmed on the said land, planting food crops, cash crops, annuals, building of huts as well as exercising various acts of possession and ownership over the land without let or hindrance from anyone. Through the various paragraphs, the Appellants pleaded how the land revolved through Hunsu-Jobe, Zannu and Benjamin, the Children of Hunzonnu to Gweloku and Jeremiah who is the 1st Plaintiff herein.
Chief Fasae, learned counsel for the Appellants, submitted on this issue that the Appellants had unequivocally pleaded unbroken genealogy from Hunzonnu who founded the land in dispute and carried out numerous acts of ownership and possession, as such the learned trial Judge was therefore wrong when he held that the traditional history of the Appellants was inconclusive, even though the pleadings were supported by evidence of Appellants witnesses. Learned counsel cited some authorities and urged this Court to resolve this issue in favour of the Appellants. In reply to this issue, Baiyewu Esq. of counsel to the Respondent seemed to have rested his argument on the judgment of the learned trial Judge. He went on to point out where the Appellants’ witnesses testified that all the families that share boundary with the disputed land are from Abia and that the said Ithazi is closer to Abia than Igborosun, and that Abia shares common boundary with his imaginary Ithazi. For these reasons, learned counsel concluded that the disputed land belongs to the Respondent.
From the pleadings of both parties and the subsequent evidence in Court, both the Appellants and the Respondent relied on traditional history. To establish traditional evidence of title by conclusive evidence the Plaintiffs must prove-
(a) who founded the land in dispute;
(b) how they founded the land, and
(c) the particulars of the intervening owners through whom they claim.
See Elegushi v. Oseni (2005)7 SC (pt. 111) 205 at I213-214; Nkado v. Obiano (1997) 1NWLR (pt. 482) 374; Ohieri v. Akabeze (1992) 12 NWLR (pt. 221) 1.
PWI, the 1st Appellant in his evidence at page 89 of the record of this appeal said: –
“My great grand father Hunzonnu was a hunter and a farmer and he first settled on the land in dispute. When he settled on the land he did not meet anybody thereon. He farmed the land and he planted food and cash crops such as cassava and coconut trees. Throughout the period of my great grand father nobody disturbed him on the land.”
PW2, not being a member of Hunzonnu family does not know the genealogy of Hunzonnu. However, PW2 testified that he is a boundary man to the disputed land: PW3 corroborated the evidence of genealogy of Hunzonnu.
Civil cases are decided on preponderance of evidence. PW I and PW3, who are related to Hunzonnu clearly stated in their testimonies that their great grand father founded the disputed piece of land and while on the land he cultivated the soil. The issue of who founded the land has been settled. The Appellants pleaded and gave evidence that their great grand father settled on the land before anybody. So the question of how the Appellants’ grandfather founded the land is also settled. The land was therefore founded by first settlement.
The last and final proof of traditional evidence of title is the particulars of the intervening owners. The Appellants pleaded and led unbroken evidence in that regard.
It is to be noted that this appeal concerns the disputed piece of land. Whether the witnesses gave evidence of the large parcel of land or not, that larger parcel of land is not subject of litigation, although that could assist the Appellants case. The learned trial Judge’s consideration of the evidence of the Appellants’ witnesses at page 15 paragraph 4 amount to picking holes in the parties overall cases which is not permitted in civil cases. The Appellants evidence has clearly established the particulars of the intervening
owners through whom they claim.
The Respondent did not challenge effectively the traditional history of the Appellants. His story is that the disputed land is near Abia as such it rightly belongs to the Abia people. He testified that his grandfather Derin founded Abia, the question is, was the disputed piece of land also founded by Derin? This evidence is clearly absent. The Respondent also failed to call the Gorokoh and Medevo he claimed were resident on the piece of land. If the learned trial Judge had put the evidence of both parties on an imaginary scale, he would have found that the scale no doubt tilted in favour of the Appellants.
On this issue, I therefore hold that the traditional evidence of the Appellants is conclusive. I resolve same in favour of the Appellants and the grounds upon which it is distilled are allowed.
On issues 3, 4 and 5, learned counsel made submissions on long possession of the disputed land. His submission on the issues question the reasons why the Appellants were denied a declaration of title, damages for trespass and injunction at the lower Court even though the learned trial Judge found and held that it was the Appellants who were in possession of the disputed land at the time material to this suit. While issue three was formulated from ground 5, issue 4 was formulated from ground 6 and issue 5 was distilled from grounds 7 and 8.
The trial Judge at page 17 of his judgment, which is at page 161 of the record of this appeal accepted that the Appellants were in possession of the disputed piece of land at the time material to this case. For the avoidance of doubt, this is what the learned trial Judge said: –
“The case of the plaintiff on possession was that the land in dispute was initially possessed, fanned and hunted upon by Hunzonnu, their grand father, and he planted food and cash crops without any hindrance from anybody and that on his death, his three children took over the land and jointly farmed thereon also without any disturbance or hindrance. It was their case that they took over possession of the land from the three children of Hunzonnu and have so remained in possession till date farming thereon and all their crops were on the land and also that at a point in time one Dosa Toffiho, the defendant’s brother went into the land and he was rebuffed by them. Evidence of the plaintiffs’ possession of the land was given by first, third, fourth, fifth, seventh, eighth and ninth plaintiff witnesses and their evidence were not discredited by cross-examination. The Defendant admitted that the plaintiffs were in possession of the land in dispute farming thereon at the time material to this suit. ”
The learned trial Judge, having dismissed the claims for declaration of both parties, could have gone further to deal separately with the claim for trespass and injunction. In Balogun v. Akanji (2005) 3-4 SC 95 at 111 paragraph 3 lines 19-25, the Supreme Court, per Oguntade JSC held that the claim for trespass and the claim for declaration are quite separate and independent of each other. At lines 38 of page 111 of the same case, the learned Jurist had this to say: –
“It is trite law that trespass is essentially a tort against possession and only a person in possession of a land in dispute at all material times can maintain an action in damages for trespass.” See also Oluwi v. Eniola (1967) NWLR 339; Ude v. Chimbo (1998) 9-10 SC 97; Olagbemiro v. Ajagungbade 111 (1990) 3 NWLR (pt. 136) 37; Adejumo v. Brown (1990) 3 NWLR (pt. 141) 661.
I am of the firm view that the trial Judge was wrong in not considering the claims for trespass and injunction.
I have however read through the pieces of evidence or Plaintiffs’ witnesses at the lower Court and I find no evidence of interference by the Respondent with the disputed land. At page 89 of the record, precisely at lines 21-23, PWI testified as follows:-
“The Defendant trespassed on the land and I told him the land does not belong to them. He insisted that it was part of Abia.” It is instructive that this is the only witness that accused the Defendant of trespassing into the land. Mere assertion that someone trespassed into a piece of land is not enough to ground a claim for trespass. The word trespass is a technical word that is used to describe unjustifiable interference with property or person. To establish a claim for trespass, the action of the person accused must be clearly described.
In legal theory, the position is that every unlawful or unauthorized entry into land in the possession of another is trespass for which an action in damages lies even if no actual damage is done to the land or any fixture thereon. So where a person alleges possession, simplifier and proves interference therewith an actionable trespass exist. The Appellants herein did not lead evidence in prove of entry into the disputed piece of land. The claim for trespass was therefore not proved. However the Judge was wrong in his refusal to grant a perpetual injunction restraining the Defendant from interfering with the disputed land. In Oyadere v. Keji (2005) 1 SC (pt 1) 19 at 25 line 27-35, the Supreme Court per Kutigi, JSC (as he then was) held: –
“The Court of Appeal was therefore clearly in error when it proceeded to set aside the entire judgment of the trial High Court not only in respect of relief (1) for a claim for a declaration of title to the land, but also in respect of claims (2) and (3) which are for trespass and injunction respectively. The law is that where the title of both parties are defective as in this case, the court can still find for a plaintiff in an action for trespass if he establishes possession as in the present case.”
In the instant appeal, since the Court accepted that the Appellants possession over the disputed land had been established and having declared that respective claims of the parties were defective, the Court would have granted a perpetual injunction to protect the possessory right of the Appellants.
From the reasons I have set out herein, issues 3, 4 and partly issue 5 are resolved in favour of the Appellants and the grounds upon which they are formulated are hereby allowed.
On the whole therefore this appeal succeeds and it is allowed. The decision of the lower Court is hereby set aside and quashed. In its place I make the following orders: –
- The Appellants are entitled to the grant of a statutory Right of Occupancy in respect of a large piece of land situate at Ithazi along Abia -N. I. F.O.R/DIFFRI Road, Igborosun Badagry Local Government Area, Lagos State described and delineated in the Survey Plan No. OT/CA/DS/2000/04
- An Order of perpetual injunction restraining the Respondent, his agents, servants, assigns and privies howsoever described from committing acts of trespass on the said land.
Cost of Thirty Thousand Naira (N30,000.00) is hereby awarded to the Appellant.
Other Citations: (2007)LCN/2518(CA)
