Yesufu Oyedoke & Ors. V. The Registrered Trustees of Christ Apostolic Church (2000)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
This is an appeal against the judgment of Osun State High Court of Justice sitting at Osogbo in suit No. HOST 142/88 delivered on the 19th of July, 1993.
The facts of the case briefly put are that the plaintiffs now respondents before this court sued the defendants now appellants before this court jointly and severally for:-
- The sum of N50,00 being general damages for trespass committed and being committed by the defendants, their servants, agents and, privies on the plaintiffs’ land and premises at Ede in that sometime in November, 1988, the defendants and their servants, agents or privies wrongfully broke and entered upon the plaintiffs land and premises situate, lying and being at Talafia quarters Ede, Oyo State of Nigeria demolished the plaintiffs cement blocks thereon. The said land and premises have at all times being in the lawful possession of the plaintiffs.
- A perpetual injunction restraining the defendants, agents and/or privies from further going upon the said land and premises from committing further acts of trespass thereon.
Pleadings were filed and exchanged by the parties. Plaintiffs case in line with their pleadings, was that the land in dispute situate at Talafia quarters, Ede was granted to the Christ Apostolic Church Ede in 1939 by Timi Sanusi Akangbe. The members of the church who requested for the land were Pastor Odubanjo, Apostle Babalola, Prophet Babajide and Pastor Hanson. The plaintiffs erected tents on the land in 1940 for Revival services. In 1942, a small church and vicarage were built on the land. In 1944, a school was founded thereon. In 1949 the plaintiffs commenced the building of a large church on the land and this was extended to accommodate a Bible College in 1953. In 1958, the plaintiffs caused Chief Abolade Coker to survey the land and he produced the plan Exhibit A. He produced the litigation plan Exhibit A1 for the plaintiffs in 1989. In 1967 Oba Laoye the Timi of Ede executed a Deed of Conveyance Exhibit A2 in respect of the disputed land in favour of the plaintiffs. In 1980 the C.A.C Grammar School was established on the land. Ede Local Government encroached on a portion of the land in 1980 to which the plaintiffs protested.
The 3rd defendant witness started to sell portions of the land in 1980, and the 4th defendant witness started to erect a building on the land. The plaintiffs prevented these moves. In 1984 the plaintiff’s erected barbed wire fence round the land. The defendants removed part of the fence to erect foundations of houses on the land. The move was brought to the notice of the police. In 1986 the plaintiffs built the Women Bible College, a Nursery and Primary School, Children’s Church, Hostel and a Hall for Good Women Society on the land in dispute. The plaintiffs improved the land further by erecting a wall fence round it. The 2nd, 3rd and 4th defendants/appellants destroyed a portion of the wall and 400 cement blocks. The incumbent Timi of Ede – Oba Oyewusi Agbonran 11 and the 6th defendant witness testified before the court that prior to the promulgation of the Land Use Act, 1978, all land in Ede was vested in any reigning Timi. Anybody who wants to use land must get a grant from him. That the land in dispute was granted to the plaintiffs by Timi Sanusi Akangbe which was confirmed by the Timi that the disputed land had never been Folarin Family land. The defendants/appellants on their part maintained that the disputed land is Folarin Family land and not Timi Chieftaincy or Stool land. They however admitted that Oba Sanusi Akangbe a member of the Folarin Family granted a parcel of the land verged green in Exhibit C to the plaintiffs sometime ago. Timi Akangbe granted the land to the plaintiffs in his capacity as a principal member of Folarin Family. The defendants/appellants conceded the small portion to the plaintiffs. The appellants denied the trespass alleged to have been committed by them. The 3rd defendant Aliu Dodo stated that the Folarin Family… granted a portion of the land verged yellow on Exhibit C to his grandfather called Eboyomi. The grant was made during the reign of Timi Olanisebe. A plot out of this land was granted to Seidu Raimi, the 6th defendant witness on which he was then erecting a building. Alimi Akinloye, a member of Folarin Family however testified about the grant to the plaintiffs/respondents as an outcome of which their cocoa, palm-trees, kolanut-trees on the land were destroyed without paying compensation to them. The learned trial Judge after consideration of the evidence before him found in favour of the plaintiffs/respondents and ordered as follows:-
- Judgment in favour of the plaintiffs against the defendants in the sum of N1,000 being general damages for trespass committed by the defendants, their servants, agents or privies on the plaintiff’s land covered by the property plan attached to Exhibit A2.
- A perpetual injunction restraining the defendants, agents and/or privies from further going upon the said land to commit further acts of trespass thereon:-
Being dissatisfied with this foregoing decision of the learned trial Judge the defendants appealed to this court. The defendants/appellants filed these grounds of appeal herein below stated:-
- That the learned trial Judge erred in law and on the basis of the native law and custom of tenure of land which was not pleaded.
PARTICULARS OF ERROR
(i) Whereas the learned trial Judge award the possessory title of the land in dispute to the plaintiffs on the basis of the evidence that all the land in Ede is Timi Stool land and it is vested in any reigning Timi who alone can alienate it at his pleasure – that fact was not pleaded.
(ii) Evidence not based on the pleadings before the court should be ignored.
- The learned trial Judge erred in law to have awarded the title of the land in dispute to the plaintiff on the basis of the conveyance arising from the grant which the learned trial Judge himself found not to have been proved.
PARTICULARS OF ERROR:
(i) Whereas the pleadings and evidence of the plaintiff was to the effect that the land granted to them in 1939 by Oba Sanusi Akangbe the learned trial Judge found that the grant was not proved but he went further to award the title of the land to the plaintiff on the basis of a conveyance executed about 30 years later by another Oba.
(ii) Subsequent deed of conveyance cannot cure a grant that was void and of no effect under native law and custom.
- The learned trial Judge erred in law to have awarded title to the land in dispute to the plaintiffs who did not show that they have locus standi to institute the action either under the Land (perpetual Succession) Act Cap. 98 Laws of the Federation of Nigeria or of Companies and Allied Matters Decree 1990.
PARTICULARS OF ERROR:
(i) Whereas the plaintiffs by paragraph 1-3 of their statement of claim stated that they are a body corporate registered under the land (perpetual Succession) Act, the defendants by paragraph 2 of their statement of defence denied the fact yet the plaintiffs have failed to prove that they are the Trustees of the Organisation or that they had the consent or authority of the trustees to institute the action.
(ii) The trustees are empowered to institute action on behalf of the corporate body.
(iii) The trustees must by resolution authorize the legal practitioner to institute the action.
The defendants/appellants from the foregoing grounds of appeal formulated three issues for determination in their brief filed on 7/11/94. All the issues relate to the grounds of appeal. These issues are:-
- Whether the lower court was right to have accepted and based its judgment on the evidence of native law and custom that was not pleaded.
- Whether a grant of land found to be defective and therefore invalid under native law and custom under which it was made could be validated by a subsequent deed of conveyance executed in favour of the grantee by the successor in title.
- Whether the plaintiff has locus standi to institute and prosecute the action.
The plaintiffs/respondents in their brief of argument filed on 23/12/94 formulated only one issue for determination as follows:-
Whether having regards to or upon all the evidence before the Trial Court in this case the learned trial Judge was right in entering judgment in favour of the respondents.
I am of the candid opinion that this single issue formulated by the plaintiffs/respondents embraced all the three issues for determination in the appellant’s brief. I intend to adopt same for the purpose of this appeal. It is pertinent at this initial stage to examine the claims – which are damages for trespass and injunction. An action for trespass will avail anybody in possession of land. The slightest possession in the plaintiff enables him to maintain an action for trespass in a situation where the defendant cannot show a better title. Evidence of possession however slight must be able to establish exclusive possession. Possession in law for the purpose of an action in trespass must be exclusive because if it is not exclusive, the law will not protect it. Trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing a trespass is to say that the defendant broke and entered the plaintiff’s land and did damage. Whether or not the act proved is sufficient to establish possession is a question to be decided on the merit of each case. Instances of cultivation of a piece of land, erection of a building or a fence, and even demarcation of land with pegs at its corners have all been held to be evidence of possession. A person can be in possession through a third party such as servant, agent or tenant. A possession by a predecessor in title is in law deemed to be continued by his successor. Where the title of both parties to all action is defective, the court can still find for the plaintiff in an action for trespass if he establishes possession. Okolo v. Ozoka (1978) 4 SC77; Alatishe v. Sanyanolu (1972)2 SC 97; Adebayo v. Ighodalo (1996)5 NWLR (pt.450) 507; Akinyili v. Ejidike (1996) NWLR (Pt.449) 38; Ajero v. Ugorji (1999) 10 NWLR (Pt.621) 1.
A perpetual injunction is based on final determination of the rights of parties and it is intended to prevent permanently infringement of those rights and obviate the necessity of bringing an action after action in respect of every such infringement.
Once there is a finding for trespass an injunction must be granted so as to protect the possession in a party. Enang v. Adu (1981) 11-12 SC 25; Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578.
But once a defendant claims to be the owner of the land in dispute, title is put in issue, and in order to succeed the plaintiffs must show a better title. Jiaza v. Bamgbose (1999) 7 NWLR (Pt.610) 182.The competing nature of the claims of the parties in this instant case (for trespass and injunction) title has been made an issue either of the parties must show that he was not only in possession of the land at the time of the trespass but that his title to the land in dispute is better than that of the other party. Amakor v. Obiefuna (1974) 3 SC 67; Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370; Idesoh v. Ordia (1997) 3 NWLR (Pt.491) 17.
Before going into the conclusion of the learned trial Judge as regards the title of the parties, I shall refer to the pleadings and evidence of the parties. The plaintiffs/respondents in their statement of claim stated as follows:-
Paragraph 6:
The plaintiffs are the owners in possession of all that piece or parcel of land shown edged red on Exhibit A and have at all times material to this action been in exclusive possession of same.
Paragraph 7:
The aforesaid land was originally granted to the plaintiffs according to Native Law and custom by a former Timi of Ede, Oba Akinyeluwa Sanusi Akangbe sometimes in 1939.
Paragraph 9:
All succeeding Timi of Ede acknowledged the said grant and the right of ownership and possession of the plaintiffs over the said land.
Paragraph 10:
Sometime in 1958, the plaintiff caused the said land to be surveyed by a licensed surveyor, Chief A. O. Coker and survey plan CK.44/58 was produced and all the boundaries of the said land were marked with numbered survey pillars as shown on Exhibit A.
Paragraph 11:
Sometime in 1967 the then reigning Timi of Ede, Oba Akinyeluwa Adetoyese Laoye executed a Deed of conveyance with survey plan CK.44/58 attached, of the said land in favour of the plaintiffs.
The said Deed of Conveyance which is registered as No. 26/26/1009 in the Lands registry Ibadan is hereby pleaded. In the evidence PW2 at page 12 lines 16-18 of the records said:-
In 1939 the church elders of CAC Ede got the land from Oba Sanusi Akangbe – the Timi of Ede.
PW 3 at page 13 lines 34-35 stated:-
The land was given to CAC Mission Ede in 1939 by Oba Timi Sanusi Akangbe.
PW4 confirmed this grant on page 16 lines 41-43.
PW5 on page 16 lines 38-43 said that:-
Timi owns the land in dispute and the land was granted to CAC by Timi Sanusi Akangbe.
The witness who is a prince said emphatically that the land in dispute is a chieftaincy land, and he mentioned three names of CAC members to whom Timi Akangbe handed over the land as Marian Iya Ife, Akande Are Onibon, and J.O. Adeniran. The 6th PW – the incumbent Timi Oba Tijani Oladokun Oyewusi gave evidence of the system of land tenure in Ede which vested all land in the reigning Timi. He said that everyone who wants a piece of land has to apply to the Timi for it. A grant for farming purpose may be revoked for the development of the town to accommodate residential buildings. He acknowledged the grant of the land in dispute to the CAC and that Oba Tijani Akangbe who granted the land was an educated person.
The defendants/appellants in their statement of defence denied the respondent’s claim to ownership of the land in dispute and that the survey plan attached by them has no relationship with the land in dispute. The appellants held in their statement of defence as follows:-
Paragraph 4:
The land in dispute is as shown on Plan No. ASY-CD 003/89 attached to this statement of defence and it is hereby pleaded.
Paragraph 5:
The land in dispute is family land.
Paragraph 7:
With regard to paragraphs 10 and 7 of the statement of claim the defendants deny paragraph 6 of the statement of claim and state that the land granted to Babalola, the founder of CAC in 1939 by Oba Sanusi Akangbe represent Folarin Family as shown and verged green on survey plan No. ASY-LD 003/89 attached herewith.
Paragraph 8:
The grant was made by Folarin Family represented by Oba Akangbe as a member of the family and not in his capacity as Timi of Ede. In fact, the land was formally handed over to Babalola by Mogaji Landiyan Ayoola, Ladosu and Kolawole members of Folarin Family.
Paragraph 11:
With reference to paragraph 9 of the statement of claim which is denied by the defendants, the land is neither stool land or community land.
Paragraph 17:
The reluctance of Pastor Akande to pay compensation for the defendant’s family land was later reported to the reigning Oba of Ede H.H. Oba Tijani Oyewusi Agboran II.
Paragraph 32:
The area marked yellow…on the land in dispute was granted to Eboyomi the ancestor of the 3rd and 4th defendants long before the grant of the area marked green was granted to Babalola for establishment of a church.
Eight witnesses who gave evidence for the appellants confirmed the foregoing. Both parties tendered plans. After appraisal and findings of the learned trial Judge, he concluded as follows:-
It is however trite that, native law and custom is a matter of evidence to be decided on the facts before the court in each particular case except it is so notorious that judicial notice would be taken of it without evidence required in proof. Giwa v. Erinmilokun (1961) All NLR 294, (1961) 1 SCNLR 377. That being so, I prefer and accept the evidence of the plaintiffs that all the land in Ede is Timi Stool Land, and it is vested in any reigning Timi, who alone can alienate it at his pleasure. I do not accept the defendants evidence that the land in Ede belongs to individual family. It therefore follows that, the radical title of the disputed land is vested in the Timi of Ede.
The foregoing knocked the bottom out of the defendant’s claim that the disputed land belongs to the Folarin Family who made a grant of it to the CAC through Babalola for the purpose of building a church.
The learned trial Judge held that the grant made in 1939 could only have been by native law and custom. On page 36, lines 4-13 he said:-
It is however settled law that, to pass a valid title under native law and custom there must be payment of purchase price or customary tribute and delivery of possession in the presence of witnesses to the grantee which in this case are the plaintiffs. Adesanya v. Otueru (1991) 1 SCNJ 77. In the case in hand, there is not a scintilla of evidence that the plaintiffs paid any purchase price to Oba Sanusi Akangbe the Timi of Ede in 1939. I therefore hold that as at 1939 the plaintiffs had no valid title to the land in dispute.
In another breath the learned trial Judge referred to one of the five ways of proving ownership which is by production of documents of title which must be duly authenticated in the sense that their due execution must be proved. The plaintiff tendered in the court of trial Exhibit A2 which is the conveyance between the plaintiffs and his Royal Highness Oba Laoye, the Timi of Ede by which the land in dispute was conveyed by Oba Laoye to the plaintiffs in 1967. The learned trial Judge found that Exhibit A. The Deed of Conveyance granted to the plaintiffs a valid title to the disputed land. Since 1967 the plaintiffs/respondents had taken possession and exercised numerous acts of ownership on the disputed land by…building a Grammar School, Women Bible College, Nursery and Primary School, Hostel and hall for Good Women Society. From the foregoing the learned trial Judge held on page 36 lines 34-37 of the records that:-
On account of the foregoing, I hold that the plaintiffs being in exclusive possession of the land and more importantly being its owner can maintain an action in trespass against the intruder.
This follows the decision of the Supreme Court in the case of Ajero v. Ugorji (1999) 10 NWLR (Pt.621) 1 at 16 paragraphs G-H that:-
Where the title of both parties is defective, the court can still find for the plaintiff in an action for trespass if he establishes possession.
I find it convenient at this stage to consider the issue for determination in this appeal which is whether having regard to or upon all the evidence before the trial court, the learned trial Judge was right in entering judgment in favour of the respondent.
As the issue embraced all the three issues raised by the appellants I shall first and foremost consider them.
The first issue is whether the lower court was right to have accepted and based the judgment on the evidence of native law and custom that was not pleaded.
The learned counsel for the appellant Mr. Tunji Abolade referred to the evidence on page 35 lines 36-41 of the records, and particularly where the learned trial Judge held that he preferred and accepted the evidence of the plaintiffs that the land in Ede is Timi Stool Land and it is vested in any reigning Timi who alone can alienate it at his pleasure.
In his reply the learned respondents counsel Mr. Fayokun referred to paragraphs 6, 7 and 8 of the statement of claim to indicate that the respondents pleaded and gave evidence in respect of a grant according to native law and custom. I found that the plaintiffs/respondents adequately pleaded grant according to native law and custom in paragraph 7 of the records and called six witnesses who all gave over-whelming evidence in support of this grant including the incumbent Timi of Ede, Oba Tijani Oladokun Oyewusi Agboran II, who himself is the custodian of native law and custom in his domain. He referred to the fact that the grant was made under the native law and custom of Ede people. I shall quote paragraph 7 by way of emphasis:-
Paragraph 7:
The aforesaid land was originally granted the plaintiffs according to native law and custom by a former Timi of Ede, Oba Alaiyeluwa Sanusi Akangbe sometimes in 1939.
Even the defendants/appellants admitted this grant, though their contention was that the land was granted as a property of Folarin Family and not as stool land as claimed by the plaintiffs/respondents and accepted by the learned trial Judge.
The second issue raised by the appellants was whether a grant of land found to be defective and therefore invalid under the native law and custom under which it was made could be validated by a subsequent deed of conveyance executed in favour of the grantee by the successor-in-title of the grantor. The learned counsel for the appellants referred to the evidence adduced in support of the grant of the land in dispute to the respondents according to native law and custom in 1939 by Timi Sanusi Akangbe. The learned trial Judge thereupon concluded that: I therefore hold that as at 1939, the plaintiffs had no valid title to the land in dispute page 36 lines 12-14. He gave the reason on page 36 lines 9-12 when he stated that:- In the instant case, in hand there is not a scintilla of evidence that the plaintiffs paid any purchase price to Oba Sanusi Akangbe the Timi of Ede in 1939.
The learned trial Judge according to the learned counsel went further to give judgment in favour of the plaintiffs based upon a Deed of Conveyance executed in 1967 by the successor of the grantor of the land in 1939.
The same Judge which held the grant in 1939 to be invalid held the deed of conveyance to be capable of validating the invalid grant. The learned counsel whereupon concluded that:-
(1) No deed of conveyance can validate an invalid grant.
(2) Grant of land under native law and custom as at 1939 could not be made by deed of conveyance without a prior grant made under the native law and custom of the area where the land is situated.
The learned counsel for the respondents maintained that the respondents acquired title to the land in dispute on two basis:-
(1) By customary grant from Timi Sanusi Akangbe in 1939.
(2) Through Conveyance by Timi Adetoyese Laoye in 1967.
Immediately after the customary grant in 1939, the respondents took immediate possession of the land and exercised various acts like surveying, planting survey pillars, building churches and schools, burying their dead, controlling the land to the exclusion of everybody and all others which acts gave the impression that they are owners of the land. The learned counsel for the respondents emphasised the fact that even the appellants acknowledged the grant of 1939 made by Sanusi Akangbe. Even the trial Judge was satisfied about this grant.
On page 36 lines 26-27, the learned trial Judge concluded that Exhibit A2 is a valid deed of title. Since 1967 after execution of the conveyance the plaintiffs/respondents had continued to exercise numerous acts of ownership on the land. The pleadings of the parties and the evidence before the court show that the parties did not see the grant of 1939 as an invalid grant. The plaintiffs/respondents enjoyed quiet possession of the land between 1939-1967. Numerous acts of improvement were carried out on the land; the appellants recognised that the land was granted to the respondents though they later contested the extent of the grant as at 1980.
It is apparent that the appellants were aggrieved about the grant because Akande Baba Abiye did not carry out his promise to pay compensation in respect of their crops on the land.
The learned trial Judge declared the customary grant of 1939 as invalid because there was no slight evidence of payment of purchase price in respect of the land by the respondents. The learned trial Judge overlooked certain facts before declaring the grant of 1939 invalid – because of lack of payment of purchase price for the disputed land in the face of overwhelming evidence that both parties admitted this grant. In the case of Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) pg 745.
Where a party bases his title on a grant according to custom by a particular person, family or community that party must go further to plead and prove the origin of the title of that particular person or family or community unless that title has been admitted. Where the title of the plaintiff is admitted the burden shifts on the defendant to prove a better title.
Asuquo v. Etim (1995) 7 NWLR (Pt. 405) pg 104; Ikeguoha v. Ohawuchi (1996) 3 NWLR (Pt435) pg 146. Secondly, it is a notorious fact that in a grant of land under native law and custom in Yoruba land prior to the Land Use Act where the land is required for the erection of infrastructures which would enhance the status of a community and would be beneficial, like the establishment of schools, hospitals etc by religious organisations, charitable bodies the land for that purpose would be granted to the satisfaction of the grantees and free of charge. It is part of the custom that as at the time the grant of the land was made in 1939, the C.A.C, the respondents, would pay nothing for the land as their aims and objectives as demonstrated by the erection of various structures now on the land were to further education and Religion at Ede.
Thirdly, it is another notorious fact that prior to the promulgation of the Land Use Act; you can acquire a valid title to land by executing a deed of conveyance. The deed of conveyance is always preceded by a customary grant of the land where it is purchased from a family for private use.
The deed of conveyance has to be executed by anybody who has an interest in the land. It bestows a valid title on the purchaser of land in the same manner as the certificate of occupancy in the post 1978 acquisitions. In effect no vendor or vendee of land would execute a deed of conveyance unless and until all the conditions precedent have been perfected. By way of digression, execution of the 1967 deed of conveyance by another Timi of Ede is an eye-opener to the fact that the land in question is a stool land. This supports the conclusion of the learned trial Judge that the respondents have proved a better root of title to the land in dispute. If the learned trial Judge had given a mere juristic approach to the evidence at his disposal he would not have declared the 1939 grant as invalid. I do not regard his approach as fatal to the case of the respondents. On the sum total what the learned trial Judge did was to give recognition to Exhibit A2 which gave a valid root of title to the respondents as from 1967. Since 1967 the respondents had exercised numerous acts of ownership and possession on the disputed land upon which the respondents could maintain an action in trespass against the appellants vide page 36 of the record lines 26-37. This root of title was pleaded in paragraph 11 of the statement of claim while the witnesses gave ample evidence of same. It would in my view had occasioned a miscarriage of justice to the respondents if the learned trial Judge had shut his eyes to the document after it was properly admitted or refused to act on the contents. After all there are five independent ways of proving title to land as expounded in Idundun v. Okumagba (1976) 9/10 SC 221 namely:-
(1) Proof by traditional evidence.
(2) Proof by production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody.
(3) Proof by acts of ownership, in and over the land in dispute such as selling, leasing, making grant, renting out of any part of the land or farming on it or a portion thereof extending over a sufficient length of time numerous and positive enough as to warrant the inference that the persons exercising such proprietary acts are the true owners of the land.
(4) Proof by acts of long possession and enjoyment of the land which prima facie may be regarded as evidence of ownership.
(5) Proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
Onwuegbufor v. Okoye (1961) 1 NWLR (pt.242) 252. What the learned trial Judge was trying to establish was that out of the two parties with competing claims, who could maintain an action in trespass. The learned counsel for the appellants further held that the respondents have no locus standi to institute the action contrary to paragraphs 1-3 of the statement of claim as one of the witnesses called by the respondents was a registered trustee, and none of the witnesses produced the Certificate of Incorporation of the plaintiffs. None of the witnesses produced evidence that the registered trustees authorised the action as required by law section 679 and 694 of the Companies and Allied Matters Decree 1990. The learned counsel referred to the cases of Apostolic Church of Ilesha v. A.G. Mid-West (1972) 4 SC 150. Adeagbo Ode & ors v. Registered Trustees of the Diocest of Ibadan (1966) 1 All NLR 287 at 288.
In his reply the learned counsel for the respondent held that the appellants misconceived the issue in that the respondents sued in their corporate name. The applicable law at the time the cause of action arose was the land (Perpetual Succession) Act Cap 98 of the Laws of the Federation of Nigeria and Lagos 1958. Section 2(3) of the said law empowers the respondent to sue and be sued in their corporate name. The respondents as a legal entity can prove its case through other witnesses. Further, a plaintiff need not be a witness in his own case if and where he can produce sufficient evidence in proof of his case. The certificate of incorporation was tendered by the 2nd plaintiff’s witness from the Headquarters of the plaintiffs/respondents while the document was admitted in evidence as Exhibit B with the consent of the defendants/appellant’s counsel then page 11 lines 12-25 of the records. The appellants did not raise the issue of giving authority to prosecute on behalf of the trustees. No issue was joined on this in the pleadings and before the trial court. The Companies and Allied Matters Decree 1990 does not oppose the proceedings before the trial court as the Decree was not in existence then. This 1990 Act repealed the Land Perpetual Succession Act. Section 2(3) of the Land Perpetual Succession Act is in pari materia with section 679 of the 1990 Companies Decree. The learned trial Judge made a specific finding on this issue in his judgment at page 37 lines 11-16 of the Record of Appeal the finding has not been challenged in this appeal. The learned counsel cited the case of Adigun v. Ayinde & ors (1993) 11 SC SCNJ 1; (1993) 8 NWLR (pt.313) 516.
British and French Bank Ltd v. Salal..el Assad (1967) NMLR 40; Potter Dapub v. H. B. Kolo (1993) 12 SCNJ 11 ;(1993) 9 NWLR (Pt.317) 254;Olanrewaju v. Governor of Oyo State (1992) 11-12 SCNJ 92; (1992) 9 NWLR (Pt.265) 335. The ordinary dictionary meaning of locus standi is place of standing to interfere. In the legal parlance, the ‘term locus’ standi denotes the legal right of a party to an action to be heard in litigation before a court of law or tribunal. The term entails the legal capacity of instituting, initiating or commencement of an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever including the provisions of any existing law. Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) pg 704; Ogunmokun v. Military Administrators Osun State (1999) 3 NWLR (Pt.594) 261. When a party’s standing to sue is in issue in a case, the question is whether the person whose standing is in issue is a person to request an adjudication of an issue and not whether the issue itself is justifiable. The question, whether or not a claimant has justifiable interest or sufferance of injury or damage depends on the facts and circumstances of each case. By virtue of section 6(6) of the 1979 Constitution of the Federal Republic of Nigeria, a defendant has a right to challenge the locus standi of the plaintiff and to question the civil rights and obligation thereof. The defendants/appellants in exercising this right are objecting to the respondent’s standing to sue in this action for the following reasons:-
It has not come under the proper law, none of the members of trustees appeared in court as a witness, witnesses were independent people and that there was no authority to sue. For the avoidance of repetition I adopt the foregoing reply of the learned counsel to the respondent and add that a legal entity, who has a capacity to sue and be sued under the law, can adopt any system of prosecuting his case including the calling of witnesses which will be favourable to his case. Exhibit B was admitted in evidence by consent of counsel. For a person to have locus standi in an action, he must be able to show that his civil rights and obligations have been or are in danger of being infringed. The respondents obviously fall into this group before the trial court. On page 37 lines 11-16, the learned trial Judge found Exhibit B the certificate of incorporation, as evidence that the plaintiffs/respondents were properly incorporated under the perpetual succession Act. I will make haste to agree with this contention. In this appeal the respondents are instituting and prosecuting this action under their name and by themselves and they therefore do not require issuing any letter of authority.
In the final analysis it is apparent that in the appraisal of facts, findings and conclusion of the learned trial Judge he was mindful that the claim before him was for damages for trespass and injunction, but the pleadings of the parties had put in issue title to the disputed land. In the circumstance, the law required him to resolve the question of title and anybody adjudged to have a better title to the land is deemed to have its possession, and he is the person who can successfully maintain an action in trespass. He rested on the case of Adesanya v. Otuewu (1993) 1 SCNJ 77; (1993) 1 NWLR (Pt.270) 414 that:-
It is true as a matter of legal theory that every unlawful and unauthorised entry on 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 on it. So where a person alleges to have possession and proves interference with it, there is an actionable trespass. But also our law imputes possession to title. A person who has title can maintain an action in trespass against anyone save one who can prove a better title, so in a case such as this in which title was put in issue, the decisive question is who proves a better title.
Aromire & ors v. Awoyemi (1972) SC 1. The plaintiffs/respondents claimed title on two basis:- the customary grant of 1939 by Timi Sanusi Akangbe and the conveyance by Timi Adetoyese Laoye in 1967. In both instances the respondents went into possession. The customary grant was acknowledged and not disputed by the parties the opinion of the learned trial Judge was that it did not pass a valid title as there was no evidence of payment of purchase price. He held that the deed of conveyance Exhibit A2 however conferred a valid title on the respondent. He held that as the appellants failed to establish their root of title to the land they cannot pass title to the 3rd and 4th appellants. The learned trial Judge correctly applied the right test in this case by examining whether the respondents had established exclusive possession or title to qualify them to a claim in trespass and injunction. Exhibit A2 Deed of Conveyance made no reference to any previous grant; neither did it say that it was made in furtherance of a grant made in 1939. The learned trial Judge did not state or hold in his judgment that Exhibit A was capable of validating the invalid grant. He considered Exhibit A2 independently of the customary grant in the course of adjudging title and/or possession to either of the parties. As already pointed out earlier on in this judgment – customary grant or production of document – Deed of Conveyance are two of the five ways of acquiring title to land. The respondents, a body corporate, came into existence under the Land (perpetual Succession) Act Cap 98 of the Law of the Federation of Nigeria 1958, and as a registered corporate body can sue and be sued in its corporate name vide Exhibit B.
Once an appellate court has accepted the evaluation of evidence by a trial court, and its resultant conclusion, it cannot resile from such acceptance and embark on a fresh re-assessment and evaluation of the same evidence in order to substitute its own views for that of the trial court unless such findings are found to be perverse. Akinloye v. Eyiyola (1968) NMLR 92; Woluchem v. Cudi (1981) SC 291; Awoyale v. Ogunbiyi (1986) 2 NWLR (pt.24) 626; Adeyeri v. Atanda (1995) 5 NWLR (Pt.397) 512; Nwankpu v. Ewulu (1995) 7 NWLR (Pt.407) 269; Onyejekwe v. Onyejekwe (1999) 3 NWLR (pt.596) 482.I am in agreement with the learned trial Judge that there was ample evidence to establish that the respondents were in exclusive possession and even had better title to the disputed land to be entitled to judgment in damages for trespass and injunction. This appeal has therefore failed. The judgment of the lower court is hereby affirmed. I award a cost of N3000 in favour of the respondents against the appellants.
Other Citations: (2000)LCN/0655(CA)
