Legalpedia Electronic Citation: LER SC.273/2013
APPEAL NO: SC.273/2013
AREAS OF LAW: ACTION, APPEAL, LAND LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS:
The Appellant’s case is that the Ikolaba Ayoola Family became seised of the land in dispute vide a grant by Soun Kumoye, the Soun of Ogbomoso, to their ancestor, Ikolaba Olufimo and that upon his demise, the land devolved on his children and grandchildren who successively exercised acts of ownership thereon. In 1984, the Premier of the then Western Region and the Baale of Ogbomoso approached the 1st Appellant’s family for the release of the land for the establishment of a farm school.
The land was released on the basis of a “negotiated acquisition” and the farm school was established. Subsequently, another portion of the land was acquired for £460, by the Government of the Western Region and same was published in the Western Region of Nigeria Gazette No.3 Vol. 9(Exhibit 33). Both lands were merged to be collectively known as Ogbomoso Farm Settlement (Old Farm School and Ogbomoso Farm Settlement) respectively. It was contended that after the demise of his predecessor in title and after he had been installed as traditional ruler of Ijeru, the 1st Respondent wrote to the government of Western Region seeking the release of the Old farm school land.
The Appellants contended that the 1st Respondent had trespassed on the land even before he wrote to request for its release by selling portions to third parties. Despite protests from the 1st Appellant’s family and the farm settlement officer against the acts of the trespass, 55% of the land was released to the 1st Respondent, while the government retained 45%.The Appellants’ contended that the release of the land to the 1st Respondent did not take into account the interest of the farmers who had been granted portions of the land by the government upon the payment of prescribed fees as ground rent and that in a bid to sell off the land, the 1st Respondent destroyed the farmers crop hence, they approached the court seeking declaratory reliefs and N50 million being damages for trespass.
The 1st Respondent on the other hand claimed that the Old Farm School land belongs to his family and that it shares a boundary with the Farm Settlement. The learned trial judge visited the locus in quo at the close of the case for the defence. After considering the addresses of counsel, the learned trial Judge entered judgment in favour of the Plaintiffs and granted all their reliefs. Dissatisfied with the trial court’s judgment, the 1st Respondent lodged its appeal at the Ibadan Division of the Court of Appeal where same was allowed. Aggrieved by the decision of the lower court, the Appellant has filed this appeal.
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ISSUES FOR DETERMINATION:
DECLARATORY RELIEF- DUTY OF A PARTY SEEKING DECLARATORY RELIEFS
“The position of the law is that where a party seeks declaratory reliefs, he must succeed on the strength of his own case, and not the weakness of the defence, if any. See: Dumez Nig. Ltd, Vs Nwakhoba (2008) 18 NWLR (Pt.1119) 361: Bello Vs Eweka (1981) 1 SC (Reprint) 63: Emenike Vs P.D.P. (2012) 12 NWLR (Pt.1315) 556: Ilori Vs Ishola (2018) LPELR-44063 (SC). A declaratory relief must be proved to the satisfaction of the court notwithstanding default of defence or any admission in the defendant’s pleading. See: Okoye & Ors Vs Nwankwo (2014) 15 NWLR (Pt-1429) 93: Eguamwese Vs Amashizemwen (1993) 9 NWLR (Pt.315) 1 @ 30”. PER K. M. O. KEKERE-EKUN, J.S.C.
PROOF OF TITLE TO LAND – NATURE OF PROOF OF TITLE TO LAND WHERE COUNTER CLAIM IS NOT FILED BY A DEFENDANT
“Furthermore, where the defendant does not file a counter claim, the burden is heavier on the claimant to prove his title to the land in dispute. The defendant has no duty to prove his own title to the disputed land. See: Onovo Vs Mba & Ors, (2014) 14 NWLR (Pt.1427) 391: (2014) LPELR-23035 (SC) @ 73 B – D: Elias Vs Disu (1962) ALL NLR (Pt.1) 214 @ 220: Kodilinye Vs Odu 2 WACA 336 @ 337 – 338: Idundun Vs Okumagba (supra).” PER K. M. O. KEKERE-EKUN, J.S.C.
PLEADINGS – PARTIES AND THE COURT ARE BOUND BY THE PLEADINGS FILED IN A SUIT
“Another important principle of law is that both the parties and the court are bound by the pleadings filed in a particular suit. The parties cannot go outside their pleadings to introduce evidence nor can the court cannot go outside the pleadings to decide the issues in controversy in the matter.” PER K. M. O. KEKERE-EKUN, J.S.C.
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EVIDENCE- STATUS OF EVIDENCE GIVEN ON FACTS NOT PLEADED
“It is equally trite that evidence given on facts not pleaded goes to no issue. See: American Cynamid Co. Vs Vitality Pharmaceuticals Ltd. (1991) 2 NWLR (Pt.171) 15: Obmiami Brick & Stone (Nig.) Ltd. Vs A.C.B. Ltd. (1992) 3 NWLR (Pt.229) 260: Adejumo Vs Ayantegbe (1989) 3 NWLR (Pt.108) 417: Onwuka Vs Omogui (1992) 3 NWLR (Pt230) 393.” PER K. M. O. KEKERE-EKUN, J.S.C.
CLAIM FOR DECLARATION OF TITLE TO LAND- WAYS OF PROVING A CLAIM FOR DECLARATION OF TITLE TO LAND
“In a claim for declaration of title to land, the claimant may prove his case in any of the following ways:
See: Idundun Vs Okumagba (supra); Nkado Vs Obano (1997) S SCNJ 33 @ 47; Owhonda Vs Ekpechi (2003) 9-11 SCNJ 1 @ 6.” PER K. M. O. KEKERE-EKUN, J.S.C.
TRESPASS TO LAND – MEANING OF TRESPASS TO LAND
“Trespass to land is a wrongful entry into the land in actual or constructive possession of another. See: Olaniyan Vs Fatoki (2003) 13 NWLR (Pt.837) 273 @ 278: Eneh Vs Ozor & Anor. (2016) LPELR-40830 (SC) @ 24 – 25 B – D.” PER K. M. O. KEKERE-EKUN, J.S.C.
CLAIM FOR TRESPASS- NATURE OF A CLAIM FOR TRESPASS
“A claim in trespass is rooted in exclusive possession and all that a claimant needs to prove is that he has exclusive possession of the land in dispute. Once a defendant claims ownership of the same land, title is put in issue and for the plaintiff to succeed he must show a better title than that of the defendant. See: Amakor Vs Obiefuna (1974) 1 NMLR 313 @ 336; Aromire Vs Awoyemi (1972) 2 SC 182: Ude & Ors. Vs Chimbo & Ors. (1998) 12 NWLR (Pt.577) 169; Provost, Lagos State College of Education Vs Edun (supra).” PER K. M. O. KEKERE-EKUN, J.S.C.
TRESPASS- WHETHER A PERSON NOT IN POSSESSION CAN SUE IN TRESPASS
“A person who is not in possession cannot sue in trespass, Akibu v Azeez  5 NWLR (pt 814) 643, 670.” PER C. C. NWEZE, J.S.C.
TORT OF TRESPASS – WHETHER A PERSON IN POSSESSION THOUGH WITH NO TITLE OVER A PIECE OF LAND CAN SUE ANOTHER FOR TRESPASS
“So inextricably tied to possession is the tort of trespass that a person in possession of land even as a trespasser can sue another person who, thereafter, comes upon the land unless that other is the owner or shows some title which gives him a better right to be on the land, Aromire v Awoyemi  2 SC 182; Tumo v Murana  12 NWLR (pt 681) 370; Eze v Atasie  9 WRN 73, 83.
In other words, a person who has no title over a piece of land, but who is in possession, may, successfully, sue for trespass if an entry was made into the land without his consent, Olaniyan v Fataki (supra) 286; Olowolagba v Bakare  3 N W L R (pt 543) 528.” PER C. C. NWEZE, J.S.C.
CLAIM FOR TRESPASS – ISSUES TO BE CONSIDERED IN A CLAIM FOR TRESPASS
“In an action, such as this, where the claim is for trespass, two separate and independent issues must be considered. They are:
(a)Whether the plaintiff established his actual possession of the land; and
(b)Whether the defendants trespassed on it, Adewole v Dada  4 NWLR (pt 810) 369; 378; Nwadiogbu v Nnadozie  12 NWLR (pt 727) 315.
Thus, the twin questions to be considered are – what constitute acts of possession and trespass? Our survey of case law reveals that putting tenants and erecting pillars on a piece of land constitute acts of possession, Mogaji v Cadbury 2 SC 97; Alatishe v Sanyaolu(1964) 1 All NLR 398; Adewole v Dada  4 NWLR (pt. 810) 369,379.” PER C. C. NWEZE, J.S.C.
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ACTS OF POSSESSION – WHETHER ACTS OF POSSESSION CAN BE EXERCISED THROUGH A THIRD PARTY
“Indeed, a person can be in possession through a third party, such as a servant, an agent or a tenant who is in physical possession, Adewole v Dada (supra) 379”. PER C. C. NWEZE, J.S.C.
ACTS OF TRESPASS – WHAT CONSTITUTES ACTS OF TRESPASS AND CONTINUING TRESPASS?
“On the other hand, chasing away tenants on the land by a defendant constitutes an act of trespass, Alatishe v. Sanyaolu (1964) 1 All N L R 398. Equally, removing pillars put on the land by the plaintiff constitutes acts of continuing trespass, Mogaji v Cadbury  28 SC 97; Adewole v Dada  4 NWLR (pt 810) 369, 379.” PER C. C. NWEZE, J.S.C.
STATUTES REFERRED TO:
Evidence Act, 2011
Statute of Frauds 1677