CORAM

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PARTIES

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JOHN FAKUNLE APPELLANTS

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MRS. GRACE OKE

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent claimed that the Appellant trespassed on her land, which she inherited from her father, Onisere while her father inherited same from her grandfather, Adanri. The land according to her is bounded on one side by Agbelese’s Land and on the other side by Asomolegun’s land; on the right side by Oguro Stream and on the left by Ikare/Supare road. The Respondent averred that it took her a long time to sue for the land because she was three years old when her father died and was taken away from Emure and on her return, she was told by one Pa Asomolegun that her father had land at Owode. The said Pa Asomolegun sent Albert Asomolegun to show her the land; that on the land are cocoa, oranges, kolanuts, boracious, palms, palm trees and economic trees like Iroko etc. She went into the land in 1990, and did not meet or know the persons on the land and she then fell one boracious palm and it was then that one Anthony Fakunle, the brother of the Appellant, challenged her and stopped the labourers she engaged for the felling of the palms, while she laid her claim on the land and two weeks later she was arrested at the instance of the Appellant by the police for trespassing. One Reverend Idowu attempted to resolve the matter to no avail. The Appellant’s case on the other hand is that the land in dispute belonged to his father from whom he inherited same. He started working on the land till the time of the case in Court after the demise of his father and did not know Adanri the grandfather of the Respondent. Though he knew Solomon Onisere the father of the Respondent, but it was as a tailor and he did not farm on the land during his life time. The Appellant claimed that he had been working on the land for the past fifty years and did not at any time meet Onisere on the land or had any dispute on the land with him. On the question of his boundary neighbours on the land, he stated that he shares boundaries with Osere, Anu and Agbelese on the Western side, Famakinwa and Aro Agungbale on the Eastern part; on the Southern part with Kolawole Ajagunmo and in the North with Israel Oladele and Faseemo. He denied that pa Philip Asomolegun was ever a boundary neighbour and was never aware if Pa Philip Asomolegun at any time showed the disputed land to the children of Onisere. Hence, the Appellant sued the Respondent at the Emure Customary Court, which gave judgment in favour of him. The Respondent, at the High Court of Ekiti State holding at Emure Ekiti, in the Emure/lse Judicial Division appealed against the decision of the Customary Court; claiming for a declaration of customary right of occupancy to the land situate at Owode Camp, Emure Ekiti, an order for the eviction of the Appellant, his agents, privies servants etc, an injunction and general damages. After being served with the summons and statement of claim, the Appellant filed his Statement of Defence and the parties joined issues. At the end of the trial, the lower Court, setting aside the decision of the customary court, granted the Respondent her reliefs; dissatisfied with the judgment of the lower Court, the Appellant appeal against same vide a Notice of Appeal.

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HELD

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Appeal Allowed

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ISSUES

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Whether or not the Plaintiff established the identity of the disputed land with clarity and exactness? Whether or not Plaintiff showed herself as having a better title than defendant to warrant her being given judgment? Whether or not the lower Court did rightly evaluate the evidence before it before coming to judgment? Whether or not Plaintiff could sue for trespass and damages when she was never in possession of the farm? Whether or not the decision of the lower Court justified vis-a’-vis the evidence led before it?

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RATIONES DECIDENDI

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BURDEN OF PROOF – ON WHOM LIES THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND

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“It is now trite that the burden of proof is on the Plaintiff seeking a declaration of title. As was stated in the oft-quoted dictum of Webber C.J. in the antiquated yet causus classicus of Kodilinye Vs. Odu (1935) 2 W.A.C.A. 336 at 337 – 338:-
“The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The Plaintiff in this case must rely on the strength of his own case and not on the weakness of the Defendant’s case. If this onus is not discharged it will not help him and the proper judgment is for the Defendant. ”
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BURDEN OF PROOF- EXCEPTION TO THE RULE THAT A PLAINTIFF MUST DEPEND ON THE STRENGTH OF HIS OWN CASE IN ORDER TO SUCCEED

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“However, there are certain circumstances under which the weakness of the Defendant’s case may strengthen the Plaintiff’s case. Thus the rule that the Plaintiff must depend on the strength of his own case in order to succeed does not apply where the Defendant’s case supports that of the Plaintiff and contains materials upon which the Plaintiff is entitled to rely. See Abidoye V. Alawode (1994) 6 N.W.L.R. (Pt. 349) 242; Igwe V. Kalu (1990) 5 N.W.L.R. (Pt. 149) 155. –

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PROOF OF TITLE TO LAND – WAYS OF PROVING TITLE TO LAND

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“The Supreme Court has established five ways to prove title to land in the case of Idundun V. Okumagba (1976) 9 -10 S.C. 227 AT 246 – 250.
These are:
1) By Traditional evidence;
2) By documents of title which must be duly authenticated in the sense that their execution must be proved, unless they are produced from proper custody;
(3) By acts of ownership numerous and positive enough as to warrant the inference that he is the true owner. (See Ekpo V. Ita 11 N.L.R. 68).
(4) By Acts of possession and enjoyment of the land which may be prima facie evidence of the ownership of the particular quantity of land in dispute.
(5) By Acts of long possession of connected or adjacent land in circumstances rendering it probable that the owner of the land in dispute. See generally Mogaji V. Cadbury (Nig) ltd (1985) 2 NWLR (Pt. 7) 393. Okpuruwu Vs. Okpokam (1988) 4 NWLR (Pt. 90) 554.” –

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IDENTITY OF LAND – INSTANCE WHEN THE BURDEN OF PROVING THE IDENTITY OF LAND WILL NOT ARISE

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“In the case at hand, the plaintiff like every other claimant to declaration of title to land must discharge the first duty of identifying unequivocally the precise area to which his claim relates with definitive certainty. However, where parties are ad idem on the identity of the land this burden will not arise. In this case since parties have not tendered survey plans the test in the circumstance is whether a surveyor on a perusal of the record of proceedings, can draw a composite plan of the land in dispute as it is described therein by the parties. Again, the issue of identity of the land will arise where the Defendant raises it in his pleadings see Ezeudu Vs. Obiagu (1986) 2 NWLR (Pt 26) 208, Fatunde V. Onwoananan (1990) 2 NWLR (P. 132) 322. –

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IDENTITY OF LAND – HOW TO PROVE IDENTITY OF LAND

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“In the Supreme Court case of Ezukwu Vs. Ukachukwu (2004) 17 N.W.L.R. (Pt. 902) 227 at 249 paras. C – G, Edozie J.S.C. delivering the judgment of the apex court admirably put it beyond peradventure on how to prove identity of land, thus:-
“In an action for declaration of title to land, the onus is on the Plaintiff to establish with certainty the identity of the land in dispute to which his claim relates. This he can do in one of two ways, viz, by oral evidence describing with such degree of accuracy the said parcel of land in a manner that will guide a surveyor in producing a survey plan of the said land or by filing a survey plan reflecting all the features of the land and showing clearly the boundaries. ”
See Baruwa Vs. Ogunsola (1938) 4 W.A.C.A. 159 and Awote V. Owodunmi No.2, (1987) N.W.L.R. (pt. 57) referred. –

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IDENTITY OF LAND – WHETHER A DECLARATION OF TITLE WOULD BE GRANTED AND BINDING WHERE THE BOUNDARIES OF THE AREA OR AREAS TO BE AFFECTED ARE NOT ASCERTAINED, WELL KNOWN AND PROPERLY DESCRIBED

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“Definitely, in line with the time honoured dictum in Baruwa Vs. Ogunsola Supra which has been followed in Ezukwu V. Ukachukwu Supra, See also Adelusola V. Akinde (2004) ALL F.W.L.R. (Pt. 218) 776 at 791 S.C. paras. F – G; it was the height of travesty of Justice for the Court to have held that the Plaintiff met the requirement of the Law regarding identity of land. If a surveyor were to draw a plan from the description of the land as given by the parties certainly the description given by the Plaintiff and witnesses will wrought confusion whereas that of the Defendants can appropriately give a dispassionate person an idea of the land in dispute. In Adelusola Vs. Akinde Supra at page 780; the Supreme Court again re-echoing the voice of the West African Court of Appeal in Barruwa Vs. Ogunsola relied on EPI Vs. Aigbedion (1972) 10 S.C. 53; Adesola Vs. Ordia (1997) 3 N.W.L.R. (Pt. 491) 17 and Omorogie V. Idugiemwanye (1985) 2 N.W.L.R. (Pt. 5) 41 to hold that an injunction and indeed a declaration of title would not be granted and binding when the boundaries of the area or areas to be affected are not ascertained, well known and properly described”. –

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OWNERSHIP OF LAND – WHETHER ACTS OF EXCLUSIVE POSSESSION IS SUFFICIENT PROOF OF OWNERSHIP OF LAND

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“The Defendant has shown from the preponderance of evidence that he has exercised maximum acts of ownership by farming therein and his crops both economic and others have been on the farm for over fifty years. His brother’s farms and houses are all over the land which demonstrates numerous and positive possessory acts sufficient enough to warrant ascription of ownership to him. See Akinloye Vs. Eyiyola (1968) N.W.L.R. 02, Ohiaeri Vs. Akabeze (992) N.W.L.R. (Pt 221) and Oyadere Vs. Keji (2005) ALL F.W.L.R. (Pt. 247) 1583 at 1600 paras. A-G. Sees Ekpo Vs. Ita 11 N.L.R.68. –

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OWNERSHIP OF LAND – NATURE OF POSSESSION CAPABLE OF RAISING THE PRESUMPTION OF OWNERSHIP OF LAND UNDER SECTION 146 OF THE EVIDENCE ACT

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“In Ezukwu Vs Ukachukwu Supra at page 258 the Supreme Court held on the nature of possession of land that is capable of raising the presumption of ownership under Section 146 of the Evidence Act thus:-
“Possession, admission which is capable of raising a presumption of owner of land under Section 146 of the Evidence Act, must be that which amounts to de jure exclusive possession and not mere occupation. In the instant case, it was evident that the respondents people had been farming on portions of the land in dispute; the respondents’ father built houses, both permanent houses and huts on the land, they granted portions of the land to tenants …. ”
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FINDINGS OF FACT OF A TRIAL COURT –CIRCUMSTANCES WHEN AN APPELLATE COURT WOULD INTERFERE WITH THE FINDINGS OF FACT OF A TRIAL COURT

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“On the whole, even though it is not the duty of this court to interfere with findings of fact of a court of first instance which had the advantage of listening to witnesses and watching their demeanour, the Court will intervene in the face of the very grave and patent injustice displayed by the trial judge in giving judgment to the plaintiff in the face of the overwhelming evidence of acts of undisturbed possession of the land in dispute and the connected land for years by the Defendant and his brothers. –

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EVALUATION OF EVIDENCE – DUTY OF THE TRIAL COURT ON THE APPRAISAL OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE TO EVIDENCE

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“It has now been settled by judicial authorities that in a case such as this, where pleadings have been settled, the trial court before whom evidence is adduced by the parties comes to a decision as to which party to believe or disbelieve, he must put firstly the totality of the evidence elicited in the imaginary scale of justice and weigh them together before arriving at which of the evidence outweighs the other by the quality or probative value of the testimony of the witnesses and documents tendered. See Mogaji v. Odofin (1978) 4 S.C. 91 at P. 94 per FATAI -WILLIAMS J.S.C. (as then was) ESO J.S.C. in Bello Vs. Eweka (1981) J.S.C. 101 at 118-120.
As had been said earlier and to buttress the dicta of the eminent jurists above cited, the appraisal of oral evidence and ascription of probative value to such evidence is the primary function of the trial court.Thus, if the issue turns on the credibility of witnesses, an appellate court which has not seen the witnesses must defer to the opinion of the trial court which is normally preferred. See Sagay Vs. Sajere (2000) 6 NWLR (Pt.661) 360 at 375 paras. D-E, Fashanu Vs Adekoya (1974) 6 S.C. 83. –

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EVALUATION OF EVIDENCE – WHETHER AN APPELLATE COURT CAN EMBARK ON THE EVALUATION OF EVIDENCE

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“Accordingly, I call in aid the decision of the Supreme Court Per Karibi- Whyte J.S.C. in the case of Sagay Vs. Sajere (2000) 6 N.W.L.R. (Pt. 661) 360 at 374 – 375 where the Learned Law Lord posited:
“Evaluation of evidence is predicated on the finding of credibility of witnesses which a Court of Appeal is ill-equipped to undertake and to make findings there on. Therefore, if the Appellate Court is satisfied that the Court of trial has been guilty of improper use of its powers in the performance of its adjudicative functions to correct the error, the appellate Court must be satisfied, that the error was such as could be corrected from evidence in cold print without injustice to the other side”
Sanusi V. Ameyogun (1992) 4 N.W.L.R. (Pt. 237) 527; Ajakaiye V. Adedeji (1990) 7 N.W.L.R. 192; Imah V. Okogbe (1993) 9 N.W.L.R. (Pt. 316) 159; Royal Netherlands Harbour Works Gbv V. Samma (1991) 2 N.W.L.R. 64 (Pt. 171) referred. –

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TRESPASS TO LAND –WHETHER A PARTY NOT IN POSSESSION CAN SUE FOR TRESPASS TO LAND

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“I have taken cursory look at the submissions of the Learned Senior Counsel and I completely agree with him and the authorities of Adeniyi V. Ogunibiyi (1965) N.W.L.R. 395 at 397 and Oluwole V. Abubakar (2007) 10 N.W.L.R. (Pt. 882) 549 paras D – F that since the Plaintiff is not in possession he cannot sue for trespass. The Court of Appeal Ibadan Division Per Ibiyeye J.C.A. was called upon to answer the question as to who can maintain an action in trespass to land and the Learned and noble Lord put it in this way:-
“The proper person to institute an action for trespass is the person in possession. Where, however, a person is not in possession there is nothing in law and in fact for the adverse party to disturb by way of trespass. A Plaintiff who fails to satisfy the Court that he is in possession of the land in dispute cannot succeed in an action in trespass. See Adeniran vs. Alao (1992) 2 N. W.L.R. (Pt. 223) 350 at 372. It is equally settled by way of expatiation that trespass is a violation of a possessory right and an action is therefore maintainable at the instance of the person in possession or person with a right to possession.”
See Ezewusim V. Okoro & Anor (1993) 5 N.W.L.R. (Pt. 294) 478 at 497; Atunrase & Ors Vs. Sunmola & Ors (1985) 1 N.W.L.R. (pt. 1) 105, Ekpang & Ors Vs. Uyo & Ors (1986) 3 N.W.L.R. (Pt. 26) 63.-

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TRESPASS TO LAND – WHETHER A PARTY NOT IN POSSESSION CAN MAINTAIN AN ACTION IN TRESPASS

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“Having not proved possession the Plaintiff cannot maintain an action in trespass and claim damages and injunction against the Defendant and get judgment as the Court has given her.
See Per Oguntade J.S.C. in Balogun Vs. Akanji (2005) ALL F.W.L.R. (Pt. 262) 405 at 424 – 425 where he reemphasized that:
“It is trite law that trespass is essentially a tort against possession and only a person in possession of land in dispute at all material times can maintain an action in damages for trespass.”
See Olagbemiro Vs. Ajagungbade II (1990) 3 N.W.L.R. (Pt. 136) 37; Adebanjo V. Brown (1990) 3 N.W.L.R. (Pt. 141) 661 etc. See finally the Locus classicus of Amakor Vs. Obiefuna (1974) 3 S.C. 67. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Ekiti State High Court (Civil Procedure) Rules|Evidence Act|Ondo State Rules of the High Court, applicable in Ekiti State|

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