CORAM
I.L. KUTIGI JUSTICE, SUPREME COURT
U. MOHAMMED JUSTICE, SUPREME COURT
S.U. ONU JUSTICE, SUPREME COURT
PARTIES
JOSEPH LADIPOEMMANUEL AWOLOLAH.O AKINTUNDE APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
Plaintiffs claim was for Special damages and General damages and an order of perpetual injunction restraining the defendants, their servants, agents and or privies from committing further acts of trespass on the a parcel of land. ?
HELD
I find merit in the appeal. It is hereby allowed. The majority judgment of the Court of Appeal (including the order for costs), is hereby set aside while the minority judgment for Ornololu-Thomas, JCA and the judgment of the Ibadan High Court delivered on 29th April, 1983 are confirmed. The plaintiffs are entitled to costs of this appeal which is assessed at one thousand naira (N 1,000.00) only.
ISSUES
Whether the plaintiffs discharged the onus on them of proving that they had a better title to the land in dispute than the 1st defendant, since both parties claim title to the same land ?
RATIONES DECIDENDI
POWER OF COURT OF APPEAL TO FORMULATE ISSUES FOR PARTIES
It is not open to the Appeal Court to raise or make issues which the parties did not raise or make for themselves either at the trial or at the hearing of the appeal. The parties should first be given an opportunity to be heard . PER KUTIGI, JSC
WHERE A DEFENDANT IS IN POSSESSION OF THE LAND IN DISPUTE
Where a defendant is in possession of the land in dispute as in this case, a plaintiff who wants to oust the defendant out of possession must prove a better title. PER KUTIGI, JSC
WHAT WILL CONSTITUTE POSSESSION
It is trite law that the claim for trespass and injunction postulates that the plaintiff is in possession. And possession in law means exclusive possession. But whether or not the act proved is sufficient to establish possession is a question of fact to be decided on the merits of each particular case. Cultivation of a piece of land, erection of a building or fence thereon, demarcation of land with pegs or beacons are all evidence of possession PER KUTIGI, JSC KUTIGI, JSC.
CASES CITED
Aromire & Ors v. Awoyemi (1972)1 All NLR (P.1) 101;Amakor v. Obiefuna ( 1974) 3 Thomas v. Holder 12 WACA 78; Abdullahi v. Manne 10 WACA 172Kuti & Anor. v . Jibowu & Anor. (1972) 1 All NLR (Pt.2) 180;Odiase & Anor. v. Agho & Ors. (1972) All NLR 170.Atanda v. Lakanmi (1974) 3 SC 109. Mogaji v. Cadbury (1972) 2 SC 97;Alatishe v. Sanyaolu (1964) 1All NLR (Pt.1) 398; Wuta Ofei Danquah (1961) 3 AER 596).?
STATUTES REFERRED TO
NONE