May 9, 2025
Legalpedia Citation: (2014-07) Legalpedia (SC) 31661 In the Supreme Court of Nigeria Fri Jul 11, 2014 Suit Number: SC.173/2004 CORAM PARTIES 1. RAMONU RUFAI APENA 2. JIMOH […]
CORAM
PARTIES
1. RAMONU RUFAI APENA
2. JIMOH RUFAI APENA
APPELLANTS
OBA FATAI AILERU & ANOR
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/Respondents as representatives of the Ojuwoye Community instituted an action against the Defendants/Appellants at the Lagos State High Court claiming amongst others damages for trespass committed by the Defendants/Appellants on the parcel of land situate at Amu Street, Mushin, Lagos. The claim of the Plaintiffs/Respondents was that the land was a communal land and that though a customary licence had been granted to the grandfather of the Defendants/Appellants, it had been determined a long time ago. The Defendants/Appellants in their statement of defence however admitted that the land belonged to the Ojuwoye Community and that ownership of same was vested in the said community, thus contending that the Plaintiffs/Respondents lacked the locus standi to institute the action. At the end of the trial, judgment was entered in favour of the Defendants/Appellants, but being displeased by the decision of the trial court, the Plaintiffs/Respondents appealed to the Court of Appeal where the decision of the trial court was set aside and judgment was entered for the Plaintiffs/Respondents. The Defendants/Appellants also being dissatisfied by the decision of the Court of Appeal has appealed to this court.
HELD
Appeal Dismissed
ISSUES
1. Whether it can be adjudged as the Court of Appeal so decided, that Aileru and Odu Abore families, and both families alone, constitute the Ojuwoye community, to the exclusion of all other families in Ojuwoye, in view of the Supreme Court judgments in the consolidated suit Nos. 113 and 114/1950 Sunmola Aganran & 7 Ors V. J.F. Kanson (Exhibit D5) (b), suit No. 127 of 1944 – Yesufu Ajose, Sanusi Olowu, Gbadamosi Aileru, Amodu Iyalode, Salami Akinsanya(For themselves and as representatives of the Ojuwoye community V. Sunmola Aganran &Ors.Whether from the totality of the evidence canvassed by the appellants herein at the trial of this suit, the Court of Appeal was right in assuming and concluding that the appellants derived their title from another “Ojuwoye community” which was not the same with the respondents’ Ojuwoye community who were the descendants of Aileru and OduAbore families when both the appellants and respondents relied on the plan tendered as exhibit “A” in suit No. 127 of 1944, confirmed and reinforced in consolidated suit Nos. 113 and 114/50. Did this assumption result in a miscarriage of justice?
2. Whether the appellants from the oral and documentary evidence adduced at the trial are members of the Ojuwoye community to justify their occupation and possession of the land in dispute?
3. Whether the respondents who were plaintiffs in this suit, discharged the burden of proof placed on them in establishing that the appellants (defendants) were “TRESPASSERS” and not “ALLOTTEES” to justify the claim in trespass, and injunction granted to them by the appellate court, in reversing the judgment of the High Court?
RATIONES DECIDENDI
PLEA OF RES JUDICATA – INGREDIENTS REQUIRED TO ESTABLISH A PLEA OF RES JUDICATA.
“For a plea of res judicata to succeed it must be shown that:
(a) the parties;
(b) the issues; and
(c) the subject matter in the previous action were the same as those in the action in which the plea is being raised.
Once these ingredients of res judicata are established, the previous judgment estops the party from making any claim contrary to the decision in the previous case. See: Fadiora vs Gbadebo (1978) 3 SC 219; Ebba vs Ogodo (2000) 10 NWLR (Pt. 675) 387; Long-John vs Blakk (2005) 17 NWLR (Pt. 953) 1; Ajiboye vs Ishola (2006) 13 NWLR (998) 628; Balogun vs Ode (2007) 4 NWLR (Pt 1023) 1; Omnia Nigeria Limited vs Dyktrade Limited (2007) 15 NWLR (Pt. 1058) 576; Igbeke vs Okadigbo (2013) 12 NWLR (Pt. 1368) 225.” PER K. B. AKAAHS, J.S.C.
TRESPASS – TRESPASS IS A BREACH OF A PERSONS RIGHT OF POSSESSION.
“There is said to be trespass when someone having no title to the land interferes with the possession of another person who has a good title to the land. Trespass is thus a breach of a right of possession. An action for trespass thus pre-supposes that the plaintiff is in possession.” PER O. RHODES-VIVOUR, J.S.C.
ALLOCATION OF LAND ON A LICENCEE – A LICENCEE CANNOT PASS TITLE TO HIS SUCCESSOR-IN-TITLE
“Based on the principle that where land is allocated to another for erecting temporary structures or is licensed to use the land during his lifetime or upon the occurrence of an event, such land would revert to the grantor upon the occurrence of the event or when the licencee is no more. The licencee cannot pass title to his successor -in-title. See: Chuku vs Wuche (1976) NSCC Vol. 10 page 563 at 565.” PER K. B. AKAAHS, J.S.C.
PLEADINGS – RULE OF PLEADINGS
“Again, it is necessary to remind us of the elementary but fundamental rule of pleadings that parties are bound by their pleadings. No party will be allowed to set up a case other than that which is captured in his statement of claim or defence as the case may be. Therefore, parties must stick to their averments in their pleadings else, such a new case must be discountenanced. See Osho& Anor. V. Foreign Finance Corporation & Anor (1991) 4 NWLR (Pt 184) 157, Peenok Investment Ltd V. Hotel Presidential Ltd. (1992) NSCC Vol. 13 477, Akaninwo V. Nsirim (2008) 9 NWLR (Pt. 1093) 439.” PER J. I. OKORO, J.S.C.
PLEADINGS – RULE OF PLEADINGS
“Again, it is necessary to remind us of the elementary but fundamental rule of pleadings that parties are bound by their pleadings. No party will be allowed to set up a case other than that which is captured in his statement of claim or defence as the case may be. Therefore, parties must stick to their averments in their pleadings else, such a new case must be discountenanced. See Osho& Anor. V. Foreign Finance Corporation & Anor (1991) 4 NWLR (Pt 184) 157, Peenok Investment Ltd V. Hotel Presidential Ltd. (1992) NSCC Vol. 13 477, Akaninwo V. Nsirim (2008) 9 NWLR (Pt. 1093) 439.” PER J. I. OKORO, J.S.C.
TRESPASS – TRESPASS IS A BREACH OF A PERSONS RIGHT OF POSSESSION.
“There is said to be trespass when someone having no title to the land interferes with the possession of another person who has a good title to the land. Trespass is thus a breach of a right of possession. An action for trespass thus pre-supposes that the plaintiff is in possession.” PER O. RHODES-VIVOUR, J.S.C.
PLEADINGS – PURPOSE OF PLEADINGS
“In a civil case, the claim of the plaintiff is won and lost first on the pleadings and secondly on the evidence led in support of averments in the statement of claim. Equally, the defence of the defendant is based on the facts averred in his statement of defence and evidence in support thereof. The purpose of pleading is to give the other side at the earliest opportunity, the case the other side is to meet. It is important to state further that there cannot be a better notice of the case a party intends to make than his pleadings. It is a notice and can never be substituted for the evidence required in proof of the facts pleaded, subject however to an admission made by the other party. I need to emphasize also that evidence led at the trial which is at variance with the pleadings goes to no issue and must be rejected or discountenanced. See Anyah V. African Newspapers of Nig. Ltd (1992) 7 SCNJ 47, Obmiami Brick & Stone Nig. Ltd. V. African Continental Bank Ltd. (1992) 3 NWLR (Pt. 229) 250, American Cynamid Company V. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (Pt. 171) 15.” PER J. I. OKORO, J.S.C.
POSSESSION OF LAND – NATURE OF PROOF REQUIRED IN A CLAIM FOR POSSESSION TO LAND
“Once the plaintiff can establish possession to the land his action for trespass succeeds. The defendant can only succeed if he can show a better title. To succeed both parties must plead names, history of their ancestors to show a continuous chain of devolution. They must plead genealogy and lead evidence in support of their pleadings. See Ayanwale v. Odusami (2011) 12 SC (Pt. iii) P. 59.” PER O. RHODES-VIVOUR, J.S.C.
PLEA OF RES JUDICATA – INGREDIENTS REQUIRED TO ESTABLISH A PLEA OF RES JUDICATA.
“For a plea of res judicata to succeed it must be shown that:
(a) the parties;
(b) the issues; and
(c) the subject matter in the previous action were the same as those in the action in which the plea is being raised.
Once these ingredients of res judicata are established, the previous judgment estops the party from making any claim contrary to the decision in the previous case. See: Fadiora vs Gbadebo (1978) 3 SC 219; Ebba vs Ogodo (2000) 10 NWLR (Pt. 675) 387; Long-John vs Blakk (2005) 17 NWLR (Pt. 953) 1; Ajiboye vs Ishola (2006) 13 NWLR (998) 628; Balogun vs Ode (2007) 4 NWLR (Pt 1023) 1; Omnia Nigeria Limited vs Dyktrade Limited (2007) 15 NWLR (Pt. 1058) 576; Igbeke vs Okadigbo (2013) 12 NWLR (Pt. 1368) 225.” PER K. B. AKAAHS, J.S.C.
TRESPASS TO LAND – AN ACTION FOR TRESPASS TO LAND CAN ONLY BE FILED BY ONE WHO IS IN POSSESSION OF THE LAND.
“Trespass to land is actionable in a suit filed by the person who is in possession of the land. The identity of the land must not be in dispute. It must be clearly ascertained.” PER O. RHODES-VIVOUR, J.S.C.
POSSESSION OF LAND – NATURE OF PROOF REQUIRED IN A CLAIM FOR POSSESSION TO LAND
“Once the plaintiff can establish possession to the land his action for trespass succeeds. The defendant can only succeed if he can show a better title. To succeed both parties must plead names, history of their ancestors to show a continuous chain of devolution. They must plead genealogy and lead evidence in support of their pleadings. See Ayanwale v. Odusami (2011) 12 SC (Pt. iii) P. 59.” PER O. RHODES-VIVOUR, J.S.C.
TRESPASS TO LAND – AN ACTION FOR TRESPASS TO LAND CAN ONLY BE FILED BY ONE WHO IS IN POSSESSION OF THE LAND.
“Trespass to land is actionable in a suit filed by the person who is in possession of the land. The identity of the land must not be in dispute. It must be clearly ascertained.” PER O. RHODES-VIVOUR, J.S.C.
BURDEN OF PROOF – ON WHO LIES THE BURDEN OF PROOF
“The law is elementary that the burden of proof is on the party who alleges the existence of any fact. By Section 131(1) of the Evidence Act 2011, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The burden of proof in a civil suit or proceeding lies on that person who would fail if no evidence at all were given on either side (Section 133 of the Evidence Act 2011). See Calabar Central Co-operative Thrift & Credit Society Ltd &Ors. V. Bassey Ebong Ekpo (2008) 5 NWLR (Pt. 1083) 362, Nnadozie V. Mbagwu (2008) 3 NWLR (Pt. 1074) 363, Peter Obiaku V. Ignatius Ekesiobi (2003) FWLR (Pt. 166) 661, Tsokwa V. UBN (1996) 12 SCNJ 445.” PER J. I. OKORO, J.S.C.
ALLOCATION OF LAND ON A LICENCEE – A LICENCEE CANNOT PASS TITLE TO HIS SUCCESSOR-IN-TITLE
“Based on the principle that where land is allocated to another for erecting temporary structures or is licensed to use the land during his lifetime or upon the occurrence of an event, such land would revert to the grantor upon the occurrence of the event or when the licencee is no more. The licencee cannot pass title to his successor -in-title. See: Chuku vs Wuche (1976) NSCC Vol. 10 page 563 at 565.” PER K. B. AKAAHS, J.S.C.
EXCLUSIVE GRANT OF COMMUNAL LAND – ON WHO LIES THE ONUS OF ESTABLISHING A CLAIM TO AN EXCLUSIVE GRANT OF COMMUNAL PROPERTY
“The onus is on the party and anyone claiming through him to establish a claim to an exclusive grant of the family or communal property. See: Samuel Adenle vs Michael Oyebade (1967) NMLR 136.” PER K. B. AKAAHS, J.S.C.
ALLOTMENT OF LAND – THE BURDEN OF PROVING THAT THE ALLOTMENT OF A PARCEL OF LAND IS ABSOLUTE LIES ON HE WHO ALLEGES IT
“Where a party alleges that the allotment of a parcel of land to him is absolute, the burden is on him to prove it, See: Ajeja vs Ajayi & Another (1969) NSCC Vol. 6 page 57.” PER K. B. AKAAHS, J.S.C.
PLEADINGS – PURPOSE OF PLEADINGS
“In a civil case, the claim of the plaintiff is won and lost first on the pleadings and secondly on the evidence led in support of averments in the statement of claim. Equally, the defence of the defendant is based on the facts averred in his statement of defence and evidence in support thereof. The purpose of pleading is to give the other side at the earliest opportunity, the case the other side is to meet. It is important to state further that there cannot be a better notice of the case a party intends to make than his pleadings. It is a notice and can never be substituted for the evidence required in proof of the facts pleaded, subject however to an admission made by the other party. I need to emphasize also that evidence led at the trial which is at variance with the pleadings goes to no issue and must be rejected or discountenanced. See Anyah V. African Newspapers of Nig. Ltd (1992) 7 SCNJ 47, Obmiami Brick & Stone Nig. Ltd. V. African Continental Bank Ltd. (1992) 3 NWLR (Pt. 229) 250, American Cynamid Company V. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (Pt. 171) 15.” PER J. I. OKORO, J.S.C.
BURDEN OF PROOF – ON WHO LIES THE BURDEN OF PROOF
“The law is elementary that the burden of proof is on the party who alleges the existence of any fact. By Section 131(1) of the Evidence Act 2011, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The burden of proof in a civil suit or proceeding lies on that person who would fail if no evidence at all were given on either side (Section 133 of the Evidence Act 2011). See Calabar Central Co-operative Thrift & Credit Society Ltd &Ors. V. Bassey Ebong Ekpo (2008) 5 NWLR (Pt. 1083) 362, Nnadozie V. Mbagwu (2008) 3 NWLR (Pt. 1074) 363, Peter Obiaku V. Ignatius Ekesiobi (2003) FWLR (Pt. 166) 661, Tsokwa V. UBN (1996) 12 SCNJ 445.” PER J. I. OKORO, J.S.C.
ALLOTMENT OF LAND – THE BURDEN OF PROVING THAT THE ALLOTMENT OF A PARCEL OF LAND IS ABSOLUTE LIES ON HE WHO ALLEGES IT
“Where a party alleges that the allotment of a parcel of land to him is absolute, the burden is on him to prove it, See: Ajeja vs Ajayi & Another (1969) NSCC Vol. 6 page 57.” PER K. B. AKAAHS, J.S.C.
EXCLUSIVE GRANT OF COMMUNAL LAND – ON WHO LIES THE ONUS OF ESTABLISHING A CLAIM TO AN EXCLUSIVE GRANT OF COMMUNAL PROPERTY
“The onus is on the party and anyone claiming through him to establish a claim to an exclusive grant of the family or communal property. See: Samuel Adenle vs Michael Oyebade (1967) NMLR 136.” PER K. B. AKAAHS, J.S.C.
CASES CITED