In The Supreme Court of Nigeria

On Friday, 13th day of July 1990

SC 141/1987

Between

Mrs. Jarin Adegbite               .......            Appellant

And

Chief M. K. Ogunfaolu                   .......                      Respondents

Alhaja Sariyu Raji

Judgment of the Court

Delivered by

Wali. J.S.C.

By an amended Writ of Summons taken out in the High Court of Ibadan Judicial Division of the Court of Justice, Oyo State, the plaintiff claimed against the defendants as follows:-

1.     The Plaintiffs claim is AGAINST THE DEFENDANTS JOINTLY and severally is for a sum of N5,000.00 (five thousand Naira) being special and general damages for trespass committed by the defendants when they unlawfully entered on the plaintiffs land lying and situated at Plot 38, Parakoyi Layout, Molete, Ibadan, and damaged the plaintiffs foundation laid thereon.

2.    An injunction restraining the defendants from committing further acts of trespass on the said land.

The defendants denied the plaintiffs claim. Pleadings were therefore ordered and exchanged.

The plaintiffs case as presented in her pleadings and evidence can be stated thus:-

The plaintiff bought the land in dispute described as plot 38, Parakoyi Layout, Molete, Ibadan from W.B. Parakoyi on 1st June, 1955 for £20.00. The sale was witnessed in writing as per Exhibit A which was dated 1/6/55. Later, by a Deed of Conveyance dated 20(7/55 - Exhibit B, W.B. Parakoyi described in Exhibit B as the vendor conveyed to the plaintiff as purchaser, the said land. Exhibit B was registered as No.17 at page 17 in Volume 115 of the Land Register in the Lands Registry at Ibadan. The plan of the assigned land was attached to Exhibit B. In 1962 the plaintiff put up a foundation on the land which was built with stone. From June, 1955 to October, 1978 the plaintiff was in undisturbed possession and control of the land when the defendants, by themselves or through their agents trespassed into the said land and demolished the foundation stone build thereon by the plaintiff.

As a result of these acts of trespass, the plaintiff complained against the defendants to the police but to no avail. In March, 1979 the plaintiff through her solicitor wrote a letter of warning (Exhibit C) to the defendants; a copy of which was served on the first defendant and another copy pasted on the wall the 2nd defendant was unlawfully constructing on the disputed land; since she could not be seen or traced to be served with the same.

Despite Exhibit C, the defendants continued with their acts of trespass unabated, hence this action. On their part, the defendants' case is as follows:-

The land in dispute was formerly a part of a larger parcel of land owned by the Wonuola Family, which sold and conveyed same to the 1st defendant as per the Deed of Conveyance Exhibit E. The first defendant also sold the land in Exhibit E to the 2nd defendant as a result of which he executed a Deed of Conveyance-Exhibit F in favour of the 2nd defendant. This was in 1975 and 1977 respectively. Second defendant entered the disputed land and by January 1979, she had completed the first floor of the house she was building and moved into it. Both the 1st and the 2nd defendants denied either by themselves or through any other person or persons demolishing the plaintiff’s foundation. They also denied ever going or being invited to any police station in connection with the land in dispute much less to be warned by any police officer.

The case proceeded to trial at the end of which the learned trial Judge made the following findings:

1.     Contrary to the strenuous claim made for defence (that the area was virgin forest accessible only by a bush path and that there was no existing roads at the time the Wonuola family sold the land in dispute to the 1st defendant], that there were existing roads on the land in dispute.…………..

2.     That the identity of the land in dispute is not really in dispute.

3.     That there had been a tampering with the survey beacons buried on the land between the year 1955 when the plan in Exhibit B was drawn and the years 1975 and 1977 when the plan Exhibits E and F respectively were drawn.

4.      Again within the area verged red on the plan in Exhibit 'B' there is no rectangular structure marked "U/C." This inscription first came into existence in Exhibit 'E' in 1975. I am prepared to accept the 5th P.W's evidence, therefore, that this shows some development had taken place. And conjoined with the alteration in survey pillars which, upon the evidence, I have found to have taken place, and the evidence of the plaintiff and her witnesses, I find as a fact that the plaintiff's building under construction (having only reached the foundation level) was already in existence both at the time the sale of the land was made by Wonuola family to the 1st defendant in Exhibit 'E' and at the time the 1st defendant sold the land to the 2nd defendant in Exhibit 'F'." …………………..

I accept the evidence of the plaintiff and her witnesses that she laid a foundation on the land in 1962 but that that foundation was demolished. I am unable to accept the evidence tendered for her, however, that it was the 1st or the 2nd defendants, or both defendants who demolished the said foundation .... The claim for special damages brought against the 1st and 2nd defendants for demolition of the foundation must therefore fail.

Be that as it may, there was considerable evidence placed before me to established that both the 1st and the 2nd defendants trespassed upon the land in 1975 and 1977 respectively while it was in the peaceful possession of the plaintiff. This was when they went to the land after it had been sold to them. That much they admitted in their evidence before me. It was after the entry of the 1st defendant on the land that the original survey pillars disappeared and new ones were substituted therefore ................................. The disappearance of the plaintiff's foundation 'within the rectangular area shown verged red on the plan attached to Exhibit 'E' and 'F' after the sale of the land to the 2nd defendant by the 1st defendant means that the 2nd defendant had knowledge of the existence of somebody being already in possession, and therefore A building her own house on the land means a disturbance of the plaintiff's possession. …………..

The vendor to the plaintiff is however said to be a son of Wonuola. He sold the land to the plaintiff in 1955, and upwards twenty years, the plaintiff was and remained in possession and erected a foundation thereon seven years after the purchase. Throughout that period of 20 years, she was not disturbed until 1975 when her land was invaded and her survey pillars were up-rooted and substituted with others.

Although ….. the plaintiff could not prove her claim for special damages, she is nevertheless entitled to general damages.

Since I have found that not only had the plaintiff been in possession from as long as 1955 but also that in 1962 she erected a foundation on the land, and the 1st and the 2nd defendants did not come onto the scene until 1975 and 1977 respectively, have the defendants who now claimed that the plaintiff is not the owner discharged the onus placed upon them of proving that she is not the owner? Clearly not. The history of how the radical title came to lie in Wonuola, and passed from Wonuola to the vendors to the 1st Defendant whose names are set out in Exhibit D together with the names of several branches into which Wonuola family was divided has not been pleaded. That being so, the evidence adduced in proof of these goes to no issue and must be ignored:

After making the findings supra the learned trial Judge awarded N500.00 general damages to the plaintiff for trespass and also granted the injunction restraining the defendants, their servants/or agents from further acts of trespass on the plaintiffs land.

The defendants appealed to the Court of Appeal, Ibadan, against the judgment of the trial High Court. In a majority judgment of the Court of Appeal delivered by Ogundare, J.C.A., to which Gambari, J.C.A., subscribed, (with Uche-Omo, J.C.A. dissenting) he allowed the appeal, set aside the judgment and orders of the trial court and dismissed the plaintiff's claim. The defendants were awarded N300.00 costs in the High Court and N400.00 costs in the Court of Appeal, the plaintiff has now appealed to this Court against the Court of Appeal judgment.

Henceforth, the plaintiff and defendants will be referred to as the appellant and the respondents respectively.

Before this Court six grounds of appeal were filed by the appellant. Learned counsel on each side filed a brief of argument which each expatiated by proffering oral submissions.

In the appellant's brief of argument, four issues were formulated for determination and these are:-

1.     Whether or not the Court of Appeal was right to set aside the finding of facts of possession in favour of the plaintiff when that finding was never challenged by the defendants before the Court of Appeal?

2.     Whether or not the Court of Appeal was right to pick on the application of section 145 of the Evidence Act and dealt so much on same when it was never challenged either in the grounds of appeal or in the argument?

3      Whether or not the Court of Appeal was right to set aside the Judgment of the trial Court having found that the evidence led by the defendants to prove that the land was family land fell far short of what would normally be required for a claim for declaration of title to succeed?

4.     Since both parties claimed ownership and or possession, could the defendants oust the plaintiff from possession found in her favour?

The respondents also formulated in their brief, the following three issues for determination:-

1.     Whether Or not the Court of Appeal was right in its consideration of section 145 of the Evidence Act.

2.     Whether or not the Court of Appeal was right in shifting the onus of proof on the appellant in its application of S. 145 of the Evidence Act.

3.     Whether or not the Court of Appeal was right in holding that the Respondents' have shown a better title to the land in dispute.

I shall first deal with issue No.2 in the appellant's brief, which is also the same in its purport with issue No.1 in the respondents' brief.

It was the submission of learned counsel for the appellant that the Court of Appeal was in error in raising and dealing with, suo motu, the issue of the application of section 145 of the Evidence Act, when this was neither raised in the grounds of appeal nor argued before it. The following cases were quoted and relied upon:- Odesanya v. Ewedemi (1962) 1 All N.L.R. 320; Okhiedime v. Toto (1962) 1 All N.L.R. 305 and Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (1987)1 N.W.L.R. (Pt.49) 284 at 289.

Replying, learned counsel for the respondents submitted that it is wrong to say that the respondents did not challenge the finding of possession of the land in dispute made in favour of the appellant by the trial court, be-fore the Court of Appeal. He referred to some portions of the evidence relied upon by the learned trial Judge to resolve the issue of possession of the land in dispute in the appellant's favour, thus resulting in his application of section 145 of the Evidence Act to the facts so accepted.

The issue raised here is encompassed by ground 6 of the appellant's grounds of appeal. In my view, this ground is misconceived. The learned trial Judge was able to resolve the issue of possession in the appellant's favour after he had considered and evaluated the totality of the evidence, particularly that relating to the proof of the claims of title and possession to the land in dispute to wit - Exhibit 'B' - the appellant's survey plan drawn in 1955 Exhibit 'E' - the survey plan of the 1st respondent drawn in 1975, Exhibit ‘F’, the survey plan of the 2nd respondent drawn in 1977 and the evidence of P.W.5. To be precise at the expense of repetition, I reproduce hereunder, the relevant portions of those findings:-

The history of how the radical title came to lie in Wonuola, and passed from Wonuola to the vendors to the 1st defendant whose names are set out in Exhibit 'D', together with the names of the several branches into which Wonuola family was divided, has not

been pleaded. That being so, the evidence adduced in proof of B these goes to no issue and must be ignored. ……………

 …… that the identity of the land in dispute is not really in dispute in this case. If that be so, then it is obvious that there had been a tampering with the survey beacons buried on the land between the year 1955 when the plan in Exhibit 'B' was drawn and the years 1975 and 1977 when the plans in Exhibits 'E' and 'F' respectively were drawn. For, whilst in 1955, the survey beacons were WM 2852, WM 2671 and WM 2672, they had been altered in 1975 to read AW 659, AW 660, AW 661 and AW 662, and they continued to bear those latter identification marks and numbers in 1977 (of the plan in Exhibit 'B' with those in Exhibit 'F'). The conclusion is inescapable; therefore, that it was either the person to whom tbe Wonuola family sold the land (i.e. the 1st Defendant), or perhaps the Wonuola family themselves, who made that alteration.

Again, within the area verged red on the plan in Exhibit 'B', there is no rectangular structure marked "U/C." This inscription E first came into existence in Exhibit 'E' in 1975.1 am prepared to accept the 5th P.W.'s evidence, therefore, that this show: that some development had taken place. And conjoined with the alteration in survey pillars which, upon the evidence, I have found to have taken place, and the evidence of the plaintiff and her witnesses, I find as a fact that the plaintiff's building under construction (having only reached the foundation level) was already in existence both at the time the sale of the land was made by Wonuola family to the 1st defendant in Exhibit 'E' and at the time the 1st defendant sold the land to the 2nd defendant in Exhibit 'F'. ………….

The disappearance of the plaintiff's foundation within the rectangular area shown verged red on the plan attached to Exhibits 'E' and 'F' after the sale of the land to the 2nd defendant by the 1st defendant means that the 2nd defendant had knowledge of the existence of somebody being already in possession; and therefore her building her own house on that land means a disturbance of plaintiff's possession.

It was as a result of these findings of fact that the learned trial Judge was, able to apply section 145 of the Evidence Act, which is the relevant law iii this circumstance, to resolve the issue of possession of the land in dispute in favour of the appellant. These findings were challenged by the respondents as appellants in the Court of Appeal in Grounds 3, 4, 5, 6 and 7 of their Grounds of Appeal in that court. Where sufficient material facts and particulars are supplied in a ground of appeal challenging the application of law to such facts, like section 145 of the Evidence Act in this appeal, it is not mandatory that the relevant section of the law must be mentioned, to make such a ground sustainable. It is sufficient if it is manifest from the facts and the particulars supplied that that is what is intended.

This ground fails and it is dismissed.

The next point raised in this appeal is on whom the burden of proof first lies having regard to the pleadings filed. This is raised in issue No.2 of the respondents' brief, which is also encompassed in grounds 1 and 2 of the Grounds of appeal.

As pointed out in the judgment of the Court of Appeal where the parties are contesting title and possession of a piece of land, the first question to be decided by the trial court is on whom is the onus of proving a better title lies. It would have been prudent if the learned trial Judge had started with the issue of title first. That notwithstanding is the learned Justice of the Court of Appeal right in dwelling so much on this issue as a result of which he reversed the findings of fact by the learned trial Judge? I think not. The learned Justice quoted and relied on several decisions of the Supreme Court to arrive at his decision.

He said:-

With respect to the learned trial Judge, the facts in the case before him were quite different and, in my humble view, did not call for the application of that section of the Evidence Act in such a way as to put the burden of proof on the defendants.

In my view the learned Justice of the Court of Appeal misdirected himself to hold this view having regard to the pleadings and the evidence adduced. Whereas in all the cases he cited and relied on concession of ownership to the land in dispute was made to one of the parties, it is not so in the present case. The appellant in this case never conceded title to either the respondents or Wonuola family but remained consistent in her claim that Parakoyi, who sold the land to her was the absolute owner and that after the sale she was put in possession as a result of which she put up her building foundation as shown in Exhibit E. It was only after Parakoyi's death that the respondents began to trespass onto the land against which she promptly protested as shown in Exhibit "C"1. Although the learned trial Judge did not make specific findings on title vis-à-vis the appellants' claim, it is implicit in his judgment that she proved no title, and the fact that he did not start with the issue of title claimed by the appellant and the respondents respectively before resolving the issue of possession did not in my view, result in any miscarriage of justice, as the respondents could not have been given such a declaration. This is even affirmed by the learned Justice when he said "Admittedly the evidence led for the defence to prove that the land was Wonuola family's, fell far short of what would be required were that family to succeed in a claim for declaration of title."

It is the respondents' claim that the appellant's vendor Parakoyi is a member of one of the five branches of Wonuola family and as such cannot validly dispose of a portion of the family land without the consent of the family. The burden of proving these facts therefore is on the respondents. Section 145 of the Evidence Act was correctly applied by the learned trial Judge in the given circumstance.

Looking at the pleadings of the respondents, facts relating to the founding of the land in dispute, the person who founded such land and exercised original acts of possession and the five branches of the family in respect of B, which the land has devolved, have not been given. Neither the facts pleaded by the respondents nor the evidence adduced are sufficient to prove that the land in dispute is part of the Wonuola family property. Mere averment without evidence in proof of the facts pleaded is no proof of the facts averred therein where they have not been admitted. See Kaijo v. Woluchem (1985)1 N.W.L.R. (Pt.4) 610 and Okagbue v. Romaine (1982) 5 S.C. 133.

The respondents having failed to discharge the onus on them and the appellant having rightly been found in possession of the disputed land by the learned trial Judge, is presumed to hold a better title against the respondents. See Ogunbiyi v. Adewunmi (1988) 5 N.W.L.R. (Pt.93) 215 and Da Costa v. Ikomi (1968)1 All N.L.R. 394. This may not be true against the Wonuola family or any other persons with a better title who have not been made parties to this case.

It is therefore my view that the conclusions reached upon by Omo, J.C.A., in his dissenting judgment cannot be faulted and these are -

Ideally, the learned trial Judge should have considered all the issues raised and made findings of facts on them vide Okpiri & Ors. v. Jonah & Ors. (1961) All N.L.R.102. The consequences of such failure however vary. If such findings are crucial and necessary for a decision of the case, then failure to make them can result in either a non-suit or dismissal. It is otherwise if the findings are not necessary for a proper decision on the case. It seems to me that the situation in this case is of this later variety. The learned trial Judge having firmly held that the respondent was in possession of the in land in dispute in 1975 and 1977, further held, by application of section 145 of the Evidence Act (set out earlier) that the onus of proof of better title was on the appellant. In other words, he found it unnecessary first to decide specifically on the issue whether the land in dispute was Wonuola family land or Winlani Parakoyi's before coming to a conclusion on the case. By implication however he found that the respondent was not entitled to a declaration of title as such to the land in dispute, which she could only have got through exhibits A & B or traditional evidence or acts of ownership of long duration vide Kehinde v. Irawo (1973) 3 S.C. 29. All these modes of proof would have involved a specific finding on the owner of the land, prior to sale to her i.e. Wonuola family or Winlani Parakoyi. But, as shown by me earlier, from the pleadings and evidence led, the respondent could not have been granted such declaration. …………

To succeed in showing a better title, the appellant must properly plead and lead evidence to prove that the land in dispute was as at 1975 and 1977 the family land of Wonuola family. It is the submission of appellant's counsel that the required facts have been pleaded and evidence in proof adduced to discharge that onus. To find out if this submission is correct, I will first consider what has been pleaded on this issue. This is as set out in paragraphs 1 to 5 of the statement of defence of the 1st and 2nd defendants in the court below (the appellants in this court) as follows:-

1.     The defendants aver that the land, the subject- matter of this suit was formerly a part of a larger parcel of land owned by the Wonuola family which sold same to the 1st defendant who later sold same to 2nd defendant.

2.     The said piece of land remained family property at the time of the sale of same to the 1st defendant and together with its remainder was not partitioned.

3.     The defendants aver that the said W.B. Parakoyi is just a member of one of the five branches of Wonuola family of Ibadan.

4.     The defendants will contend at the hearing of this suit that W. B. Parakoyi could not by a Deed of conveyance registered as No.17 at page 17 in volume 115 of the land registry in the office at Ibadan convey the land in dispute to the plaintiff in view of the fact that as at 1955 up to the time of sale to the 1st defendant in 1975 the land was family property.

5.     That 1st defendant avers that he became the owner of the land in dispute when the entire Wonuola family as witness the thumb-impressions and hand of their representatives sold the said land to the 1st defendant by virtue of a deed of conveyance dated the 25^th day of July, 1975 and registered as No.21 at page 21 in volume 1769 of the Land Registry in the office at Ibadan. The defendants will found on the said conveyance which is hereby expressly stated. (note: Italics mine)

Particular (a) of ground 6 states that material facts were pleaded in these paragraphs which the learned trial Judge disregarded. What are these material facts on the issue of proof of root of title of the vendors of the 1st appellant? Mere averments that the land in dispute originally belonged to Wonuola family, that there are five branches of such a family, and/or that the Wonuola family property has not been partitioned is not enough. Evidence required is traditional evidence which must show not only how Wonuola came to acquire the land in dispute but how it descended from him to these vendors/purported representatives of the Wonuola family; and exactly how the respondent's vendor Winlani Parakoyi fits into that picture …….

These grounds therefore succeed.

The remaining grounds and the issues formulated in the briefs of both counsel deal with the findings of fact by the learned trial Judge on possession of the land in dispute in favour of the appellant which was set aside by the Court of Appeal. I have already reproduced these findings in the earlier party of this judgment and I therefore deem it not necessary to reproduce them again.

It is trite law that a court is also slow albeit reluctant to interfere with findings of fact by the trial court unless it can be shown that the findings are perverse or cannot be supported by the evidence. See Odofin v. Ayoola (1984)11 S.C.72; Amasa v. Kososi (1986) 4 N.W.L.R. (Pt.33) 57. The learned trial Judge has made correct findings of fact related to the issue of possession and the majority in the Court of Appeal is wrong to interfere with them in order to substitute its own views.

Having found that the appellant was in possession the trial court proceeded to consider the issues of trespass and injunction. The learned trial Judge made correct findings in relation to these issues.

Trespass is interference with possession. This has been adequately considered by Omo, J.C.A. in his dissenting judgment where he said:-

It is trite law that where the title of both parties is defective the court can still find for the plaintiff in the action for trespass if he establishes possession vide Kareem And Ors. v. Ogunde & Ors. (1972)1 All N.L.R. 73. It is also necessary in such circumstances to protect the possession of the respondent by an order of injunction vide Enang v. Adu (1981)11-12 S.C. 25.

But was the trial Judge right to have found against the 1st Appellant in trespass? The mended statement of claim avers and evidence was led in support of the fact that the respondent was in undisturbed possession of the land in dispute from 1955 to 1978. It was therefore not the sale of the land to the 1st appellant in 1975 by some members of the Wonuola family that constitutes the act of trespass explained of. It is rather the entry and damage on the land, which began with the demolition of the foundation built by the respondent on the land and culminated in the building of a house thereon by the 2nd appellant. These facts commenced in 1978, by which time, on the evidence led, the 1st appellant had disposed of whatever interest he had in the land in dispute to the 2nd appellant (in 1977 to be precise). He could therefore not have been guilty of any trespass on the land in dispute in 1978, since the trial court rejected as unsatisfactory the evidence led in support of the destruction of the respondent's foundation on the land, which evidence had sought to implicate him. In the circumstances liability for trespass can be laid at the door of the 2nd appellant only.

I entirely agree with him. See also Ogunbiyi v. Adewunmi (1988) 5 N.W.L.R. (Pt.93) 215 on the same point. These grounds also succeed and are allowed.

The appeal succeeds in respect of the 2nd respondent who is found guilty of trespass and it is accordingly allowed. The appeal against the 1st respondent fails and it is dismissed. The 2nd respondent shall pay the general damages of N500.00 awarded for trespass in favour of the appellant.

The appellant is awarded N500.00 costs in this appeal against the 2nd respondent only.

Judgment delivered by

Uwais. J.S.C.

 I have had the advantage of reading in advance the judgment read by my learned brother, Wali, J.S.C. For the reasons contained therein I agree that the appeal succeeds against the 2nd respondent.

From the findings of fact made by the learned trial Judge in the High Court, it is quite clear that the appellant had established that she was in possession of the land in dispute since theist day of June, 1955 when the 2nd respondent trespassed unto the land between 1977 and 1979 after an alleged purchase of the land in question from the 1st respondent. There was nothing wrong with the findings of the trial court. The majority in the court of Appeal was therefore in serious error to have interfered with the findings. As the appellant was earlier in possession of the land in dispute than both the 1st and 2nd respondents, she was entitled to he granted the claim of trespass against the 2nd respondent. Although, the 1st appellant was alleged to have bought the land in 1975 before selling it to the 2nd respondent, the evidence adduced at the trial by the appellant did not establish any act of trespass against him (1st respondent).

Accordingly, the appeal succeeds. The decision of the Court of Appeal is hereby set aside. In its place judgment shall he entered against the 2nd respondent for trespass. The claim for an order of injunction restraining the 2nd respondent from committing further acts of trespass on the land in dispute is hereby granted. General damages for trespass assessed at N500.00 is awarded in favour of the appellant against the 2nd respondent. The cost of this appeal which is also assessed at N500.00 is hereby awarded against the 2nd respondent.

Judgment delivered by

Karibi-Whyte. J.S.C.

 I have had a preview of the judgment of my learned brother A.B. Wali, J.S.C., in this appeal. I agree with him that this appeal he allowed.

I am in this judgment only concerned with the question of the burden of proof in relation to section 145 of the Evidence Act, which is an issue set down for determination in this appeal.

My learned brother, Wali, J.S.C. has stated admirably the facts of this appeal. I do not wish to repeat them. I adopt them.

It is necessary to predicate my discussion with the specific findings of fact by the learned trial Judge. After considering the evidence and the pleadings the learned trial Judge found that

(a)     Despite claims to the contrary, there were existing roads on the land in dispute.

(b)    The identity of the land was not in dispute.

(c)    That the survey beacons buried on the land between the years 1955 and 1977 had been tampered with.

(d)    Some developments have taken place on the land in dispute, and that the plaintiff's building under construction was already in existence both at the time of the sale of the land to the 1st defendant and at the time 1st Defendant sold to the 2nd defendant.

(e)    That plaintiff erected a foundation on the land in 1962, which was demolished. There was no evidence that this was done by the defendants.

(f)    Both 1st and 2nd defendants trespassed on the land in 1975 and 1977 whilst it was in the peaceful possession of the plaintiff.

(g)   Plaintiff had been in possession of the land in dispute since 1955, erected a foundation on it in 1962.

On these findings learned trial Judge granted damages for the claims for trespass, and injunction against the defendants from committing further acts B of trespass on the land. Defendant appealed.

The Court of Appeal reversed this decision and dismissed the plaintiff's claim. Plaintiff (respondent appealed further to this Court relying on six grounds of appeal. Since the issues formulated adequately cover the ground of appeal, I do not consider it necessary to reproduce the relevant grounds of appeal. Both Counsel to the Appellant and the respondents in their brief of argument formulated issues, which concerned the consideration of section 145 of the Evidence Act, and the shifting of the onus of proof therein.

The issues formulated are as follows:-

Appellant

1.     Whether or not the Court of Appeal was right to set aside the findings of fact of possession in favour of the plaintiff when that finding was never challenged by the defendants before the Court of Appeal?

2.     Whether or not the Court of Appeal was right to pick on the application of section 145 of the evidence Act and dealt so much on same when it was never challenged either in the grounds of appeal or in the argument?

3.     Whether or not the Court of Appeal was right to set aside the Judgment of the trial Court having found that the evidence led by the defendants prove that the land was family land fell far short of what would normally be required for a claim for declaration of title to succeed?

4.     Since both parties claimed ownership and or possession, could the defendants oust the plaintiff from possession found in her favour?

Respondents

2.01          Whether or not the Court of Appeal was right in its consideration of section 145 of the Evidence Act.

2.02          Whether or not the Court of Appeal was right in shifting the onus of proof on the appellant in its application of or S. 145 of the evidence Act.

2.03          Whether or not the Court of Appeal was right in holding that the respondents have shown a better title to the land in dispute.

I prefer respondents' formulation of the issues. I have adopted them in this judgment. Stricto sensu, the whole judgment is posited on the issues so formulated. As I have already stated, I shall confine myself with consideration of section 145 of the Evidence Act.

I shall dispose of first the submission that the learned trial Judge raised the application of section 145 (supra) suo motu. I think the criticism is unjustified. I have already set out the findings of facts made by the learned trial judge. It was indeed sequel to these findings that he was able to apply section 145 of the Evidence Act to resolve the issue of possession of the land in dispute in favour of the Appellant. The appropriateness of the application of the provision is exemplified by the words of the section which state

Section 145.    When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

This section merely creates a rebuttable presumption of ownership. It does not operate against a person who proves a good title - see Lawal v. Ijale (1967) N.M.L.R. 155 Idundun v. Okumagba (1976) 9-10 S.C. 227. Hence where someone in possession is alleged to be a trespasser, the onus is on the person so alleging to show that his better right to possession has been disturbed by the trespasser. - See Amakor v. Obiefuna (1974) 3 S.C. 67.

There is no doubt in the instant case the claim is who is owner between two parties claiming to be in possession of the land in dispute. Section 145 of the Evidence Act resolves the issue.

The principle is well established that where a Plaintiff in an action for declaration of title has proved sufficient acts of possession, he has established a prima facie case that he is the owner. The onus is therefore on the Defendant under section 145 of the Evidence Act to rebut if he must avoid judgment for the Plaintiffs. - See Onyekaonwu v. Ekwubiri (1966)1 All N.L.R. 32; Umeobi v. Otukoya (1978)4 S.C. 33.

The claim of the plaintiff and her evidence at the trial was that she bought the land in dispute described as plot 38 Parakoyi Layout, Molete, Ibadan from W.B. Parakoyi on 1st June, 1955 for £20 (N40). There is a deed of conveyance dated 20/7/55, Exhibit B in which W.B. Parakoyi described as vendor conveyed the said land to Plaintiff. The Exhibit B was registered as No.17 at page 17 in volume 115 to the Land Registry, Ibadan. In 1962, plaintiff erected a stone foundation of a building on the land. From June, 1955 to October, 1978 plaintiff remained in undisturbed possession.

The respondents’ case is that the land in dispute was formerly a part of a larger piece of land owned by the Wonuola Family. Wonuola Family sold and c6nveyed same to the 1st respondent by deed of conveyance - Exh. E. The 1st defendant sold the land in Exh.E to the 2nd defendant, which is Exh.F. This was in 1975 and 1977 respectively. 2nd defendant entered the land in dispute in 1979 January.

Plaintiff/appellant stated that Defendants themselves or through their agents trespassed and demolished the foundations of the building she erected. In March, 1979 she instructed her solicitor to write and he wrote a letter of warning (Exh.C) to the respondents and pasted a copy on the wall of the 2nd respondent. Respondents denied these allegations, and also being invited by the Police on account of complaints against them by the Appellant.

The contention of the respondents is that Parakoyi, appellant's vendor, a member of one of the five branches of Wonuola Family, and cannot validly dispose of a portion of family land without the consent of the family.

The onuses of establishing these contentions are on the facts of this case clearly on the respondents. Appellant has clearly shown that she has been possession since 1955. Even a careful analysis of the statement of defence does not disclose any averments relating to the founding of the land in dispute, such as the original founder, exercise of original acts of possession, and the five branches of the Wonuola family upon which the land has devolved. Indeed there is nothing on the pleadings of the respondents or sufficient evidence during the trial to show that the land in dispute is part of Wonuola Family property. The respondents have therefore failed to discharge the

onus on them that appellant does not have a better title. Accordingly appellant having rightly been found in possession of the disputed land by the learned trial Judge is presumed to have a better title against the respondents.

- See Da Costa v. Ikomi (1968)1 All N.L.R. 394, Ogunbiyi v. Adewunmi (1988) 5 N.W.L.R. (Pt.93) 215.

For the reasons I have adduced in this judgment and for the fuller reasons given in the judgment of my learned brother Wali J.S.C., I allow the appeal of the appellant.

Appellant is awarded N500.00 as costs of this appeal in this Court against the Respondents.

Judgment delivered by

Kawu. J.S.C.

I have had the privilege of having a preview of the lead judgment just delivered by my learned brother Wali, J.S.C., and I agree with his reasoning and conclusion. I agree entirely with the view expressed in the lead judgment that the Court of Appeal was in error when it held that the appellant was not in possession of the land in dispute, contrary to the finding of the learned trial Judge. As it has been stated times without number, it not the function of an appellate court to substitute its own views of the evidence for those of the court of trial. An appellate court would only interfere with finding of fact when it is clear that the same is perverse or is not the result of a proper exercise of judicial discretion. See Okoye v. Ejiefo (1934) 3 W.A.C.A 130, Kuma v. Kuma (1936) 5 W.A.C.A. 4, Akinloye v. Eyiyola (1968) N.M.L.R. 92 and Onowan & Anor. v. Iserhien (1976)1 N.M.L.R. 263. In this case the finding of the learned trial Judge that the appellant was in possession of the land at the time of the trespass was fully supported by the evidence adduced, and the Court of Appeal should not have disturbed that finding. Accordingly, I too would allow the appeal in respect of the 2nd respondent, and dismiss the appellant's appeal in respect of the 1st respondent. I make the same orders as contained in the lead judgment. Including the order as to costs.

Judgment delivered by

Agbaje. J.S.C.

I have had the opportunity of reading in draft the lead judgment of my learned brother, Wali, J.S.C. I agree entirely with his reasoning and conclusions.

It is clear from the judgment of the two courts below that neither the plaintiff nor the 2nd respondent has title to the land in dispute. However the trial court found, and I say there is no justification for the Court of Appeal to disturb it that the appellant prior to the trespass complained of by him was in possession of the land in dispute. The fact that that the plaintiff failed on her claim for title does not mean that her claim for damages for trespass to the same land must necessarily fail. See Oluwi v. Eniola (1967)N.M.L.R. 339 at 340. There was clear evidence that the 2nd respondent trespassed on the land in dispute.

In the result I too allow the plaintiff's appeal against the 2nd respondent. I abide by all the consequential orders in the lead judgment of my learned brother, Wali, J.S.C.

Appeal allowed against 2nd respondent.

Appeal dismissed against 1st respondent

Counsel