EZEKIEL OLADIMEJI OGUNDIPE (ON BEHALF OF HIMSELF AND MEMBERS OF OMO COMMUNITY) (APPELLANT)

                                              v.

JOB AWE & OTHERS (RESPONDENT)

(1988) All N.L.R. 77

Division: Supreme Court Of Nigeria

Date of Judgment: 22nd January, 1988

Case Number: (SC. 67/1986)

Before: Obaseki, Uwais, Kawu, Wali, Craig; JJ.S.C

The appellant as plaintiff on behalf of himself and as representative of Omo Community, Ilesha instituted an action against the respondents claiming declaration of title under native law and custom to a piece or parcel of land situate, lying and being at Omo Town in Ilesha, N500.00 being general damages for trespass committed by the defendants on the said land and an injuction restraining the defendants, their agents and servants from further trespassing on the said land.

The appellants claim as pleaded and deposed to in evidence was that members of his community first settled on the land in dispute several years ago. They built their dwelling houses on the land, established their shrine there and erected an old town wall in order to demarcate their settlement from that of the defendants. It was his case that having lived in the place undisturbed for many years, his community voluntarily decided to move to a new location called New Omo about 2½ Miles from the place in dispute which is called the Old Omo. He claimed however that the place was never abandoned as members of his community still retained its possession for agricultural purposes.

The respondents claim on the other hand was that they were the original owner of the land in dispute and that the appellant's people were only permitted to settle there as their customary tenants together with Ejigan people who had earlier been placed on the land by the Akinla of Erin Ijesha, the 3rd respondents ancestor.

At the trail both parties gave evidence and called a number of witnesses in support of their respective claims. At the conclusion of the case the trial judge reviewed the totality of the evidence adduced and held that the evidence in this case reveals that both the Plaintiff's community and the defendant's Community are in one form of possession of the land in dispute or the other and as a result the plaintiffs are not in exclusive possession of the land in dispute to entitle them to a declaration of title to the land in dispute. He therefore dismissed the plaintiff's claim.

Being dissatisfied with the decision of the trial Court, the appellants appealed to the Court of Appeal which dismissed the appeal and confirmed the judgement of the trial judge.

Still dissatisfied, the appellants further appealed to the Supreme Court.

HELD:-

(1)     While it is true that there can be no such thing as concurrent possession of a parcel of land by two persons claiming adversely to one another, as was observed by this Court in Pius Amakor v. Benedit Obiefuna (1974) 3 SC 67 at page 76, the trial judge's finding in this case that both the plaintiff's community and the defendant's community are in one form of possession of the land in dispute or the other cannot, in my view, be said to amount to a finding of concurrent possession by both parties in this case.

(2)     In this case, there is no scintilla of evidence adduced by the appellant to support the contention that the members of his community were in exclusive possession of the vast area of land in dispute at the time of the alleged trespass. The evidence of PW3 does not support such a finding. I am of the firm view that none of the points urged upon us was weighty enough to justify our interfering with the concurrent finding of facts of the two lower Courts.

Appeal dismissed.

Professor M.I. Jegede (with him Mrs T. Kehinde) for the Appellant)

Chief T.A.B. Oki, S.A.N. (with him Mr V.I. Isibor and Mr A. Fagbohungbe) for the Respondents.

Cases referred to:-

(1)    Amakor v. Obiefuna (1974) 3 S.C. 67

(2)    Akinyele & Anor v. Eyiyola & Ors (1980) 3-4 Sc 31

(3)    Chumendu v. Mbadi & ors (1980) 3-4 S.C. 31

(4)     Ebba v. Ogodo (1984) 4 S.C. 84

(5)     Ekpo v. Ita 11 N L R 68

(6)     Obijuru v. Ozims (1983) 2 NW1R (Part 6) 167

(7)     Olujebu of Ijebu v. Isho the Eleda of Eda (1972) 1 All N L R 93

(8)     Onowu & anor v. Iserhien (1976) 1 N.M.L.R 263

(9)     Woluchem & ors v. Gudi & ors (1981).5 S.C 291

Kawu, C, JSC. In this appeal, the appellant, as plaintiff on behalf of himself and as representative of Omo Community, Ilesha Division, instituted an action against the respondents claiming as follows:-

"(i) Declaration of title under Native Law and Custom to a piece or parcel of land situate, lying and being at OMO Town in Ilesha North District Council area.

(ii) N500.00 (Five Hundred Naira) being general damages for trespass committed by the Defendants on the Plaintiffs' said land.

(iii) Injunction restraining the defendants their agents and servants from further trespassing on the said land.

Briefly stated, the appellants' claim, as pleaded and deposed to in evidence, was that members of his community first settled on the land in dispute several years ago. They built their dwelling houses on the land, established their shrines there and erected an old town wall in order to demarcate their settlement from that of the defendants. It was his case that having lived in the place undisturbed for very many years, his community voluntarily decided to move to a new location called New Omo about 2½ miles from the place in dispute which is called the Old Omo. He claimed, however that the place was never abandoned as the members of his community still retained its possession for agricultural purposes.

The respondents' case, on the other hand, was that they were the original owners of the land in dispute and that the appellants' people were only permitted to settle there as their customary tenants together with Ejigan people who had earlier been placed on the land by the Akinla of Erin Ijesha, the 3rd respondent's ancestor.

At the trial both parties gave evidence and called a number of witnesses in support of their respective claims. At the conclusion of the case, the learned trial Judge, Babalakin J. (as he then was) reviewed the totality of the evidence adduced and held as follows:-

"I have carefully considered the evidence adduced in this case and the address by Counsel for both sides to this dispute and on my evaluation of the evidence I find the following facts for the reasons given.

The evidence in this case reveals that both the plaintiff's community and defendants' community are in one form of possession of the land in dispute or the other, and I so find.

The result is that the plaintiffs are not in exclusive possession of the land in dispute and are therefore not entitled to a declaration of title to the land in dispute based on acts of ownership numerous and positive enough to warrant the inference that they are the owners of the land in dispute. See the case of Ekpo v. Ita 11 NLR 68 and Olujebu of Ijebu v. Isho the Eleda of Eda (1972) 1 All N.L.R. 93 at 98.

Thereafter the learned trial Judge considered the traditional evidence adduced by both parties and concluded that he preferred the defendants' evidence to that of the plaintiff, basing his decision principally on the evidence of the 3rd defendant which he found 'straightforward and consistent'. He therefore concluded that the plaintiff had not established his claims which he dismissed in their entirety.

Being dissatisfied with the decision of the trial court, the appellant appealed to the Court of Appeal on a number of grounds and that Court, having given very careful consideration to all the complaints in his grounds of appeal, in a unanimous judgment delivered by Dosumu, J.C.A. on the 27th day of June, 1983, dismissed the appeal and confirmed the judgment of the trial court.

Still dissatisfied, the appellant has finally appealed to the Supreme Court on the following tow grounds:-"GROUND 1

The Court of Appeal misdirected itself in law and on facts when it upheld the finding of the learned trial Judge that the appellants and the Respondents are in one form of possession of the land in dispute or the other and thereby came to a wrong decision that the Appellants were not in the exclusive possession as would justify their claim for trespass and injunction,

PARTICULARS

1.      The finding of the Court of Appeal amounts to a finding of concurrent possession by the two parties. There can be nothing in law like concurrent possession by persons claiming adversely to each other.

2.      Whatever act of possession established by the respondents began after 1957 and that led to the present dispute.

GROUND 11

The Court of Appeal erred in law and came to a wrong conclusion on the facts in so holding that there is concurrent possession in the parties when in fact the evidence is that of exclusive possession in the Appellant.

PARTICULARS

The evidence of Elizabeth Oguntominiyi PW3 at page 85 of the Record of Proceedings that:

"We also do not disturb Erin people as they do not disturb us when we go to take materials for making mat on the land in dispute"

points to exclusive possession in the Appellants not otherwise."

These two grounds were argued together. In his submissions in support of the grounds, Professor Jegede, learned Counsel to the appellant made two main points. The first point was that the Court of Appeal was wrong to have upheld the trial judge's finding the both parties were in one form of possession of the land or another, It was his contention that such a finding in fact amounted to a finding of concurrent possession by both parties which, he submitted, is untenable in law.

I am unable to agree with this contention. While it is true that there can be no such a thing as concurrent possession of a parcel of land by two persons claiming adversely to one another, as was observed by the Court in Pius Amakor v. Benedict Obiefuna (1974) 3 SC.67 at p.76, the trial Judge's finding in this case that 'both the plaintiff's community and the defendants' communities are in one form of possession of the land in dispute or the other' cannot, in my view, be said to amount to a finding of concurrent possession by both parties in this case.

The second point made was that on the evidence adduced even if both the trial court and the Court of Appeal were of the view that title was not proved, the appellant's claims for trespass and injunction ought to have been granted. Now it is settled law that a party claiming damages for trespass has a duty to satisfy the court that at the time of the alleged trespass he was in possession of a particular portion of the land in respect of which the trespass was committed-See Obijuru v. Ozims (1985) 2 NWLR (Pt 6) 167. Can it be said in this case, on the evidence adduced that the appellant had satisfactorily discharged the burden of proof on him? I think not. In this case there is no scintilla of evidence adduced by the appellant to support the contention that the members of his community were in exclusive possession of the vast area of land in dispute at the time of the alleged trespass. The evidence of PW3, in my view, did not support such a finding.

Having given very careful consideration to the various points raised in this appeal by the appellant's counsel and to the replies of Chief F.A. Oki (SAN) for the respondent, I am of the firm view that none of the points urged upon us was weighty enough to justify our interfering with the concurrent findings of fact of the two lower courts. Accordingly, I have come to the conclusion that this appeal lacks merit and must be dismissed. The appeal is hereby dismissed and the decision of the Court of Appeal is hereby affirmed with N300.00 costs awarded to the respondents.

Obaseki, JSC. I have had the advantage of reading in draft the judgment of my learned brother, Kawu, JSC. and I agree with him that this appeal should be dismissed for the reason set out in the said judgement. The main question for determination in this appeal as formulated by the appellant is:

"whether there are any (or any adequate) grounds upon which it was justifiable for the Court of Appeal to uphold the findings of the learned trial Judge that the appellant and the respondents were in one form of possession of the land in dispute or the other and that the appellant's community was therefore not in such exclusive possession as would justify their claim for trespass and injunction."

It appears from the submissions before us at the hearing of the appeal that the appellants' main concern is to be allowed to stay on the land and enjoy the fruits thereof. They resiled from their rigid stand as owners of the land and accepted the position of customary tenants. The appellants agreed that they moved from the land in dispute but contended that they did not in fact surrender possession to the plaintiffs/respondents.

Learned counsel for the appellants submitted that even if the courts below were right in dismissing the claim for a declaration based on the evidence of tradition adduced by the respondents which the learned trial Judge preferred, that should not have prevented the success of the claim for trespass and injunction. The effect of the evidence of the respondents on title which the trial judge accepted is that the appellant's community were customary tenants of Akinla.

The appellants, it should be observed claimed:

(i)      Declaration of title under native law and custom to a piece or parcel of land situate, lying and being at Omo Town in Ilesha North District Council area;

(ii)     N500.00 (Five hundred Naira) being general damages for trespass committed by the defendants on the plaintiffs' said land;

(iii)    Injunction restraining the defendants, their agents and servants from further trespassing on the said land;

The case they put up in their statement of claim and in the evidence tendered by them through their witnesses were all designed to support the above claim. But the learned trial Judge, Babalakin, J. (as he then was) and the Court of Appeal found otherwise.

The learned trial Judge in his judgment held:

"The 1st and 2nd defendants confirm that the plaintiffs'. community met them on the land in dispute having been put there by the 3rd defendant's ancestor. These facts coupled with the stay of the plaintiffs' community settlement at various places before coming to the land in dispute as narrated by the 3rd defendant (which I believe because it is more consistent) makes the story about the settlement of plaintiff's community on the land in dispute as narrated by the defendants more probable ... and I make the following findings of fact:

(a)     That the Ejigan people of 1st and 2nd defendants were put on the land in dispute by the 3rd defendant's ancestor;

(b)     That the ditch round the land in dispute was constructed by the Ejigan people;

(c)     That the plaintiffs' community settled on the land in dispute with the permission of the defendants' ancestor, Akinla Agbojukori;

In the light of the above findings of fact, the plaintiffs' claim for declaration of title is hereby dismissed."

The full effect of these findings is brought out by the evidence of the 1st and 2nd defendant which the learned trial Judge accepted. A portion of the evidence reproduced in the judgment of Babalakin, J. reads:

"The 1st defendant aged about 80 years in his evidence stated that he is the Loriomo of Erin and that the land in dispute is owned by Akinla;

He has cocoa and kolanut on the land in dispute which he inherited from his father Iyun. His grandfather was Adegbuji who belonged to Ejigan people. The Ejigan people came from Ijamo. The Ejigan people were granted land by Akinla and they named the place Ejigan and this is the land in dispute.

The plaintiffs' community came from Ajogburugbe of Efon Alaye's land and begged for land from Akinla who sent them to his grandfather (Adegbuji) as guests and they all lived together on the land in dispute ... There is an Adegbuji shrine on the land in dispute. It is being worshipped by his father. He worshipped it yearly. After the Omo people left the land in dispute 20 years ago, the Akinla has been using the land."

The Court of Appeal on this issue said, per Dosunmu, JCA. (with the concurrence of Uche Omo and Sulu-Gambari, JJCA.)

"Nowhere did the defendants admit the plaintiffs' ownership. Their consistent story was that the plaintiff's community were the strangers on the land occupying it with the Ejigan people, and this is what the trial court accepted. If there were houses or remnants of them belonging to the plaintiffs on the land after they vacated, that should be as expected as they were in possession at sometime. But this will not mean that they were in exclusive possession of the land. Therefore the burden of proving ownership rests on them and not on the defendants.

I do not find the case of Omoni v. Inoma (1976) 6 SC.49 cited by the appellants' counsel of much assistance to him in that the case emphasises that only exclusive possession or user will support a claim for trespass."

Learned counsel has failed to point to any error which would call for a reversal of the concurrent findings of fact made by the two courts below.

It has not been shown that the findings were perverse or that they did not derive from the evidence. It has not been shown that the courts had misconceived the facts and wrongly applied the law.

The concurrent findings stand and are further hereby confirmed.

For the above reasons and the reasons contained in the judgment of my learned brother, Kawu, JSC., I hereby dismiss the appeal with costs to the respondents fixed at N300.00.