➥ CASE SUMMARY OF:
Alhaji Mohammed Jodi v. Alfa Saka Salami (CA/IL/37/2007, 21 Nov 2008)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Trespass;
Land sale;
Land agent.
➥ CASE FACT/HISTORY
While the appellant levied accusation of trespass against the respondent in respect of the land over which he was appointed overseer, the respondent in his pleadings and evidence before the court claimed to have purchased 96 (ninety-six) plots of land from the appellant’s family.
This is an appeal against the ruling and judgment of the High Court of Justice, Kwara State, Ilorin Judicial Division. The ruling was delivered on 1 June 2006 and the final judgment on 20 December 2006. Before the trial court, the appellant as plaintiff claimed as per the endorsement on the writ of summons filed on 5 November 2003, and the further amended statement of Claim filed 10 October 2005 as follows: “(1) A declaration that the plaintiff’s family is the owner of the said parcel of land (55 plots) within the land described in paragraph 4 of the further amended statement of claim.
An order giving immediate possession of the 55 (fifty-five) plots of land to the plaintiff. Perpetual injunction restraining the defendant, his heirs, agents , servants and privies from further trespass on the said parcel of land. N500,000.00 (five hundred thousand naira) general damages against the defendant for illegal trespass committed by the defendant against the family property.
➥ ISSUE(S)
I. Whether on the state of pleadings and the evidence of the parties on record, the learned trial Judge was right to have entered judgment in favour of the defendant/respondent having regard to the totality of the evidence adduced before it?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[‘The respondent after some time alienated the land by selling plots to people unknown to the family and obviously without the consent of the relevant members of family. The family claimed to have sold only 5 (five) plots and 8 (eight) plots respectively to the appellant in 1977 and documents of agreement were executed in respect of the sale. The respondent claimed that 96 (ninety-six) plots were sold to him but this sale has no authentic document to supportit except exhibit 3, dated 22 June. The appellants served notice on the respondent to quit the land. The respondent testified that the document issued by the family in respect of the sale of 96 (ninety-six) plots of land sold to him was destroyed by termites during his missionary visit to Lagos; vide page 212 of the record. Some documents issued by the respondent in transferring the plots of land to unapproved people by the family were tendered and admitted before the trial court as exhibits 7, 8 and 9 respectively. The respondent persisted on the land despite notice served on him to leave the land. The learned counsel for the appellant maintained that there were no time the defendant purchased 96 (ninety-six) plots of the land from Muse family. Pleadings and evidence of both parties show that the issue of the identity of the entire land was not in issue. The learned counsel for the respondent drew attention of the court to the testimonies of the four witnesses for the plaintiff and that of the defendant that the respondent was an agent of the plaintiff’s family since 1970 before the appellant became the Mogaji of the Muse family and remained their agent after the appellant became Mogaji . His duties as agent of the family were to visit the land in order to ward of trespassers. He became general overseer up to the year 2002, when the family instituted this action. He had the permission of the family to enter the land at all material times hence, allegation of trespass cannot be made out against him. Consent is a complete defence to a case of trespass. There was A continuous interaction between the appellant and respondent between 1995 -2002, and beyond.’
‘Exhibit 3 tendered by the respondent as proof of his title to the 96 plots is an affidavit deposed to during the pendency of this suit in 2003. It offends against section 91(1) of the Evidence Act. The respondent did not lead cogent evidence to establish due execution of the document of title to the ninety-six plots. The affidavit evidence to establish that termites ate up a document which had been in existence in 1977 during a period of ten days, when he was on a journey to preach islamic gospel is not only shallow but also untenable. The respondent could not produce the destroyed copy or serve notice to produce on the appellant to produce the duplicate copies of document, as the Evidence Act allow such secondary evidence. This court can only conclude that such document was non-existent. It actually confirmed the evidence of the appellant that only 13 plots of land were sold to the respondent by virtueof the documents of title exhibits 1 and 2, executed on 18 August 1977 and 11 November 1977 respectively. The evidence available only confirms a sale of 13 plots to the respondent and also title over such land. The appellants claim to title in respect of 55 plots of land is yet to be disputed by the respondent. The learned trial Judge made heavy weather of the evidence that the respondent acquired the land by credit sale. As at the time this action was initiated at the lower court, he claimed to have a balance of N20,000.00 (twenty thousand naira) to pay the family. Thereafter, he rested on long possession as his defence. This amounts to contradiction in terms as a document of title cannot be executed in respect of a credit sale. There can only be a valid sale after the purchaser has paid the entire purchase price and possession of the land is transferred. There can be no valid sale where the purchaser defaulted in paying the purchase price even when he is in possession: Manya v. Idris (2001) 8 NWLR (Pt. 716) 627, (2000) FWLR (Pt. 23) 1237. None of the principal members of the Muse family agreed to have given consent to the sale of the 96 plots of land, which makes the purported transfer of such land null and void . The respondent is in trespass in respect of these 55 plots of land. It is common ground that the appellant’s family appointed the respondent as overseer and caretaker when there was evidence of encroachment on the land. He was initially selling and alienating plots of land out of the larger expanse with principal members of the family, however, the entire land was eventually entrusted to his care. The appellant claimed against the respondent a sum of N500,000.00 (five hundred thousand naira) as general damages for illegal trespass committed by him on the family land and perpetual injunction restraining the defendant, his heirs, agents, servants and privies from further trespass on the parcel of land. It was part of the evidence of the respondent on printed record that he sold all the 96 plots of land acquired by him from the Muse family to interested parties 9 -15 years before the death of Mogaji Aduagba and that the 2nd – 4th defendants purchased land from him; vide page 52 paragraphs 13-14 of the record. The deeds of transfer in respect of these sales were tendered as exhibits 7-9; vide page 212 lines 4-5 of the record. A Exhibit 7 was executed by the respondent on 24 June 1999, exhibit 8 on 26 August 1996 and exhibit 9 was executed on 21 October 1995. The appellant filed his suit on 5 November 2003. The respondent further admitted before the lower court that he sold land to unknown purchasers and beacons made by them on the land were destroyed by the appellants in 2001 – the impact of such destruction is still visible on the land. Some of those he sold land had developed them as a result of which there are houses, poultry farm, fish ponds, farms, beacons and other structures on the land. On the part of the appellant, the allegation of trespass can be extracted from his evidence before the trial court that after the illness of Mohammed Gbagede in 1995, he noticed that Alfa Saka Salami (the defendant/ respondent) had trespassed on the family land and Mohammed Gbagede asked Alfa Saka to produce purchase agreement which the defendant/ respondent alleged that Mohammed Aduagba issued to him (defendant). The appellant stated further that the defendant did not produce the title document till the death of Aduagba and Mohammed Gbegede became the 4th Mogaji Muse family. During Gbagede’s reign, the defendant did not produce the document till Gbagede the 4th Mogaji died too. After the appellant’s turbaning as the 5th Mogaji Muse family, he asked the defendant/ respondent to produce his purchase agreement which the defendant could not produce except evidence of 13 (thirteen) plots of land duly executed bythe appellant’s predecessor in title, while the defendant/respondent said that his title document was destroyed by termites; vide page 199 lines 15-30 of the record. After persistent trespass on the land, the appellant served the respondent with a letter dated 26 May 2003 exhibit 6, asking the defendant to vacate the land within 14 (fourteen) days; vide pages 200 lines 3-4 of the record.’]
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.
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✓ DECISION:
‘In sum, there are evidence on printed record to support all the principal and ancillary claims made by the appellant before the lower court. The appeal is, therefore, meritorious and it is hereby allowed. Judgment of the lower court is set aside. I enter judgment in favour of the appellant. N50,000.00 (fifty thousand naira) costs awarded to the appellant.’
➥ FURTHER DICTA:
⦿ ANY ISSUE NOT BASED ON GROUND OF APPEAL WILL BE STRUCK OUT
In his argument, the learned counsel for the respondent observed that issue 5 questioned the power of the lower court to grant an amendment to the statement of defence. The issue was not based on any ground of appeal. Itis trite that any issue not based on a ground of appeal is incompetent and same should be struck out. The argument adduced on issues 2 and 3 are at variance with the issues raised. — Adekeye JCA.
⦿ PURPOSE OF AN ISSUE IN AN APPEAL
In an appeal, the issues to be determined are not the same as grounds of appeal. The Court of Appeal Rules require the grounds of appeal to reflect the defects in the judgments sought to be set aside. The grounds are not to harbour any argument or be narrative, or be vague and in general terms. The only general ground shall be that the judgment is against the weight of evidence. The briefs of argument shall contain the issues arising in the appeal usually referred to as the issues for determination. An issue is a short question raised against one or more grounds of appeal and is meant to be a guide to the arguments and submissions to be advanced in support of the grounds of appeal. They are the proposition of law or fact in dispute between the parties necessary for determination by the court and which shall affect the result of the appeal. Issues enable learned counsel to narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. An appellant is however not free to put forward any issue unrelated to the ground of appeal filed by him. An issue for determination derives its support from the ground of appeal and cannot exist independent of the ground of appeal. An issue in effect without a ground of appeal collapses. Issue 5, formulated and which is unrelated to the grounds of appeal filed is incompetent and shall accordingly be struck out: Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263; Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546; Osinupebi v. Saibu (1982) 7 SC 104; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566; Adigun v. Ayinde (1993) 8 NWLR (Pt. 313 ) 516; Anayu v. Malami (1992) 9 NWLR (Pt. 264) 240; Imonike v. Attorney- General, Bendel State (1992) 6 NWLR (Pt. 248) 396; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417. — Adekeye JCA.
⦿ OMNIBUS GROUND IN CRIMINAL CASES IS NOT ALLOWED FOR CIVIL CASES
As I have earlier on remarked, any ground which relates to or touches upon the weight of evidence is the omnibus ground – ground of appeal couched in the form of an omnibus ground applicable to criminal cases is not permitted by court to be used in civil cases as it would be disregarded and discountenanced: Egesie v. Elele (2001) 8 NWLR (Pt. 716) 582, (2000 ) FWLR (Pt. 10) 1677; Ofuai v. Nigerian Navy (2001) 16 NWLR (Pt. 739 ) 365; Maune. v. Abdul (2001) 4 NWLR (Pt. 702) 95. — Adekeye JCA.
⦿ BAROMETER FOR ASCERTAINING IDENTITY OF LAND
The barometer for ascertaining the identity of land is by reference to its boundaries, distinctive features and location as positively pleaded and supported by credible evidence duly adduced at the trial: Bassey v. Ekanem (2001) 1 NWLR (Pt. 694) 360. — Adekeye JCA.
⦿ WHERE PLAINTIFF CLAIMS FOR TRESPASS, DEFENDANT SAYS TITLE IS HIS; TITLE IS IN ISSUE
Where, as in the instant case, a plaintiff claims damages for trespass and an injunction and the defendant alleges that the land belongs to him, the plaintiff in order to succeed, has to prove not only that he was in possession of the land when the trespass was committed on it but also that, his own title to the land in dispute is better than that of the defendant. This is so because in the circumstance, title to the land in dispute is put in issue due to the competing claims: Ogbechie v. Onochie (No.2) (1988) 1 NWLR (Pt. 70) 370; Idesoh v. Ordia (1997) 3 NWLR (Pt. 491) 17; Olayioye v. Oso (1969) 1 All NLR 281; Adeshoye v. Shiwoniku (1952) 14 WACA 86; Omoyinmi v. Olaniyan (2000) 4 NWLR (Pt. 651) 38; Jiaza v. Bamgbose (1990) 7 NWLR (Pt. 610) 182; Amakor v. Obiefuna (1974) 3 SC 67; and Ekpan v. Ugo (1986) 3 NWLR (Pt. 26) 63. — Adekeye JCA.
⦿ RECOGNISED MODE OF ACQUISITION OF LAND IN NIGERIA
Under our laws – the recognized modes of acquisition of title to land are as follows: First settlement on the land and deforestation of the virgin land. Conquest during the tribal wars. Gift. Grant – customary. Sale. Inheritance. — Adekeye JCA.
⦿ FIVE WAYS OF PROVING OWNERSHIP OF LAND IN NIGERIA
In proving ownership, the appellant relied on proof by traditional evidence. In the Nigerian legal jurisprudence under our land law, there are five different ways or methods of proving ownership: Proof by traditional evidence. (b) Proof by production of documents of title duly authenticated unless they are documents twenty or more years old produced from proper custody. Proof by act of ownership in and over the land in dispute such as selling, leasing, making grant or farming on it or a portion thereof extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such proprietary acts are the true owners of the land. Proof by acts of long possession and enjoyment of the land, A which prima facie may be evidence of ownership not only of the particular piece of land with reference to which such acts are donebut also of other land so situate or connected therewith by locality or similarity that the presumption under Section 146 of the Evidence Act applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other pieces of land. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. These five methods of recognizing ownership are independent of each other as each one of them is sufficient to establish ownership. It is not necessary for a party to plead or give evidence of a number of methods. Once evidence in support of traditional history is cogent and not in conflict with that of the defendant and accepted by the court, it can support a claim for declaration of title to land. The appellant in the instant case gave cogent and plausible traditional history of the source of their ownership of the land. Even, the lower court accepted the evidence and the respondent did not dispute same. The appellant gave traditional evidence of who founded the land. — Adekeye JCA.
⦿ COURT WOULD NOT GRANT AN UNCERTAIN CLAIM
Where there is no certainty of the claim it is unsafe for any court to grant a declaration: Kaiyaoja v. Lasisi Egunla (1974) 12 SC 55 at 61; Kodilinye v. Mbanefo 2 WACA 336 at 336; Rasaki Salu v. Egeibh (1994) 6 SCNJ 223 at 238 and Chiari v. Akubueze (1992) (Pt. 1), 2 SCNJ 76 at 86. — Adekeye JCA.
⦿ RELIANCE ON AN INSTRUMENT OF GRANT
The respondent in effect adopted proof by production of documents of title duly authenticated unless they are documents twenty or more years old produced from proper custody. The production and reliance on an instrument of grant of title inevitably carries with it the need for the court to inquire into a number of questions including: Whether the document is genuine and valid. Whether it has been duly executed, stamped and registered. Whether the grantor had the authority and capacity to make the grant. Whether the grantor had in fact what he purported to grant. Whether it had the effect claimed by the holder of the instrument. Mere production of a valid instrument of grant does not necessarily carry with it an automatic grant of the relief of declaration relating to suchgrant unless the foregoing factors adumbrated above are taken into consideration: Enilolobo v. Adegbesan (2000) 11 NWLR (Pt. 698) 611; Romaine v. Romaine (1992) 4 NWLR (Pt. 238) 650; Ngene v. Igbo (2000) 4 NWLR (Pt. 651) 131. — Adekeye JCA.
⦿ TRESPASSER CAN ONLY SUE TRESPASSER
A trespasser in possession is only entitled to sue in trespass persons who are not the true owners of the land. As against a trespasser, possession attaches to title or ownership of the land in dispute and if he sues one who has a better title to land than himself, he cannot succeed: Mogaji v. Cadburv Nig. Ltd (1985) 2 NWLR (Pt. 7) 393; DaCosta v. Ikomi (1968) 1 All NLR 394; Kyari v. Alkali (2001) 11 NWLR (Pt. 724 ) 412, (2001) FWLR (Pt. 60) 1481. Trespass is an injury against possession, an unjustified entry into the land or any direct and immediate interference or slightest disturbance with the possession of land vested on another person. The comprehensive way of describing a trespass is to say that the defendant broke and entered the plaintiff’s land and did damage. A trespassers’ possession is not a legitimate or legal possession: DaCosta v. Ikomi (1968) 1 All NLR 394; Talabi v. Adeseye (1972) 8-9 SC 20; Badru v. Ozoh (1986) 4 NWLR (Pt. 38) 724. — Adekeye JCA.
⦿ SUIT AGAINST SOMEONE WHO HAS A BETTER TITLE FOR TRESPASS
It is true as a matter of legal theory that every unlawful andunauthorized entry on land in the possession of another is trespass for which an action in damages lies even if no actual damage is done to the land or any fixture on it. So, where a person alleges to have possession an interference with it, is an actionable trespass. A person who has title can maintain an action in trespass against anyone save one who can prove a better title. So, in a case such as this in which title was put in issue, the decisive question is who proves a better title? Aromire v. Awoyemi (1972) 2 SC 57; Adesanya v. Otueh (1993) 1 SCNLR 77. — Adekeye JCA.
⦿ THERE IS CONSTRUCTIVE POSSESSION
There is constructive possession when a person, who although not in actual possession, knowingly has both power and intention at a given time to exercise dominion and control over a person or persons, like servant, agent, tenant and whether or not the act proved is sufficient to establish possession is a question to be decided on the merit of each case. — Adekeye JCA.
⦿ DECLINING VALUE OF THE NAIRA IS TAKEN INTO CONSIDERATION WHEN AWARDING DAMAGES
One of the factors taken into consideration by a court before award of damages is the declining or decreasing purchasing power of the naira. The appellant claimed for N500,000.00 (five hundred thousand naira) in November 2003 when this action was instituted. The purchasing power of the naira, the Nigerian currency has not remained static. I am aware that it is trite law that a court cannot grant what a party has not claimed, neither can a court play the role of a father Christmas playing surprises with gifts. I have allowed the competing right of the appellant to justice to weigh onmy mind. I therefore invoke section 15 of the Court of Appeal Act to award N750,000.00 (seven hundred and fifty thousand naira) as damages in the circumstance of this case in favour of the appellant. The appellant asked for perpetual injunction restrainingthe defendant his heirs, agents, servants and privies from further trespass on the said parcel of land. — Adekeye JCA.
⦿ RATIONALE BEHIND PERPETUAL INJUNCTION
A perpetual injunction is based on final determination of the right of parties and it is intended to prevent permanent infringement of those rights and obviate the necessity of bringing action after action in respect of every such infringement. Once there is a finding for trespass, an injunction must be granted so as to protect the possession in a party: Enang v. Adu (1981) 11-12 SC 25; Adegbite v. Ogunfaolu (1990) 4 NWLR. — Adekeye JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Adekeye JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. S. A. Akanbi
⦿ FOR THE RESPONDENT(S)
Mr. Shola Afolayan
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
