💎 CASE SUMMARY OF:
Atipioko Ekpan & Anor. v Chief Agunu Uyo & Ors. (1986) – SC
💎 LITE HOLDING
To sue for trespass, the plaintiff must be in exclusive possession of the parcel of land.
💎AREAS OF LAW
Atipioko Ekpan & Anor.
Chief Agunu Uyo & Ors.
(1986) JELR 46553 (SC)
💎 LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Dr. Enemeri.
* FOR THE RESPONDENT
– Chief Ororho.
💎 FACT (as relating to the issues)
The main issue raised for determination in this appeal is as to the absence of any locus standi in the plaintiffs’/respondents’ to institute the proceedings in respect of which the judgment delivered in the High Court led in the first instance, to the appeal to the Court of Appeal, and now, in the second instance, a further appeal to this Court from the judgment of the Court of Appeal.
The claim before the High Court of Bendel State, was a simple claim of damages for trespass and an order of perpetual injunction.
1. Whether the plaintiffs had any locus standi to institute the action claiming damages for trespass and an order of injunction against the defendants/appellants.
2. Whether the plaintiffs/respondents have proved and established a case of trespass against the defendants/appellants.
3. Whether the plaintiffs/respondents were entitled to be granted an order of injunction against the defendants/respondents on the pleadings and evidence.
💎 RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED, with N550 cost against the respondent]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANTS.
i. “I am unable to accept the contention of learned counsel for plaintiffs/respondents. The evidence of the 5th P.W. and the 2nd plaintiff on the issue of grant of the farmland to the 5th P.W. cannot bear the meaning the learned justices (Okagbue and Pepple, JJCA) attached to it. Firstly, it should be observed and noted that land required for farming is meant for growing crops. The crops to be planted whether yam seedling, maize seeds or cassava cuttings have to be planted in the soil. They take time to germinate, to grow, to mature and to be harvested. In the context of the case, only the crops belonging to the 5th P.W. Ezebue Ukavwe have to be grown on the farm land granted to the 5th P.W. for the duration of the grant no matter how short it is. There is no evidence that the plaintiffs or any of them can also plant their crops on the same piece of land given to the 5th P.W. at the same time as he growing his crops on it. It is therefore clear that the grant to him cannot give him anything less than exclusive possession of the area granted to him for farming to enable him protect the land and crops from any trespasser. Whatever easements there are (and there is no evidence) which the landlords may enjoy do not, in my view, derogate from the grant of exclusive possession for farming purposes. If the concept of grant of possession is detached from the concept of allotment of parcels of family land among members of the family for farming, the purpose of allotment is totally defeated. I fail to see the rationale for embarking on the exercise of allotment if the intention were not to confer rights of possession or exclusive use of the parcel alloted on the allottee notwithstanding that the reversion is in the family.”
ii. “Since the plaintiffs/respondents had parted with possession of the land to the 5th P.W. for farming and since the Crops damaged on the land were the crops of the 5th P.W., the plaintiffs/respondents had no locus standi to institute this action for damages for trespass and injunction. Their interests did not suffer any damage and they cannot, under our law, claim damages for the disturbance of the possession of their tenant which did not damage the reversion.”
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANTS.
i. “P.W. 5 had the exclusive power of using the rights given him to farm on the land. No other person had the right to farm on the land given to him. He was in occupation or physical control of the land. He had the exclusive power of using the land for farming for the period. What does exclusive occupation mean? I will adopt the definition given by Scrutton, L J. in Back v. Daniels (1925) 1 KB.525 CA at p. 543. There he said: ‘I agree…that exclusive occupation does not mean the power of excluding one else from the land but does mean the exclusive power of using the rights given him in the soil.’ The exclusive occupation by the 5th P.W. does not mean the power of excluding everyone else from the land but does mean the exclusive power of using the rights of farming given him in the soil.”
3. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPELLANTS.
i. “It is therefore clear to me that the respondents had no possession which was disturbed by the appellants at the material time to enable them to institute the action for damages for trespass to the land and an order of injunction. The order of injunction as well as the damages awarded was not justified by the evidence.”
💎 ENDING NOTE BY LEAD JUSTICE
💎 REFERENCED (STATUTE)
💎 REFERENCED (CASE)
In Mogaji and Ors. v. Cadbury Fry (Export) Ltd. (supra) at p. 88, Madarikan, JSC, delivering the judgment of the Supreme Court said: “Possession of a parcel of land means the occupation or physical control of the land either personally or through an agent. As stated by Lord Fitzgerald in Lord Advocate v. Young (1887) 12 App. Cas. 544 at p. 556, by possession is meant possession of that character of which the thing possessed is capable. Thus, if a person adduced evidence that he or his agent or servant were cultivating a farmland that would be evidence sufficient to establish that he was in possession of the land. Similarly, if a person erects on a parcel of land a signboard bearing his name, he hereby gives notice to all and sundry that he is in possession of the land.”
💎 REFERENCED (OTHERS)
💎 NOTABLE DICTA
⦿ STATEMENT OF CLAIM SHOULD NOT BE TOTALLY DIFFERENT FROM WRIT
Although it is the law that a statement of claim supersedes the writ of summons, parties are not allowed to set up a totally different allegation in their statement of claim without amendment. – Obaseki, JSC. Ekpan v. Agunu (1986)
⦿ RULES OF COURT ARE MADE FOR BENEFITS OF THE COURT AND LEGAL PRACTITIONERS
The Rules of Court made to regulate the practice and procedure in the Supreme Court and indeed Rules made for the regulation of practice and procedure in the various courts in Nigeria have not been made for or to lie only in the statute books. They are made for the benefit of courts on the one hand and the legal practitioners and litigants in our courts on the other hand being guidelines for steps to be taken in any proceeding they must be followed. – Obaseki, JSC. Ekpan v. Agunu (1986)
⦿ DAMAGE TO CROP GROWING ON LAND, IS TRESPASS TO LAND
It is a misconception to regard damage for crops growing on land as not belonging to a claim for trespass to land. Quic quid plantatur solo, solo cedit. – Obaseki, JSC. Ekpan v. Agunu (1986)
⦿ ALLOTMENT OF LAND SIGNIFIES GIVING OF EXCLUSIVE POSSESSION
I find myself unable to accept that a tenant given a parcel of land and put in possession by a family to farm has no exclusive possession of the land for the duration of his grant. The idea of giving out farmland in parcels and putting allottees or tenants in possession of their respect parcels is to give them exclusive possession to their respective parcels of land notwithstanding any easement that may be available. Without revocation of the grant, the use to which the land was put by consent, i.e. farming, cannot be disturbed without attracting liability in damages for trespass. The action filed by the plaintiffs/respondents by itself is eloquent testimony to the fact that no one is allowed to disturb the possession of land given to the tenant by the family. Also if a tenant’s possession is disturbed, our 1963 Constitution and the Constitution of the Federal Republic of Nigeria 1979 as the laws of the land give him a right to sue for redress. – Obaseki, JSC. Ekpan v. Agunu (1986)
⦿ PLANTING OF CROPS ON LAND IS A WAY OF ASSERTING POSSESSION
Planting of crops on land is one of the most effective means of asserting possession of the parcel of land. The maxim is quic-quid plantatur solo, solo cedit. Whatever is fixed to the soil belongs to the soil. So long as the crops remain standing on the farm, the tenant, 5th P.W. is in exclusive possession. – Obaseki, JSC. Ekpan v. Agunu (1986)
⦿ THERE IS NO SUCH THING AS CONCURRENT POSSESSION OF LAND
I agree that where two persons claim possession at the same time that is the correct proposition of law as there is nothing like concurrent possession of land by two persons. If the party who has a better title has divested himself of possession in favour of a third party he has no possession which can be disturbed by mere entry and which will entitle him to sue for damages for trespass. – Obaseki, JSC. Ekpan v. Agunu (1986)
⦿ EXCLUSIVE POSSESSION IS REQUISITE TO PROVE TRESPASS TO LAND
In order to succeed in an action of trespass to land, plaintiff must prove and have present exclusive possessory title i.e. he must be in exclusive occupation. – Obaseki, JSC. Ekpan v. Agunu (1986)
⦿ POSSESSION OF LAND MEANS OCCUPATION OF LAND
What is possession of a parcel of land? What does possession of a parcel of land mean? Possession of a parcel of land means the occupation or physical control of the land either personally or through an agent or servant. – Obaseki, JSC. Ekpan v. Agunu (1986)
⦿ TRESPASSER CANNOT SECURE POSSESSION OF LAND BY THAT FACT
A trespasser does not by the act of trespass secure possession of the land in law, Jimoh Adebakin v. Sabitiu Odujebe (1972) 6 SC. 208 at 210. – Obaseki, JSC. Ekpan v. Agunu (1986)