➥ CASE SUMMARY OF:
Engineer Bayo Akinterinwa & Anor V. Cornelius Oladunjoye (SC.98/94, 7 April 2000)
by Branham Chima.
➥ ISSUES RAISED
Trespass to land;
Claim not claimed;
➥ CASE FACT/HISTORY
This is an appeal by the defendants from the judgment of the Court of Appeal dated 10 December 1993; whereby the Court of Appeal confirmed with some amendment the decision of the trial Ondo State High Court dated 19 April 1989. The trial court declared the grant of the land in question to the 1st defendant null and void but upheld the grant of the same piece of land to the plaintiff. He also awarded the plaintiff N1,000.00 as general damages for trespass.
Now, the case of the plaintiff was that he bought the land in question from the Famubo family of Akure in 1971 for #400. A receipt for this sum dated 15/7/71 was tendered and admitted in evidence as exhibit ‘A’. He called as a witness Joseph Famubo (PW 1) the head of Famubo family also known as Arowogbadamu family. He testified that the family sold the land to the plaintiff. He said they showed the plaintiff the land and he went into possession. He denied that his family ever gave land to the defendants. The witness disclosed that the 5th defendant was counsel for his family in the previous land cases in suits No. AKA/ICL/67, AK/14A/70 which they won. The 5th defendant later got Oba Deji of Akure to convey to him (5th defendant) part of the land he won against the Deji for Famubo family. Thereafter the 5th defendant sold part of the land he acquired to others. The defendants’ case as related by the 5th defendant is this. The 5th defendant was the Famubo family lawyer for years. He represented the family in court in respect of disputes over the family land.
It was a large expanse of land. It was in 1964 when the 5th defendant approached the then head of the family one James Omeiye for a portion of the land to be sold to him and his relatives. The family obliged and took him to the land where he marked out the are which he wanted for himself, his wife, his wife’s brother and Dr. Ogunleye. There were together four plots. The 5th defendant paid a total of #550 to the family. The defendants were subsequently let into possession of the plots. Conveyances were later executed in their favour separately by the Deji of Akure Oba Ademuwagun Adesida as the legal trustee of all Akure land. The 5th defendant. Mrs. Bello and Dr. Ogunleye have since developed their plots. After hearing both sides to the dispute the trial court entered judgment for the plaintiff. The defendants’ appeal to the Court of Appeal, Benin Division was dismissed. The defendants have further appealed to this court upon a number of grounds.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Which of plaintiff – respondent and first defendant – appellant has a better claim to the land in dispute?
RESOLUTION: YES, IN RESPONDENT’S FAVOUR.
[THERE WAS PAYMENT OF MONEY AND DELIVERY OF POSSESSION TO THE PLAINTIFF/RESPONDENT
‘In order to constitute a valid sale of land under customary law, there must be payment or money and delivery of possession of the land sold in the presence of witnesses. This custom is of universal application throughout Nigeria See Egonu v. Egonu (1978) 11’9712 SC 111; Cole v. Folami (1956) SCNLR 180; 1 FSC 66 (1956) SCNLR 180. In this case, there is evidence that the plaintiff paid 400pounds to the head of Famubo family Joseph Famubo (PW 1) for the land. PW 1 through PW4 delivered possession of this land to the plaintiff. All this took place in the presence of witnesses. It would appear plain that from the outset the case of the defendants was bound to fail. I turn now to the case of the defendants. It really had no legs on which to stand. Let me explain.’
THE CASE OF THE DEFENDANT/APPELLANT IS FICTION
‘The case of the defendants is stranger than fiction. The first significant thing to note is that Mr. Bello was Famubo’s family lawyer. He successfully prosecuted the plaintiff’s case against the Deji of Akure. Secondly, he exeised a portion of the same land to himself, his wife, his brother-in-law and Dr. Ogunleye, and tried so hard to fool everybody into thinking that he bought same from the family. Next he got the Deji of Akure to convey the land he won against the Deji to himself and his relations to the exclusion of members of the family he alleged sold the land to him. It was not his case that all members of the Famubo family were dead. It seems to me that for Mr. Bello to unashamedly contend this position offends common sense and justice. The astonishing thing is that he has fought this case up to this court. I believe that he does not have conception of the implication or all this. But I say no more.’
HOWEVER, THE RESPONDENT/PLAINTIFF DID NOT CLAIM FOR TITLE TO LAND
‘In the present case, it is not in dispute that the claim of the plaintiff was for damages for trespass and injunction. He did not seek a declaration of title to the disputed piece of land. So the declaration of title granted by the court below was c1early a relief not claimed by the plaintiff. I do not think there is any justification for the grant. This is because a court has no jurisdiction to give to a party a relief he has not asked for: see Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Awosile v. Sotubo (1992) 5NWLR (Pt.243) 514;Ayanboye v. Balogun (1990)5 NWLR (Pt.151) 392. The plaintiff in this case is clearly not entitled to the declaration of title not claimed by him. In the result. I set aside the declaration of title in his favour and restore the decision of the learned trial judge in the following terms: “In sum, I declare the purported grant of the piece of land at Okuta Elerinla on Ilesha Road, evidence by exhibit “H” and made to Engineer Akinterinwa null and void. I uphold the grant of the same piece of land to Cornelius Olaclunjoye.”’]
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.
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✓ DECISION:
‘Subject to the above, this appeal by the defendants lack merit. Accordingly. I dismiss it with N10,000.00 costs in favour of the plaintiff.’
➥ FURTHER DICTA:
⦿ OWNER OF LAND AND INTRUDER CANNOT BE IN POSSESSION AT THE SAME TIME; BETTER TITLE SUCCEEDS
The plaintiff and the 1st defendant say that they are in possession. The position however is that an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. Possession resides in the claimant that establishes a better title. See Pius Amakor v. Benedict Obiefuna (1974) 3 SC 67 at 82; Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt.93) 215. — Katsina-Alu JSC.
⦿ PARTIES ARE BOUND BY THEIR PLEADINGS
It is trite law that parties are bound by their pleadings: See Obimiami Brick and Stone (Nig.) v. A.C.B. Ltd. (1992) 3 NWLR (Pt.229) 260. The essence of pleadings is to compel the parties to define accurately and precisely the issues upon which the case between them is to be fought to avoid element of surprise by either party. It also guides the parties not to give evidence outside the facts pleaded as evidence on a fact not pleaded goes to no issue – see Onwuka v. Omogui (1992) 3 NWLR (Pt.230) 393; Emegokwue v. Okadigbo (1973) 4 SC 113. — Katsina-Alu JSC.
⦿ WHERE BOTH PARTIES KNOW THE LAND, UNCERTAINTY CANNOT ARISE
The land in dispute herein referred to by both parties can only be the land in respect of which Plaintiff claims damages for trespass and perpetual injunction against the Defendant. it is therefore strange and absurd for learned Counsel to the 1st Defendant to contend that the identity of the land in dispute is uncertain. It has always been accepted in our courts in land cases that where the area of land in dispute is well known to the parties. the question of proof not being really in dispute does not arise. In such a situation it cannot be contended that the area claimed or can the land in dispute be described as uncertain – See Etiko v. Aroyewun (1959) 4 FSC 129; (1959) SCN LR 308; Osho v. Ape (1998) 8 NWLR (Pt. 562) 492. In the circumstances of this case the identity of the land in dispute cannot he described as uncertain since both parties know and have accepted it as the land in dispute. — Karibi-Whyte JSC.
⦿ PROOF OF TITLE IS PRIMA FACIE PROOF OF POSSESSION
It is a well settled principle of our land law that when there is a dispute as to which of two persons is in possession, the presumption is that the person having title to the land is in lawful possession – See Abotche Kponuglo v. Ada Kodadja (1934-35) 2 WACA 24. It is also the law that proof of ownership is prima facie proof of possession – See England v. Palmer 14 WACA 659. — Karibi-Whyte JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Katsina-Alu, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
