⦿ CASE SUMMARY OF:
S. A. Ogunbiyi v. S. B. Adewunmi (1988) – SC
– Title to land;
– Possession of land;
– Better title;
S. A. Ogunbiyi
S. B. Adewunmi
(1988) NWLR (Pt.93)215;
(1988) 12 S.C (Pt III) 144;
⦿ LEAD JUDGEMENT DELIVERED BY:
C.A Oputa, JSC
* FOR THE APPELLANT
– M. O. Oseni.
* FOR THE RESPONDENT
– R.A. Ogunwole.
⦿ FACT (as relating to the issues)
Pleadings were ordered by the trial High Court, filed and exchanged. From the averments in the pleadings it was common ground that the radical title to the land in dispute resided in the Ilori Family. Both parties pleaded and relied on purchase: the plaintiff from the Ashiru bra neb of the Ilori family; the defendant from the entire three branches of the Ilaori family.
The plaintiff’s case was based on a partition of Ilori family land and a sale by the Ashiru branch of their own share after such partition.
The defendant’s case was that there was no partition. Rather there were several allotments of land to members of the family for use but not transferring title thereby. The defendant bought the land in dispute being part of the unpartitioned Ilori family land in 1969 and successfully defended an action brought against him by Jimoh A. Odutola in 1972 in respect of the land in dispute.
The trial court gave trial court gave judgement in favour of the defendant. The plaintiff appealed to the Court of Appeal and lost. The plaintiff have further appealed to this Supreme Court.
1. Whether from the facts and circumstances of this case, it can be maintained that the Plaintiff/Appellant established such possession as to enable him succeed on the issues of trespass and injunction?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED, WITH N500 COST AGAINST THE APPELLANT]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Now it has been proved and the appellant has conceded that he was not the owner of the land in dispute. His case for trespass will now stand or fall on his proof of exclusive possession before the trespass complained of. He from the facts as found, can never claim not be awarded an injunction. Conceptually, trespass to land consists in any unjustifiable intrusion by one person upon land in the possession of another. Also trespass is actionable at the suit of the person in possession of land, who can claim damages or injunction or both. In this case, the Plaintiff/Appellant’s possession derives from the purported sale of the land in dispute to him per Ex. P1. With the concurrent finding that Ex. P1 did not and could not transfer title to him the foundation of his possession became extremely shaky and tenuous. Had he a right to possession? My answer is No. Had he a right of possession? My answer is still NO. His possession was merely physical occupation devoid of the right to possession and the right of possession. It was more in the nature of trespass.
ii. Now coming to the facts, the trial Court found that the Defendant/Respondent bought the land in dispute in 1969. He paid the purchase money and was let into possession. There was therefore a valid sale of the land in dispute to the Defendant under customary law. The fact that the Defendant was in addition given a conveyance under English form per Ex. D2 in 1973 cannot detract from the sale under customary law. The defendant merely wanted to make assurance doubly sure. Unlike the Plaintiff/Appellant, the Defendant/Respondent had since 1969 both a right of possession of, and a right to possess, the land in dispute. In defence of his rights in and over the land in dispute, the Defendant successfully defended suit 1/200/73 instituted against him by one J.A. Odutola. That itself, constitutes an act of possession on the part of the Defendant/Respondent. In the circumstances, it cannot be said that the Plaintiff/Appellant’s possession was exclusive. NO, it was not.
⦿ SOME PROVISIONS
Section 145 of our Evidence Law: “when the question is whether any person is owner of anything of which he is shown to he in possession the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
The policy of this court, as well as of other appellate Courts of all Common Law jurisdictions is not to disturb the concurrent findings of two lower courts unless it unmistakably appears that there was a serious error either of lower procedure which if not corrected would lead to a miscarriage of justice. – Oputa, JSC. Ogunbiyi v. Adewunmi (1988)
And when two people are in the same field each claiming possession he wins who can establish title. – Oputa, JSC. Ogunbiyi v. Adewunmi (1988)
By the same token a finding of ownership or a concession of ownership by one party is also a finding or concession of possession for ownership includes possession. – Oputa, JSC. Ogunbiyi v. Adewunmi (1988)
It is settled law that where two persons claiming title and possession adversely to each other claim to be in possession [of a land], possession resides in him who can establish a better title. – Obaseki, JSC. Ogunbiyi v. Adewunmi (1988)