SALAMI v. AKINTOYE & ANOR

CITATION: (2016) LPELR-41472(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 21ST OCTOBER, 2016Suit No: CA/L/441/2012

Before Their Lordships:

SIDI DAUDA BAGE Justice, Court of AppealJOSEPH SHAGBAOR IKYEGH Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal

BetweenALHAJI RAFIU SALAMI - Appellant(s)

And1. CHIEF SOLOMON AKINTOYE2. CHIEF SUNDAY AJIBODE - Respondent(s)

RATIO DECIDENDI

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1. EVIDENCE - PROOF OF TITLE TO LAND: Whether a party whopleads traditional title can also rely on acts of possession andownership"A holistic perusal of the record bears it out that although therespondents relied on the founding of the land by their progenitors,as the spring-board of their case, their evidence built on thefounding of the land was tailored to their long possession andenjoyment of the land for over 200 years. The case of Matanmi v.Dada (supra) at 630 re-emphases it that title to land can beestablished by acts of longpossession and enjoyment of the land, which is one of theindependent methods of proving title to land vide the lead case ofIdundun v. Okumagba (supra).Proof of title to land by long possession and enjoyment of land istherefore independent of proof of title to land by traditional history.To rely on the proof of title to land by long possession andenjoyment of land, the party so relying cannot hinge his case ontraditional evidence, for example.Thus in Balogun v. Akanji (1988) 1 NWLR (pt.70) 301, the radicalroot of title pleaded and relied upon which first settlement, as inthis case, it held that the years or period covered by the foundingof the land by first settlement up to the time of the dispute couldnot be used to establish title to the land by long possession andenjoyment of the land on the footing that the root of title of firstsettlement, a specie of traditional evidence, which is different fromtitle to long based on acts of land possession and enjoyment ofland. See Balogun v. Akanji (supra) at 316 - 317 thus -"As my learned brother has rightly referred to, traditional evidenceis certainly one of the 5 ways by which title to land can beestablished (see Idundun v. Okumagba (1976) 9 and 10 S.C. 227).... exclusive possession and acts of possession for so long is indeeda different and separate method of establishing title ..." (perNnamani, J.S.C., (now of blessed memory).Having known and pleaded their source or root of title as firstsettlement, an aspect of traditional evidence or history, the acts oflong possession and enjoyment of the land became secondary tothe radical root of title projected by the respondents. Because asheld in Balogun v. Akanji (supra) at page 323 -"... acts of possession will not arise where the root of title is known,and pleaded and proved ...."Per IKYEGH, J.C.A. (Pp. 15-17, Paras. D-C) - read in context

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2. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: Meaning andnature of traditional evidence"In essence the traditional history mentioned in Section 66 of theEvidence Act (supra) is a bit of ancient history recalling orallyrights or what had happened beyond living memory. It deals withevents beyond human memory by the recollection of what hadhappened in the past and has unbroken link or connection with thepresent ownership of a disputed parcel of land. See Alade v. Awo(1975) 5 U.I.L.R. (pt.1) 31; the Privy Council case of The Stool ofAbinabina v. Enyimadu 12 W.A.C.A. 171 at 172 (per Lord Cohen);and Dike v. Nzeka (1986) 4 NWLR (pt.34) 144 at 158."Per IKYEGH,J.C.A. (P. 10, Paras. B-D) - read in context

3. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: Nature oftraditional evidence that will sustain a claim for declaration of titleto land"One of the five possible methods of proving title to land is bytraditional evidence or history vide Idundun and Ors. v. Okumagba(1976) 9 - 10 SC 224. The components of traditional history orevidence of inheritance comprise pleaded facts and evidence on -(a) how the land was founded for example, by conquest;deforestation or settlement; and grant(b) the person(s) who first founded the parcel of land andexercised original acts of possession or ownership over it.(c) the persons whom the title in respect of the parcel of landdevolved since its founding - the genealogy tree comprising thenames of the person(s) that first founded the land and the humanchain of intervening owners up to the present owner.See Lebile v. Registered Trustees of Cherubim and SeraphimChurch (2003) 2 NWLR (pt.804) 399 at 419, Ewo v. Ani (2004) 1SCNJ 272."Per IKYEGH, J.C.A. (Pp. 10-11, Paras. E-C) - read incontext

4. EVIDENCE - PROOF OF TITLE TO LAND: Whether a Claimantcan rely on more than one mode of proving title to land"...For it was held in Matanmi and Ors. v. Dada and Anor. (2013) 2S.C.N.J. 616 at 629 - 630 per the lead judgment of Fabiyi, J.S.C., (ashe was) that- "It is now beyond argument, as it has beenconsistently held by this Court that there are five ways of provingtitle to land. A claimant may rely on more than one mode ofproving title; if he so desired; however, one mode of proving titlewill suffice, if properly established to the satisfaction of the Court..." (My emphasis)."Per IKYEGH, J.C.A. (P. 15, Paras. A-D) - read incontext

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5. LAND LAW - POSSESSION OF LAND: Who does the law ascribepossession to where two parties claim to be in possession of a land"Accordingly, the Court below was right in holding in its judgmentin page 74 of the record that -"I am satisfied therefore that the plaintiffs have proved before thisCourt that they have exclusive possession of the land. Besides thelaw is that where two parties claim to be in possession of land thelaw ascribes possession to the one with a better title ..."See also Balogun v. Akanji (supra) at 314 thus - "Once it has beenestablished that the plaintiffs had been title to the land in disputeand the defendants were on the land, without the permission ofthe plaintiffs, then the claim by the plaintiffs for trespass againstthe defendants has been established and ought to have beengranted" (per the lead Judgment of Uwais, C.J.N.). See further Osujiv. Isiocha (1989) 3 NWLR (pt.111) 623 and Ayinde v. Salawu (1989)3 NWLR (pt.109) 297 to the effect that a claimant with defectivetitle to land could maintain an action in trespass and injunctionagainst a defendant who cannot prove a better title once theclaimant is in exclusive possession of the land." Per IKYEGH, J.C.A.(Pp. 18-19, Paras. A-A) - read in context

6. LAND LAW - TRESPASS TO LAND: Whether an action forcontinuing trespass can be defeated by limitation of time"The continuing trespass in question removed the operation of thestatute of limitation or time bar vide Obueke and Ors. v. Nnamchiand Ors. (2012) 5 S.C.N.J. 455 or (2012) 12 NWLR (pt.1314) 327 at351 - 352. Time does not therefore run against continuingtrespass, so the plea of laches, standing by, acquiescence andstale claim which are time-bound would not be affected when timedoes not run; and I respectfully so hold."Per IKYEGH, J.C.A. (P. 20,Paras. B-D) - read in context

7. LAND LAW - LACHES AND ACQUIESCENCE: Whether a claimantwho has challenged a trespasser can be accused of standing byHaving challenged and warned the appellant over his trespass tothe land to no avail, the respondents cannot be accused ofstanding-by, acquiescence, laches, and stale claim. See Morayo v.Okiade (1942) 8 W.A.C.A. 46 at 47 - 48."Per IKYEGH, J.C.A. (P. 20,Paras. E-F) - read in context

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8. LIMITATION LAW - LIMITATION PERIOD: How to determineperiod of limitation"Moreover, in deciding limitation period for an action only theclaim, not the defence, should be looked at vide Woherem v.Emereuwa (2004) 13 NWLR (pt.890) 398 at 410."Per IKYEGH, J.C.A. (Pp. 20-21, Paras. F-A) - read in context

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JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the

Leading Judgment): The appeal is against the decision of

the High Court of Justice of Lagos State (the Court below),

whereby it awarded title to a parcel of land situate at

Ishagatedo in Oshodi/Isolo Local Government area of Lagos

State, also known as No. 4 Adebajo Street, Ishagatedo, to

the respondents to the effect that they are entitled to a

statutory right of occupancy over the said parcel of land

situate, lying and being at Ishagatedo in Oshodi/Isolo Local

Government Area of Lagos State known as No.4 Adebajo

Street Ishagatedo with N50,000 general damages for

trespass and an order of perpetual injunction restraining

the appellant, his servants, agents and privies or howsoever

described from committing further act(s) of trespass on the

disputed plot of land.

The action was commenced by the named respondents for

themselves and on behalf of Ishagatedo Community, in a

representative capacity. The case was based on traditional

history and long possession of the disputed plot of land.

The evidence is that the parcel of land was originally

settled upon by one Akanbi with one Bamgbose as

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co-founders of the land.

The evidence indicated that the respondents' ancestors

hailed from Ishaga-Orile in the Ilaro Division of the old

Western Nigeria. They migrated and settled in the land now

known as Ishagatedo including the land in dispute 200

years ago and have been exercising acts of ownership over

the said parcel of land measuring 383.3 acres or 153.3

hectares without let or hindrance from any one. It is upon

the above evidence that the Court below found in favour of

the respondents its judgment.

The plea of laches and acquiescence and limitation law

sponsored by the appellant against the respondent were

dismissed by the Court below before it entered judgment

for the respondents against the appellant as stated (supra).

The appellant was dissatisfied with the judgment of the

Court below and filed a notice of appeal with 6 grounds of

appeal vide pages 154 – 157 of the record.

The appellant's brief of argument dated 11.07.12, was filed

on 12.07.12. An order of the Court made on a notice of

motion filed on 05.10.12 granted the appellant leave to

argue the appeal on the appellant's brief alone on 09.02.16,

and it was so argued on

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27.09.16.

The appellant's brief of argument raised these issues for

determination -

"(1) The main issue for determination in the Appeal

is whether on the pleadings and the evidence before

the Court, the plaintiffs are entitled to succeed on

their claims. This issue covers grounds 1, 2, 5 and 6

of the Grounds of Appeal."

(2) The subsidiary issues are:-

(a) Whether the findings of the Learned Trial Judge

on the special defence of laches acquiescence

standing by and stale claim is supportable on the

evidence before the Court.

(b) Whether the learned trial Judge has a right to

make his own findings suo motu in respect of that

date of accrual of cause of action inspite of the

categorical and unequivocal evidence before the

Court that the defendant built a house on the land in

dispute in 1980 which evidence was a common

ground between the parties. The subsidiary issue

covers grounds 3 and 4 of the Grounds of Appeal."

The appellant contended that the respondents pleaded

traditional history in paragraphs 5, 6 and 7 of the

statement of claim and their evidence showed that the

respondents' ancestors led by Akanbi and Bamgbose

migrated from

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Ishaga-Orile near Abeokuta and settled in the disputed area

over 200 years ago dating back to the Dahomean war

without pleading and proving the origin of the land and its

genealogy, therefore the claim based on traditional history

collapsed citing in support the cases of Lebile v.

Registered Trustees C and S (2003) 2 NWLR (Pt. 804)

399, Uchendu v. Ogboni (1999) 5 NWLR (Pt.603) 337

at 353, Obioha v. Duru (1994) 8 NWLR (Pt.365) 631,

Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263,

Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301,

Uchendu v. Ogbo (1999) 5 NWLR (Pt. 603) 337 at 353.

It was further submitted that a party claiming a declaration

of title to land based on disputed inheritance and fails to

establish his case cannot fall back on long possession and

acts of ownership to prove title citing in support the cases

of Owhonda v. Ekpechi (2003) 17 NWLR (pt. 849) 26,

Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) 610, Fasoro

v. Beyioku (supra), Mogaji v. Cadbury Nig. Ltd. (1985)

2 NWLR (Pt. 7) 393, Ogunleye v. Oni (1990) 2 NWLR

(Pt. 135) 745 at 782.

It was further argued that the respondents relied on

traditional history as their radical root of title to the

disputed

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piece of land, but, having failed to properly plead and prove

the founder of the land; in what manner the land was

founded as well as the circumstances leading to its

founding; plus names or particulars of the successive

owners or trustees through whom the land devolved from

the founder to a living descendant(s) the Court below

should have dismissed his case citing in support the case of

Alli v. Alesinloye (2000) 6 NWLR (pt. 660) 177.

It was argued on the second issue that the plea of laches

and stale claim that the respondents had admitted under

cross-examination in page 29 line 22-23 of the record that

the appellant had occupied the house in the disputed piece

of land since 1980; that the PW2 also testified in page 33

line 21-28 of the record that the appellant had been in

occupation of the house at No. 4 Adebajo Street since 1980,

and that further evidence from the appellant in pages 38-39

of the record indicated that the appellant's people started

living in the land as far back as 1950/51, while the other

house was built in 1980.

I t was further submitted that the Court below

misunderstood the evidence of the P.W.1 when it held that

the appellant

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wanted to convert his residence to permanent structure

contrary to the P.W.1's evidence in page 32 lines 10-12 of

the record that the appellant trespassed on their family

land in 1980; also, that the PW1 did not testify that it was

in 1997 or at any other time that the appellant wanted to

make a permanent structure in the parcel of land, therefore

the Court below made improper evaluation of the evidence

to reject the plea of laches, acquiescence and stale claim

when there was evidence in the record that the appellant

had built and occupied a house in the parcel of land since

1980 while their ancestors, "The Onigunnu" started living

in the disputed parcel of land since 1950/51.

Consequently, the appellant urged that the appeal be

allowed.

Paragraphs 1-17 of the statement of claim pleaded as

follows-

“STATEMENT OF CLAIM

1. The 1st Plaintiff is the Baale of Ishagatedo.

2. The 2nd Plaintiff is the Otun Baale of Ishagatedo.

3. The Plaintiffs are the accredited representatives of the

Ishagatedo Community, Ishagatedo Town, near Mushin in

the Lagos State of Nigeria.

4. The Defendant lives at No. 4, Adebajo Street,

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Ishagatedo.

5. The Plaintiff are the descendants of Akanbi and

Bamgbose and the other co-founders of the area known as

Ishagatedo in Mushin and they sue for themselves and as

representatives of the Ishagatedo Community of Lagos

State.

6. The parcel of land in dispute is situate, lying and being at

No. 4, Adebajo Street, Ishagatedo in Mushin and forms part

of the land originally settled upon by Akanbi and Bamgbose

and the other co-founder.

7. The Plaintiffs aver that their ancestors were from Ishaga-

Orile in the Ilaro Division of the Old Western Nigeria, who

settled upon the land now known as Ishagatedo including

the land in dispute, over 200 years and exercising all

maximum acts of ownership over the said land without let

or hinderance from anyone.

8. The Ishagatedo Community land covers an area of about

383.3 Acres or 153.3 Hectares as shown on composite

survey plan No. SJA/004D/95/L drawn by S.J. Anthony

Licensed Surveyor.

9. The land area in dispute is marked and is shaded on the

said composite plan.

10. The Lawful Attorneys for the Ishagatedo Community

are:-

1. Oba Aileru, Olu of Mushin

2. Chief Jinadu Owodeyi

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(former Baale of Ishagatedo)

3. Olaegba Odeyale

4. Tijani Fadare

5. Daniel Agborin

6. Lawal Dada, and the relevant Power of Attorney dated

10th November, 1969 is registered as No. 54 at page 54 in

volume 1284 of the Register of Land in Lagos.

11. The Defendant did not purchase or lease the land in

dispute from the lawful Attorneys of the Plaintiffs.

12. The Defendant was challenged when he was found,

trespassing on the land in dispute but he claimed to have

purchased from the Isolo Community.

13. The Defendant was duly informed that Isolo Community

had no right or the mandate of the Plaintiffs to sell the land

and did not account to the Ishagatedo Community for the

alleged sale to him.

14. The Defendant despite repeated warnings has

continued his act of trespass on the said Plaintiffs land.

15. The Defendant has threatened to deal with the Plaintiffs

if they ever come near the land in dispute.

16. The Defendant pleads and will rely on all documents

referred to in paragraphs 8, 9, 10 of the Statement of

Claim.

17. Whereof the Plaintiffs claims as per their Writ of

Summons.

Dated this 27th day of May

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1977."

The writ of summons upon which the reliefs were sought in

the statement of claim endorsed that -

“INDORSEMENTS

The Plaintiff's claim is for:-

(a) Declaration that they are entitled to the statutory right

of occupancy of all that piece or parcel of land situated,

lying and being of Isagatedo in the Oshodi/Isolo Local

Government Area of Lagos State. Known as No. 4 Adebajo

Street, Isagatedo.

(b) N200,000.00 damages against the Defendant for the

trespass committed and still being committed on the said

Plaintiff’s property.

(c) Perpetual injunction to restrain the Defendant, his

servants, agents and privies or howsoever described from

committing any further act of trespass on the said

Plaintiff's land. Annual Rental Value of the land

is N100.00k."

The pleadings (statement of claim) bears it out that the

land suit is with respect to the communal land of

Ishagatedo Community of Ishagatedo town, near Mushin in

Lagos State. The plaintiffs expressed themselves in

paragraph 3 of the statement of claim (supra) that they are

the accredited representatives of Ishagatedo community.

Section 66 of the Evidence

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Act 2011 stipulates that -

"Where the title to or interest in family or communal land is

in issue, oral evidence of family or communal tradition

concerning such title or interest is admissible".

In essence the traditional history mentioned in Section 66

of the Evidence Act (supra) is a bit of ancient history

recalling orally rights or what had happened beyond living

memory. It deals with events beyond human memory by the

recollection of what had happened in the past and has

unbroken link or connection with the present ownership of

a disputed parcel of land. See Alade v. Awo (1975) 5

U.I.L.R. (pt.1) 31; the Privy Council case of The Stool of

Abinabina v. Enyimadu 12 W.A.C.A. 171 at 172 (per

Lord Cohen); and Dike v. Nzeka (1986) 4 NWLR (pt.34)

144 at 158.

One of the five possible methods of proving title to land is

by traditional evidence or history vide Idundun and Ors.

v. Okumagba (1976) 9 - 10 SC 224.

The components of traditional history or evidence of

inheritance comprise pleaded facts and evidence on -(a)

how the land was founded for example, by conquest;

deforestation or settlement; and grant

(b) the person(s) who first

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founded the parcel of land and exercised original acts of

possession or ownership over it.

(c) the persons whom the title in respect of the parcel of

land devolved since its founding - the genealogy tree

comprising the names of the person(s) that first founded

the land and the human chain of intervening owners up to

the present owner.

See Lebile v. Registered Trustees of Cherubim and

Seraphim Church (2003) 2 NWLR (pt.804) 399 at 419,

Ewo v. Ani (2004) 1 SCNJ 272.

The statement of claim (supra) and the evidence of first

settlement in the disputed piece of land by the respondents'

forebears, one Akanbi and one Bamgbose, satisfied

requirements (a) and (b) (supra) on the founding of the land

and how it was founded and by who (progenitor(s) vide

Iseogbekun and Anor. v. Adelakun and Ors. (2012) 4

SCNJ 100. But there is no piece of pleading and evidence

on the genealogy tree of intervening owners of the disputed

parcel of land. See in particular the evidence of PW1 and

PW2 for the respondents in pages 28 - 35 of the record

which did not establish the unbroken chain of the

genealogy or family tree of the disputed parcel of land from

the first settler

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to the present owner, so title to the disputed parcel of land

under leg (c) (supra) was not proved by traditional evidence

as wrongly held by the Court below vide Ukaegbu v.

Nwokolo (2009) 1 S.C.N.J. 49 at 66 - 67, or (2009) 3

NWLR (pt.1127) 194.

The Court below also proceeded to hold that title to the

land in dispute was proved by possession of connected or

adjacent land. Proof of possession of adjacent land in

circumstances which render it probable that the owner of

such land would, in addition, be the owner of the disputed

land is also one of the methods of proving title to land vide

Idundun v. Okumagba and Ors. (supra).

The DW1, a member of the Bakare family which belongs to

the larger family of Onigbono of Ishagatedo testified in

page 35 of the record that -

"The portion the plaintiff are in was given to him by one of

our four ficat (?) grandfathers. That was about 1862. It is

significant in that in 1862 there was the Dahomean war."

The portion of evidence (supra) is acknowledgment of

possession of the land by the respondents. It was a

concession that the land was a gift. But there was no

evidence from the appellant admitting ownership

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of adjacent piece of land to the disputed piece of land by

the respondents.

Also, there was no evidence of ownership of adjacent land

connected or situated with the disputed land by locality or

similarity that what is true as to the one piece of land is

likely to be true of the other piece of land as to render it

probable that the owner of the adjacent land is the owner

of the land in dispute by dint of ownership of land under

contiguity or abutting of both pieces of land under principle

of ownership of land Section 35 of the Evidence Act. The

Court below was therefore wrong to hold that the

respondents had proved title to the disputed parcel of land

by proof of possession of connected or adjacent land. See

Archibong v. Ita (1954) 14 W.A.C.A. 520.

In previous judgment of the High Court of Lagos State

(coram Akinola Cole Judge) delivered on 4-3-81 vide pages

122 - 145 of the record tendered by the respondent has this

to say in page 133 - 134 of the record thus -

"In the evidence of Saka Kekeyawa he testified that the

land which he built is known as Ishagetedo because the

descendants of Ishaga people, settled there and built

houses there. The

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house of the defendant i.e., land in dispute on Isolo Road is

about 3 houses away from that of Saka Kekeyawo. The

evidence of Saka Kekeyewo alone is enough to destroy the

claim of OKOTA family, that the land in dispute is a portion

of Isolo people land".

Since I have held that the land in dispute is portion of land

settled upon by Ishaga people after the Dahomey war, more

than 100 years ago, my view is that in law, the conveyance

Exhibit P1 is ineffectual to transfer any interest in the land

in dispute to the plaintiff ..."

The said previous judgment, which was successful defence

of a previous land case is itself thus an act of possession

showing that for over 100 years calculated as at 1981 when

the decision in the said previous judgment was made the

Ishagatedo people represented by the respondents had

been in long possession of the disputed parcel of land,

aggregating to ascertainment of title to land. See Okafor

and Ors. v. Obiwo (1978) 9 - 10 SC 115, Akpata v.

Olalokun and Anor. (2013) 7 S.C.N.J. 509, Olaniyan

and Ors. v. Fatoki (2013) 7 SCNJ 347.

The DW2 even testified that the respondents' people were

in the land since 1862 vide page 5 of

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the record. There is also the evidence of the PW1 in page

29 of the record and the PW2 in page 32 of the record that

the respondents' people had been in possession of the land

for over 200 years, and thus proved acts of long possession

and enjoyment of the disputed land. For it was held in

Matanmi and Ors. v. Dada and Anor. (2013) 2 S.C.N.J.

616 at 629 - 630 per the lead judgment of Fabiyi, J.S.C.,

(as he was) that-

"It is now beyond argument, as it has been consistently

held by this Court that there are five ways of proving title

to land. A claimant may rely on more than one mode of

proving title; if he so desired; however, one mode of

proving title will suffice, if properly established to the

satisfaction of the Court ..." (My emphasis).

A holistic perusal of the record bears it out that although

the respondents relied on the founding of the land by their

progenitors, as the spring-board of their case, their

evidence built on the founding of the land was tailored to

their long possession and enjoyment of the land for over

200 years. The case of Matanmi v. Dada (supra) at 630

re-emphases it that title to land can be established by acts

of long

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possession and enjoyment of the land, which is one of the

independent methods of proving title to land vide the lead

case of Idundun v. Okumagba (supra).

Proof of title to land by long possession and enjoyment of

land is therefore independent of proof of title to land by

traditional history. To rely on the proof of title to land by

long possession and enjoyment of land, the party so relying

cannot hinge his case on traditional evidence, for example.

Thus in Balogun v. Akanji (1988) 1 NWLR (pt.70) 301,

the radical root of title pleaded and relied upon which first

settlement, as in this case, it held that the years or period

covered by the founding of the land by first settlement up

to the time of the dispute could not be used to establish

title to the land by long possession and enjoyment of the

land on the footing that the root of title of first settlement,

a specie of traditional evidence, which is different from title

to long based on acts of land possession and enjoyment of

land. See Balogun v. Akanji (supra) at 316 - 317 thus -

"As my learned brother has rightly referred to, traditional

evidence is certainly one of the 5 ways by which title

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t o l a n d c a n b e e s t a b l i s h e d ( s e e I d u n d u n v .

Okumagba (1976) 9 and 10 S.C. 227).

... exclusive possession and acts of possession for so long is

indeed a different and separate method of establishing title

..." (per Nnamani, J.S.C., (now of blessed memory).

Having known and pleaded their source or root of title as

first settlement, an aspect of traditional evidence or

history, the acts of long possession and enjoyment of the

land became secondary to the radical root of title projected

by the respondents. Because as held in Balogun v. Akanji

(supra) at page 323 -

"… acts of possession will not arise where the root of title is

known, and pleaded and proved ...."

In my respectful opinion, the Court below was wrong to

hold that the respondents proved title to the land by long

possession and enjoyment of the disputed parcel of land.

The successful defence of the previous suits tendered in

evidence at the Court below not only constituted acts of

possession of the land by the respondents, but it also

strengthened their long possession and enjoyment of the

land for more than 200 years as earlier stated in the

discourse and complemented by the evidence of

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the DW1 who testified that the respondents' side had been

in the land since 1862 dating back to the Dahomean war.

Accordingly, the Court below was right in holding in its

judgment in page 74 of the record that –

"I am satisfied therefore that the plaintiffs have proved

before this Court that they have exclusive possession of the

land. Besides the law is that where two parties claim to be

in possession of land the law ascribes possession to the one

with a better title ..."

See also Balogun v. Akanji (supra) at 314 thus -

"Once it has been established that the plaintiffs had better

title to the land in dispute and the defendants were on the

land, without the permission of the plaintiffs, then the claim

by the plaintiffs for trespass against the defendants has

been established and ought to have been granted" (per the

lead Judgment of Uwais, C.J.N.).

See further Osuji v. Isiocha (1989) 3 NWLR (pt.111)

623 and Ayinde v. Salawu (1989) 3 NWLR (pt.109)

297 to the effect that a claimant with defective title to land

could maintain an action in trespass and injunction against

a defendant who cannot prove a better title once the

claimant is in

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exclusive possession of the land.

The appellant contended that the respondents slept over

their rights and were thus caught by the plea of laches,

standing-by, acquiescence and stale claims, when they filed

the action in 1997 over the erection of the house in the land

by the appellant in 1980.

The PW1 stated in page 32 of the record that the appellant

trespassed on their family land. That the appellant wanted

to make a permanent structure which made them to

institute the action at the Court below. The action itself was

instituted on 27-05-1997 vide the writ of summons in pages

2 - 3 of the record. Paragraphs 12 - 15 of the statement of

claim (supra) pleaded that when the appellant was found

trespassing on the land, he was challenged and duly

informed that he had no claim to the land, but despite

repeated warnings the appellant continued his act of

trespass on the respondents' piece of land. The appellant so

admitted it in paragraph 2 of the statement of defence

while answering paragraph 12 of the statement of claim.

The said admission required no further proof videLewis

Peat (N.R.I.) Ltd. v. Akhimien (1976) 7 S.C. 157.

There was therefore no

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standing by, laches, acquiescence and stale claim by the

respondents who maintained in their pleadings (supra) that

not only did they challenge the appellant when they saw

him in the land and warned him off the land, to no avail, the

appellant continued the act of trespass since 1980 when he

built what the DW1, his witness, called "a very small house"

in the land vide page 36 of the record.

The continuing trespass in question removed the operation

of the statute of limitation or time bar vide Obueke and

Ors. v. Nnamchi and Ors. (2012) 5 S.C.N.J. 455 or

(2012) 12 NWLR (pt.1314) 327 at 351 - 352. Time does

not therefore run against continuing trespass, so the plea

of laches, standing by, acquiescence and stale claim which

are time-bound would not be affected when time does not

run; and I respectfully so hold.

Having challenged and warned the appellant over his

trespass to the land to no avail, the respondents cannot be

accused of standing-by, acquiescence, laches, and stale

claim. See Morayo v. Okiade (1942) 8 W.A.C.A. 46 at

47 - 48.

Moreover, in deciding limitation period for an action only

the claim, not the defence, should be looked at vide

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Woherem v. Emereuwa (2004) 13 NWLR (pt.890) 398

at 410.

On the whole, I see merit in the appeal with respect to the

order of declaration of entitlement of statutory right of

occupancy over the parcel of land made in favour of the

respondents by the Court below in its judgment in page 75

of the record and hereby allow the appeal in part on this

part of the judgment which l hereby set aside.

As for arguments challenging the judgment awarding

N50,000 damages to the respondents against the appellant

for trespass to the parcel of land and the order of perpetual

injunction made by the Court below restraining the

appellant, his servants, agents and privies or howsoever

described from committing any further act of trespass on

the disputed parcel of land, I see no substance in the said

argument and hereby find no merit in the appeal as it

relates to them and would dismiss the appeal on trespass

and perpetual injunction. Appeal is therefore allowed in

part as stated (supra). Parties to bear their costs.

SIDI DAUDA BAGE, J.C.A.: My honourable Justice

JOSEPH SHAGBAOR IKYEGH, JCA have obliged me with

a copy of his

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draft judgment just delivered. Having equally read the

briefs of argument of the respective learned counsel vis-a-

vis the records of appeal, as a whole, I cannot but concur

with the reasoning and conclusion therein reached in the

said judgment, to the effect that the appeal is allowed in

part.

Parties to bear their costs.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I

had the privilege of reading in draft the judgment just

delivered by my learned brother, IKYEGH, JCA.

He has thoroughly examined all the issues and arguments

canvassed by the contesting parties to this appeal. I

entirely agree with his reasoning. I have nothing more

useful to add.

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