REGISTERED TRUSTEES OF ANWAR-UL-ISLAM MOVEMENT OF NIGERIA  v OGUNYADE

REGISTERED TRUSTEES OF ANWAR-UL-ISLAM MOVEMENT OF NIGERIA v OGUNYADE


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON FRIDAY, 3RD MARCH, 2017


Appeal No: CA/L/630/2006
CITATION:

Before Their Lordships:

JOSEPH SHAGBAOR IKYEGH, JCA

TIJJANI ABUBAKAR, JCA

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA


BETWEEN

REGISTERED TRUSTEES OF ANWAR-UL-ISLAM MOVEMENT OF NIGERIA

ALHAJI ISHOLA YESUFU

TAJUDEEN OKEDEYI

ALHAJI A. BASHIRU

ALHAJI K. O. TINUBU

YESUFU OLADIMEJI

JIMOH ATENI

ALHAJI AKANNI

(APPELLANTS)

AND

SAMSON OGUNYADE

(RESPONDENT)


PRONOUNCEMENTS



A. ACTION
1. Pleadings – Whether facts admitted in pleadings require further proof
***Effect of admission in pleadings

“The membership of 2nd – 8th appellants with the 1st appellant having been admitted in the pleadings required no further proof vide Lewis and Peat (N.R.I.) Ltd. v. Akhimien (1976) 7 S.C. 157 or (1976) 1 All N.L.R. (pt.1) 460.” Per IKYEGH, JCA read in context

B. APPEAL
2. Interference with Findings of Fact – Attitude of the Court to a right decision made by a Trial Court where the ratio decidendi is wrong

Whether an Appellate Court will interfere with the decision of a trial Court where the judgment of the court is right but the reasons are wrong

“See Ukejianya v. Uchendu 13 WACA 45 at 46, Taiwo v. Sowemimo (1982) 5 S.C. 60 at 74 – 75, Lebile v. Registered Trustees of Cherubim and Seraphim (2003) 1 S.C. (pt.1) 25, Ndayako v. Dantoro (2004) 13 NWLR (pt.689) 187 at 196 to the effect that an Appeal Court is concerned with whether the decision given by the trial Court is right, not necessarily the reasons for the decision, unless the reasons given materially affect the decision arrived at by the trial Court.” Per IKYEGH, JCA read in context

C. EVIDENCE
3. Proof of Title to Land – Duty of the Claimant to relate his evidence to the land claimed
*What a document relied on as proof of title to land must satisfy

“It was held by the Apex Court that where the identity of the land claimed is certain, the party still has the onus to relate the evidence to the land claimed vide Okhuarobo v. Aigbe (substituted by His Eldest Son Asenoguen Egharevba) (2002) 9 NWLR (pt.771) 29 at 84.

In the instant case, the 1st appellant’s witnesses did not relate the title documents, Exhibits D4 – D9, to the composite plans, Exhibits D22 and D23, respecting the portions of the land counter claimed by the 1st appellant. Documents tendered in a case have to be linked to the claim by the witness or witnesses called by the party relying on the documents. Not having done so, I agree with the respondent that the Court below was right in holding that the counter claim was not proved.” Per IKYEGH, JCA read in context

D. LAND LAW
4. Identity of Land – Implication of identity of land not being an issue
*Need for identity of land to be ascertained; When same can be dispensed with

“The identity of the disputed parcel of land was not made an issue in the pleadings so it is taken that the land in dispute is known to the parties. See Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 208 at 230, Adelaja v. Alade (1999) 6 NWLR (pt.608) 544 at 559, Adenle v. Olude (2002) 18 NWLR (Pt.799) 413 at 433 – 434, Ogunyanwo v. Oluwole (2009) 16 NWLR (pt.1167) 391 at 403 – 404 and the cases (supra) cited by the 1st appellant on the issue.

Moreover, once there is a counter claim it is presupposed that the counter claim extends to the res claimed in the substantive action and having regard to the fact that the 1st appellant counter claimed in the case at the Court below, the issue of the identity of the disputed parcel of land no longer arose vide Anyanwu and Others v. Uzowuaka and Ors. (2009) 13 NWLR (pt.1159) 445 at 475 – 476.”Per IKYEGH, JCA read in context

5. Title to Land – Requirements for the possession of connected or adjacent land method of proving title to land to apply

*Position of the law where a claimant pleads possession of connected or adjacent land in proof of ownership of the land in dispute

“Possession of adjacent or contiguous land to the land in dispute is one of the five methods of proving title to land. For the method of proof of title to land to apply evidence must be led that the land is next to or near the disputed piece of land, and the evidence must show that the land in question is neighbouring the land in dispute.
Second, the adverse party or opponent of the person relying on this method of proof of title to land must admit ownership of the adjacent or contiguous land to the land in dispute by the person claiming ownership of the disputed piece of land. See Archibong v. Ita and Ors. (1954) 14 WACA 520 at 522 relying on the old English case of Jones v. Williams, 2 M and W 326 at 331, Anukam v. Anukam (2008) 5 NWLR (pt.1081) 455 at 476.” Per IKYEGH, JCA read in context

6. Claim for Trespass and Injunction –
*Whether a plaintiff can succeed on a claim for damages for trespass and injunction even where his claim for a declaration of title fails

“The fact that the action for declaration of title to land failed did not undermine the claim for trespass and perpetual injunction. For it was held by the Apex Court in Ayinde v. Salawu (1989) 3 NWLR (pt.109) 297, and Owhonda v. Ekpechi (2003) 17 NWLR (pt.849) 326 at 345 following Oluwi v. Eniola (1967) NMLR 339, Adegbite v. Ogunfaolu (1990) 4 NWLR (pt.196) 578, Ojibah v. Ojibah (1991) 5 NWLR (pt.191) 296, that a claim for trespass and perpetual injunction may succeed and be granted even where the claim for title to the land is dismissed.” Per IKYEGH, JCA read in context

E. TORT
7. Vicarious Liability – Need for the Plaintiff to make his intention to hold a master vicariously liable known in the pleading
***What a plaintiff must plead and prove to succeed in a claim against a master for the torts of his servant/employee

“The pleading should have indicated that the 1st appellant was being charged with liability vicariously by the act of its named members, the 2nd – 4th and 6th – 8th appellants vide James v. Mid-Motors (supra) followed in Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 5 NWLR (pt.656) 322 at 358 and 365, to wit – “…. What a plaintiff has to make sure about (and this must be made clear in the pleadings) is whether he is holding the servant or agent personally liable or the corporation liable vicariously.”

There was no such piece of pleading and evidence in support thereof. Rather paragraph 24(a) of the further amended statement of claim in page 8 of the record exonerated the 1st appellant as the 8th defendant at the Court below thus –
“24. The plaintiff will show at the hearing of this action as follows-

(a) That the 8th Defendant was not consulted before the 1st – 7th Defendants (2nd – 8th appellants) performed the acts set out in paragraphs 11 – 39 of the statement of claim and that the 1st – 7th Defendants (2nd – 8th appellants) are personally liable to the plaintiff in tort.”

So the issue of the liability of the 1st appellant was out of the question as it was expressly excluded from the pleadings settled by the respondent.

It would have been otherwise had the 2nd – 4th and 6th – 8th appellants asserted that they were acting for the 1st appellant or evidence had been led to that effect and that the 1st appellant, an artificial entity, who runs her affairs through human beings constituted as registered trustees had fully supported them and in effect adopted their acts of trespass in which case the trespass would have been said to be the trespass of the 1st appellant vide Obasi and Ors. v. Oti and Anor. (1967) NMLR 74 at 75.

Also, as aptly stated in the analogous English case of Bolton (Engineering) Go. Ltd. v. Graham and Sons (1957) 1 Q.B. 159 at 172-173 per Denning, L.J.:

“Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will.
Others are directors or managers who represent the directing mind and will of the company, and control what it does. The state of mind of those managers is that state mind of the company and is treated by law as such…” Per IKYEGH, JCA read in context


LEAD JUDGMENT DELIVERED BY IKYEGH, JCA


The appeal is from the judgment of the High Court of Justice of Lagos State sitting at Ikeja (the Court below) by which it awarded N100, 000 general damages for trespass and a perpetual injunction restraining the appellants from further acts of trespass on the parcel of land located at Elegun Village Ilaro Dopemu-Agege, Lagos State.

Stated skeletally, the respondent as claimant’s case at the Court below was that his predecessor-in-title one Alayanda Ogungbade bought the disputed parcel of land for E23 (twenty three pounds) from Afogunlowo family, the original owners of the land who got it through the partition of the family land among them and whose progenitor, a Mr. Afogunlowo had discovered the land as first settler.

The respondent also bought another piece of land beside the one in dispute from one Otegbaye, a member of Afogunlowo family, for E25 (twenty five pounds), while another member of Afogunlowo family, one Oje Omotosho, sold another portion of land adjourning the other two portions of land. All the three purchases were made in 1957. The respondent let part of the land to farmers for farm work and built a house and 41 shops on the remaining part of the land.

That Ahmadiyya Movement in Islam whose piece of land shared boundary with the respondent had a boundary dispute with the respondent which was resolved in favour of the respondent in 1961 through the active participation of the founder of the Ahmadiyya Movement in Nigeria. The dispute caused the respondent to erect a fence round his land.

According to the respondent, the 1st – 7th defendants at the Court below who broke away from Ahmadiyya Movement and founded the Anwar-Ul Islam Movement of Nigeria entered the respondent’s piece of land in 1974 and destroyed the buildings thereon and started to build a structure in the land, which caused the respondent to sue at the Court below.

The 1st respondent’s case through the 1st – 7th defendants at the Court below was that the 8th defendant at the Court below, now the 1st appellant, own the disputed piece of land which comprised the 77 acres of land the Ahmadiyya Movement bought in 1943 and had been in undisturbed possession of it in the course of which the Ahmadiyya Movement built a school and a hospital in part of the tract of land.

The 1st appellant acknowledged that its land shares boundary with the respondent’s land but denied the boundary dispute of 1961. That the 1st appellant took its present name in 1974 and was issued a certificate of incorporation in 1975 and that the respondent, not the 1st appellant had trespassed upon which the 1st appellant counter claimed for title to the disputed tract of land with special and general damages for trespass and a permanent injunction against the respondent.

The Court below accepted the version of the respondent and entered judgment for trespass and permanent injunction against the 1st appellant and dismissed the respondent’s leg of claim for declaration of title to the disputed tract of land. The Court below also dismissed the counter claim.

Dissatisfied with the decision of the Court below the appellant appealed against it on a notice of appeal with three grounds of appeal which was subsequently amended. The amended notice of appeal with five grounds of appeal was filed on 06-07-11 deemed properly filed on 26-01-17. The appellants’ brief of argument was filed on 24-02-11 but deemed properly filed on 26-01-17. The Appellants’ brief of argument raised two issues for determination –

“1. Whether the learned trial Court was wrong in granting the claimants prayers for trespass, damages and a perpetual injunction against the Defendants, especially the 8th Defendant having regard to the pleadings and the evidence led at the trial.

2. Whether there was sufficient evidence before the lower Court to sustain the Defendants counter-claim.”

The respondent incorporated preliminary objection to the appeal in his brief which was also argued in the brief to the effect that issue 1 (supra) does not relate to any ground of appeal and should be struck out citing in support the case of Oyegun v. Nzeribe (2010) 5 – 7 MJSC (pt.1) 122 at 129; and that issue (2) (supra) to which ground 3 of the amended notice of appeal relates is incompetent on the ground that not having complained against the decision of the Court below dismissing the leg of counter claim for declaration of title to the disputed piece of land, ground 3 of the amended notice of appeal does not disclose any reasonable ground contrary to Order 6 Rule 3 of the Court of Appeal Rules 2011 (the Rules of the Court).

The reply brief filed on 06-07-11, but deemed as properly filed on 26-01-17 stated that any issue for determination not tied to a ground or grounds of appeal is incompetent vide Oyegun v. Nzeribe (2010) 5 – 7 M.J.S.C. (pt.1) 122; and that though the appellants did not indicate in the brief the ground(s) of appeal upon which to predicate issue (1) (supra) for determination for which the appellants apologized, ground 1 (supra) of the amended notice of appeal literally read support issue (1) (supra) and meets the object of a ground of appeal which is to afford the opposite party of the nature of the complaint of the appellant in clear and unambiguous language citing in support the cases of Yusuf v. Kode (2001) 47 WRN 34 at 45, Akpan v. State (1992) 6 NWLR (Pt.248) 439, Odeh v. FRN (2008) 13 NWLR (Pt.1103) 1 at 19 – 20, Hambe v. Hueza (2001) 12 WRN 64, S.C.E. (Nig.) Ltd. v. Yahaya ( 5) 26 WRN 1.

The reply brief stated that ground 3 of the amended notice of appeal is tied to issue 2 and that ground 3 of the amended notice of appeal is not vague as it clearly complained that the Court below was wrong to have dismissed the counter claim and if the complaint succeeds on appeal the respondent automatically becomes liable for damages for trespass, so the preliminary objection should be dismissed citing in support the cases of
Saude v. Abdullahi (1989) 4 NWLR (pt.116) 387, Oloruntoba-Oju v. Abudl-Raeem (2009) 6 MJSC (pt.1)1.

Ground 1 of the amended notice of appeal disclosed that in an action or tort of trespass to land coupled with the relief for perpetual injunction title of the parties is in issue and the Court below having held that both the parties failed to prove title it was wrong for it to have awarded damages for trespass and injunction to the respondent as the claimant at the Court below. The linchpin of issue 1 (supra) is whether the pleadings and the evidence supported the finding on trespass and injunction. Since the holding on trespass and injunction emerged from the exercise of evaluation of evidence which in turn must be based on pleadings, I do not see the strength in the argument of the respondent that ground 1 of the amended notice of appeal is not tied to issue 1 (supra). A ground of appeal needs to be concise and clear.

The phrase “held” is derived from ‘hold’ and when used in a ground of appeal, as is the case with ground 1 of the amended notice of appeal, denotes a ruling by the Court on evidence or other questions presented at the trial vide Black’s Law Dictionary (Eight Edition) page 749. In other words, a holding of a Court does not take place in the abstract. It is based on the evidence which in turn is based on the pleadings in a civil action. There is therefore no substance in the first limb of the preliminary objection.

The particulars on ground 3 of the amended notice of appeal complained that had the Court below properly evaluated the oral and documentary evidence together with the submission on ownership of adjourning land by the respondent it would not have dismissed the counter claim for declaration of title, trespass and injunction. In my modest view, ground 3 of the amended notice of appeal is not vague. It is clear and unambiguous and cannot mislead the opposite side, so it cannot be struck out for being vague and general in terms. Neither the respondent nor the Court can be misled by ground 3 of the amended notice of appeal, in my view. There is therefore no force in the second limb of the preliminary objection vide Omisore and Anor. v. Aregbesola and Ors. (2015) 15 NWLR (Pt.1482) 205 at 257 -258, Waziri and Anor. v. Geidam and Ors. (2016) 11 NWLR (Pt.1523) 230 at 256 – 258.

Accordingly, I find no substance in the preliminary objection and hereby dismiss it.

The appellants submitted that the 1st appellant as the 8th defendant at the Court below was exonerated from the allegation of trespass in paragraph 12C and D and 24A of the amended statement of claim, therefore had the Court below related these paragraphs of the amended statement of claim to the evidence it would have found that the evidence of the CW1 that the 1st appellant destroyed the respondent’s forty shops on the disputed land was contrary to the pleadings and was also hearsay viewed against the pleadings which averred that it was one Babatunde Ishola not CW1, Jimoh Adeyemi, that witnessed the alleged destruction of the forty shops and the evidence of CW3 that CW1 had left the farm prior to the alleged attack by the 1st -7th defendants and also the evidence of CW5, the respondent, that the 1st appellant sold the respondent’s land; therefore it should be held that had the Court below evaluated the evidence by weighing it together in analytical and critical manner it would not have reached the conclusion that the 1st appellant was liable for trespass and should be perpetually restrained citing in support the cases Basil v. Fajebe (2001) FWLR (Pt.51) 1914, Udoh v. Okitipupa Oil Palm Plc (2005) 24 WRN 141 at 169, Nkpa v. Nkume (2001) 6 NWLR (Pt.710) 543.

The appellants submitted on issue 2 (supra) that had the Court below not confined itself to Exhibit 22 and the evidence of DW5 but also considered the evidence of DW2 and DW3 together with the evidence of DW5 and Exhibits D4, D5, D6, D7, D8, D10 and D11 as well as the undenied averment in paragraph 7 of the amended statement of defence and counter claim which pleaded that the property in dispute forms part of a large parcel of land at Agege acquired by purchase by the 1st appellant in 1940 the Court below would have entered judgment for the 1st appellant on the counter claim on one of the five ways of proving title to land by the production of title documents relating to the land whose identity was not raised as an issue in the pleadings and was therefore not in dispute. More so, 1st appellant’s ownership of adjacent land was admitted by respondent citing in support Sections 46 and 135 of the Evidence Act, Basil v. Fajebe (2001) FWLR (Pt.51) 1914, Idundun v. Okumagba (2002) 20 WRN at 127, Udenze v. Nwosu (2007) WRN at 71, Dabo v. Abdullahi (2005) 29 WRN at page 1, Yaya v. Mogaji (1947) 12 WACA (no pagination), Osazuwa v. Isibor (2004) FWLR (pt.194) 387, Gbadamosi v. Dairo (2007) All FWLR (Pt.357) (no pagination), Awodi v. Ajagbe (2007) 47 WRN 95, Okechukwu v. Okafor (1961) 1 All NLR 685 at 690; consequently, the appellants urged that the appeal should be allowed and the Court should hold that there was sufficient evidence at the Court below to sustain the 1st appellant’s counter claim.

The respondent argued in his brief of argument filed on 20-05-11 but deemed properly filed on 26-01-17 that paragraph 12(d) of the amended statement of defence in pages 3 – 12 of the record that the 1st appellant’s bus conveyed the thugs the 1st – 2nd defendants commanded and used to destroy the forty-one shops erected by him on the disputed parcel of land which was supported by the evidence of one Babatunde Ishola in pages 27 – 28 of the record upon which the Court below found as a fact in page 205 of the record that the 1st – 7th defendants as members of the 1st appellant, a corporate entity, and used the 1st appellant’s bus on the day in question were liable with the 1st appellant for trespass which should not be disturbed as the 1st appellant, a corporate body could not have physically trespassed, so the 1st – 7th defendants being her members as acknowledged by the appellants in paragraph 3 of the 1st amended statement of defence their trespass was therefore attributed to the 1st appellant; more so the argument that the 1st appellant did not authorise the 1st – 7th defendants to commit the alleged trespass was not supported by any “iota” of evidence; consequently, the decision of the Court below that the trespass was done by 1st – 7th defendants, 1st appellant’s human agents was attributed to the 1st appellant as an unnatural person could not have committed the alleged trespass herself but through her human agents, the 1st – 7th defendants.

The respondent argued on the second issue that DW6, the tenant of the 1st appellant, plied his trade of plank sale at Adebiti Awosoga Street on the west side of the land in dispute as stated by PW5 (page 53 of the record) who went round the land and prepared the composite plan which did not form part of the land in dispute as the disputed land is in the south therefore the Court below was right to have found in its judgment in page 207 of the record that though the 1st appellant owns that land in the west zone, which was not in dispute no such ownership of adjacent land to the southern zone of the land in dispute was admitted by the respondent, and established by the 1st appellant to invoke presumption of ownership arising from ownership of adjacent land to the land in dispute by the 1st Appellant.

The respondent also argued that the evaluation of evidence of PW1 and PW5 and any witness is in the hand of the trial Court and should not be readily disturbed unless there is good cause to do so which is not the case here so the already evaluated oral evidence should not be re-evaluated on appeal citing in support the cases of Nkeaka v. Nkeaka (1994) 5 NWLR 346 at 599, Okoya v. Ejiato (1934) 2 WACA 130 and Emarieru v. Ovine (1977) 2 SC 31.

The respondent further argued that the finding made by the Court below in pages 195 – 199 of the record that the 1st appellant did not relate the purchase receipts, Exhibits D4 – D9 to the composite plan, Exhibits D22 and D23, was supported by the evidence of the surveyor, DW6, who prepared the composite plan and testified that the 1st appellant did not give him the purchase receipts in question to feature and/or factor them in the composite plan, Exhibits D22 and D23; so the finding should not be disturbed as the DW6, the surveyor, could not convince the Court below how he came about the measurement and dimension of the land shown in the composite plan, therefore so the counter claim should fail citing in support the case of Igwe v. Kalu (2002) 5 NWLR (Pt.761) 678, Olowosago v. Adebanjo (1988) 5 NWLR (Pt.88) 275.

The respondent finally argued that the appellants having presented contradictory evidence whether Pa Jubril Martins settled the dispute in 1961 by stating in one breath that Pa Jubril Martins died in Mecca in 1959 and turning round to tender Exhibit D16 which indicated that Pa Jubril Martins was one of the living registered trustees of Anwar-UL Islam Movement vide page 204 of the record, the Court below was right to have found that the late Pa Jubril Martins might have taken part in the settlement of boundary dispute between the 1st appellant’s predecessor-in-title and the respondent in favour of the latter, citing in support the case of Uwaaga v. Benjamin (2009) 5 NWLR (Pt.1133) 152; and that, at any rate, when a statement oral or written is made by a party which is adverse to his interest, the statement should be used against his interest vide Jinadu v. Esurombi Aro (2006) 14 NWLR (pt.944) 142; upon which the respondent concluded by urging that the appeal be dismissed.

The reply brief responded only to the preliminary objection. The identity of the disputed parcel of land was not made an issue in the pleadings so it is taken that the land in dispute is known to the parties. See Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 208 at 230, Adelaja v. Alade (1999) 6 NWLR (pt.608) 544 at 559, Adenle v. Olude (2002) 18 NWLR (Pt.799) 413 at 433 – 434, Ogunyanwo v. Oluwole (2009) 16 NWLR (pt.1167) 391 at 403 – 404 and the cases (supra) cited by the 1st appellant on the issue.

Moreover, once there is a counter claim it is presupposed that the counter claim extends to the res claimed in the substantive action and having regard to the fact that the 1st appellant counter claimed in the case at the Court below, the issue of the identity of the disputed parcel of land no longer arose vide Anyanwu and Others v. Uzowuaka and Ors. (2009) 13 NWLR (pt.1159) 445 at 475 – 476.

The 1st appellant is an artificial person. She acts through human beings as is the case with artificial or incorporated bodies. See Trenco Ltd. v. African Real Estates Ltd. (1978) 4 S.C.9 and James v. Mid- Motors (1978) 11 – 12 S.C. 31. The amended statement of claim averred that the 1st- 7th defendants, now 2nd – 8th appellants, are members of the 1st appellant. Paragraph 3 of the appellants st amended statement of defence in page 13 of the record admitted that the 2nd – 8th appellants are members of the 1st appellant, Anwar-UL-Islam Movement of Nigeria. The membership of 2nd – 8th appellants with the 1st appellant having been admitted in the pleadings required no further proof vide Lewis and Peat (N.R.I.) Ltd. v. Akhimien (1976) 7 S.C. 157 or (1976) 1 All N.L.R. (pt.1) 460.

Coming to the evidence on the alleged trespass the PW3 testified in pages 27 – 28 of the record on the issue as follows –

“At around 5:30pm I saw a bus on which was written Anwar-Ul-Islam Movement, when they got to the shops the bus stopped and people were coming out of the bus. They were thugs, smoking Indian hemp. They came out with sledge hammers and cutlasses. I saw one man by name Yusuf, also Mr. Okedeyi. They were about 5 of them that followed the thugs, Mr. Yusuf with Mr. Okedeyi and one person they referred to as the Chief Imam commanded the thugs to demolish the shops…I went to Sanni Olopo where the plaintiff was, and reported to him…By the time we got there with the police they had finished the demolition and left.”

The Court below held in part of its judgment in page 205 of the record that –

“With the exception of the 4th Defendant the 1st to 7th Defendants have been proved to have trespassed upon the land occupied by the Claimant. It has been admitted by the witnesses to the defence, that the 1st to 7th Defendants are members of the Defendant, and whose bus conveyed the said Defendants to the said land on the date in question. With the exception of the 1st Defendant who is dead and not substituted, and the 4th Defendant who was not proved to be at the scene on the date in question, I hold all the Defendants jointly and severally liable to the Claimant in trespass. I award in favour of the Claimant the sum of N100, 000 (one hundred thousand naira).”

The DW1 stated in examination-in-chief in page 60 of the record that the 2nd and 6th appellants are members of the 1st appellant, while the DW2 stated in examination-in-chief that the 5th appellant is a member of the 1st appellant. No other witness for the appellants at the Court below stated the relationship of the 2nd 8th appellants with the 1st appellant.

To the extent that the Court below held (supra) that the defence witnesses admitted that 2nd – 8th appellants are members of the 1st appellant was not supported by the evidence of the DW3, DW4 and DW5. Even the evidence of DW1 mentioned only the 2nd and 6th appellants in that regard, while the evidence of DW2 mentioned only the 5th appellant in that regard.

Be that as it may, the admission in the pleadings that 2nd – 4th and 6th – 8th appellants were at all material times members of the 1st appellant sufficed; more so the evidence of PW1 reproduced in the judgment (supra) which was not shaken under cross-examination also established that 2nd – 4th and 6th – 8th appellants were at all material times members of the 1st appellant. The 2nd – 4th and 6th – 8th appellants were, therefore, rightly found liable for trespass (supra) by the Court below. See Ukejianya v. Uchendu 13 WACA 45 at 46, Taiwo v. Sowemimo (1982) 5 S.C. 60 at 74 – 75, Lebile v. Registered Trustees of Gherubim and Seraphim (2003) 1 S.C. (pt.1) 25, Ndayako v. Dantoro (2004) 13 NWLR (pt.689) 187 at 196 to the effect that an Appeal Court is concerned with whether the decision given by the trial Court is right, not necessarily the reasons for the decision, unless the reasons given materially affect the decision arrived at by the trial Court.

It was not pleaded and proved by evidence that the 2nd – 4th and 6th – 8th appellants were instructed or directed by the 1st appellant to commit the act of trespass in question. Nor was it pleaded and proved by evidence that the 2nd – 4th and 6th – 8th appellants acted for the 1st appellant in the course of their relationship with 1st appellant as their members; nor did the 1st appellant adopt/support the acts of trespass of the 2nd – 4th and 6th – 8th appellants. The fact that the 2nd-4th and 6th – 8th appellants used a motor vehicle with the name of the 1st appellant on it was not enough to conclude that they acted for the 1st appellant in committing the said acts of trespass.

The pleading in the further amended statement of claim in pages 3 – 12 of the record and the evidence should have disclosed the authorisation by the 1st appellant of the commission of the trespass by the 2nd – 4th and 6th – 8th appellants. Such evidence by which the acts of trespass done by the 2nd – 4th and 6th – 8th appellants that can be used against the 1st appellant will be the conduct of the 2nd – 4th and 6th – 8th appellants in the course of committing the said acts of trespass vide James v. Mid-Motors (supra).

The pleading should have indicated that the 1st appellant was being charged with liability vicariously by the act of its named members, the 2nd – 4th and 6th – 8th appellants vide James v. Mid-Motors (supra) followed in Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 5 NWLR (pt.656) 322 at 358 and 365, to wit –

“…What a plaintiff has to make sure about (and this must be made clear in the pleadings) is whether he is holding the servant or agent personally liable or the corporation liable vicariously.”

There was no such piece of pleading and evidence in support thereof.

Rather paragraph 24(a) of the further amended statement of claim in page 8 of the record exonerated the 1st appellant as the 8th defendant at the Court below thus – “24. The plaintiff will show at the hearing of this action as follows-

(a) That the 8th Defendant was not consulted before the 1st – 7th Defendants (2nd – 8th appellants) performed the acts set out in paragraphs 11 – 39 of the statement of claim and that the 1st – 8th Defendants (2nd – 8th appellants) are personally liable to the plaintiff in tort.”

So the issue of the liability of the 1st appellant was out of the question as it was expressly excluded from the pleadings settled by the respondent. It would have been otherwise had the 2nd – 4th and 6th – 8th appellants asserted that they were acting for the 1st appellant or evidence had been led to that effect and that the 1st appellant, an artificial entity, who runs her affairs through human beings constituted as registered trustees had fully supported them and in effect adopted their acts of trespass in which case the trespass would have been said to be the trespass of the 1st appellant vide Obasi and Ors. v. Oti and Anor. (1967) NMLR 74 at 75.

Also, as aptly stated in the analogous English case of Bolton (Engineering) Go. Ltd. v. Graham and Sons (1957) 1 Q.B. 159 at 172- 173 per Denning, L.J.:

“Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors or managers who represent the directing mind and will of the company, and control what it does. The state of mind of those managers is that state mind of the company and is treated by law as such …”

In the absence of any established nexus between the 2nd – 4th and 6th – 8th appellants’ act of trespass and the 1st appellant’s culpability of authorization or ratification of the 2nd – 4th and 6th – 8th appellants said acts of trespass by the registered trustees of the 1st appellant who were at all material times the directing mind of the 1st appellant, the Court below was, with maximum respect, wrong to have held the 1st appellant also liable for the trespass committed by the 2nd – 4th and 6th – 8th appellants.

I resolve issue 1 (supra) in favour of the 1st appellant that the Court below should not have found the 1st appellant liable for the trespass committed by the 2nd – 4th and 6th – 8th appellants. The award of damages for trespass ordered against the 1st appellant and the order of perpetual injunction entered against the 1st appellant are accordingly, without basis.

Possession of adjacent or contiguous land to the land in dispute is one of the five methods of proving title to land. For the method of proof of title to land to apply evidence must be led that the land is next to or near the disputed piece of land, and the evidence must show that the land in question is neighbouring the land in dispute.

Second, the adverse party or opponent of the person relying on this method of proof of title to land must admit ownership of the adjacent or contiguous land to the land in dispute by the person claiming ownership of the disputed piece of land. See Archibong v. Ita and Ors. (1954) 14 WACA 520 at 522 relying on the old English case of Jones v. Williams, 2 M and W 326 at 331, Anukam v. Anukam (2008) 5 NWLR (pt.1081) 455 at 476.

In the present case, the evidence disclosed that the disputed piece of land is in the southern zone, while the land the respondent admitted the 1st appellant owns is in the northern zone. The doctrine would therefore not apply as the land in the northern zone is not shown to be adjacent or contiguous to or is neighbouring the disputed land in the southern zone, nor was it shown by the evidence that there is land owned by the 1st appellant and so admitted by the respondent that is adjacent or contiguous to or neighbouring the disputed piece of land located in the southern zone.

The fact that the action for declaration of title to land failed did not undermine the claim for trespass and perpetual injunction. For it was held by the Apex Court in Ayinde v. Salawu (1989) 3 NWLR (pt.109) 297, and Owhonda v. Ekpechi (2003) 17 NWLR (pt.849) 326 at 345 following Oluwi v. Eniola (1967) NMLR 339, Adegbite v. Ogunfaolu (1990) 4 NWLR (pt.196) 578, Ojibah v. Ojibah (1991) 5 NWLR (pt.191) 296, that a claim for trespass and perpetual injunction may succeed and be granted even where the claim for title to the land is dismissed.

Respecting the counter claim, the 1st appellant tendered title documents of purchase of certain portions of land, Exhibits D4 to D9. It was held by the Apex Court that where the identity of the land claimed is certain, the party still has the onus to relate the evidence to the land claimed vide Okhuarobo v. Aigbe (substituted by His Eldest Son Asenoguen Egharevba) (2002) 9 NWLR (pt.771) 29 at 84.

In the instant case, the 1st appellant’s witnesses did not relate the title documents, Exhibits D4 – D9, to the composite plans, Exhibits D22 and D23, respecting the portions of the land counter claimed by the 1st appellant. Documents tendered in a case have to be linked to the claim by the witness or witnesses called by the party relying on the documents. Not having done so, I agree with the respondent that the Court below was right in holding that the counter claim was not proved.

In the final analysis, I find merit in the appeal only on the issue that the court below was wrong to have found the 1st appellant liable for the trespass committed by the 2nd – 4th and 6th – 8th appellants. The appeal is however, unmeritorious on the issue that the 1st appellant proved the counter claim. I would allow the appeal in part on the issue of trespass by the 1st appellant and dismiss it with respect to the other part of the judgment of the Court below that the 1st appellant did not prove the counter claim. Parties to bear their costs.

ABUBAKAR, JCA

My learned brother Ikyegh JCA, granted me the privilege of reading the comprehensive Judgment prepared and rendered by him. I agree entirely with the Judgment, I have nothing extra to add.

OBASEKI-ADEJUMO, JCA

I have read earlier in draft the judgment delivered by my learned brother JOSEPH SUAGBAOR IKYEGH, JCA and I am in total agreement with his reasoning contained therein and the conclusion arrived thereat.

I allow the appeal in part and abide by consequential orders in the lead judgment.