AKINYEMI V. BANJOKO (2017)

Background

The appellants instituted an action before the Ogun State High Court, sitting at Otta, claiming N5,342,000 as special and general damages for alleged trespass by the respondent on land situated at Olambe Village, Ogun State. They also sought a perpetual injunction restraining the respondent, his servants, agents and privies from committing further acts of trespass. The appellants relied, among other things, on certificates of occupancy and a survey plan describing the disputed land.

The respondent denied the claims and pleaded that the land belonged to the Oseni family, of which he was a member. He additionally contended that the land had been acquired by the Ogun State Government under the Agbado Global Acquisition, allegedly published in various government gazettes. On that basis, he argued that the appellants no longer possessed any title or legally enforceable interest in the land and therefore lacked the locus standi, or legal capacity, to maintain the action.

Relying on Order 22, rule 2 of the Ogun State High Court (Civil Procedure) Rules, 2008, the respondent applied for the point of law to be determined as a preliminary issue and sought an order striking out the suit. He attached certified copies of government gazettes and a letter from the Bureau of Lands and Survey purporting to confirm the acquisition. Although the appellants denied the acquisition and challenged the reliability and legal effect of those materials, the trial court accepted the respondent’s position and struck out the action. The appellants appealed.

Issues

1. Whether the trial judge was right to determine the appellants’ locus standi by relying on facts contained in the statement of defence and affidavit evidence rather than confining the inquiry to the writ and statement of claim.
2. Whether the alleged government acquisition could properly be established and determined summarily, without a full trial and oral evidence.
3. Whether the respondent’s reliance on the alleged title of the Ogun State Government amounted to the prohibited defence of jus tertii in an action for trespass.

Ratio Decidendi

The Court of Appeal allowed the appeal and held that the trial court acted irregularly in terminating the suit in limine. Under the applicable rules, demurrer had been abolished. A defendant could not use a motion to revive the old demurrer procedure without first pleading the relevant defence. Order 22, rule 2 permitted a party to raise a point of law by pleading, but the point would ordinarily be determined after trial. It could be heard before trial only by consent of the parties or by order of the court.

The court distinguished demurrer from an objection to jurisdiction. Demurrer assumes the truth of the facts pleaded by the opposing party and argues that, as a matter of law, those facts disclose no sustainable cause of action or locus standi. Jurisdiction, by contrast, concerns the court’s power to entertain the subject matter and is not necessarily dependent on the plaintiff first pleading facts. In proceedings in lieu of demurrer, the court must generally consider the statement of claim on the assumption that its material facts are true. The defendant cannot rely on disputed facts, extraneous documents or evidence to rebut the plaintiff’s pleading at that preliminary stage.

Locus standi is ordinarily determined from the writ of summons and statement of claim. The relevant question is whether those pleadings disclose an interest or right of the plaintiff that has been adversely affected, or is threatened with adverse effect, by the defendant’s conduct. The appellants’ allegations that the respondent trespassed on their land and should be restrained disclosed a sufficient justiciable interest. Whether they would ultimately prove ownership or possession was a matter for trial, not a basis for shutting them out at the interlocutory stage.

Court Findings

The court found that the alleged acquisition was not contained in the appellants’ statement of claim. It appeared only in the respondent’s statement of defence, affidavit and supporting exhibits. Since the appellants had expressly denied the acquisition, the issue was factual and contentious. The gazettes and Bureau of Lands letter required proper examination, and the maker of the letter could be called and cross-examined. The trial judge therefore erred by relying on the documents to resolve the dispute summarily.

The court also held that the respondent’s position, insofar as it asserted that the land belonged to the Ogun State Government rather than to the appellants, constituted a plea of jus tertii. In an action for trespass, possession is protected against a stranger. A defendant cannot ordinarily justify an alleged trespass merely by asserting that title belongs to a third party, unless the defendant claims under or through that paramount title. The respondent did not establish that he occupied the land under authority of the Ogun State Government.

The decision in Makeri v. Kafinta did not justify the trial court’s approach. In that case, acquisition had been established after a hearing on the merits, including testimony from a land officer and proof that compensation had been paid. It was not authority for determining disputed acquisition solely on affidavit materials at a preliminary stage.

Conclusion

The Court of Appeal set aside the ruling of the Ogun State High Court delivered on 2012-04-27 in Suit No. HCT/166/2011. It ordered that the case be remitted to the Chief Judge of Ogun State for trial on the merits by another judge. The parties were ordered to bear their own costs.

Significance

The decision protects access to justice by discouraging courts from striking out land claims prematurely where the claimant has pleaded a recognizable dispute. It confirms that locus standi is assessed principally from the claimant’s pleadings, while disputed questions of acquisition, title, possession and compensation ordinarily require evidence at trial. The decision also clarifies the limited operation of proceedings in lieu of demurrer and reaffirms that jus tertii is generally unavailable to a trespasser who seeks to rely on the alleged title of an absent third party.