Liasu Adepoju V. Raji Oke. (1999)

LAWGLOBAL HUB Lead Judgment Report

O. OGWUEGBU, J.S.C

This appeal was brought by the defendants against the judgment of the Court of Appeal. Ibadan Division which dismissed their appeal and a affirmed the decision of the High Court of Oyo, Osogbo Judicial Division, granting declaration of title, damages for trespass and injunction in favour of the plaintiff.

The plaintiff instituted the action for himself and on behalf of Alegbeleye family against 1st and 2nd defendants for themselves and on behalf of Ladumoye family and the 3rd and 4th defendants for themselves and on behalf of Abinusedun family.

The plaintiff’s claim against the defendants jointly and severally is for:-

1. “A declaration that the plaintiffs (sic) are the persons entitled to be granted title to statutory or customary right of occupancy in respect of all that piece or parcel of land situate lying and being at Gbonmi, Oshogbo.
2. The plaintiff claims against each of the defendants the sum or N500.00 being damages for trespass continued on the land in dispute which was in possession of the plaintiff when the defendants unlawfully entered the land in their possession in 1966.
3. An injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said parcel of land.”

The action was tried on pleadings filed by both parties following the order of the court of trial.

The plaintiff’s case was that the land in dispute originally belonged to Ataoja Matanmi who made a grant of it to the plaintiff’s ancestor called Ojo Alegbeleye. The land in dispute was said to be within the Oshogbo township walls and that the land within the town walls had been settled to belong to the Oba. It is the Oba that used to grant the area within the town walls to other people. The Ataoja Matanmi granted large parcel of land including the land in dispute to Ojo Alegbeleye. Ojo Alegbeleye was succeeded on the land by various heads of the family including Gbadamosi Olaniyan. It was the plaintiff’s case that each of these heads built houses on the land as well as farming the land and they planted economic trees thereon such as kola, coconut, cocoa and food crops. Grants were made of parts of the land to persons who were not members of Ategbeleye family while the family remained in possession of the area not granted.

Some of the grantees of the Alegbeleye family includes Orisabalayi the ancestor of Abinusedun family whose descendants are in possession of the areas not so granted as shown in Exhibit “8” (plaintiffs survey plan), some mechanics who built workshops on the land and pay rent for their holdings, the District Council and Nawarudeen for building schools and Asani who built a house on the portion granted to him. The parcels in dispute are marked “C’ and “D” and edged blue in Exhibit “8”. These are some parts of the entire area alleged to have originally belonged to the Alegbeleye family by virtue of that grant from Ataojo Matanmi.

The defendants’ case was that the land in dispute belonged to the 1st defendant’s family, Bale Gbonmi. It was the defendants’ case that the land in dispute belonged to Bale Ghonmi whose father settled on it and it was located in Gbonmi area. That Bale Gbonmi made grants of part of the land to Alegbeleye and the Abinusedun families (the 3rd and 4th defendants). It was also their case that the land in dispute was in Gbonmi area and also within the Oshogbo town walls though maintained that Gbonmi is a separate town from Oshogbo. They also claimed that it was Bale Gbonmi that made a grant of some portions of the land to the District Council and Nawarudeen to build schools and not the plaintiff’s family.

The learned trial Judge in a considered judgment granted all the reliefs claimed by the plaintiff, N1,000.00 damages for trespass was awarded against the 1st and 2nd defendants and an order of injunction was made against all the defendants. The defendants were not satisfied with the judgment of the learned trial Judge and appealed to the Court of Appeal, Ibadan Division. That appeal was dismissed and they further appealed to this court.

Briefs of argument were filed on behalf of the parties. From the grounds of appeal filed, the following issues were formulated in the appellants’ brief for determination in the appeal:

“(1) (a) What is continuing trespass in law

(b) Is there a continuing trespass (technically so-called) where ‘A’ built 5 houses between 1966 or 1969 on “B’s’ land’

(c) Can trespass committed in 1966 be continuing trespass for an act of building done in June, 1965

(2) Have the plaintiffs/respondents discharged the onus placed on them by law to prove with preponderance of evidence and with certainty;

(a) The Oshogbo town wall and the Gbonmi town wall marking the boundaries of Bale Gbonmi’s land since they are both adjoining land owners

(b) The boundaries of the disputed land marked blue in Exhibit 81

(c) The extent of the land said to be granted by the plaintiff’s respondent’s family to the defendants’/appellants’ family

(3) Whether the two lower courts were right in holding that the decision in Oyetona v. Thomas Ajani (1959) W.N.L.R. 213 is binding on the defendants/appellants (merely on the principle of so-called judgment in rem who were not parties to the said suit and without proof of the said Oshogho town wall’”

The respondent raised an obligation in his brief to grounds 3, 4 and 5 of the amended grounds of appeal and issues Nos. 3 and 4 formulated from them. He contended that:

(a) The point sought to be raised and argued in ground 5 issue 4 is a new point which was not raised and argued in the High Court or Court of Appeal and therefore cannot be raised for the first time in the Supreme Court.

Ejiofodomi v. Okonkwo (1982) 11 SC 74 at pages 93-98 ;( 1982) Vol. 1 NSCC at page 422

(b) Grounds 3 and 4 are grounds of facts or mixed facts and law for which leave is required by virtue of section 213(3) of the Constitution of Federal Republic of Nigeria 1979 and are therefore incompetent since no leave to appeal has been granted.

In the respondent’s view, the issues arising from the proper grounds of appeal are:

(1) Whether the learned Justices of the Court of Appeal were right in upholding the decision of the learned Judge that the appellants are trespassers on the land in dispute If so, whether the trespass is a continuing one

(2) Whether or not the respondent is bound by the decision in FCA/1/162/77 and estopped from bringing this fresh action.”

It is convenient at this stage to dispose of the notice of objection given in the respondent’s brief of argument before proceeding to consider the questions raised in this appeal. On 21-4-93 this court granted leave to the appellants to amend the grounds of appeal contained in their notice of appeal and for leave to file and argue the additional grounds of appeal “contained in the document attached to the affidavit and marked Exhibit A”.

I have no doubt that the learned Senior Advocate of Nigeria appearing for the respondent became aware of this order hence he did not pursue the objection at the hearing of the appeal on 7-2-98. The objection is therefore struck out.

The appellants argued the first and second issues for determination together in their brief. It was concerned that there was no act of continuing trespass in this case because the alleged trespass of 1966 or 1968 which was before the judgment in suit No. FCA/1/162/77 consisted of the building of four or five houses on the land in dispute by the defendants/appellants herein. That a continuing trespass occurs prospectively and the plaintiff’s right of action for the trespass of 1966 or 1968 had been consumed in suit No. FCA/1 /162/77 unless a fresh act of trespass took place after that judgment.

In reply, it was the contention of the respondent that the appellants overlooked the crucial finding of the learned trial Judge at page 40 lines 25-2 of the records to the effect that the plaintiff’s family were in possession or had the right to possession of the area or land in dispute before 1966 and that the act of entering such an area and erecting buildings thereon established a liability in trespass and that they were liable in trespass. It was further submitted that the appellants did not appeal against this finding.

The plaintiff/respondent further contended that since the defendants/appellants agreed in their brief that if the thing placed on land continued to cause damage it would give rise to actions de die in diem so long as it lasted and since the unlawful act of entry complained of by the plaintiff in suit No 11/66 was the building of houses on the land in dispute and those buildings are still on the land when the present proceedings were instituted in 1979, a case of continuing trespass had been made out because the buildings are still on the land.

As to the continuing act of trespass, the plaintiff/respondent pleaded as follows in paragraphs 20, 21,22. 23 and 24 of the amended statement of claim:-

“20(a) The plaintiff’s family have been in exclusive possession of the area verged blue until the defendants in 1966 unlawfully entered the area verged blue and marked C & D and started to build on portions thereof after 1966 which trespass is still continuing.

(b) When the plaintiff challenged them, the defendants claimed the said land hence the plaintiff sued Alimi Adejumo, Salako Abinusedun and Karimu Ahinusedun in suit No. 11/66 before Oshun Divisional Grade A Customary Court in 1966 and won.

21. The said defendants in suit 11/66 were dissatisfied with the decision of the learned president of Grade’ A’ Customary Court and appealed to Oshogbo High Court which allowed their appeal.
22. When the plaintiff was dissatisfied with the decision of the learned Judge of Oshogbo High Court, he appealed to the Court of Appeal which confirmed the judgment of the High Court with modification.
23. The plaintiff contend that Alegbeleye family are the owners and holders of the land in dispute verged blue and the said parcel of land up to the 29th day of March, 1978 was being lawfully used by Alegbeleye family for agricultural purposes except for the Apostolic Church built by Tella a member of the plaintiffs family.
24. Whereof the plaintiff’s c1aims as per his writ of summons.”

The claims indorsed on the writ of summons are:-

“1. The plaintiff’s claim against the defendants jointly and severally is title to a declaration that the plaintiffs are the persons entitled to be granted statutory or customary right or occupancy in respect of all that piece or parcel of land situate lying and being at Oke Gbanu, Oshogbo.

2. The plaintiff’s claims against each of the defendants the sum of N500.00 being damages for trespass committed on the land in dispute which was in possession or the plaintiff’s when the defendants unlawfully entered the land and took possession in 1966.
3. Injunction… ”

In his evidence before the learned trial Judge, the plaintiff (Raji Oke) testified that the defendants unlawfully entered the land in dispute and started to build thereon in 1966 and he sued them and that they still occupy the land and the houses up till the time he was testifying on 26/6/79. In answer to cross-examination, the plaintiff answered:-

“The houses built by the defendants which we showed to our surveyor was not built in 1966. In 1966 we sued the defendants for trespassing on our land; but which (sic) they started building on it is why we made a second survey plan which was drawn by Mr. Bamgbose and which I earlier identified.

’91E2’9180’a6..

We are complaining as we did in 1966 because the defendants have not vacated our land. The buildings by the defendants were of concrete blocks. Some have been roofed some have not gotten to that stage. Some are at foundation level”

The D.W. 2 Yesufu Oluajo admitted in his evidence that they had built about four houses on the land in dispute since the action was instituted. On the claim for damages for trespass, the learned trial Judge found as follows:

“In the present action the plaintiff’s claim is for N500 damages for trespass committed on the land in dispute which was in the possession of the plaintiff when the defendants unlawfully entered the land in possession in 1966. Such claim in a way postulates an element of continuity in the act of trespass because it talks of unlawfully entering the land in 1966. Where there is a continuous act of trespass then the fact that the entry started at an earlier time, in this case in 1966 and the time it started would not seem in my view to exhaust the act of trespass and if in this case the trespass is regarded as a continuing one, then fresh causes of trespass would have arisen after the termination of the cause of action in the earlier judgment and before the commencement of the present one …

My finding in relation to the claim for title shows that the plaintiff’s family were in possession or had the right to possession of the area in dispute before 1966. The act of the defendants in entering such area and erecting such buildings thereon establishes a liability in trespass.

The learned trial Judge was right in his conclusion that the act of the defendants which led the plaintiffs to institute suit No. 11/66 in Oshun Divisional Grade “A” Customary Court that terminated in the Court of Appeal on 19/5/78 as suit No. FCA/1/162/77 was a continuing one and fresh causes of action for trespass arose after the termination of suit No. FCA/1/l62177 (Exhibit D). The judgment in Exhibit “D” (FCA/1/162/77) did not terminate the continuance of the trespass which is the erection of houses on the land which the learned trial Judge found to be in the possession of the plaintiff/respondent hereon: 1966 and the houses have continued to remain on the land while the act of erection was unlawful. There was no appeal against the finding that the land in dispute was in the possession of the plaintiff’s family.

The original erection of the houses did influence the continuance of the act of the trespass and it remained a continuing trespass from the very erection of those houses. There is therefore an act of continuity of the trespass by the defendants since the houses are still on the land which the learned trial Judge found to be in the possession of the plaintiff.

The learned counsel for the appellants referred the court to the cases of Thompson v. Gibson (1841) 151 ER Exch 845 and Hudson v.. Nicholson (1839) 151 ER Exch. 185. Those cases are clearly against the contention of the appellants’ counsel and in fact support the case of the respondent. The former was an action for continuing nuisance to the plaintiffs market by a building which erected in the public from a part of the space on which the market was lawfully held. The building was erected in 1938 under the superintendence and direction of the defendants on a parcel of land belonging to a corporation of which they were members. The owner of the market demised it to the plaintiff in 1939 and the plaintiff instituted the action against the defendants for constituting a nuisance to his market. The latter case was one of continuing trespass. In each of them, the court held that the plaintiff had a right of action for the continuing nuisance/trespass.

Since the act of building on the plaintiff’s land was unlawful and the houses have been left on the said land, the trespass continued as long as the houses were on the land and the defendants were rightly found to be liable.

On the issue of estoppel per rem judicatam, it was submitted in the appellants’ brief that the trial court was wrong in law in allowing the plaintiff to relitigate the same issues litigated upon in an earlier suit (suit No. 11/66) and that he had the opportunity of recovering in the earlier suit what he is trying to recover in the present proceedings.

Alhaji Agbaje, S.A.N. for the respondent in reply submitted as follows:-

(1) Since the cause of action in 1966 was in respect of allegation of bare entry which was not proved, the decision of the Court of Appeal in FCN1/l62177 can only operate as estoppel on those three findings. In other words, the respondent will be estopped from contending that the appellants entered the land in dispute and caused any damage.

(2) Since the cause of action now is unlawful entry and building on the land in dispute which caused damage and the area trespassed is identified and ascertainable the present cause of action cannot be the same as that before 1966 which led to 1966 action. Because the same evidence will not support both.”

The court was referred to the cases of Commissioner for Lands v. Abraham 19 NLR 1, Bell v. Holmes (1956) 3 All ER 449 at 453 and Derrick v. Williams (1939) 2 All ER 559 at 566.

The act of trespass complained or in suit No. 11166 can be gathered from the evidence of the plaintiff in that case.

He stated:-

“Sometime in June, 1966 the defendants entered the land, commenced this action against them.”

That case terminated in the Court of Appeal in suit No. FCN1/162/77. That court held that the area of the alleged trespass was not ascertainable and there was no evidence from which the area could be ascertained. The Court of Appeal further held that there was no evidence to show the “nature and extent of the damage done in consequence”. It dismissed the claim for trespass and injunction.

In the present proceedings the defendants/appellants were sued because they entered the land in dispute and continued to build on it. In continuing trespass, successive actions can be brought from time to time in respect of its continuance.

This is precisely what happened in this case. In this case, therefore, issue estoppel did not even arise. The courts below also agreed that estoppel per rem judicatam did not also apply.

On the 3rd, 4th and 5th issues for determination, the appellants contended that the respondent who is seeking a declaration of title succeeds on the strength of his own case and not on the weakness of the defendants’ case. (Ekpo v. Ita XI NLR 68). The appellants are in effect saying that the onus of proof of title on a claim for declaration of title to land lies on the respondent and that he failed to discharge that onus. In paragraphs 7 and 8 of the amended statement of claim, the plaintiff/respondent averred:-

“7. The whole of the area verged red on the plan attached herewith the formal part of the land within Oshogbo town wall indisputable bonafide property of Ataoja of Oshogbo and all members of the ruling family of Oshogbo vide Oyetona v. Thomas Ajani (1959) WNLR 213.

8. The plaintiff will also rely on the admission of Alimi Adejumo, 2nd defendant, in his evidence in suit No. 11/66 between Raji Oke v Alimi Adejumo that the area verged red is within Oshogbo town wall.”

He led evidence in line with the above pleading. On this the learned trial Judge held as follows:-

“It follows therefore in my view that such finding of possession of the land within the Oshogbo town walls by Taylor. J. in Oyetono v. Ajani (supra) should bind the parties in this case, because it has the effect of establishing in rem the right of the Ataoja ofOshogbo and the princes of Oshogbo who are descendants of Laaro 10 the possession of lands within Oshogbo town walls … The result is that as between the plaintiff who has traced his family grant of the land in dispute to Ataoja Matanmi and the defendants who did not claim’ to derive title from any Ataoja or the princes of Oshogbo but from original settlement the plaintiff would appear to have established a better right to the land in dispute.

I have in this connection considered Exhibit ‘E’ in which during the proceedings in an action between the parties for the same relief. as in the present action, before the Oshogbo Grade ‘B’ customary court in 1961. the Ataoja of Oshogbo Oba Adenle 1 intervened and judgment was declared in favour of the Ataoja and all members of the ruling family … The result then is that the plaintiff is entitled, as claimed, to be granted title to statutory or customary right of occupancy in respect of the land in dispute being area ‘C’ and ‘D’ edged blue in Exhibit ‘B’ and I so declare:’

The plaintiff filed a survey plan where the area of land claimed by the plaintiff is verged red. The area granted to Abinusedun family is verged yellow and the portion trespassed on by the defendants is verged blue. That survey plan was admitted in evidence as Exhibit “B”. The defendants did not object to its admissibility in evidence. They did not file a counter-plan. They cannot be heard to commend that the plaintiff did not prove with certainty the boundaries of the land in dispute.

In its own finding, the court below held:-

“By the judgment of the case quoted in the paragraph of the statement of claim, the title of the overlord of the plaintiff respondent was established. I do not think it requires further assertion to prove the title of the overlord.”

All the issues identified by the appellants having been resolved against them, the appeal fails and I hereby dismiss it. The judgment of the court below which upheld the decision of the learned trial Judge is hereby affirmed. The respondent is entitled to costs which I assess at N10,000.00.

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SC.201/1992