A. Adebanjo V. A. A. Brown (1990)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C.

Alfred Adeyinka Brown, who was the original plaintiff in this case in the High Court died on the 6th day of September, 1984, and the present respondent, one of his children, was substituted in his place. So all references to “the Plaintiff” or “the Respondent” in this judgment will be to the original plaintiff.

In the High Court of Lagos State, the respondent as plaintiff brought an action against the appellant, claiming in his amended writ of summons, as follows:-

“1. N2,000.00 (Two thousand naira only) being special and general damages for trespass committed by the defendant on the plaintiff’s land at Tanimeda, in the Surulere district of Lagos, Lagos State within the jurisdiction of this court, a plan of which land, that is to say the plaintiff’s land is attached, marked ‘A’, numbered 1, 9 and 10 and edged red.

2. Perpetual injunction restraining the defendant, his servants and/or agents from further trespassing on the said land or any part of same. Annual value of land is approximately N2,000.00.”

Pleadings were ordered and filed, and in paragraphs 10, 11, 12, 13, 14, 15,16, 17 and 18 of the amended statement of claim, the plaintiff averred as follows:-

“10. By virtue of an Indenture of Conveyance dated the 16th day of December, 1967 and registered as no.87 at page 87 in volume 1268 of the register of deeds kept in the lands registry Office in Lagos, the children of the aforesaid Albert Edward Brown (deceased) sold and conveyed three (3) plots, Plots 1,9 and 10 which are a portion of the said land referred to in paragraph 4 above to the plaintiff for an estate in fee simple absolute in possession free from all incumbrances whatsoever. The plan of the 3 plots which is Plan No.AL69/1966 is attached to the amended writ of summons and marked A1 drawn by S.A. Alaka, licensed surveyor on the 21st day of September, 1966 and edged RED.

11. Since his purchase of the said land the plaintiff has entered into full free continuous and undisturbed possession of same exercising maximum rights of ownership and/or possession over same without any let or hindrance until the series of acts unleashed by the defendant.
12. In and during the month of December, 1973 the defendant without any authorisation from or by the plaintiff trespassed unto plot 10 of the plaintiffs land (hereinafter referred to as the land in dispute) and with a caterpillar vehicle destroyed the extensive crops planted by the plaintiff on the said land and at the same time the defendant sought to commence building operations on the said land.
13. The plaintiff caused his solicitors to write on 22nd December, 1973 to the defendant warning him to desist from so building on plaintiff’s land and demanding an amount of N200.00 (two hundred naira) for the crops so far destroyed.
14. The defendant started to make approaches to the plaintiff that he would purchase the land from the plaintiff whilst at the same time he continued despite the warning not to build on the said land.
15. In and during the month of January, 1977, and without any authorization or permission from the plaintiff the defendant vi et armis pulled down part of the walls (concrete) of the plaintiffs buildings on the land and proceeded to wall round into his own close to that part of the plaintiff’s land.
16. In the course of the operation described in paragraph 15 herein the defendant –

(i) Spread out and wasted and scattered some ten piles of building sand which the plaintiff had accumulated on his land.

(ii) damaged the barrier by which the plaintiff had hitherto shut out water from and into his house and thereupon water in large quantities flowed into and damaged properties in the house of the plaintiff.

17. The area trespassed upon by the defendant is edged green on the land in dispute and should (sic) on the attached composite plan marked B1 which is numbered AL14/1981 drawn by S.A. Alaka. licenced surveyor on the 30th day of Apri,.1981 and the defendant is holding on to the said plaintiff’s land and trespasses into the said plot No. 10, and whenever he is asked to leave he would turn out the hooligans and thugs that he maintains regularly on the said land.
18. WHEREFORE the plaintiff claims against the defendant as follows:-

(i) N2,000.00 (two thousand naira) being special and general damages for trespass made up as follows:-

A. Special damages:

Cost of crops destroyed N200.00

Cost of sand scattered 420.00

Cost of wall fence broken 300.00

Cost of properties

Damaged by water 150.00

N1,070.00

B. General damages 930.00

N2,000.00

(ii) Perpetual injunction restraining the defendant, his servants and/or agents from further trespassing on the said land or any part of same.”

In his amended statement of defence, the defendant pleaded as follows:-

1. Save and Except as are hereinafter specifically admitted the defendant denies each and every allegation of facts contained in the statement of claim as if each were set out seriatim and specifically denied.
2. With reference to paragraph (1) of the amended statement of claim, the defendant admits that the plaintiff is a retired private gentleman but states further that he lives at No.1, Modupe are Close, Aguda, Surulere since December 26th, 1974 but denies that his residence is within the area known as Tanimeda which is still quite some distance to Modupe are Close.
3. The defendant admits that he is a legal practitioner as stated in paragraph 2 of the amended statement of claim and states further that he lives at Plot 3 Block IV, Nuru Oniwo Street, Aguda, Surulere since December 22nd, 1973, a place which is next door to the plaintiff.
4. The defendant denies paragraphs 3, 4, 11, 12, 13, 14, 15, 16, 17 and 18 of the amended statement of claim and puts the plaintiff to the very strictest proof of the averments in each of the aforesaid paragraphs.
5. The defendant denies paragraphs 5, 6, 7, 8, 9 and 10 of the statement of claim and puts the plaintiff to the very strict proof thereof.
6. The defendant avers that the deed of conveyance recited in paragraphs 4 and 10 of the amended statement of claim confers NO TITLE to the plaintiff and puts the plaintiff to the strictest proof of his title.
7. The defendant says that the plaintiff did not exercise any rights of ownership and/or possession over the land in dispute as claimed in paragraph 11 of the statement of claim and puts him to the very strict proof of same.
8. The defendant avers that he moved into a portion of what is described as Plot No.10 in the Plan marked ‘A1’ ATTACHED TO THE amended statement of claim clearly in 1972 with the full knowledge/consent and approval of the plaintiff.
9. The defendant avers that the plaintiff knew and was present when the defendant was developing his property and he stood by and allowed the defendant to complete the development of the said property before he talks of encroachment.
10. When the defendant started the development of his property in 1972, the plaintiff and the defendant’s vendors the administrators of Alhaji N.H. Soule – headed by Engineer M.S. Sulaiman mutually agreed that the whole of Plot 10 in the plan marked ‘A1’ and attached to the amended statement of claim should be released to the defendant since it forms part of plot 3 in Block IV in N.B. Soule’s layout TPAO 289 which had earlier been sold by the administrators of Alhaji N.B. Soule to the defendant.
11. The defendant’s vendors, i.e., the administrators of Alhaji N.B. Soule agreed in return to convey Plot 2A in Block 11 of N.B. Soule’s layout TPAO 289 to the plaintiff.
12. As a result of this agreement the plaintiff removed the shed which he had constructed on part of Plot 10 to Plot 9 at the expense of the defendant.
13. That whilst the plaintiff was developing plot 9 in the plan marked ‘A1’ he encroached in plot 10 which he had earlier agreed to release to the defendant in exchange for another plot to be given to him by the defendant’s vendors.
14. When the defendant complained to the plaintiff that he had encroached on the plot 10 which he had agreed to release to defendant in exchange for another one, the plaintiff retorted that it was only the area of land that he eventually released to the defendant that should be replaced for him.
15. Thereafter, the defendant asked the plaintiff to demarcate the extent to which he would release part of plot 10.
16. The plaintiff then took a tape and with the assistance of his foreman marked the spot of the present boundary wall of the defendant and the plaintiff as the extent he was prepared to part with plot 10.
17. The defendant’s vendors then informed the plaintiff that since he did not release the whole of the promised plot to the defendant, they had no half plot to give to him but that he could only be compensated in cash for the portion of plot 10 released to the defendant.
18. The plaintiff demanded that the area of plot 10 released should be surveyed before he could decide on the amount of compensation he would demand.
19. To this end, the plaintiff sometime in 1976, directed the defendant to the family surveyor of the plaintiff, Alhaji S.A. Alaka, to conduct the necessary survey.
20. The defendant therefore paid Alhaji S.A. Alaka the necessary fees for the survey of the portion of plot 10 released to the defendant.
21. Consequently, plan No. AL9/1976 was prepared by Alhaji S.A. Alaka on the 10th of February, 1976.
22. After the completion of the survey, when the plaintiff was asked to make his demand for the amount of compensation, the plaintiff turned round to deny ever giving his consent and started to harass the defendant on the land.
23. The defendant thereafter made peaceful approaches to the plaintiff through his close friends and relatives, amongst these are Mrs. Beyioku, M. B.A. Agusto, late Mr. Vera Cruise and Alhaji S.A. Alaka.
24. The defendant avers that he did not use a caterpillar vehicle to destroy any crop planted by the plaintiff as alleged in paragraph 12 of the amended statement of claim and put the plaintiff to the strictest proof of every averment in the said paragraph.
25. The defendant denies receiving any letter from the plaintiffs solicitor at any time.
26. The defendant specifically denies paragraphs 15 and 16 of the statement of claim and avers

(a) that he did not pull down part of the concrete wall of the plaintiffs buildings;

(b) that the plaintiff had no building sand on the land;

(c) that he did not damage any barrier erected by the plaintiff on the land. The defendant therefore puts the plaintiff to the strictest proof of the aforesaid paragraphs.

27. With reference to paragraph 17 of the amended statement of claim, the defendant strongly denies trespassing on the area marked green in the composite plan marked ‘B1’ which is number AL14/1981 and would contend at the trial that the said area was willingly released to the defendant by the plaintiff and avers that he maintains no thugs or hooligans to threaten the plaintiff or anybody.
28. The defendant will plead and rely at the trial on all legal and equitable defences open to him namely laches, acquiescence, standing by, stale claim and limitation laws.
29. The defendant also pleads that the plaintiffs claim also lacks merit and should be dismissed.”

At the trial plaintiff gave evidence. His case was that one day he went to his plot 10 and met the defendant’s workers constructing a foundation on it. He told them to stop but they did not. He later met the defendant and told him that he was trespassing on his land and that if he did not stop the trespass, he would sue him. It was his case that despite this warning, the defendant defiantly proceeded with the construction of his building and in fact completed the same after destroying his crops and cement blocks on his land. The defendant, he also claimed, demolished his wall fence which enclosed portion of his plot. Three other witnesses testified in support of his claim.

The defendant’s version was entirely different as could be readily gathered from his pleadings. His evidence, which was in substantial conformity with all the material averments of his amended statement of defence, was that while digging the foundation of his building, he discovered that part of his plot fell into the plaintiffs plot (plot 10) and that he immediately reported the matter to his vendors.

The defendant’s vendors with the defendant then approached the plaintiff who agreed to release the whole of his plot 10 in exchange for another plot to be given by the defendant’s vendors. There was evidence that a member of the defendant’s vendors family showed the plaintiff their plot 2A Block 2 in layout No. 289 which was to be substituted for the plaintiffs plot No. 10. It was the defendant’s case that this arrangement was acceptable to the plaintiff.

Subsequently, the defendant proceeded with the construction of his building. However when plaintiff commenced his own building on his other plot (plot 9), he extended the building to plot 10 which he had agreed to release to the defendant. When this encroachment on the part of the plaintiff was pointed out to him, he said that in the circumstances, he would no longer insist on having the whole of Plot 2A Block 2 which was equivalent to what was left of plot 10. The defendant then suggested to the plaintiff that he should demarcate the exact portion of plot 10 which the plaintiff was prepared to release to him, so that he might tell his vendors to give to the plaintiff a piece of land equivalent in size to that which the plaintiff was releasing.

The plaintiff accepted the suggestion and demarcated the extent of plot 10 he would be releasing. The defendant then dug a foundation for a wall fence and subsequently constructed his building on the newly demarcated line. In consequence of this new agreement, the plaintiff voluntarily removed a shed he had erected on plot 10 to plot 9, the expenses of which, at the insistence of the plaintiff, were met by the defendant.

However the defendant’s vendors said that since the plaintiff did not release the whole of plot 10 to the defendant as previously agreed, they had no half plot which they could give to the plaintiff, and suggested that the plaintiff should accept monetary compensation. The plaintiff agreed to do so on the condition that the piece of land to be released should be first surveyed so that he would be in a better position to decide on how much he would demand. The defendant then continued with his building operations under a genuine belief that his land now extended to one half of plaintiffs plot 10.

It was the defendant’s case that the survey required by the plaintiff had been prepared by P.W.2 (which is Exhibit ‘E’) and the plaintiff was asked to name how much money compensation he would demand, the plaintiff abruptly changed his mind about the agreement and asked the defendant to remove his building which the defendant had completed.

At the conclusion of the hearing, the learned trial Judge, Oguntade, J. (as he then was) very carefully and meticulously considered the totality of the evidence by both parties, and having observed that the plaintiff “had come to court to tell nothing but lies in support of his claim”, made the following important findings of fact. He said:-

“I find as a fact that the plaintiff having discovered that the defendant encroached upon his land went into an arrangement with the defendant and defendant’s vendors to have a plot of land in exchange for that encroached upon. I also find as a fact that when it was discovered that plaintiff had built on part of plot 10, through original arrangement was revised and that plaintiff agreed to take monetary compensation in lieu of the land encroached upon.

I find as a fact that it was in furtherance of this arrangement that the plaintiff voluntarily removed his shed from plot 10 and re-installed it on plot 9 at the defendant’s expense.

I also find as a fact that the plaintiff and the defendant in furtherance of the arrangement went to p.w.1 to prepare Exhibit ‘E’ so that the defendant might know how much to pay to plaintiff for the area of land encroached upon. Why would defendant just go and pay his money to p.w.1 for the preparation of Exhibit ‘E’ if not for that purpose And what was plaintiff doing with defendant in P.W.1’s house on that mission

“I find as a fact that the whole of plaintiffs actions and conduct were directed to convey to defendant that plaintiff would not insist on his strict proprietary rights over the land and that such actions and conduct did so convey such to the defendant.

The evidence of the defendant and D.W.1 are in my view the more probable as the evidence draws substantial support from the witness called by plaintiff, that is, P.W.1.

The evidence of P.W.2, I reject as plain fabrication. The whole attitude of defendant clearly evinces remorse and anxiety to reach an understanding with plaintiff after the encroachment was discovered.”

He finally concluded that the plaintiffs case in trespass had not been made out and he accordingly dismissed it. He also refused to grant an injunction.

Being dissatisfied with the decision of the learned trial Judge, the plaintiff appealed to the Court of Appeal, Lagos Judicial Division, and that court, by the lead judgment of Ogundare, J.C.A., with which Kutigi and Kolawole, JJ.C.A., concurred, on the 21st day of January, 1986, allowed the appeal and:

(i) awarded N250.00 as general damages for trespass committed by the defendant in 1972;

(ii) awarded N100.00 as damages in lieu of an injunction in respect of the portion of the plaintiffs land occupied by the defendant’s building, and,

(iii) granted an injunction restraining the defendant from further trespassing on the portion of the plaintiffs land which the defendant’s building occupies.

The defendant has appealed to this court from that decision. Altogether there were twelve grounds of appeal filed by the appellant but as these grounds have been fully taken into account in the issues raised for determination, I do not think it is necessary to set them down.

In his brief of argument, Chief G.O.K. Ajayi, S.A.N., for the appellant, formulated nine issues for determination in this appeal and his first issue is as follows:-

“Whether the Court of Appeal correctly appraised the evidence which was actually given before the learned Judge when it held that the offer of an alternative plot of land made by the defendant was withdrawn by the defendant or that the defendant reneged on the offer of exchange.”

This issue relates to a passage in the lead judgment of Ogundare, J.C.A… at p.196 of the record where the learned Justice of Appeal while stating the facts of the controversy between the parties, said as follows:-

“The plaintiff and the defendant were adjoining land owners. The plaintiff was the owner of Plots 9 and 10 in the Brown layout. The said Plot 10 is adjacent to a parcel of land sold to the defendant by the Nuru Oniwo family. While the defendant was developing his land he encroached on plaintiff’s land.

The plaintiff was in possession of his land at the time of the encroachment on it by the defendant. On discovering the encroachment the plaintiff protested to the defendant and attempts were made at a settlement. An offer of an alternative land was made to the plaintiff by the defendant’s vendors in lieu of plot 10 but when it was discovered that the plaintiff in developing his plot 9 had built also on a part of plot 10, this offer was withdrawn.”

It was the submission of Chief Ajayi, S.A.N., that the Court of Appeal was greatly in error to have formed the view that the offer of an alternative parcel of land made by the defendant’s vendors was withdrawn when there was no evidence to support such a finding. I agree with his submission. Negotiations between the parties relating to the offer of an alternative plot were pleaded in paragraphs 10, 11 and 12 of the defendant’s amended statement of defence already set out earlier in this judgment, and there is nothing in the defendant’s pleadings, or in his evidence at the trial suggesting that the offer of an alternative plot was, at one particular stage of their negotiations, withdrawn. The evidence of the defendant on this issue, which the learned trial Judge accepted, is as follows:-

“I told my vendors that the land they sold to me is part of the land belonging to plaintiff. My vendors and I approached the plaintiff. Plaintiff said as he was preparing to build on plot 9, he would be pleased to build near a lawyer. He suggested that he would be prepared to completely relinquish plot 10 if my vendors would give him another plot of land in substitution. My vendors agreed to give plaintiff another plot of land in exchange for plot 10. I then carried on the construction.”

This evidence was supported by that of D.W.1 Monsur Sulaiman, a member of the defendant’s vendor’s family who testified that the family offered plot 2A Block 2 in layout No. TPAO 289 to the plaintiff which plot was actually shown to him and who agreed to accept it in exchange. The finding, as Chief Ajayi rightly pointed out, could not have been based on the evidence of the plaintiff as he gave no evidence on the issue. I agree the Court of Appeal misdirected itself when it made a finding which was not supported by evidence.

The second issue for determination is in fact closely related to the first one and that is whether the Court of Appeal was right in its conclusion that the defendant reneged on the agreement for the exchange of plots. Again, there is no evidence to support such a conclusion.

The evidence before the trial court was that the agreement with the plaintiff for the exchange of the defendant’s vendors Plot 2A Block 2 for the plaintiffs plot 10 could not be carried out because the plaintiff had made it impossible to do so as he had extended his building into plot 10. In any case, the plaintiff’s case was that there was never any agreement between him and the defendant for exchange of plots.

That was his case both in the High Court and in the Court of Appeal, and by holding that the defendant reneged on an agreement between him and the plaintiff, the existence of which agreement the plaintiff flatly denied, the Court of Appeal would, in my view appear to be making out a case for the plaintiff which he did not in fact make for himself, and that would be a violation of a well settled principle that a court should not make out a case for a party which he does not make for himself.

The next complaint is that the Court of Appeal unjustifiably interfered with the trial court’s findings of fact which were supported by the evidence adduced. It is clear on the record that several findings of fact made by the trial court were rejected by the Court of Appeal, and in my view, the Court of Appeal was clearly in error to have done so, when each finding made by the learned trial Judge was borne out by the evidence adduced and when it had not been shown that the conclusions on the findings were perverse, unreasonable or unsound; nor had it been shown that some substantial principle of law or of procedure had been violated or that there had been occasioned a miscarriage of justice. See Otuoha Akpapuna & Ors. v. Obi Nzeka & Ors. [1983] 2 SCNLR 1; Ebba v. Ogodo [1984] 1 SCNLR 372 and Chikwendu v. Mbamali & Anor. (1980) 3 & 4 S.C. 11.

The fourth issue raised is whether the Court of Appeal was right in its conclusion that the break down of the negotiations between the plaintiff and the defendant was caused by the defendant when in fact it was the plaintiff who caused the collapse of the arrangement. In this regard reference was made to a passage in the judgment of Ogundare, J .C.A., at p.203 line 25 to p.204 line 11 where the learned Justice of Appeal said:

“It is, in my view, clear on the evidence that following defendant’s act of trespass efforts were made to effect a settlement of the dispute thereby arising. The plaintiff co-operated fully with the defendant in these efforts and had the defendant been serious with the negotiations to reach a settlement it would not have taken all that time to reach an accord with the plaintiff.

The trespass was in 1972 when defendant was at the foundation stage of his building. He and his vendors made the approach to the plaintiff to settle; they offered him an alternative land instead of plot 10 trespassed upon. They later reneged on that offer on the ground that plaintiff’s building extended to part of Plot 10. Defendant offered to pay compensation to the plaintiff by way of cash in lieu of part of Plot 10 to be annexed to his land. There is no evidence he offered to pay any particular amount. In the meantime, he continued with his building which he completed and he moved into it in December 1973. Surely, he must know he was taking a risk.

Plaintiff went to court in February, 1977, that is about 5 years after defendant’s act of trespass. If it took defendant, a wrong doer, all that time to settle with the plaintiff, I cannot see how it can reasonably be said that plaintiff was to blame for the breakdown of negotiation. During the interval the defendant had annexed part of Plot 10 to his land and built a fence with as much reaching an agreement with the plaintiff let alone paying him for his land that he (defendant) annexed.”

The substance of Chief Ajayi’s complaint here is that there is no evidence whatsoever on the record to support the view of the learned Justice of Appeal that the break down of the negotiation was the sole fault of the defendant, nor was there any evidence to support the finding of the learned Justice of Appeal in that passage that during the negotiation, the “plaintiff cooperated fully with the defendant in his effort to find a settlement.” Again, I agree that this is another misdirection on the part of the Court of Appeal as the evidence before the trial court shows clearly that it was in fact the plaintiff who made it impossible to implement the arrangement on exchange of plots when he extended his building on to Plot 10 which he had previously agreed to release to the defendant.

With regard to issues 5 and 6, the question is whether, on the evidence before the trial court, that court was right in its decision that the plaintiffs evidence had amounted to estoppel by representation. I think it was.

Briefly stated, the evidence adduced was that after the defendant had discovered that he had trespassed on the plaintiffs land (plot 10), the defendant and his vendors approached him and an agreement was reached by both parties. The agreement was that the plaintiff should have Plot 2A Block 2 in substitution for his plot No.10 on which the defendant had trespassed. Plot 2A Block 2 was shown to the plaintiff and he agreed to accept same and relinquish the whole of plot 10 to the defendant.

In furtherance of the agreement he removed his shed which had been erected on the portion of plot 10 that had been released to the defendant and asked the defendant to pay the expense of its removal and re-installation, which the defendant did. At that stage, the plaintiffs conduct had no doubt induced the defendant to believe that the plaintiff had waived his right to prosecute him for the initial trespass and so the defendant continued with the construction of his building.

Consequently, however, the plaintiff, while constructing his own building, trespassed upon the plot which he had already released to the defendant. When it was pointed out to the plaintiff that he, in turn, had encroached upon what had now become the defendant’s land as a result of the first agreement, the plaintiff suggested, and the defendant agreed with the suggestion, that he should be paid compensation for half of plot 10. He then demarcated the boundary of plot 10 to be retained by the defendant and the defendant built his boundary fence on the line demarcated. Thereafter the plaintiff got P.W.2 to make a survey of the portion of plot 10 released to the defendant so as to enable him assess the amount of money to be paid to him by the defendant for the portion.

The learned trial Judge considered and accepted all these facts, and having set out at p.122 of the record, the doctrine of estoppel by election as stated at page 324, paragraph 318 of Spencer Bower and Turner on Estoppel by Representation (3rd Edition), concluded that the doctrine applied. He said:-

“I have no doubt in my mind that all the ingredients to make the doctrine of estoppel by election applicable are present in this case.

If an owner in possession of land finds a trespasser on his land, his duty is to take steps to evict him. In this case, the plaintiff did not evict defendant. He in fact gave him more space by removing a shed from plot 10 to plot 9 as if telling the defendant to encroach the more. The plaintiff asked for and obtained money to reinstal the shed elsewhere. The plaintiff bargained to sell the land and went with the defendant to P.W.1 to know the extent of the land and consequently the amount to be asked for. Parleying with a trespasser and entering into an agreement to sell is certainly inconsistent with plaintiffs rights at law to evict.

The plaintiff was aware of the facts for he knew the defendant had encroached upon his land. Plaintiff knew his options for he gave evidence that he told defendant he would sue him. I also have no doubt that the plaintiff had knowledge of his right to elect. He merely wanted to use that knowledge as a leverage to obtain a higher price for the land encroached upon. The defendant has now acted to his detriment by placing reliance on plaintiffs election.”

The submission of Mr. Faboro for the respondent on this issue is that the learned trial Justice erred in law by “finding the plaintiff guilty of estoppel by representation as well as estoppel by election when the plaintiff did not in fact know or understand what he was bargaining for either on the exchange of land or its cash price.” I see no merit in this submission. I am satisfied that on the facts before the learned trial Judge he was right in his conclusion that the doctrine applied.

At p.205 of the record, Ogundare, J.C.A., in his judgment said:-

“From all I have been saying, I am of the view, and I so hold, that the trial Judge was wrong in basing his judgment on a defence not pleaded by the defendant and in wrongly applying that defence to the facts before him.”

With respect, the learned Justice of Appeal was wrong to have come to such a conclusion.

Now, in paragraph 28 of his amended statement of defence, the defendant pleaded that “the defendant would plead and rely at the trial on all legal and equitable defences open to him namely laches, acquiescence, standing by, stale claim and limitation laws”, and in paragraph 9 the defendant clearly pleaded facts, which in his view, amounted to equitable defence of acquiescence which he had in mind. That paragraph states that “the plaintiff knew and was present when the defendant was developing his property and he stood by and allowed the defendant to complete the development of the property before he talked of encroachment.”

While it is the rule, as stated by this court in Ibenwelu v. Lawal (1971) 1 All N.L.R. 23 at p.24 that all equitable defences must be pleaded fully and with full particulars, it is my view that in this case the defendant sufficiently complied with this requirement. Paragraph 9 of his amended statement of defence read together with paragraphs 10, 11, 12, 13 and 14 adequately pleaded the facts constituting the defence in respect of which evidence was led. It is not necessary to plead estoppel in any special form so long the matter constituting estoppel is stated in such a manner as to show that the party pleading relies upon it as a defence or answer. See Bullen and Leake’s Precedents of Pleadings, 6th Edition, p.646.

As to whether there was present a valid and enforceable contract between the parties, the evidence adduced before the trial court, which that court accepted, was that the plaintiff agreed to give to the defendant the whole of plot 10 and to receive in exchange plot 2A Block 2 in the N.B. Soule layout Plan No. TPAO.289. This agreement could not be implemented because the plaintiff, when developing his other plot (plot 9) encroached on plot 10 which he had agreed to relinquish to the defendant. A second agreement was later reached whereby the plaintiff would no longer insist on having the whole of plot 2A Block 2, but only so much of it that was equivalent to what was now left of plot 10.

The defendant’s vendors told the plaintiff that as they had no half plot, the defendant could only pay cash for the portion of plot 10 released to him. The plaintiff agreed to this arrangement and asked that the portion to be released should be surveyed so as to enable him assess the amount he would demand for it. There was evidence that the survey of the area of land involved was eventually made (Exh.E), and it was after this had been done that the plaintiff turned round and asked the defendant to remove his building.

On the facts of this case, in my view no enforceable contract had come into being between the parties. The plaintiff agreed to relinquish Exh ‘E’ to the defendant and the defendant agreed to accept Exh. ‘E’ for a sum of money as consideration, which amount the plaintiff was to name, No agreement had been reached by the parties. In my view, there is merit, on this point, in the submission of learned counsel for the respondent that “what in fact happened was at best an intention to sell or a proposal on the part of the plaintiff to sell the portion of land, plot 10, which never matured into actual sale.”

Having given every careful consideration to the whole of this case, including all the respondent’s counsel’s submission in this brief of argument, I have come to the conclusion that from all have been I saying, this appeal ought to be allowed in part and it is accordingly allowed.

The judgment of the Court of Appeal, Lagos Judicial Division, given on the 21st of January, 1986, is hereby set aside in part, I also set aside the sum of N250.00 general damages awarded against the defendant in favour of the plaintiff for trespass and, also set aside, is the N100.00 damages awarded against the defendant in lieu of an injunction in respect of the portion of plaintiffs land occupied by defendant’s building.

However, I grant to the plaintiff an injunction restraining the defendant his servants and/or agents from further trespassing on plaintiffs land or any part thereof less the portion on which the defendant’s building abuts and occupies, which said land is delineated and edged RED on plan No. AL69/1966 attached to Exhibit C tendered at the trial in the High Court. In effect I affirm the order of the injunction granted by the Court of Appeal.

The respondent shall pay the appellant costs of this appeal assessed at N500.00.

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SC.132/1986