Alhaja Silifatu Omotayo V. Co-operative Supply Association (2010)
LAWGLOBAL HUB Lead Judgment Report
F. OGBUAGU, J.S.C
This is an appeal against the Judgment of the Court of Appeal, Lagos Division (hereinafter called “the court below”) delivered on 10th December, 2001 dismissing the appeal of the Appellant from the Judgment of the High Court of Lagos State sitting in Ikeja – per Desalu, J delivered on 22nd May, 1981 which found in favour of the Respondent.
Dissatisfied with the Said Judgment, the Appellant, has further appealed to this Court firstly on two (2) grounds of appeal which were further Amended to be five (5) grounds of appeal – (See the Amended Notice of Appeal filed on 5th April, 2006). She has formulated three (3) issues for determination namely.
- Whether having regard to the pleadings and evidence led, Plaintiff prove title (sic) to the land in dispute to warrant its claim for trespass to be granted
- Whether a claim for trespass would lie against the Defendant, who has been found to be a licencee of the Plaintiff and in possession of the land and whether in any event a case of licencee was established against the Defendant
- Whether Plaintiff can succeed in its action despite failure to ask for declaration of title” –
I note that it is stated that Issue 1 is covered by grounds 3 and 4 in the Amended Notice of Appeal while Issues 2 and 3, are covered by grounds 1, 2 and 5 of the grounds of appeal.
On its part, the Respondent has formulated four (4) Issues for determination which read as follows:
“3.01 ISSUES 1;
Whether having regard to the pleadings and the evidence led oral and documentary the court below was right in affirming the Judgment of the trial court on the issues of title, trespass, injunction and licence in respect of the land in dispute
3.02 ISSUES 2:
Who has a better title, the Plaintiff or the Defendant
3.03 ISSUES 3:
How does the attitude of the Supreme Court to the issues of concurrent Judgment of 2 Courts after this case (sic)
3.04 ISSUE 4:
Whether an Order of retrial is appropriate in this case”.
I note that there is no (question mark) in respect of Issues 3.02. and 3.03. I note also that Issue 1 is stated to be based on grounds 1, 2 and 3, while Issue 2 is based on grounds 4 and 5 of the grounds of appeal. I note also that there is what is headed as. “SUPPLEMENTARY AMENDED RESPONDENT’S BRIEF OF ARGUMENT” filed on 24th June, 2009. Although this is unusual, but a perusal of it by me, shows that it is perhaps, a serious complaint against the Appellant’s Solicitor, – Lateef O. Fagbemi & Co evidenced by the letter dated 24th March, 2009 attached thereto and addressed to the leading learned counsel for the Appellant.
The Plaintiff/Respondent, sued the Appellant in the High Court of
Lagos State, Ikeja Judicial Division and claimed N500.00 (Five hundred Naira) as general damages for trespass. He claimed also for an injunction. Pleadings were filed and exchanged by the parties. At the end of the trial and addresses by the learned counsel for the parties, the learned trial Judge – Desalu, J, found in favour of the Respondent and awarded N100.00 (one hundred naira) damages for trespass and granted the injunction sought by the Respondent. The Appellant’s appeal to the court below, was unsuccessful, hence the instant appeal.
When this appeal came up for hearing on 20th April, 2010, the leading learned counsel for the Appellant – Fagbemi, Esqr. (SAN), adopted their Amended Brief of Argument and Reply Brief He urged the Court to allow the appeal. Oyero Esq. – the leading learned counsel for the Respondent also adopted their Amended Brief of Argument. He stated that although they filed a Notice of Preliminary Objection, that it has been overtaken by events. He stated that they were served with the Reply Brief of the Appellant. He urged the Court to dismiss the appeal. Thereafter, Judgment was reserved till to-day.
Since the Notice of Preliminary Objection is said to have been overtaken by events, the Court takes it that the same has been abandoned or withdrawn. In the circumstance, the said Notice of Preliminary Objection is hereby and accordingly, struck out again, since, no mention was made by Mr. Oyero about the said “supplementary Amended a Respondent’s Brief of Argument, the Court will therefore, discountenance it and say nothing in respect thereof.
Now, coming to the merits of the appeal proper, I will deal with issue 1 of each of the parties together with Issue 2 of the Appellant and Issue 3.02 of the Respondent as they are substantially similar although differently couched I will also deal with Issue 3 of the Appellant and Issue 3.03 of the Respondent The learned trial Judge after thoroughly reviewing the pleadings, the evidence of the parties which included their respective claims, the documentary evidence and the addresses of the learned counsel for the parties, stated at pages 148 – 149 of the Records, inter alia, as follows:
“It is the duty of the plaintiffs to prove conclusively that, before the alleged trespass they were in exclusive possession of the land in dispute. Any act of possession is a legal possession against a wrong doer. See GRAHAM v PEAT 105 E.R. 94.
The Supreme Court held in the case of AJADI v. OLANREWAJU 1960 1 ANLR 382, that slight evidence of possession is enough in respect of uncultivated land, when the other party has no title or a title manifested to be defective.
I am satisfied on the evidence in this case that the Plaintiffs were in constructive and or exclusive possession of the entirely of the land granted them by the Ajao family, including the land in dispute.
I am equally satisfied on the evidence in this case that the Plaintiffs have better title to the land than the Defendant and a better right of possession thereof.
I hold therefore that the Plaintiff were exclusive possession (sic) of the land in dispute, sufficiently enough to found their claim for damages for trespass.
The Defendant admitted all the acts of trespass alleged against her.
I believe the evidence of the Plaintiffs and their witnesses as to their possession of the land in dispute.
From the totality of the evidence in this case, I am satisfied that the Plaintiffs have proved their case. The Plaintiffs claim for damages for trespass therefore succeeds”.
(the underlining mine)
The above are findings of facts and holdings by the learned trial Judge.
He later made the said award of N100.00 (one hundred naira) as damages for trespass.
In respect of the claim for Injunction, His Lordship at pages 149 – 150 of the Records, stated inter alia, as follows:
“It is trite law that for a Plaintiff to succeed in the claim for INJUNCTION, he must prove that not only are the acts of trespass being continued but also that the Defendant has threatened or is threatening to commit further acts of trespass.
On this evidence abound in favour of the Plaintiffs.
It is settled law that where damages are awarded for trespass to land and there is an ancillary claim for an INJUNCTION, the Court will grant such an injunction:-
(i) to prevent multiplicity of suits see HANSON V. GARDINER 32 E.R. 125 OR.
(ii) to prevent irreparable damage or injury or irremediable mischief.
The attitude of the Court has always been that where award of damages is considered to be an inadequate remedy; the protection of the right IN SPECIE is the only mode of doing justice and this could only be achieved by granting an INJUNCTION, per MADARIKAN JSC (as he then was) in OBANOR V. OBANOR 1976, 1976, 2 S.C. 1 at 6 & 7.
(the underlining mine)
I completely agree.
In the final analysis, His Lordship proceeded to grant the injunction and stated that,
“the plaintiff’s case therefore succeeds in its entirety and judgment is entered in their favour accordingly.
”The court below – per Aderemi, JCA (as he then was), at page 416 of the Records, stated inter alia, as follows:
I do realise that the plaintiff’s claim is for damages for trespass and an order of injunction. The law is that a claim for trespass is rooted in exclusive possession and all that a claimant need to prove is that he has exclusive possession or that he has the right to such possession or the land in dispute. But once a defendant claims to be the owner of the land in dispute, as in the instant case, title is put in issue and to succeed in his action the plaintiff must establish by credible evidence that he has a better title than the defendant. See (1) OKORIE VS UDOM (1960) SCNLR 326 and (2) AMAKOR VS OBIEFUNA (1974) 1 ALL N.L.R. (Pt.1) 119. And this he does by relying absolutely on the strength of his case and not the weakness of the defence except where that weakness tends to strengthen or support the plaintiff’s case. See (1) JULES VS. AJANI (1980) 5 – 7 S.C 96 (2) PIARO VS. JENALO (1976) 12 S.C 31 and (3) NGENE VS IGBO (2000) 4 NWLR (Pt 651) 131…”
I also agree because, the above, is firmly settled law.
It then proceeded to examine the evidence before the trial court and at pages 418 – 419 of the Records, it reproduced part of the findings of facts and holdings of the learned trial Judge part of which, I have also reproduced above in this Judgment. At page 419 where it agreed with the substance of the said findings, it stated inter alia, as follows:
“When the evidence, of the plaintiff’s side is placed on one side of imaginary, scale of justice and that of the defendant is placed on the other side of that imaginary scale that of the plaintiff is eminently rich in evidential value. Based on these findings that the parties established, through credible evidence, better title to the land in dispute and the defendant having openly challenged the title of the plaintiff and gone to the land to commit trespass judgment is favour of the plaintiff/respondent is inevitable”.
(the underlining mine)
After answering Issue 1 of the Appellant in the affirmative – which is/was:
“Where the plaintiffs entitled to judgment for damages for trespass und an injunction on the issue joined and the evidence before the court”
(which is substantially as Issue I of the panics in this appeal.)
It stated thereof inter alia, as follows:
“If the defendant/appellant, has admitted the averment in the plaintiff/respondent’s pleadings that she was its licencee, by which she would be regarded as having entered upon the land lawfully and she later resorted to challenging the title of the plaintiff/respondent as she has done, she will in law, become a trespasser ab initio his misconduct relating back so as to make his initial entry a trespass.”
I agree. She not only challenged and denied the title of the Respondent, she also, obstructed the agents and workers of the Respondents. For the effect or consequence, see the cases of Francis Okagbue & 2 ors. v. Janet Romaine (1982) NSCC Vol. 13 P. 130 @ 134 and Mrs. Ajibade & anor. v. Madam Pedro & anor (1992) 6 SCNJ (Pt.1) 44 also cited and relied on among other cases by the Respondent in their Brief of Argument.
At page 420 thereof (which relates to Issue 2 of the parties in this appeal) it continues inter alia, thus:
“…But the defendant/appellant denied being a licencee of the plaintiff/respondent She even asserted ownership of the land in dispute and admitted that she was on the land. The case of the plaintiff/respondent was clearly proved and it was not upheld because the defendant failed to prove her own case……………… I wish to say that having not admitted that she was the licencee of the plaintiff/respondent, the case, as I have said, was not fought on the issue of licencee rather both pleadings raised title as the cardinal issue”.
(the underlining mine)
The above is borne out by the evidence in the Records Concluding, it stated inter alia, as follows:
“………. it is clear that the defendant/appellant denied being a licencee and on the evidence before the trial court she became a trespasser ab initio….. again on the evidence, it is the plaintiff/respondent who has the right to possession, indeed it is the owner and therefore it, has better title than the defendant/appellant”.
(the underlining mine)
I agree
It finally, found the appeal to be unmeritorious and dismissed it.
On the law, firstly, it is settled that when a trial court had adequately performed its primary role of evaluating and ascribing probative values to the evidence before it, the findings of fact made by it, are entitled to respect by an Appellate Court. In other words, where a trial court, clearly evaluated the evidence of the parties and justifiably appraised the facts before it as ‘appears in the Records as in the instant case leading to this appeal, it is not the business of an Appellate Court to substitute its own view or views of the facts for those of the trial court. See the cases of Akinloye v. Eyiyola (1968) NMLR 92 @ 95; Slac Transport Ltd. v. Oluwasegun & anor. (1973) 9 & 10 S.C. 17, (1973) 3 ECSLR 1176; Aseni Balogun v. J.R. Akinrimisi (1974) 1 All NLR (Pt.2) 66 @ 72-73; Chief Frank Ebba v. Chief W. Ogodo & ors. (1984) 4 SC. 84 @ 109 110; SCNLR 372 @ 378 and Chief Woluchem & ors. V. Chief Gudi & Ors. (1981) 5 SC. 291 just to mention but a few.
The test to be applied where the findings of a trial court are supported by the evidence on Record, was stated by this Court in the case of Odofin v. Ayoola ( 1984) 11 S.C. 72 @ 113 as follows:
“The question at this stage will then be, was there any evidence, no matter how slight, to support the above findings If the answer is yes (as in this case) that concludes the findings and puts on them a stamp of finality….”
See also the case of Lions Building Ltd. v. Shodipe (1976) 12 S.C. 135
Also, the attitude of an Appellate Court in respect of a case from the trial court, is whether substantial Justice has been done looking at the proceedings as a whole. See the case of Ajuwon & ors. v Adeoti Madam (1990) 2 NWLR (Pt.132) 271 @ 290; (1990) 3 SCNJ. 159 and Nwoke & ors. v. Okere & ors. (1994) 5 NWLR (Pt.343) 159, (1994) 5 SCNJ. 102
In the case of Obodo & anor. v. Ogbe & ors. (1987) 3 5.C. 459 @ 460-61 – per Eso, JSC, 466 – per Coker, JSC; 480 – 482 and 485 – per Oputa, JSC, ( 1987) 2 NWLR (Pt.54) 1 , (1987) 3 SCNJ. 82, it was held that the function of assessment of credibility of Witnesses, is essentially for the trial court and not that of the Appellate Court. The case of Akpapuna & ors v. Nzeka & ors. (1983) 2 S.C. N.L.R.1. @ 14 was referred to. See also the cases of Babatunde Ajayi v. Texaco Nig. Ltd. & ors. (1987) I NWLR (Pt.62) 577, (1987) 9 11 S.C. 1 @ 27, (1987) 9 10 SCNJ. 1, Mrs. Lydia Thomas & anor. v. Alhaji Arowolo (2003) 4 SCNR 20 @ 43, 49 and Agbaje & ors. v. Chief Ajibola & ors. (2002) 2 NWLR (Pt.750) 127 @ 132, 134 @135; (2002) 1 SCNJ 64 and many others. Therefore, the attitude of an Appellate Court, is to be slow to interfere with such decision of a trial court. See the case of Janason Triangles Ltd. & anor v. Charles Moh Partners Ltd (2002) 15 NWLR (Pt.789) 176 @ 194; (2002) 10 SCNJ 1; (2002) 103 LRCN 2310 @ 2321 This is because and it is settled that the duty of appraising evidence given in a trial court, is pre-eminently that of the learned trial Judge who saw and heard the witnesses and it is that court that has a right to ascribe values and a Court of Appeal may not interfere with the judgment simply on the ground that it would have come to a different conclusion on the facts as long as the Judgment, of the trial court, is supported by the evidence rightly accepted by that court. See the cases of Ogundulu & ors. v. Chief Phillips & ors. (1973) 2 S.C.71 & 80, Fashanu v. Adekoya (1971) 1 ANLR (Pt.1) 35 @ 46 and Egri v. Uperi (1974) (1) NMLR 22. I have gone this length, in order to show that the court below was right in its decision.
There is the presumption that a person having title to the land in dispute, is in possession. See the case of Jones v. Chapman & ors. (1887) 2 Ex 803.
It is now firmly established that where two persons claim to be in possession of land in dispute, the law ascribes possession to the one with a better title (as in the instant case). See the cases of Mogaji & ors. v. Madam Odofin & ors. (1978) 1 ANLR (Pt.1) 101 @ 112 115: (1978) 4 S.C. 91 @ 96 and Ajani & anor. v. Ladepo & 2 ors. (1986) 3 NWLR (Pt.28 @ 283.
In the case of Ngillari v. NICON (1998) 8 NWLR (pt.560) 1 @ 20 21; (1998) 6 SCNL J. 16 – per Onu, JSC, it was held that where a court of trial which saw and heard the witnesses, has come to specific findings of fact on the evidence and issues before it. (as in the instant case leading to this appeal), an Appellate Court which had no similar opportunity, should refrain from coming to a different finding or findings’ unless it can show that the conclusion or conclusions, could not follow or flow from the evidence before it. It referred, to the cases of Odofin v. Ayoola, Ebba v Ogodo and Ajayi’s case
(all supra)
As regards the position of an Appellate Court, it has been stated and restated in a line of decided authorities that it is in as much a good position, as the trial court to deal with facts See the cases of Fabamiyi & ors v. Obaje & ors. (1968) (1) NMIR. 242 @, 247, Woluchem & ors. V. Chief Gudi & ors. (supra) also reported in (1981) 12 NSCC 214, Ogbochie & ors. V. Onochie & ors (1986) 2 NWLR (pt.22) 484 just to mention a few. In my respectful view, the learned trial Judge, clearly comprehended the entire case from the abundant evidence before him and came to the conclusions which are supported by the said evidence See the case of Akinloye v. Eyiyola (supra).
In respect of a continuing trespass, as is clear in the instant case, it has been held that for a person to remain in another land without that other’s authority or consent, so that barring the defences properly raised and sustained which defeat the right of the owner of such land to complain of the continuing trespass, the land-owner, is always entitled to protection as appropriate. See the Case of Adebanio v. Oke (1999) 3 NWLR (pt.594) 154 @ 163 164, (1999) 3 SCNJ 46. The protection, is by way of an order of injunction Even where an injunction was not sought, once a court has found for trespass, it has the jurisdiction to grant the equitable remedy of injunction. See the case of Sorungbe v. Omotunwase. (1988) 19 NSCC (Pt.2) 252 a 268. An injunction can be made as a consequential order and it will not amount to a court giving or granting to a party what he did not claim. See the cases of Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 and Ilona v. Idaleno & anor. (2003) 11 NWLR (pt. 830) 53 @ 87. In the case of Olorunfemi & 8 ors. v. Chief Asho & 2 ors. (1999) I NWLR (pt.585) 1 @ 9 (1999) 1 SCNJ 1 @ 7 Belgore, JSC (as he then was later CJN) stated inter alia, thus.
“…There ought to be a finding in trespass which the trial court did. “Consequent upon finding in trespass there must be verdict of perpetual injunction asked for. Similarly for trespass there must be an award of damage”.
I think I have “flogged” this matter and perhaps, have gone to some length. The court below, I hold, was right in its findings and conclusions I have no alternative other than to affirm its said Judgment affirming the judgment of the trial court. My answers therefore, to the said Issue 1 of the Appellant and Issue 3.01 of the Respondent, are in the Affirmative/Positive As to Issue 3.02 of the Respondent, the evidence in the Records, definitely show undoubtedly, that it is the Respondent that has a better title as found as a fact and holdings by the two lower courts. As regards issue 2 of the Appellant, I hold that it is a non-issue. The said Issue 2 of the Appellant was adequately dealt with by the court below as i have shown in this Judgment. For the avoidance of doubt, the case was not fought on the issue of licencee the Appellant, having denied that she was the licencee of the Respondent. The pleadings of the parties, raised title as the crucial issue On the basis of such denial, she became a trespasser ab initio as rightly held by the court below.
As regards issue 3 of the Appellant, it is now firmly settled that a claim for trespass, is not dependent on a declaration of title. See the cases of Oluwi v. Eniola (1967) NMLR 339 @ 340 and Nwosu v. Otunola (1974) 4 S.C. 21. Afterwards, trespass, is an injury to a possessory right and therefore, the proper plaintiff in an action for trespass to land, is the person who was or who is deemed to have been in possession at the time of the trespass. See the cases of Will v. Will 5 NLR 76, Pan Bros. Ltd. v. Landed Property Ltd. & anor. (1962) 2 ANLR (Pt.1) 22; Wura-Ofei v. Danqua (1961) 1 WLR 1238 and Halsbury Laws of England Vol. 38 Page 744 Pt 1214.
As regards to Issue 3.03 of the Respondent, I think I have dealt with the said issue at some length in this Judgment. In effect, this Court, does not readily disturb or interfere with concurrent judgments of two lower courts except in certain circumstances in respect of issue 3.04 of the Respondent, the issue in the circumstances of this case and findings of facts by the two lower courts, is with respect, irrelevant and does not arise in this Judgment.
In the final result or analysis, I hold that this appeal, with the greatest respect and humility, lacks substance and merit. It fails and it is hereby and accordingly dismissed. Costs follow the event. The Respondent is entitled to costs fixed at N50,000.00 (Fifty Thousand Naira) payable to it by the Appellant.
SC.155/2002
