J. S. Talabi V. Madam Abiola Adeseye (1972)

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G. B. A. COKER, J.S.C. 

In the High Court, Ikeja, the plaintiff, who is the respondent in the appeal before us, had sued the appellant, as defendant, for the following claims:-

“(a) The sum of 400pounds as special and general damages for the trespass committed by the defendant on the plaintiff’s said land situated and being at Plot 70 Durojaiye Street, Itire, Mushin which is within the jurisdiction of this Court and in lawful possession of the plaintiff.

(b) Possession of the said land situate and being at Plot 70 Durojaiye Street, Itire, Mushin.

(c) An injunction restraining the defendant his agents and/or servants from interfering with the use of the land by the plaintiff her agents or workmen and from trespassing any further on the land.”

The plaintiff’s writ also contains a further endorsement in the following terms:-

“The plaintiff is the lessee of the said piece of land for the period of 50 years beginning from the 29th November, 1965, from the Onitire Family and the lease is covered by a deed of lease dated 25th June, 1966 and registered as No. 18 at page 18 in volume 920 of the Lands Registry in the Office at Ibadan.

Title is involved.”

So, manifestly, the plaintiff’s case on her writ postulates that the titles of the respective parties would be investigated by the court. At the onset, we feel bound to comment on the claims of the plaintiff as expressed on her writ. She had asked for an order of possession. This clearly envisaged that at the time of the institution of the proceedings she was not in possession of the land in dispute. At the same time, she had asked for damages for trespass and an injunction against the defendant. The remedy in trespass only avails a person in possession; the entry into land by a trespasser does not, ipso facto, put the trespasser in possession for the rightful possessor still remains in possession and any such entry is a wrongful disturbance of possession; further trespasses by the trespasser are properly dealt with by an order of injunction.

We have had occasion before to point out the inconsistency of these claims of possession and trespass and must now observe that unless there are clear findings one way or the other it may be impossible to support a judgment given for either of the two remedies where, by the plaintiff’s own writ, the two have been specifically claimed. See the observations of this Court in Aromire and Ors. v. Awoyemi, S.C. 38/69 decided on 11th February, 1972.

In the present action, the parties filed their pleadings. As on her writ so it is stated on her statement of claim that the plaintiff was a lessee holding a 50-year lease dated the 25th June, 1966 from the Onitire Family. The statement of claim also avers that she entered into possession of the land in dispute on the 29th November, 1965 (this being the date of commencement of her lease) cleared the bush and placed workmen on the land who were making cement blocks and building the foundations of a house. The statement of claim also avers that on the 26th April, 1966, the defendant appeared “with his servants, and broke down the foundations” and damaged the blocks on the land. Paragraphs 14 and 15 of the statement of claim further aver as follows:-

“14. The plaintiff would rely on the judgments of the Supreme Court of Nigeria in Suit No. S.C. 293/64: Lasisi Layeni Onitire of Itire (for himself and on behalf of Onitire family) v. Ashimowu Durojaiye.

15. The plaintiff at the hearing would plead all legal and equitable rights. ”

The defendant also filed a statement of defence. In it he avers that he had bought the land in dispute along with other plots of land from one James Adeoye Daniel and that he obtained from his vendor a conveyance dated the 21 st April, 1962, that James Adeoye Daniel himself became the owner of the land by virtue of a conveyance dated the 21 st November, 1955 executed in his favour by one Ashimowu Durojaiye Ajiya; and that the said sale to his vendor was subsequently ratified by another deed of conveyance in favour of James Adeoye Daniel dated the 11 th February, 1959 and executed by the said Ashimowu Durojaiye Ajiya and other members of the Ajiya Family. Paragraphs 5, 6 and 7 of the defendant’s statement of defence state as follows:-

“5. The defendant avers that the plaintiff is bound by the judgment of Mr. Justice Madarikan in Suit No. HK/69/60 in the High Court of Justice Western Nigeria dated 18th December, 1961.