Mrs. T. C. Chukwuma Vs Mr. Babawale Ifeloye (2008)

LAWGLOBAL HUB Lead Judgment Report

G. A. OGUNTADE, JSC

The appellant was the plaintiff before the High Court, Abuja and the respondent the defendant. The facts leading to the dispute out of which this appeal arose and the claims of the plaintiff/appellant are pleaded in paragraphs 3 to 8 of the appellant’s amended statement of claim as follows: “3. The plaintiff avers that sometimes in 1988 she applied for an allocation of land to the Federal Capital Development Authority and on May, 1989 she was granted a Certificate of Occupancy in respect of a piece of land known as Plot 496 located in Area A2 Wuse 1 District of the Federal PAGE| 2 Capital Territory. Plaintiff pleads the said Certificate of Occupancy and shall rely on it at the trial. 4. On or about the month of February, 1993, the Defendant wrongfully entered the said land and has wrongfully taken possession of same by erecting a four bedrooms duplex and has thereby trespassed and in still (sic) trespassing thereon. 5. The plaintiff avers that she discovered the Defendant on her piece of land when she employed the services of an Independent Contractor to erect a building of her choice after approval of the building plan has been sought and obtained from the Federal Capital Develop-ment Authority. 6. The plaintiff further avers that it was when the contractor got to the site of erecting the building that she discovered that the Defendant has already erected a structure on the land and the site was no longer suitable for the use of the Plaintiff. 7a. The plaintiff promptly reported the matter to the Development control Unit of the Federal Capital Development Authority who promptly issued a ‘STOP WORK’ order on the Defendant. 7b The plaintiff avers that prior to this period she was not resident in Ahuja but in Lagos and she only came to Abuja when she was appointed the Chair-person to the National Commission for Women in 1992. 7c. The plaintiff avers that the land in question is a State land and located in Urban area of the Federal capital Territory. 8. By reasons of the matters aforesaid, the Plaintiff has been deprived of the use and enjoyment of the said land and premises and has thereby suffered loss and damages. WHEREOF the, plaintiff claims the sum of 3 million, being general damages for trespass to all that land known as Plot 496 within A2, Wuse 1 District Abuja. B. A perpetual injunction restraining the Defendant, his servants and/or agent from further trespassing on the plaintiffs land. Or doing anything incompatible and inconsistent with the plaintiffs title and ownership of the said property.” The respondent in his statement of defence paragraphs 4 to 15 and 19 pleaded thus: “4. The defendant avers that he bought the land and an existing building from one Mrs. Joan Babajide who has been staying on the land from March 1985 until she sold the land in dispute to the defendant in 1988. The defendant pleads and will tender the receipt of sale. 5. The defendant avers that since 1988 he has been exercising continuous and maximum acts of possession and ownership by staying on one part of the existing building and letting the other to one Mallam Isa Haruna. 6. The defendant also avers that apart from (5) above, he has bean going in and out on the land since 1988 without anybody disturbing or questioning him or his – (the defendant’s) interest on the land. 7. The defendant asserts that the failure of the plaintiff to comply with the terms of the certificate of occupancy granted her has immensely contributed to the action of the defendant and the transferor. The defendant pleads and will tender the certificate of occupancy that contains the terms. 8. In 1992, before we were challenged, we demolished the existing building on the land in dispute and started the construction of another building which is there on the land in dispute now. It was only in 1993 when we had almost completed construction that we were served with a ‘stop work’ order from the FCDA. 9. The defendant asserts that the plaintiff is negligent in that she stood by and allowed substantial .develop-ment to be done on the land in dispute between 1985 and 1992 before she raised an alarm and/or assert her right on the same. 10. As a result of the ‘stop work1 order served on us, we now discovered from the FCDA that the proper allottee is the plaintiff in this case. 11. Not withstanding our assertion in paragraph 9 above, we approached the plaintiff for negotiation and settlement. 12. She agreed for negotiation with us and during nego-tiation she (Plaintiff) gave the defendant two condi-tions upon which she would accept our terms of settlement. The conditions are:- (a) That we perfect our title in respect of plot 495 which was originally allocated to our own transferor. (b) That we should be responsible for the cost of transfer which was then estimated to be in the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) only in addition to transferring the vacant (plot 495) to her. PAGE| 3 13. To satisfy condition 12B above the defendant on the 22nd July, 1994 issued a Union Bank of Nigeria Abuja Branch cheque of N250,000.00 (Two Hundred and Fifty Thousand Naira) only.” 14. The plaintiff however, declined to accept the cheque because the defendant was not yet in position (sic) to transfer plot 495 to her. 15. The defendant then met with his transferor who then took necessary steps to effect proper transfer of plot 495. 16. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 17. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 18. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 19. The defendant will at the hearing of this case rely on all available equitable, legal and statutory defences open to him including but not limited to (a) Laches, (b) Acquiscence, (c) Stand by, (d) Long possession, (e) Estoppel by conduct & (f) Negligence. Whereof the defendant prays that this suit be dismissed with substantial cost against the plaintiff for being gold-digging and an abuse of court processes.” At the trial, the appellant testified in support of her claim. She did not call any witness. The defendant called three witnesses and also testified. In the judgment of Kusherki J. on 16/1/97, the trial judge said: “The question is whether as alleged by the plaintiff in her statement of claim, the Defendant has wrongly entered and taken possession of her land by erecting a building thus trespassing thereon. By the averments and the evidence led DW3 from whom the Defendant bought his land, sought the land office of the FCDA to help her identify her land and peg it for her to enable her commence development. The land shown, unknown is DW3, (sic) was plot No. 496 and not 495 which is hers. She proceeded to erect a Boys quarters thereon. Later she transferred her right over her land to the Defendant in consideration of N60,000.00. The Defendant in turn erected a duplex and new boys’ quarters thereon. At a stage before the Defendant completed the building the Plaintiff found out that it was her piece of land that was being encroached upon. This in itself is constructive trespass which is actionable per se. See Adebanjo v. Brown (1990); NWLR Part 133 page 661 at 664 where it was held that ‘Trespass is a violation of possessory rights and all claim in trespass can only be brought by one in possession or one who has a right to possession. Upon realizing the mistake the parties themselves try (sic) to negotiate and reach an amicable settlement between them since the construction work put up by the Defendant on the land belonging to the Plaintiff had reached advanced stage. This, according to the testimony of the parties concerned, would have entailed swapping the land one for the other or outright sale to the Defendant of the Plaintiffs land. The Plaintiff asked for N900,000.00 outright sale while the Defendant offered N250,000.00 as cost for the Plaintiff to prepare the adjacent land for her entry in place of hers. The negotiation stalemated and the Plaintiff therefore decided to institute this action claiming damages for trespass which Bola Ojo learned Counsel for the Defendant contended cannot succeed basing his contention on the holding of the Supreme Court in Adebanjo v. Brown (supra) where, it was held inter alia – ‘There can only be trespass if the person in possession withholds his consent to the entry to the land. If there is a mistaken entry and when the mistake is discovered, approach is made to the person in possession and he consents, the right to claim in trespass abates as his consent relates back the initial entry without permission. “In furtherance to this Honourable Justice Obaseki JSC (as he then was) states: ‘The Court of Appeal seemed to have over looked the very basis for negotiation. If the Plaintiff/Respondent has said I do not want you on my land, there would have been no basis for negotiation. But having said alright you can stay on my land but get me another plot of land or money, the issue of trespass becomes dead issue and cannot be resurrected by the failure to fulfill the terms of the consent to the entry. This is more evident from the fact that the Plaintiff/Respondent allowed the Defendant/Applicant to proceed with his building to completion and jointly with the Defendant/Applicant approached and instructed PW1 to carry out a survey at the Defendants expenses. That fact alone destroys all the pretences of the respondent to the withdrawal or withholding of consent to the entry on the land.’” PAGE| 4 “In the same case the present Chief Justice of Nigeria, then JSC further elucidates the issue thus: ‘There is no doubt that the appellant in building his house encroached on the respondent’s land. Initially the encroachment was a trespass on the respondent’s land which was referred to as plot 10. However the trespass was condoned by the respondent who allowed the appellant to continue with the construction of the house. In that respect no finding of trespass can be made on the claim by the respondent for trespass and ‘perpetual injunction restraining the Defendant, his servant and or agents from further trespa-ssing on the said land or any part of same’ since the construction of the Applicant’s house had been completed and the Applicant has gone into occupation of the house. It is now too late in the day to grant the claim. The respondent cannot go back on the license given to the appellant for he (the respondent) has waived to his detriment the right to sue for trespass’” Italics mine The trial judge finally concluded his judgment thus: “In the case in issue the Plaintiff found out that the Defendant had encroached onto (sic) her land and the two tried to negotiate with the help of the Lawyers to either pay for the land or swap the land for the adjacent one. The Plaintiff cannot therefore be heard to be complaining over spilled milk after having waived to her detriment the right, to sue for trespass until much later. The Learned Counsel for the Plaintiff, S. T. Ologun Orisa, wants the court to depart from this line argument (sic) by trying to relate same to the holding of Agbaje JSC (as then was) (sic) in the same case of Adebanjo v. Brown where the learned jurist held the view that price of land is a fundamental term of any negotiation for sale of land and where it fails then there is no contract. I vouch to say that there is a departure here from the point being conversed (sic). In fact if the price of land is agreed upon then the case itself will never come before the court. In view of the fact that the Plaintiff has condoned the trespass she has waived her right to sue the Defendant. Her claim for general damages of N3 Million Naira fails. The injunction sought is hereby not granted.” (Italics mine) The appellant was dissatisfied with the judgment of the trial court. She brought an appeal against it before the Court of Appeal, Abuja (hereinafter referred to as the ‘court below’). The Court below on 15-0-02 upheld the judgment of the trial court. Still dissatisfied, the appellant has come before this Court on a final appeal. The appellant raised five grounds of appeal. In the appellant’s brief, the issues for determination in the appeal were identified thus: “3.1. Whether [the Respondent’s] negotiations [with the Appellant] without more, is sufficient to estop the appellant from asserting her rights arising from the Respondent’s trespass on her [the appellant’s] parcel of land. 3.2. Whether the finding by (the court below) that the appellant allowed the Respondent ‘to continue with the construction exercise’ on the appellant’s parcel of land (the subject matter of this action) could be supported or substantiated by the evidence presented before the trial court. 3.3. Whether the court below was justified in its finding that the appellant is not entitled to damages or injunction in the light of the trial court’s finding that the Respondent wrongfully entered and remained on the appellant’s parcel of land.” The respondent’s issues are these: “3.01. Whether taking into consideration the totality of the facts and circumstances of this case including the pleadings and the evidence led before the High Court, the Court of Appeal is right in upholding the judgment of the High Court that dismissed the plaintiffs claim for damages for trespass and injunction on the principle of the case of Adebanjo v. Brown decided by the Supreme Court and reported in (1990) 3 NWLR Part 141. 3.02 Whether with the evidence adduced and the findings of the trial judge, judgment for damages for trespass and injunction could have been properly entered in favour of the plaintiff in the High Court or in the Court of Appeal. 3.03. Whether an alleged error or mistake in a supporting judgment can vitiate the judgment of the court (Relates to Ground 3 of Grounds of Appeal and issue 3 formulated thereon in the Appellant’s Brief of Argument).” I think that the important issue in this case is whether or not the facts and circumstances in this case are the same as found by this Court in Adebanjo v. Brawn [1990] 3 NWLR (Pt.141) 661. In this case, there is no doubt that the respondent who had a valid title to Plot No. 495 on Area 2 PAGE| 5 Wuse 1, District of the Federal Capital Territory mistakenly went into Plot No. 496 belonging to the appellant and developed same. Was he entitled to be forgiven for his mistake on the ground that the appellant had entered into a negotiation with him, which said negotiation proved abortive or inconclusive as the parties did not agree on the terms? In her evidence before the trial court, the appellant at page 35 of the record of proceedings testified thus: “From the time I got the Certificate of Occupancy when I was working in Lagos waiting to get approval for the plan before making any journey to Abuja. In October, 1992 1 was appointed Chairman of Women Commission and 1 moved into Abuja then. Coincidentally that was the time I collected the approval (Exh. B). So after settling down for 3 months I decided to send a contractor to the site who discovered the encroachment. That was the first time, I went to the plot. On their paragraph 12-13 (sic) of the statement of defence. We tried to settle with the assistance of FCDA staff but the settlement failed and I refused to accept the cheque though I had not seen the cheque. I refused to accept the cheque because the man he brought by name Ibrahim and my son, Charles Chukwuma who is now in U.S.A. together with a Quantity Surveyor from Peter Okolo agreed to N900 000.00 and this was to compensate for my land that was high than his and the new set of plans to be made and approved. The Defendant said he would not pay N900,000.00 instead 1 should take the house and pay him N300,000.00 it was at that point I brought in my lawyer.” The respondent in his evidence at pages 38-39 of the record of proceedings testified thus: “The boys’ quarter was 2 flats and I gave one of the flats to the security man and I occupy the other flat any-time I came to Abuja. In 1992 I pulled down the boys’ quarters, drew another building plan which was approved by FCDA. I then commenced development of a duplex in accordance with the specification of DW3. After that I started building. I completed building the duplex and started plastering when the FCDA ordered stoppage of the construction work. The new boys’ quarters was at roofing level then. It was a written notice pasted on the wall. I then went to FCDA to find out why stop order should be given. It was then I was informed that I encroached on the land of one Mrs. Chukwuma. I was asked to “see the owner as there was a mistake somewhere. The Plots are 495 and 496. I meet the Plaintiff who told me that we should have a meeting with our lawyers together. During the meeting I agreed to pay the expenses of shwarpring (sic) the two plots. That of the Plaintiff to be mine, while mine to be that of the Plaintiff. The re-assignment of the land of Mr. Babajide had been completed then. As the Plaintiff felt not satisfied she came to court. I even gave a cheque of N250,000.00 to enable the Plaintiff take care of the plot shwarping (sic). But she rejected the money. CROSS EXAMINATION The transaction between myself and the Plaintiff was done by our Lawyers. We had only two concrete meetings. But I made several attempt (sic) for us to discuss the issue wherever we met. I know (Engineer) Alhaji Ibrahim who was the go between Mrs. Chukwuma and I, Engineer-Ibrahim had never informed me of an agreement for us to pay the plaintiff N900.000.00. I had never had any meeting with the Plaintiffs son.” The evidence of the appellant was that she caused FCDA to serve on the respondent a “stop work” notice as soon as she was aware that the respondent had strayed on her land. She did not wait for the respondent to carry out further development on the land so that she could afterwards profit from the developments carried out on the land by the respondent. Negotiations followed. The appellant wanted N900,000.00 for her land. The respondent on the other hand was willing to relinquish the land with the developments thereon to the appellant if the appellant would pay her N300,000.00. Because parties could not agree, negotiations broke down. The appellant promptly sued. The trial court and the court below in their judgments obviously took the view that the facts in the instant case were similar to those in Adebanjo v. Brown (supra). They then applied the principle of law upon which the decision in Adebanjo v. Brown was hinged. Were the two courts below right? I think not. In the Adebanjo v. Brown case (supra), the plaintiff whose land had been trespassed upon actually entered into negotiations with the defendant (who trespassed upon his land) and conveyed to the plaintiff that he would not enforce his rights as owner of the land against the defendant. The facts as found by the trial judge, which said findings were endorsed by the Supreme Court are reproduced at pages 672-773 of the judgment of the Supreme Court in the case. The Supreme Court said: “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, PAGE| 6 the 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.I 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.I for the preparation of Exhibit ‘E’ if not for that purpose? And what was plaintiff doing with defendant in P.W.I’s house on that mission? I find as a fact that the whole of plaintiff s 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.I are in my view the more probable as the evidence draws substantial support from the witness called by plaintiff, that is, P.W.I. 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.” It is apparent that the two courts below did not sufficiently give attention to the peculiar facts in Adebanjo v. Brown (supra) upon which the decision in the case hinged. In the Brown case, the parties not only went into negotiation after the trespass mistakenly committed by the defendant was discovered. They actually agreed on the terms of the settlement and partially implemented the terms. As a result, the plaintiff retrieved a shed he had on plot 10 which was in dispute and installed same on plot 9 at the defendant’s expense. Further, the defendant was led into paying money to a land surveyor (P.W.I in the case) to draw a new plan implementing the terms of the agreement between the parties. It was in the belief that this settlement had been reached that the defendant in the Brown case continued the further development of the land in dispute. The facts in the current appeal are different. As soon as the plaintiff (now appellant) knew of the trespass on her land, she caused F.C.D.A. which allocated the land to her to serve a “stop work” order on the defendant (now respondent). The parties opened negotiations which did not succeed. She then promptly sued. There was no evidence that the plaintiff at any stage before she sued caused F.C.D.A. to remove or vacate the “stop work” order on the defendant. It is therefore unarguable that she tricked the defendant into investing further money into the project so that she could afterwards come to claim the land with the improvements made on the land by the defendant. If the reasoning of the two courts below be right, it would in my view create a very anomalous situation in the law governing trespass to land. It would lead to a position where the owner of land on which another has committed trespass, would not be free to talk to the trespasser at all, lest he be taken to have compromised the trespass even when there has been no agreement reached with the trespasser. The important thing in my view is that the trespasser be not misled into carrying out further developments on the land after the discovery of the trespassory nature of his entry on the land. It is apposite to refer in this respect to the views expressed by Obaseki JSC at page 683 of the judgment in Adebanjo v. Brown (supra) thus: “The Court of Appeal seemed to have overlooked the very basis for negotiation. If the plaintiff/respondent had said I do not want you on my land, there would have been no basis for negotiation. But having said alright you can stay on my land but get me another plot of land or money, the issue of trespass becomes a dead issue and cannot be resurrected by failure to fulfill the terms of the consent to the entry. This is more evidence from the fact that the plaintiff/respondent allowed the defendant/appe-llant to proceed with his building to completion and jointly with the defendant/appellant approached and instructed P.W.I to carry out a survey of the land at the defendant’s expense. That fact alone destroys all the pretences of the respondent to the withdrawal or withholding of consent to the entry on the land.” (Underlining mine) In Nwakobi v. Nzehvu [1964] 1 WLR 1019 at 1023, the Privy Council discussing the nature of the defence of laches observed: “Where laches is in question, the issue is not so much the question what rights a plaintiff has as whether in any event his conduct has been such as to leave him in a position to invite the court to enforce them.” Has the plaintiff/appellant in this case lost her right to enforce her ownership rights over the land in dispute just because she stated that she would accept N900,000.00 to make her relinquish those ownership rights which offer the defendant/respondent rejected? I think not. In Taiwo v. Taiwo [1958] 3 FSC 80 at 82, this Court said: “Acquiescence does not bar a claim unless certain conditions are fulfilled. One of the most important is that the party who relies on his oppo-nent’s acquiescence must have been led by it to expend money or otherwise alter his position. There is nothing to show here that the PAGE| 7 plaintiffs or their predecessor-in-title, Rebecca’s, have been led to do anything of the sort by the defendant’s failure to assert then- claim.” In O. Solomon & Ors. v. A. R. Mogaji & Ors. [1982] 11 S.C. 1 at 25, this Court per Bello JSC (as he then was) said – “The authorities, such as Mogaji v. Nuga [1960] 5 FSC 107, Aganran v. Olushi [1967] 1 All NLR 177 appear to establish that where a land owner stood by and knowingly by his inaction allowed a stranger to develop the land in good faith without the owner appraising the stranger of the defect of his title, then the doctrine of acquiescence may properly be invoked to estop the owner from reaping the benefit of the stranger’s labour. However, if the owner promptly warns the stranger of the defect of his title as soon as he discovers the presence of the stranger on the land and, despite the warning, the stranger proceeds to develop the land, then the doctrine of acquiescence may not assist the stranger: Adeniji v. Ogunbiyi [1965] NMLR 395 and Maraiyo v. Okiade 8 W.A.C.A. 46.” See also Ramsden v. Dyson [1866] LR 1 HL 129 at pp. 140-141. My view in this appeal would have been different if there was evidence that the plaintiff/appellant had been aware of the trespassory entry upon her land earlier than the time she caused a “stop work” order to be served on the defendant/respondent or if she had caused the “stop work” order to be vacated before she ultimately sued in court. Merely negotiating with the defendant/appellant is not enough evidence to support the conclusion that she had waived the trespass committed on her land. It would have been a different situation if she had, following the negotiation, caused the “stop work” order to the vacated. It is my firm view that the two courts below were in error to have come to the conclusion that the plaintiff/appellant could no longer pursue her rights as owner of the land. The court below would appear, in its decision, to have forced the plaintiff/appellant to accept whatever offer the defendant/respondent made to her in atonement for the wrongful even if mistaken entry on her land. There will be judgment in favour of the plaintiff/appellant against the defendant/ respondent for N500.00 damages for trespass. The defendant/respondent is perpetually restrained from entering the plaintiff/appellant’s land. I am unable to grant the sum of million damages as claimed by the plaintiff/appellant as she did not lead satisfactory evidence in support of the claim. I award in favour of the plaintiff/appellant N5,000.00 and N10,000.00 costs in the High Court and the Court of Appeal respectively and in this Court N50,000.00.

UpC 229/2002