O. K. O. Mogaji & Ors. V. Cadbury Fry (Export) Ltd (1972)
LawGlobal-Hub Lead Judgment Report
C. O. MADARIKAN, J.S.C.
The appellants were the plaintiffs and the respondent was the defendant in the High Court, Ikeja (Suit no. IK/233/65) in an action in which the plaintiffs’ writ was endorsed as follows:-
“The plaintiffs’ claim against the defendants jointly and severally is for:-
1.100pounds damages for trespass in that sometime during the month of October, 1965, the defendants and their servants and agents wrongfully entered upon the plaintiffs’ land along Ikeja/Isheri Road, Ikeja, cleared the land and erected sheds thereon. The said land is in possession of the plaintiffs.
The defendants continue to trespass on the said land in spite of repeated warnings by the plaintiffs.
- An injunction to restrain the defendants, their servants and/or agents from committing further acts of trespass on the said land.”
Pursuant to an order of the court, the parties filed their respective pleadings, and as the issues were considerably narrowed down by the pleadings, it is convenient, at the outset to refer to them.
According to the Statement of Claim, the plaintiffs’ ancestors had, as far back as 1874, been the customary tenants of Dada Okin family who were the original owners of the land in dispute. In 1926, the plaintiffs’ father, Alhaji Gbadamosi Mogaji, purchased the land from the family for (pound)40; and the plaintiffs have since been in continuous possession of the land without any hindrance until
“9. Sometime in October, 1965, the defendants with their agents and servants wrongfully entered the said farm with tractors and lorries, destroyed economic crops like cocoa, kolanuts, etc. and erected sheds thereon.
- The plaintiffs aver that the defendants have since the filing of this action commenced building operation on the said farm.
- The plaintiffs state that the entry upon the said farm by the defendants was not with the knowledge and consent of the plaintiffs.”
For these acts of trespass, the plaintiffs claimed as per their Writ of Summons.
Paragraph 1 of the Statement of Defence is a general traverse. Paragraphs 2 and 3 of the Statement of Defence which spell out the main defence to the action are as follows:
“2. The defendant avers that it is a limited liability company registered under United Kingdom Law and holding no property whatsoever in Nigeria.
- The defendant is aware that Messrs. Cadbury Nigeria Limited claims interest in the property which is the subject matter of this action but the aforesaid company is a distinct entity from the defendant to this action.
WHEREUPON the defendant claims that the action xxx should be dismissed with costs.”
Four witnesses testified for the plaintiffs at the trial. The 1st witness was Mr. L. O. Okunnu, a Solicitor. He testified that his late grandfather, Gbadamosi Mogaji, had been farming on the land in dispute some 30 to 40 years ago when he used to spend his holidays in the farm; that after the death of his grandfather in 1945, his relatives continued to farm on the land; that in 1965, the defendant uprooted the economic trees on the land; that he saw two signboards on the land, one bearing the name of the defendant and the other bearing the name of “Poletti Brothers & Co. Ltd.”; and that in consequence of this, he wrote letters to both companies. The letter which the witnesses wrote to the defendant was tendered in evidence and marked as Exhibit 4. It reads as follows:
“4th November, 65
Cadbury Fry (Export) Ltd.,
12/14 Aerodrome Road.
Apapa.
Sir
Re: Farmland along Ikeja – Isheri Road,
Ikeja, belonging to the late Alhaji
Gbadamosi Mogaji
We are writing in respect of the above matter on the instruction of Messrs. O. K. B. Mogaji, A.T.G. Mogaji, Mesdames Sinobu Alaka and Salamotu Somade, children as well as administrators and administratrices of the estate of the late Alhaji Gbadamosi Mogaji.
It has come to our notice that you, a few days ago, took possession of part of our clients’ land along Ikeja/Isheri Road, Ikeja, measuring 13 acres, and without the consent or authority of our clients destroyed all the economic crops like cocoa, and kolanut trees on this land.
TAKE NOTICE that if you fail to pay into this office the sum of ‘a3500 as damages for trespass, we shall at the expiration of 3 days from today’91s date commence civil proceedings against you.
Yours faithfully,
(Sgd.) L. Olufemi Okunnu
For FANI-KAYODE & SOWEMIMO
LEGAL PRACTITIONERS.”
It would appear that the defendants passed Exhibit 4 to their solicitors, Messrs. Irving & Bonnar, who in turn addressed a letter to the plaintiffs’ solicitors on the 2nd of December, 1965. That letter was marked as Exhibit 5 at the trial and it reads as follows:
“2nd December, 1965.
Messrs. Fani-Kayode & Sowemimo
126/136 Nnamdi Azikiwe Street,
2nd Floor,
Lagos.
Dear Sirs,
Re:Farmland along Ikeja – Isheri Road, Ikeja belonging to the Late Alhaji Gbadamosi Mogaji.
Your letter of 4th November, 1965 addressed to Cadbury Fry (Export) Ltd., has been passed to us for attention.
Your claims should be addressed to E. O. Ashamu of 17, Owowunmi Street, Aiyetoro, Mushin.
Yours faithfully,
(Sgd.) Irving & Bonnar”
Mr. Okunnu further testified that when the plaintiffs’ surveyor went on the land to survey it with a view to preparing the plan to be filed in court in this case, he was disturbed by the agents of the defendants. Whereupon Mr. Okunnu complained to the solicitors of the defendants who addressed a letter (Exhibit 6) to him on the 17th of November, 1966. Exhibit 6 was signed by Mr. A.M. Ferguson of Messrs. lrving & Bonnar and it reads as follows:
“17th November, 1966
L. Femi Okunnu, Esq.,
Solicitor
126/128, Nnamdi Azikiwe Street,
Lagos.
Dear Sir
Suit No. IK/233/65
O. K. O. Mogaji & Ors v. Cadbury Fry (Exp) Ltd.
I got your message by telephone to the effect that progress of your survey was being hindered because the surveyor could not get on the land. Our clients have, of course, every right to prevent trespassers from going on the land but they have no intention of preventing the bona fide activities of your clients’ surveyor. If you will give us the name and address of the surveyor we will ensure that our clients furnish him with the necessary authority to enter on the land for the purpose of completing his survey.
I tried to telephone you earlier this week but have not been able to find you in the office.”
Yours faithfully,
(Sgd.) A. M. FERGUSON.”
Regarding the alleged acts of trespass, Mr. Okunnu testified as follows;
“When I went on the land in 1965, I saw some men on the land. I saw a shed built on the land. xxxxxx xxxxxx I also saw building materials, plants, tractors and other machineries, all belonging to Polletti Brothers & Co. Ltd., a firm of building contractors. I saw the foreman of the company and other workmen. Some of the men were clearing the land in dispute, destroying the crops, others were digging the ground to lay the foundation. It was after speaking to the foreman and making enquiries as to who the workmen were working for after seeing the signboard that I went back to write Exhibit 4.”
Under cross-examination, the witness stated that he found a signboard on the land bearing the name of the defendant.
The 2nd witness for the plaintiff was their surveyor, Isaac Body Lawson, who prepared the plan of the land in dispute which was tendered in evidence by him at the trial and market as Exhibit 7.
The next witness was a clerk in the Registry of Companies. He produced photostat copies of some documents filed in the Registry by the defendant and Messrs Cadbury Nigeria Limited. He also produced a copy of the letter dated the 23rd of October, 1959, (Exhibit 9) addressed by the Registrar of Companies to Messrs Irving & Bonnar notifying them that Cadbury Fry (Export) Limited had been registered in Nigeria pursuant to Section 233 of the Companies Ordinance (Cap.38).
The last witness for the plaintiffs was one Oseni Kehinde Badamosi Mogaji, a member of the plaintiffs’ family. He testified that the land in dispute belonged to his deceased father, Alhaji Gbadamosi Mogaji. With regard to the alleged acts of trespass, he said;
“Between 1964 and 1965 our caretaker on the land made a report to us. As a result of the report, I went to Mr. Femi Okunnu, the 1st P.W. I went along with 1st P.W. to the land in dispute. When we got on the land, we saw two signboards planted on the land. One of the signboards had written on it ‘Poletti & Co. Builder’. The other signboard had written on it “Cadbury Fry Limited.” We saw caterpillar on the land and some workmen destroying our cash crops on the land. The 1st P.W. took up the matter with these firms, Cadbury Fry & Co. and Polletti Brothers.”
The plaintiffs then closed their case but the defendant did not call any evidence.
In the course of his judgment, the learned trial Judge observed as follows:
“The issue to be decided in this case to my mind is to find out whether there is sufficient evidence to enable the court hold that it was the defendant who committed the act of trespass proved by the plaintiffs. Was the trespass committed by the defendant through its agents or servants or by other persons not in court”
and after reviewing the evidence critically, he came to the conclusion that there were two distinct acts of trespass, namely:
(1)trespass by bringing machineries on the land and destroying crops; and
(2)trespass by the planting on the land of the signboard bearing the name of the defendant.
The learned trial Judge was of the view that it was not established that Messrs Poletti Bros., who brought machineries on the land and destroyed crops were acting as the agents of the defendant. Regarding the erection of the signboard on the land, the learned Judge was unable to say that the signboard was planted there by the defendants’ agents or servants. In the concluding portion of his judgment, he observed as follows:
“Although I find that the plaintiffs have established their rights to the land in dispute and that some person or persons trespassed on the land, but I have not found enough evidence on which I can hold that the defendant/company was the person who through its servants or agents trespassed on the land.”
and he dismissed the plaintiffs’ claim.
This is an appeal against that judgment, and, before us on appeal, the argument on behalf of the appellants was directed against the finding that it was not established that the defendants committed the acts of trespass. Attacking this finding, Mr. G. O. K. Ajayi contended that the existence of the signboard on the land, when considered with the surrounding circumstances, was prima facie evidence that the defendants were in possession of the land as the signboard was bearing their name. He further argued that as this was a case of continuous trespass, the assertion contained in the letter (Exhibit 6) that the defendant had every right to prevent trespassers from going on the land lent support to the plaintiffs’ case that the defendants were the trespassers on the land.
In reply, Mr. Ajose-Adeogun, urged the court not to consider the evidence of Mr. Okunnu in isolation, but to consider it with the evidence of the 4th witness for the plaintiffs. It was counsel’s submission that in view of the contradictions in the evidence of these witnesses, the learned Judge was justified in coming to the conclusion as he did that the plaintiffs had failed to established liability in trespass on the part of the defendants.
The only substantial question raised in this appeal was whether the learned trial Judge was right in coming to the conclusion that the existence of the signboard on the land taken with all the surrounding circumstances of the case did not amount to proof that the defendants were in possession of the land.
Possession of a parcel of land means the occupation of physical control of the land either personally or through an agent or servant. As stated by Lord FitzGerald in Lord Advocate v. Young (1887) 12 App. Cas. 544 at page 556, by possession is meant possession of that character of which the thing possessed is capable. Thus, if a person adduce evidence that he or his agents or servants were cultivating a farmland, that would be evidence sufficient to establish that he was in possession of the land. Similarly, if a person erects on a parcel of land a signboard bearing his name , he thereby gives notice to all and sundry that he is in possession of that land. The same is true of the converse case, that is to say, where a signboard bearing the name of a company is found on a farmland with workmen scattered all over the land uprooting trees etc., that would be prima facie evidence that that company is in possession of the land. Such prima facie evidence exists in the instant case but was not adequately dealt with by the learned trial Judge when he said in the concluding portion of the judgment, to which we have referred earlier, that
“Although I find that the plaintiffs have established their right to the land in dispute and that some person or persons trespassed on the land but I have not found enough evidence on which I can hold that the defendant/company was the person who through its servants or agents trespassed on the land.”
We are of the view therefore that the learned trial Judge erred in not adverting to that evidence expressly when making the findings that he did; and we have come to the conclusion that we must order a retrial.
In the event, the appeal succeeds and it is hereby allowed. The judgment of the High Court, Ikeja, in Suit No. IK/233/65 including the order for costs, is set aside and we order that the case be remitted to the Ikeja High Court of Lagos State to be reheard de novo before another judge. Costs in the High Court shall abide the outcome of the re-hearing, but the appellants are entitled to their costs in this court which we assess at 66 guineas.
SC.284/1969
