O.K.O. Mogaji & Ors V. Cadbury Nigeria Ltd. & Ors. (1985)

LawGlobal-Hub Lead Judgment Report

A. O. OBASEKI, J.S.C. 

This appeal is against the decision of the Court of Appeal delivered on the 13th day of June, 1983, delivered in an appeal from the judgment of the High Court, Ikeja (Cole, J.) delivered in suits IK/233/65, IK/171/68 and IK/172/68 consolidated for the purposes of hearing.

In suit No. IK/233/65 commenced on the 17th November, 1965, the plaintiffs claimed:

“1. 100.00 pounds damages for trespass, in that, sometimes in the month of October 1965, the defendant 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 continued to trespass on the said land in spite of repeated warnings by the plaintiffs;

2. An injunction to restrain the defendants, their servants and/or agents from committing further acts of trespass on the said land.”

This suit had a chequered career in that after the trial in the High Court, it went on appeal to the Supreme Court and on the 4th day of February, 1972, the Supreme Court, after setting aside the judgment of the Court, remitted it to the High Court, Ikeja for trial de novo. By that time, suits IK/171/68 and IK/I72/68 touching the land in dispute had been filed. Then on the 11th day of June, 1973, on the application of the plaintiffs in the three suits, the court made an order consolidating the suits for hearing and determination. Before then, leave to make necessary amendments to the writs of summons and pleadings had been granted.

In their amended writ of summons, the plaintiffs in suit No.IK/171/68 and their amended statement of claim filed on the 21st day of April, 1975, claimed against the defendants jointly and severally:

1. Declaration of title under native law and custom to all that parcel of land situate at Ikeja and being at Agidingbi Village, Ikeja;
2. N200.00 being damages for trespass committed on the plaintiffs’ said land;
3. An injunction restraining the defendants, their servants, and/or agents from committing further acts of trespass on the said land;
4. Mesne profits at the rate of N15,600.00 per acre, from October, 1965, until defendants give up possession of the land in dispute.

By their amended writ of summons, the plaintiffs in Suit No. IK/172/68 claimed against the defendants jointly:

1.100.00 pounds damages for trespass to the said land;

2. An injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said land;
3. Mesne profits at the rate of N1,200.00 per acre per annum from October 1965, until possession is given.”

After several amendments to the pleadings filed by the parties, the matter eventually came to trial on the 2nd day of February, 1977, before E. Akinola Cole, J. Before Cole, J. the plans showing the land in dispute were tendered by the P.W.1 Mr. Isaac Body Lawson, a licensed surveyor. They are Exhibit A, Exhibit B and Exhibit C. He was a very valuable witness as he had been involved in a survey of land in the vicinity of the area in dispute since 1963. Exhibit B is a plan of the survey of land he carried out for the Mogaji family in 1963. It bears the date 23rd March, 1963. But the plan produced from the survey was upside down. So in 1966, he had to prepare another plan for the Mogaji family. By this time, Cadbury Nigeria Limited had come on the scene. Exhibit A is the plan. It shows the relative positions of the land claimed by the plaintiffs Mogaji family and the land claimed and occupied by Cadbury Nigeria Limited. It bears the date 27th September, 1967. The portion verged Red is the area claimed by Mogaji family and the portion verged Yellow on Exhibit A is the area claimed by Cadbury Nigeria Limited.

The land surveyed in 1963 is the same land as the area verged Red on Exhibit A. The land is close to Agidingbi village. Exhibit C is a composite plan. It bears the date 2nd of December, 1974. The area verged Yellow on Exhibit A is the same land verged Yellow on Exhibit C. Exhibit C shows the relative position of the land claimed by Saka family. The land of Mogaji family shown in Exhibit A is not shown on Exhibit C but it is immediately south of the land claimed by Saka family and adjoining it on the south end. The land claimed by Saka family is verged Red on Exhibit C. The mention of the plan of the lands in dispute at this stage is to create a true picture of the land in dispute in our minds from the onset.

After hearing evidence from witness called by the appellants and witnesses called by the respondents, counsel for the parties addressed the learned trial judge at length before he adjourned to consider and write his judgment. In a very well considered judgment covering 76 pages of typed script, the learned trial judge dismissed, in their entirety, all the claims of all the plaintiffs.

The learned trial judge, dealing with the claim for declaration of title, first considered the question of estoppel raised and said:

“I am satisfied that there is an averment that the 1st defendant acquired title to land in dispute from Chief Ashamu, and they would rely on the conveyance granted to Chief Ashamu relevant to the issue in controversy between the parties as settled on the pleadings . ……………………

Mr. Ajayi, learned counsel for the plaintiffs has submitted that the title of Ashamu, which was sought to be put in issue in this case had once been defeated by the plaintiffs in a previous suit IK/236/65 and there is no basis for the submission that estoppel per rem judicatam can only be used as weapon of defence and not of offence. It can be used both as a weapon of defence and offence cites Spencer Bower & Turner on the Doctrine of Res Judicata 2nd Edition page 9 paragraph 9 which reads: