S. A. Adeyefa & Ors V Bamgboye (2014)
LAWGLOBAL HUB Lead Judgment Report
M.S. MUNTAKA-COOMASSIE, J.S.C.
It is clear that the Appellants were the plaintiffs in the High Court Ile-Ife who instituted the action against the Respondent herein. The plaintiffs now Appellants claimed the following reliefs in paragraph 38 of their statement of claim.
a. N500.000.00 general and aggravated damages for unlawful construction of the road situate, lying between the Nigeria Police Barrack and the defendant’s building off Moore Road, Ile-Ife and thereby denied the plaintiffs their right of way by the erection of a shed, back-house building and construction of a soak away pit and septic tank despite repeated warnings.
b. Court’s order for removal and filling up the soak away pit and septic tank on the private road the shed and the part of the back house that obstructed the road.
c. Injunction restraining the defendant by herself or by her servants or agent or otherwise howsoever from the repetition or continuance of the acts above complained of or of acts similar thereto on the road-in-dispute.
Pleadings were filed and exchanged between the parties. The suit subsequently went to trial by the Ile-Ife High Court of Justice.
BRIEF FACTS AS NARRATED BY THE APPELLANTS
The Appellants were the community resident at Ojaja Quarters of Moore, Ile-Ife, Osun State. The land in dispute is an access road between the Police Barracks and the Respondent’s building to Moore or Ilesa/Ife Major road.
Appellants stated that the access road had been in existence from time immemorial being used as road. First by the farmers farming around DOKUN – DOSA STREAM over sixty years before the respondent’s father purportedly purchased the land in dispute. Buildings began to spring up behind the Police Barracks and other buildings around Dokun – Dosa Stream. The old road was expanded to a motor -road over 30 years ago before trouble started over the access road-in-dispute and was so used by the inhabitants.
Later, the Respondent’s father, called Ganiyu Elusoji, purportedly purchased the adjacent land including the access road-in-dispute unknown to anybody. He embarked sometime in 1970 to develop the land. Thereby encroached on part of the access road in dispute and was challenged. The town planning authority and Ife Local Government Council however intervened and settled the dispute leaving the land in dispute about ten feet wide as access road to the Appellants community. The settlement was accepted by both parties. The small remaining access road was left for the community and the said Elusoji was left to continue his building in the interest of peace on both sides.
The Respondent’s father died and was succeeded by the Respondent’s mother and one Bello Bamgboye her uncle. Later, both blocked the access road by creating thereon a shed and a wall fence. This led to court action.
After hearing evidence the trial court dismissed ail the reliefs claimed by the plaintiffs now Appellants on the ground that:-
a. The Appellants failed to prove their title to the access road-in-dispute on which the nuisance was committed on the basis that the claim before the court was synonymous to Trespass and Injunction. So title to the land must be proved.
b. The Previous judgment in suit 27/83 tendered as Exhibit P1 which declared the land-in-dispute an access road was not binding on the Respondent because issue of title was not considered in the suit since the defendant’s Deed of Conveyance was not the Customary Court and since the issues raised in Exhibit P1 suit No. 27/83 were not on all fours with the issue in the instant case before it, so it cannot be used to raise an issue estoppels against the Defendant; that is, the judgment 27/83 decided cannot be proved of what it decided in the case before the court.
c. that the Ife Area Town Planning Authority decision contained in its letter tendered as Exhibit P7 which also declared the land-in-dispute as a road was a mere advice and not effective to create the access-road land as a road.
d. that the defendant has proved her title to the land and since the Appellants could not prove better title to the land the claim must fail and dismissed them.
The Appellants herein were aggrieved by the judgment of the trial court and unsuccessfully appealed to the Court of Appeal Ibadan Division. The court of Appeal hereinafter called the court below unanimously dismissed the Appellants, appeal. Justice Adekeye JCA, as he then was and who presided over the dismissed appeal has this to say on pp 146 – 167 of the record of the proceedings. And on page 159 – 160 Adekeye JCA as he then was stated thus:-
“There is no evidence to establish that the land in dispute has been created into access road. The Exhibit P7 relied upon emanated from the Town Planning Authority. It is noteworthy that the Town Planning Authority has power acquired by statute to create roads within its area of jurisdiction. It cannot venture into creating such roads whether it has power to do so without first acquiring the land and forming same out into plots of land and layouts.
It is noteworthy that though members of the community and the public have created an access road from Ojaja land into Moore road through the strip of land subject matter of dispute, it had always been met by stiff opposition from Ganiyu Elusoji and privies who had acquired ownership of the place. The lower court observed on the overall evidence and after visit to the locus that there are other roads in the neighbourhood which the community can use as access road into Moor Public road. That observation is endorsed by this court. The 4th issue is resolved in favour of the respondent.
This court had requested to invoke its power under section 16 of the court of Appeal Act – to re-evaluate, make findings of fact and thereafter reverse the decision of the learned trial judge. An appellate court will not likely interfere with the findings of trial court, unless it is shown that such findings were not based on the evidence before court or were the results of wrong inference from the evidence led. In the instance is the view of this court that the learned trial court properly evaluates the evidence on the question of whether an access road was actually created – and whether any interference with the road by the respondent was wrongful and unlawful.
Consequently we regard the dismissal of the appellants’ case by the trial court as a decision that cannot be faulted. In short this appeal lacks merit and it is accordingly dismissed. The judgment of the lower court is affirmed. N10,000.00 costs is awarded in favour of the Respondent”.
The appellants adopted their brief and distilled five (5) issues thus:-
- Whether or not obstruction of road subject of claim amounts to nuisance and how if so hold did the torts of nuisance and injunction synonymous with the torts of trespass and injunction and thereby requiring proof of title to the access road land on which the nuisance complained of was committed. Grounds 1, 2, 3, 11, 12 and 14 of the grounds of appeal.
- Whether or not having regard to the totality of the evidence on record the Appellants were entitled to Judgment on all the reliefs claimed in paragraph 38 of the statement of claim. Grounds 9, 10, 14, 15 and 17 of the grounds of appeal.
- Whether or not the lower court was right to hold that the Customary Court judgment in suit No. 27/83 tendered as Exhibit P1 not capable of raising an issue estoppels and binding on the parties to this appeal. Grounds 4, 5, 13 and 16 of the grounds of appeal.
- Whether or not the lower court was right to hold that the conclusion arrived at by the director of Ife Area Town Planning Authority in Exhibit P7 which was a reply to Exhibit D4 letter written by the Respondent referring the dispute between the parties for arbitration before the Town Planning Authority amount to a mere advice and did not create the land-in-dispute an access road. Grounds 6, 7 and 8 of the grounds of appeal.
- Whether the lower court was right to endorse the trial court’s observation that there was other road other than the access-road-in-dispute which can be used as an access road by the Appellants when there was no such road adjacent to the access road-in-dispute.
The Respondent filed its Respondent’s Amended brief of argument deemed property filed on 18/2/2014 in which it distilled two (2) issues thus:-
- Whether having regard to the evidence on record, the Court of Appeal was not right in upholding the judgment of the trial court that the appellants had not proved their case to entitle them to Judgment on the reliefs claimed (Grounds 1 to 3, 7 to 12, 14, 15 and 17 of the Grounds of Appeal)
- Whether the Court below was right when it held that suit No. 27/83 did not constitute issue estoppel. (Grounds 4, 5, 13 and 16 of the Grounds of Appeal).
The Appellants on receipt of the amended Respondent’s brief filed their Appellants reply brief on 19/3/2003. He revisited the two issues submitted by the Respondent and offered his arguments. He submitted that the arguments in the respondent’s brief of argument are devoid of substance and urged this court to allow the appeal, set aside the judgment of the trial court and the Court of Appeal and give judgment to the Appellants in terms of their claims as pleaded in paragraph 38 of the statement of claim.
Before I delve into the merit of the appeal, I wish to state that the Town Planning authority and the Local Government Area Council’s decisions purporting to settle the parties are not court’s decision and cannot be regarded as based on the reliable evidence adduced before the court of law. For the sake of clarity I shall reproduce the appellants’ issues thus:
- Whether or not obstruction of road subject of claim amounts to nuisance and how, if so hold, did the torts of nuisance and injunction synonymous with the torts of trespass and injunction and thereby requiring proof of title to the access road land on which the nuisance complained of was committed. Grounds 1, 2, 3, 11, 12 and 14 of the grounds of appeal.
- Whether or not having regard to the totality of the evidence on record the Appellants were entitled to judgment on all the reliefs claimed in paragraph 39 of the statement of claim. Grounds 9, 10, 14, 15 and 17 of the grounds of appeal.
- Whether or not the lower court was right to hold that the Customary Court judgment in suit No. 27/83 tendered as Exhibit P1 not capable of raising an issue estoppel and binding on the parties to this appeal. Grounds 4, 5, 13 and 16 of the grounds of appeal.
- Whether or not the lower court was right to hold that the conclusion arrived at by the director of Ife Area Town Planning Authority in Exhibit P7 which was a reply to Exhibit D4 letter written by the Respondent referring the dispute between the parties for arbitration before the Town Planning Authority amount to a mere advice and did not create the land-in-dispute an access road. Grounds 6, 7 and 8 of the grounds of appeal.
- Whether the lower court was right to endorse the trial court’s observation that there was other road other than the access-road-in-dispute which can be used as an access road by the Appellants when there was no such road adjacent to the access road-in-dispute.
Under issue 1, the contention of the Appellants that obstruction of road in the law of torts is nuisance and when coupled with injunction did not by that raise issue of title to the land where the nuisance was created. He added that the torts of nuisance and injunction are not synonymous to the torts of trespass and injunction which raised issue of title to land and which must be proved to enable the plaintiff to succeed.
Learned counsel for the Appellants then submitted that both trial and the Court of Appeal were in error to treat the Appellants claims in paragraph 38 of the Statement of claim under the torts of trespass and injunction, which led to the dismissal of the Appellants case before the trial court and the appeal before the lower court, thus led to gross miscarriage of justice.
I have briefly considered the Respondent’s submission under this first issue. Considering the evidence adduced in the trial court and the judgment of the trial court which was affirmed by the court below I venture to state that those two judgments cannot be in anyway faulted. Both are consistent with the law as it is. Where is the proof of the claims
I have also closely analyzed the facts, evidence and the decisions of the trial court and discovered that no single evidence was adduced to support and establish the reliefs claimed namely tort and injunction. The Appellants could not prove that they are in-possession of the land in dispute. My Lords’ there is no even attempt for the Appellants to establish their claim by adducing evidence of title to the land in dispute. It is my considered view that whether the claims of the Appellants are nuisance and injunction or trespass and injunction, the law demands that the plaintiffs in both must be able to prove title to the land in dispute or he is in possession. I am fortified by the decisions of the Supreme Court OKORIE VS. UDOM (1960) 5 FSC 162 AT 165 per Fatayi-Williams, JSC as he then was (of blessed memory).
Makor vs. Obiefuna (1974) 1 All NLR (Pt 1 page 116, lines 4 to 9).
“Generally speaking, as a claim for trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession, or he has the right to such possession of the land in dispute, but once a Defendant claims to be the owner of the land in dispute, title is put in issue, and in order to succeed, the plaintiff must show a better title than that of the Defendant”.
I think it is glaring that the land in dispute is part of the area bought by the father of the respondent and actually forms a boundary with the Nigeria Police Barracks. The Appellants had no claims whatsoever to the land in dispute. I find no difficulty therefore to hold that the trial court’s decision is faultless. The judgment of the court below is correct. I resolve this issue against the Appellants. Since the Appellants herein could not establish possession or title to the land in dispute he cannot possibly be heard to clink to the right of way by claiming easement that cannot be allowed. The plaintiffs’ claims for trespass, nuisance, right of way are ruse and must fail. It is simply that the Appellants never laid cogent evidence to what they have been claiming all along. See
- Akinfosile v. Ijose (1960) 5 FSC. (1960) N.S.C.C. 129;
- Akin Omoboriowo v. Adekunle Ajasin (1964) 1 SC 206 at 207.
My Lords, I assure you that the Appellants have no case whatsoever and their claims deserved to be dismissed from the trial to the court below, and I so hold. This Court should not be carried away by the slight mistake done by the court below in re-evaluating or reappraising the evidence which was earlier on beautifully done by the trial court. Consistently with the true position of the facts and the law, the lower court after evaluation arrived at the same decision of the trial court. It is common knowledge that responsibility of evaluating the evidence is that of the trial court that saw and heard the witnesses and it is true that the Appellate court may not interfere or disturb a finding or conclusion in a judgment except in certain circumstances which have been stated and re-stated in many decided authorities of the apex court. The decisions of both lower courts are not perverse.
The above exposition of the law and my resolution of issue No. 1 should have been the end of the appeal but before concluding this judgment, I would touch briefly issue No. 3 where it was said whether the court below was right when it held that Suit No. 27/83 did not constitute issue estoppel.
The appellants argued that the court below was palpably wrong to hold that suit No. 27/83 did not constitute issue estoppels. The appellants counsel to start with, contended that this issue covered grounds 4, 5, 13 and 16 of the Grounds of Appeal.
The main issue is whether the previous customary court judgment in suit No. 27/83 tendered as exhibit P1 between the Appellants and the Respondents predecessors in title which declared the land-in-dispute an access road was conclusive of the issue so decided and thus created an issue estoppels and binding on the parties to this appeal. Since the same access road is the subject matter of dispute in the appeal at hand which the lower court resolved negatively contrary to the decision. It goes without saying my Lords, that it is the law that issues once litigated upon should be regarded as forever decided. There are exceptions to this rule. Nwosu v. Udeago (1990) 1 NWLR (Pt.125) 188. It was held in the above cited case that issues once litigated upon should be regarded as for ever decided except set aside by the competent appellate court. It was the contention of the Appellants’ counsel that the judgment in suit No. 27/83 in Exhibit P1 between the Appellants community and the Respondent had declared the small strip of land of ten feet (10ft) now in dispute an access road as binding on the Respondent and conclusive of what it decided and issue cannot therefore be reopened in the instant case subject of appeal before the Supreme Court as also held in Adigun v. A-G (1987) 2 NWLR (Pt 56) 197.
Learned appellants’ counsel Chief Fadugba (who prepared the brief before his demise), submitted forcefully that the issue estoppels was properly raised and the judgment in Exhibit P1 suit No 27/83 is binding on the Respondent and must be obeyed. Learned counsel further urged this court to hold that the judgment in Exhibit P1 thereby had established that the land-in-dispute was an access road.
In the Respondent’s brief, it was contended by the respondent that the lower court was perfectly right when it held that suit No 27/83 did not constitute issue estoppel.
My lords, learned counsel for the Respondent Wogu Esq., submitted that suit No 27/83 was not and cannot operate as issue estoppel. He argued that the Appellants, in the trial court, initiated suit No 27/83 in the Customary Court Grade C. Instead of taking further steps after judgment to vindicate their rights, they instituted the present action in the High Court. He further argued that the Appellants obviously knew that all the ingredients necessary to sustain the plea were absent. Again, the evidence in the said Customary Court was radically and significantly different from the one in the High Court of Justice. For example the Deed of conveyance tendered and admitted in the High court was not before the Customary Court Grade C.
Learned counsel referred this court to Mogaji V. Cadbury Nig. Ltd. (1985) 2 NWLR (PT. 7) 393 AND Alli V. Alesinloye (2000) 6 NWLR (Pt. 660) 177 and submitted that this type of difference in evidence is material because the production of a document of title is one of the five recognised ways of proving ownership of land under the Nigerian Legal system.
My lords for the foregoing analysis I resolve issue No. 3 against the Appellants and in favour of the Respondent. The court below was perfectly correct when it held that suit No 27/83 did not in any wav constitute issue estoppel.
That being the case, the other remaining issues formulated by the Appellants and responded to by the Respondent are of no moment. All the five (5) issues in this appeal are resolved against the Appellants. The appeal is devoid of any merit same is therefore dismissed. Parties shall bear their own respective costs.
SC.185/2003
