Soleh Boneh Overseas (Nigeria) Ltd. V Agboola Ayodele & Anor (1989)
LawGlobal-Hub Lead Judgment Report
WALI, J.S.C.
The Plaintiffs’ (suing in a representative capacity) claim against the Defendants as endorsed in the Writ of Summons is for-
- The sum of N500,000 as special and general damages for trespass on the Plaintiffs’ land at Bakatari, along Ibadan/Abeokuta Road and destruction thereon, cassava plants, palm trees and also digging and removing therefrom several yards of laterite.
- Injunction restraining the defendants, their agents and/or servants from committing further acts of trespass on the said land.
Pleadings were ordered and filed. These were later amended. Before the actual hearing began, that is the taking of evidence of witnesses, the plaintiffs dropped their claims against the second defendant and his name was struck out. The case therefore proceeded against the 1st defendant only. In paragraph 15 of the plaintiffs’ final amended statement of claim they gave the particular; of their claims as follows:-
“SPECIAL DAMAGE
(a) Value of 18 palm trees destroyed on the area edged yellow lying to the East of the Plan No. JFA556 at N100.00 each…. ….. N1,800.00
(b) Value of excavated laterite on
the two portions marked yellow
on Survey Plan No.JFA 556 – 22182 M2 &;
10835 M3 – 8573 lorry loads at
ownership disposal N12.00 per load… N102,876.00
2ND PLAINTIFF
Value of cassava plants on area:
marked yellow and lying on the
East of Survey Plan No.JF A556
8000 plants at 20k …. N1600.00
GENERAL DAMAGES
The 1st and 2nd plaintiffs jointly and/or severally claim General Damages.”
Oral as well as documentary evidence was adduced by both sides. This was reviewed and considered by the learned trial Judge in his judgment and he concluded:-
“My judgment, therefore is that the plaintiffs have failed to prove their claims as required by law and all the claims are dismissed.”
Dissatisfied with the judgment above, the plaintiffs appealed to the Court of Appeal. The Court of Appeal in a majority judgment of two to one (Gambari and Omololu Thomas, JJ.C.A. agreeing, with Ogundare, J.C.A. dissenting) reheard the case by reviewing and reconsidering the findings of the learned trial Judge on the evidence adduced before him and Gambari J.C.A., writing the lead judgment of the court, concluded-
“In order to entitle him to maintain an action, a plaintiff with reversionary interest must allege and prove that the act complained of was injurious to his reversionary interest, or that it should appear to be of such a permanent nature as to be necessarily injurious to it and as was decided in Mayfair Property Co. vs Johnston (supra) that where there was a taking of part of the land, carrying away of the existing materials and putting in the foundations of a building which was clearly intended to be permanent, the plaintiff with reversionary interest was held entitled to maintain a suit in trespass.
It follows therefore that the learned trial Judge was wrong, in my view to have come to the conclusion that the defendant was not liable to the plaintiffs. It is surely liable to the plaintiffs for excavating gravels or laterites from their land and particularly the part said to have been built up must have been dug before the buildings were constructed and before the action was commenced in that case, the defendant would be liable to the plaintiffs for trespass in regard to that portion of land. The defendant will be equally liable for the remaining part of the land which were not built upon and for which the learned trial Judge had patently omitted to consider in his judgment.”
He then awarded N5,000.00 general damages to the plaintiffs.
Dissatisfied with the majority decision of the Court of Appeal, the defendant appealed to this Court. But before I embark upon discussing the issues raised and contested in this appeal, I think is pertinent to state in brief the facts involved in this case.
The land, the subject matter of this action belongs to Ayodele Family. It is situated at Bakatari Village along Ibadan/Abeokuta Road. Sometime in February, 1975 the defendant, while constructing the Ibadan/Abeokuta Road unlawfully entered into the said land and destroyed cassava plants, palm trees, excavated and removed therefrom laterites which they used in their construction work. The 1st plaintiff is the head of Ayodele Family while the 2nd plaintiff is one of the customary tenants put on the land by the family.
In entering the land for the purpose of executing the road construction work, the defendant went beyond the 150ft. building line limit normally permitted in such circumstances. As a result, the 1st plaintiff (representing the Ayodele Family) and the 2nd plaintiff filed the suit (the subject of this appeal) in the High Court of Justice, Ibadan, Oyo State, asking for the following reliefs.
- General and Special Damages in the sum of N500,000 and
- Injunction restraining the Defendants, their agents/ or servants from further entering and committing acts of trespass on the said land.
The plaintiffs as well as the defendant filed separate survey plans of the land affected. The plaintiffs plan was Exhibit P6 while that of the defendant was Exhibit D1.
Four Grounds of Appeal were originally filed by the defendant in this appeal and with leave granted him by this Court, he filed two additional grounds thus bringing the total number of grounds filed to six. Both the plaintiffs and the defendant filed and exchanged briefs and which each adopted and elaborated upon orally during the hearing of the appeal.
Henceforth, the plaintiffs and the defendant shall be referred to as the respondents and the appellant respectively in this appeal.
In their respective briefs both the appellant and the respondents formulated issues for determination in this appeal.
The two issues formulated by the appellant are –
“(1) Whether the Court of Appeal was right in awarding damages for trespass when the entry of the defendant upon the land in dispute was lawful.
(2) Whether the 2nd plaintiff is in the circumstances entitled to general damages for trespass.”
While those of the Respondents also are –
“(1) Whether in law a reversioner can sue for permanent damage done to his reversionary interest.
(2) Whether the consent given by a tenant, in particular by a customary tenant, to enter into the land precludes the reversioner (landlord) from suing for permanent damage done to his reversionary interest.”
In the appellant’s brief of argument, grounds 1 and 3 of the Grounds of Appeal were taken together. The substratum of the argument under those grounds is that the Court of Appeal was wrong in its finding that trespass can be committed against the reversionary interest of the landlord who is not in actual possession inspite of the consent given by his tenants who are farmers and in possession of the land trespassed upon. It was the learned Counsel’s contention that since the appellant entered the land in dispute with the consent of the farmers in possession, no trespass was committed by him as there was no unjustifiable intrusion upon the land by him. He submitted that a claim for trespass can only be at the instance of a party in possession, and since the respondents were not in possession and consent was given by the customary tenants in possession, the Court of Appeal was wrong in reversing the trial court and making a finding on the evidence that the appellant committed trespass and was therefore liable to the respondents. In support of these submissions, learned Counsel referred to and relied on Obijuru v. Ozims (1985) 2 N.W.L.R. (Pt.6) 167; Overseas Construction Ltd v. Creek Ent. Ltd. (1985)3 N.W.L.R. (Pt. 13) at 407; Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 N.W.L.R. (Pt.14) 47 and Okolo v. Uzoka (1978) 1 L.R.N. 192.
In reply to the submissions (supra) learned Counsel for the respondents submitted that a reversionary interest is never vested in a tenant and therefore where the reversionary interest suffers a permanent injury as a result of trespass committed, the reversioner does not need the consent or authority of the tenant in possession before he can sue for the damage done to his interest. He cited the case of Okolo v. Uzoka (1978) 1 L.R.N. 192 at 198 and Paragraphs 22-27 at p.1105 of Clerk & Lindsell on Torts (15th Ed.)
The crucial point for determination in this appeal is whether a landlord can sue for any permanent injury done to his reversionary interest, the consent of the tenant in possession notwithstanding.
The reversionary interest of the respondents in respect of the land in dispute is no longer an issue in this appeal. Ground 1 formulated by the appellant reads:-
“(1) The Court of Appeal erred in law and on the facts when it held that with or without the consent of the farmers on the land who were but persons in occupation and having possessory right – trespass can be committed against the reversionary interest of the overall landlord for which the landlord is entitled to sue for trespass against the trespasser.
WHEN:
(a) the customary tenants in possession of the land consented to entry on the land by the defendant; and
(b) the case of the plaintiff is not that the defendant in trespass caused permanent injury to the land.”
Paragraphs 5, 6 and 7 of the Respondents’ amended statement of claim states:-
“5. Sometime in February, 1975 the Plaintiffs saw the agents/or servants of the 1st Defendant on their Plaintiffs (sic) and referred to in paragraph 2 supra and described in the Plan No.JFA 556 dated the 3rd of March, 1980.
- On inspection the Plaintiffs found that the agents/or servants of the 1st Defendant on entering the said land had uprooted and destroyed cassava plants on the 2nd plaintiff’s farm marked yellow to the East of the survey plan and uprooted and destroyed 18 palm trees and had dug and removed laterites from the said land.
- The Plaintiffs employed the services of a quantity surveyor to measure and determine the quantity of laterite excavated from the two areas marked yellow on Plan No.JF Ososami Lincensed Surveyor dated 3rd March, 1980 which the quantity surveyor calculated as follows:
(1) Portion marked yellow on the Survey Plan with Area 7394 M2 with average depth of 3.oom is equal to 22182 M2.
(2) Portion marked yellow on the Survey Plan with area 6014 M2 with average depth of 1.80 metre is equal to 1085 M3.
(3) Total laterite excavated from the two areas – 3 3300 M3 which is equivalent to 8573 lorry loads.”
The appellant, in paragraphs 5 and 6 of their amended statement of defence averred, in reply to paragraphs 5, 6 and 7 of the respondents’ statement of claim, as follows:-
“5. The 1st Defendant entered upon the areas marked A & B in Plan No. FA 10,779 for the purpose of executing the road contract as specified in paragraph 3 above with the authority of the law to operate freely within 45.72 metres (150ft) from the centre of the road.
- The 1st defendant entered upon the areas beyond 45.72 metres (150ft.) in the portions marked A & B in Exhibit A for excavation of burrow pits with the consent and approval of five farmers who claimed to own the area at the material time and the crops thereon. The five farmers who demanded for and were paid compensations for their crops by the 1st defendant are:-
(i) Amusa Ajagbe
(ii) Lasisi Akanni
(iii) Jimoh Adigun
(iv) Ganiyu Esim
(v) Wahabi Amqle
The 1st defendant will rely on the forms/payment vouchers executed by the farmers on their receipt of compensation.”
In paragraph 6 of the amended statement of defence the appellant named the 5 farmers on whose authority and consent he entered the land in dispute. He claimed that the five farmers were the owners of the land. I have perused the evidence adduced by the appellant and I am unable to find any proof of that averment. There is evidence that Amusa Ajagbe and Lasisi Akanni were dead at the time the case was heard by the trial Court, but there is no such evidence on Jimoh Adigun, Wahabi Amole and Ganiyu Esan, the other three persons named by the appellant in paragraph 6 of the amended statement of defence and none was called to give evidence. The evidence given by 1st P.W that the five persons named in paragraph 6 of the respondents’ amended statement of claim are the customary tenants of the respondents at the time material to the case, was not dislodged by the appellant. On this the learned trial Judge stated thus:-
“As between the 1st Plaintiff and the defendant, I accept the plaintiff’s evidence that the land in dispute as evidenced by Exh. P6 (Plaintiff’s survey plan) and Exh. D1 (defendant’s survey plan) originally belonged to Ayodele family. This is so subject to the Land Use Decree, 1978. I believe I accept the plaintiff’s case on this point. Also I accept and believe the evidence of the defendant that Amusa Ajagbe, Jimoh Adigun, Lasisi Akanni, Ganiyu Esan, Layiwola Esan (2nd Plaintiff) and Wahabi Amole were tenants of Ayodele family (1st Plaintiff) on the land in dispute.
I also believe and accept the evidence of Samuel Adeoye (DW.2) when he said that Amusa Ajagbe introduced himself and five others as the farmers and owners of the crops on the portion of the land excavated. I also accept his evidence that the defendant got to the land to remove laterite with the authority and consent of the said six farmers who later on claimed compensation for their crops.”
The law as regards the position of a reversioner viz-a-viz his capacity to sue where a permanent injury is done to his reversionary interest in land is clear. As cited and referred to by the learned counsel for the respondents, Clerk and Lindsell on Tort (15th Ed.) at page 1105 states the position thus –
“Although in general, the only person who can sue for a trespass is the person in possession, actual or constructive, at the time the trespass was committed yet where the trespass has caused a permanent injury to land affecting the value of inheritance, a person who is entitled to in reversion may sue for injury to his interest, and he may do so at once without waiting until his future estate falls in possession.”
In Bell v. Midland Rly. Co. 10 C.B. (N.S.) 287 the complaint was that the tenants of a landowner who had the right to construct a siding communicating with the Midland Company’s line, were obstructed by the railway company’s placing across the junction carriages and some wooden balks, and it was held that the reversioners could maintain an action against the company. It is not necessary that there should be a permanent obstruction of the right of way, in order to give the reversioner a right of action: it is enough if the act is calculated to abridge or interfere with the estate of the reversioner. In Kidgill v. Moor 9C.B. 364, locking agate across a way, was held to be sufficient obstruction to give the reversioner a right of action.
In Mayfair Property Co. v. Johnston (1894) 1 CH 508 where the occuplers of a house and a garden No.37 Hyde Park Gate, Middlesex, pulled down and rebuilt a wall which separated the garden from that of the adjoining house No.36 Hyde Park Gate, Middlesex and in doing so, they trespassed on the garden of No.36 by placing into the soil of its foundations and footings of the new wall extending further into the garden than did those of the old wall. The house No. 36 was in the occupation of a tenant under a lease. It was held that the trespass being of a permanent nature, the owners of the reversion in fee in No.36 could, though the tenant made no complaint, maintain an action in respect of the trespass. There was a trespass in putting upon the reversionary estate something which was intended to be permanent.
In Jones v. Llanrwst Urban District Council (1911) 1 Ch 393, although a reversioner cannot maintain action in the nature of trespass – including those of infringement of natural rights arising out of his ownership of land without alleging and proving injury to his reversion, if what is complained of is of much a permanent nature that a reversion may be injured, the question of injury or no injury is one for the jury, or the tribunal which has to make a finding on the facts of the case, and where injury is found the reversioner may obtain injunction without joining his tenant as a co-plaintiff. Where the injury done to the reversionary interest is such of a permanent nature as to be necessarily prejudicial to the interest of a reversioner, he is entitled to sue and recover damages. See Baxter v. Taylor 4B & Ad 74 where Parke J. said-
“I am clearly of the opinion that………….to entitle him (the plaintiff) to maintain this action, it was necessary for him to allege and prove that the act complained of was injurious to his reversionary interest, or that it would appear to be of such a permanent nature as to be necessarily injurious.”
It is to be noted that permanent injury in my view includes such physical injury to the reversionary interest at the time the act is committed and will continue to be so unless something is done to remedy it: It does not necessarily mean permanent ad infinitum. See also the case of Okolo v. Uzoka (1978) 1 L.R.N. 192 where the respondent in a cross action sued the appellant for trespass affecting her reversionary interest which was leased to Ibru Sea Foods Limited, Obaseki, J.S.C., said at page 198-
“A tenant in occupation, as Ibru Sea Foods Ltd. in this case, can sue but not the landlord except in cases of injury to the reversion. This is where the trespass has caused a permanent injury to the land affecting the value of the hereditament. Then he may sue for injury to his interest without waiting until his future estate falls into possession.”
From the evidence adduced, it is clear that the appellant committed acts of trespass injurious to the respondents reversionary interest when he entered into the land beyond the 150ft. building line as shown in both Exhibits P6 and D1 tendered by the respondents and the appellant respectively, dug and removed laterites therefrom for the purpose of his road construction contract. See particularly the evidence of D.W.1 where he said under cross-examination-
“I agree that both areas ‘A & B’ on Exhibit D1 are outside the 150ft building line.”
Where there is infringement of a legal right, there is a right of action without actual damage being proved, as this imports damage so long as it is something which the law can fix upon as being sufficiently substantial to constitute an interference. Where you have such a situation the damages are at large; it is a matter for the jury. And where the Judge in the court below failed to award damages, the Court of Appeal would be entitled to award the damages just as a jury would do. The finding of the Court of Appeal per Gambari, J.C.A., that-
“It follows therefore that the learned trial Judge was wrong in my view to have come to the conclusion that the defendant was not liable to the plaintiffs. It is surely liable to the plaintiffs for excavating gravels or laterites from their land and particularly the part said to have been built up must have been dug before the buildings were constructed and before the action was committed and in that case, the defendant would be liable to the plaintiffs for trespass in regard to that portion of the land. The defendant will be equally liable for the remaining part of the land which were not built upon and for which the learned trial Judge had patently omitted to consider in his judgment” is well justified and cannot be impeached.
As regards the upsetting of the trial court’s findings by the Court of Appeal, the well known principle is that the findings of the trial court on the evidence adduced before it are presumed to be right unless the Court of Appeal is satisfied that the findings are perverse or not the result of a proper exercise of judicial discretion – See Ntiaro v. Akpam 3 N.L.R. 10, Kodilinye v. Odu 2 W.A.C.A. 336, Miller v. Kwayisi 1 W.A.C.A. 7 and Lawal v. Dawodu and Ors. (1972) 1 All N.L.R. (Pt.2) 270. On the evidence before the trial Court, there was sufficient evidence upon which the learned trial Judge could have found in favour of the respondents in trespass and on that, the Court of Appeal was right in rehearing the case and coming to the conclusion that:- ‘
“….the defendant is liable to the plaintiffs in trespass for the gravels dug and removed from their land in the two areas”
and also the award of N2,000 general damages to them.
On the whole, I agree with the judgment of the Court of Appeal in that the respondent have proved:-
- that they are reversioners in the portion of the land affected as shown in both Exhibits P6 and D1 adduced as evidence by the respondents and the appellant respectively,
- that the appellant had committed the acts of trespass complained of on the land, and
- that as a result of (2) above the appellant caused injury of a permanent nature to the reversion by excavating and removing laterites therefrom, thus diminishing its value and suitability for any, agricultural or residential use without refilling the same.
I have adequately covered the remaining grounds of appeal canvassed in this appeal in my reasoning (supra). It is therefore unnecessary for me to go over them one by one again and since doing so will be nothing more than mere repetition of what I have already said. They are all inter-related to the grounds already discussed and dispossed of.
The end result is that all the grounds of appeal fail and are dismissed. The judgment and order of the Court of Appeal are affirmed. The respondents are awarded N500.00 costs against the appellant in this appeal.
SC.47/1987
