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.

2. 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.

10. The plaintiffs aver that the defendants have since the filing of this action commenced building operation on the said farm.
11. 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.

3. 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