Chief Tijani Jegede & Ors V. Oba Bakare Gbajumo & Ors (1974)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C.

This appeal has brought into focus two matters previously decided in earlier judgments of this court:-

(1) the inappropriateness of joining a claim for possession along with claims for trespass and injunction.

(2) That where conflicting averments are made by opposing parties in their pleadings regarding possession of land, it is the duty of the court to decide the issues as to which party has the title or superior title. In short, the issue as to the ownership of the land should be resolved.

In the writ of summons in this case, the plaintiffs/respondents claim as follows:-

“(1) The possession of all that piece or parcel of land lying and being at Etitum and Fakurede Street, Epe, Lagos State.

(2) An injunction restraining the defendants their servants or agents from committing any further acts of trespass on the said piece or parcel of land.

(3) The sum of 200 Pounds (two hundred pounds) as general damages for trespass.”

The learned trial Judge, in his judgment dated 17th January, 1972, at the Ikeja High Court, gave judgment to the plaintiffs/respondents in their claim for possession of the land in dispute, but dismissed the claims for damages for trespass and injunctions.

With regard to the claim for trespass and injunction, the learned trial Judge had this to say in his judgment:-

“It remains the other claims for damages for trespass and injunction. The plaintiffs’ statement of claim (paragraph 9) alleges that on or about 25th day of March, 1969, the defendants without any authorisation pitched a tent on the portion of the land in question, and have refused to remove same in spite of warnings. It was the 2nd plaintiff who only gave evidence on this, and all he said was on that date a group of people headed by the defendants came on the land, destroyed the stalls on it together with the crops in the yard. After destroying the stalls the defendants attempted to pitch a tent on the land which was resisted.

It is obvious that this piece of evidence is at variance, with the averments that were pleaded. The defendants of course denied paragraph 9 of the statement of claim and averred that it was the plaintiffs who pitched a tent on the land and they removed it.

It is well known that a party cannot be allowed to deviate from his pleadings, and as far as I can see the plaintiffs have failed to lead evidence in support of the alleged trespass that the defendants entered on the disputed land and pitched a tent on it. It seems to me that the claim for trespass must fail as well as the claim for injunction.

In the result the plaintiffs succeed on the claim for possession and I accordingly grant them possession of all that piece or parcel of land sufficiently described and delineated ‘green’ in plan No. BK 7855 admitted as Exhibit B in these proceedings. The other claims are dismissed.”