Salawu Oke & Ors. V. Musilim Lamidi Aiyedun (1986)

LawGlobal-Hub Lead Judgment Report

KAZEEM, J.S.C.

This is an appeal against the decision of the Court of Appeal at Ibadan dated 31st October, 1983 which affirmed the decision of Craig, Chief Judge of Ogun State dated 31st March, 1980 dismissing the appellants’ application to set aside his order for perpetual injunction made on 15th October, 1979. The background to the whole appeal may be stated thus:

The respondent as plaintiff instituted an action in May, 1977 against the appellants, as defendant at the High Court of Justice, Ogun State holden at Abeokuta in the following terms:-

1. “The plaintiff’s claim is N800 against the defendants jointly and severally due to the plaintiff and payable by the defendants by building on plaintiff’s land and extending it over plaintiffs house at Ilagbe compound, Itoko, Abeokuta in such a way that rain water therefrom damaged the plaintiffs property in the plaintiffs house in 1972 which is still continuing.
2. a perpetual injunction restraining the defendants their servants agents and/or privies from further damaging plaintiffs house and further acts of trespass on plaintiff’s landed property situate and being at the said Ilagbe Compound, Itoko, Abeokuta. The annual rental value of the property is N10.00.
3. Alternatively to the above claim, the plaintiff claims N500.00 against the defendants jointly and severally due to the plaintiff and payable by the defendants and being damages for nuisance committed by the defendants by building on plaintiff’s land and extending it over plaintiff’s house at Ilagbe Compound, Itoko, Abeokuta in such a way that rain water therefrom damaged the plaintiff’s property in the plaintiff’s house in 1972 which is still continuing.
4. a perpetual injunction restraining the defendants their servants agents and/or privies from further damaging plaintiff’s house and further acts of nuisance on plaintiff’s landed property situate and being at the said Ilagbe Compound, Itoko, Abeokuta.

Pleadings were ordered accordingly. Thereafter the respondent filed a statement of claim on 7th March, 1978. In paragraphs 1, 5, 8 to 16 of the said Statement of Claim, he pleaded not only his root of title, but also made an allegation of trespass and or nuisance against the appellant and averred that it caused serious damages to his properties.

Even though the appellants were duly served with the writ of summons as well as the statement of claim, they failed to file their statement of defence at the appropriate time. Consequently, the respondent brought an application for an order “giving judgment to the plaintiff in the action for defendant’s failure to file a defence”. That application was duly served on the appellants by substituted service by pasting on the Notice Board of the Court in accordance with the Practice Direction of the Court No.1 of 1978. Thereafter, the application was heard in the absence of the appellants on the 15th October, 1979 after which the learned Chief Judge made the following order:

“The order is granted as prayed. Accordingly, there will (be) judgment for perpetual injunction against the Defendants, their servants agent and/or privies. It is ordered that they shall be restrained from further damaging the plaintiff’s house and property situate and being at Ilagbe Compound, Itoko, Abeokuta.

2. The claim for N800.00 damages is adjourned till the 12/11/79 for evidence to be taken on the quantum of damages.”

It is to be noted from this aforementioned order that no evidence was taken before the order for perpetual injunction was granted; whereas the matter was then adjourned for evidence to be taken before determining the claim for trespass and the quantum of damages claimed thereon. However, when indeed evidence was taken subsequently on 21st November, 1979, the truth of the matter became evident. The respondent performed so woefully in his testimony that the Chief Judge castigated him so much before dismissing the claim of N800.00 as damages for trespass. In his judgment, the learned Chief Judge said:-

“I have listened to the plaintiff in proof of his claims for damages, but I regret that nothing that he has said can be pinned down to any acts of the Defendants. The defendants were said to have entered the plaintiffs father’s house: this may be trespass and is actionable at the suit of the plaintiff.

But on the Writ the claim for N800.00 is for damages caused when the defendants built;

“on the plaintiffs land and extended it over the plaintiffs house at Ilagbe compound, Abeokuta in such a way that rain water therefore damaged the plaintiff’s property in the plaintiffs house in 1972 – – – – – – – – – – – – – – – – – – – – – – – – – ”

The facts pleaded in paragraphs 13 -16 of the Statement of Claim, were to the same effect, although the building was said not to have been done by the defendants but by their father Adebesin.

But the evidence led on proof of these paragraphs is contrary to the facts pleaded. The Defendants were said to have left their father’s house and gone to live in the plaintiff’s house. On the return of the plaintiff 2 years afterwards, he found that the front had collapsed and his property damaged by rain water.

The Plaintiff did not say how the property came to be damaged: The Court would have liked to know whether the damage to the roof was caused by an act of God e.g. a Tornado, or by an act of the Defendant’s removing the roof unjustifiably. Whatever this may be, the evidence led is at variance with the pleadings and I must hold that the plaintiff has failed to prove the damages which he claimed.

In the circumstances it is ordered that his claim for N800.00 be dismissed. ”