Bello Salami & Anor. V. Alhaji Adetoro Lawal (2008)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The appellants were the plaintiffs at the Oshogbo High Court of Osun State where they claimed against the respondent as the defendant the following reliefs:

“(i) A declaration that the Plaintiffs are the persons entitled to a statutory Right of Occupancy to the piece or parcel of land consisting of an area approximately 9.865 hectares, verged Blue and shown on plan No. OMS/OSfMISC/08/91 drawn by E.O, Omisola & Associates, Licensed Surveyor and bounded as follows:

(a) On the front side or Northern side by Osogbo to Iwo Road

(b) On the Eastern side by Adegoke Family landed property

(c) On the Southern side by Onifade Family land and

(d) On the Western side by Yemoja Stream

(ii) Five thousand naira (N5,000.00)General damages for trespass committed by the defendant on plaintiff family land at Yemoja area, Oyatedo.

(iii) Perpetual injunction restraining the defendant, his servants, agents or privies from committing any further acts-of trespass on the said piece or parcel of land. The rateable value of the said land is (N100)(one hundred Naira)”

Parties filed and exchanged pleadings after which the case was heard by Ademakinwa J. The appellants called five witnesses including the 2nd appellant. Similarly, five witnesses including the defendant testified in support of the defence case. In a well-written judgment delivered on 17-03-74,the trial judge concluded as follows:

“The conclusion I have therefore reached in this case is that by entering the land in dispute to erect a signboard thereon, the defendant has committed an act of trespass against the Plaintiffs’ exclusive possession of the said land.

The plaintiffs have however claimed N5,000.00 as general damages for the trespass committed by the defendant. It is well known that in the absence of any special damages arising from the trespass committed only nominal damages could be awarded in the form of general damages. I would therefore allow N5,000.00 as general damages. Since the plaintiffs are entitled as customary tenants to remain in possession, I think there is a need to protect their possession of the land in dispute until their customary tenancy is properly determined. I would therefore grant the order of injunction sought.

In the result, the plaintiffs’ claims succeed in part and they are hereby granted N5,000.00 as general damages for the trespass committed by the defendant on the land in dispute and an order of injunction restraining the defendant, his servants, or agents from further acts of trespass on the land in dispute while the customary tenancy of the plaintiffs subsists.”

The respondent was dissatisfied with the judgment of the trial court. He brought an appeal against it before the Court of Appeal, Ibadan (hereinafter referred to as ‘the Court below’). Before the court below, the three issues submitted by both parties to the court for determination are: