Gbadamosi Sanusi Olorunfemi & Ors Vs Chief Rafiu Eyinle Asho & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C. 

This judgment relates to an appeal and a cross-appeal from the decision of the Court of Appeal (Kolawole, Tobi and Ubeazonu, J.J.C.A). The respondents (“the plaintiffs”) sued the appellants (“the defendants”) in the High Court of Lagos State claiming damages for trespass allegedly committed by the defendants on land at Akesan village sometime in December 1983 and injunction. The defendants, on their own, counterclaimed against the plaintiffs for a declaration of customary right of occupancy to the land in dispute, damages for trespass and injunction. The High Court (Onalaja, J., as he then was) after taking evidence on the claim and the counterclaim, dismissed the plaintiff’s claim in its entirety. He granted the declaration sought by the defendants and restrained the plaintiffs from further acts of trespass on the land claimed by the defendants. He rejected the defendant’s claim for damages for trespass. The plaintiffs appealed to the Court of Appeal from the whole decision of the High Court while the defendants appealed from that part of the decision dismissing their claim for damages for trespass. The Court of Appeal dismissed the plaintiff’s appeal from the dismissal of their claim, but allowed it in regard to the order for injunction made by the High Court on the defendant’s counterclaim. It dismissed the cross-appeal in its entirety.

The plaintiff’s case in the High Court was that the ancestors of the “people of Akesan”, on whose behalf they have sued in a representative capacity, came from Oyo hundreds of years ago, settled and farmed on land known as Akesan and that they, as their ancestors before them, had been in exclusive possession of the land. Sometime in 1918, one Olorunfemi Oje and one Ashade sued one Eyinle Asha as representative of Akesan people for trespass on the area marked “red” on a plan (exhibit 3 in the present suit) prepared for use in the 1918 suit (suit No. 23 of 1918), and lost. The present action was brought because, sometime in December 1983, the defendants entered the land litigated upon in 1918 and damaged the plaintiff’s crops thereon.

By their statement of defence and counterclaim, the defendants averred that the plaintiff’s ancestors were customary tenants of their ancestors but that they had attempted to extend their farming activities beyond the area conceded to them by trespassing on the land in dispute, thereby leading to the counterclaim. They pleaded title by settlement by their ancestors and numerous and positive acts of ownership extending over a long period of time.

Onalaja, J.(as he then was) who tried the case, had no difficulty in holding that the 1918 action neither constituted res judicata nor ground for issue estoppel. He found that there was neither identity of subject matter nor of parties. He held that the plaintiffs have failed to prove their case and, that the defendants proved their counterclaim on the evidence which he accepted. However, being of the view that the defendant’s case was that the plaintiffs were their customary tenants, he held that the possession of the plaintiffs was lawful and consequently, that they could not be liable in trespass. As earlier observed, he nevertheless granted an injunction against the plaintiffs, as he put it, to “protect the defendants/counterclaimants and save them from future litigations”. It is pertinent to note that the exact terms of the injunction were to restrain the plaintiffs ‘from committing further acts of trespass on all that piece or parcel or land which is mere particularly described in the survey plan … admitted as Exhibit 5 in this action and therein verged “Red”.

On the appeal and cross-appeal to the Court of Appeal, the three issues identified by that court as of decisive importance were:

“1. Whether the question or issue of estoppel per rem judicata is properly raised in the court below.

2. If the answer to the first question is in the affirmative, whether the plea of estoppel per rem judicata is available to the plaintiffs/appellants i.e. whether the appellants ought to succeed on the plea.
3. On the counter-claim. whether the plaintiffs/appellants are customary tenants of the defendants/respondents in respect of the area in dispute i.e. area verged pink in exhibit 5.
4. Subject to the answer in 3 above, whether the plaintiffs/appellants are liable to the defendants/respondents in damages and injunction.”

The Court of Appeal held that the plea of res judicata was properly raised but that it did not avail the plaintiffs by reason of absence of identify of subject-matter, cause of action and parties. That court having so held, it is evident that the conclusion that rightly followed, then was a dismissal of the plaintiff’s appeal. In regard to the counterclaim to which the two remaining issues related, the Court of Appeal, by the leading judgment delivered by Ubaezonu, JCA, correctly identified the crux of the matter when the learned justice of the Court of Appeal said:

“The respondent’s case is that the appellants left the area verged Green in exhibit 5 which was granted to them and which they occupy as customary tenants, broke and entered another portion (verged Red in Exhibit 5) which was not granted to them and committed diverse acts of damage therein. If this is the correct position, the respondent’s cross-appeal shall succeed and they shall get damages for trespass. If on the other hand, the appellants did not go outside the area in respect of which the respondents alleged that they are customary tenants, then their own appeal will succeed, and the order for injunction shall be lifted.”

The Court of Appeal adverted to the evidence of the seventh defence witness who said:

“Alawe Akesan granted land to one Ikuyeye to farm land (sic: and?) he was the first person to approach him for the grant of the farmland for farming. It is the land now in dispute that he gave to Ikuyeye was about 50 acres. It is the land in dispute that is about 50 acres. The land granted to Ikuyeye by Alawe Akesan upon which Ikuyeye was paying tribute as a customary tenant yearly was a grant as a customary tenant.”

The Court of Appeal being of the view that that piece of evidence had inflicted an irreparable damage on the defendant’s case in so far as the claim in trespass was concerned, concluded that the High Court was right in holding that the plaintiffs could not have been liable in trespass, but was wrong in restraining the plaintiffs from entering the land.

The issues in these appeal and cross-appeal from the decision of the Court of Appeal now fall within a narrow compass, since the plaintiffs are not challenging the opinion of the Court of Appeal that the plea of estoppel was rightly rejected by the trial court. On this appeal, the defendants are the appellants and cross-respondents while the plaintiffs are the respondents and cross-appellants, but it is convenient to continue to refer to them, respectively as defendants and plaintiffs.

The substance of the defendant’s appeal is that the Court of Appeal was wrong in confirming the erroneous view of the trial judge that the defendant’s case was predicated on a customary tenancy of the plaintiffs and in using the evidence of the seventh defence witness to justify such confirmation. The plaintiffs, for their part, by their cross-appeal, took the solitary and entirely fresh point, not taken in the court below but permitted to be canvassed on this cross-appeal consequent upon leave granted to that effect that the counterclaim was misconceived and incompetent. Since if the cross-appeal succeeds, the counterclaim would be struck out and the defendant’s appeal would have become a mere academic exercise, it is expedient to consider the cross-appeal first.