Jerome Adisa Enilolobo V. Zacheus Adebajo Adegbesan (2000)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A. 

The defendant (hereinafter referred to as the appellant) appealed against the judgment of the court below (coram Olorunnimbe J.) in suit No.ID/429/83 which was delivered on 23rd June, 1989. In the suit, the plaintiff (hereinafter referred to as the respondent/cross-appellant) had claimed the following reliefs:

(a) The sum of N20,000.00 being special and general damages for trespass committed by the defendant by himself and his agents on or about the 28th of December, 1981 when they wrongfully broke and entered on the plaintiff’s land at Alhaji Adebambo Street, Dopemu, Agege and caused substantial part of the plaintiff’s house on the said land to be demolished.

(b) An injunction restraining the defendant his servants and privies from any further trespass on the plaintiff’s aforesaid land or in any way disturbing or interfering with the plaintiff’s peaceful possession and enjoyment thereof.

Both parties, with the leave of the court, filed and exchanged amended pleadings. At the conclusion of evidence and upon taking the addresses of counsel, the learned trial Judge, in a reserved judgment found for the plaintiff/respondent. In the concluding part of the judgment he said inter alia:

“I accept the evidence of the plaintiff that he was in possession and that the defendant unlawfully went on his land in dispute and thereby disturbed his possession. A slight interference is sufficient to prove trespass. Indeed, the defendant admitted this much.

I found him liable…

From the facts and circumstances of this case, I shall award damages in the sum of N1,000.00 to the plaintiff…

I therefore grant an order of perpetual injunction restraining the defendant by his servants, agents and privies from committing, further acts of trespass on the plaintiff’s property situate, lying and being at Alhaji Adebambo Street, Magbon Area, Dopemu, Agege which is delineated in the survey plan attached to the Deed of Conveyance dated 29th December, 1973 and registered as No. 97 at page 97 on Volume 1442 of the Register of Deeds kept at Lagos Land Registry.”

Being dissatisfied with the said decision, the defendant entered two notices of appeal dated 11th July, 1989 and 24th July, 1989 respectively. He however, abandoned the notice of appeal dated 11th July, 1989. Distilled from the three grounds of appeal incorporated into the notice of appeal dated 24th July, 1989 are three issues which, as set out in the appellant’s brief of argument are:

(a) Whether considering the evidence of the parties and the finding of the learned trial Judge that the plaintiff failed to discharge the burden of proof as to the pleaded trespass against the defendant, the case of the plaintiff ought not to have been dismissed and that the non-dismissal has occasioned miscarriage of justice.

(b) Whether the defendant whose possession of the disputed land was prior in time to that of the plaintiff can be accused of trespass without a proper finding by the learned trial Judge as to which of the two rival claimants to possession (plaintiff or defendant) has a better title to the land in dispute.

(c) Whether on the totality of the evidence adduced by the parties the weight of the imaginary scale in Mogaji v. Odofin (1978) 4 SC 91 tilts in favour of the plaintiff.

The plaintiff also cross-appealed against the decision as to award of special damages. He incorporated into the Notice of cross-appeal three grounds of appeal. He identified three issues as arising for determination in both the appeal and cross-appeal: they are: