Kopek Construction Ltd. V. Johnson Koleola Ekisola (2010)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C.

The respondent in this appeal was the plaintiff at the Ibadan High Court of Oyo State, where on 2/12/1992 he issued a writ of summons against the appellant as the defendant claiming two reliefs which were set out in his ‘Further and Further amended statement of claim’ filed on 1/12/96 thus:

“1) The sum of twenty million Naira being special and general damages for continuing trespass starting roughly from June, 1992 committed by the defendants (sic) on plaintiff’s land at Ibadan/Lagos expressway.

2) Injunction to restrain the defendants (sic), their agents, servants and assignees from continuing the said trespass.”

The parties filed and exchanged pleadings after which the suit was heard by Adeniran J. In the judgment delivered by the trial judge on 30/5/95, the claims of the plaintiff were granted in their totality. The defendant before the trial court and now appellant in this court brought an appeal against the judgment of the trial court before the court of Appeal sitting at Ibadan (hereinafter referred to as ‘the court below’).

On 25/1/2002, the Court below in its unanimous judgment affirmed the judgment of the trial court as to the claim for trespass and injunction. It however reduced the damages awarded by the trial court from twenty million naira to two million, five hundred thousand naira.

The defendant was still dissatisfied with the judgment of the court below and has come before this court on a final appeal. The plaintiff also was dissatisfied with the judgment of the court below as to the reduction of the damages awarded him by the trial court. He has also brought a cross-appeal before this court. It is convenient to refer to the parties by the description they bore before the trial court i.e. plaintiff and defendant. I shall hereafter refer to them as such. In the appellant’s brief filed on behalf of the defendant, the issues identified as arising for determination in this appeal are:

“1) whether the transfer of title and or possession to the Plaintiff/Respondent in the presence of only one witness constitutes a valid transfer of title to him under native Law and custom.

2) whether there was a valid transfer of title from the Respondent’s predecessor in title to the respondent himself.

3) whether the court of Appeal was right to hold that on the state of pleadings the parties were clear as to the identity of the land in dispute,

4) whether the court of Appeal was right in awarding damages in the sum of N2,000,000.00 as special damages against the defendant.

5) whether the Court of Appeal ought not to have awarded nominal damages as general damages (if any) against the defendant.”

In the cross-appellant’s brief filed on behalf of the plaintiff, the issues for determination in the Cross-appeal were formulated thus:

“i) whether the Court of Appeal was justified to have interfered with the award of special and general damages;