Mrs. Florence O. Carrena & Anor V. Chief Akinlase & 11 Ors V Chief Gafaru Arowolo (2008)
LAWGLOBAL HUB Lead Judgment Report
F.F. TABAI, JSC
This action was commenced at the Lagos Division of the High Court of Lagos State in Suit No. LD/1093/80 by the writ of summons dated 28th of August 1980. The Plaintiff was Mr. E.A. Carrena. He died and was, by order of court, substituted with the present Plaintiffs/Appellants. The claim was against Chief Akinlase and 11 others. The reliefs claimed were:
(i) A Declaration that they are entitled to the property situate at OJOKORO MILE (16V2 Abule-Egba) Agege-Abeokuta Road in the Lagos State and covered by a Deed of Conveyance known as No.38 in Volume 987 in the Lagos
State Registry of Land.
(ii) N2,041.50k (Two thousand and forty-one Naira, Fifty Kobo) Damages for trespass.
(iii) Perpetual Injunction against the Defendant, his agents and servants with respect to the said land.
Pleadings were settled and the matter eventually set down for hearing on the 24th of September 1987.
On the 24th September 1987 both the Defendants and their counsel were absent. No explanation was offered for their absence. The Plaintiffs/Appellants commenced their case. One of the Plaintiffs and two other witnesses testified for the Plaintiffs’ case. The evidence includes Exhibit “A” the Plaintiffs’ Plan and Exhibit “B” a Deed of Conveyance. In his judgment on the 13/11/89 the learned trial judge Fernandez J granted all the reliefs claimed.
Chief Jimoh Arowolo (now deceased) who was not a party was aggrieved by the judgment and acting for himself and as Head/Representative of Olarokun family of Oko-Oba, Orile-Agege appealed to the Court of Appeal. He sought and was granted leave to be joined as a party and to prosecute the appeal as an interested party. The parties, through their counsel, filed and exchanged their briefs of argument. The appeal was heard. In its judgment on the 24th of November 1994 the appeal was dismissed.
Chief Jimoh Arowolo was not satisfied and went on further appeal to this Court in Appeal No. SC.65/1965.
While the appeal to the Supreme Court was still pending, Chief Jimoh Arowolo in Suit No. ID/3131/94 instituted a fresh action against the Plaintiffs/Respondents over the same land claiming the following reliefs.
(i) Declaration that the Plaintiff is entitled to the customary right of occupancy to all that piece or parcel of land lying and situate at Oko-Oba/Abule Egba in Orile Agege in Ikeja Division of Lagos State particularly delineated and verged green which land forms a portion of vast area of land owned by Olarokun family and covered by Plan No. JO/23/94 drawn by Olushola Ogunsanya and dated 28/12/94.
(ii) N50,000.00 from the defendants being damages for trespass on the said land.
(iii) An order of Perpetual Injunction restraining the defendants and their agents, privies and servants from committing further acts of trespass on the plaintiffs’ land particulars of which are set out in claim I above.
(iv) A Declaration that the Plaintiff is entitled to possession of the land verged green with Plan No. JO/23/94 dated 28/12/94.
On the 22nd of September 1995 the Plaintiffs/Appellants herein who were the Plaintiffs/Respondents in SC.65/1995 brought an application in this Court for an order dismissing the appeal for want of diligent prosecution. This motion was taken and granted on the 7th of March 1996. The appeal was accordingly struck out. Thus Suit No. LD/1093/80 which was initiated on the 28th of August 1980 came to its end on the 6th of March 1996 in SC.65/1995. The rights and afortiori liabilities of the parties therein over the land in dispute were thus finally determined.
However, by his motion dated 25th of January 1999 Chief Jimoh Arowolo brought an application praying for:-
“1. An order Staying Execution of the Judgment of Fernandez J delivered on 13th of November 1987.
An order restraining the Plaintiffs/Respondents from taking possession of the land in dispute pursuant to the judgment of Fernandez J dated 13th November 1987 pending the determination of Suit No. ID/3131/94.
And order setting aside the Writ of Execution and Writ of Fifa against the Appellants in this suit.”
The application was supported by a 12 paragraph affidavit. In response the Plaintiffs/Appellants as Respondents therein filed a 29 paragraph counter-affidavit. On the 2nd of March 2000 in a considered ruling, the learned trial judge, Moni Fafiade J dismissed the application in its entirety, concluding that the Plaintiffs/Respondents were at liberty to enforce their judgment.
He was aggrieved by that ruling and went on appeal to the court below. By its judgment on the 16th of July 2001 the court below allowed the appeal. The court per Galadima, JCA concluded in the following terms.
“In the result this appeal, in my view, is meritorious, it succeeds. The writ of possession and fifa issued against the Appellants and also ruling of the lower court of 2/3/2000 are hereby set aside….”
The Plaintiffs were dissatisfied with this judgment and have come on appeal to this Court. The parties filed and exchanged their briefs of argument. The Appellants’ brief was prepared by Alhaja R.O. Ayoola (Mrs). And the lst-3rd Respondents’brief was prepared by Babatunde Kasunmu Esq.
The Appellants formulated two issues for determination namely:
Whether the Court of Appeal was correct in holding that the Appellants “have no judgment” which is enforceable against the Respondents, the judgment being declaratory.
Whether the Court of Appeal was correct in holding that the proceedings in Suit No. ID/3131/94 by the Appellant/ Respondent/Cross Appellant) before Justice Akande were pending against the Respondents Plaintiffs/Appellants and therefore justified to stay the enforcement of the judgment in LD/1093/80.
On their part the 1st – 3rd Respondents formulated the following three issues:
Whether the Court of Appeal was right in holding that the Appellants have no enforceable judgment against the Respondents.
Whether a trial Court can issue a writ of possession where same was not claimed nor granted by the court.
Whether the Court of Appeal was right in holding that the lower court in Suit No. LD/1093/80 should have stayed proceedings pending judgment in suit ID/3131/94.
In the Appellants’ brief of argument learned counsel Mrs. R.O. Ayoola, made the following submissions. On the first issue it was her submission that in view of the three reliefs sought and granted the judgment is not merely declaratory but also executory. Learned counsel referred to Okoya & ors v. Santili & ors (1990) 2 NWLR (Part 131) 172 and Govt. of Gongola State v. Tukur (1989) 4 NWLR (Part 117) 597 for the definition of executory and declaratory judgments. She referred to the various steps taken by the Defendants/Appellants/Respondents to stay execution of the judgment of the trial court and argued that they, by the steps taken, demonstrated their concession that the judgment is not just declaratory but also executory. It was counsel’s further submission that although possession was not specifically claimed the trial court had the right to order same.
On the second issue of whether in view of the pending proceedings in Suit No. ID/3131/94 the Court of Appeal was justified to stay the enforcement of the judgment in this suit, learned counsel referred to the insistence of the Respondents of their not being bound by the judgment in Suit LD/1093/80 and argued that they cannot be allowed to blow hot and cold at the same time. She referred to the finding of the learned trial judge to the effect that there was no proceeding pending between the parties in this appeal and urged that the finding be affirmed. In her view it would be unjust and unreasonable to stay the execution of the judgment in LD/1093/80 pending the determination of Suit No. ID/3131/94, contending that the latter is a relitigation of the case decided in the former suit and therefore an abuse of the judicial process. On the contention that Suit No. ID/3131/94 constitutes an abuse of the court’s process, learned counsel referred to NV Scheep v. MV “S Araz (2001) FWLR (Part 34) 543, (2001) 1 SCM, 140; Amaefule v. State (1988) 2 NWLR (Part 75) 156 at 177 and Okafor v A.G. Anambra State (1991) 6 NWLR (Part 200) 659 at 681. Counsel urged in conclusion that the appeal be allowed.
For the Defendants/Respondents, Babatunde Kasunmu Esq. proffered the following arguments in the Respondents’ Brief. With respect to their first issue, learned counsel submitted that the judgment of Fernandez J of the 13th November, 1987 was merely declaratory and cannot be enforced by the issuance of a writ of possession. In support of this submission learned counsel cited Akunnia v. A.G. Anambra State & ors (1977) NSCC 256 at 262; Okoya v. Santili (supra). It was his submission that the only executory part of the judgment is the damages for trespass awarded and that the injunction granted can only be enforced by an order of committal.
As regards the Respondents’ second issue, counsel argued that there was no claim for possession and none granted and by granting the issuance of writ of possession, the trial court was only granting a relief not covered by the claim. According to counsel, the Respondents did not at any time give an undertaking to give up possession of the land in dispute to the Appellants. It was his submission that by granting leave to issue a writ of possession, the High Court was combining the course of action for possession and one for trespass which combination, he argued, was wrong in law.
On the Respondents’ third issue learned counsel relying on Order 2 Rule 14 of the Sheriff and Civil Process Act, Cap 407 Laws of the Federation 1990, submitted that the judgment in Suit No. LD/1093/80 ought to be stayed pending the determination of Suit No. ID/3131/94. The decision of the court below is therefore right, counsel argued, and urged that it be affirmed.
I have given a careful consideration to the issues raised and the arguments proffered by counsel for the parties. To start with, it is, I think, necessary to point out that Suit No. ID/3131/94, though between the same parties and over the same parcel of land as that in Suit No. LD/1093/80, is a separate action which appeal is not before us. I wish therefore to warn myself not to make pronouncements that would amount to a decision of that suit. I take this stance because learned counsel for the Appellant has, by implication invited us, in the course of her submissions, to hold that Suit No. ID/3131/94 is frivolous vexacious and instituted mala fide. Only the trial High Court now has the jurisdiction to make its own assessment of the suit and make pronouncements thereupon.
Let me now deliberate on the issues presented to us for determination. The first issue is whether the judgment of Fernandez J delivered on the 13th November 1987 is a declaratory judgment incapable of being enforced by the issuance of a writ of possession for the Plaintiffs. On this issue, the Court below made references to the reliefs claimed and those granted and at page 121 of the records opined:
“Clearly this judgment is declaratory. It only declares the rights of the Plaintiffs/Respondents. It merely proclaims the existence of a legal relationship. It does not seem to me to contain any specific order to be carried out by or enforced against the Defendant.
The order a party seeks may be declaratory or executory. It is said to be executory where the order merely declares the rights of the parties before the court and then proceeds to enjoin the Defendant to act in certain way. It is said to be declaratory where it merely proclaims the existence of a legal relationship, but contains no specific order to be carried out by or enforced against the Defendant. See Akunnia v A.G. Anambra State & ors (1977) NSCC p. 256 at 262…………”
Was the Court of Appeal right in the opinion expressed above in the face of the reliefs claimed and granted? On the meaning of a declaratory judgment, the Court relied on Akunnia v. A.G. Anambra State (supra) and Bassey v. Sama (1996) 6 NWLR (Part 457) 737 at 746. As respects the meaning and distinction between Declaratory judgment and Executory judgment the Court of Appeal, quite rightly, in my view, referred to and adopted the two cases. In Akunnia v. A.G. Anambra State (supra) at 262 this Court per Idigbe, JSC spoke of the meaning and distinction between Executory and Declaratory judgments in the following terms:-
“The end result of an action, whatever its nature and no matter how framed, is that the party who approaches the Court obtains the order he seeks; the order he seeks may be declaratory or executory. It is executory where the order declares the rights of the party before the court and then proceeds to enjoin the defendant to act in a certain way. It is declaratory where it merely proclaims the existence of a legal relationship, but contains no specific order to be carried out by or enforced against the defendant…”
I have at the introductory part of this judgment, reproduced the three reliefs claimed. The first relief is clearly declaratory and there is no dispute about that. But what about the second and third reliefs? In the second and third reliefs the Plaintiffs/Appellants sought orders of the Court directing the Defendants/Respondents to pay damages for trespass and a perpetual injunction restraining them from any further acts of trespass. The Court granted these reliefs in the judgment. There was the specific order for the payment of damages for trespass to be carried out by or enforced against the Defendants/Appellants/Respondents. Similarly there is the order of injunction to be carried out by or enforced against them. In my consideration, the judgment of Fernandez J on the 13th of November 1987 is not just declaratory but also executory. The court below, was, with respect therefore clearly in error when it held that the judgment was merely declaratory, containing no specific orders to be carried out by or enforced against the Defendant. It was, in addition to being declaratory also executory containing orders against the Defendants.
On this issue of whether the judgment is executory, it is also to be noted that Chief Jomoh Arowolo and those substituted for him, have, in the course of the proceedings, taken various steps to confirm that the judgment was not only declaratory but also executory. By their motion dated the 25th of January 1999 they sought orders (1) staying the execution of the judgment (2) restraining the Plaintiffs/Respondent from taking possession of the land in dispute pursuant to the judgment and (3) setting aside the Writ of Execution and Writ of Fifa against them. See also the earlier order of the Court of Appeal on the 5th of June 1990 at page 115-116 of the record. I hold in conclusion therefore that the judgment is not only declaratory but also executory and enforceable against the named Defendants therein.
This takes me to the next question of whether the judgment of the trial court in Suit No. LD/1093/80 is enforceable against the Respondents through the issuance of a Writ of Possession. On this issue, it is necessary to recall, at the risk of repetition, that Chief Jimoh Arowolo was not a defendant in the case at its inception and up to the judgment of the trial court on the 13th of November 1987. There is nothing on the record to show that the original defendants, Chief W.O. Akinlase and 11 others appealed against the judgment. May be they did. But Chief Jimoh Arowolo (now deceased) was aggrieved by the decision and in reaction thereto sought and obtained the leave of the Court to be joined as a party for the purpose of prosecuting the appeal, acting for himself and as Head/Representative of the Olarokun family of Oko-Oba Orile-Agege, Lagos. Although the application sequel to which he was joined is not in the record, it is only reasonable to presume that he was so joined upon proof through affidavit evidence in the application that he and the Olarokun family would be directly affected and bound by the final outcome of the case.
It is settled principle of law that an application by a third party or intervener for joinder can only be granted if the applicant satisfies the court (i) that his presence is necessary for the effectual adjudication of the matter (ii) that the Plaintiffs claim against the existing defendants also affects him and/or (iii) that his interest is the same as or identical with that of the existing defendants. See Okafor & ors v. Nnaife & ors (1973) 11 N.M.L.R. 245; Oyedejiakanbi (Mogaji) & anor v. Okunlola Ishola Fabunmi & anor, In Re: Yesufu Faleke (1986) 2 SC 431 at 480-481. On the reasons necessitating the joinder of a party to an action the statement of Devin J in the English case of Amon v. Raphel Tuck and Sons Ltd (1956) 1 All E.R. 273 is instructive. He said:
“The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.”
Chief Jomoh Arowolo and those who were substituted for him, for themselves and as representing the Olarokun Family of Oko-Oba Orile-Agege elected to be made a set of the Defendants/Appellants and prosecuted the case as such to its finality at the Supreme Court. They are, in the light of the principles which I have discussed above, bound by the final judgment of the case. The court below was therefore in error when it held that the Plaintiffs/Respondents therein had no judgment which is enforceable against them.
With respect to the specific question of whether the judgment of the trial court is enforceable against the Respondents through the issuance of a Writ of Possession, the opinion of the Court of Appeal is expressed at page 121 of the record as follows:
“The Plaintiffs/Respondents in the instant case have no judgment which is enforceable against the Appellant They failed to take steps to obtain judgment against the Appellants upon a Writ of Possession issued against them in the lower court If they successfully canvassed that in the lower court, they would, be able to have an enforceable judgment against them. The Plaintiffs did not have a claim for possession and the judgment of the lower court did not contain same. The learned trial judge should have therefore set aside the Writ of Possession as claimed by the Appellants in their motion of 25/1/99. By not setting aside the writ of possession, the learned trial judge was merely granting the Plaintiffs/Respondents a relief not claimed.”
Learned counsel for the Respondents proffered sustained arguments in support of the opinion of the Court below.
Here again, it is my view, with respect, that the Court of Appeal erred. The opinion above is premised on its misconception of the legal incidents of a trespasser in possession of a land which title vests in another. A person who has title over a piece of land, though not in defacto physical possession, is deemed, in the eyes of the law, to be the person in possession. This is because the law attaches possession to title and ascribed it to the person who has title. Such a possession is the legal possession which is sometimes also called constructive possession. Conversely a trespasser, though in actual physical possession of the land, is regarded in law not to be in any possession since he cannot, by his own wrongful act of trespass, acquire any possession recognised at law. This gives credence to the principle that where there are rival claimants to possession of a piece of land, the law ascribes possession to the party who has title or better title. See Aromire v Awoyemi (1972) 1 All NLR (Part 1) 101; (1972) 2 SC 1; Kareen v. Ogunde (1972) 1 SC. 182; Ayinla v. Sijuwola (1984) 1 SC NLR 410; Ekretsu v. Oyobebere (1992) 9 NWLR (Part 266) 438.
It is at this juncture necessary to draw the distinction between an action for trespass to land and one for possession. The Court of Appeal did not, with respect, appreciate the fine distinction and that accounted for its error of judgment. A claim in an action for trespass to land presupposes that the Plaintiff is in possession, actual or constructive, of the land in dispute at the time of the trespass and that the trespasser defendant cannot by the mere fact of his entry unto the land secure lawful possession. On the other hand, a claim for recovery of possession postulates that the Plaintiff is not in possession at the time of the action and that he was once in possession but is at the time of the action seeking to be restored to possession of the land. See Aromire v. Awoyeni (supra); Tijani v. Akinwunmi (1990) 1 NWLR (Part 125) 237 at 247; Ernest Nzekwu & ors v. Madam Christiana Nzekwu & ors (1989) 2 NWLR (Part 104) 373 at 391. Thus where a plaintiff claims that he has title over the land in dispute and which has always been in his possession, actual or constructive, he does not agree that the defendant has any possession cognisable in law. In such case his action lies in trespass, damages for the trespass and injunction restraining the trespass.
In Jimoh Adebakin v. Sabitiyu Odujebe (1972) 6 SC 116 at 121 this Court per Coker, JSC highlighted and applied this distinction. He said:-
“Thus it seems that the evidence accepted by the learned trial judge was that the plaintiff was always in possession before the defendant entered on the land vi et armis. If that is so, a claim for recovery of possession is inappropriate for a trespasser does not by the act of trespass secure possession in law. If the plaintiff was always so in possession then the defendant can only be liable for damages in trespass and to an order of injunction,”
The above pronouncement was cited by this Court with approval in Banjo & Anor v. Aiyekoti & Anor (1973) NSCC 184 at 192-193. The Court per Fatayi-Williams, JSC (as he then was) at page 193 added:
“The order for possession made by the learned trial judge is therefore irregular and is accordingly set aside. However if, the defendants/appellants are, in fact, still in possession of the land in dispute and the buildings therein, their possession being that of a trespasser, is unlawful and is also in breach of the order for an injunction herein confirmed.”
In my consideration the distinction between claims for damages, for trespass and claims for possession highlighted in the cases above applied with equal force in this case. Although the Statement of Claim is not in the record, it is clear from the judgment of Fernandez J that the claim was founded in title evidenced in the Deed of Conveyance Exh. “B” dated 13th of March 1954.
These two cases bring to the fore the importance of the distinction between claims for damages for trespass and claims for possession. In my view, the principle in the two cases is also applicable to the instant case. By the judgment of the trial Court on the 13th of November 1987, affirmed and confirmed by the Court of Appeal and the Supreme Court, title over the land, subject matter of this appeal, has been finally determined to vest in the Plaintiffs/Appellants. And because the law ascribes possession to the person who has title, the Plaintiffs/Appellants are, in the eyes of the law, deemed to be in possession, actual or constructive. They alone are in lawful possession and the possession is exclusively since the law does not recognise any concurrent possession by rival claimants.
For the protection of the Plaintiffs/Appellants’ title and possession of the land in dispute, there is in place a perpetual injunction against the Defendants/Respondents who have been adjudged to be trespassers. Even if they are in actual physical possession of the land in dispute, it is a possession not recognised by law. Thus if the Defendants/Respondents are still found to be in possession, they are there in continuation of the acts of trespass and for which prevention there subsists the perpetual injunction. The Plaintiffs/Appellants no longer have any duty to initiate action for possession.
In the face of the foregoing considerations, it sounds to me preposterous to suggest the filing of another action for possession. For the purpose of giving effect to the subsisting judgment over the land in dispute, the Plaintiffs/Appellants were at liberty to approach the court for issuance of a writ of possession. The Court of Appeal was therefore wrong to hold that by not setting aside the writ of possession the learned trial judge was merely granting a relief not claimed. The learned trial judge Mumi Fafiade J in dismissing the application held that the Plaintiffs/Appellants were entitled to possession and were therefore at liberty to enforce the judgment. I endorse that opinion of the trial Court in its entirety.
The result is that I also resolve the Respondents’ 2nd issue in favour of the Appellants.
The last issue is whether the Court of Appeal was right in holding that Suit No. ID/3131/94 was a pending proceeding between the parties and that pending the determination of that suit, enforcement of the judgment in LD/1093/80 should be stayed. I have earlier cautioned myself against making pronouncements that would amount to a decision of Suit No. ID/3131/94. It is a separate suit pending at the High Court and there is no appeal pertaining thereto before us. I do not therefore think that I can make pronouncements in respect thereof. It is left for the Plaintiff therein to decide what he wants to achieve by that suit.
On the specific issue of whether the suit should operate to stay the enforcement of the subsisting judgment in Suit No. LD/1093/80, my reaction is that there is no basis for that proposition. Suit No. LD/1093/80 has been finally determined with the rights and obligations of the parties clearly defined therein. Suit No. ID/3131/94 does not purport to question the validity of Suit No. LD/1093/80. It follows therefore that the execution of Suit No LD. 1093/80 cannot be contingent upon the determination of Suit No. ID/3131/94. I am not aware of any case law authority and none was cited to us in support of the proposition that a subsisting judgment in a case that has been finally determined at the Supreme Court cannot be enforced because of another suit pending at the High Court. Section 14 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990 on which the Court below and learned counsel for the Respondents relied provides.
“14 Whether any proceeding shall be pending in the Court against the holder of a previous judgment of the court by the persons against whom the judgment was given, the court may, if it appear just and reasonable to do so, stay execution of the judgment either absolutely or on such terms as it may think just until a judgment shall be given in the pending proceedings.”
It is clear from this provision that for the court to exercise its discretion to grant the stay it must appear just and reasonable to do so. I do not fancy anything that appears just and reasonable to warrant the trial court’s exercise of its discretion to grant the stay. The trial court therefore rightly refused to grant the stay. I do not also see any conceivable reason for the interference of the Court of Appeal with the discretion of the trial court.
For the foregoing reasons, I also resolve this issue in favour of the Appellants. In conclusion this appeal succeeds and is hereby allowed. The judgment of the Court of Appeal on the 16/7/2001 be and is hereby set aside. The ruling of Fafiade J of the 2nd of March 2000 be and is hereby restored.
I assess the costs of this appeal at N50,000.00 in favour of the Appellants.