S. B. Fashanu V. M.a. Adekoya (1974) LLJR-SC

S. B. Fashanu V. M.a. Adekoya (1974)

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The principal issues in this appeal are issues of fact. The plaintiff, now appellant, sued the respondent, as defendant, on a writ endorsed for 100 pounds damages for trespass committed by the defendant on the plaintiff’s land at Ajoke Dosumu Street, Surulere, and a perpetual injunction against the defendant restraining him from a continuation or repetition of such trespass. The property in dispute is situated as stated by the plaintiff on his writ and it is not seriously disputed by any of the parties that the land on which the building stood was originally owned by the Oloto Chieftaincy Family and that by a series of acts in law the plaintiff became the owner of the land by virtue of a Deed of Conveyance duly registered according to law. It was also the case of the plaintiff that after his purchase of the land he caused an allotment plan of the entire land to be prepared and approved and that the defendant later unlawfully entered upon a portion of the said land.

The defendant filed a statement of defence and that statement contained the allegation later found to be true, that an original allotment plan, No. LD. 61, prepared on behalf of the plaintiff, was altered by the Town Planning Authorities and that as a result of this the plaintiff caused another allotment plan to be made. The new allotment plan was No. TP. 33 and was duly approved by the Town Planning Authorities. An inevitable consequence of this, however, was that the several plots overlapped each other on the boundaries. The defence contends that plots No. 6 and 7 in the earlier allotment plan became eventually vested in one Joseph A. Adebayo Browne and that the plaintiff sold to the defendant plot No. 25 in the new allotment plan for 400 pounds, from which he was paid a part-payment of 110 pounds. Paragraph 9 of the defendant’s statement of defence reads as follows:

“9.   When the plaintiff sold to one J. B. Atunrase the said plot No. 25 as well as plot No. 26 of the said Allotment Plan No. T.P.33 the defendant demanded from the plaintiff the return of his said deposit of 110 pounds but the plaintiff agreed to sell in exchange and did sell for the sum of 700 pounds plot 17 of the said Allotment Plan No. TP 33 to the defendant and put the defendant into possession thereof and assisted the defendant in getting John  Adolphus Adebayo Browne to agree to sell and who in fact sold to the defendant the portion of land which overlaps between the plots Nos. 6 and 7 of the Allotment Plan No. LD. 61 and Plot No. 17 of the new Allotment Plan No. LD. 61 and Plot No. 17 of the new Allotment Plan No. T. P. 33.”

The statement of defence finally avers that by virtue of these facts, the defendant has been in possession of the land he occupied and that he had “erected buildings on the said land which cost him substantial sums of money”.
At the trial, the ownership of the entire land on which the portion in dispute formed part, was not in dispute, “all agreed that the plaintiff owned all of the land”. There was evidence that as a result of the plaintiff’s allotment plan being altered by the Town Planning Authorities and the preparation of a new allotment plan, there was a great deal of confusion among his purchasers due to the overlapping on each other of some of the plots. The old Allotment Plan No. LD. 61 was produced in evidence as Exhibit G and the new one, No. TP. 33, as Exhibit G1. the plan of the entire plaintiff’s land was also produced and admitted as Exhibit A. Concerning the confusion in the boundaries of the several plots, Mr. Body Lawson, a licensed surveyor, testifying on behalf of the plaintiff, stated thus:-

“The plaintiff has sold to Mr. Browne the area edged brown on Exhibit A. Plot 17 on Exhibit G1 is part of the area edged brown on Exhibit G. What is left of plot 17 is not the complete original plot 17. The portion left is about two thirds of the plot and is  2026 square feet.

RE:-EXAMINATION: part of plot 7 on Exhibit G became part of plot 17 on Exhibit G1. Part of plot 6 became part of plot 17. The plots on the Exhibit G1 are smaller than those on Exhibit G.”

The plaintiff gave evidence to the effect that the old plots Nos. 6 and 7 had been sold by him and that indeed on the new plan Exhibit G1 they fell within a portion of the new plot No. 17. He stated that in any case he did not sell plot No.17 to the defendant nor at any time agreed to do so. He stated, however, that whilst he was in Ibadan some time in 1966 he came down to Lagos on the invitation of his sister to find that the defendant has entered on the land within the new plot No. 17 and was preparing to erect a building. He caused written notices of warning to be sent to the defendant and served those notices on the defendant and this, apart from his own oral warnings to him. In the course of his evidence on this point, the plaintiff testified as follows:-

“I promised to sell plot 25 to one Reuben Adebambo, I received from him 110 pounds as part payment. I gave him a temporary receipt. Somebody else entered upon plot 25. I offered plot 15 to him. He bought it and paid the balance. I conveyed it to him. He has built thereon. The sale was before 1966. I never promised to sell plot 17 either to the defendant or to Adebambo, i. e. my portion of plot 17. I took no money from either of them in respect of the plot. Abosede Anike Fashanu is my wife – the defendant spoke to her about the land at Ibadan in my house. He asked her to persuade me to sell. He said he had bought part of plot 17 and wanted me to sell my portion. The defendant has already built on the land then. It was after I had written to him and before I received Exhibit K.”

The plaintiff’s wife confirmed his testimony that the defendant asked him (plaintiff) to sell plot No. 17 to him but that the plaintiff refused to do so. The defendant also gave evidence at the trial. He testified in part thus;-

“I know the plaintiff. I met him for the first time early in 1962. In June, 1963, I met him at the opening ceremony of Mr. & Mrs. Abdul’s house built on plaintiff’s layout. Mrs. Abdul is my sister. I asked my brother to ask him to sell one plot to me. I gave my brother 400 pounds for the plot. Mr. brother is Chief R.O. Adebambo. In consequence of the instruction my brother gave me Exhibit N (issued for 110 pounds). I was later offered plot 17 in lieu of plot 25 which was to be sold to me. My brother asked me to take possession and I built on the land.
I took possession in 1965. I completed the building in June 1966. I personally delivered an invitation to the plaintiff at Ibadan for the housewarming which he did not attend.”

The defence did not give any evidence of a concluded contract of sale, but in continuation of his evidence, the defendant stated as follows:-

“Later I took a bottle of schnapps to him at his house at Ibadan. We all drank after he had poured libation. He, his wife, P.W.2, and I were there. He agreed to my building on the land, I spoke to him before I started building on the land. He told me the price was 450 pounds. I offered the balance to him before June, 1966, but he refused to take it. He said he would not accept 450; although it was the usual price he wanted more. I agreed to give him 500 pounds. He said it was not enough. I have two buildings on Exhibit G. My sister bought plot 16. The front part of plot 17 (facing the road) I bought from Mr. Browne, i.e. the portion edged brown. The 2 buildings cost me 12,000 at the time. Part of them is on part of plot 16 which I obtained from my sister.”

The defendant also called as a witness his relation Reuben Adebambo who testified to paying a sum of 110 to the plaintiff as part-payment for plot No. 25 in the new allotment but that later, as someone else went upon plot No. 25, the plaintiff agreed to exchange that plot for No. 17 which his relation, the defendant, now occupied. Evidence to the same effect was given by another defence witness, Ganiyu Adeyemi Abdul.

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In a reserved judgment, the learned trial Judge dismissed the plaintiff’s case with costs. At the beginning of his judgment he directed himself thus;-

“The defence is that plaintiff conceded possession of the land to him under an agreement for the sale thereof. The plaintiff’s title to the land is not in dispute. What is seriously contested is whether there ever was an agreement for the sale of the land in dispute.”

The learned trial Judge extensively reviewed the evidence in the case and found that in the way described in the statement of claim the plaintiff was the owner of a large piece of land on which the portion in dispute is a part. He then  found as a fact that the defendant had indeed erected buildings on a portion of the land within Plot No.17 as well as the whole of plot No.16 which he had acquired from  his relation Mrs. Abdul. The learned trial Judge then directed himself as follows with respect to the claim of the plaintiff :-

“Trespass to land consists in any unjustifiable intrusion by one person upon land in the possession of another. Trespass is an injury to a possessory right; and unlawful interference with the possession of land. The matter for determination is whether the defendant unlawfully interfered with plaintiff’s possession of the land in dispute, i.e. his 2/3 portion of plot 17. All plot numbers hereafter refer to the new layout plan No. TP. 33.”

After directing himself in this way, the learned trial Judge summed up the defendant’s case and, considering it against the background of the case of the plaintiff, he observed thus:-

“When the sale of plot 25 did not materialise the two defence witnesses’ testimony is that the deposit was appropriated to the agreement in respect of plot 17. The plaintiff’s conflicting evidence is that the 110 pounds was appropriated to the agreement in respect of plot 15. He denies any agreement or negotiation in respect of plot 17. On all important issues I find the evidence of the two witnesses for the defence preferable to that of the plaintiff which I must reject. The plaintiff’s organization of the sales of his allotment plots was untidy, haphazard and scandalously unbusinesslike. He sold plot 25 to two different purchasers, namely Atunrase and the defendant through D.W.1 and D.W.2.”

The learned trial Judge then embarked on an exhaustive criticism of the plaintiff’s conduct of his affairs and with respect to the sale of various plots of land and his performances in the witness box. Some comments on the defence evidence follow and the learned trial Judge fairly condemned the imprudent manner in which the defendant – a chartered accountant – had acted throughout the entire transaction. In continuation of this the learned trial Judge observed as follows:-

“One is familiar with some cases in which possession is conceded to the purchaser by the seller before completion. It is not a prudent practice but vendors and purchasers of land do not always take the precaution which ordinary prudence dictates. Our land law confirms this fact. Still on the material before me I am unable to lean away from the belief that the plaintiff allowed the deposit of  110 pounds for plot 25 to be appropriated to  the agreement for the sale of plot 17; furthermore, he agreed that the defendant should take possession of the land in dispute. By this conduct over the years the  plaintiff reinforces this conclusion. Even if the plaintiff had not accepted the deposit, as he in fact did, it would be difficult to find for him.”

The learned trial Judge then, accepting this evidence of the defendant that the plaintiff indeed celebrated the completion of the buildings with him, the defendant, concluded that “the plaintiff waived his rights to sue the defendant for trespass”.

The plaintiff has appealed to this Court against that judgment and has complained that the judgment of the learned trial Judge was not supported by the weight of evidence. Learned counsel for the defendant vehemently resisted the appeal and submitted that the judgment accords with the evidence which the learned trial Judge had rightly accepted.

We did say earlier on in this judgment that this case resolves itself entirely on its facts. The appeal before us clearly attacks the findings of facts and seriously challenges the judgment in an area which is only narrowly open to a Court of Appeal. The appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a tribunal of trial and a Court of Appeal would only interfere with the performance of that exercise if the trial court has made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusion from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.

The parties gave evidence and called witnesses and indeed there was on each side a great deal of hard swearing. Undoubtedly, the duty of the court in ascertaining the truth in those circumstance is all but easy and the best logic may be as availing to one of the parties as it is to the other. But there was produced by both  parties a large body of documentary evidence containing a number of letters and other documents and, as argued by learned counsel for the plaintiff, it is the duty of the learned trial Judge in a case like the present to test the probability of the case of either of the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character.

Admittedly, some 20 documents were produced in evidence by the parties, Exhibits A, G, G1 and Q being plans and Exhibits B, C, D, E and F being conveyances to and/or by one or the other of the parties concerned. The plaintiff’s case is that he never at any time sold to the defendant his own portion of plot No. 17 in the new allotment plan Exhibit G1 and that in February, 1966, in consequence of information he received from his relation, he came down to the land and found workmen of the defendant working on the land and that he thereafter warned the defendant or made a report to the police. In support of this, the plaintiff produced an extract of the police station diary of the 25th February, 1966 – Exhibit H. That Exhibit reads thus:-

“Land Trespass: – One Saka Fashanu (m) of SW8/964  Liberty Stadium Road, Ibadan, came to the station and reported that today at about 12.00 hours he met some people digging foundation on his land without his permission.

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Action: – P. C. 20313 Ibukun Adedoyin was sent to invite the people to the station, but the people refused to come, then the complainant was advised to take civil action and to keep perfect peace.

John Alile 5592.”

The learned trial Judge said of this report that it is as amazing as the police action thereon and that although the defendant defied the report, the plaintiff did not prosecute the defendant for same or take any action against him for some five years thereafter. It is difficult to appreciate the amazing portion of Exhibit  H but, clearly, the comments of the learned trial Judge overlooked Exhibit J – a letter dated the 14th March, 1966, emanating from the plaintiff’s solicitor (Mr. S. O. Abudu of Messrs. Abudu, Olowu & Co.) to the defendant confirming the plaintiff’s experience on his visiting the land less than 30 days before and warning the defendant off the land. That was in March 1966 and no reply was recorded as having been received from the defendant to this letter. On the 29th March, 1967, however, the defendant caused a letter to be written by a solicitor, Mr. Obe, from Ibadan to Mr. S.O. Abudu on behalf of the plaintiff. The letter was admitted in evidence as Exhibit K. In the course of his evidence the defendant denied the receipt of Mr. Abudu’s previous letter, Exhibit J, of the 14th March, 1966. That denial is clearly a lie for he could not have known that Mr. Abudu was the plaintiff’s solicitor unless he had received Exhibit J. The letter, Exhibit K, reads in full as follows:-

“Mr. S. O. O. Abudu,
126/128, Nnamdi Azikiwe Street,

Dear Sir,

Plot No 16 at Ajoke Dosumu Street
Surulere Lagos: Offer of 500

I am acting on the instructions of my client Mr. M. A. Adekoya of Western Nigeria Marketing Board, Ibadan.

I  understand your client Mr. A. B. Fashanu has agreed to sell a portion of the above plot to my client and that negotiation had been going on for some time between you on behalf of your client and my client as to the purchase price of the portion of the said plot of land. My client made an offer of 500 pounds in full settlement for the purchase of the said portion of land and the 500 pounds was deposited with his sister Mrs. Abdul but up till now your client has not withdrawn the money.

I must make it clear to you that the offer of 500 pounds is very generous and reasonable in that the amount paid for a full plot in the layout was 400 pounds and my client’s relations bought four plots from the layout from your client.

Moreover my client paid certain amount to Mr. Browne who was the owner of a large portion of the plot before he could surrender his interest on the land to my client and it would be inequitable that your client should demand 1,000 pounds also on the same plot.

Will you please bring to the notice of your client the contents of this letter and that the 500 pounds deposited with my client’s sister is still available for collection or if you so desire the money will be paid directly to you from this office.

Your immediate action on this matter will be appreciated.”

In Exhibit K, the defendant’s solicitor made no reference whatsoever to Exhibit J yet it was that letter, i.e Exhibit J, that told of the plaintiff’s unwillingness to sell the land to anybody and warned the defendant of the consequences of continuing in trespass. Besides, the plaintiff testified that the amount of 110 pounds paid to him by the defendant’s sister, Mrs. Abdul, was in respect of a different transaction, the learned trial Judge did not believe him but the letter Exhibit K shows clearly that the defendant was at the date of it making a  new offer for the purchase of plot No. 17 and was offering to pay the full price of 500 pounds and did not, in that letter, make any reference whatsoever to the payment of a deposit of 110 pounds. But the fact remains that neither of the temporary receipts Exhibit M and N was issued in favour of the defendant and the onus always rests on the defendant to establish that either was issued in his favour. In the course of his judgment, the learned trial Judge observed, with reference to the negotiation for plot No. 17 and the price to be paid for that plot, as follow :-

“The negotiation for plot 17 was in the same year as that in which plots 14 and 15 were sold to D.W.1 and D.W.2 for 450 pounds each. The  evidence that the agreed price was 450 pounds for plot 17 is not unworthy of credence. The defendant subsequently renegotiated the price because of plaintiff’s intransigence.”

This finding has clearly left unexplained the defendant’s letter of the 26th October, 1967, and it contents. That letter, admitted in evidence as Exhibit L, reads as follows:-

“Mr. S. B. Fashanu,
3, Matthew Street,

Dear Mr. Fashanu,

I refer to our discussion of Saturday 24th October, 1970, at 3 p. m when we accidentally met at National Bank Headquarters Building, 82/86 Yakubu Gowon Street, Lagos, on my way to attend the Annual General Meeting of the Bank.

2.   At that discussion, I briefly recalled our negotiation of December 1968 when we sought to reach an accord over the price of plot 17 of Fashanu Layout, Surulere which I purchased from Mr. Browne and on which I have erected two buildings. A portion of this land encroached upon your own. That was of course our second negotiation. The first was in 1966 when I offered to pay 500 pounds. In 1967 my brother-in-law offered to add 200 pounds to make 700 pounds. You refused these two offers. In December, 1968, we also met on a Sunday when we had a 4 hour discussion in Mr. Abdul’s house. I then offered to pay 800 pounds which you also refused.

3.   In our discussion of last Saturday, we agreed to resume negotiation either by letter or by open discussion. We then exchanged our addresses and each of us agreed to write the other. As I have always agreed to negotiate perhaps if you can give me your offer, we shall be able to have a basis for negotiation. I hope on this third occasion we may amicably agree on a price provided that your offer is reasonable. If this then happens, I may be able to indicate a date on which I may be able to pay the price and you will then sign the conveyance.

4.  Perhaps you will be good enough to let me hear from you in due course.”

The contents of Exhibit L belie the suggestions that the plaintiff did nothing in the years between. The defendant himself testified that throughout that period he and other members of his family were trying their best to woo the plaintiff to agree to sell plot 17 at a price they wanted. The plaintiff would not agree. The defendant had already built on the land and the finding of the learned trial Judge that the plaintiff continued to be intransigent on account of his strategy of pressurizing the defendant into a position of helplessness, is as consistent with those facts as a finding that the defendant, as well as other members of his family, were holding down the plaintiff by their entreaties over their own disadvantageous bargaining position. In such a situation where there is but the oath or one against the oath of the other, perhaps it is not unwise to have recourse to other parts of the res gesta  to approach a conclusion. The defendant’s letter, Exhibit K, without doubt suggested these entreaties and was more than anything else a more reliable piece of evidence. We cannot agree with the inference which the learned trial Judge had drawn on this aspect of the case.

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Besides all this, the finding by the learned trial Judge that the plaintiff was tendentiously reticent over his claims is disproved by the letter dated the 23rd May, 1967, admitted in evidence as Exhibit P and written by the plaintiff’s solicitor. Mr. Abudu, to the defendant’s solicitor, Mr. Obe, in reply to his own letter Exhibit K. This was long before the defendant wrote the letter Exhibit L and the letter Exhibit P reads thus:-

“G. L. Obe, Esq.,
Barrister & Solicitor,
P. O. Box 799,

Dear Sir,

RE: PLOT No.17 Ajoke Dosunmu  Street, Surulere

We have received your letters dated 29th March, 1967, on plots 16 and 17 and we take it that you wanted to refer to plot No.17. We are sorry for the delay to reply. This was because of the difficulty of getting in touch with Mr. Fashanu who is based in Ibadan.
His last instructions were that we should take action against your client Mr. M. A. Adekoya for (a) declaration of title (b) 50 pounds damages for trespass (c) possession and (d) perpetual injunction to restrain him from further trespass.

Your client may not have informed you of efforts made by our client to obstruct him from excavating the land for building. In spite of reports to police, notices pasted on the blocks before foundation was laid and physical objection by our client and others, your client’s agents built upon the land. It is presumed that he is prepared for the natural consequences of his act.

Assuming that a plot of land is sold for 20 pounds our client is not bound to sell the plot which he earmarked for specific purpose. The undersigned had put a personal touch into the matter and that is why there is room for negotiation. It is not our intention to promote litigation against our neighbours or against anyone, if there is chance for settlement. We do not for that matter intend to encourage anyone who takes liberty for licence to trample on others’ rights.

Mr. Fashanu may call to see us in a few days time, but we have no idea if he is willing to give up the plot of land on the basis of the assumption of your client that he is being chivalrous by his offer. A case as this is good for a test.”

The learned trial Judge made a passing reference to Exhibit P in the course of his judgment but he said nothing about its contents throughout that judgment. He said that for some five years after Exhibit H (25th February, 1966) the plaintiff did nothing to assert his ownership of the land in dispute. But Exhibit P shows that as early as the date on which the plaintiff warned the defendant of his acts of trespass and demonstrated to him his readiness to go to law, he had written the letter Exhibit P. Thereafter, the manoeuvres to which we had referred in this judgment certainly took place. Exhibit L came in on the 26th October, 1970, from the defendant and seven months thereafter the present proceedings were begun.

Learned counsel for the defendant submitted before us that the plaintiff has the onus of proving his case and that where he fails to get the appropriate findings relevant to the reliefs he had sought he must fail. So be it. Learned counsel referred us to a number of legal authorities on this rather elementary point. It is part of the alphabet of his study to any lawyer. He would argue, and indeed argued, that as a Court of Appeal we should not disturb the findings of facts by a trial court. All the authorities on which he relied, however, preserve the right of a Court of Appeal to intervene in  the circumstances earlier on described by us. We are not in any doubt that the main findings upon which the plaintiff’s case was dismissed were based on a mistaken view of those facts and an inadequate use of the written evidence as a rigid yard-stick for testing the veracity of parties, the credibility of the evidence, both oral and documentary on which they both rely and in respect of which they both had sworn.

The plaintiff clearly established (and this was found in his favour) that at all material times he was the owner of plot  No. 17 in the allotment plan No. TP. 33 produced  in evidence as Exhibit G1. The plaintiff established that the defendant went on the plot and erected a building thereon without paying him for the land. The defendant established that he was always wanting to buy plot No.17 from the plaintiff and that the plaintiff would not agree to the purchase price he had offered. Between these points a large deal lay in dispute but we are not in any doubt that the letters of the defendant belie his evidence that at any time the plaintiff  consented to sell the plot No. 17 to him for the price of 500 or any other price. He had no documents with him concerning the sale to him of plot No. 17 and his evidence about the payment of 110 as deposit for the plot (by receipt Exhibit M) is as possible as it is tenuous. Exhibit M says nothing of the sort. It was never a sale by native law and custom. The title of the plaintiff himself is a fee simple estate by virtue of the conveyance Exhibit B. The relevant statutes governing sales of land of this type of tenure would certainly require some documentary evidence in evidence of his sale and the defendant obviously cannot produce any. It follows that the plaintiff must succeed in his action for damages for trespass and for an injunction and that his case was wrongly dismissed.

No figures of damages for trespass were proved by the plaintiff in the course of his evidence and his damages must be assessed at a nominal amount, an amount like N50.

The appeal succeeds and it is allowed. The judgment of the High Court, Lagos, in Suit No. LD/351/71, including the order for costs, is set aside. We make the following orders:-

(i)    We enter judgment for the plaintiff against the defendant for  N50 damages for trespass and a perpetual injunction in the terms of the plaintiff’s writ.

(ii)   This shall be the judgment of the Court.

We also order that the defendant shall pay to the plaintiff the costs of these proceedings fixed in this Court at N130 and in the court below at N126.

Other Citation: (1974) LCN/1912(SC)

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