Zenith Bank PLC V. Alhaji Titilayo (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of HON. JUSTICE T.A.O. OYEKAN-ABDULLAI of the Lagos State High Court delivered on the 28th day of September, 2012 wherein the Lower Court granted the claims of the Respondent including an award of N2,000,000.00 (Two Million Naira), damages for trespass on the Respondent’s property. The appellant aggrieved with the judgment filed a notice of appeal dated 24/10/2012 setting out two grounds of appeal.

The brief facts of the case between the parties are that they share the same fence at Ikota, Lekki – Epe Express Way and the Respondent alleged that the appellant was dumping refuse and waste materials on her land without her consent. She then instituted an action against the appellant claiming the following:-

(a) A DECLARATION that it is unlawful for the Defendant to enter upon, encroach and deposit without her consent its waste material on the claimant’s property situate at No. 2 Amudalat Ajuwon Close, KM 14 Lekki – Epe Express Way, Ikota, Lagos.

(b) AN ORDER of perpetual injunction restraining the Defendant, its agents, servants, privies or anyone however from entering or unlawfully depositing refuse or any other material into the claimant’s property or committing any further trespassing on claimants land.

(c) The sum of N5,000,000 (Five Million Naira) being damages for the trespass committed by the defendant on the claimant’s property.

The matter went to full trial and the judgment of the court for the Respondent is what aggrieved the appellant thus this appeal.

Appellant filed its brief dated 28/1/14 filed on the 31/1/14 but deemed on the 2/6/14 which was adopted at the hearing. The Respondent’s brief dated 5/8/14 was filed on the same date and deemed on 23/9/14. The appellant distilled 2 issues for determination as follows:

1. Whether from the totality of the evidence the learned trial Judge was not in error when she held that:

“The above excerpts show that the above facts were admitted and her (sic) unchallenged by the defendant. Facts that are admitted need no further proof. They are taken as establishing the act complained of.”

2. Whether the learned trial Judge did not err when she held as follows:

“The overwhelming video had the debris on the dividing fence between the Claimant and the Defendant showing that the Defendant’s bank to a large extent had played a prominent role in depositing their debris on the claimant’s land thereby committing an act of trespass.”

The Respondent on her part also formulated 2 issues namely:

(1) Whether the learned trial Judge correctly and properly evaluated the evidence led by the parties before arriving at her decision.

(2) Whether the trial Judge did not err when she held as follows:

“The overwhelming video had the debris on the dividing fence between the claimant and the defendant showing the defendant’s bank to a large extent had played a prominent role in disposing of their debris on the defendant’s land, thereby committing an act of trespass…”