3PLR – OLUDOTUN ADEKUNLE KUKOYI AND OTHERS . V. ADIATU LADUNNI

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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OLUDOTUN ADEKUNLE KUKOYI AND OTHERS .

V.

ADIATU LADUNNI

SUPREME COURT OF NIGERIA

29TH OCTOBER, 1976.

SUIT NO. SC 201/1975

3PLR/1976/74  (SC)

OTHER CITATIONS

(1976)11 SC 245

 

BEFORE THEIR LORDSHIPS

SOWEMIMO, J.S.C.

IDIGBE, J.S.C.

OBASEKI, J.S.C.

REPRESENTATION

Chief F.R.A. Williams (with him Miss Mary Kester) – for Appellant

Alhaji M. Ole Owodunni  – for Respondents

MAIN ISSUES

Land Law – Declaration of title to land – Claim for possession – Damages for trespass – Injunction to restrain defendants from further acts of trespass – Joint claims arising from two parcels of land – Supreme Court (Civil Procedure) Rules, Cap. 211, Laws of Nigeria 1948.

MAIN JUDGEMENT

IDIGBE, J.S.C. (Delivering the Judgment of the Court):

This appeal is from the judgment of the High Court of Lagos State (Kazeem J.) dismissing the respondents claim against the appellant for declaration of title to parcels of land lying and situate at Idi Araba, Ikeja district, and known as plots 150 and 152 in Jemi-Alade Layout, striking out their claim for possession thereof, awarding in their favour the sum of N50 as general damages for trespass and restraining the appellant his servants and/or agents from further trespassing on the said plots on Jemi-Alade Layout aforesaid.

In order to appreciate the essential points taken on behalf of the appellant in this appeal, attention must be drawn to relevant portions of the statement of claim these read:

“(1)   The 1st named plaintiff is a licensed surveyor, the second a pensioner, and the third a trader

(2)     The land which is the subject matter of the suit (herein referred to as the land in dispute is that verged RED numbered Plot 152 and GREEN numbered Plot 150 on the plan No. OA1381 attached to this statement of claim and marked ‘X’.

(3)     The said land formed part of a large track of land which originally belonged to the Alatishe Family from time immemorial .

(10)   Following the demise .of.the.said .Babatunde.Jemi-Alade in 1961, his Administrators who had power to deal with his real estate sold the area verged RED on plan ‘X’ to the 1st named plaintiff under and by virtue of the Deed of Conveyance dated 22nd, July, 1968, and registered as No. 72 at page 72 in Volume 1271 at the lands Registry Lagos.

(11)   The said Administrators also sold the area verged GREEN to the 2nd and 3rd plaintiffs under and by virtue of the Deed of Conveyance dated the 10th day of April, 1968, and registered as No. 83 at page 83 in Volume 1271 at the Lands Registry Lagos.

(12)   Immediately after the sales mentioned in paragraphs 10 and 11 above the plaintiffs went into peaceful and undisturbed possession of their respective plots of land exercising maximum overt acts of ownership.

(13)   The 1st plaintiff had a sign-board bearing his name and address as owner of the plot verged RED nailed to one of the palm trees on the land;

(b)     used to clear the land periodically; and

(c)     built a fence round the plot with concrete pillar posts and barbed wire.

(14)   The 2nd and 3rd plaintiffs

(a)     had a sign-board bearing their names and address as owners of the plot verged GREEN nailed to one palm tree on the land;

(b)     moulded cement blocks on the land with a view to erecting a building thereon;

(c)     cleared the land periodically and

(d)     built a shed with corrugated iron sheets on the land.

(15)   Sometime late in December, 1968, the defendant with the assistance of some servants, agents and/or workmen removed the (sic) plaintiff’s sign-boards from the land in dispute and destroyed all the concrete posts, the shed and some of the blocks thereon

Whereupon the plaintiffs. claim. as per. their. writ of. summons”.

 

The endorsement on their writ of summons reads:

(1)     Declaration of title in fee simple ALL THAT piece or parcel of land situate and lying and being at and known as plots Nos 150 and 152 Jemi-Alade Layout, Idi-Araba, Ikeja district.

(2)     Possession of the aforesaid plots of land

(3)     £400 as special and general damages for trespass committed on the said land and

(4)     Injunction restraining the defendant, his servants, and/or agents from further trespassing on the aforesaid plots of land.

In their evidence in support of their claims, the first respondent referring to the plan (described in their pleadings as marked ‘X’ and received in evidence as) Exhibit A stated that plot 150 (edged Green thereon) is claimed by the second and third respondents and that plot 152 (edged RED thereon) belonged to him. With reference to the trespass by the appellant he testified thus:

“After purchasing the land, I was put in possession thereon by one Chief Oguniyi who is caretaker of the land, Thereafter I fenced it with barbed – wire and erected my sign- board thereon. The land was continually cleared every other month by my labour gang ………….. About Christmas 1968, the labour staff went to clear the site and they were led by Adenuga. About 11 a.m. that day, Adenuga came to tell me that he and his men were driven away from the site. As I was thinking of what to do the defendant and another person came to my house in connection with the land in dispute ……… Later I went to the land in dispute where I found that all my fence on the land had been destroyed. I also discovered that new boundary wire fence had been established along the area of plan which was considered to belong to those persons ………”

Testifying in support of their claims, the third respondent claimed that plot 150 (edged Green on Exhibit A) belongs to both the second respondent and himself. They had, since purchasing the land been in unchallenged and undisturbed pos-session of it and cleared the same of weeds periodically. They had fenced the same with barbed-wire and had deposited moulded cement blocks thereon four thousand of which (valued £134/10.) were destroyed by the appellant and his agents. On this aspect of their claim he was recorded as saying:

“I know the defendant when he came on our land (i.e. plot 150). Sometime in January, 1969, he came with thugs and destroyed our fence shed and all other things we had on the land. He was then trying to put up a building thereon……… The value of the shed we had on the land was £5. The value of the cement blocks destroyed was £134/10/- ……………..

 

After a careful review of the evidence before him and a thorough study of the various conveyances before him the learned trial Judge found against the respondents on their claim for declaration of title to the several parcels and plots of land; struck out their claim for possession of the said plots but awarded in their favour the sum of N50 as damages for trespass and made an order restraining the appellant from entering, or trespassing on, the said parcels of land. In the portion of his judgement relating to trespass the learned trial Judge made the following observations:

‘The plaintiffs claimed in the writ of summons a sum of £400 (N800) as special and general damages for trespass committed by the defendant. But in their statement of claim they claimed a total sum of £904.3.44 (N1,808.34) for items as special damages. However, the evidence adduced in support of the claims for special damages were completely at variance with their pleadings. In the circumstances, I am unable to award any amount as special damages. Since the plaintiffs however succeed in their claim for trespass, I hereby award a sum of N50 as general damages’.

 

The principal ground of appeal argued before us by learned counsel for the appellant reads:

‘The learned trial Judge erred in law in failing to dismiss the plaintiffs’ claim on the ground that the statement of claim does not support the relief claimed in the action.

 

Particulars

(i)      The claim in the summons postulates a joint claim whereas the statement of claim alleges that the first plaintiff owns one piece of land whilst the 2nd and 3rd plaintiffs jointly own another piece of land.

(ii)     In his judgment the learned trial judge awarded one sum only which was the proper order to make on a joint claim but not on a several claim”.

 

The sum of the argument of Chief Williams, learned counsel for the appellant in respect of the above ground of appeal, is that on the evidence before the Court as well as the facts pleaded in paragraphs 10, 11, 12, 13, 14 and 15 of the statement of claim the respondents’ claim is, in view of order IV rule 2 of the Supreme Court Rules, – applicable to the case in hand – incompetent. According to learned Counsel for the appellant it is the Rules of Court made under Cap 211 of the 1948 edition of the Laws of Nigeria titled ‘The Supreme Court (Civil Procedure) Rules”. (NOT the Rules of the High Court of Lagos State) that are applicable to this case and we think there is considerable merit in the said argument. The relevant rule, under the current Rules of court of the Lagos State High Court, Is rule 5 of order 15 which reads:

“Claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant”

Under the Supreme Court (Civil procedure) Rules aforesaid (hereinafter referred to as ‘the Former Rules of Court” and which can be found in page 16 of vol. X of the 1948 edition of the Laws of Nigeria), applicable until the 1st day of September, 1973, when the current Rules of the High Court of Lagos State came into force (see Lagos State Legal Notice No. 18 of 1973 at Page B94 of Lagos State Gazette of 6th day of June 1973, vol. 6), the relevant rule, is rule 2 of Order IV and it reads:

“Where a person has jointly with other persons a ground for instituting a suit, all those other persons ought ordinarily to be made parties to the suit”

 

It is evident from the pleadings, the testimonies of the respondents and Exhibit “A”, that the parcels of lands plots 150 and 152 (severally verged Green and Red on Exhibit “A”) belong respectively to 2nd and 3rd respondent jointly and to 1st respondent alone. It is also evident that while the alleged trespass by the appellant into the 1st respondent’s land occurred in 1968 and possibly continued (and this is not dear from the evidence) until the time when ’the present suit was commenced the trespass into plot 150 (the joint property of the 2nd and 3rd respondent) occurred in 1969. Even if the several acts of trespass in respect of the two plots continued until the commencement of proceedings, they quite clearly relate to two separate and distinct parcels of land (i.e. plots 150 and 152) belonging to two separate sets of owners (viz – the 2nd and 3rd respondents jointly and the 1st respondent respectively). Again, although the damage, if any, in respect of these acts of trespass was suffered by the respondents in their distinct and separate capacities the respondents, as the endorsement in their writ of summons quite clearly shows, have lumped their claims several causes of action together. They ask jointly for general damages and, in the same manner, claim special damages although it is beyond doubt that their evidence indicate that the items of special damage relate to property which is the subject matter of their distinct and several possession and ownership. Unquestionably, rule 2 of Order IV of the “Former Rules of Court” do not provide for joinder of causes of action by joint plaintiffs in these circumstances; it provides for a joinder of plaintiffs where there is a common ground of action. It is, however, patent that the current Rules of the High Court of Lagos State (op cit – supra) provide in rule 5 of order 15, for joinder of causes of action. And this brings us to the next question which is whether the current Rules of the High Court of Lagos State apply in the case in hand? They certainly do not for the following reasons: the respondents commenced action in this case on 6th February, 1969, when the application for the writ of summons was filed and paid for in the High Court Registry (see W.W. Nicholls (Junior) and another us. The General Manager, Nigerian Railway (1938) 14 N.L.R. 87; Mufutau Alawode and others vs Semoh (1959) 4 F.S.C. 27; hearing in the High Court commenced on 15th day of February; 1973 and learned counsel on both sides concluded their respective addresses on 5th June, 1973, when judgment was reserved; and the current Rules of the High Court of Lagos State came into force on 1st September, 1973. We are satisfied that the Former Rules of Court apply in this case.

In reply to the argument on behalf of the appellants, learned counsel for the respondents, Alhaji Owodunni, contended although with an air of obvious indecision that this claim in its present form, the evidence of the respondents not-withstanding, is competent and cited in support of his contention, the case of Universities of Oxford and Cambridge Vs. Gill (1899) 1 Ch. 55 and Walters v. Green (1899) 2 Ch. 696.

We have read these two cases the decisions in which are based on the Rules of Supreme Court (England) (hereafter referred to as “R.S.C.”) now summarised in rule 4 of order 15 R.S.C. in the 1973 and 1976 White Book (i.e. Annual Practice) Vol. 1, in each case. The provisions of these Rules (R.S.C.) differ from those of the Former Rules of Court under consideration and the cases cited are, there-fore, of no assistance to the respondents. As already stated, rule 2 of order IV Supreme Court (Civil Procedure) Rules Cap 211 Vol. 10 of the 1948 edition of the Laws of Nigeria provides for joinder of plaintiffs in one action but not for joinder of causes of action. Can it be seriously contended that on the testimonies of the two sets of respondents (i.e. the 2nd and 3rd on the one hand and the 1st respondent on the other) and their statement of claim, that damage done to the several plots (150 and 152) is a common ground of action within the purview of this rule (i.e. rule 2 order IV of the Former Rules of Court? We think not. The raison d’etre for this rule and the above views was adequately stated by Ademola J. (as he then was) in Amachree and others vs Newington (1951)20 N.L.R. 13 particularly in the last three paragraphs at P15, and there is hardly any need to say more. That decision was confirmed on appeal, on precisely the same point by the West African Court of Appeal in Chief J. T. Princewill Amachree and others vs WH.F. Newington (1952)14 W.A.C.A. 97 at pp. 99 (see the Judgment of Coussey J.A.). The at-tack by learned Counsel for the appellant on the joint award, in the circumstances of this case, to the respondents of the sum of N50 finds ready support in the obiter dicta relating to the patent difficulties in the apportionment of damages in cases of this kind anticipated and duly explained by the learned trial Judge in Amachree’s case (Supra) at 20 N.L.R. the last but one paragraph of p.15, (see also Jimoh Lawani and 7 others Vs. The West African Portland Cement Co. Ltd. (unreported) SC 296/74 of 27/1175. On this aspect of the submission of learned counsel for the appellant we endorse the views expressed in Amachree (Supra) 20 N.L.R. at 14 AND 15 and have no difficulty in coming to the conclusion that the joint award of N50 damages, in the circumstances of the case in hand, is not only highly irregular but improper in law.

One other point, we think, need be mentioned for although, it was not taken initially by learned counsel for the respondent it was obvious to members of the court who in the course of argument in this appeal, drew the attention of Counsel on both sides to ft. The point relating to rule 2 of order IV of the Former Rules of Court now taken before us by learned counsel for the appellants was not taken before the learned trial Judge (i.e. in the court below). Learned Counsel for the respondent submitted that by not taking the point in the court of trial the appellant must be precluded from doing so now but he hardly produced any authority in support of this submission which was hardly duly pressed. We are of the view that this point can now be taken in this court. In the first place, although the Court of Appeal is, generally, inclined to scrutinise suspiciously a point not taken in the court of trial but which is being taken for the first time before ft, it will allow the point to be made “If satisfied beyond doubt that it has before it all the facts bearing upon the new contention as completely as would have been the case if the controversy had arisen at the trial …….’. (see The Tasmania (1890) 15 App. per Lord Herschel[ at 225), or, if the new argument, being on a point of law, is being raised on one and the same matter and set of facts as were before the court of trial (see Misa Vs. Currie (1876) 1 App. Cap. 554 at 559); provided always that if the new argument is raised on facts the court of appeal ought first to be satisfied that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them in the witness box” (see The Tasmania (op. cit) per Lord Herschell). The new point now taken on behalf of the appellant is on a matter of law and, what is more, it is based on the matter and set of facts given in evidence before the trial court.

We are satisfied that, in its present form and on the pleadings and evidence given at the trial, this action is incompetent and ought to have been struck out by the learned trial Judge.

This appeal, therefore, succeeds and it is allowed. The Judgment of the High Court of Lagos State in Suit IK/13/69 dated the 2nd day of November, 1973, is hereby set aside and, in substitution therefore, it is ordered that the Plaintiffs’ claim be struck out; and this shall be the judgment of the said court. It is further ordered that the respondents shall jointly and severally pay to the appellant costs of this ap-peal assessed at N347 whereof the sum of N247 represents the appellant’s out-of-pocket expenses.

Appeal allowed.

 

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