[PDF copy of this judgment can be sent to your email for N300 only. Just order through firstname.lastname@example.org and email@example.com or text 07067102097]
AMUSA ALLI OWE
SUPREME COURT OF NIGERIA
BEFORE THEIR LORDSHIPS
PRACTICE AND PROCEDURE – Judge creating an issue for himself and thereon giving judgment without hearing patties.
TORTS – Trespass – Plaintiff in possession – defendant with no right or title.
D.O. Cokerforthe Respondent.
COKER, J.S.C. (Delivering the Judgment of the Court): This is an appeal from the judgment of the High Court of Western Nigeria dismissing the case of the plaintiffs with costs.
At the time of this appeal, both the original plaintiff and the original defendant had died and were substituted by their respective children or representatives; the appellants representing the original plaintiff and the respondents the original defendant. The appellants will hereafter be referred to as the plaintiff and the respondents as the defendant.
The plaintiff’s writ is endorsed as follows –
‘The plaintiff’s claim against the defendant is for the sum of £100 being general damages for the trespass committed by the defendant on the plaintiff’s land situate lying and being at Odi-Olowo via Ikorodu Road and which is more particularly described and delineated in the plan to be filed in this action. The said defendant unlawfully entered the said land in possession of the plaintiff and destroyed the signboard placed thereon and started to dig same with a view to building thereon in spite of repeated warnings by the plaintiff.
The plaintiff also claims a perpetual injunction restraining the said defendant or his agents and servants from committing further act of trespass on the said land or any part thereof.”
At the trial in 1959, the plaintiff gave evidence to the effect that the defendant entered upon a portion of lands of which he had been in exclusive and undisturbed possession since his purchase of same in 1944. He claimed to have bought from the representative of one Salami Balogun (deceased) who had bought from one Green to whom the admitted original owner, one Mr Blaize, had sold. There was also evidence that a portion of the land was acquired from the plaintiff by the Federal Government some time in 1946. A witness called by the plaintiff and described as an Executive Officer in the Federal Lands Department, Lagos, produced as Exhibit F a plan of the entire lands acquired by Government in the area; he testified that the land claimed by the plaintiff, as shown edged green in his plan exhibit C, is the unacquired portion of Lot 7N (i.e., land claimed by the plaintiff, as shown in the plan exhibit C, is part of the land shown as unacquired in Exhibit F and is also a portion of the land covered by the plaintiffs conveyance, Exhibit A.
The defendant did not give evidence himself and the only witness called by the defence was the said Mr Blaize who testified that he was the original owner of lands (of which the land in dispute is a portion) in that area and that indeed he sold the land in dispute not to Green as claimed by the plaintiff but to one Dudley Coker who is not a party to the proceedings.
The learned trial judge did not accept the evidence of Blaize but found that the plaintiff (like his predecessors in title) was in possession of the land in dispute at the time the defendant entered thereon. He did not however enter judgment for the plaintiff as he should have done but proceeded to ascertain whether he was satisfied “on the balance of probabilities that the land shown in Exhibit C is the residue of the land which the original plaintiff purchased and of which he entered into possession in 1943”. in this connection he observed as follows in the course of his judgment –
‘The opinion of the officer from the Lands Department must be discounted as it is based on the misreading of the number of a pillar shown on Exhibit F. Pillar 5918 appears on Exhibit C but not on Exhibit F, the only pillar approximating to it which appears on the latter Exhibit being 5911. It would seem that the officer misread the latter number for 5918, as did I and apparently learned counsel at the hearing. Certainly I did not notice the error until I came to consider this judgement. The absence of pillar 5918 from, and the presence of 5911 on, Exhibit F are significant’.
He then came to the following conclusion –
“The result is that I am not satisfied that the land to which this action relates is part of the land of which the original plaintiff was in possession”.
He thereafter dismissed the plaintiff’s case on the ground that he was not satisfied that the plaintiff was in possession of the land shown in Exhibit C.
Before us learned counsel for the plaintiff submitted that the judge misdirected himself in coming to the conclusion he did because quite apart from the unchallenged evidence of both the witness from the Federal Lands Department and the plaintiff’s surveyor that the land in Exhibit C is the unacquired portion of Lot 7N in Exhibit F, the judge wrongly read pillar number 5918 shown in Exhibit F for number 5911. Learned Counsel for the defendant agreed that the judge was in error as to this for the pillar that he read as number 5911 was in reality, and as given in evidence, number 5918. Counsel for the defendant however sought, although unsuccessfully, to disparage the evidence of the surveyor and the witness from the Lands office on this point.
It is to be observed that at the hearing both parties agreed that the pillar shown as number 5918 in Exhibit C was also shown as such in Exhibit F. Indeed, any close examination of the Exhibits would confirm this. There was no question raised at the trial as to the identity of the pillar shown as number 5918 in Exhibit F nor was there any evidence that it was not 5918 but 5911. We have already pointed out that in fact that pillar was number 5918. The trial proceeded and the case was fought on the basis of the acceptance by both parties that the pillar shown as number 5918 in Exhibit C is also shown as such (i.e. 5918) in Exhibit F. The trial judge, however, without referring what he thought was a discrepancy to the parties for their explanation, took upon himself to decide the issue he created for himself on his own examination and inspection of the plans. With respect we think it was a mistake on the part of the learned trial judge to take that course of his own accord and to give judgement upon matters on which the parties or their counsel were not heard or on which there was no evidence before him.
In the case of The United Africa Company Ltd v. The Commissioner of Police (W.A.C.A. 2889 – 2924, July and October 1948, cyclostyled W.A.C.A. Reports, p.72) the West African Court of Appeal (Sir Henry Blackall P.) in similar circumstances made the following observations –
“At the hearing of the appeals it was submitted on behalf of the appellant company that while the company was admittedly liable for the acts of its servants, the learned judge should not have taken upon himself to consider the entries which so largely contributed to his conclusions without giving the company an opportunity of being heard, the issues as to the policy of the company never having been an issue during the hearing. The appellant company therefore sought leave to call additional evidence on these matters.”
The West African Court of Appeal therefore granted leave in that case to call additional evidence and observed further as follows –
“It is entirely contrary to the usual practice that the court should after the close of the trial, and in the absence of either party, raise an entirely fresh issue based upon the examination of certain documents tendered for another purpose, and, without summoning the parties again before him, proceed to determine this issue for the purpose of assessing the penalties to be Imposed. When as the result of further consideration of the evidence the judge reached a conclusion which would of necessity affect his view of the gravity of the offence, and consequently of the appropriate penalty, he should in our view have indicated to the appellants the nature of the issue thus raised and afforded them an opportunity of giving further evidence in relation thereto.”
With these observations we respectfully agree and would point out that where it is necessary that a point or points arising for determination in a case should be further clarified by evidence after the close of the trial, it is the duty of the court trying the case to invite the parties to supply such evidence or explain such point or points and it is wrong for the court in these circumstances to substitute its own views for matters on which there should be, and there was no evidence before the court. In the case of The United Africa Co. Ltd. v. The Commissioner of Police (supra) after further evidence was given the further Investigation revealed that the judge-was clearly mistaken in his surmises for further on in the judgement of the West African Court of Appeal the following passage occurs –
“in regard to the first of these the additional evidence now before us, read in conjunction with the evidence taken in the court below, negatives rather than affirms the conclusions of the learned Judge.”
Such is the position in the present appeal for quite apart from the submissions of learned counsel for the plaintiff, it was agreed before us by learned counsel for the defendant that the pillar number on Exhibit F Is 5918 and not, as thought by the judge, 5911.
Once it is settled “t the judge misdirected himself on this issue, it is manifest that no other reasons exist on the records why the identity of the land should be doubted and having/found that the plaintiff was in possession when the defendant entered on the land (clearly shown by the pleadings of the parties to be the same as shown on exhibit C) the plaintiff is entitled to judgement for damages for trespass and for an injunction to restrain the defendant from further trespassing on the land the position at law being that in an action in trespass once the plaintiff can establish his entry on the land by showing a better title (see Adeshoye v. Shiwoniku, (1952) 14 W.A.C.A. 86). In this case the title of the defendant was never adumbrated in pleadings nor did he attempt to establish any kind of title both in the court below and before us. It follows that this appeal must succeed.
The plaintiff claims the sum of £100 as general damages for the trespass committed by the defendant and the unchallenged evidence is that the defendant entered on the land and laid thereon the foundations of a building. The plaintiff is clearly entitled to damages which we fix at £40.
The appeal from the judgement of the Ikeja High Court, Suit No. AB/61/58, is hereby allowed. The judgment of the learned trial judge, including the order for costs, is set aside and the following order is hereby substituted:
There will be judgement for the plaintiff against the defendant for £40 damages for trespassing on the plaintiff’s land edged green in Exhibit C. There will also be an injunction restraining the defendant, his servants and/or agents from further trespassing on the said land.
The respondents will pay to the appellants the cost of these proceedings both in the court below and on appeal fixed at 70 guineas and 40 guineas respectively.
Appeal allowed: judgment for plaintiff.