CORAM
OBASEKI, JUSTICE, SUPREME COURT
ANIAGOLU, JUSTICE, SUPREME COURT
NNAMANI, JUSTICE, SUPREME COURT
KAZEEM, JUSTICE, SUPREME COURT
KAWU, JUSTICE, SUPREME COURT
PARTIES
ATIPIOKO EKPANMOMO ATIPIOKO APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The claim before the High Court was a simple claim in which the plaintiffs claim from the defendants jointly and severally damages for trespass and an order of perpetual injunction. The learned trial Judge, at the conclusion of the evidence, and addresses of counsel, delivered a considered judgment in which he dismissed the claim for damages for trespass but granted the order of injunction against the 2nd defendant. Dissatisfied with the judgment, both the plaintiffs and the defendants appealed to the Court of Appeal. The Court of Appeal allowed the plaintiffs’ cross appeal and dismissed the defendants’ appeal. It then set aside the decision of the trial judge in respect of the claim for damages for trespass awarded N200.00 damages for trespass and granted the order of injunction prayed for. This decision was not acceptable to the defendants. So they appealed to the Supreme Court.
HELD
The appeal was allowed. The decision of the Court of Appeal was set aside and the decision of the High Court dismissing the claim for damages was restored.
ISSUES
Whether in the the circumstances of this case the plaintiffs/respondents are entitled to a grant of an order of injunction.
The learned Justices of the Court of Appeal (Okagbue and Pepple, JJ.C.A.) erred in law or misdirected themselves in law in their majority (dissenting) judgment allowing the plaintiffs/ respondents cross-appeal and dismissing the defendants/ appellants’ appeal when they gave judgment for the plaintiffs/ respondents in damages for trespass by an application of the principle of law enunciated in the case of Okorie & Ors. v. Udom & Ors. (1960) 5 FSC. 162 at 165 (per Okagbue, JCA.) and Aromire & Ors. v. Awoyemi (1972) 1 All N.L.R. 101 at 112 (per Pepple, J.C.A.) to ascribe possession of the land in dispute or the pertinent portion thereof to the plaintiffs/ respondents by virtue of the finding of fact made by the learned trial Judge that the plaintiffs/respondents are the true owners thereof when the said decisions and others besides to which reference was made in the said judgment were inapplicable to the facts of this case.
RATIONES DECIDENDI
What is possession of a parcel of land?
“Possession of a parcel of land means the occupation or physical control of the land either personally or through an agent or servant. A trespasser does not by the act of trespass secure possession of the land in law.” Per OBASEKI, J.S.C.
ESSENTIALS TO SUCCEED IN TRESPASS TO LAND
“In order to succeed in an action of trespass to land, plaintiff must prove and have present exclusive possessory title i.e. he must be in exclusive occupation.” Per OBASEKI, J.S.C.
TRESPASS TO GOODS
“It is a misconception and misdirection to hold that to enter the land is trespass if to dig up the land and uproot the crops, – yams, cassava and cocoyams – growing on the land is not trespass to land but to goods.” Per OBASEKI, J.S.C.
BURDEN OF PROOF ON PLAINTIFF IN LAND MATTERS
“It is duty of the plaintiff to prove conclusive that they were in exclusive possession of the area in dispute before the alleged trespass.” Per OBASEKI, J.S.C.
The claim for trespass
“The claim for trespass is not dependent on the claim for declaration of title.” Per OBASEKI, J.S.C.
CASES CITED
Silas Okoye v. chief Agogbua Kpajie & Ors. (1972) 6 SC. 176
Wuta Ofei v. Danguel (1961) 1 WLR 1238
Amakor v. Obiefuna (1974) 1 All NLR (Pt.1) 119
Mogaji & Ors. v. Cadbury Fry (Export) Ltd. (1972) 2 Sc 97 at p. 104 (1972)1 All NLR (Pt.1) 81 at 88
Jimoh Adebakin v. Sabitu Oduiebe (1972) 6 Sc. 208 at 210
STATUTES REFERRED TO