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CORAM

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

NWALI SYLVESTER NGWUTA, JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

NWALI SYLVESTER NGWUTA, JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI JUSTICE, SUPREME COURT

NWALI SYLVESTER NGWUTA, JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

NWALI SYLVESTER NGWUTA, JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

NWALI SYLVESTER NGWUTA, JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JUSTICE, SUPREME COURT

NWALI SYLVESTER NGWUTA, JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

NWALI SYLVESTER NGWUTA, JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI JUSTICE, SUPREME COURT

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JUSTICE, SUPREME COURT

NWALI SYLVESTER NGWUTA, JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

NWALI SYLVESTER NGWUTA, JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI JUSTICE, SUPREME COURT

PARTIES

1. S. A. ADEYEFA

2. J. A. BALOGUN

3. JOSHUA AWOREFA [On behalf of themselves and Representing Ojaja Community

APPELLANTS

BAMGBOYE

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiffs/Appellants instituted an action at the High Court against the Defendant/Respondent claiming N500.000.00 general and aggravated damages for unlawful construction of the road, Court’s order for removal and filling up the soak away pit and septic tank on the private road and injunction restraining the defendant from the repetition or continuance of the acts complained of. After hearing evidence the trial court dismissed all the reliefs claimed by the Plaintiffs. The Plaintiffs/Appellants herein were aggrieved by the judgment of the trial court and unsuccessfully appealed to the court of Appeal Ibadan Division. The Court of Appeal unanimously dismissed the Plaintiffs/Appellants’ appeal. Dissatisfied, the Appellants further filed an appeal at the Supreme Court.

HELD

Appeal dismissed

ISSUES

1. Whether or not obstruction of road subject of claim amounts to nuisance and how if so hold, did the torts of nuisance and injunction synonymous with the torts of trespass and injunction and thereby requiring proof of title to the access road land on which the nuisance complained of was committed. Grounds 1, 2, 3, 11, 12 and 14 of the grounds of appeal?

2. Whether or not having regard to the totality of the evidence on record the Appellants were entitled to judgment on all the reliefs claimed in paragraph 38 of the statement of claim. Grounds 9, 10, 14, 15 and 17 of the grounds of appeal.Whether or not the lower court was right to hold that the Customary Court Judgment in suit no. 27/83 tendered as Exhibit P1 not capable of raising an issue estoppels and binding on the parties to this appeal. Grounds 4, 5, 13 and 16 of the grounds of appeal?

3. Whether or not the lower court was right to hold that the conclusion arrived at by the director of Ife Area Town Planning Authority in Exhibit P7 which was a reply to Exhibit D4 letter written by the Respondent referring the dispute between the parties for arbitration before the Town Planning Authority amount to a mere advice and did not create the land-in-dispute an access road. Grounds 6, 7 and 8 of the grounds of appeal?

4. Whether the lower court was right to endorse the trial court’s observation that there was other road other than the access-road-in-dispute which can be used as an access road by the Appellants when there was no such road adjacent to the access road-in-dispute?

RATIONES DECIDENDI

CLAIM FOR TRESPASS AND INJUNCTION – EFFECT OF A CLAIM FOR TRESPASS AND INJUNCTION

“The law is trite and well settled that a claim of this nature, automatically puts title in issue and needs not be specifically pleaded.” PER BATA OGUNBIYI JSC

ESTOPPEL PER REM JUDICATAM – EFFECT OF A SUCCESSFUL PLEA OF ESTOPPEL PER REM JUDICATAM

“The plea of estoppels per rem judicatam is a shield rather than a sword. It is not available to the plaintiff in his statement of claim as raising the same will amount to impugning the jurisdiction of the Court to which he has brought his case. This is so because a successful plea of the doctrine would have the effect of ousting the jurisdiction of the Court before which the doctrine is raised. It will amount to abuse of process for a plaintiff to raise the plea as it would dispute the jurisdiction of the Court to which he has brought his case.” PER NGWUTA JSC

ESTOPPEL PER REM JUDICATAM – REQUIREMENT FOR THE APPLICATION OF THE DOCTRINE OF ESTOPPEL PER REM JUDICATAM

“Apart from other conditions upon which the application of the doctrine is contingent, the judgment relied on as estoppels must be one delivered by a Court of competent jurisdiction“. PER NGWUTA JSC

FINDINGS OF FACT OF LOWER COURTS – INSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACTS OF THE LOWER COURT

“It will not interfere with concurrent findings of facts of the lower courts except the decision is obviously perverse. See; OGIESOBA OTUBU & ORS VS B.A.A. OGUOBADIA (1984) LPELR 2830 (SC) or, there is miscarriage of justice or violation of some principles of law or procedure by the courts.” PER ARIWOOLA JSC

CLAIMS IN NUISANCE AND INJUNCTION – DUTY OF THE PLAINTIFF TO PROVE TITLE TO THE LAND IN DISPUTE

“The law demands that the plaintiffs in both must be able to prove title to the land in dispute or he is in possession.” PER MUNTAKA-COOMASSIE, JSC

DOCTRINE OF ESTOPPEL PER REM JUDICATAM

“Estoppel per rem judicatam is a rule of evidence whereby a party or his privy is precluded from disputing in any subsequent proceedings, matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his opponent”. PER NGWUTA JSC

EVALUATION OF EVIDENCE – RESPONSIBILITY OF THE TRIAL COURT IN THE EVALUATION OF EVIDENCE

“It is common knowledge that responsibility of evaluating the evidence is that of the trial court that saw and heard the witnesses and it is true that the Appellate court may not interfere or disturb a finding or conclusion in a judgment except in certain circumstances which have been stated and re-stated in many decided authorities of the apex court.” PERMUNTAKA-COOMASSIE, JSC

ISSUES FOR DETERMINATION – PRINCIPLES APPLICABLE TO FRAMING OF ISSUES FOR DETERMINATION

“While an issue may be framed from one ground but usually and preferably, a combination of grounds of appeal, the reverse is not the case. One ground of appeal cannot give rise to more than one issue for determination.” PER NGWUTA JSC

RES JUDICATA – PRINCIPLE OF RES JUDICATA

“It is the law that issues once litigated upon should be regarded as forever decided.” PER MUNTAKA-COOMASSIE, JSC

TITLE TO LAND – PROOF OF TITLE TO LAND

“Under our law, one of the five ways of proving title is by deed of conveyance.” PER BATA OGUNBIYI JSC

CUSTOMARY COURT- JURISDICTION OF THE CUSTOMARY COURT OVER LAND IN URBAN AREA

“A Customary Court, irrespective of grade, has no jurisdiction over land in urban area or land subject to statutory right of occupancy.” PER NGWUTA JSC

CASES CITED

Adigun V A-G (1987) 2 NWLR (PT 56) 197Agbomeji Vs Bakare & Ors (1998) 9 NWLR (PT.564) 1; (1998) 7 SC (PT.L) 10Akin Omoboriowo V Adekunle Ajasin (1964) 1 SC 206 AT 207Akinfosile V Ijose (1960) 5 FSC (1960) N.S.C.C. 129Akintola V Lasupo (1991) 3 NWLR (PT 180) P.508Alii V Alesinloye (2000) 6 NWLR (PT 660) 177Aseimo & Ors V. Abraham & Ors (1994) 8 NWLR (PT. 361) 191Idundun V Okumagba (1976) 9 & 10 SC 227Ige V Fagbohun (2001) 10 NWLR (PT 721) P.468Igweogo V. Ezengo (1992) 6 NWLR (PT. 246) 561 AT 567Labiyi V. Anretiola (1992) 10 SCNJ 1 AT 2Makor Vs Obiefuna (1974) 1 ALL NLR (PT 1 PAGE 116, LINES 4 TO 9Mogaji V Cadbury Nig. Ltd. (1985) 2 NWLR (PT. 7) 393Ngilari Vs Mothercat Ltd (1999) 13 NWLR (PT. 636) 626; (1999) 12 SC (PTLL) 1Nwosu V Udeago (1990) 1 NWLR (PT.125) 188Ogboboia Vs Amida (2009) 18 NWLR (PT.1172) 185Okorie Vs Udom (1960) 5 FSC 1 62 AT 165Olabunde V Adeyoju (2000) 10 NWLR P.562Omo V Jsc Delta State (2000) 2 SC (PT. 11) 1Sadiku V. Dalori (1996) 5 NWLR (PT. 447) 151The Registered Trustees Of The Apostolic Church V Olowoleni (1990) 6 NWLR (PT 158) P.514Ugoh V Obiekwe (1989) 2 SC (PT. 11) 14Umeano Achiakpa & Anor V. Josiah Nduka & Ors (2001 20 LRCN 2865 AT 2879Yoge V. Olubode (1974) 1 ALL NLR 118 AT 126-127

STATUTES REFERRED TO

Land Use Act 1978

Nigeria Urban and Regional Planning Decree No. 88 of 1992

CLICK HERE TO READ FULL JUDGMENT

May 10, 2025

S. A. ADEYEFA & ORS V BAMGBOYE

Legalpedia Citation: (2014-05) Legalpedia (SC) 31331 In the Supreme Court of Nigeria Fri May 9, 2014 Suit Number: SC.185/2003 CORAM IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT NWALI […]