(1965) LCER-347(SC) #

Case Summary #

This appeal borders on Trespass to Land.

Brief Facts: #

This appeal arises from the judgment of the High Court of Western Nigeria. The plaintiff’s writ, filed in the High Court, sought damages for trespass on the plaintiff’s land situated at Odi-Olowo via Ikorodu Road. The plaintiff alleged that the defendant unlawfully entered the land, destroyed a signboard, and attempted to build on it despite warnings. Additionally, the plaintiff sought a perpetual injunction against further trespass.

During the trial in 1959, the plaintiff testified that he had exclusive possession of the land since purchasing it in 1944 from the representative of Salami Balogun, who had acquired it from one Green. Evidence indicated that a portion of the land was acquired by the Federal Government in 1946. Witnesses, including an Executive Officer from the Federal Lands Department and a surveyor, confirmed the plaintiff’s claim, stating that the disputed land was part of the plaintiff’s conveyance and the unacquired portion according to government plans.

The defendant did not testify, and the only defense witness, Mr. Blaize, claimed to be the original owner of the land, disputing the plaintiff’s version. However, the trial judge rejected Mr. Blaize’s testimony, acknowledging the plaintiff’s possession but questioned whether the land in dispute was part of the plaintiff’s purchased land.

In his judgment, the trial judge highlighted discrepancies in the evidence, particularly regarding a pillar number on the government’s plan. Due to these discrepancies, the judge concluded he could not determine if the disputed land was part of the plaintiff’s possession. Consequently, he dismissed the plaintiff’s case.

The plaintiff appealed this decision to the Supreme Court.

Legal Issues: #

The Court determined the issues joined by the parties.

Ratio Decidendi #

APPEAL – Fresh Point(S) on Appeal – Whether Court can suo motu formulate issues and determine an appeal on same without affording the parties an opportunity of giving further evidence in relation thereto #

“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 judgment 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 (WACA 2889-2924, July and October 1948, cyclostyled WACA 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 issue 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 thereafter 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.” Per GEORGE BAPTIST AYODOLA COKER, JSC in OWE V. OSHINBAJO (1965) LCER-347(SC) (Pp 5 – 7 Paras F – E)

COURT – Duty of Court – Duty of Court to invite parties to supply evidence where an issue for determination requires evidence for further clarification #

“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 judgment 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.” Per GEORGE BAPTIST AYODOLA COKER, JSC in OWE V. OSHINBAJO (1965) LCER-347(SC) (Pp 7 – 8 Paras E – D)

LAND LAW – Trespass to Land – What a plaintiff must prove to succeed in a claim for trespass to land #

“…the plaintiff is entitled to judgment 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 possession even if he be a trespasser the defendant can only justify his entry on the land by showing a better title (see Adeshoye v. Shiwoniku, (1952) 14 W.A.C.A. 86).” Per GEORGE BAPTIST AYODOLA COKER, JSC in OWE V. OSHINBAJO (1965) LCER-347(SC) (Pp 9 – 9 Paras A – C)