The Appellant as Plaintiff had at the High Court of Osun State at the Oshogbo Judicial Division instituted an action against the Respondents as Defendants claiming damages for trespass and injunction on the business premises known as Groovy Cafe and Restaurant lying and being at opposite Osogbo Grammar School, Iwo Road, Osogbo.
The Appellant is the proprietor of the Groovy Cafe and Restaurant where he carried out his hospitality business which includes a restaurant, beer parlour, night club, games and event centre, where at he has been in lawful occupation of the premises thereof as a yearly tenant for about 10 years before the action in 2008. The Appellant rented the said premises from one late Chief Rasaki Alli and was paying rent to him. After the death of the said Chief Rasaki Alli, his children through a Management Committee wrote to the Appellant in respect of the Rented Property. The Appellant paid rent to the said Management Committee and subsequently to the firm of M. A. Laogun & Co. as the family’s Solicitors in charge of the estate of late Chief Rasaki Alli. In January 2008, the Appellant was issued a quit notice by the the 1st Respondent as a purported new owner of the rented property. The Plaintiff/Appellant was told by the solicitors to his landlord and the Management Committee of the Chief Rasaki Alli estate to disregard the said Notice as it was not their act and that the 1st Respondent had no such interest/title in the said property. The Appellant wrote informing the 1st Respondent of the reaction of the Rasaki Alli family and warned against any further interference with his peaceful enjoyment of his tenancy. Not done yet, the Respondent in November 2008 issued a Notice to quit within 7 days to the Respondent. The Appellant’s landlord, through the late family again re-assured him to ignore the Notice. This he did, but not without responding by a letter to the Respondent through his solicitors. Notwithstanding all the aforesaid, the 2nd Respondent led a group of people to the premises and purporting to be acting for the 1st Respondent, on November 16th 2008, made a fence round it and blocked the access or entrance thereto. The Appellant had to invite the police, who invited the 2nd Respondent to the police station. The Plaintiff/Appellant proceeded to write through his counsel, demanding the removal of the fence blockade to the Business premises while the 1st Defendant/Respondent may sort out his problems with the late Chief Alli family in respect of the ownership of the premises. There being no response to the letter, the Plaintiff instituted the action leading to this appeal. Appellant insisted that he was the sole occupant of the premises i.e. Groovy Cafe and Restaurant and had never met the 1st Respondent before, nor was the 1st Respondent ever introduced to him as a purchaser of the said premises.
On the other hand, the case of the 1st Respondent is that the premises in dispute belong to one Mrs. Rosemary Alli, alleged to be one of the wives of the late Chief Rasaki Alli and that the premises was sold to him in 2006 together with shops near to the building by the said Rose Mary Alli. That the late Rose Mary introduced the 1st Respondent to the Appellant and the occupants of the shops, who vacated the shops on the 1st Respondent’s order, except the Appellant who refused to leave the premises. He admitted that the 2nd Respondent was in the premises to carry out renovation work, including the fencing of the premises on the instruction of the 1st Respondent, and that the police invited the 2nd Respondent upon the Appellant’s report. He denied any act of trespass but admitted that the Appellant was in occupation and paying rent and for many years to Chief Rasaki Alli and after his death to his family Management Committee. He acknowledged the correspondences between the parties prior to the suit and the fact that there was no prior court order for the taking of possession, There was no document in proof of Rose Mary Alli’s title to the property as alleged, however the document of purported sale by her to the Respondent was tendered and rejected in evidence, for not being an admissible registrable instrument in law.
At the close of hearing, the learned trial Judge dismissed the Plaintiff’s case on the ground that the Plaintiff had not proved that he was in occupation or exclusive possession of the premises and that the entry into the premises was not an invasion, such as to constitute trespass as according to the learned trial judge, the 1st Respondent had purchased the premises from the late Rose Mary Alli and that the Appellant had become a mere licensee on the land after the purchase. Peeved and so disappointed with the decision of the learned trial Judge, the Plaintiff appealed to the Court of Appeal. The Appellant formulated 6 (six) issues for the determination of this appeal; the said issues were also wholly adopted by the Respondents in their opposition to the appeal. The issues are:
i. Whether the learned trial Judge was right in his decision that the description of the premises on which the Appellant sued is not clear.
ii. Whether the learned trial Judge was right in his decision that the possession of the premises on which the Appellant sued cannot be ascribed to the Appellant.
iii. Whether from the nature of the claims before the lower court, the reaction of the Appellant’s landlord to the entry into the premises by the Respondents is necessary for the success of the Appellant’s claims against the Respondents.
iv. Whether the learned trial Judge was right in his decision that he believed that the 1st Respondent purchased the premises from Mrs. Rose Mary Alli.
v. Whether the learned trial Judge was right in dismissing the Appellant’s claim for damages, for trespass and injunction.
vi. Whether the decision of the learned trial Judge can be supported by the weight of evidence adduced before the lower court.
Arguing issue No. 1, the Appellant’s learned counsel submitted that the trial judge was wrong in his decision that the description of the premises upon which the suit was brought was unclear. That the endorsement of the claims on the writ of summons and the statement of claim describes the premises as Groovy Cafe and Restaurant lying and being at opposite Oshogbo Grammar School, Iwo Road, Oshogbo. On his part, the Respondent submitted that the description given by the Appellant is at variance with his pleadings and exhibits tendered in proof of his description of the premises and that the Judge was therefore right in so holding that the description was uncertain.
On issue 1, the Court held that the fact that the Respondent issued quit notices severally on the Appellant as Defendant in respect of the premises was a clear statement that the premises in dispute and in occupation of the Appellant was well known to the Respondent and the trial Court had no reason to doubt the description as the issue was not a claim of declaration of title to a piece of land of a specified dimension. The Court stated that the simple question related to whether the Respondent had trespassed into the said premises. The Court held that if there was an unlawful interference with the right of peaceful enjoyment of the property by somebody in lawful occupation thereof the dimension or specific area of the said subject property was an irrelevant fact for any consideration. The Court held further that the slightest act of interference be it by the physical presence there, or by fencing as done or the quit notices severally issued without basis amounted to trespass against the Appellant’s right of occupation and use as a tenant. Issue No. 1 was resolved in favour of the Appellant.
On issue 2, Learned Counsel for the Appellant argued that the claim was based on trespass hinged on fact of lawful occupation by tenancy and not upon any question of ownership of the property. It was, therefore, submitted that a tenant in possession or occupation of land can maintain an action in trespass against all parties including his landlord. See Akinkugbe v. Ewulum Holdings (2008) 6 SCM 23 at 40; (2008) LPELR-346(SC). The Respondent in answer to this issue submitted that the Respondents had exercised various acts of ownership over the premises such that he had proved better title than the Appellant.
Arguing issue 5, learned counsel for the Appellant contended that action for damages for trespass lies at the suit of a person in possession and that the slightest act of possession suffices. It was emphasized that an action in trespass is not conterminous with ownership claim as the person entitled to claim need not be the owner of land forming the subject matter of the trespass. See Echere & ors v. Ezerike (2006) 5 SCNJ 120; (2006) LPELR-1000(SC). It was also submitted that there was no need to prove actual injury as the mere stepping of foot on the land or premises in possession of another person without consent gives rise to damages for trespass even when no physical injury or loss occurred. In response, the Respondent submitted that a possessor of premises or land can maintain a valid action in reaction to the slightest disturbance of his possession against everyone except a person who can show a better title to possession. The Court in determining this issue re-iterated that the law is settled that a claim in trespass is not dependent on a declaration of title. That trespass being an injury to possessory right, the proper Plaintiff to an action in trespass is the person who was or who was deemed to be in possession at the time of the trespass. The issue was resolved against the Respondent. The Court further held that the reaction/consent of the landlord or owner of the property, (a non-party to the suit) is not a requirement of the law for a competent and successful claim in trespass.
On the whole, the Court held that the judgment of the trial Court is perverse in all ramifications. The Court held that the appeal succeeds and it was allowed.
LawPavilion Citation: (2014) LPELR-23706(CA)
Compiled by: LawPavilion
