LAGOS, 23RD APRIL, 1942.

                                     COR KINGDON. C.J., BUTLER LLOYD AND FRANCIS , JJ.

 

 

Trespass to land-Pier built. on land and foreshore-Estoppel per - rem judicatam - Possession -Laches-Damages-Retrial.    

     The defendants purchased from the plaintiff Land  at Ayetoro and a coveyanee was executed showing the area. Damages were claimed for trespass committed by the defendants in building .a pier beyond the area bought. The second defendants who were joined as co-defendants leased a . foreshore plot to first defendants on which and the adjoining foreshore' the trespass was alleged to have taken place. They claimed that the land was communal land owned by the people of Epe.. In the alternative the plaintiff was said to have stood by with knowledge of expenditure on the building and not to have suffered any damage.

     There was a reply by plaintiff pleading a previous judgment and a rejoinder denying that the land was the subject matter of the previous suit or that Epe Native Administration or the people of Epe were parties.

   Judgment was given dismissing the plaintiff's action on the ground that (a) the previous judgment did not operate as an e8toppel (b) the ownership and (c) possession of disputed land were not proved (d) the land in dispute was beach land and vested in the community.

      Held: That the land in dispute was not foreshore; that as the parties were the same and the area included in the area in dispute in the previous suit the plea of .estoppel should have been upheld; that the finding balled on the ease of Henshaw v. Henshaw solely concerned with native law and custom at Calabar was a misdirection as far as land at Epe is concerned. That matters relating to possession were overlooked.

    Retrial ordered on ground that trial Judge holding that the action failed on the grounds he gave, found it unnecessary to go. into question of laches and damages.

Cases referred to:-

Henshawv. Henshaw (8 N.L.R. 77).

Mercantile Investment ~ General Trust Co. v. River Plate, Trust Loan and Agency Co. 1894 1 Ch. 578.

Cairncross v. Lorimer 1860 3 L.T. 130.

E. A. Akerele for Plaintiff,. Appellant.

I.. E. C. David for 1st Defendants-Respondents.

S.       A. Mokinatry (Crowu Counsel) for 2nd Defendants­ Respondents.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, PETRIDES, C J. GOLD COAST, AND FRANCIS, J.

In this case the plaintiff caused to issue on the 5th July, 1941, a writ against the first defendants claiming £100 " being damages " for the trespass:! committed by the defendants on the plaintiff's " land at Aiyetoro, Bpe, Nigeria, by building a pier on the land " and foreshore". On the 21st .July, 1941, the plaintiffs filed the following statement of claim:-

"1. The plaintiff is a clerk residing at Lagos Nigeria.

"2. The defendants are traders and ship owners residing at Ebute " Metta Nigeria.

"3. The plaintiff is the owner of a piece or parcel of land situate " at Aiyetoro Market the Marina, Epe.

"4. Sometime ago the defendants purchased from the plaintiff "portion of the land at Aiyetoro Epe and a conveyance showing the" area bought was executed.

"5. Since the purchase by the defendants they by their servants "agents or themselves have trespassed beyond the .area bought by "them by building a Pier in the plaintiff's land without his consent.

"6. The plaintiff has by his Solicitor requested the defendants " to remove the trespass but they have refused to do so and the trespass "still continues.

"7. 'rhe plaintiff therefore claims as per writ of Summons. "8. The plan of the area in dispute is filed in this action."

On the 8th September, on· the motion of the first defendants the second defendants were joined as co-defendants.

On the 23rd September, 1941, the first defendants filed the following defence.

"I. The second defendants admit paragraphs 1, 2 and 4 of the " Statement of Claim.

"2. The second defendants further admit that the plaintiff is the "owner of a piece or parcel of land situated at Epe and that the " plaintiff has leased a portion of the said land to the first defendant. " The land which is owned by the plaintiff is. a piece or parcel of land "situated on the land side of a foothpath adjoining the beach and "foreshore, the boundaries of which are marked by property beacons "Nos. Q. 66, Q. 60, Q. 67, Q. 65, Q. 71, Q, 64, Q. 62, Q. 56, Q. 61, "Q. 68, Q. 70, Q. 69, Q. 51, Q, 59 and Q, 57.

"3. '1'he second defendants deny that they have trespassed on the ., said land or on any land owned by and I or in the possession of the " plaintiff .

 4. In December, 1939, the second defendants agreed for and on " beha1f of the people of Epe to lease a certain foreshore plot ~ the "first defendant at a rent of £2 a ~·ear. It is upon the said plot " and I or the adjoining foreshore that the plaintiff alleges trespass.

 5. The said plot does not form any part of the land owned by the plaintiff but is a piece or parcel of beach and I or swamp land II situated on the seaward side of the footpath and beacons herein before mentioned. The said land at all material times, has been II communal land owned by the people of Epe in accordance with native law and custom. pg 31

6. The first defendant thereupon entered upon the said plot, II reclaimed the same and built a pier abutting from the foreshore at a cost of £200 or thereabouts. The said pier is wholly or in part II situated on the land vested in the Crown, to wit, the foreshore and •• the bed of the lagoon, and was built under a licence from the Commissioner of Lands.

7. Further and in the alternative the second defendants will say  that the plaintiff 'stood by with the knowledge that money was being expended on the said plot and that he is now estopped from  asserting any right or title to the said plot unless he makes compensation for the money expended or otherwise docs equity.

8. The second defendants deny that the plaintiff has suffered II the alleged or any damage. On the contrary the land has been II greatly increased in value by the reclaiming thereof and the building II of the said pier .

9. Except in so far as is herein expressly admitted the second defendants deny each and every allegation contained in the statement II of claim as if the same were herein set out in detail and traversed II seriatim.

10. The second defendants will further contend that the statement of claim discloses no cause of action."

And on the 29th September, 1941, the lst defendants filed the following defence:-

1. The 1st defendants admit paragraphs 1, 2 and 4 of the Statement of Claim.

2. The 1st defendants further admit that the plaintiff is owner •• of piece or parcel of land at Epe but they deny that the land on " which they have built a Pier is the property of the plaintiff. 

3 The swamp land on which's the first defendants have built "their pier is the property of the Native Administration of Epe who "hold it for the people of Epe, and the 1st defendants entered upon "" the said land by the command and authority" of the said Native "Administration of Epe.

4 The 1st defendants also hold a licence from the Commissioner of land" for their pier which extends 250ft. into the lagoon.

5 The 1st defendants deny that they have trespassed on any  land owned by and/or in possession of the plaintiff.

6. Except in so far us is herein expressly admitted the 1st "defendants deny each and every allegation contained in the S/C as  if the same were herein set out in detail and traversed seriatim."

On the 18th October 1941, the plaintiff It filed the following rejoinder.

"1. The plaintiff says that the land the subject matter of this "action belong to him and ,that it was the subject matter of litigation

. "in suit No. 392/28 intituled Isiaka Oke, Fetuga Yesufu Akodu, Abudu Kadiri Oluwo, Sanni Ojobaro and Sufianu Gbajumo as  representing the community of Epe  v Ogunonn Osho.

"2. The question of the land being communal was decided against  the plaintiffs in suit 392/28 and also by the Full Court of Nigeria on "~th February, ]930 and there ha~ been no appeal against the full "Court decision.

  3. A conveyance dated 22nd July, ]929, and registered as No. 33 at page 33 in Volume 265 of the Lands Registry in the office at " Lagos - was made to the plaintiff bi Ogunorin Osho the successful  party in suit 392/28 and extentt of the plaintiff's land was "ShOWD on the plan drawn on the said conveyance.

"4. The Native Administration Epeby their pleadings are trying "to re-open a question a4eady decided in· 392/28.

"5. The plaintiff therefore pleads the ju~gment.

"6. Beacons are placed only on dry land and not on swamp upder "the Survey Ordinance.

"1. The plaintiff has all the time been exercising acts of owner­"ship on his land and when the first defendant trespassed on hiB land "gave them notice to remove the trespass which they failed to do "relying on the fictitious title of the 2nd defendants.

"8. The plaintiff therefore sued the 1st defendant and 2nd "defendant was joined by the Court at the instance of the first " defendant."

And on the 21st October, 1941, the 2nd defendant filed the following rejoinder:-

"The second defendant joins issue with the plaintiff on his reply " (referred to in his pleading as a rejoinder) and denies .that the land " whicliis the subject matter of the present action was included in suit "No. 392/28 and denies further that the Epe Native Administration 'Land/or the people of Epe were parties to the said suit."

The hearing olthe case started in the Supreme Court before Butler Lloyd, J., on the 20th November, 1941, and on the 16th December, 1941, he gave judgment dismissing the!,lainti1i's action.

The reasons for his'decision may be summarised as follows:­(a) Judgment in case 392/28 did not operate as an estoppel against the defendants.

(b) The plaintlffdid not prove ownership of the disputed land.

(c) 'fhe plaintiff did not prove that he was in possession of the disputed land.

(d) The land in dispute, being "beach land" i~e. a strip of dry land above high water mark, is vested in the community upon the authori~y of Henshaw 17. Henshaw (8 N .L.R. 77). He found it unnecessary to go into" the q'!J,f)stion

G, lJ. Amancio Santos v. Ikosi Industries Limited and Epe Nati've Administration (joined by Order of Court).

of laches raised ·against the "plaintiff" (i.e. the averment of " standing by " made in paragraph 7 of the 2nd defendants' defence), or of damages but intimated that had the case had a different· termination he would not have awardeq more than nominal damages " in view of the plaintiff's own admission " that the rest of his land h'as been actually increased in value " as a result of defendants' action."

Against that judgment the plaintiff has appealed to this Court on the following grounds:-

"1. The learned Trial Judge misdirected himself in law when he "said that 'I accept the judgment in Henshaw 'V. lIenshaw as "establishing that by Native Custom beach land in the sense of II "strip of dry Jand above hi"h water mark ill vested in the Community.'

"2. The learned '£rial J,udge misdirected himself in law when he "said that 'In my view this strip comes within the meaning of the " 'term beach land as defined in Henshaw 'V. Henshaw anII-. being by " 'native custom communal could not be vested in Osho or his " , successor in title the plaintiff.'

" 3 . .verdict against weight of evidenc~."

It should first be explained exactly what the land in dispute is. It consists of a narrow strip of land lying between high water inark of the lagoon and a footpath running roughly parallel with the lagoon, more or less east and west. 'It does not include the foreshore, which we take to mean the area between high and low water mark, and the word "foreshore" was wrongly included in the writ. It is not in dispute that the foreshore is under the control of the Crown. But :the rights of the Crown do not extend above high water mark, even thoug'h it may be (as is admitted to be the case) that part of the land is flooded at times of flood water.

]'01' the purpose of suit No. am~ of 192t; a plan was made and that plan was put in as Ex. A in this case. It show8 the edge of the lagoon, i.e. high water mark, and the footpath, and the " swamp land" between as inclu'ded in the land then in dispute. After the decision of the case in defendant, Ogunnorin Osho'8 favour, i.e. dismissing the plaintiffs' claim to a declaration of title and an injunction. Osho on the 22nd July, 1929 executed a deed of conveyance (Ex. "C") in favour of Santos the present plaintiff, thereby implementing an agreement for sale made before suit No. 392 of 1928 was instituted. It is clear from the plan attached to the deed of conveyance that the deed purported to convey to Santos not only the large area of dry land north of the footpath but also the area of swamp land between the path and the lagoon.

At its widest part, the extrem.e west, the width of this swamp land is shown as 300 feet, it progressively narrows to the eastward, but we find nothing to support the learned trial Judge's statement that it " is nowhere more than 50-60 feet wide". Subsequently

 

 

G. B.Aman­cio Santos

v

Ikosi Indust­ries Limited and Epe Native Administra­tion.

Kingdon, Petrides C.H. and Francis, J.

;34

G. B. Aman­cio Santo~

v

Ikosi Indust­ries Limited and Epc Native Administra­tion.

Kingdon, Petrides C.JJ. and Francis, J.

 

 

(). lJ. Am.ancio Santos v. l1wsi industries Limited (Util Epe Nat,:rc i!drninistration (joined by Order. of Court).

the plaintiff says he " dedicated" a strip 50 feet wide immediately south of the footpath as a public road to be known as " Jibowu Street". This, of course, runs along the highest and dry est part of the " swamp land" and if it were not for such " dedication" would be included in the land in dispute .. 'l'here is no foundation whatever for the suggestion made in. this Court by learned Counsel for the 2nd defendants-respondents that there is a row of pillars or other marks following the line of the footpath and placed there to demarcate the southern boundary of the plaintiff's land.

'furning now to the reasons for the learned trial Judge's . decision, we find ourselves unable to agree with them, at any rate with those lettered (a), (c) and (d). If (c) is decided in plaintiff's favour (b) is unimportant.

First as to (a), the question of estoppel.

The plaintiff's contention is that in this case the parties are either the same as, or the privies of, the parties in suit No. 392/28 and that the land then in dispute included the land now in dispute, that the plaintiffs in that action sued for a declara.tion of title and failed and that consequently they cannot now set up (as they seek to do in paragraph 5 of the 2nd defendants' oefence and paragraph 3 of the 1st defendant's defence) ownership as a defence to' an action for trespass.

The 'defendants' "rejoinder" to this was a denial that the land was the saine or that the Epe Native Administration and /61' the people of Epe were parties to the 1928 suit.

The learned trial Judge found against the plaintiff's plea of estoppel on two grounds; the second was that the plaintiffs in the 1928 case were not identical with the 2nd defendants in the present case, since' they only represented five out of the fifteen quarters of Epe, and the first was that the plaintiff had purchased from Osho before the judgment in case 392/28. He did not deal with the question of the identity of the land.

W edo not agree upon any of these points-First as to the identity of the parties. In the present suit the second defendants represent all the quarters or wards of Epe.

In the 1928 suit Mr Justice Carey, in giving judgment, said:

" I am satisfied that as the Lagos Bale was named as " a plaintiff and he and the Ijebu Bale were called as witnesses "they (i.e. the plaintiffs) can be taken as representing' aU " the quarters of Epe."

We hold that it is not possible to go behind this finding of fact of the trial Judge in that case as to who were the parties before him. Moreover even if only five of the quarters of Epe were nominally parties to the 1928 suit, it is clear that all the other quarters are bound by the decision upon the principle enunciated in the following quotation from Spencer and Bower on Res Judicata (1924) p. 126 para. 197.

6

G. B. A.7nanciu Santusv. lIwsi industries Limited and Eve Native Administration (joined by Order of Court).

"For the purpose of estoppel per reln judicatmn, a ,. • party' means not only a person named as such, but also

        .. one .................. who, being cognizant of the proceedings,

.• and of the fact that a party thereto is professing to act in .. his interests, allows his battle to be fought by that party, " intending to take the benefit of the championship in the " event of success."

Secondly as to the land, it is abundantly clear that the ,area now in dispute was included in the area in dispute in 1928. Apart from the evidence of the Plan Ex. "A", which is conclusive, the plaintiffs in the 1B28 case specifically led evidence in regard to the swamp land. Abudu Kadiri Oluwo said:-

"The people of Eti^o !tun, Ajagannobi, !tun Igbehin, " Eyinde and Oke Iposu have used the lands for catch crops .. since I remember. The swamp side for sugar cane and "vegetables. "

As for the other point that the plaintiff had purchased from Osho before the judgment in case 392/28, we cannot see that this affects the question in any wa~r. Apparently, from the submissions' of learned Counsel for the 2nd Respondents in this Court the argument is based upon the following passage from p. 56 of Everest and Strode's IJaw of Estoppel (3rd Ed.).

" l>rivies in estate are not bound by a judgment, unless " it precedes the exeyution of the interest which is to be "estopped, and therefore a purchaser of land cannot be ., estopped, as being privy in estate, by a judgment obtained in " 'In action against the vendor commenced after the purchase." This is taken from the judgment of Romer, J., in the case of

Merr;antile Investment and General Trust Co. v. River Plate TI'Il,~t, Loan and A,qellc,Ij Co., [(1894) 1 Ch. 578 at p. 595]. But the dictum appears to have no application to the present case where Osho was sued as defendant, and had to defend the suit in order to enable him to give a good conveyance to the present plaintiff­Santos. In our view those circumstances Osho, and Santos are clearly privies,

\Ve are of opiIiiou that the plaintiff's plea of estoppel should have been upheld, and that in the present suit the defendants cannot be allowed to set up alleged ownership of the land by the community of Epe as a defence to the action for trespass. Dealing next with the reason for judgment lettered as (d) we uphold Grounds 1 and 2 of the Grounds of appeal. The case of Ii enshaw ". Benshaw (snpra) was solely concerned with native law and custom at Calabar. It was held (to quote the headnote) " that by local native law and custom • beach land' belongs to the town "within the limits of which it lies and not to any particular " family. " We draw attention to the word "local". In our view, to hold that because a particular native law and custom is

 

 

G. B. Aman­cio Santos

v

Ikosi Indust­ries Limited, and Epe Native Administra^J tion.

Kinadon, Petrides C.n; and Francis, J.

G. B. Aman­eio 'Santos

v

lkosi Indust­ries Limited and Epe Native Administra­tion.

Kingdon, Petri de s C.JJ. and Francis, J.

 

 

(). B. Amanc·io Santos v. Ikosi Industries Limited and Epe Native Administration (joined by Order of Court).

proved for one particular locality in Nigeria, it necessarily becomes established law that that custom obtains throughout Nigeria would be most dangerous. But that is, in effect, what the learned trial J uuge has done. Epe and C3Ilabar are widely separated in distance, one is in the Colony and the other within the Eastern Provinces of the Protectorate, they are inhabitated by peoples of different tribes with different languages and customs. Clearly when it is sought to rely upon a custom at Epe, that custom must be proved for Epe and what the custom may be at Calabar is irrelevant. - So far then as the finding of the trial Judge. is based upon the case of H enshawv. Henshaw, we hold that it is based / upon misdirection.

Consequent upon the view we take that the defendants are estopped per rem judicatallt from setting up in the present case that the land in dispute is by native law and custom vested in the community, the question of what the custom at Epe may be is merely academic, but it is worth pointing out that the defendants made no real attempt to prove any local law and custom. , When 'a party relies upon a custom of this nature the custom must be certain and must be clearly alleged and proved. Here only two

(,f the defendants' witnesses mentioned custom. Aina, the Ijebu Bale of Epe said" I remember the case in 1928. The waterfront was not in dispute. "By native custom this belongs to the Native Administration," and Olubanjo Odutola; a member of the Council at Ijebu Ode, said" By Jebu custom the foreshore is communal " in order to enable people to pull up canoes."

It is possible, though not certain, that one or both of these witnesses were referring to land above high-water mark. But eould anything be more vague or uncertain?

Turning now to the question of possession [lettered (0) in the reasons for judgment]. The learned trial Judge dealt with it, thus-" 'l'he evidence of such possession is extremely unsatisfactory " plaintiiI under cross-examination said ' I could have leased the " , land where the wharf stands', later ' I have never sold any­" , thing south of this road' (Jibowu Street). In re-examination " he said ' I used to have tenants on the foreshore'. His agent " LavoIe also said he used to let the foreshore to fishermen. But " neither of them indicated what portion of the foreshore had been " actuallv leased or to whom, and I think it safe to assume that " hao pl~intiff actually let or intended to let any of this area he " wonld have included it in his lay-out in Ex ' K ' ".

'rile question was, of course, one of fact for the trial Judge, awl if we were able to give a final decision upon this Appeal we shoulJ have to consider very carefully whether or not the finding was so ('learly shown to be wrong as to justify us in over-ruling it, but since, as will hereafter appear, we find it necessary to send this case hack for J'e-trial, we confine ourselves to pointing out matters

G. B. Amancio Santos v. lkosi lndustries Limited and Epe Native Administration (joined by Order of Court).

which it appears that the learned trial Judge overlooked and which point strongly in the opposite direction. The most important of these· is the conveyance Ex. " C". It is clear that this purported to convey the land in dispute along with, and as one piece with, the larger area North of the footpath. It is not disputed that in pursuance of that conveyance plaintiff entered- into possession of the larger area. Must he not be taken as having entered into possession of the whole area conveyed? And' if so, has he ever suffered dispossession of any part of it? Again surely the dedication of part of the land as a public road, as to which the plaintiff gave testimony, is strong evidence of dealing with tlle land indicating possession and ownership.

Further we do not agree that the omission to include the Swamp land in the layout in Ex. " K " has any significance against the plaintiff's possession. Such land was obviously not saleable and naturally would not be included in such' a layout, and with those remarks we leave the question of the plaintiff's possession to be re-considered upon the re-trial .As already indicated we find it necessary to order a re-trial, because the trial Judge, holding that the action failed upon the grounds he gave, found it unnecessary " to go into the question of laches raised against the plaintiff' 01' " of damages." There still remains for decision ~he question of whether or not paragraph 7 uf the second defendants' defelH~e (al.ready quoted) constitutes a good (lefence to the action. There has been no offer by the plaintiff to "make compensation for " the money expended or otherwise do equity".

It may not be out of place if we draw attention to the fundamental principle in cases of alleged "standing by". It is laid down by I,ord Chancellor Campbell in the case of Cain/cru.I.< v. Lorimer [(1860) 3 L.'l'. 130: 123 Eng: nep: DOG] ill theJ'c words: --,-

" the doctrine will apply, which is to be found, I believe, " in the laws of all civilized nations, that if a man, either by " words or by conduct, has intimated that he consents to an " act which has been done, and that he will offer no opposition " to it, although it could not have been lawfully done without " his consent, and he thereby induces others to do that from "which they otherwise might have abstained, he cannot " question the legality of the act he had so sanctioned, to the " prejudice of those who have so given faith to his words, or " to the fair inference to be drawn from his condiIct."

And on the question of damages in cases of this nature the Jaw is stated at section 172 p. 135 of 10 Halsbury (2nd Ed:). "1Vhere a tres.pass consists of a wrongful and "unauthoriseduser of the plaintiff's land, the measure of " damages is not the depreciation in the yalue of the plaintiff' a

 

 

37

G. B. Aman­cio Santos

v

Ikosi Indust­ries Limited and Epe Native Administra­tion.

Kingdon, Petrides C.J]. and Francis, J.