[1992] 5 NWLRAjibade v.

Pedro257

1.MRS. R.Y AJIBADE

2.MRS. E.O. THOMAS

V.

1.MADAM THEODORA IBIRONKE PEDRO

2. EDMUND ABIOLA ZOLLNER

SUPREME COURT OF NIGERIA

SC.272/1989
ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C. (Presided)
SAIDU KAWU, J.S.C.
PHILIP NNAEMEKA-AGU, J.S.C.
UCHE OMO, J.S.C. (Read the Leading Judgment)
IDRIS LEGBO KUTIGI, J.S.C.
MONDAY, 15TH JUNE, 1992
ACTION - Commencement of action - Action commenced in wrong judicial
division - Validity of- Duty on party objecting thereto.

APPEAL - Grounds of appeal - Ground based on mixed law and fact - Need for
leave of court - Effect of failure to obtain leave.

APPEAL - Grounds of appeal - Ground challenging findings of fact - Whether

one of law or fact or mixed law and fact - Whether requires leave fo court.

APPEAL - Issues for determination - Failure of respondent to formulate - Effect.

APPEAL - Issues for determination - Issue on which no argument advanced -

How treated.

COURT - Judicial divisions of court - Commencement of action in wrong

judicial decision - Validity of- Duty on party objecting thereto.

EVIDENCE - Admissibility - Party blocking registration of land instrument by

entering caveat at Lands Registry - Whether can later object to admissibility of
document for non-registration.

LAND LAW - Land instrument - Party blocking registration of land instrument

by entering caveat at Lands Registry - Whether can later object to admissibility
of document for non-registration.
258Nigerian Weekly Law Reports13 July 1992
LAND LAW- Trespass - Lawful initial entry on land - Subsequent conduct
making entry unlawful - When does trespass accrue.
PRACTICE AND PROCEDURE - Commencement of action - Action
commenced in wrong judicial division - Validity of - Duty on party objecting
thereto.

PRACTICE AND PROCEDURE - Appeal - Grounds of appeal - Ground based

on mixed law andfact - Need for leave of court - Effect of failure to obtain leave.

PRACTICE AND PROCEDURE - Appeal - Issues for determination - Failure of

respondent to formulate - Effect.

PRACTICE AND PROCEDURE - Appeal - Issues for determination - Issue on

which no argument advanced - How treated.

PRACTICE AND PROCEDURE - Preliminary objection - Party filing a

preliminary objection but failing to proceed with it - Whether constitutes waiver -
Whether objector can later complain that court ignored it.

REGISTRATION OF INSTRUMENTS - Land instrument - Party blocking

registration of land instrument by entering caveat at Lands Registry - Whether
can later object to admissibility of document for non-registration.

TORT - Trespass to land - Lawful initial entry on land - Subsequent conduct

making entry unlawful - When does trespass accrue.

WAIVER - Preliminary objection - Party filing a preliminary objection but

failing to proceed with it - Whether constitutes waiver - Whether objector can
later complain that court ignored it.

Issues:
1.Whether the learned Justices of the Court of Appeal erred in holding that
the plaintiffs/respondents have locus standi.
2.Whether the learned Justices of the Court of Appeal erred in law in holding
that an unregistered document transferred interests in law.
3.Whether the learned Justice of the Court of Appeal erred in law in holding
(that) the defendants/appellants abandoned their preliminary objection.

Facts:
The respondents as plaintiffs sued the appellants as defendants at the High
Court claiming various forms of damages for trespass and an injunction in
respect of property described as 142 Bamgbose Street Lagos. The 1st and 2nd
plaintiffs/respondents are mother and son respectively. It is their case, as
revealed by their pleadings and evidence led, that the property involved in this
dispute situate at 142, Bamgbose Street, was devised by Will dated 13/8/1904
on trust to the use of his daughter, (the 1st plaintiff) and her heirs by her
father Pedro Alves who, though originally a native of Ipao in Ekiti Division,
had been captured and sold into slavery
[1992] 5 NWLRAjibade v. Pedro259
in Brazil, from where he finally returned in 1871 and settled in Lagos; that
about the year 1964, the 1st plaintiff/respondent allowed the 1st
defendant/appellant to live rent free in one of the rooms in the disputed
property. In 1975 Mr. H. K. Zollner the son of the 2nd plaintiff/respondent,
who was then resident with his father in England, came to Nigeria and
persuaded his grandmother the 1st plaintiff/appellant to agree to a
development of the property. To this end he obtained a loan of N900,000.00
from the Societie Generate Bank (Broad Street, Lagos Branch) at an interest
of 12%. Of this amount the sum of N10,000 was advanced to Mr. H. K.
Zollner who, in order to facilitate transactions, obtained a transfer of the
property to himself by his grand mother. After he had negotiated terms with
tenants for quitting the property to enable development to commence, his
father the 2nd plaintiff/respondent returned from London in 1980, and got the
property re-transferred to him by his son. The tending Bank was duly
informed of this change, documentary evidence of which was lodged with the
Lands Registry.
The same year (1980) the 1st defendant/appellant and her sister who lived in
rented quarters at Ebute-Metta claimed that their father was a son of Pedro
Alves and that they are therefore equally entitled to the property. The 1st
defendant/appellant thereupon refused to v acate the room occupied by her
thus frustrating the proposed development. After all pleas to them had failed,
the plaintiffs/respondents instituted the present action in 1982.
The defendants/appellants admit that the property in dispute belonged to
Pedro Alves. They however claim that he is their grandfather, their father lye
Faniyi being his son from a mother who was three months pregnant when he
was sold into slavery. Even though she delivered lye Faniyi in his absence, they
further claimed that he was accepted by Pedro Alves as his son on his return.
They challenged the Will - Exhibit A - on which the plaintiffs/respondents
relied, contending that Pedro Alves made no Will and died intestate and
claimed that they are therefore jointly entitled to the disputed property with
the plaintiffs/respondents. They also relied on their successful challenge by
way of caution, to the registration of the document re-transferring interest in
the property to the 2nd plaintiff/ respondent.
After hearing evidence of the parties and counsel's submission on their behalf,
the trial High Court Judge, in a reserved judgment delivered on 27/6/84,
believed the plaintiffs/respondents that the defendants/appellants had no
interest in the disputed property. He disbelieved their alleged blood
relationship with Pedro Alves. Even though it was not proved in solemn form
he accepted Exhibit A as a genuine and authentic Will of Pedro Alves and
upheld its provisions demising the disputed property to the 1st
plaintiff/respondent and her heirs. Since the defendants had persisted in their
claim to joint-ownership of the property, which was concretized by 1st
defendant/respondent remaining in and refusing to quit the property, he
found them liable in trespass for which he awarded damages. He also granted
the injunction sought.
The defendants/appellants, dissatisfied with this judgment, appealed to the
Court of Appeal. The Court of Appeal in a unanimous decision dismissed the
appeal and affirmed the judgment of the High Court. The appellants, still
dissatisfied, appealed to the Supreme Court.
260Nigerian Weekly Law Reports13 July 1992
Held (Unanimously dismissing the Appeal):
 1. On Classification of grounds of appeal -
A ground of appeal which challenges the findings of fact made by the court
below is one of mixed law and fact and requires leave of court before it can be
argued. (P.267, para. H)

2.On Pre-condition for validity of ground of appeal involving mixed law and
fact -
The combined effect of sections 213(1), (2) and (3) of the 1979 Constitution is
that grounds of appeal which involve issues of law and fact can only be urged
with leave of the Court of Appeal or the Supreme Court. Failure to obtain
leave where necessary renders the grounds incompetent. [Motunwase v.
Sorungbe (1988) 5 N.W.L.R. (Pt.92) 99; Ogbechie v. Onochie (No.l) (1986)
2 N.W.L.R. (Pt.23) 484; Metal Construction (West Africa)
Ltd. v. Migliore (1990) 1 N.W.L.R. (Pt. 126) 299; Arowolo v. Adimula (1991)
8 N.W.L.R. (Pt. 212) 753 referred to and applied]. (Pp.267-268, paras. H-A)

3.On Treatment of issue on which no argument is canvassed -

Where an appellant fails to advance argument on an issue he submitted for
determination, such an issue must be deemed abandoned [Are v. Ipaye (1986)
3 N.W.L.R. (Pt.29) 416 at 418; Ikpuku v. Ikpuku (1991) 5 N.W.L.R. (Pt.193)
571 referred to]. (P.269, paras. G-H)

4. On Effect of failure of respondent to formulate issues for determination -

A respondent in an appeal who fails to formulate issues for determination will
be taken to have adopted the issues formulated by the appellant. (P.267, para.
F)

5. On Treatment of preliminary objection not pursued by objector -

Where a party has filed a preliminary objection but failed to proceed with it
until judgment, he will be deemed to have waived his objection and cannot be
heard to complain on appeal that the court below ignored it. (P.270, paras. E-
F)
Per OMO, J.S.C. at page 270, paras. B-H:
"On issue (e), the defendants have presented their submissions in their brief
thus -
'The learned Justices of the Court of Appeal erred in Law in holding that the
defendants/appellants would have appeared to abandon the preliminary
objection. The preliminary objection was not struck out. The learned trial
Judge simply ignored it in order to assume jurisdiction. There is no legal basis
upon which the learned Justices of the Court of Appeal (could) have come to
that conclusion. I submit that
[1992] 5 NWLRAjibade v. Pedro261
the trial Judge deliberately refused to deal with the preliminary objection.'
In reply the respondents in their brief have urged that this is at best an
irregularity which the appellants have condoned/waived by taking further
steps in the action inconsistent with objection to the irregularity complained
of, to wit, moving a motion for extension of time within which to file and then
proceeding to file a Statement of Defence, vide Order 2 Rule 2 of the Rules of
the Supreme Court - Supreme Court Practice 1982 Edition p.
11; N.P.A. v. Panalpina World Transport 1975 5 S.C. 77; N.B.N. Ltd. & Or v.
Shoyoye & Or (1977) 5 S.C. 181. I will go further and note that if in fact the
appellants had intended to proceed with the preliminary objection filed they
would not have continued with the hearing up till judgment, without counsel
representing them drawing attention to the fact that preliminary objection
filed had not been taken. A stronger case for waiver cannot be made than this;
and the view that the preliminary objection has been abandoned cannot really
be faulted. Finally on this, there is on the merits, no miscarriage of justice
from what has happened. Ikeja Judicial Division is part of and within the
Lagos High Court; Order 1A of the High Court of Lagos (Civil Procedure
Rules) 1972, considered by the Court of Appeal allows an action like the
present, which may be said at the worst to have been commenced in the wrong
Judicial Division, to be heard and completed in that Division, unless special
objection to the hearing is taken and I would add, persisted with. In the
present case, the appellants did not pursue their application (of objection)
until after judgment. They are now complaining because they lost. This Court
cannot condone such behaviour. I am satisfied that the appellants waived their
right to pursue their objection to what is merely an irregularity and no
miscarriage of justice has occurred."

6.On When lawful initial entry can later turn to trespass -

It is a settled principle of law that where a person who initially entered upon
land lawfully or pursuant to an authority given by the true owner or person in
possession subsequently abuses his position or that authority, he becomes a
trespasser ab initio and his misconduct will relate back to make his initial
entry trespass. (P.272, paras. A-B)
Per NNAEMEKA-AGU, J.S.C. at page 272, paras. A-D:
"Blackstone in his Commentaries put it this way:
'Where a man misdemeans himself or makes an ill use with the authority with
which the law entrusts him, he shall be accounted a trespasser ab initio.'
262Nigerian Weekly Law Reports13 July 1992
The rationale behind this is that the law adjudges his initial intent on entry by
his subsequent conduct. See Six Carpenters' Case (1610) 8 Rep. 146a,
146b; Oxley v. Watts (1785) 1 T. R. 12. In the instant case, the moment the first
defendant refused to quit the premises which she had entered lawfully she
became a trespasser ab initio. The 2nd defendant was also a trespasser by her
conduct upon entering the premises. So, if the courts below erred at all, it was
in their thinking that the 1st defendant's liability dated from the date of
refusal to quit rather than that of the initial entry."

7.On Whether a party can later object to non-registration of document whose

registration he had prevented by a caution -
A person who clogs the attempt of another to register a registrable instrument
by entering a caution at the Lands Registry cannot subsequently, in an action
based on the instrument, object to the admissibility of the said instrument in
evidence on the ground of non-registration. (P.269, paras. D-F)

8.On Validity of action commenced at wrong judicial division -

By virtue of Order 1A of the High Court of Lagos State (Civil Procedure)
Rules, 1972, an action commenced in the wrong judicial division can be heard
and determined in that judicial division, unless special objection to the
hearing is taken and persisted with. (P .270, paras. F-G)

Nigerian Cases Referred to in the Judgment:

Are v. Ipaye (1986) 3 NWLR (Pt.29) 416
Arowolo v. Adimula (1991) 8 NWLR (Pt.212) 753
Metal Construction (West Africa) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) 299
Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) 90
N.B.N. Ltd v. Shoyoye (1977) 5 S.C. 181
N.P.A. v. Panalpina World Transport (1975) 5 SC. 77
Ogbechie v. Onochie (No.1) (1986) 2 NWLR (Pt.23) 484

Foreign Cases Referred to in the Judgment:

Six Carpenters' Case (1610) 8 Rep. 146a and 146b
Oxley v. Watts (1785) 1 T.R.12

Nigerian Statute Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1979 S. 213(1), (2) & (3)

Book Referred to in the Judgment:

Supreme Court Practice, 1982 Ed, p.11
Appeal:
This was an appeal against the decision of the Court of Appeal affirming
the judgment of the High Court given against the appellants. The Supreme
Court, in
[1992] 5 NWLRAjibade v. Pedro(Omo, J.S.C. )263
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a unanimous, decision dismissed the appeal and affirmed the judgment of the
Court of Appeal.

History of the Case:

Supreme Court:
Names of Justices that sat on the Appeal: Adolphus Godwin Karibi-Whyte,
J.S.C. (Presided); Saidu Kawu, J.S.C.; Philip Nnaemeka-Agu, J.S.C.; Uche
Omo, J.S.C. (Read the Leading Judgment); Idris Legbo Kutigi, J.S.C. Appeal
No: S.C.272/1989
Date of Judgment: Monday, 15th June,1992
Names of Counsel: P. A. A. Akinlade, Esq. - for the Appellants
O. Lawal, Esq. - for the Respondents.

Court of Appeal:
Division of the Court of Appeal from which the Appeal was brought: Court of
Appeal, Lagos
Names of Justices that sat on the Appeal: Ephraim Omorose Ibukun Akpata,
J.C.A. (Presided); Bolarinwa Oyegoke Babalakin, J.C.A.; Francis Olisa
Awogu, J.C.A .(Read the Leading Judgment)
Appeal No: CA/L/229/86
Date of Judgment: Tuesday, 5th July, 1988
Names of Counsel: P. A. A. Akinlade - for the Appellants
O. Lawal, Esq. - for the Respondents

High Court:
Name of the High Court: High Court, Ikeja
 Name of the Judge: Ajao - Oshodi, J.
Suit No: ID/625/82
Date of Judgment: Wednesday 27th June, 1984
Names of Counsel: A. Pratt - for the Plaintiffs
J. A. Ibraheem - for the Defendants.

Counsel:
P. A. A. Akinlade, Esq. - for the Appellants

O. Lawal, Esq. - for the Respondents.

OMO, J.S.C. (Delivering the Leading Judgment): On 6/4/92 after hearing

appellants' counsel, this Court did not find it necessary to call upon
respondents' counsel to reply. The appeal was dismissed on the same day and
adjourned to 12/6/92 when reasons for its dismissal will be given. I now give
my reasons for dismissing this appeal.
The plaintiffs/respondents sued the defendants/appellants in the High
Court of Lagos (Ikeja Judicial Division) claiming:
"1. Damages in the sum of N5,000 jointly and severally against the
264Nigerian Weekly Law Reports13 July 1992(Omo, J.S.C. )
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defendants for causing the plaintiffs pecuniary loss in respect of the A

proposed development of the property known and described as 142 Bamgbose
Street Lagos and registered as No. LO. 3169 in the Register of Titles kept in
the Lands Registry in Lagos.
2.N1,000.00 damages for trespass committed by the defendants their
servants and agents on the said property.
3.An Order of perpetual injunction restraining the defendants their
servants and agents from committing further acts of trespass on the said
property."
Particulars of Damages
Sum borrowed ............... N900,000.00
Sum so far expended
at 12% interest per annum ............. N10,000.00
The 1st and 2nd plaintiffs/respondents are mother and son respectively. It is
their case, as revealed by their pleadings and evidence led, that the property
involved in this dispute situate at 142, Bamgbose Street, was devised by Will
dated 13/8/1904 on trust to the use of his daughter, (the 1st plaintiff) and her
heirs, by her father Pedro Alves who, though originally a native of Ipao in
Ekiti Division, had been captured and sold into slavery in Brazil, from where
he finally returned in 1871 and settled in Lagos.
About the year 1964, the 1st plaintiff/respondent allowed the 1st defendant/
appellant to live rent free in one of the rooms in the disputed property. In 1975
Mr.
H. K. Zollner the son of the 2nd plaintiff/respondent, who was then resident
with his father in England, came to Nigeria and persuaded his grandmother
the 1st plaintiff/appellant to agree to a development of the property. To this
end he obtained a loan of N900,000.00 from the Societie Generale Bank
(Broad Street, Lagos, Branch) at an interest of 12%. Of this amount the sum
of N 10,000 was advanced to Mr. H. K. Zollner who, in order to facilitate
transactions, had also succeeded in obtaining a transfer of the property to
himself by his grandmother.
After he had negotiated terms with tenants for quitting the property to enable
development to commence, his father the 2nd plaintiff/respondent returned
from London in 1980, and got the property re-transferred to him by his son.
The lending Bank was duly informed of this change; documentary evidence of
which was lodged with the Lands Registry.
The same year (1980) the 1st defendant/appellant and her sister who lived in
rented quarters at Ebute-Metta claimed that their father was a son of Pedro
(Alves) and that they are therefore equally entitled to the property. 1st
defendant/ G appellant there upon refused to vacate the room occupied by her
thus frustrating the proposed development. After all pleas to them had failed,
the plaintiffs instituted the present action in 1982.
The defendants/appellants admit that the property in dispute belonged to
Pedro Alves. They however claim that he is their grandfather, their father Iye
Faniyi being his son from a mother who was three months pregnant when he
was sold into slavery. Even though she delivered lye Faniyi in his absence, they
further claimed that he was accepted by Pedro Alves as his son on his return.
They challenged the Will - Exhibit A - on which the plaintiff/respondents rely,
contending that Pedro Alves made no Will and died intestate. They are
therefore jointly entitled to the disputed property with the
plaintiffs/respondents. They also relied
[1992] 5 NWLRAjibade v. Pedro(Omo, J.S.C. )265
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on their successful challenge by way of caution, to the registration of the

document re -transferring interest in the property to the 2nd
plaintiff/respondent.
After hearing evidence of the parties and counsel's submission on their behalf,
the trial High Court Judge, in a reserved judgment delivered on 27/6/84,
believed the plaintiffs/respondents that the defendants/appellants had no
interest in the disputed property. He disbelieved their alleged blood
relationship with Pedro Alves. Even though it was not proved in solemn
form he accepted Exhibit A as a genuine and authentic Will of Pedro Alves,
and upheld its provisions demising the disputed property to the 1st
plaintiff/respondent and her heirs. Since the defendants had persisted in their
claim to joint-ownership of the property, which was concretized by 1st
defendant/respondent remaining in and refusing to quit the property, he
found them liable in trespass for which he awarded damages. He also granted
the injunction sought.
The defendants/appellants, dissatisfied with this judgment, appealed to the
Court of Appeal. Briefs were filed in the Court below which after due hearing
dismissed the appeal, except as to the award for damages which it held to be
unclear whether it is based on the defendants/appellants challenge to
ownership of the property (for which the Court of Appeal per Awogu J.C.A.,
was of the view that an order of forfeiture and a fine would be more
appropriate and/or adequate) or for entry on the land. Further dissatisfied, the
defendants/appellants (hereinafter called "appellants") appealed to this
Court.
The appellants filed six ground of appeal against the decision of the Court of
Appeal, which read thus:
"1. The learned Justices of the Court of Appeal erred in Law in not
reversing the decision of the learned trial Judge who gave judgment
for the plaintiffs/respondents.
PARTICULARS OF ERROR
1.The learned Justice of the Court of Appeal failed to examine the three claims
of the plaintiffs/respondents.
The three claims are:
(i)Damages in the sum of N5,000.00 jointly and severally against the
defendants/appellants for causing the plaintiffs/respondents pecuniary loss in
respect of the proposed development of the property known and described as
142, Bamgbose Street, Lagos and registered as No. 3169 in the Register of
Titles kept in the Lands Registry in Lagos.
(ii)N1,000.00 damages for trespass committed by the
defendants/appellants, their servants.and agents on the said property.
(iii)An order of perpetual injunction restraining the
defendants/appellant their servants and agents from committing further acts
of trespass on the said property.
2.The lower court dismissed claim one. The learned Justices of the Court of
Appeal held that there was no trespass in law, claim 3 cannot stand in
isolation. So the defendants/appellants have failed in all the three claims.
3.There could be no injunction without trespass on the land.
266Nigerian Weekly Law Reports13 July 1992(Omo, J.S.C. )
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4.The learned Justices of the Court of Appeal held there was no trespass but
failed to hold that there could be no injunction.
2.The learned Justices of the Court of Appeal erred in Law in dismissing the
defendants/appellants' appeal when the plaintiffs/ respondents have failed to
prove their claim in law.
PARTICULARS OF ERROR
(i)The learned Justices of the Court of Appeal appeared to hold that
validity of documents cannot be questioned if it is admitted without objection.
(ii)The learned Justice of the Court of Appeal failed to consider the
long possession of the first defendant/appellant.
3.The learned Justices of the Court of Appeal erred in law in holding that the
locus of the plaintiffs/respondents under order exhibit 'A' is unchallengable.
PARTICULARS OF ERROR
(i)The original Will was not tendered.
(ii)The Certified True Copy tendered did not come from proper
custody.
(iii)There is no original Will.
(iv)The Will was no proved. It was not read. Only a hand written
and unsigned copy of the Will is available at the Probate Registry
4.The learned Justices of the Court of Appeal erred in law in holding that
unregistered documents transferred interests in land.
PARTICULARS OF ERROR
(i)At the time of the action the plaintiffs/respondents were not
the registered owners of the property. The defendants/appellants filed caution
to protect their interest.
(ii)The plaintiffs/respondents have no locus to bring the action
because they were not the registered owners of the property at that time.
5.The learned Justices of the Court of Appeal erred in law in holding that the
defendants/appellant would appear to have abandoned the preliminary
objection.
PARTICULARS OF ERROR
(i)The preliminary objection was not struck out. The learned trial
Judges simply ignored it in order to assume jurisdiction.
(ii)There is no legal basis upon which the learned Justices of the
Court of Appeal should have come to that (sort) of conclusion.
(iii)The learned Justices of the Court of Appeal erred in law in
failing to hold that the trial Judge has no jurisdiction to
[1992] 5 NWLRAjibade v. Pedro(Omo, J.S.C. )267
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 try the case.
6. The learned Justices of the Court of Appeal erred in Law in
failing to consider the claim as to co-ownership of the property.
PARTICULARS OF ERROR
(i) The defendants/appellants claimed that the land belongs to their father and
grandfather. This claim is ignored.
(ii) The learned Justices of the Court of Appeal erred in law in
not considering whether the property is a family property.
PARTICULARS OF ERROR
The defendants/appellants claimed that the land belongs to their grandfather
and their father. Their grandfather is the father of the 1st plaintiff/respondent.
In their brief the appellants set out the following six issues as "arising from
the appeal".
(a)Whether learned Justices of the Court of Appeal erred in law in not
reversing the decision of the trial Judge by dismissing the order of injunction
after holding that there was no trespass.
(b)Whether the learned Justices of the Court of Appeal erred in law in
dismissing the defendants/appellants appeal when the plaintiffs/respondents
have failed to prove their claim.
(c)Whether the learned Justices of the Court of Appeal erred in law in holding
that the plaintiffs/respondents have locus standi.
(d)Whether the learned Justices of the Court of Appeal erred in law in holding
that an unregistered document transferred interests in land.
(e)Whether the learned Justices of the Court of Appeal erred in law in holding
the defendants/appellants abandoned their preliminary objection.
(f)Whether the learned Justices of the Court of Appeal erred in law in not
considering the evidence of co-ownership."
The plaintiffs/respondents (called "respondents" simpliciter hereafter) also
filed a brief but did not set out therein any "issues arising from the appeal" or
"issues for determination". The arguments in the brief were however based on
the issues set out in the appellants' brief and the respondents must therefore
be taken to have adopted these issues.
In its judgment, the Court of Appeal Per Awogu, J.C.A. adversely criticised
the briefs of the parties and also the only ground of appeal filed. It ended up
considering the appeal ex debito justitiae . Although the briefs and grounds of
appeal filed in the appeal to this Court are a vast improvement on those of the
Court of Appeal, objections to several grounds of appeal have been taken in
respondents' brief which have to be considered. The objection to Grounds 2
and 6 are that they are ground of mixed law and fact which cannot therefore
be canvassed in this Court without prior leave of Court. S. 213(3) of the
Constitution 1979 is cited in support of this submission.
It is trite that the combined effect of sections 213(1), (2) and (3) thereof is that
grounds of appeal which involve issues of law and fact can only be urged
"with leave of the Court of Appeal or the Supreme Court." Failure to obtain
leave where necessary makes the grounds incompetent
vide Motunwase v. Sorungbe (1988)
268Nigerian Weekly Law Reports13 July 1992(Omo, J.S.C. )
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5 N.W.L.R. (Pt.92) p. 90 at 99; Ogbechie v. Onochie (No.1) (1986) 2 N.W.L.R.

(Pt.23) 484; Metal Construction (West Africa) Ltd. v. Migliore (1990)
1 N.W.L.R. (Pt. 126) 299; Arowolo v. Adimula (1991) 8 N.W.L.R. (Pt. 212) 753.
These two grounds of appeal have been set out earlier in this judgment.
Although error in law is alleged in the statement of both grounds they are
clearly grounds of mixed law and fact. In both cases they challenge findings of
fact made by the Court below. Where sub-issues of law are raised in the
particulars, these are based on findings of fact. Accordingly Grounds 2 and 6
are incompetent and are hereby struck out.
The complaint against Ground 1 is that particulars of error in law as required
by the rules were not given. Only arguments were adduced. Particular (1) set
out the three claims on the writ of summons alleging that the learned Justices
of the Court of Appeal failed to examine them. This is supported by particulars
(2) to (4) which, in addition to being merely argument, show that the learned
Justices of the Court below did examine the claims, and that the complaint
really is that they did not examine them properly, hence they did not come to
the conclusion expressed in the statement of the ground, to wit, that they erred
by not reversing the judgment of the court of trial. This ground therefore is in
conflict with the particulars in its support. Furthermore the particulars show
that in order to arrive at the decision sought by the appellants on
the three claims; the Justices of the court below will be obliged to make
findings of facts. The ground therefore is also of mixed law and fact, in respect
of which no leave to argue has been sought. It is therefore doubly afflicted by
improper/conflicting particulars and being one of mixed law and fact.
It is accordingly incompetent and is hereby struck out.
Ground 3 is objected to on the ground mainly that it is alleged to raise new
issues which were not canvassed in the court below and/or in respect of which
no leave to argue same have been obtained. The ground has also been set out
earlier in this judgment. It is a ground challenging the locus standi of the
respondents which derives from the Will (Exhibit A) because the Exhibit A is
afflicted by errors which are set out as in the supporting particulars. A similar
issue appears to have been raised in the particulars of errors (i) of the only
ground of appeal. It reads "That the Court relied too much on Exhibit A, a
Will not proved in any form". The court below, per Awogu, J.C. A. in its
judgment dealt with this ground as challenging the locus standi of the
respondents on the ground that Exhibit A is not valid, not proven in solemn
form etc. In my view therefore the objection to this ground of appeal as
submitted is wrong. No new issue really has been raised in the Supreme Court.
On the other hand, this ground as framed appears marginally to be one of
mixed law and fact because it seems to require findings of fact before the
conclusion can be arrived at, that the Will does not support the locus standi of
the respondents to prosecute this action. Ex abundanti cautela, I propose to
consider this ground on its merits later.
There is no substance in the objection to Ground 5. Respondents have in their
submission admitted that the issue therein canvassed was adjudicated upon by
the Court of Appeal. It is therefore a fit and proper subject-matter for an
appeal.
Having struck out Grounds 1, 2 and 6 as incompetent, I will now proceed to
consider whatever issues are raised by the remaining grounds 3, 4 and 5.
These issues are stated thus:
(c)Whether the learned Justices of the Court of Appeal erred in holding that
the plaintiffs/respondents have locus standi.
[1992] 5 NWLRAjibade v. Pedro(Omo, J.S.C. )269
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(d)Whether the learned Justices of the Court of Appeal erred in law in holding
that an unregistered document transferred interests in law (Ground 4)
(e)Whether the learned Justice of the Court of Appeal erred in law in holding
(that) the defendants/appellants abandoned their preliminary objection.
(Ground 5)
The submissions of the appellants in respect of Issue (d) in their brief are that
the respondents were not the owners of the property in dispute as at the date
this action was instituted. Reference is made in support to Exhibits B and M
which show the property to have been transferred to Henry Kayode Zollner,
the grandson and son respectively of the 1st and 2nd respondents, on 1/10/75.
In their answer the respondents have submitted that Exhibits B and M have
been overtaken by events because Henry Zollner re-transferred the property
to the respondents by virtue of Exhibit G dated 6/3/7 8, four years before the
present action was instituted. The appellants have countered this submission
by further submitting that Exhibit G was not registered and therefore
Exhibits B and M are still valid. This issue was considered by Awogu, J.C.A. in
his judgment in the Court of Appeal as follows:
"On the issue of having divested themselves of their interest in the said
property, P.W. 3 testified as to how the plaintiffs did so and tendered Exhibit B
of 11/10/75. He continued (page 63 of the Record):
In 1978, I transfered the property y back to the 1st and 2nd plaintiffs. There
was a Deed of Transfer from me to the 1st and 2nd plaintiffs. The Deed was
tendered in evidence, without objection, and marked Exh. G Exhibit G was
dated 6/3/78, while the present action was commenced in 1982. It does appear,
however that as a result of a caveat by the defendant Exhibit G had not been
registered. There is therefore no merit in the contention that the plaintiffs had
as of the date of the action, divested themselves of their interest in the
property in dispute, the more so as it was the act of the defendants that held
up the registration of Exhibit G."
This is a complete answer to issue (d) and I need say no more. The appellants
cannot rely on lack of registration which was caused by them to negative the
fact of re-transfer of the property to the respondents. I note that it is this issue
that appellants argued in their brief as showing that the respondents have
no locus standi. Ground 3 in which the "locus" of the respondents is sought to
be challenged is argued separately without any reference to the issue of locus
standi. This must mean therefore that the arguments in their brief on the
validity or effect of the Will - Exhibit A - is not tied to any of the three
remaining issues arising from this appeal and should be discountenanced. I
propose however to deal very briefly with it. Furthermore issue (c) as it stands
cannot also be considered because no argument has been adduced on it and it
must be deemed abandoned vide Are v. Ipaye (1986) 3 N.W.L.R. (Pt.29)
416/418; Ikpuku v. Ikpuku (1991) 5 N.W.L.R. (Pt.193) 571.
The main contentions on Exhibit A is that it is not an original but a certified
true copy. The 1st respondent from whom it came is not a custodian of Wills
and no probate of this Will was obtained to administer it. These same
submissions were considered by the Court of Appeal in its judgment where it
first observed that
270Nigerian Weekly Law Reports13 July 1992(Omo, J.S.C. )
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Exhibit A - the Will attached - was tendered in evidence without any objection
by the 1st respondent as a certified true copy of her father's Will, which she
obtained from the Probate Registry. If the respondents say the Will is not
genuine or has any problems, they should have objected to its admissibility.
This they did not do.
What is more they did not cross examine 1st respondent on it except to ask if
she knew when it was made. Furthermore it was pleaded by the respondents,
and in reply the appellant denied its existence, only to attach a certified true
copy of it to their Brief!! In these circumstances the trial court rightly came to
the conclusion that the Will had not been dislodged, stands uncontradicted,
and is therefore valid. I agree with these findings and conclusion of the court
below and affirm same.
On issue (e), the defendants have presented their submissions in their
brief thus -
"The learned Justices of the Court of Appeal erred in Law in holding that the
defendants/appellants would have appeared to abandon the preliminary
objection. The preliminary objection was not struck out. The learned trial
Judge simply ignored it in order to assume jurisdiction. There is no legal basis
upon which the learned Justices of the Court of Appeal (could) have come to
that conclusion. I submit that the trial Judge deliberately refused to deal with
the preliminary objection."
In reply the respondents in their brief have urged that this is at best an
irregularity which the appellants have condoned/waived by taking further
steps in the action inconsistent with objection to the irregularity complained
of, to wit, moving a motion for extension of time within which to file and then
proceeding to file a Statement of Defence, vide Order 2 Rule 2 of the Rules of
the Supreme Court - Supreme Court Practice 1982 Edition p. 11; N.P.A. v.
Panalpina World Transport 1975 5 S.C. 77; N.B.N. Ltd. & Or v. Shoyoye &
Or (1977) 5 S.C. 181. I will go further and note that if in fact the appellants
had intended to proceed with the preliminary objection filed they would not
have continued with the hearing up till judgment, without counsel
representing them drawing attention to the fact that preliminary objection
filed had not been taken. A stronger case for waiver cannot be made than this;
and the view that the preliminary objection has been abandoned cannot really
be faulted. Finally on this, there is on the merits, no miscarriage of justice
from what has happened. Ikeja Judicial Division is part of and within the
Lagos High Court; Order 1A of the High Court of Lagos (Civil Procedure
Rules) 1972, considered by the Court of Appeal allows an action like the
present, which may be said at the worst to have been commenced in the wrong
Judicial Division, to be heard and completed in that Division, unless special
objection to the hearing is taken and I would add, persisted with. In the
present case, the appellants did not pursue their application (of objection)
until after judgment. They are now complaining because they lost. This Court
cannot condone such behaviour. I am satisfied that the appellants waived their
right to pursue their objection to what is merely an irregularity and no
miscarriage of justice has occurred. That disposes of Issue (e).
Finally the respondents have asked this Court to restore the damages for
trespass granted then by the trial Judge because the Court of Appeal was
wrong to have allowed the appeal on it. I am afraid no such application can be
granted except on the basis of an appeal filed against that order in this Court.
[1992] 5 NWLRAjibade v. Pedro(Nnaemeka-Agu, J.S.C. )271
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It is for these reasons that I dismissed this appeal with N1,000. costs
against the appellants.
KARIBI-WHYTE, J.S.C.: This appeal was argued on the 6th April, 1992.
Learned counsel to the parties filed briefs of argument. After reading the
briefs of argument filed by learned counsel, and hearing learned counsel for
the appellants, Mr. P. A. A. Akinlade, it was considered unnecessary to call
upon Mr. Lawal learned counsel to the respondents for his reply. I summarily
dismissed the appeal with costs and indicated that I will give my reasons for so
doing today the 15th June, 1992.
I have had the privilege of reading the reasons of my learned brother Uche
Omo J.S.C. and I agree entirely with them. I consider it unnecessary to state
my own which in any event would be the same.

KAWU, J.S.C.: After hearing appellant's counsel in this appeal on 6th April,
1992, and without calling upon the respondent's counsel to reply this appeal
was dismissed and I indicated then that I would give my reasons for doing so
today, 12th June, 1992. I have had the advantage of reading, in draft, 'Reasons
for Judgment' just delivered by my learned brother, UCHE OMO, J.S.C. I am
in complete agreement with him and will respectfully adopt those reasons as
mine for dismissing the appeal.

NNAEMEKA-AGU, J.S.C.: On the 6th of April, 1992, after reading the record
of proceedings and the briefs filed by both parties and listening to the
arguments of counsel, I dismissed this appeal summarily. I then adjourned the
case till today to give reasons for my judgment. I now give my reasons.
My learned brother, Omo, J.S.C. has fully set out the facts and
examined the facts and the law as reasons for which he also dismissed the
appeal on the aforesaid date of hearing. I entirely agree with his reasons, as it
was for the same reasons that I had to dismiss the appeal also.
I have only one short comment to make. It has been suggested that the basis
on which the Court of Appeal found trespass cannot constitute trespass in law.
For this purpose, the passage of the learned trial Judge where he based the
finding of trespass which has been upheld by the Court of Appeal has been
attacked as incorrect. He said:
"It is stated by the 1st plaintiff that she moved into the property on her
invitation, but she became trespasser as at the date she challenged the
authority and ownership of the 1st plaintiff. By her own evidence she came to
142, Bamgbose Street in 1962 when she was about 41 years old and this
supports the evidence of the 1st plaintiff.
In respect of the 2nd defendant, she admitted not living in the property. She
also became a trespasser when she challenged the 1st plaintiff about the
ownership of the property when she visited the 1st plaintiff at Ilupeju. The
plaintiffs have there established the trespass against the defendants."
272Nigerian Weekly Law Reports13 July 1992(Nnaemeka-Agu, J.S.C. )
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It has been doubted whether a person who entered upon land lawfully or at
the invitation of the owner or the person in possession can be adjudged a
trespasser.
It is a settled principle of law that where a person who initially entered upon
land lawfully or pursuant to an authority given by the true owner or person in
possession subsequently abuses his position or that authority, he becomes a
trespasser ab initio , his misconduct relating back so as to make his initial
entry trespass. Blackstone in his Commentaries put it this way:
"Where a man misdemeans himself or means an ill use with the authority
with which the law entrusts him, he shall be accounted a trespasser ab initio."
The rationale behind this is that the law adjudges his initial intent on entry by
his subsequent conduct. See Six Carpenters' Case (1610) 8 Rep. 146a,
146b; Oxley v. Watts (1785) 1 T. R. 12. In the instant case, the moment the first
defendant C refused to quit the premises which she had entered lawfully she
became a trespasser ab initio. The 2nd defendant was also a trespasser by her
conduct upon entering the premises. So, if the courts below erred at all, it was
in their thinking that the 1st defendant's liability dated from the date of
refusal to quit rather than that of the initial entry. In any event they were
liable in trespass.
For the above reasons and those contained in the lead reasons for
judgment of my learned brother, Uche Omo, J.S.C. I dismissed the appeal
summarily, as I have stated. I have now given my reasons for doing so.

KUTIGI, J.S.C.: We delivered a summary judgment in this matter on 6/4/92

and dismissed the appeal as lacking in merit with N1,000.00 costs against the
appellant. We indicated then that we would give fuller reasons for the said
judgment today.
I now adopt as my own the lead reasons just read by my learned brother Omo,
J.S.C., a preview of which I had before now.
Appeal dismissed.
756Onabanjo v. Efunpitan
14 October 1996

HARUNA ONABANJO

V.

IJADORO EFUNPITAN AND ORS

COURT OF APPEAL
(LAGOS DIVISION)

CA/L/154/93

DAHIRU MUSDAPHER, J.C.A. (Presided)

EMMANUEL OLAYINKA AYOOLA, J.C.A. (Read the Leading Judgment)
IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A.

WEDNESDAY, 14TH FEBRUARY, 1996

APPEAL - Issues for determination - Formulation of - Need to avoid being
general in terms.

COURT - Order of court - Failure of court to disclose reason or circumstance

for making - Whether fatal to the order.

DAMAGES - Trespass to land - Damages therefor - Conduct of trespasser

- Relevance of.

INJUNCTION - Order of injunction - Nature of.

INJUNCTION - Perpetual injunction - Principles guiding grant of.

JUDGMENT AND ORDER - Order of court - Failure of court to disclose reason

or circumstances for making - Whether fatal to the order.

LAND LAW - Trespass to land - Damages therefor - Conduct of trespasser

- Relevance of.
PRACTICE AND PROCEDURE - Appeal - Issues for determination - Formulation of
- Need to avoid being general in terms.

Issue:
Whether the learned trial Judge erred in law in granting an order of perpetual
injunction.
[1996] 7 NWLROnabanjo v. Efunpitan757
Facts:
The respondents as plaintiffs sued the appellant as defendant for damages
for trespass and perpetual injunction.
The respondents claimed that the appellant between 1976 and 1977
unlawfully entered into the piece of land situate at a place called Ojuemuren
village and proceeded to erect a house thereon. The respondents based their
claim on title traced to their ancestors and their undisturbed possession of the
land.
The appellant denied the title of the respondents and maintained that they
were entitled to the land in dispute by purchase from one Aliu Sanya described
as a member of one Ojuemuren family upon allotment of the land by that family
to the said Aliu Sanya.
At the close of the case and after careful evaluation of the evidence the
learned trial Judge in a considered decision gave judgment to the respondents
and granted a perpetual injunction.
Dissatisfied with the judgment, the appellant appealed to the Court of
Appeal.

Held (Unanimously dismissing the Appeal):

1.On Jurisdiction of Court to grant perpetual injunction -

Broadly, the two classes of cases in which jurisdiction to order perpetual
injunction will be ordered when trespass to property has been committed are:
(a)while there would be an unreparable damage or if the act would be
destructive were an injunction to restrain it not ordered; and
(b)where a failure to exercise the jurisdiction would lead to multiplicity of suit.
(P. 760, paras. C-D)

2.On Whether failure of court to state reasons or circumstances of order is fatal

to the order -
When the findings made by a court support an order made by the court, the
order does not become defective merely because the judge did not state which
of two or more categories of circumstances the case fell into. In the instant case,
the determining factor in this case is whether the findings made in the action
disclose an inadequacy of the legal remedy of damages to meet the
circumstances of the case and when such inadequacy is disclosed the equitable
relief by way of perpetual injunction is justifiable. (P. 761, paras. C-D)
Per AYOOLA, J.C.A. at page 761, paras. D-E:
"In the present case, the findings made that the respondents' family are the
owners of the land in question, and that the appellant wantonly committed acts
of trespass on the land in dispute and erected building thereon are sufficient to
support the order of perpetual injunction. The buildings erected on the land
wrongfully by the appellant constitute a continuing trespass which can support
758Nigerian Weekly Law Reports14 October 1996
a claim for damages as long as they remained on the land. The injunction was
therefore validly ordered to restrain a continuous trespass and further threats of
trespass."

3.On Effect of conduct of trespasser in an action for trespass -

In an action for trespass, the conduct of the trespasser goes properly to
aggravation or mitigation as the case may be of damages. An innocent, well
mannered and considerate trespasser is nonetheless a trespasser whose act is
liable to be restrained if the circumstances so justify notwithstanding his good
conduct. (P. 761, para. H)

4.On Nature of an order of injunction -

An order of injunction is protective of rights and interests rather than punitive of
persons. (P. 761, para. H)

5.On Formulation of issues for determination -

It is inappropriate to formulate an issue for determination in general terms and
in such a way that the answer is predictable generally without regard to the
facts of the case and rationes of the decision appealed from. (P. 759, paras. G-H)

Nigerian Case Referred to in the Judgment:

Obanor v. Obanor (1976) 2 S.C. 1

Books Referred to in the Judgment:

Halsbury's Laws of England 4th Edition para 926
Nelson's Law of Injunction Pages 372-373.

Appeal:
 This was an appeal against the decision of the Lagos High Court granting a
perpetual injunction. The Court of Appeal, in a unanimous decision, dismissed
the appeal.

History of the Case:

Court of Appeal:
Division of the Court of Appeal to which the Appeal was brought: Court of
Appeal, Lagos
Names of Justices that sat on the Appeal: Dahiru Musdapher,
J.C.A. (Presided); Emmanuel Olayinka Ayoola, J.C.A. (Read the Leading
Judgment); Ignatius Chukwudi Pats-Acholonu, J.C.A.
Appeal No: CA/L/154/93
Date of Judgment: Wednesday, 14 February, 1996
Names of Counsel: A.F. Okunuga - for the Appellant
H.A. Odufalu - for the Respondent

High Court:
Name of the Judge: Desalu, J.
[1996] 7 NWLROnabanjo v. Efunpitan(Ayoola, J.C.A. )759
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Counsel:
A.F. Okunnuga - for the Appellant

H.A. Odufalu - for the Respondent

AYOOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal from a

decision of the High Court of Lagos State whereby judgment was given for the
plaintiff, now respondents, for damages for trespass and perpetual injunction.
The action from which this appeal arose relates to a piece of land situate at a
place called Ojuemuren village which the respondents claimed that the
appellant, then defendant, unlawfully entered between 1976 and 1977 and
proceeded to erect a house on. The respondents based their claim on title
traced to their ancestor and their undisturbed possession of the land. The
appellant resisted the respondents' claim alleging that he was entitled to the
land by the fact of purchase from one Aliu Sanya described as a member of one
Ojuemuren family upon an allotment of the land by that family to the said Aliu
Sanya. The appellant thus pitched the title of Ojuemuren family against that of
Oshimremolu Eletu family of Ikorodu on whose behalf the respondents had
claimed in a representative capacity. There was no dispute as to the identity of
the land in question, it being well described on the plans filed by the
respondents.
After a careful review of the evidence, the learned Judge (Desalu, J.) came to
the conclusion that the land in dispute formed portion of the land of
Oshimremolu Eletu family and therefore the respondents were owners thereof.
He also found that family exercised various acts of ownership on the entirety of
the land and were entitled to exclusive possession thereof. The learned Judge
who rejected the title claimed by the appellant found that the appellant was a
trespasser on the land. He described the trespass committed by the appellant as
wanton. After awarding damages of N200 to the respondents, he ordered a
perpetual injunction against the appellant in the usual terms from committing
any further acts of trespass on the land.
The only question on this appeal is whether the learned Judge erred in law
in granting an order of perpetual injunction. That issue arose from the only
ground of appeal argued, the nub of which is that as there was no evidence from
the respondents that an award of general damages would not be an adequate
remedy having regard to the circumstances of the whole case, the learned Judge
ought not have ordered a perpetual injunction. However, the appellant has
formulated the issue for determination in the appeal in wide and academic
terms as follows:-
" ...............whether once the lower court has granted a claim for damages for
trespass, it must as a matter of practice grant the ancilliary claim for an order of
perpetual injunction."
 It is not necessary to dwell on the absence of specificity in the issue so
formulated. It suffices to point out that it is inappropriate to formulate an issue
for determination in general terms and in such a way that the answer is
predictable generally without regard to the facts of the case and rationes of the
decision appealed from.
Be that as it may, the substance of the argument advanced by counsel on behalf
of the appellant is that the learned Judge made no findings to warrant the order
of perpetual injunction. It was argued that the learned Judge did not state
760Nigerian Weekly Law Reports14 October 1996(Ayoola, J.C.A. )
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which of the two guiding principles he had set out fit the circumstances of the
case as found by him. The learned Judge had stated the principle thus:-
"It is settled law that where damages were awarded for trespass to land and
there is an ancilliary claim for injunction, the court will grant an injunction,
(i)to prevent multiplicity of suits see: Hanson v. Gardiner 32 E.R. 135 or
(ii)to prevent irreparable damage or injury or irremediable mischief.
The attitude of the court has always been that where award of damages is
considered to be an inadequate remedy, the protection of the right in specie is
the only mode of doing complete justice and this could only be achieved by
granting an injunction." See: Obanor v. Obanor (1976) 2 SC 1 at 6.
Learned counsel for the appellant criticised this passage as inconsistent
oblivious, apparently, of the fact that it was lifted and quoted from the
judgment of the Supreme Court in Obanor v. Obanor. Mature reflection should
have revealed no inconsistency in the passage quoted. Learned counsel for the
respondents captured and encapsulated the true essence of the passage when
he submitted that the passage merely sets out, in the alternative, the ends
which an order of perpetual injunction is intended to serve. Broadly, the two
classes of cases in which jurisdiction to order perpetual injunction will be
ordered when trespass to property has been committed are:
(i)where there would be an irreparable damage or if the act would be
destructive where an injunction to restrain is not ordered; and
(ii)where a failure to exercise the jurisdiction would lead to multiplicity of suits.
A clear and useful formulation of the principle determining the jurisdiction is
contained in Nelson s Law of Injunction as follows (at Pp. 372-373):
"The principle determining the jurisdiction embraces two classes of cases, and
may be correctly formulated as follows:-
 (1) If the trespass, although a single act, is or would be destructive,if the
injury is or would be irreparable - that is, if the injury done or threatened is of
such nature that when accomplished, the property cannot be restored to its
original condition or cannot be replaced by means of compensation in money -
then the wrong will be prevented or stopped by injunction;
(ii) If the trespass is continuous in its nature, if repeated acts of wrong are
done or threatened, although each of these acts taken by itself may not be
destructive, and the legal remedy may, therefore be adequate for each single act
if done, then also the entire wrong will be prevented or stopped by injunction,
on the ground of avoiding a repetition of similar action.
Then the learned author went on:
"In both cases the ultimate criterion is the inadequacy of the legal remedy. The
legal remedy is not adequate simply because a recovery of pecuniary damage is
possible. It is only adequate when the injured party can by one action at law,
recover damages which constitute a complete and certain relief for the whole
wrong - a relief virtually as efficient as that given by a court of equity."
The principles were enunciated in similar vein in Volume 24 Halsbury's Laws of
[1996] 7 NWLROnabanjo v. Efunpitan(Ayoola, J.C.A. )761
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England 4th Edition para. 926 as follows: -

"Prima facie the court will not grant an injunction to restrain an actionable
wrong for which damages are an adequate remedy. When the court interferes
by way of injunction to prevent an injury in respect of which there is legal
remedy, it does so on either of two distinctive grounds; first the injury is
irreparable, and second it is continuous."
On this appeal, apart from the misconceived criticism of the reference by the
Judge to these principles, it has not been suggested by counsel for the appellant
that they are not applicable. What is argued is that the learned Judge ought to
have allocated the facts found to either of the two classes of cases in which
jurisdiction to order an injunction to restrain trespass to property can be
exercised.
In my view, that argument is erroneous. When the findings made by a court
support an order made by the court, the order does not become defective
merely because the Judge did not state which of two or more categories of
circumstances the case fell into. The determining factor in this case is whether
the findings made in the action disclose an inadequacy of the legal remedy of
damages to meet the circumstances of the case.
When such inadequacy is disclosed the equitable relief by way of perpetual
injunction is justifiable.
In the present case, the findings made that the respondents' family are the
owners of the land in question, and that the appellant wantonly committed acts
of trespass on the land in dispute and erected building thereon are sufficient to
support the order of perpetual injunction. The buildings erected on the land
wrongfully by the appellant constitute a continuing trespass which can support a
claim for damages as long as they remained on the land. The injunction was
therefore validly ordered to restrain a continuous trespass and further threats of
trespass.
That, I venture to think is sufficient to dispose of the appeal: However, the
appellant's counsel argued further points in his brief of argument which do not
rightly fit into the four corners of the issues formulated when it was argued that
(i) the appellant had completed his building long before the action was
instituted and (ii) the learned trial Judge did not find the conduct of the
appellant reprehensible.
These points are evidently without substance. There is nothing in the
statement of defence to show that the appellant relied on any of the equitable
defences such as laches and acquiescence. The issue whether if the building had
been completed before the action was commenced the respondent should have
been deprived of equitable relief did not arise, in the case, moreso as the claim
was not for a mandatory injunction. As for the conduct of the appellant, even if
this was relevant, the description of the trespass as wanton sufficiently
describes what, in the Judge's view, was the appellant's conduct. Besides, if
conduct of the parties were a relevant factor, it is the conduct of the person
claiming an injunction that should be paramount in deciding whether he is
deserving of assistance by a court of equity. In an action of trespass the conduct
of the trespasser goes properly to aggravation or mitigation, as the case may be,
of damages. An innocent, well mannered and considerate trespasser is none-
the-less a trespasser whose act is liable to be restrained if the circumstances so
justify notwithstanding his good conduct. An order of injunction is protective of
rights and interests rather than punitive of persons.
762Nigerian Weekly Law Reports14 October 1996(Ayoola, J.C.A. )
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The suggestion that the learned Judge ordered, an injunction as a matter of

policy without regard to the circumstances is absolutely without substance. His
statement that in the circumstances this was a proper case to order an
injunction demonstrates sufficient regard to the circumstances. His reference to
the order made in the previous cases (as per Exhibits D and D') against the
predecessor-in-title of the appellant emphasised the need to put an end to
multiplicity of actions on the land. It being manifest that the findings earlier
made are sufficient to sustain the order, the reference to the previous orders
made against the appellant's predecessors in title were on their own not of
decisive importance.
On the whole, there is really no iota of merit in this appeal. In the result, I would
dismiss the appeal with N3,000 costs to the respondents.

MUSDAPHER, J.C.A.: I have had the opportunity to read before now the
judgment of my lord Ayoola, J.C. A., just delivered with which I agree. The
appeal is devoid of any merit. It is also dismissed by me. I abide by the order for
costs contained therein.

PATS-ACHOLONU, J.C.A.: I have read in draft the judgment of my learned and

noble brother lord Ayoola. He has restated the law in respect of when a court
may make an order for injunction after finding a defendant a trespasser. I have
nothing more to add. I abide by the order made thereunder.

Appeal dismissed