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In The Supreme Court of Nigeria

On Thursday, the 8th day of June 1990

SC 132/1986

 

Before Their Lordships

 

 

Andrew Otutu Obaseki

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

  

Between

 

S. A. Adebanjo

......

Appellants

 And

A. A. Brown

.......

Respondent

 

Judgment of the Court

Delivered by

Saidu Kawu. J.S.C.

 

 

Alfred Adeyinka Brown, who was the original plaintiff in this case in the High Court died on the 6th day of September, 1984, and the present respondent, one of his children, was substituted in his place. So all references to "the Plaintiff" or "the Respondent" in this judgment will be to the original plaintiff.

 

In the High Court of Lagos State, the respondent as plaintiff brought an action against the appellant. claiming in his amended writ of summons as follows:

 

1.      N2,000.00 (Two Thousand Naira only) being special and general damages for trespass committed by the defendant on the plaintiff's land at Tanimeda. in the Surulere district of Lagos, Lagos State within the jurisdiction of this Court, a plan of which land, that is to say the plaintiff's land is attached marked 'A'. numbered 1, 9 and 10 and edged Red.

 

2.      Perpetual injunction restraining the defendant, his servants and or agents from further trespassing on the said land or any part of same. Annual value of land is approximately N2,000.00.

 

Pleadings were ordered and filed, and in paragraphs 10, 11,12,13,14, 15,16,17 and 18 of the amended statement of claim, the plaintiff averred as follows:

 

10.    By virtue of an Indenture of Conveyance dated the 16th day of December, 1967 and registered as No.87 at page 87 in Volume 1268 of the Register of Deeds kept in the Lands Registry Office in Lagos. the children of the aforesaid Albert Edward Brown (deceased) sold and convened three (3) plots. Plots 1, 9 and 10, which are a portion of the said land referred to in paragraph 4 above to the plaintiff for an estate in fee simple absolute in possession free from all incumbrances whatsoever. The plan of the 3 plots which is Plan No. AL69/ 1966 is attached to the amended writ of summons and marked Al drawn by S. A Alaka, Licensed Surveyor on the 1st day of September, 1966 and edged RED.

 

11.    Since his purchase of the said land the plaintiff has entered into full free continuous and undisturbed possession of an1L exercising maximum rights of ownership and/or possession over same without any let or hindrance until the series of acts unleashed by the defendant.

 

12.    In and during the month of December, 1973 the defendant without any authorisation from or by the plaintiff trespassed unto plot 10 of the plaintiff's land (hereinafter referred to as the land in dispute) and with a caterpillar vehicle destroyed the extensive crops planted by the plaintiff on the said land and at the same time the defendant sought to commence building operations on the said land.

 

13.    The plaintiff caused his Solicitors to write on 22nd December, 1973 to the defendant warning him to desist from so building on plaintiff's land and demanding an amount of N200.00 (two hundred naira) for the crops so far destroyed.

 

14.    The defendant started to make approaches to the plaintiff that he would purchase the land from the plaintiff whilst at the same time he continued despite the warning not to build on the said land.

 

15.    In and during the month of January, 1977, and without any authorisation or permission from the plaintiff the defendant vi et armis pulled down part of the walls (concrete) of the plaintiff's buildings on the land and proceeded to wall round into his own close that part of the plaintiff's land.

 

16.   In the course of the operation described in paragraph 15 herein the defendant -

 

(i)    Spread out and wasted and scattered some ten pile of building sand, which the plaintiff had accumulated on his land.

 

(ii)    damaged the barrier by which the plaintiff had hitherto shut out water from and into his house and thereupon water in large quantities flowed into and damaged properties in the house of the plaintiff.

 

17.    The area trespassed upon by the defendant is edged Green on the land in dispute and should (sic) on the attached composite plan marked B1 which is numbered AL14/19881 drawn by S.A. Alaka, Licenced Surveyor on the 30th day of April, 1981 and the defendant is holding on to the said plaintiff’s land and trespasses into turn out the hooligans and thugs that he maintains regularly on the said land.

 

18.    WHEREFORE the plaintiff claims against the defendant as follows:-

 

(i)    N2,000.00 (two thousand naira) being special and general damages for trespass made up as follows:-

    

A.

Special Damages:

Cost of crops destroyed  N200.00
Cost of sand scattered   N 420.00
Cost of wall fence broken N300.00
Cost of properties damaged by water N150.00
N1,070.00

B.

General Damages:

N930.00
N2,000.00

                       

   

(ii)    Perpetual injunction restraining the defendant, his servants and/or agents from further trespassing on the said land or any part of same.

 

In his amended statement of defence, the defendant pleaded as follows:-

 

1.      Save and Except as are hereinafter specifically admitted the defendant denies each and every allegation of facts contained in the statement of claim as if each were set out seriatim and specifically denied.

 

2.      With reference to paragraph (I) of the Ant ended statement of claim, the defendant admits that the plaintiff is a retired private gentleman but states further that he lives at No. 1, Modupe Ore Close, Aguda. Surulere since December 26th, 1974 but denies that his residence is within the area known as Tanimeda, which is still quite some distance to Modupe Ore Close.

 

3.      The defendant admits that he is a Legal Practitioner as stated in paragraph 2 of the amended statement of claim and states further that he lives at Plot 3 Block 1V, Nuru Oniwo Street, Aguda.Surulere since December 22nd, 1973, a place which is next door to the plaintiff.

 

4.     The defendant denies paragraphs 3,4, 11, 12, 13, 14, 15, l6, 17 and 18 of the amended statement of claim and puts the plaintiff to the very strictest proof of the averments in each of the aforesaid paragraph.

 

5.     The defendant denies paragraphs 5, 6, 7, 8, 9 and 10 of the statement of claim and puts the plaintiff to the very strict proof thereof.

 

6.      The defendant avers that the Deed of Conveyance recited in paragraphs 4 and 10 of the amended statement of claim confers NO TITLE to the plaintiff to the strictest proof of his title.

 

7.      The defendant says that the plaintiff did not exerts any rights of ownership and/or possession over the land in dispute as claimed in paragraph 11 of the statement of claim and puts him to the very strict proof of same.

 

8.     The defendant avers that he moves into a portion of what is described as Plot No. 10 in the Plan marked ‘A1’ ATTACHED TO THE amended statement of claim clearly in 1972 with the full knowledge/consent and approval of the plaintiff.

 

9.     The defendant avers that the plaintiff knew and was present when the defendant was developing his property and he stood by and allowed the defendant to complete the development of the said property before he talks of encroachment.

 

10.    When the defendant was developing his property in 1972, the plaintiff and the defendant's vendors - the administrators of Alhaji N B. Soule - headed by Engineer M S. Sulaiman mutually agreed that the whole of Plot l0 in the plan marked 'Al' and attached to the amended statement of claim should be released to the defendant since it forms part of plot 3 in Block IV in N .B. Soule's layout TPAO 289 which had earlier been sold by the administrators of Alhaji N.B. Soule to the defendant.

 

11.    The defendant's vendors, i.e.' the administrators of Alhaji N.B. Soule agreed in return to convey Plot 2A in Block 11 of N.B. Soule's layout TPAO 289 to the plaintiff.

 

12.    As a result of this agreement the plaintiff removed the shed, which he had constructed on part of Plot 10 to Plot 9 at the expense of the defendant.

 

13.    That whilst the plaintiff was developing plot 9 in the plan marked 'Al' he encroached in plot 10 which he had earlier agreed to release to the defendant in exchange for another plot to be given to him by the defendant's vendors.

 

14.    When the defendant complained to the plaintiff that he had encroached on the plot 10 which he had agreed to release to defendant in exchange for another one, the plaintiff retorted that it was only the area of land that he eventually released to the defendant that should be replaced for him.

 

15.    Thereafter the defendant asked the plaintiff to demarcate the extent to which he would release part of plot 10.

 

16.    The plaintiff then took a tape and with the assistance of his foreman marked the spot of the present boundary wall of the defendant and the plaintiff as the extent he was prepared to part with plot 10.

 

17.    The defendant's vendors then informed the plaintiff that since he did not release the whole of the promised plot to the defendant, they had no half plot to give to him but that he could only be compensatcd in cash for the portion of plot 10 released to the defendant.

 

18.    The plaintiff demanded that the area of plot 10 released should be surveyed before he could decide on the amount of compensation he would demand.

 

19.    To this end, the plaintiff sometime in 1976, directed the defendant to the family surveyor of the plaintiff. Aihaji S.A. Alaka, to conduct the necessary survey.

 

20.    The defendant therefore paid Alhaji S.A. Alaka the necessary fees for the survey of the portion of plot 10 released to the defendant.

 

21.    Consequently, plan No. AL9/1976 was prepared by Alhaji S A Alaka on the 10th of February, 1976.

 

22.    After the completion of the survey, when the plaintiff was asked to make his demand for the amount of compensation, the plaintiff turned round to deny ever giving his consent and started to harass the defendant on the land.

 

23.    The defendant thereafter made peaceful approaches to the plaintiff through his close friends and relatives, amongst these are Mrs. Beyioku, M.B.A. Agusto, late Mr. Vera Cruise and Alhaji S.A. Alaka.

 

24.    The defendant avers that he did not use a caterpillar vehicle to destroy any crop planted by the plaintiff as alleged in paragraph12 of the amended statement of claim and put the plaintiff to the strictest proof of every averment in the said paragraph.

 

25.    The defendant denies receiving any letter from the plaintiff's Solicitor at any time.

 

26.    The defendant specifically denies paragraphs 15 and 16 of the statement of claim and avers (a) that he did not pull down part of the concrete wall of the plaintiff's buildings; (b) that the plaintiff had no building sand on the land; (c) that he did not damage any barrier erected by the plaintiff on the land. The defendant therefore puts the plaintiff to the strictest proof of the aforesaid paragraphs.

 

27.    With reference to paragraph 17 of the amended statement of claim, the defendant strongly denies trespassing on the area marked Green in the composite plan marked `B1’ which is number ALl4/1981 and would contend at the trial that the said area was willingly released to the defendant by the plaintiff and avers that he maintains no thugs or hooligans to threaten the plaintiff or anybody.

 

28.    The defendant will plead and rely at the trial on all legal and equitable defences open to him namely laches, acquiescence, standing-by, stale claim and limitation laws.

 

29.    The defendant also pleads that the plaintiff's claim also lacks merit and should be dismissed.

 

At the trial plaintiff gave evidence. His case was that one-day he went to his plot 10 and met the defendant's workers constructing a foundation on it. He told them to stop but they did not. He later met the defendant and told him that he was trespassing on his land and that if he did not stop the trespass, he would sue him. It was his case that despite this warning, the defendant defiantly proceeded with the construction of his building and in fact completed the same after destroying his crops and cement blocks on his land. The defendant, he also claimed, demolished his wall fence which enclosed portion of his plot. Three other witnesses testified in support of his claim.

 

The defendant's version was entirely different as could be readily gathered from his pleadings. His evidence, which was in substantial conformity with all the material averments of his amended statement of defence, was that while digging the foundation of his building, he discovered that part of his plot fell into the plaintiff's plot (plot 10) and that he immediately reported the matter to his vendors. The defendant's vendors with the defendant then approached the plaintiff who agreed to release the whole of his plot l0 in exchange for another plot to be given by the defendant’s vendors. There was evidence that a member of the defendant's vendors family showed the plaintiff their plot 2A Block 2 in Layout No.289 which was to be substituted for the plaintiff's plot No.10. It was the defendant's case that this arrangement was acceptable to the plaintiff.

 

Subsequently, the defendant proceeded with the construction of his building. However when plaintiff commenced his own building on his other plot (plot 9), he extended the building to plot 10, which he had agreed to release to the defendant. When this encroachment on the part of the plaintiff was pointed out to him, he said that in the circumstances, he would no longer insist on having the whole of Plot 2A Block 2 which was equivalent to what was left of plot 10. The defendant then suggested to the plaintiff that he should demarcate the exact portion of plot 10 which the plaintiff was prepared to release to him, so that he might tell his vendors to give to the plaintiff a piece of land equivalent in size to that which the plaintiff was releasing. The plaintiff accepted the suggestion and demarcated the extent of plot 10 he would be releasing. The defendant then dug a foundation for a wall fence and subsequently constructed his building on the newly demarcated line. In consequence of this new agreement, the plaintiff voluntarily removed a shed he had erected on plot 10 to plot 9, the expenses of which, at the insistence of the plaintiff, were met by the defendant. However the defendant's vendors said that since the plaintiff did not release the whole of plot 10 to the defendant as previously agreed, they had no half plot, which they could give to the plaintiff, and suggested that the plaintiff should accept monetary compensation. The plaintiff agreed to do so on the condition that the piece of land to be released should be first surveyed so that he would be in a better position to decide on how much he would demand. The defendant then continued with his building operations under a genuine belief that his land now extended to one half of plaintiff's plot 10.

 

It was the defendant's case that the survey required by the plaintiff had been prepared by p.w.2 (which is Exhibit E') and the plaintiff was asked to name how much money compensation he would demand, the plaintiff abruptly changed his mind about the agreement and asked the defendant to remove his building which the defendant had completed.

 

At the conclusion of the hearing, the learned trial Judge, Oguntade, J. (as he then was) very carefully and meticulously considered the totality of the evidence by both parties, and having observed that the plaintiff 'had come to court to tell nothing but lies in support of his claim", made the following important findings of fact. He said:-

 

I find as a fact that the plaintiff having discovered that the defendant encroached upon his land went into an arrangement with the defendant and defendant's vendors to have a plot of land in exchange for that encroached upon.

 

I also find as a fact that when it was discovered that plaintiff had built on part of plot 10, the original arrangement was revised and that plaintiff agreed to take monetary compensation in lieu of the land encroached upon.

 

I find as a fact that it was in furtherance of this arrangement that the plaintiff voluntarily removed his shed from plot 10 and re-installed it on plot 9 at the defendant's expense.

 

I also find as a fact that the plaintiff and the defendant in furtherance of the arrangement went to p.w.1 to prepare Exhibit 'E' so that the defendant might know how much to pay to plaintiff for the area of land encroached upon. Why would defendant just go and pay his money to p.w.1 for the preparation of Exhibit 'E' if not for that purpose? And what was plaintiff doing with defendant in p.w.1's house on that mission?

 

I find as a fact that the whole of plaintiff's actions and con-duct were directed to convey to defendant that plaintiff would not insist on his strict proprietary rights over the land and that such actions and conduct did so convey such to the defendant.

 

The evidence of the defendant and D.W. 1 are in my view the more probable as the evidence draws substantial support from the witness called by plaintiff, that is, p.w.1.

 

The evidence of P.W.2 I reject as plain fabrication.

 

The whole attitude of defendant clearly evinces remorse and anxiety to reach an understanding with plaintiff after the encroachment was discovered.

 

He finally concluded that the plaintiff's case in trespass had not been made out and he accordingly dismissed it. He also refused to grant an injunction.

 

Being dissatisfied with the decision of the learned trial Judge, the plaintiff appealed to the Court of Appeal, Lagos Judicial Division, and that court, by the lead judgment of Ogundare, J.C.A., with which Kutigi and Kolawole, JJ.C.A., concurred, on the 21st day of January, 1986, allowed the appeal and

 

(i)     awarded N250.()0 as general damages for trespass committed by the defendant in 1972;

 

(ii)    awarded N100.00 as damages in lieu of an injunction in respect of the portion of the plaintiff's land occupied by the defendant's building, and

 

(iii)   granted an injunction restraining the defendant from further trespassing on the portion of the plaintiff's land less that which the defendant's building occupies.

 

The defendant has appealed to this Court from that decision.

 

Altogether there were twelve grounds of appeal filed by the appellant hut as these grounds have been fully taken into account in the issues raised for determination, I do not think it is necessary to set them down.

 

In his brief of argument, Chief G.O.K. Ajayi, S.A.N., for the appellant, formulated nine issues for determination in this appeal and his first issue is as follows:-

 

Whether the Court of Appeal correctly appraised the evidence which was actually given before the learned Judge when it held that the offer of an alternative plot of land made by the Defendant was withdrawn by the Defendant or that the Defendant reneged on the offer of exchange.

 

This issue relates to a passage in the lead judgment of Ogundare, J.C.A., at p.196 of the Record where the learned Justice of Appeal while stating the facts of the controversy between the parties, said as follows:-

 

The plaintiff and the defendant were adjoining land owners. The plaintiff was the owner of Plots 9 and 10 in the Brown Layout. The said Plot l0 is adjacent to a parcel of land sold to the defendant by the Nuru Oniwo family. While the defendant was developing his land he encroached on plaintiff's land.

 

The plaintiff was in possession of his land at the time of the encroachment on it by the defendant. On discovering the encroachment the plaintiff protested to the defendant and attempts were made at a settlement. An offer of an alternative land was made to the plaintiff by the defendant's vendors in lieu of plot 10 but when it was discovered that the plaintiff in developing his plot 9 had built also on a part of plot 10, this offer was withdrawn.

 

It was the submission of Chief Ajayi, S.A.N., that the Court of Appeal was greatly in error to have formed the view that the offer of an alternative parcel of land made by the defendant's vendors was withdrawn when there was no evidence to support such a finding. I agree with his submission. Negotiations between the parties relating to the offer of an alternative plot were pleaded in paragraphs 10, 11 and 12 of the defendant's amended statement of defence already set out earlier in this judgment, and there is nothing in the defendant's pleadings, or in his evidence at the trial suggesting that the offer of an alternative plot was, at one particular stage of their negotiations, withdrawn. The evidence of the defendant on this issue, which the learned trial Judge accepted, is as follows:

 

I told my vendors that the land they sold to me is part of the land belonging to plaintiff. My vendors and I approached the plaintiff. Plaintiff said as he was preparing to build on plot 9, he would be pleased to build near a lawyer. He suggested that he would be prepared to completely relinquish plot 10 if my vendors would give him another plot of land in substitution. My vendors agreed to give plaintiff another plot of land in exchange for plot 10. I then carried on the construction.

 

This evidence was supported by that of D.W.1 - Monsur Sulaiman, a member of the defendant's vendor's family who testified that the family offered plot 2A Block 2 in Lay-out No. TPAO 289 to the plaintiff which plot was actually shown to him and who agreed to accept it in exchange. The finding, as Chief Ajayi rightly pointed out, could not have been based on the evidence of the plaintiff, as he gave no evidence on the issue. I agree the Court of Appeal misdirected itself when it made a finding, which was not supported by evidence.

 

The second issue for determination is in fact closely related to the first one and that is whether the Court of Appeal was right in its conclusion that the defendant reneged on the agreement for the exchange of plots. Again there is no evidence to support such a conclusion. The evidence before the trial court was that the agreement with the plaintiff for the exchange of the defendant's vendors plot 2A Block 2 for the plaintiff's plot 10 could not be carried out because the plaintiff had made it impossible to do so as he had extended his building into plot 10. In any case, the plaintiff's case was that there was never any agreement between him and the defendant for exchange of plots. That was his case both in the High Court and in the Court of Appeal, and by holding that the defendant reneged on an agreement between him and the plaintiff, the existence of which agreement the plaintiff flatly denied, the Court of Appeal would, in my view appear to be making out a case for the plaintiff which he did not in fact make for himself, and that would be a violation of a well settled principle that a court should not make out a case for a party which he does not make for himself.

 

The next complaint is that the Court of Appeal unjustifiably interfered with the trial court's findings of fact, which were supported by the evidence adduced. It is clear on the record that several findings of fact made by the trial court were rejected by the Court of Appeal, and in my view, the Court of Appeal was clearly in error to have done so, when each finding made by the learned trial Judge was borne out by the evidence adduced and when it had not been shown that the conclusions on the findings were perverse, unreasonable or unsound; nor had it been shown that some substantial principle of law or of procedure had been violated or that there had been occasioned a miscarriage of justice. See Otuoha Akpapuna & Ors. v. Obi Nzeka & Ors. (1983) 2 SCNLR 1; Ebba v. Ogodo [1984)1 SCNLR 372 and Chikwendu v. Mbamali & Anor. (1980) 3 & 4 S.C. 11.

 

The fourth issue raised is whether the Court of Appeal was right in its conclusion that the break down of the negotiations between the plaintiff and the defendant was caused by the defendant when in fact it was the plaintiff who caused the collapse of the arrangement. In this regard reference was made to a passage in the judgment of Ogundare, J.C.A., at p.203 line 25 to E p.204 line 11 where the learned Justice of Appeal said:

 

It is, in my view, clear on the evidence that following defendant's act of trespass efforts were made to effect a settlement of the dispute thereby arising. The plaintiff cooperated fully with the defendant in these efforts and had the defendant been serious with the negotiations to reach a settlement it would not have taken all that time to reach an accord with the plaintiff. The trespass was in 1972 when defendant was at the foundation stage of his building. He and his vendors made the approach to the plaintiff to settle; they offered him an alternative land instead of plot 10 trespassed upon. They later reneged on that offer on the ground that plaintiff's building extended to part of Plot 10. Defendant offered to pay compensation to the plaintiff by way of cash in lieu of part of Plot 10 to be annexed to his land. There is no evidence he offered to pay any particular amount. In the meantime, he continued with his building which he completed and he moved into it in December 1973. Surely, he must know he was taking a risk. Plaintiff went to court in February 1977, that about 5 years after defendant’s act of trespass. If it took defendant, a wrong-doer, all that time to settle with the plaintiff. I cannot see how it can reasonably be said that plaintiff was to blame for the breakdown of negotiation. During the interval the defendant had annexed part of Plot 10 to his land and built a fence with as much reaching an agreement with the plaintiff let alone paying him for his land that he (defendant) annexed.

 

The substance of Chief Ajayi's complaint here is that there is no evidence whatsoever on the record to support the view of the learned Justice of Appeal that the breakdown of the negotiation was the sole fault of the defendant. nor was there any evidence to support the finding of the learned Justice of Appeal in that passage that during the negotiation, the "plaintiff cooperated fully with the defendant in his effort to find a settlement." Again I agree that this is another misdirection on the part of the Court of Appeal as the evidence before the trial court shows clearly that it was in fact the plaintiff who made it impossible to implement the arrangement on exchange of plots when he extended his building on to Plot 10 which he had previously agreedto release to the defendant.

 

With regard to issues 5 and 6, the question is whether, on the evidence before the trial court, that court was right in its decision that the plaintiff's evidence had amounted to estoppel by representation. I think it was. Brieflv stated, the evidence adduced was that after the defendant had discovered that he had trespassed on the plaintiff's land (plot 10), the defendant and his vendors approached him and an agreement was reached by both parties. The agreement was that the plaintiff should have Plot 2A Block 2 in substitution for his plot No. 10 on which the defendant had trespassed. Plot 2A Block 2 was shown to the plaintiff and he agreed to accept same and relinquish the whole of plot 10 to the defendant. In furtherance of the agreement he removed his shed which had been erected on the portion of plot 10 that had been released to the defendant and asked the defendant to pay the expense of its removal and re-installation, which the defendant did. At that stage the plaintiff's conduct had no doubt induced the defendant to believe that the plaintiff had waived his right to prosecute him for the initial trespass and so the defendant continued with the construction of his building. Consequently, however, the plaintiff, while constructing his own building, trespassed upon the plot which he had already released to the defendant. When it was pointed out to the plaintiff that he, in turn, had encroached upon what had now become the defendant's land as a result of the first agreement, the plaintiff suggested, and the defendant agreed with the suggestion, that he should be paid compensation for half of plot 10. He then demarcated the boundary of plot 10 to be retained by the defendant and the defendant built his boundary fence on the line demarcated. Thereafter the plaintiff got p.w.2 to make a survey of the portion of plot 10 released to the defendant so 0 enable him assess the amount of money to be paid to him by the defendant for the portion.

 

The learned trial Judge considered and accepted all these facts, and accepted all the factsand having set out at p.122 of the record, the doctrine of estoppel by election as stated at page 324, paragraph 318 of Spencer Bower and Turner on Estoppel by Representation (3rd Edition), concluded that the doctrine applied. He said

 

I have no doubt in my mind that all the ingredients to make the doctrine of estoppel by election applicable are present in this case.

 

If an owner in possession of land finds a trespasser on his land, his duty is to take steps to evict him. In this case, the plaintiff did not evict defendant. He in fact gave him more space by removing a shed from plot 10 to plot 9 as if telling the defendant to encroach the more. The plaintiff asked for and obtained money to reinstal the shed elsewhere. The plaintiff bargained to sell the land and went with the defendant to P.W. I to know the extent of the land and consequently the amount to be asked for. Parleying with a trespasser and entering into an agreement to sell is certainly inconsistent with plaintiff's rights at law to evict The plaintiff was aware of the facts for he knew the defendant had encroached upon his land. Plaintiff knew his options for he gave evidence that he told defendant he would sue him. I also have no doubt that the plaintiff had knowledge of his right to elect. He merely wanted to use that knowledge as a leverage to obtain a higher price for the land encroached upon. The defendant has now acted to his detriment by placing reliance on plaintiff's election.

 

The submission of Mr. Faboro for the respondent on this issue is that the learned trial Justice erred in law by "finding the plaintiff guilty of estoppel by representation as well as estoppel by election when the plaintiff did not in fact know or understand what he was bargaining for either on the exchange of land or its cash price." I see no merit in this submission. I am satisfied that on the facts before the learned trial Judge he was right in his conclusion that the doctrine applied.

 

At p.205 of the record, Ogundare, J.C.A., in his judgment said:-

 

From all I have been saying, I am of the view, and I so hold, that the trial Judge was wrong in basing his judgment on a defence not pleaded by the defendant and in wrongly applying that defence to the facts before him.

 

With respect, the learned Justice of Appeal was wrong to have come to such a conclusion.

 

Now, in paragraph 28 of his amended statement of defence. the defendant pleaded that "the Defendant would plead and rely at the trial on all legal and equitable defences open to him namely laches, acquiescence. standing by, stale claim and Limitation Laws", and in paragraph 9 the defendant clearly pleaded facts, which in his view, amounted to equitable defence of acquiescence which he had in mind. That paragraph states that "the plain-tiff knew and was present when the defendant was developing his property

and he stood by and allowed the defendant to complete the development of the property before he talked of encroachment."

 

While it is the rule, as stated by this Court in Jbenwelu 1~. Lavval (1971) 1 All N.L.R. 23 at p.24 that all equitable defences must be pleaded fully and with full particulars, it is my view that in this case the defendant sufficientlv complied with this requirement. Paragraph 9 of his amended statement of defence read together with paragraphs lo, 11, 12, 13 and 14 adequately pleaded the facts constituting the defence in respect of which evidence was led Ills not necessary to plead estoppel in any special form so long the matter constituting estoppel is stated in such a manner as to show that the party pleading relies upon it as a defence or answer. See Bullen and Leake's Precedents of Pleadings, 6th Edition, p.646.

 

As to whether there was present a valid and enforceable contract between the parties, the evidence adduced before the trial Court, which that court accepted, was that the plaintiff agreed to give to the defendant the whole of plot 10 and to receive in exchange plot 2A Block 2 in the N. B. Soule Lay-out Plan No. TPAO.289. This agreement could not be implemented because the plaintiff., when developing his other plot (plot 9) encroached on plot 10 which he had agreed to relinquish to the defendant. A second agreement was later reached whereby the plaintiff would no longer insist on having the whole of plot 2A Block 2, but only so much of it that was equivalent to what was now left of plot 10. The defendant's vendors told the plaintiff that as they had no half plot, the defendant could only pay cash for the portion of plot 10 released to him. The plaintiff agreed to this arrangement and asked that the portion to be released should be surveyed so as to enable him assess the amount he would demand for it. There was evidence that the survey of the area of land involved was eventually made (Exh.E), and it was after this had been done that the plaintiff turned round and asked the defendant to remove his building. On the facts of this case, in my view no enforce able contract had come into being between the parties. The plaintiff agreed to relinquish Exh E' to the defendant and the defendant agreed to accept Exh. E' for a sum of money as consideration, which amount the plaintiff was to name. No agreement had been reached by the parties. In my view, there is merit, on this point, in the submission of learned counsel for the respondent that what in fact happened was at best an intention to sell or a proposal on the part of the plaintiff to sell the portion of land, plot 10, which never matured into actual sale."

 

Having given every careful consideration to the whole of this case, including all the respondent's counsel's submission in this brief of argument, I have come to the conclusion that from all I have been saying, this appeal ought to be allowed in part and it is accordingly allowed. The judgment of the Court of Appeal, Lagos Judicial Division, given on the 21st of January. 1986, is hereby set aside in part. I also set aside the sum of N250.00 general damages awarded against the defendant in favour of the plaintiff for trespass and. also set aside, is the N100.00 damages awarded against the defendant in lieu of an injunction in respect of the portion of plaintiff's land occupied by defendant's building. However, I grant to the plaintiff an injunction rest- 0 raining the defendant his servants and/or agents from further trespassing on plaintiff's land or any part thereof less the portion on which the defendant's building abuts and occupies, which said land is delineated and edged RED on plan No. AL6911966 attached to Exhibit C tendered at the trial in the High Court. In effect I affirm the order of the injunction granted by the Court of Appeal.

 

The respondent shall pay the appellant costs of this appeal assessed at N500.00.

 

 

Judgment delivered by

Obaseki. J.S.C.

 

I have had the advantage of reading in draft the judgment just delivered by my learned brother, Kawu, J.S.C., and I agree with him that the appeal be allowed and the judgment of the Court of Appeal set aside and the judgment of Oguntade, J., restored. But since there is no agreement yet on the price to be paid, there will be an order of injunction restraining the appellant from trespass outside the area occupied by his building.

 

By his writ of summons, the plaintiff/respondent, in the High Court of Lagos State instituted an action against the defendant/appellant claiming:

 

1.       N2,000.00 (Two thousand Naira only) being special and general damages for trespass committed by the defendant on the plaintiffs land at Tanimeda, in the Surulere district of Lagos State within the jurisdiction of this court, a plan which land, that is tosay, the plaintiff's land is attached, marked 'Al' numbered 1, 9 and 10 and edged RED

 

2.      Perpetual injunction restraining the defendant, his servants and/or agents from further trespassing on the said land or any part of same.

 

The facts have been set out in admirable detail by my learned brother, Kawu, J.S.C., and I shall therefore refrain from repeating them here except such of them as are necessary for this concurring judgment.

 

Paragraphs 15, 16 and 17 of the amended statement of claim and paragraphs 26 and 27 of the statement of defence are very significant as they settled the issues raised by the parties for determination in the action. Paragraphs 15, 16 and 17 of the statement of claim read:

 

15.     In and during the month of January, 1977 and without any authorisation or permission from the plaintiff, the defendant vi et armis pulled down parts of the walls (concrete) of the plaintiffs buildings on the land and proceeded to wall round into his own close that part of the plaintiff's land.

 

16.   In the course of the operation described in paragraph 15 herein, the defendant -

 

(i)     spread out and wasted and scattered some ten piles of building sand which the plaintiff had accumulated on his land;

 

(ii)    damaged the barrier by which the plaintiff had hitherto shut out water from and into his house and thereupon water in large quantities flowed into and damaged properties in the house of the plaintiff.

 

17.    The area trespassed upon by the defendant is edged GREEN on the land in dispute and should (sic) on the attached composite plan marked Bi' which is numbered ALl4~981 drawn by S.A. Alaka Licensed Surveyor on the 30th day of April, 1981 and the defendant is holding on to the said plot No.10 and whenever he is asked to leave he would turn out the hooligans and thugs that he maintains regularly on the said land.

 

Paragraphs 26 and 27 of the statement of defence which set out the reply to the above averments read:

 

26.   The defendant specifically denies paragraphs 15 and 16 of the statement of claim and avers (a) that he did not pull down any part of the concrete wall of the plaintiff's buildings;

 

(b)   that the plaintiff had no building sand on the land

 

(c)    that he did not damage any barrier erected by the plaintiff on the land. The defendant therefore puts to the plaintiff the strictest proof of the aforesaid paragraphs.

 

27.    With reference to paragraph 17 of the amended statement of claim, the defendant strongly denies trespassing on the area marked GREEN in the composite plan marked 'Bi' which is numbered AIJ11/1981 and would contend at the trial that the said area was willingly released to the defendant by the plaintiff and avers that he maintains no thugs or hooligans to threaten the plaintiff or any body.

 

The issues raised came up for trial before Oguntade, J., sitting at the High Court of Lagos. After hearing evidence in support of the respective cases put up by the parties and addresses of counsel, he gave detailed and careful consideration to the evidence of the witnesses and submissions of counsel and arrived at specific findings of fact. These findings are reflected in the part of his judgment which reads:

 

I find as a fact that the plaintiff having discovered that the defendant encroached upon his land went into an arrangement with the defendant and the defendant vendors to have a plot of land in exchange for that encroached upon. I also find as a fact that when it was discovered that plaintiff had built on part of plot 10, the original arrangement was revised and that plaintiff agreed to take monetary compensation in lieu of the land encroached upon. I find as a fact that it was in furtherance of this arrangement that the plaintiff voluntarily removed his shed from plot 10 and reinstalled it on plot 8 at the defendant's expense.

 

I also find as a fact that the plaintiff and the defendant in furtherance of the arrangement went to P.W.1 to prepare Exhibit 'E' so that the defendant might know how much to pay to plaintiff for the area of land encroached upon. Why would defendant just go and pay his money to P.W.1 for the preparation of Exhibit 'E' if not for that purpose? And what was plaintiff doing with defendant in P.W.1's house on that mission?

 

I find as a fact that the whole of plaintiff's actions and conduct were directed to convey to the defendant that plaintiff would not insist on his strict proprietary rights over the land and that such actions and conduct did so convey such to the defendant.

 

The evidence of the defendant and D.W. 1 are in my view the more probable as the evidence draw substantial support from the witnesses called (sic) the plaintiff, that is P.W.1.

 

The evidence of P.W.2 I reject as plain fabrication.

 

The learned trial Judge held that

 

The claim of trespass put across by the plaintiff not been made out. The plaintiff consented, and actively encouraged the defendant in the acts of encroachment. Since I have found that the plaintiff's claim founded in trespass must fail and it is dismissed.

 

The plaintiff is also asking for an injunction. The grant of an injunction is to stop the purported acts of trespass on the defendant's part. Having found as I did, that there is no trespass, there is by the same token not a wrongful act the continuance of which can stop by the grant of an injunction The claim of injunction fails.

 

The plaintiff's appeal to the Court of Appeal was successful and the Court of Appeal per Ogundare, J.C.A. said:

 

It is difficult to see from the evidence for the defence how it can be suggested that plaintiff made any representation to the defendant which the latter relying on made him alter his position to his detriment. It is in my view clear on the evidence that following the defendant's act of trespass, effort were made to effect a settlement of the dispute thereby arising. The plaintiff co-operated with the defendant in these efforts and had the defendant been serious with negotiation to reach a settlement, it would not have taken all that time to reach an accord with the plaintiff. The trespass was in 1972 when the defendant was at the foundation stage of his building

 

It is not in dispute that efforts at settlement were made. The defendant rather unwisely, in my view, continued with his building without first ensuring that a settlement was reached. He continued with his building while negotiation also went on. The building was completed in 1973 but plaintiff did not go to court until 1977 when negotiations apparently broke down completely over cash compensation defendant was asked to pay. To grant plaintiff an injunction to the entire land belonging to him could amount to asking the defendant to pull down that portion of his building abutting on plaintiff's land which, in effect, may amount to asking him to pull down the entire building. The area of encroachment is rather small vis-a-vis the area of plot 10 and is disproportionate to the consequences of an injunction to the whole land being granted in plaintiff's favour ……

 

In my view and having regard to the principles laid down by the Supreme Court in Ibenwelu v. Lawal (supra), the appellant can adequately be compensated in damages in lieu of the area of his land actually occupied by defendant's building.

 

The basis on which a Court of Appeal can interfere with a trial court findings of fact are well settled. See

 

Chief Frank Ebba v. Chief Ogodo [1984] 1 SCNLR 372

Okafor v. Idigo [1984] 1 SCNLR 481

Watt or Thomas v. Thomas (1947) A.C. 484

Bennmax v. Austin Motor Co. Ltd. (1955) A.C. 370

 

Conditions for the proper interference with the findings of fact by the Court of Appeal did not arise in this case and the Court of Appeal erred in embarking on a fresh appraisal of the evidence and making different findings of fact. This has led the court to reverse the decision of the trial court and enter judgment as follows per Ogundare, J.C.A.

 

1.     I award N250 general damages to the plaintiff for trespass committed by the defendant on plaintiffs land in 1972.

 

2.     I award N100.00 damages in lieu of an injunction in respect of the portion of plaintiffs land occupied by defendant's building 

 

3.     I grant to the plaintiff an injunction restraining the defendant, his servants and/or agents from further trespassing on plaintiffs land or any part thereof less the portion on which defendant's building abuts and occupies which said land is delineated and edged RED on plan No. AL69/1966 attached to Exhibit C tendered at the trial in the court below.

 

The defendant was dissatisfied with this decision hence, this appeal to this court.

 

The appellant formulated 9 issues for determination in this appeal in his brief. In my view, the main question for determination is whether the plaintiff/respondent made out a case for trespass and injunction as claimed.

The respondent formulated 4 questions for determination which I consider pertinent. They read:

 

1.     Did the respondent's action and/or inaction between 1972 to 1976 as stated in paragraph 2.03(a); (b), (c) and (d) above amount to permission, approval, consent and or encouragement by the plaintiff/respondent

 

2.      If the answers to question 3.01 are in the affirmative, do the plaintiffs acts create an equity in the defendant's/appellant's favour which the court should protect and uphold?

 

3.      Is it in the interest of justice that plaintiff should be allowed to fall on his strict legal rights after encouraging the defendant in the alleged act of trespass as stated in paragraphs 2.03(a), (b), (c) and F (d) above and after respondent had expended huge sum of money on the land;

 

4.     Is the application of the principles of Ibenwelu v. Lawal (1971)1 All N.L.R. 23 by the court below correct when the injunction did not make provision for the area which is necessary for the defendant/appellant to retain to get to his house.

 

5       Was the defendant/appellant totally oblivious of the legal rights of the plaintiff/respondent considering the totality of the evidence before the court?

 

My learned brother, Kawu, J.S.C., has given detailed consideration to these questions, and I agree with his opinions on all of them. Trespass is a violation of possessory rights and a claim in trespass can only be brought by one in possession or one who has a right to possession Amakor v. Obiefuna (1974)1 All N.L.R. (Pt.1) 119.

 

There can only be trespass if the person in possession withholds his consent to the entry into his land. If there is a mistaken entry and when the mistake is discovered, approach is made to the person in possession and he consents the right to claim in trespass-abates as his consent relates back to the initial entry without permission.

 

The Court of Appeal seemed to have overlooked the very basis for negotiation. If the plaintiff/respondent had said I do not want you on my land, there would have been no basis for negotiation. But having said alright you can stay on my land but get me another plot of land or money, the issue of trespass becomes a dead issue and cannot be resurrected by failure to fulfil the terms of the consent to the entry. This is more evident from the fact that the plaintiff/respondent allowed the defendant/appellant to proceed with his building to completion and jointly with defendant/appellant approached and instructed P.W. 1 to carry out a survey of the land at the defendant's expense. That fact alone destroys all the pretences of the respondent to the withdrawal or withholding of consent to the entry on the land.

 

I therefore find myself in total agreement with my learned brother, Kawu, J.S.C., that the appeal succeeds.

 

The judgment of the Court of Appeal delivered on the 21st day of January, 1986 is hereby set aside and in its stead, I hereby dismiss the claim for damages for trespass. The claim for an order of injunction in respect of the small area encroached upon by the defendant's/appellant's building is hereby dismissed. In respect of the area of plaintiff's/respondent's land delineated and edged RED on plan No. A1/69/66 Exhibit C outside the defendant's building, I hereby grant an order of injunction restraining the defendant, his servants and/or agents from further trespass.

 

I hereby endorse the costs ordered by my learned brother, Kawu,

 

 

Judgment delivered by

Uwais. J.S.C.

 

I have had the privilege of reading in draft the judgment read by my learned brother, Kawu, J.S.C. I entirely agree with the judgment.

There is no doubt that the appellant in building his house encroached on the respondent's land. Initially the encroachment was a trespass on the respondent's land which was referred to as plot 10. However the trespass was condoned by the respondent who allowed the appellant to continue with the construction of the house. In that respect no finding of trespass can be made

on the claim by the respondent for trespass and "perpetual injunction restraining the defendant, his servant and/or agents from further trespassing on the said land or any part of same" since the construction of the appellant’s house had been completed and the appellant had gone into occupation of the house. It is now too late in the day to grant the claims. The respondent cannot go back on the licence given to the appellant for he (the respondent) has waived to his detriment the right to sue for trespass.

 

The initial trespass by the appellant led to the negotiation that plot 10 should be left by the respondent to the appellant in exchange of another plot elsewhere between the respondent and the appellant's vendors. In the meanwhile the respondent built a house on plot 9 which is adjacent to plot 10 and part of the house on plot 9 extended to plot 10. This and other factors aborted the exchange of plots between the appellant's vendors and the respondent. Plot 10 was then divided into two parts and the parties to this appeal agreed to a proposal that the appellant should occupy part of one portion of plot 10 for a purchase price to be agreed upon by the parties. The appellant built a wall in part of the portion of land in question to surround his house. No purchase price had been paid to nor been accepted by the respondent for the area covered by the wall at the time the respondent sued in the High court for trespass and perpetual injunction. The learned trial Judge found as follows –

 

The claim of trespass put across by plaintiff has not been made out. The plaintiff consented, and actively encouraged the defendant in the acts of encroachment. Since I have found that the plaintiff had not made out a case of trespass the first part of plaintiff's claim founded on trespass must fail and it is dismissed. The plaintiff is also asking for injunction. The grant of an injunction is a discretionary remedy……… In the context of this case it is to stop the purported acts of trespass on defendant's part. Having found as I did, that there is no trespass, there is by the same token not a wrongful act the continuance of which I can stop by the grant of an injunction. The claim for injunction accordingly fails. (Italics mine).

 

On appeal by the respondent to the Court of Appeal that court set aside the decision of the learned trial Judge by holding

 

There was no enforceable agreement which the plaintiff could he said to have gone back on. Had an offer of a specific amount been made to and accepted by the plaintiff it could then be rightly suggested that he had waived or abandoned his right to sue. But there was no such agreement. The fact that a party wronged is willing to settle with his wrongdoer without the necessity of legal action cannot be held against him if negotiations subsequently break down. More so as in this case there is no evidence that the wrongdoer made offer of a specific sum which the person wronged unreasonably refused. The learned trial Judge was therefore wrong to hold that plaintiff had waived his right to sue or that - there has been an agreement between the parties to sell and buy the land in dispute.

 

The Court of Appeal went further -

 

In my view and having regard to the principles laid down by the G Supreme court in Ibenwelu v. Lawal (1971)1 All N.L.R. 23 at pp.2&27, the appellant can adequately he compensated in damages in lieu of injunction to the area of his land actually occupied by defendant's building. Taking into consideration the certificate as to value contained in Exhibit C, I am of the view that a sum of Nl00 (one hundred naira) is adequate and I award this sum to the appellant in lieu of an injunction in respect of the area of his land actually occupied by the defendant's budding. As regards the rest of the plaintiff's land I hereby grant an injunction restraining the defendant his servants and/or agents from further trespassing on plaintiff's land or any part thereof less the portion on which defendant's building abuts and occupies, which said land is delineated and edged RED on plan No AL/69/1966 attached to Exhibit C tendered at the trial in the court below.

 

Finally there shall be judgment for the appellant as follows -

 

1.      I award N250 general damages to the plaintiff for trespass committed by the defendant on plaintiff's land in 1972;

 

2.      I award N100 damages in lieu of an injunction in respect of the portion of plaintiff's land occupied by defendant's building; and

 

3.     I grant to the plaintiff an injunction restraining the defendant his servants and/or agents from further trespassing on plaintiffs land or any part thereof less the portion on which defendant's building abuts and occupies, which said land is delineated and edged RED on plan No. AL/69/1969 attached to Exhibit C tendered at the trial in the court below." (italics mine)

 

Before us learned Senior Advocate for the appellant had inter alia argued that there was an enforceable agreement for the sale and exchange of the respondent's plot No.10. In reply, learned counsel for the respondent submitted that what happened between the parties was at best an intention to sell or a proposal on the part of the respondent to sell the portion of plot No.10 to the appellant and that the intention or proposal did not mature into actual sale of the land.

 

From the facts of this case, there are two areas of the portion of the land in dispute that the respondent based his claims upon. The first area is the area on which part of the appellant's building rests. There is no dispute as both parties accepted that the appellant committed trespass when he allowed the construction of part of his house to project into the respondent's plot. With this being realised by the parties, the respondent waived the trespass and allowed the appellant to continue with the construction to completion. The learned trial Judge was therefore right when he held, as quoted above, that the claim for trespass in respect of this area cannot succeed since the respondent consented to the trespass and actively encouraged the appellant in the acts of the trespass. The Court of appeal was therefore wrong when it reversed the decision of the learned trial Judge by holding that there was actionable trespass on the area in question. The Court of Appeal con-fused the first area of the portion of plot No.10 in dispute with the second area which was the subject of the negotiation for sale on agreed purchase price. I will therefore allow the appeal in this respect.

 

With regard to the second area of the portion of plot No.10 in dispute, it is true that the facts have clearly emerged that the respondent had earlier agreed to exchange the piece of land with that of the appellant's vendors but when that did not materialise the respondent agreed to sell the piece of land to the appellant. This led the parties to agree to invite a surveyor, at the appellant's expense, to demarcate a boundary line between the appellant's and the respondent's area across plot no. 10 as shown by the green line in plan Exhibit D. It was in anticipation of the conclusion of the negotiation to exchange the second area with another piece of land that the appellant built a boundary wall on the land. The appellant's testimony in this respect which was accepted by the learned trial Judge reads -

 

When I talk of plot 10 I mean plot 10 in Brown's layout. The portion completely edged Green in Exhibit "D" is part of plot 10. The plaintiff's building which he said he was erecting on plot 9 extended beyond that plot into part of plot 10 which he had undertaken to relinquish completely. I pointed out the position to plaintiff. The plaintiff then said he would only take back from my vendors the exact area of land as he was relinquishing. I then asked plaintiff to demarcate the extent of the area of the land he was relinquishing so that my vendors might be certain area of land to give him in substitution. The plaintiff called his foreman and he took a tape to lay down the boundary line on which I now have my fence. This was in 1973. The agreed boundary line was a few feet beyond the extent of plaintiff's building. I called my workers to dig the foundation for the fence on the boundary line pointed by the plaintiff. The boundary line is indicated on Exhibit D" by a green line running from pillar number DC 323 and DC 325. I only built my boundary wall up to the point that properly enclosed my land.

 

In his testimony the respondent said -

 

I did not authorise the defendant to erect the building line where it is. It is true that I continued the building fence (sic) from where the defendant stopped up to the front of my house. This was to enclose my own land.

 

From all the foregoing it seems to me that the appellant committed a technical trespass when he constructed the wall surrounding his house on part of plot No.10 since the sale of that piece of land was not complete as no purchase price was agreed upon by the parties before the respondent brought his action. Accordingly, I will grant the claim for injunction in respect of the second area of plot No. 10 on which the appellant built his boundary wall. Thus agreeing in part with the decision of the Court of Appeal.

 

It is for these and the fuller reasons contained in the judgment read by my learned brother, Kawu, J.S.C. that I too will allow the appeal in part. I abide by the order as to costs as contained in the said judgment.

 

 

Judgment delivered by

Agbaje. J.S.C.

 

 

I have had the opportunity of reading in draft the leading judgment of my learned brother. Kawu, J.S.C. I agree entirely with him that this appeal should only be allowed in part.

 

The plaintiff, A. A. Brown, now deceased, sued the defendant, S.A. Adebanjo. in a Lagos High Court claiming: 

 

1.      N2,000.00 (Two Thousand Naira only) being special and General damages for trespass committed by the defendant on the plaintiff's land at Tanimeda, in the Surulere district of Lagos, Lagos State within the jurisdiction of this court.

 

2.      Perpetual injunction restraining the defendant his servants and/or agents from further trespassing on the said land or any part of same.

 

It is common ground in the case now on appeal that at all times material to this case the plaintiff and the defendant own adjacent plots of land, both of them having bought the same from a common vendor. The defendant, in the course of developing his plot encroached on a small portion of the plaintiff's land. The plaintiff protested about this encroachment on his land to the. This protest led first to negotiation whereby their common vendor agreed to give the plaintiff another plot of land in exchange for the plaintiff's land upon which the defendant encroached. This arrangement did not materialise. Then another negotiation in respect of the land started. This time, a bargain for the sale by the plaintiff to the defendant of half of the land adjacent to the defendant's land and containing the area of land upon which the defendant has trespassed was begun.

 

As regards these negotiations the learned trial Judge found and this must be the basis of this judgment, as follows:-

 

I find as a fact that the plaintiff having discovered that the defendant encroached upon his land went into an arrangements with the defendant and defendant's vendors to have a plot of land in exchange for that encroached upon.

 

I also find as a fact that when it was discovered that plaintiff built on part of plot 10, the original arrangement was revised and that plaintiff agreed to take monetary compensation in lieu of the land encroached upon.

 

I find as a fact that it was in furtherance of this arrangement that the plaintiff voluntarily removed his shed from plot 10 and re-installed it on plot 9 at the defendant's expense.

 

I also find as a fact that the plaintiff and the defendant in furtherance of the arrangement went to P.W.1 to prepare Exhibit "E" so that the defendant might know how much to pay to plaintiff for the area of land encroached upon.

 

It was after this stage of the negotiation had been reached that the plaintiff resiled from it all and then sued the defendant for the trespass which the latter initially undoubtedly committed on his land.

 

It is this trespass which is the subject-matter of the case now on appeal before us. And the issue in the appeal as I see it is whether the bargain for the sale of the land in dispute between the plaintiff and the defendant which I have just described above estopps the plaintiff from asserting his legal right not only to the area of land on the land in dispute upon which the defendant trespassed and which gave to the bargain for the sale of the land but also to the entire area of land the subject matter of the bargain for the sale of land.

The plaintiff's claims were dismissed on 22/1 2/82 by Oguntade. J., as he then was, who tried the case.

 

For the purposes of this concurring judgment, I have to refer to the following passages in the judgment of the learned trial Judge:-

 

A court of equity will not allow itself to be used as a tool in an oppressive adventure. I cannot therefore assist the plaintiff in his quest. He has elected to sell the land to defendant and he is estopped from asserting his strict rights which he has waived or abandoned.

 

The claim of trespass put across by plaintiff has not been made out. The plaintiff consented, and actively encouraged the defendant in the acts of encroachment. Since I have found that the plaintiff has not made out a case in trespass the first part of plaintiffs claim founded on trespass must fail and it is dismissed.

 

The plaintiff is also asking for an injunction. The grant of an injunction is a discretionary remedy. Its purpose is to stop the continuance of a wrongful act. In the context of this case it is to stop the purported acts of trespass on defendant's part. Having found as I did, that there is no trespass, there is by the same token not a wrongful act the continuance of which I can stop by the grant of an injunction. The claim for injunction accordingly fails.

 

On the whole I see that there has been an agreement between parties to sell and buy the land in dispute. The parties unfortunately could not agree the price because one wishes to outsmart the other. (Italics mine).

 

The plaintiff appealed to the Court of Appeal, Lagos Division against this judgment. His appeal was successful. In that court, Adesanya Brown was substituted for A.A. Brown who died during the pendency of his appeal there.

 

The Court of Appeal as per the lead judgment of Ogundare, J.C.A., in which Kutigi and Kolawole. JJ.C.A., concurred allowed the plaintiff's appeal, holding in doing so as follows:-

 

On the issue of estoppel by election, the learned trial Judge found that the plaintiff had waived or abandoned his right to one. This finding cannot, in my view, be right. The facts do not justify such a conclusion ……

 

In so far as there was no evidence that a purchase price was agreed upon there could be no contract to buy and sell the land in dispute.

 

As regards the consequential order to be made after having allowed the appeal he said:

 

It remains to consider what order or, orders to place in its stead. As stated earlier in this judgment, from the pleadings and the evidence trespass is not in dispute. The learned trial Judge's findings to the effect that -

 

The claim of trespass put across by plaintiff has not been made out. The plaintiff consented, and actively encouraged the defendant in the acts of encroachment.

 

are not supported by the evidence. Had plaintiff consented to defendant's encroaching on his land when erecting the foundation for his building there would have been no need for him and his vendors to approach the plaintiff for a settlement nor to offer alternative land or cash compensation. Having held therefore, that trespass is proved the appellant is entitled to judgment for that trespass. Special damages have not been proved as required by law; the claim for special damages is, therefore, dismissed. The appellant is however entitled to general damages which I assess at N250.00.

 

In my view and having regard to the principles laid down by the Supreme Court, in Ibenwelu V Lawal (1971) 1 All N.L.R. 23 at 26 & 27) the appellant can adequately be compensated in damages in lieu of injunction to the area of his land actually occupied by defendant's building. Taking into consideration the certificate as to value contained in Exhibit C, I am of the view that a sum of N100 (one hundred naira) is adequate and I award this sum to the appellant in lieu of an injunction in respect of the area of his land actually occupied by the defendant's building. As regards the rest of plaintiff's land I hereby grant an injunction restraining the defendant his servants and/or agents from further trespassing on plaintiff's land or any part thereof less the portion on which defendant's building abuts and occupies, which said land is delineated and edged RED on Plan No. AL/69/1966 attached to Exhibit C tendered at the trial in the court below.

 

Finally there shall be judgment for the appellant as follows:-

 

1.     I award N 250 general damages to the plaintiff for trespass committed by the defendant on plaintiff's land in 1972;

 

2.     I award N 100 damages in lieu of an injunction in respect of the portion of plaintiff's land occupied by defendant’s building; 

 

3.     I grant to the plaintiff an injunction restraining the defendant his servants and/or agents from further trespassing on plaintiff's land or any part thereof less the portion on which defendant's building abuts and occupies, which said land is delineated and edged RED on plan No. AL6911966 attached to Exhibit C tendered at the trial in the court below. (parenthesis mine)

 

I have not an iota of doubt that on the finding of the learned trial Judge that the parties to this case could not albeit unfortunately agree on the prices at which the land in dispute in this case would be sold by the plaintiff to the defendant there was no contract between them whereby the plaintiff agreed to sell the land to the defendant. The point is covered by the general principle that where there is a fundamental term left undecided there is no contract. See Courtney & Fairbairn v. Tolaini Brothers Hotels Ltd. & Anor. (1975)1 W.L.R. 297. See also Rossitter v. Millercas 1124 at 1139.

 

There is no gainsaying it that the price at which land is to be sold in negotiations for the sale of the land is a fundamental term of the envisaged contract to sell the land. I am therefore of the clear view that the Court of Appeal was right in holding that there was no contract for the sale of the land in dispute to the defendant by the plaintiff. I am equally satisfied that the trial court was in error in holding to the contrary.

 

As regards the estoppel which the learned trial Judge found, the following passage in the judgment of Lord Denning, MR., in Courtney Ltd. v. Tolaini Brothers Ltd. (Supra) at 301 shows that when negotiations are fruitless and end without any contract ensuing neither side to the bargain can rely on anything done by him in the course of negotiations as estopping the other from resiling from the bargain.

 

In the ordinary course of things the architects and the quantity surveyors get out the specification and bills of quantities. They are submitted to the contractors. They work out the figures and tender for the work at a named price: and there is a specified means of altering it up or down for extras or omissions and so forth, usually by means of an architect's certificate. In the absence of some such machinery, the only contract which you might find is a contract to do the work for a reasonable sum, or for a sum to be fixed by a third party. But here there is no such contract at all. There is no machinery for ascertaining the price except by negotiation. In other words, the price is still to be agreed. Seeing that there is no agreement on so fundamental matter as the price, there is no contract.

 

But then this point was raised: even if there was not a contract actually to build, was not there a contract to negotiate? In this case Mr. Tolaine did instruct his quantity surveyor to negotiate, but the negotiations broke down. It may be suggested that the quantity surveyor was to blame for the failure of the negotiations. But does that give rise to a cause of action? There is very little guidance in the books about a contract to negotiate. It was touched upon by Lord Wright in Hillas & Co. Ltd.v. Arcos Ltd. (1932) 147 L.T. 503, 515, where he said:

 

There is then no bargain except to negotiate, and negotiation may be fruitless and end without any contract ensuring; yet even then, in strict theory, there is a contract (if there is good consideration) to negotiate, though in the event of repudiation by one party the damages may be normal, unless a jury think that the opportunity to negotiate was of some appreciable value to the injured party.

 

That tentative opinion by Lord Wright does not seem to me to be well founded. If the law does not recognise a contract to enter into a contract (when there is a fundamental term yet to be agreed) it seems to me it cannot recognise a contract to negotiate

 

Lord Diplock in this case said as follows as regards the same point:-

 

I agree and would only add my agreement that the dictum, for it is no more, of Lord Wright in Hillas & Co. Ltd. v. Arcos Ltd. 147 L.T.503, 515, to which Lord Denning, M.R., has referred, though an attractive theory, should in my view be regarded as bad law.

 

On the same point all the recent decision of this court in U.BA. Ltd. v. Tejumola & Sons Ltd. (1988) 2 N.W.L.R. (Pt.79) 662 at 681 - 2 where this court held in a. similar situation as follows:

 

Counsel for the plaintiff, Mrs.P. C. Ajayi-Obe made the point both in the plaintiff's brief of argument and in oral submissions to us that the defendant is estopped from saying that there is no concluded agreement in this case. She said in other words that the defendant was estopped from saying that 1/5/82 was not the day of the commencement of the proposed lease agreed to by both sides. She said the defendant was estopped because of the expenses incurred by the plaintiff at the instance of the defendant in restructuring the property the subject-matter of the proposed lease in order to make it suitable for the banking business of the defendant. As I have said there is no doubt that the plaintiff carried out the restructuring at a considerable cost and at the instance of the defendant. But the point still remains whether all what the plaintiff did was done at the time when negotiations were in progress or at a stage after a concluded agreement for a lease had been reached.

 

Counsel for the plaintiff as l have said, submitted to us that the defendant bank was estopped for the reasons I have just mentioned. She did not mention the species of estoppel she had in mind. What however readily comes to mind when dealing with a matter of this nature is what Denning, J. as he then was, said. in Central London Property Trust Ltd. V. High Trees House Ltd. (1947) I.K.B. 130 at 134 which is as follows:-

 

With regard to estoppel, the representation made in relation to reducing the rent, was not a representation of an existing fact. It was a representation, in effect, as to the future, namely, that payment of the rent would not be enforced at the full rate but only at the reduced rate. Such a representation would not give rise to an estoppel, because as was said in Jorden v. Money, a representation as to the future must be embodied as a contract or be nothing.

 

But what is the position in view of developments in the law in recent years? The law has not been a series of decisions over the last fifty years which, although they are said to be cases of estoppel are not really such. They are cases which a promise was made which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact so acted on. In such cases to which I particularly desire to refer are: Fenner v. Blake (2) hi re Wickham (3), Re William Porter & Co. Ltd. (4) and Buttery V. Pickard (5). As I have said they are not cases of estoppel in the strict sense. They are really promises- promises intended to be binding, intended to be acted on, and in fact acted on.

 

This has come to be known as promissory estoppel.

 

The mere fact that the defendant asked for some things to be done to the property the subject matter of the proposed lease and those things were carried out would not mean that there is a concluded agreement for a lease in the absence of an agreed commencement date of the term of the proposed lease which is an essential term of a lease.

 

I am equally satisfied that the learned trial Judge was in error in finding an estoppel against the plaintiff in this case.

 

I am satisfied that the plaintiff has established trespass against the defendant. But because of the conduct of the plaintiff he is not entitled to any award of monetary compensation in respect of the trespass. He is however entitled to an injunction against further trespass by the defendant.

 

For the above reasons I agree with the orders of my learned brother, Kawu, J.S.C., setting aside in part the judgment of the Court of Appeal. I abide too by the order as to the injunction granted against the defendant. I abide also by the order as to costs in the judgment.

 

 

Judgment delivered by

Wali. J.S.C.

 

I have had a privilege of reading in advance, the leading Judgment of my learned brother, Kawu, J.S.C., and with which I am in agreement.

 

From the pleadings of the parties and the evidence adduced in proof thereof, the Appellant/Defendant was initially led by the Plaintiff/Respondent to believe that despite the appellant's initial trespass on plot 10 belonging to the Plaintiff/Respondent, he could continue with his building as the plaintiff had tentatively agreed to exchange plot No.10 for Plot 2H. As a resuIt of this tentative agreement, the plaintiff/respondent agreed to remove at the expense of the appellant/defendant, the temporary shed he pitched on plot No.10 to plot 9.

 

The Plaintiff/Respondent was also putting up his own building on plot No.9. It was later discovered that his building had also encroached on plot No.10 and the Appellant/Defendant complained. They agreed that since the Appellant/Defendant's vendors were not prepared to exchange a portion of plot No.10 with a portion of another plot, the Plaintiff/Respondent would be compensated in cash for the portion of plot No.10 built upon by the appellant/defendant. And as a result of this new agreement, the plaintiff's family surveyor was commissioned, at the appellant/defendant's expense to survey the portion of plot No.10 built upon by the appellant/defendant for the purposes of assessing the amount of compensation to be paid. Meantime the appellant/defendant unhindered by the plaintiff / respondent continued with his building to successful completion, including the dividing fence wall between their respective houses. See the evidence of the plaintiff where he said under cross-examination:-

 

It is true I continued the building fence from where the defendant stopped up to the front of my house. This was to enclose my own land.

 

P. W. 2 also said in his evidence :-

 

The area verged green has encroached upon the land of plaintiff. There is a wall which cuts out the triangular land from that of plaintiff. The wall runs from pillar DC 323 and terminates at another pillar DC 325 ..........

 

I draw a plan as a result of the visit of both plaintiff and defendant to me showing the extent of defendant's encroachment on plaintiff's land.

 

The plan was identified by P.W.2 and admitted in evidence as Exhibit "E." He then continued:-

 

Exhibit "E" similarly shows the dividing wall between plaintiff’s and defendant's line. It is the same dividing wall in Exhibit "D" that is also shown in Exhibit "E".

 

In his evidence the defendant/appellant said:-

 

The agreed boundary line was a few feet beyond the extent of plaintiff's building. I called my workers to dig the foundation for the fence on the boundary line pointed by the plaintiff. The boundary line is indicated on Exhibit "D" by a green line running from pillar number DC 323 and DC 325.1 only built my boundary wall up to the point that properly enclosed my land. The plaintiff when building his own boundary fence continued exactly from the point at which I stopped and the boundary ran straight as agreed.

 

While D.W.2 testified as follows :-

 

I said to plaintiff that the land we sold to defendant encroached on plaintiffs plot 10 and I offered to give him another plot of land in substitution for plot 10. The plaintiff agreed. To show his agreement the plaintiff voluntarily removed a shed plaintiff had on plot 10 to plot 9. The plaintiff insisted that the defendant should pay the cost of removal and rebuilding of the shed. The defendant agreed. I showed the plaintiff Plot 2A Block 2 of my family layout to see if plaintiff would like that in substitution for plot 10. The family layout of my family is TPAO 289. The plaintiff agreed to take this plot in lieu of his own plot 10. Later on when plaintiff started to erect his own building the plaintiff came to inform me that he would no longer be able to release the whole of plot 10 to the defendant. I was annoyed but defendant said he would accept whatever plaintiff was willing to release. The defendant then asked plaintiff to demarcate the portion and line of area plaintiff was willing to release. The plaintiff did so. The defendant immediately caused the line indicated by plaintiff to be executed. The defendant then erected his boundary fence. I then told plaintiff that my family had no half plot or triangular one to give him in lieu of the portion he was then willing to release to defendant. Plaintiff said he would accept cash in lieu of the portion he was releasing. The defendant asked plaintiff how much plaintiff wanted. The plaintiff said he could not name a price until the land had been surveyed. The plaintiff and the defendant both agreed to go and see P.W. 2.

 

The plaintiff/respondent went back on this promise and started this action. The learned trial judge after reviewing the evidence adduced by both parties made correctly in my view, the following findings of fact :-

 

I find as a fact that the plaintiff having discovered that the defendant encroached upon his land went into an arrangement with the defendant and defendant's vendors to have a plot of land in exchange for that encroached upon.

 

I also find as a fact that when it was discovered that plaintiff had built on part of plot 10, the original arrangement was revised and that plaintiff agreed to take monetary compensation in lieu of the land encroached upon.

 

I find as a fact that it was in furtherance of this arrangement that the plaintiff voluntarily removed his shed from plot 10 and re-installed it on plot 9 at the defendant's expense.

 

I also find as a fact that the plaintiff and the defendant in furtherance of the arrangement went to P.W. 1 to prepare Exhibit "E" so that the defendant might know how much to pay to plaintiff for the area of land encroached upon. Why would defendant just go and pay his money to P.W.1 for the preparation of Exhibit "E" if not for that purpose? And what was plaintiff doing with defendant in P.W.1's house on that mission?

 

I find as a fact that the whole of plaintiff's action and conduct were directed to convey to defendant that plaintiff would not insist on his strict proprietary rights over the land and that such actions and conduct did so convey such to the defendant.

 

The evidence of the defendant and P.W.1 are in my view the more probable as the evidence draws substantial support from the witness called by plaintiff, that is P.W.1.

 

I find no fault with these findings having regard to the evidence adduced and accepted by the learned trial Judge. There is an offer by the Respondent/ Plaintiff to sell the piece of land occupied by the appellant's building as shown in Exhibit "E" at a price to be agreed between the parties. The contract to sell the said piece of land therefore is still at its formative stage since the parties are yet to agree on a price which in this case will be the consideration to be provided by the Appellant/Defendant. The Respondent had induced, by his conduct the appellant to act to his detriment pursuant to the said arrangement.

 

The learned Justices of the Court of Appeal are wrong in their award of damages for trespass against the appellant as this was condoned by the Respondent/Plaintiff, and to that extent this appeal must succeed.

 

For the fuller reasons given in the judgment of my learned brother, Kawu, J.S.C., which I hereby adopt as mine, this appeal succeeds in part and it is allowed. The award to the Respondent/Plaintiff by the Court of Appeal of:-

 

(a)    N250.00 general damages for trespass, 

 

(b)   N100.00 damages in lieu of an injunction in respect of the portion of the Respondent/Plaintiff's land built upon by the Appellant/Defendant are hereby set aside.

 

The grant to the Respondent/Plaintiff of an injunction restraining the Appellant/Defendant, his servants and or agents from any interference with or encroachment on the Respondent/Plaintiff's land less the portion on which the appellant’s/defendant’s building abuts and occupies which said land is delineated and edged RED on plan No.69/1966 attached to Exhibit C tendered at the trial in the High Court is hereby affirmed. I endorse the order of costs made in the lead judgment.

 

Appeal allowed in part.

 

Counsel

 

Chief G.O.K. Ajayi. S.A.N

With  S. A. Adesokan

  ........

For the Appellant

Adetayo Awolesi

With  S. A. Faboro

  ........

For the Respondent