IN THE SUPREME COURT OF NIGERIA

On Thursday, the 20th day of April 1978

SC. 323/1976

Between

GOODY UMEOBI ....................................... APPELLANT

And

CHIEF A. E. OTUKOYA ................................. RESPONDENT

The plaintiff instituted an action in the Lagos High Court for trespass against the defendant claiming special and general damages for trespass allegedly committed by the defendant on 14th January, 1972 on which day he was said to have forcibly entered the back portion of the plaintiff's shop known as L.E.D.B. shop 5, No.4, Nnamdi Azikiwe Street, Lagos, damaging the plaintiff's properties.

Immediately after the filing of the claim and the issue of the writ and before the filing of the statement of claim, the plaintiff filed an application, a motion on notice supported with affidavit for an injunction. It was shown that the claim was filed on the 20th January, 1972, the motion on 4th March, 1972 and the statement of claim on 18th March, 1972. From the affidavit supporting the plaintiff's motion it was clear that it was the incident which occurred on 14th January, 1972 which led to the filing of the action and also to this motion for interlocutory proceeding.

The case of the plaintiff from the evidence was that he went into possession of the disputed shop in September 1967. One Alhaji Abdul Rasaq let the shop to him. The said Alhaji Abdul Rasaq was the solicitor to a Company, the Federated Press Limited. The plaintiff further gave evidence that he was formally paying rent to the solicitor until the Superior Landlords, L.E.D.B., ordered that rents should be paid direct to them.

The defendant's case, on the other hand, was that the property at No.4 Nnamdi Azikiwe Street was a vacant piece of land originally belonging to the Federated Press Limited. He built six shops on the land in the front and a garment factory at the back. The vacant land was granted by the L.E.D.B. to the Federated Press Limited which in turn granted it to the defendant for a consideration of N5,000. The defendant paid ground rents to the L.E.D.B. until 1967 when he left Lagos for his home town Igboukwu, in Onitsha Division by reason of the Nigerian crisis, but he left the property in the care of his friend, one Mr Kotun, and left some of his boys to sleep in the factory. The boys not only slept there but lived there. The defendant returned to Lagos in 1970 at the end of the hostilities and took over the factory.

In his ruling as regards the interlocutory proceeding on the application of motion on notice filed by the plaintiff, the learned trial Judge gave his ruling on the motion and granted the order restraining the defendant as prayed after considering that the defendant appellant took the law into his own hands, especially when he knew that the matter was pending in the High Court.

After the close of evidence and submissions of counsel to both parties the learned trial Judge gave judgment in favour of the plaintiff.

On appeal, it was contended by the learned Counsel to the defendant/appellant that the evidence of the 4th and 5th witness for the defence was not considered at all by the learned trial Judge and this adversely affected a proper consideration of the defendant's case, on this, the learned Counsel to the plaintiff/respondent contended also that the evidence of these witnesses went to no issue and it was a waste of time for the court to review evidence before it that went to no issue.

The Supreme Court observed that the issues before the lower Court were not only who of the parties was in possession but also who had right to possession and it was held:-

1.      As regards the interlocutory proceeding, the learned trial Judge erred in granting the application and that there was no matter pending in the High Court between the plaintiff and the defendant prior to the institutions of the action and also that in the learned trial Judge's ruling and repeated in his judgment shows that his mind was prejudicially affected, against the defendant whom he considered a trouble maker.

2.      The evidence of the 4th witness for the defence had not only material bearing on the issues before the court but was very important from point of view of the entitlement of the plaintiff to be in possession of the area in dispute.

3.      That the origin of the plaintiff's entitlement is the solicitor to the Federated Press Limited, Alhaji Abdul Rasaq. Alhaji Abdul Rasaq had no personal interest in the property in question. He was only acting as solicitor to the Federated Press Limited. He could convey no more interest to the plaintiff than his client's had.

4.      The L.E.D.B. has not determined the tenancy and the tenancy being now alive and subsisting, the interest of the L.E.D.B. would lie in recovering arrears of ground rents, if any, from the defendant. Therefore, neither Alhaji Abdul Rasaq nor the L.E.D.B. had any right to grant tenancy of any of the shops built by the defendant to either the plaintiff or to anybody else.

5.      The defendant being the owner of those shops had a right of possession of them. Proof of ownership is prima facie proof of possession, the presumption being that the person having a title to the land is in possession.

6.      The legal effect of entry by a person entitled is not in any way affected by the fact that another who, without title, was previously in possession persists in remaining upon the land concurrently with the true owner.

7.      The law confers rights on an occupier of property to abate a nuisance introduced into the property and the defendant's conduct, in the circumstance, was a legitimate act in abatement of nuisance and did not deserve the censure of the trial Judge.

Appeal allowed.

Mr Abiola A. Oshodi for the Appellant.

Chief Olowofoyeku for the Respondent.

Cases referred to:-

1.      Jones Vs. Chairman (1847) 2 EX 803.

2.      Lemmon Vs. W.E.B (1895) AC 1.

3.      Lows Vs. Telford (1876) 1 A.C. 414 at 426.

4.      National Steam Carcov Barham (1912) 122 L.T. 315.

Aniagolu, J.S.C.-After the conclusion of arguments by counsel on this appeal on 20th March 1978 we allowed the appeal, set aside the judgment of the lower court including the order for costs and injunction and awarded costs to the defendant appellant. We now give our reasons for so doing.

In the claim which was instituted in the Lagos High Court and framed in trespass the plaintiff claimed £2000 special and general damages for trespass allegedly committed by the defendant on 14th January 1972 on which day he was said to have forcibly entered the back portion of the plaintiff's shop known as L.E.D.B. shop 5, No. 4 Nnamdi Azikiwe Street, Lagos, damaging the plaintiff's properties. The plaintiff also claimed an injunction to restrain the defendant his agents and servants from further acts of trespass to the said portion of the plaintiff's shop.

Pleadings were ordered and filed. In paragraphs 3, 6, 7 and 8 the plaintiff had explained, rather in a sketchy form having regard to the facts which later emerged from the statement of defence and the evidence, how he came to possess the shop in dispute. For their importance we set out these paragraphs as follows:

"3.     The Plaintiff had been a tenant in possession since 1967 of a shop known as L.E.D.B. shop No.5 situate at 4, Nnamdi Azikiwe Street, Lagos.

6.      In 1970 the Lagos Executive Development Board, dispensing with intermediaries, directed all occupiers of shops in the area to pay rent directly to the Lagos Executive Development Board.

7.      On 20th day of August, 1970, the Lagos Executive Development Board wrote to the Plaintiff requiring him to pay rent in respect of the shop directly to the said Lagos Executive Development Board.

8.      The Plaintiff had since August 1970 been paying rents in respect of the said shop regularly to the Lagos Executive Development Board and he had so paid up to and including March, 1972."

The plaintiff did not state in the statement of claim who these "intermediaries" were but the picture became clearer from the facts disclosed in the statement of defence and from the evidence. In paragraphs 6, 7, 8 and 9 of the statement of defence the defendant claimed the shop and the structures built on No.4 Nnamdi Azikiwe Street.

These paragraphs read:

"6.     The defendant is the tenant of the L.E.D.B. in respect of the piece of land on which the property known as 4, Nnamdi Azikiwe Street situates and pays rents.

7.      The defendant built the structures on the property including the shop and the factory which the plaintiff now claims. The defendant was in possession of the premises until he left for the Eastern Region of Nigeria during the political crisis in the country in 1967.

8.      The defendant's servant and agent took over the responsibilities and the care of the premises in the absence of the defendant.

9.      The servants of the defendant lived in the Factory which is directly behind the shop now occupied by the plaintiff."

The defence later got leave of court to amend the said paragraph 6 of the statement of defence and amended it as follows:

"6.     The defendant is the tenant of the L.E.D.B. in respect of the piece of land on which the property known as 4, Nnamdi Azikiwe Street situate and pays rent. Two photocopies of the L.E.D.B. plans showing the layout and the building of the property are attached."

The defendant went further to counter-claim against the plaintiff for £2,000 general damages for wrongful entry by the plaintiff into the said shop in dispute. The counter-claim reads:

"COUNTER-CLAIM

The Defendant claims against the Plaintiff the sum of £2,000 being General Damages for wrongful entry by the Plaintiff on to the Defendant's shop and factory forming part of the property known and described as No. 4, Nnamdi Azikiwe, Lagos and for an injunction restraining the plaintiff, his servants, workmen and agents from entering into the shop and factory and demolishing the walls, the entrance and any part of the shop and the factory or from in any way interfering with the Plaintiff's use and enjoyment of the said shop and factory."

At the conclusion of pleadings it was clear that the plaintiff based his right to succeed in his action on his being a tenant in possession of the L.E.D.B. in respect of the shop in dispute since 1967 and that the defendant's contention to defeat the claim was that he was a tenant of the L.E.D.B. in respect of the piece of land on which the shop and other structures were built; that he built those structures and paid rents to the L.E.D.B.; that he remained in possession of the shop and structures until he left for Eastern Region of Nigeria during the political crisis in the country in 1967 and that he left his agent and servants in the shop to look after it while he was away.

Before we go into the evidence led by the parties it will be convenient at this stage to deal with the interlocutory proceedings following a motion on notice filed by the plaintiff immediately after the filing of the claim and the issue of the writ and before the filing of the statement of claim. The claim appeared to have been filed on 20th January 1972, the Motion on 4th March 1972 and the statement of claim on 18th March 1972. The motion was for an application:

"For an order restraining the Defendant his servants or agents from entering or remaining, or causing or permitting sewing factory or any work to be done upon, or keeping open the aperture which he has caused to be made in the wall of the rear portion of the plaintiff's shop known as Lagos Executive Development Board shop 5 situate at No. 4, Nnamdi Azikiwe Street, Lagos, or any part thereof, or otherwise interfering therewith pending the hearing and determination of this action, and for such further and other Orders as "to this Honourable Court may seem fit."

From the affidavit sworn to by the plaintiff in support of the motion it was clear that it was the incident which occurred on 14th January 1972 which led to the filing of the action and also to this motion for interlocutory injunction. In paragraphs 9, 10, 11, and 12 of the said affidavit the plaintiff swore that:

"9.     On the morning of 15th January, 1972, I discovered that the Defendant his servants and agents had, during the preceding night broke through the walls of the rear portion of my shop, demolished the water closets and the sink, destroyed and scattered some of my goods and converted the place to a sewing factory.

10.     In spite of my report to the police, the Defendant his servants and agents continue to sew clothes in the rear portion of my said shop, and they make it impossible for me to use the shop for the storing of my goods.

11.     In spite of the said police intervention, the Defendant his servants and agents keep open the aperture which they have made in the wall at the rear of the shop, and maintain that no power on earth can prevent them from using the place as they are now doing.

12.     It is altogether unsafe and highly impossible for me under the present circumstances to carry on my legitimate business in the shop which had been in my possession since 1967."

The writ complained that the trespass was committed on 14th January 1972. From that same affidavit the plaintiff let it be known that he was granted possession of the shop in 1967 not by L.E.D.B., but by one lawyer Abdul Rasaq. He swore in paragraph 5 of the affidavit thus:

"5.     I was let into possession of the shop in 1967 by lawyer Abdul Rasaq, acting as agent for the owners thereof, and I had been in peaceful possession thereof since that time."

The shop was described in the affidavit (paragraph 3) as roughly in an L-shape with the front portion facing Nnamdi Azikiwe Street and the rear portion admitting of no entrance whatsoever except through those doors inside the shop. The plaintiff further swore in the affidavit that at part of the rear portion he fitted two water closets, two wash hand basins and one sink and that he used the remaining portion for storing his radio and electrical appliances together with his soft drinks and provisions.

The learned trial Judge, ADEDIPE J., in the course of the hearing of the motion, visited the locus. He made notes of the said visit as follows:

"COURT: - I visited the shops this morning. I saw the wall which was broken through and I also saw location of the water closet and the sink.

In the shop occupied by the applicant I was shown three entrances that led to the room or shop at the back. The three entrances were closed up with blocks. The respondent admitted that he did this last Wednesday 22/3/72.

The Respondent showed me a place in the applicant's shop and said that the partition which was there was removed by the applicant. It was a wooden partition.

All the Counsel and their clients were present. The Court Registar and his assistant were also present.

Further hearing on Monday, 17th April, 1972.

(Sgd.) B.A. Adedipe.

JUDGE"

The learned trial Judge gave his Ruling on the motion and granted the order restraining the defendant as prayed. In the Ruling he stated, inter alia:

"It is clear from paragraph 5 of the affidavit, and paragraph 7 of the Counter-Affidavit, that the plaintiff/applicant has been in possession of the shop since 1967, and has been paying rents in respect of the place to the L.E.D.B. I found that a wall of the rear portion of the shop was broken through. I also found that the three entrances that lead from the main shop into the shop at the back were completely sealed off by the defendant/respondent. I do not know why the defendant/respondent should take the law into his own hands, especially when he knew that the matter was pending in the High Court, I find no justification for his action. I am prepared to give this case an accelerated hearing."

With due respect to the learned trial Judge, the defendant did not take the law into his own hands when the matter was pending in the High Court. Indeed, it was the action of the defendant that led to the institution of the action in the High Court. There was no matter pending in the High Court between the plaintiff and the defendant prior to the institution of the said action. The learned trial Judge repeated the remark that the defendant took the law into his own hands when the matter was pending in the High Court in his judgment at the conclusion of the trial. He said:

"There is no doubt that the Plaintiff has been in possession of the shop and the other apartment since 1967 and the L.E.D.B. In my Ruling, I said that I did not know why the Defendant should take the law into his own hands especially when he knew that the matter was pending in the High Court. I restrained him from entering or remaining or causing or permitting sewing factory or any work to be done upon or keeping open the aperture which he had made in the wall of the rear portion of the plaintiff's shop pending the determination of this Suit. These were my observations at the time."

We gained the impression from the way the learned trial Judge wrongfully made this remark in his ruling and repeated it in his judgment that his mind was prejudicially affected against the defendant whom he must have considered a troublemaker. Circumstances may exist in law in which a person may rightly take extra-judicial remedial action and yet be acting within the bounds of the law. A person who has taken action to abate a nuisance may act lawfully even though his action is extra-judicial. We shall return to this later in this judgment.

The plaintiff gave evidence and called two witnesses - one (OLUYEMI ADEKOYA), a public relations consultant and Managing Director of OLU ADEKOYA PRESS AGENCY and the other (SYLVANUS EBASINA), a Police Constable No. 3712 from Churchill Barracks, Apapa. Oluyemi supported the plaintiff's evidence that he occupied the shop since 1967 while Sylvanus, the Police Officer, testified as to what he saw when the plaintiff took him to the scene after reporting to the Police that the defendant forcibly entered the back portion of the shop and damaged his properties.

The defendant also testified and call four witnesses, namely, a Police Constable No.2784 (NATHANIEL ALAKA) attached to B Department in Lion Buildings, Lagos; an Estate Officer (FRANCIS ADEKUNLE AKINSHOLA) of the L.S.D.P.C. formerly L.E.D.B.; an Assistant Building superintendent (GANIYU OLAYIOLA OLOWU) of the L.C.C. and a tailor (ALEXANDER IKE) working under the defendant.

The case of the plaintiff from the evidence was that he went into possession of the disputed shop in September 1967. One Alhaji Abdul Rasaq let the shop to him. The said Alhaji Abdul Rasaq was the Solicitor to a company, the Federated Press Limited. The plaintiff paid one year's rent of £300 in advance to the Solicitor evidenced by a receipt, Exhibit A. In 1968 he paid to him another one year rent of £500 in advance for which he was given the receipt, Exhibit B. After he paid the £500 in 1968 the L.E.D.B., the superior Landlords, ordered that rents should be paid direct to them (see the L.E.D.B. letter dated 20/8/70, Exhibit D). He reported to Alhaji Rasaq who wrote to him a letter (Exhibit C).

We must point out here that the letter, Exhibit C, could not have been written as a result of the L.E.D.B. letter, Exhibit D, since Exhibit C was written on 31/12/68 while Exhibit D was written on 20/8/70.

Plaintiff further testified that there were six shops in all in the place and he occupied shop No.5. This shop has a front part and a rear part. In the front part he sold radio, general goods materials, provisions and electrical goods. At the rear part he built a toile and used part of it as a store. He swore that for the years 1967, 1968, 1969, 1970 and 1971 he did not see the defendant in the place and remained in undisturbed possession of the shop for those years. It was in January 1972 that he saw the defendant. In 1970 he not only received the letter Exhibit D, from the L.E.D.B. he also received his tenancy card (Exhibit E) from them. He had paid rents for the shop to the L.E.D.B. and obtained receipts (Exhibits G, G1 and G2) for the payments. Upon these premises the plaintiff has contended he was entitled to succeed in trespass against the defendant.

The defendant's case, on the other hand, was that the property at No.4 Nnamdi Azikiwe Street was a vacant piece of land originally belonging to the Federated Press Ltd. He built six shops on the land in the front and a garments factory at the back. The vacant land was granted by the L.E.D.B. to the Federated Press Ltd. which in turn granted it to the defendant for a consideration of £5,000. One Mr Jaiyeola received the money on behalf of the Federated Press Ltd. and issued him a receipt, Exhibit H. The defendant paid ground rents to the L.E.D.B. for which Exhibits J, J1 and J3 were issued. He also paid rates to L.C.C. for which receipts Exhibits K, K1, L and L1 were issued. In 1967 he left Lagos for his hometown Igboukwu, in Onitsha Division by reason of the Nigerian crisis, but he left the property in the care of his friend, one Mr Kotun, and left some of his boys to sleep in the factory. The boys not only slept there but lived there. The defendant returned to Lagos in 1970 at the end of the hostilities.

The events which occurred after the defendant's return in 1970 gave rise to these proceedings. For their importance we reproduce that part of the defendant's evidence-in-chief.

He testified:

"In 1970 when I returned to Lagos I and my boys lived in the factory. The plaintiff did not agree to my making use of the place. In 1971 he blocked the entrance to the factory with blocks. I went and complained to the L.C.C. The L.C.C. came and inspected the place, and pasted continuation Notice there.

I came back and I saw that the place was open again. From that time I continue to use the place.

In January, 1972, I went on Christmas holidays, when I cam back I saw that the plaintiff has blocked the entrance again. I went to make an enquiry at the L.E.D.B. if they have given the place to the Plaintiff. I found that the place was not given to the plaintiff.

Three officials of the L.E.D.B. came to inspect the premises.

When I found the blockage I removed the blocks that formed the blockage. I had the authority of the L.E.D.B. to stay where I was.

Then I complained to the L.E.D.B. I was asked to remain where I was until they decided whether they would pay me compensation for the shops.

Then I got to the L.E.D.B. I was told that the Plaintiff has lodged a complaint. As a result of his complaint I received a letter from the L.E.D.B. This is the letter which I received from the L.E.D.B. I seek to tender it, no objection admitted and marked Exhibit M, it is dated March 1972.

When I removed the basin I found some toilet fittings in the factory. I packed them together and kept them for him. I did not destroy or damage any of them.

The Police came and told me that I broke into somebody's shop and burgled it. I was taken to the Police Station, the police searched my house and found nothing.

I showed the toilet fittings to the Police and I told them I did not carry the fittings away.

The L.E.D.B. gave me a plan of the place. I tender it for identification only. X for identification only.

In 1970 when I came back the two entrances were not there. He made the two entrances to enable him to eject me from the factory. Exhibit N referred to.

The entrance to the rear was not blocked in 1970. The plaintiff made the entrance.

I am paying the rent to the L.E.D.B. to in respect of the area now in dispute. I have paid up to date. There are the receipts issued to me. I seek to tender them no objection, admitted and marked Exhibits N, N1, to N4.

I had 20 workmen in the factory. I paid them about £450 monthly.

The plaintiff is the one occupying the place in dispute now. I am not able to maintain my staff and to supply my customers.

To my knowledge the plaintiff did not pay any rent to the L.E.D.B. in respect of the factory.

My business suffered. I want the court to award N4,000 as damages for interference with my possession. I want the court to give me possession.

The L.E.D.B. never terminated my tenancy to my knowledge. I was never served with any Notice to quit or to surrender. The L.E.D.B. never recovered the possession of the factory from me by any order of the Court."

Under cross-examination of plaintiff's counsel, Chief Olowofoyeku, the defendant admitted that throughout the Nigerian Civil War he was in the East; that he did not pay rents to the L.E.D.B. for the years 1968, 1969, 1970 and 1971; that he had no lease agreement with the L.E.D.B.; and that when he came back he found that the six shops were occupied by people although his boys were in the factory section making dresses. He also stated that he had 16 sewing machines and 3 button machines both in 1970 and in 1972. The 16 machines were packed outside the factory in 1972. He swore that he could not come to court because he "had no strength", which obviously meant that he had financial ability to sustain the cost of litigation. The defendant finally admitted he broke into the factory removing the obstruction which the plaintiff had constructed for the purpose of ejecting him from the factory. There were three doors, he said, two of which the plaintiff had installed when he went home on Christmas holidays.

Appellant filed five original grounds of appeal and with leave of this Court filed four additional grounds. All the grounds were renumbered 1 to 9. Counsel for the appellant, Mr Oshodi, argued grounds 3, 5, 6, 7, 8 and 9 and submitted that any arguments he would have put forward in respect of the other grounds were covered by the arguments he tendered on these grounds. Grounds 3, 5, 6, 7, 8 and 9 read as follows:

"3.     The learned trial Judge erred in law when he stated that defendant forcibly entered the Plaintiffs shop when in fact there is evidence from the Lagos State Development and Property Corporation that the particular area of the shop was in dispute was not given to the Plaintiff.

5.      That the learned trial Judge erred in law in awarding special damage to the Plaintiff when the items of Special Damage were not strictly proved by the Plaintiff.

6.      The learned trial Judge misdirected himself in law and in fact by failing to consider the whole evidence of the 4th and 5th witnesses for the Defendant/Appellant as contained at pages 66 to 69 of the record of proceedings whereas the trial Judge considered all the evidence of the Plaintiff/Respondent in his judgment.

7.      The learned trial Judge misdirected himself in law and in fact when he held that as a matter of fact the defendant was never asked to pay any rent in respect of the area in dispute for the period in which the Plaintiff paid the rent and the contention of the Plaintiff was that he was in occupation of the area between 1967 and January, 1972 and it would appear that he was in exclusive possession of the place at the material time whereas there is evidence that the Plaintiff paid £200 per annum for 539 square feet and the Judge failed to release his holding to the area in dispute.

8.      The learned trial Judge erred in law in dismissing the defendant's Counterclaim since there is evidence that the defendant is entitled to possession of the whole premises including the Plaintiff's shop, store and the area "A" in dispute.

9.      The learned trial Judge erred in law by failing to consider the legal effect of Exhibit E on the holdings of the Respondent in respect of his claim to area "A" which is the subject matter of his claim since Exhibit M confirms the right of the defendant/appellant to possession of the disputed area."

Mr Oshodi argued first ground 6. On this he submitted that the evidence of the 4th and 5th witnesses for the defence was not considered at all by the learned trial Judge and this adversely affected a proper consideration of the defendant's case. On this Mr Olowofoyeku, for the respondent submitted that:

(i) he evidence of these witnesses went to no issue and it was a waste of time for the court to review evidence before it that went to no issue;

(ii) on the totality of the evidence before the court, the court came to a right judgment without considering the evidence of those witnesses;

(iii) the whole of the evidence of the 4th witness for the defence had no bearing whatever on the issues between the parties; and

(iv) it was not enough for appellant's counsel to show that evidence was not reviewed. He must go further to show that if it had been reviewed the result would not have been the same.

The issues before the lower court were not only who of the parties was in possession but also who had a right to possession. We think that the evidence of the 4th witness for the defence, GANIYU OLAYIOLA OLOWU, had not only material bearing on the issues before the court but was very important from point of view of the entitlement of the plaintiff to be in possession of the area in dispute. The evidence showed there were two portions "A" and "B" in the plan (Exhibit R) of the area. The dispute was in respect of "A". This 4th witness, who was the Assistant Building Superintendent of the Lagos City Council testified that the entrance to "A" "B" was originally from the side of the L.C.T.S. Office and there was no entrance from "A" to the store. Again, a toilet which was not approved by the Council was built on the area "A". Also the area where sanitary conveniences were located in Exhibit R were converted by unknown persons into shops. Contravention notices (which he called "continuation" notices) were pasted on the property on No.4 Nnamdi Azikiwe Street, this witness stated, by reason of breaches by the occupier as far back as 1969 when the defendant was not there and when the plaintiff was the one in occupation. He swore that opening a new corridor on a wall was "a continuation". That was therefore a breach. From the evidence of this witness it was clear that the plaintiff had no right to construct what he did on the portion "A" in Exhibit R. We find it difficult to appreciate the submission of respondent's counsel that the evidence of the witness had no bearing on the issues before the trial court, especially in the light of respondent's counsel's statement before us that he conceded that his client had no authority to install the toilet which he did.

(i) that the learned trial Judge did not consider the boundary between the parties in order to determine whether the defendant had trespassed;

(ii) that the trial Judge dismissed the defendant's counter-claim without a review of the defendant's evidence on the counter-claim;

(iii) that the letter, Exhibit "M", showed that indeed the L.E.D.B. had granted tenancy of areas "A" and "B" in Exhibit R. Therefore, since the appellant was not a trespasser he had a right to remain in possession and was right in using not an unreasonable force in maintaining his possession.

In respect of these submissions, Mr Olowofoyeku replied generally that the issue was who was in possession on 14th January, 1972 before the letter Exhibit "M" dated March 1972. He contended that as at 14th January 1972 the plaintiff was in possession and that the action of the defendant on that day amounted to a breaking into the plaintiff's close for which an action lay in damages for trespass.

In dealing with these points we think it necessary to set out some solid facts which have been established on the evidence and conceded on all sides:

1.      That the land was originally a vacant piece of land numbered as No.4 Nnamdi Azikiwe Street;

2.      That the L.E.D.B. originally granted the vacant piece of land to a company called the Federated Press Limited;

3.      That the Federated Press Ltd. on 12th day of October 1963 (Exhibit H) sold the entirety of its interest in the vacant piece of land to the defendant who paid them £5,000 as consideration thereof;

4.      That the defendant built six shops on the said land - which shops included the place now in dispute;

5.      That one Alhaji Abdul Rasaq was the Solicitor to the Federated Press Ltd;

6.      That on 11th September 1967 (Exhibit A) Alhaji Rasaq granted tenancy of the shop No.5, at No.4 Nnamdi Azikiwe Street, Lagos to the plaintiff for which the plaintiff paid ?300 one year's rent in advance.

7.      That the plaintiff continued paying rent to Alhaji Abdul Rasaq who received on behalf of the Federated Press Ltd until the L.E.D.B. ordered all tenants in the area to be paying rents direct to them, after which the plaintiff commenced to pay rent to L.E.D.B.

One thing which is to us crystal clear is that the origin of the plaintiff's entitlement is the Solicitor to the plaintiff's entitlement is the Solicitor to the Federated Press Ltd., Alhaji Abdul Rasaq. Alhaji Abdul Rasaq had no personal interest in the property in question. He was only acting as Solicitor to the Federated Press Ltd. He could convey no more interest to the plaintiff than his clients had. But his clients had sold the entirety of their interest to the defendant for £5,000 in 1963. What balance of interest was there left which he could transfer to the plaintiff in 1967? Absolutely none. The Federated Press Ltd did not build the six shops including shop No.5. The shop was built by the defendant. What right had Alhaji Abdul Rasaq to grant the tenancy of the shop to the plaintiff? Absolutely none.

Turning to the L.E.D.B., there is undisputed evidence that as owners of the land on which the shops were built they were entitled to the ground rents. There is undisputed evidence that they accepted ground rents from the dependant in respect of the land on which he erected the six shops after the sale to him by the Federated Press Ltd on their interest in the land. The L.E.D.B. therefore had accepted the defendant as their tenant in respect of the land. It is true that the defendant failed to pay ground rents to L.E.D.B. for the period he was away to Eastern Nigeria by reason of the Nigerian Civil War. But the L.E.D.B. did not determine the tenancy by reason thereof, or at all, and the shops erected on the land had not been forfeited to the L.E.D.B. on the principle of quicquid plantator solo cedit to justify the L.E.D.B. granting the shops to other tenants including the plaintiff. Therefore neither Alhaji Abdul Rasaq nor the L.E.D.B. had any right to grant tenancy of any of the shops built by the defendant to either the plaintiff or to anybody else. Not having taken steps to determine the tenancy and in fact the tenancy being now alive and subsisting, the interest of the L.E.D.B. would lie in recovering arrears of ground rents, if any, from the defendant. The defendant being the owner of those shops had a right to possession of them. The principle of law enunciated by Maule, in Jones v. Chapman (1847) 2 Ex. 803 and approved by Lord Selborne in Lows v. Telford (1876) 1 App. Cas.414 at 426 remains the law as between two persons in disputed possession. Proof of ownership is prima facie proof of possession, the presumption being that the person having a title to the land is in possession. As has been shown in Jones v. Chapman (supra) the legal effect of entry by a person entitled is not in any way affected by the fact that another who, without title, was previously in possession persists in remaining upon the land concurrently with the true owner. Said Maule, J., at page 821 ibid:

"As soon as a person is entitled to possession, and enters in assertion of that possession...the Law immediately vests the actual possession in the person who has so entered...."

There was undisputed evidence that the defendant left some of his servants to live and sleep in the factory section of the shops when he left for Eastern Nigeria at the outbreak of the Nigerian Civil War. These servants, the evidence disclosed, lived and slept there. In those circumstances, the defendant had in law continued to be in possession of that part of the shops even though he had gone to Eastern Nigeria, as the occupation by those servants of that part of the shop must be treated in law as the possession of their master, namely the defendant (see the National Steam Car Co. v. Barham (1919) 122 L.T.315).

We had earlier referred to the law which entitles an occupier of property to abate a nuisance introduced into the property. Was the defendant entitled to abate the nuisance introduced into the factory section of the shops by the plaintiff? To answer this question one must consider the evidence of the 5th witness for the defence, ALEXANDER IKE, which evidence that the defendant was his Director and he was working for him. He said he knew their factory at No.4 Nnamdi Azikiwe Street. He swore and testified inter alia, as follows:

"The Plaintiff was working in his apartment and converting his radio shop into a Super Market. He was coming into our factory. He told me he wanted to build a toilet there. The Plaintiff made an opening into our factory. My director employed somebody to close the opening."