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G. B. AMANCIO SANTOS
V.
IKOSI INDUSTRIES LIMITED AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, LAGOS, NIGERIA
23RD DAY OF APRIL, 1942
2PLR/1943/55 (WACA)
OTHER CITATION(S)
2PLR/1943/55 (WACA)
(1942) IX WACA PP. 29 – 38
LEX (1942) – WACA PP. 29 – 38
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
FRANCIS, J.
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BETWEEN:
G. B. AMANCIO SANTOS — Plaintiff-Appellant
AND
1. IKOSI INDUSTRIES LIMITED
2. EPE NATIVE ADMINISTRATION (JOINED BY ORDER OF COURT) — Defendants-Respondents
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REPRESENTATION
E. A. Akerele — for Plaintiff-Appellant
J. E. C. David — for 1st Defendants-Respondents
S. A. Mckinstry (Crown Counsel) — for 2nd Defendants-Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Trespass to land — Pier built on land and foreshore — Estoppel per rem judicatam —Laches — Damages — Where would be deemed applicable — Failure of court thereto — Proper order for appellate Court to make
ENVIRONMENTAL LAW — FORESHORE:- Meaning of — Distinction from narrow strip of land lying between the high water mark of a lagoon — Legal implication(s)
CUSTOMARY LAW AND PROCEDURE:- Allegation of the existence of a custom — Duty on party who alleges to plead and prove same — Custom applicable in a different place — Duty of court where same is invoked without proof as applicable to another place
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PRACTICE AND PROCEDURE ISSUE(S)
WORDS AND PHRASES:- “Foreshore” — Meaning of
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CASE SUMMARY
ORIGINATING FACTS
The defendants purchased from the plaintiff land at Aiyetoro and a conveyance was executed showing the area. Damages were claimed for trespass committed by the defendants in building a pier beyond the area bought. The second defendants who were joined as co-defendants leased a foreshore plot to first defendants on which and the adjoining foreshore the trespass was alleged to have taken place. They claimed that the land was communal land owned by the people of Epe. In the alternative the plaintiff was said to have stood by with knowledge of expenditure on the building and not to have suffered any damage.
There was a reply by plaintiff pleading a previous judgment and a rejoinder denying that the land was the subject matter of the previous suit or that Epe Native Administration or the people of Epe were parties.
Judgment was given dismissing the plaintiff’s action on the ground that –
(a) the previous judgment did not operate as an estoppels;
(b) the ownership and possession of disputed land were not proved; and
(c) the land in dispute was beach land and vested in the community.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. The land in dispute was not and does not include a foreshore (the area between high and low water mark). It consists of a narrow strip of land lying between high water mark of the lagoon and a footpath running roughly parallel with the lagoon, more or less east and west. A foreshore by law is under the control of the Crown but the rights of the Crown do not extend above highwater mark.
2. It is clear from the plan attached to the deed of conveyance given in evidence at the earlier suit that to the Appellant was conveyed not only the large area of dry land north of the footpath but also the area of swamp land between the path and the lagoon.
3. The parties in the earlier suit upon which estoppel per rem judicata was premised were the same. Even if only five of the quarters of Epe were nominally parties to the earlier suit, it is clear that all the other quarters are bound by the decision upon the principle that: “For the purpose of estoppel per rem judicatam, a party means not only a person named as such, but also one… who, being cognizant of the proceedings, and of the fact that a party thereto is professing to act in his interests, allows his battle to be fought by that party, intending to take the benefit of the championship in the event of success.”
4. The subject matter of the suit was also the same as area now in dispute was also included in the area in dispute in the earlier suit.
5. Estoppel per rem judicata will apply where a suit was defended to affirm a conveyance antecedent to that suit. For, in that circumstances, the defendant/vendor and the purchaser affirmed will be deemed to be privies.
6. To hold that because a particular native law and custom is proved for one particular locality in Nigeria, it necessarily becomes established law that that custom obtains throughout Nigeria would be most dangerous. Epe and Calabar are widely separated in distance, one is in the Colony and the other within the Eastern Provinces of the Protectorate. They are inhabitated by peoples of different tribes with different languages and customs.
7. When it is sought to rely upon a custom at Epe, that custom must be proved for Epe and what the custom may be at Calabar is irrelevant. When a party relies upon a custom of this nature the custom must be certain and must be clearly alleged and proved.
8. The fundamental principle in cases of “alleged standing by” would only apply if it satisfies the dictum laid down by Lord Chancellor Campbell in the case of Cairncross v. Lorimer [(1860) 3 L.T. 130: 123 Eng: Rep: 906] in these words: “the doctrine will apply, which is to be found, I believe, in the laws of all civilized nations, that if a man, either by words or by conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct.”
9. On the question of damages in cases of this nature where the land had appreciated in value by virtue of the wrongful trespass, the law is stated at section 172 p. 135 of 10 Halsbury (2nd Ed:) viz:
“Where a trespass consists of a wrongful and unauthorised user of the plaintiff’s land, the measure of damages is not the depreciation in the value of the plaintiff’s land, or the amount required to repair the injury which has been suffered, but such reasonable payment in the nature of rent as would have been required for a licence to make such use of the plaintiff’s land during the period whilst it was so used.”
Retrial ordered on ground that trial Judge holding that the action failed on the grounds he gave, found it unnecessary to go into question of laches and damages.
Cases referred to:-
Henshaw v. Henshaw (8 N.L.R. 77).
Mercantile Investment & General Trust Co. v. River Plate, Trust Loan and Agency o. 1894 1 Ch. 578.
Cairncross v. Lorimer 1860 3 L.T. 130.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND FRANCIS, J.
In this case the plaintiff caused to issue on the 5th July, 1941, a writ against the first defendants claiming £100 being damages for the trespass committed by the defendants on the plaintiff’s land at Aiyetoro, Epe, Nigeria, by building a pier on the land and foreshore”. On the 21st July, 1941, the plaintiffs filed the following statement of claim:-
“1. The plaintiff is a clerk residing at Lagos Nigeria.
2. The defendants are traders and ship owners residing at Ebute Metta Nigeria.
3. The plaintiff is the owner of a piece or parcel of land situate at Aiyetoro Market the Marina, Epe.
4. Sometime ago the defendants purchased from the plaintiff portion of the land at Aiyetoro Epe and a conveyance showing the area bought was executed.
5. Since the purchase by the defendants they by their servants, agents or themselves have trespassed beyond the area bought by them by building a Pier in the plaintiff’s land without his consent.
6. The plaintiff has by his Solicitor requested the defendants to remove the trespass but they have refused to do so and the trespass still continues.
7. The plaintiff therefore claims as per writ of summons.
8. The plan of the area in dispute is filed in this action.”
On the 8th September, on the motion of the first defendants the second defendants were joined as co-defendants.
On the 23rd September, 1941, the first defendants filed the following defence:
“1. The second defendants admit paragraphs 1, 2 and 4 of the Statement of Claim.
2. The second defendants further admit that the plaintiff is the owner of a piece or parcel of land situated at Epe and that the plaintiff has leased a portion of the said land to the first defendant. The land which is owned by the plaintiff is a piece or parcel of land situated on the land side of a foothpath adjoining the beach and foreshore, the boundaries of which are marked by property beacons Nos. Q. 66, Q. 60, Q. 61, Q. 85, Q. 71, Q. 64, Q. 62, Q. 56, Q. 61, Q. 68, Q. 70, Q. 69, Q. 51, Q. 69 and Q, 57.
3. The second defendants deny that they have trespassed on the said land or on any land owned by and/or in the possession of the plaintiff.
4. In December, 1939, the second defendants agreed for and on behalf of the people of Epe to lease a certain foreshore plot to the first defendant at a rent of £2 a year. It is upon the said plot and/or the adjoining foreshore that the plaintiff alleges trespass.
5. The said plot does not form any part of the land owned by the plaintiff but is a piece or parcel of beach and/or swamp land situated on the seaward side of the footpath and beacons herein before mentioned. The said land at all material times has been communal land owned by the people of Epe in accordance with native law and custom.
6. The first defendant thereupon entered upon the said plot, reclaimed the same and built a pier abutting from the foreshore at a cost of £200 or thereabouts. The said pier is wholly or in part situated on the land vested in the Crown, to wit, the foreshore and the bed of the lagoon, and was built under a licence from the Commissioner of Lands.
7. Further and in the alternative the second defendants will say that the plaintiff ‘stood by’ with the knowledge that money was being expended on the said plot and that he is now estopped from asserting any right or title to the said plot unless he makes compensation for the money expended or otherwise does equity.
8. The second defendants deny that the plaintiff has suffered the alleged or any damage. On the contrary the land has been greatly increased in value – by the reclaiming thereof and the building of the said pier.
9. Except in so far as is herein expressly admitted the second defendants deny each and every allegation contained in the statement of claim as if the same were herein set out in detail and traversed seriatim.
10. The second defendants will further contend that the statement of claim discloses no cause of action.”
And on the 29th September, 1941, the 1st defendants filed the following defence:-
“1. The 1st defendants admit paragraphs 1, 2 and 4 of the Statement of Claim.
2. The 1st defendants further admit that the plaintiff is owner of piece or parcel of land at Epe but they deny that the land on which they have built a Pier is the property of the plaintiff.
3. The swamp land on which the first defendants have built their pier is the property of the Native Administration of Epe who hold it for the people of Epe, and the 1st defendants entered upon the said land by the command and authority of the said Native Administration of Epe.
4. The 1st defendants also hold a licence from the Commissioner of Lands for their pier which extends 250 ft. into the lagoon.
5. The 1st defendants deny that they have trespassed on any land owned by and/or in possession of the plaintiff.
6. Except in far as is herein expressly admitted the 1st defendants deny each and every allegation contained in the S/C as if the same wen, herein set out in detail and traversed seriatim.”
On the 18th October, 1941, the plaintiff filed the following rejoinder:
1. The plaintiff says that the land the subject matter of this action belong to him and that it was the subject matter of litigation in suit No. 392/28 intituled Isiaka Oke, Fetuga Yesufu Akodu, Abudu Kadiri Oluwo, Sanni Ojobaro and Suflanu Gbajumo as representing the community of Epe v. Qgunorin Osho.
2. The question of the land being communal was decided against the plaintiffs in suit 392/28 and also by the Full Court of Nigeria on 26th February, 1930 and there has been no appeal against the Full Court decision.
3. A conveyance dated 22nd July, 1929, and registered as No. 33 at page 33 in Volume 265 of the Lands Registry in the office at Lagos was made to the plaintiff by Ogunorin Osho the successful party in suit 392/28 and the extent of the plaintiff’s land was shown on the plan drawn on the said conveyance.
4. The Native Administration Epe by their pleadings are trying to re-open a question already decided in 392/28.
5. The plaintiff therefore pleads the judgment.
6. Beacons are placed only on dry land and not on swamp under the Survey Ordinance.
7. The plaintiff has all the time been exercising acts of ownership on his land and when the first defendant trespassed on his land gave them notice to remove the trespass which they failed to do relying on the fictitious title of the 2nd defendants.
8. The plaintiff therefore sued the 1st defendant and 2nd defendant was joined by the Court at the instance of the first defendant.”
And on the 21st October, 1941, the 2nd defendant filed the following rejoinder:-
“The second defendant joins issue with the plaintiff on his reply (referred to in his pleading as a rejoinder) and denies that the land which is the subject matter of the present action was included in suit “No. 392/28 and denies further that the Epe Native Administration and/or the people of Epe were parties to the said suit.”
The hearing of the case started in the Supreme Court before Butler Lloyd, J., on the 20th November, 1941, and on the 16th December, 1941, he gave judgment dismissing the plaintiff’s action.
The reasons for his decision may be summarised as follows:-
(a) Judgment in case 392/28 did not operate as an estoppel against the defendants.
(b) The plaintiff did not prove ownership of the disputed land.
(c) The plaintiff did not prove that he was in possession of the disputed land.
(d) The land in dispute, being “beach land” i.e; a strip of dry land above high water mark, is vested in the community upon the authority of Henshaw v. Henshaw (8 N.L.R. 77).
He found it unnecessary to go into the question of laches raised against the “plaintiff” (i.e. the averment of “standing by” made in paragraph 7 of the 2nd defendants’ defence), or of damages but intimated that had the case had a different termination he would not have awarded more than normal damages “in view of the plaintiff’s own admission that the rest of his land has been actually increased in value as a result of defendants’ action.”
Against that judgment the plaintiff has appealed to this Court on the following grounds:-
“1. The learned Trial Judge misdirected himself in law when he said that ‘I accept the judgment in Henshaw v. Henshaw as establishing that by Native Custom beach land in the sense of a strip of dry land above high water mark is vested in the Community.’
2. The learned Trial Judge misdirected himself in law when he said that ‘In my view this strip comes within the meaning of the term beach land as defined by Henshaw v. Henshaw and being by native custom communal could not be vested in Osho or his successor in title the plaintiff.’
3. Verdict against weight of evidence.”
It should first be explained exactly what the land in dispute is. It consists of a narrow strip of land lying between high water mark of the lagoon and a footpath running roughly parallel with the lagoon, more or less east and west. It does not include the foreshore, which we take to mean the area between high and low water mark, and the word foreshore was wrongly included in the writ. It is not in dispute that the foreshore is under the control of the Crown. But the rights of the Crown do not extend above highwater mark even though it may be dismissed to be the case) that part of the land is flooded at times of flood water.
For the purpose of suit No. 392 of 1928 a plan was made and that plan was put in as Ex. A in this case. It shows the edge of the lagoon, i.e. high water mark, and the footpath, and the swamp land between as included in the land then in dispute. After the decision of the case in defendant Ogunnorin Osho’s favour, i.e. dismissing the plaintiffs’ claim to a declaration of title and an injunction. Osho on the 22nd July, 1929 executed a deed of conveyance (Ex. “C”) in favour of Santos the present plaintiff, thereby implementing an agreement for sale made before suit No. 392 of 1928 was instituted. It is clear from the plan attached to the deed of conveyance that the deed purported to convey to Santos not only the large area of dry land north of the footpath but also the area of swamp land between the path and the lagoon.
At its widest part, the extreme west, the width of this swamp land is shown as 300 feet, it progressively narrows to the eastward, but we find nothing to support the learned trial Judge’s statement that it “is nowhere more than 50-60 feet wide”. Subsequently the plaintiff says he “dedicated” a strip 50 feet wide immediately south of the footpath as a public road to be known as “Jibowu Street”. This, of course, runs along the highest and dryest part of the swamp land and if it were not for such “dedication” would be included in the land in dispute. There is no foundation whatever for the suggestion made in this Court by learned Counsel for the 2nd defendants-respondents that there is a row of pillars or other marks following the line of the footpath and placed there to demarcate the southern boundary of the plaintiff’s land.
Turning now to the reasons for the learned trial Judge’s decision, we find ourselves unable to agree with them, at any rate with those lettered (a), (c) and (d). If (c) is decided in plaintiff’s favour (b) is unimportant.
First as to (a), the question of estoppel.
The plaintiff’s contention is that in this case the parties are either the same as, or the privies of, the parties in suit No. 392/28 and that the land then in dispute included the land now in dispute, that the plaintiffs in that action sued for a declaration of title and failed and that consequently they cannot now set up (as they seek to do in paragraph 5 of the 2nd defendants’ defence and paragraph 3 of the 1st defendant’s defence) ownership as a defence to an action for trespass.
The defendants’ “rejoinder” to this was a denial that the land was the same or that the Epe Native Administration and/or the people of Epe were parties to the 1928 suit.
The learned trial Judge found against the plaintiff’s plea of estoppel on two grounds; the second was that the plaintiffs in the 1928 case were not identical with the 2nd defendants in the present case, since they only represented five out of the fifteen quarters of Epe, and the first was that the plaintiff had purchased from Osho before the judgment in case 392/28. He did not deal with the question of the identity of the land.
We do not agree upon any of these points. First as to the identity of the parties. In the present suit the second defendants represent all the quarters or wards of Epe.
In the 1928 suit Mr Justice Carey, in giving judgment, said:
”I am satisfied that as the Lagos Bale was named as a plaintiff and he and the Ijebu Bale were called as witnesses they (i.e. the plaintiffs) can be taken as representing all the quarters of Epe.”
We hold that it is not possible to go behind this finding of fact of the trial Judge in that case as to who were the parties before him. Moreover even if only five of the quarters of Epe were nominally parties to the 1928 suit, it is clear that all the other quarters are bound by the decision upon the principle enunciated in the following quotation from Spencer and Bower on Res Judicata (1924) p. 126 para. 197.
“For the purpose of estoppel per rem judicatam, a party means not only a person named as such, but also one… who, being cognizant of the proceedings, and of the fact that a party thereto is professing to act in his interests, allows his battle to be fought by that party, intending to take the benefit of the championship in the event of success.”
Secondly as to the land, it is abundantly clear that the area now in dispute was included in the area in dispute in 1928. Apart from the evidence of the Plan Ex. “A”, which is conclusive, the plaintiffs in the 1928 case specifically led evidence in regard to the swamp land. Abudu Kadiri Oluwo said:-
“The people of Eti Itun, Ajagannobi, Itun Igbehin, Eyinde and Oke Iposu have used the lands for catch crops since I remember. The swamp side for sugar cane and vegetables.”
As for the other point that the plaintiff had purchased from Osho before the judgment in case 392 /28, we cannot see that this affects the question in any way. Apparently, from the submissions of learned Counsel for the 2nd Respondents in this Court the argument is based upon the following passage from p. 56 of Everest and Strode’s Law of Estoppel (3rd Ed.).
“Privies in estate are not bound by a judgment, unless it precedes the execution of the interest which is to be estopped, and therefore a purchaser of land cannot be estopped, as being privy in estate, by a judgment obtained in an action against the vendor commenced after the purchase.”
This is taken from the judgment of Romer, J., in the case of Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and Agency Trust, Loan and Agency Co., [(1894) 1 Ch. 578 at p. 595]. But the dictum appears to have no application to the present case where Osho was sued as defendant, and had to defend the suit in order to enable him to give a good conveyance to the present plaintiff Santos. In our view those circumstances Osho and Santos are clearly privies.
We are of opinion that the plaintiff’s plea of estoppel should have been upheld, and that in the present suit the defendants cannot be allowed to set up alleged ownership of the land by the community of Epe as a defence to the action for trespass.
Dealing next with the reason for judgment lettered as (d) we uphold Grounds 1 and 2 of the Grounds of appeal. The case of Henshaw v. Henshaw (supra) was solely concerned with native law and custom at Calabar. It was held (to quote the headnote) “that by local native law and custom beach land belongs to the town within the limits of which it lies and not to any particular family.” We draw attention to the word “local”. In our view, to hold that because a particular native law and custom is proved for one particular locality in Nigeria, it necessarily becomes established law that that custom obtains throughout Nigeria would be most dangerous. But that is, in effect, what the learned trial Judge has done. Epe and Calabar are widely separated in distance, one is in the Colony and the other within the Eastern Provinces of the Protectorate, they are inhabitated by peoples of different tribes with different languages and customs. Clearly when it is sought to rely upon a custom at Epe, that custom must be proved for Epe and what the custom may be at Calabar is irrelevant. So far then as the finding of the trial Judge is based upon the case of Henshaw v. Henshaw, we hold that it is based upon misdirection.
Consequent upon the view we take that the defendants are estopped per rem judicatam from setting up in the present case that the land in dispute is by native law and custom vested in the community, the question of what the custom at Epe may be is merely academic, but it is worth pointing out that the defendants made no real attempt to prove any local law and custom. When a party relies upon a custom of this nature the custom must be certain and must be clearly alleged and proved. Here only two of the defendants’ witnesses mentioned custom. Aina, the ljebu Hale of Epe said “I remember the case in 1928. The waterfront was not in dispute. By native custom this belongs to the Native Administration,” and Olubanjo Odutola, a member of the Council at ljebu Ode, said- “By Ijebu custom the foreshore is communal in order to enable people to pull up canoes.”
It is possible, though not certain, that one or both of these witnesses were referring to land above high-water mark. But could anything be more vague or uncertain?
Turning now to the question of possession [lettered (c) in the reasons for judgment]. The learned trial Judge dealt with it thus:-
“The evidence of such possession is extremely unsatisfactory plaintiff under cross-examination said ‘I could have leased the land where the wharf stands, later ‘I have never sold anything south of this road (Jibowu Street). In re-examination he said I used to have tenants on the foreshore. His agent Lavole also said he used to let the foreshore to fishermen. But neither of them indicated what portion of the foreshore had been actually leased or to whom, and I think it safe to assume that had plaintiff actually let or intended to let any of this area he would have included it in his lay-out in Ex ‘K’”.
The question was, of course, one of fact for the trial Judge, and if we were able to give a final decision upon this Appeal we should have to consider very carefully whether or not the finding was so clearly shown to be wrong as to justify us in over-ruling it, but since, as will hereafter appear, we find it necessary to send this case back for- re-trial, we confine ourselves to pointing out matter which it appears that the learned trial Judge overlooked and which point strongly in the opposite direction. The most important of these is the conveyance Ex. “C”. It is clear that this purported to convey the land in dispute along with, and as one piece with, the larger area North of the footpath. It is not disputed that in pursuance of that conveyance plaintiff entered into possession of the larger area. Must he not be taken as having entered into possession of the whole area conveyed? And if so, has he ever suffered dispossession of any part of it? Again surely the dedication of part of the land as a public road, as to which the plaintiff gave testimony, is strong evidence of dealing with the land indicating possession and ownership.
Further we do not agree that the omission to include the Swamp land in the layout in Ex. “K” has any significance against the plaintiff’s possession. Such land was obviously not saleable and naturally would not be included in such a layout, and with those remarks we leave the question of the plaintiff’s possession to be re-considered upon the re-trial. As already indicated we find it necessary to order a re-trial, because the trial Judge, holding that the action failed upon the grounds he gave, found it unnecessary “to go into the question of laches raised against the plaintiff or of damages.” There still remains for decision the question of whether or not paragraph 7 of the second defendants’ defence (already quoted) constitutes a good defence to the action. There has been no offer by the plaintiff to make compensation for the money expended or otherwise do equity.”
It may not be out of place if we draw attention to the fundamental principle in cases of “alleged standing by”. It is laid down by Lord Chancellor Campbell in the case of Cairncross v. Lorimer [(1860) 3 L.T. 130: 123 Eng: Rep: 906] in these words:
“the doctrine will apply, which is to be found, I believe, in the laws of all civilized nations, that if a man, either by words or by conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct.”
And on the question of damages in cases of this nature the law as stated at section 172 p. 135 of 10 Halsbury (2nd Ed:).
“Where a trespass consists of a wrongful and unauthorised user of the plaintiff’s land, the measure of damages is not the depreciation in the value of the plaintiff’s land, or the amount required to repair the injury which has been suffered, but such reasonable payment in the nature of rent as would have been required for a licence to make such use of the plaintiff’s land during the period whilst it was so used.”
With these observations we leave the questions of possession, standing by, and (if it arises) damages to the Judge at the new trial.
The appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance of that judgment it shall be refunded. The case is remitted to the Court below to be re-tried by a different Judge. The appellant is awarded costs in this Court assessed at seventy-five guineas jointly and severally against the two defendants; the costs already incurred in the Court below are to be in the discretion of the Judge at the re-trial.
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