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SADIKU OGUNGBESAN
V.
KAJERO AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
24TH DAY OF APRIL, 1944
2PLR/1944/49 (WACA)
OTHER CITATION(S)
2PLR/1944/49 (WACA)
(1944) X WACA PP. 176 – 179
LEX (1944) – X WACA PP. 176 – 179
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BAKER, J.
FRANCIS, J.
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BETWEEN:
SADIKU OGUNGBESAN (PRESIDENT OSUGBO CULT, AGBOWA) – Plaintiff-Appellant
AND
1. KAJERO
2. FAKOYA OJO AYIBIOWU
3. BELO OGUNLARU
4. YESUFU OSIDEYIN
5. DADEOWO ARANIJA – Defendants-Respondents
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ORIGINATING COURT(S)
APPEAL BY PLAINTIFF FROM THE DECISION DISMISSING THE ACTION.
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REPRESENTATION
A. O. Thomas — for Appellant
E. A. Akerele for three, and L. Odunsi for two of the Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY LAW:- Damage to cult property by members of the cult — Criminal proceeding, followed by action for tort — Practice where Defence submits there is no case to answer, at close of Plaintiff’s case — Proof of malice — Relevance of, where damage proved — Whether compensation in criminal proceedings bar to the action for tort
RELIGION AND LAW — CULT:- Forcible entry into cult property by some members occasioning damage thereto — Claim for damages — How sustained — Basis of, against members who otherwise may claim licence of entry
REAL ESTATE AND PROPERTY LAW:- Claim for damages for trespass by forcible entry with no claim for damage done to property — Distinction from claim for damage caused to the property with suggestion of forcible entry being incidental to the allegation of actual damage done — Legal effect
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CASE SUMMARY
Plaintiff sued Defendants for special and general damages for malicious injuries to Iledi (Osugbo House) the property of the Cult. At the close of his case, it was submitted for Defendants that there was no case to answer, whereupon the Judge dismissed the action on the ground that they had an interest in that property and that the evidence pointed solely that they had made a forcible entry after having been locked out.
Plaintiff’s evidence was that the Iledi could only be entered when there was a meeting and only members could attend; that he let Defendants attend; also that material damage had been done for which criminal proceedings had been taken. The Judge seemed to regard the claim as one for damages for forcible entry.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal) that:
1. Plaintiff had made out a prima facie case of damage to property and that Defendants should have been called upon to make their defence to that case.
2. The tort was actionable without proof that the damage had been done maliciously and that previous criminal proceedings in which compensation might have been awarded were no bar to the action for tort.
Akinlolu Akodus v. Yesufu Omidiji, 8 N.L.R. 55, distinguished.
Aduke and another v. Aiyelabola (then unreported, now at 8 W.A.C.A. 43) referred to on the Court’s duties upon a submission of “no case to answer”.
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MAIN JUDGMENT
The judgment of the Court was delivered by Francis, J.:-
In this action the Appellant as President of the Osugbo Cult, Agbowa, sued the Respondents for the sum of £510 special and general damages “for malicious injuries done to Iledi (Osugbo House) the property of the Osugbo Cult Agbowa.”
The damages claimed are set out in the writ as follows:-
Special Damages
Repairs to the Iledi £106 0 0
Drums, Paraphernalia and other Osugbo Properties removed from the Iledi 55 0 0
Cost of Prosecuting Defendants criminally 49 0 0
£210 0 0
General Damages 300 0 0
£510 0 0
At the conclusion of the Appellant’s case a submission was made by Counsel for the Respondents that there was no case to answer, upon which the learned trial Judge without calling on the Defendants proceeded to judgment and dismissed the action with costs.
After considering the evidence and arguments the learned Judge found as a fact that the Respondents had an interest in the Iledi and the Cult property, the subject of the action, and he also came to the conclusion that the whole evidence pointed to a forcible entry by Respondents into the Cult property from which they had been locked out – and to that alone. It was on this ground that he held that no civil remedy lay.
There appear to be two points on which the learned Judge misdirected himself. First, that the Respondents had been locked out of the property of the Cult and secondly that the evidence adduced by the Appellant pointed only to a forcible entry.
As to the first the evidence given by the Appellant was that “the Iledi could only be entered when there is a meeting and only members can attend”. This fact would of course apply equally to all members of the Cult and in our opinion cannot be taken to mean that during a meeting when the building was accessible to members the Respondents were excluded.
The Plaintiff’s evidence was “I let them attend”. And as to the second point the evidence of Appellant and his witness Efunkoya was to the effect that material damage was done to the Iledi both by removal of the doors and damage to the walls of the building, the latter witness stated “the whole building had to be repaired”. It is not necessary to show that such damage was done maliciously for the tort to be actionable; nor does the fact that previous criminal proceedings had been taken in which compensation might possibly have been awarded debar the Appellants from pursuing their civil remedy by this action.
In dismissing the action the learned Judge seems to have regarded it merely as a claim for damages for forcible entry and to have relied on the case of Akinlolu Akodus v. Yesufu Omidiji reported in VIII N.L.R. 55 in which it was held that the Defendant Omidiji had a right to enter the building and consequently no trespass had been committed by his forcible entry. In the course of his judgment in that case (which was affirmed by the Full Court) Petrides, J. held as follows:-
“I am of the opinion that the English law on the point is correctly stated by Fry J., in Beddall v. Maitland (1881) 17 Ch. D. at page 188, in the following words:-
“Damages cannot be recovered against the rightful owner for a forcible entry on land ….. The result of the cases appears to me to be this, that, inasmuch as the possession of the Defendant was unlawful he can recover no damages for the forcible entry of the Plaintiff. He can recover no damages for the entry because the possession was not legally his and he can recover none for the force used, because, though the statute 5 Rich. II. creates a crime it gives no civil remedy”.
and that the principle enunciated applies to Nigeria verbatim with the exception of the words “statute 5 Rich. II” for which the words “Criminal Code” should be substituted.”
It is our view that there is a distinction between the Akodu case (supra) and the present one. In the Akodu case the claim was for damages for trespass by forcible entry, but there was no claim for damage done to property, whilst the present action was brought, not in respect of trespass by forcible entry, but for damage caused to the Cult property, any suggestion of forcible entry in para. 6 of the Statement of Claim being incidental to the allegation of actual damage done.
The principle enunciated in Beddall v. Maitland (supra) goes no further than to lay down that damages cannot be recovered by a party whose possession is unlawful against the rightful owner of land for a forcible entry on the land and that he can recover no damages for the force used because the statute 5 Rich. II. which makes forcible entry an offence provides no civil remedy. This is abundantly clear by reference to the case itself, where the passage quoted by Petrides, J. and reproduced above from the judgment of Fry, J. is immediately followed by-
“But, in respect of independent wrongful acts which are done in the course of or after the forcible entry, a right of action does arise, because the person doing them cannot allege that the acts were lawful, unless justified by a lawful entry; and he cannot plead that he has a lawful possession.”
It was argued by Counsel for the 3rd and 5th Respondents before us that a co-owner cannot sue his co-owner for trespass (including, in the wider sense, damage to their jointly owned property). This defence was not set up by any of the Defendants’ pleadings and has not been considered by the learned trial Judge. We think that we should not express any opinion upon the soundness or otherwise of the submission.
It is, in our view, clear that the Plaintiff made out a prima facie case of damage to property, and that the Defendants should have been called upon to make their defence to that case. In this connection we refer to the case of Aduke and another v. Aiyelabola decided by this Court in April, 1942 (not yet reported) in which the Court considered the duties of a Court when a submission of “no case to answer” is made at the conclusion of the Plaintiff’s case.
For the reasons set out above we allow this appeal and set aside the judgment of the Court below including the order as to costs, and further order that any such costs as may have been paid shall be refunded.
We remit the case to the Court below for the Defendants’ defence to the action to be heard and thereafter for judgment. The Appellant is awarded costs in this Court assessed at 30 guineas against all the Respondents jointly and severally. The costs already incurred and to be incurred at the further hearing in the Court below will be in the discretion of the trial Judge at the further hearing.
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