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Chukwuna v. Ifaloye

MRS. T. C. CHUKWUNA

V

MR. BABAWALE IFALOYE

( For himself and on behalf of the estate of the Late Chief Ajewole Ifaloye)

COURT OF APPEAL

( ABUJA DIVISION )

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JCA ( Presided )

ZAINAB ADAMU BULKACHUWA, JCA ( Read the Lead Judgment )

ALBERT GBADEBO ODUYEMI, JCA

CA/A/37/99

TUESDAY, 15TH JANUARY, 2002

APPEAL - Issue for determination - Competence of - Condition precedent -  Need for to relate to at least one ground of appeal

APPEAL - Issues for determination - Failure to frame same from grounds of appeal - Effect of

LAND LAW - ‘Trespass’ - Meaning of

LAND LAW - Action in trespass - Who can maintain

LAND LAW - Trespass - Right to claim in trespass - When abates

LAND LAW - Trespass - Where claim for trespass fails - Whether court can still award damages and injunction for trespass WORDS AND PHRASES - ‘Trespass’ - Meaning of

Issues:

1.            That based on the pleadings and the evidence adduced at trial whether the learned trial Judge came to the right conclusion in his application of the case of Adebanjo vs. Brown (1990) NWLR (Pt. 141) at 661 as it relates to waiver in trespass.

2.            That based on the findings of the learned trial Judge that respondent was in trespass to the appellant’s land, was the learned trial Judge right in refusing to go further and grant the reliefs of injunction and damages.

Facts:

The appellant herein as plaintiff at the lower court filed action against Chief Ajewole Ifaloye (deceased) at the High Court of the Federal Capital Territory, Abuja claiming N3,000,000.00 being general damages for trespass and injunction against the defendant.

The trial Judge at the conclusion of trial and address of the parties’ counsel found, inter alia as follows:

“In the case in issue the plaintiff found that the defendant has encroached onto her land and the two tried to negotiate with the help of their lawyer to either pay for the land or swap the land for the adjacent one, the plaintiff cannot therefore be heard to be complaining over spilled milk after having waived, to her detriment, the right to sue for trespass until much later” ... The trial court consequently dismissed the plaintiff’s claim on the basis that she had waived her right to sue the defendant having condoned the defendant’s trespassing on her land.

Being dissatisfied with the said judgment, the plaintiff/appellant filed this appeal whereby she urged the Court of Appeal to, inter alia, decide whether the learned trial Judge had correctly interpreted and applied the judgment of Agbaje JSC (as he then was) in the case of Adebanjo vs. Brown (1990)  NWLR (Pt. 141) at  661.