Tamba v Kai (CIV.APP.3/84)  SLSC 2 (19 February 1992);
IN THE SUPREME COURT OF SIERRA LEONE CORAM:
The Hon. Mr. Justice S. M.F. Kutubu C. J. Presiding
The Hon. Mr. Justice C. A. Harding J.S.C.
The Hon. Mrs. A. V. A. Awunor-Renner J.S.C.
The Hon. Mr. Justice S.B. Davies J.S.C.
The Hon. Mr. Justice S.C.E. Warne J.S.C.
JAMBS TAMBA – APPELLANT
MOMOH KAI - RESOPDENT
F.M. CABEW ESQ. for the Appellant
E.J. AKAR ESQ. for the Respondent
JUDGMENT DELIVERED THIS 19TH DAY OF FEBRUARY. 1992
WARNE: J.S.C.:- This is an Appeal against the Judgment of the Court of Appeal delivered on the 6th day of April, 1984 reversing the Judgment of the High Court delivered on the 22nd day of November, 1980. James Tamba (the Appellant herein) by Writ of Summons dated 10th October, 1977 made a Claim against Momoh Kai (the Respondent herein) for:
(a) Damages for trespass, and
(b) An injunction
The facts of the case are as follows:
By Deed of Conveyance dated 2nd October, 1968, One Giant Sallu Bundu sold a certain piece or parcel of land situate and lyin. off City Road Wellington in the Western Area of (the Republic of ) Sierra Leone to one Momoh Kamara. The land was demarcated in the said Conveyance thus, on the North by Private Property 150.0 feet; on the South by Access Road 149.5 feet ; on the East by the remaining portion of the said land then in the possession of the Vendor 74.1 feet. The Conveyance was tendered in evidence and Marked Exh. "J" Momoh Kamara divided this land into three Plots and sold one Plot to James Camara Macauley. The Deed of Conveyance
was dated 1st May, 1971 and a Copy was tendered in evidence and Marked Exhibit "F 2". On the 8th April, 1974, Momoh Kamara sold another portion of the said land to Momoh Kai. This Conveyance was tendered and Marked Exh. "E".
On the 15th October, 1975, James Camara Macauley sold his piece of land to Momoh Kai. A copy of the Conveyance was tendered and Marked Exh . "G 2".
During the negotiation for the Sale of Land by Momoh Kamara firstly to James Camara Macauley and secondly to the Respondent, the Appellant was the "go between".
After Exhibit "G 2" had been executed between James Camara Macauley and the Respondent, the Respondent said that was the said piece of land ha bought from Momoh Kamara. Momoh Kamara had since died. The Respondent subsequently reported the matter to the C. I. D. and claimed from the Appellant the sum of Le1,637.50 for expenses incurred on the land transaction. The Appellant paid Respondent the money and Respondent subsequently executed a Deed of Conveyance in favour of Appellant which was tendered in evidence as Exh. "A".
Exhibit "A" is the subject matter of the dispute between Appellant and Respondent.
The History of the Proceedings is as follows:-
A Writ of Summons issued on 10th October, 1977 was accompanied by a Statement of Claim 1 will herein set out what I consider to be the material Paragraphs.-
"3. That by Indenture of Conveyance dated the 8th day of April, 1974 expressed to be made between Momoh Kamara (Principal or Plaintiff) of the first part and Momoh Kai (Defendant herein) of the other part, and registered as as No 310 at Page 143 in Volume 266 in the Book of Conveyance in the Office of the Registrar General, Freetown, the said land was conveyed to the Defendant.
4.That after the execution of the said Indenture of Conveyance someone laid claim to the said land which caused Defendant to report Plaintiff to the Criminal Investigation Departitent of Police in Freetown.
5. That the Police on receipt of Defendant's report against Plaintiff regarding the said Sale of the said land, requested Plaintiff to return the Purchase Price of the said land plus all expenses incurred by Defendant to Defendant which Plaintiff willingly did.
6. By an Indenture of Conveyance bearing date the 20th day of September, 1976 expressed to be made between Momoh Kai (Defendant herein) Seaman of No. 66 Soldier Street, Freetown of the first part, and James Tamba Seaman of No. 8D Cemetary Road, Congo Town, Freetown of the other part and registered as No. 972 at P. 144 in Volume 267 in the Book of Conveyances in the Office of the Registrar-General, Freetown the said land was re-conveyed by the Defendant herein to the Plaintiff herein for Le1,637.50.
7. That in spice of the said Conveyance of the said land the Defendant has tresspassed on Plaintiff's land by erecting permanent building structures on the said land without the consent of the Plaintiff.
8. The Plaintiff therefore claims:-
(a) Damages for Trespass
(b) An Injunction against the Defendant, his Agents and Servants from committing further acts of trespass.
(c) An Order ordering Defendant to demolish all structures erected on the said land.
(d) Damages for mense profit at the sum of Le1,000 per annum.
(e) And for any other relief which thus Honourable Court nay deem fit in interest of Justice."
The Respondent duly filed a Defence, which was subsequently amended.
The amended Defence was in the following terms:-"1. The Defendant admits Paragraphs 1 to 5 of thy Statement of Claim filed herein.
2.The Defendant avers that he was induced by C.I.D. Officers to sign the Conveyance bearing date of the 20th day of September, 1976 and expressed to be made between Momoh Ria (Defendant herein) Seaman and James Tamba (Plaintiff herein) as stated in Paragraph 6 of the Statement of Claim filed herein but denies selling the said land therein described in the said Conveyance to the Plaintiff.
3.The Dafendant will further contend that the sum of Le1,637.50 paid by the Plaintiff to the Defendant was merely a refund by the said Defendant to the Plaintiff of the purchase price of the land originally to the Plaintiff of the land originally bought from Momoh Kamara in Conveyance registered as number 310 at Page 143 in Volume 266 of the Books of Conveyances in the Office of the Registrar--General plus other expenses incurred in the improvement of the said land and that the Defendant was not selling his land to the Plaintiff and had no reason to do so.
4. The Defendant will contend that he is the Legal and rightful owner of the said Property for which he holds a valid and registered Converyance for the said Property dated 15th day of October, '1975 and. registered as No. 922 at Page 48 in Volume 279 in the Books of Conveyances in the Office of the Registrar-General."
The Plaintiff filed an amended reply and made the following avertments:-
"1. The Plaintiff says that paragraph 2 of the Amended Defence is a complete contradiction of admission, already made in Paragraph 1 respectively of Defence and Amended Defence.
2. The Plaintiff denies Defendants allegations is Paragraph 2 of Amended Defence and puts him to strict proof of his allegations.
3. Save as is herein expressly admitted the Plaintiff denies each and every allegation of fact xxxxx if the same were set out seriatim and specifically traversed."
In due course, the action vent to trial, the trail commenced on 21 at December, 1973 before Alghali J. (as he then was). Both Parties were represented by Counsel. The Plaintiff testified and called one witness Frederick Cornelius Macauley, a Surveyor. Five witnesses testified on behalf of the Defendant including the Defendant himself. They were Kiss Henrietta Aubee of the Office of the Registrar-General , Mr. James Seisay Kamara, Mr. Lysins Mc'Ewen a Surveyor, and Mr Gustavus Fowler a Deputy Assistant Registrtar, Magistrate's Court.
Counsel for both parties addressed the Learned Trail Judge on the 4th and 11th June , 1979 respectively, at the and of which the Learned Judge reserved judgment. Judgment was delivered on the 22nd November , 1980. The Judgment was an favour of the Appellant . The Learned Judge made the following Orders,-
"(1) That damages of Le500 be awarded against Defendant .
(2) That the Defendant, his servant Agents are restrained from entering the said land or to commit further trespass to the land.
(3) That what is upon the land belongs to the land.
(4) That the Cost of this action to be paid to Plaintiff. Such costs to be taxed."
The Respondent appealed to the Court of Appeal on nine grounds:-
I will therefore state grounds 1, 2, 9 which I think will suffice for the purpose of the Appeal. They are "('1} The Learned Trial Judge erred in Law and fact when ho held that the Appellant/Defendant made a valid 3ale on his Land to Respondent's admission in his Statement of Claim that the land was re-conveyed to him after he had refunded Appellant's original purchase money for the land sold to Appellant by Momoh Kamara (Deceased) but not the land sold to Appellant By James Camara Macauley.
(2) The Learned Trail Judge erred in Law when he Tailed to properly consider Appellant's Defence or consider then at all.
(9) The Judgment of the High Court was against the weight of the evidence."
The hearing of the Appeal commenced before SHORT, NAVO and TUPAY J.J.A- on 19th October, 1982 and ended on 28th March, 1984 when Judgment of the High Court was reversed. Judgment was delivered on 6th April, 1984 allowing the Appeal and setting aside the Judgement and orders of the High Court.
It is against that Judgment that the Appellant has appealed to this Court. Several grounds of Appeal were filed on behalf of the Appellant and argued before us by his Counsel. It is not necessary to set them out. Suffice it to say that the material issues raised in this Appeal may be formulated thus:-
(1) Was Exhibit "A" a legally executed Conveyance of land situate and lying off Main Road Wellington by respondent to Appellant?
(2) Was the identity of the land conveyed to Appellant by Respondent clearly and unequivocally defined? If the answer is in "the affirmative, then
(5) Did respondent com it an Act of trespass on the land?
(4) If Respondent committed a Act of trespass on the land, is Appellant entitled to Damages and an Injunction?
(5) Is Appellant antitled to any other relief?
I will now proceed to consider these several issues:
It will be convenient to consider the first and second issues together- It will be re-called that the land was originally owned by Momoh Ramara (Deceased) He authorised the Appellant to sell the land. on his behalf. Appellant divided the land into three plots. He sold one Plot to James Camara Macauley, one Plot to the Respondent and one Plot to Kelfala Kanu. The dispute arose as to whether the Plot he sold to James Camara Macauley was the same Plot he sold to the Respondent. The Deed of Conveyance in respect of the Plot sold to a Janes Camara Macauley was tendered in evidence as Exhibit "F 2 ". This was dated 15th May, 1971. The Survey Plan on Exhibit 'T 2" was L3.21a/71 which was a sub-division of Survey Plan LS.196/67. The bearing on the beacons were Q.5/71; Q.6/71; Q.7/71; Q.8/71 and it is stated thereon certified true copy of IS.21A/71.
The dimension is as follows:- 75 feet by 50 feet by 75 feet by 50 feet.
The Deed of Conveyance in respect of the land sold to the Respondent was tendered and marked Exhibit "E". This was dated 8th April, 1974. The Survey Plan on Exhibit "B" was IS. 1535/73 which is a re-Survey of Plan IS .218/71. The bearing on the beacons were Q.5/71; Q.6/71; Q.7/71 ; Q.8/71.
The dimension is as follows: 74 feet by 50 feet; 75 feet by 49.6 feet.
After Janes Camera Macauley had purchased the Plot mentioned above, he went to the land in 1977 and found a store being built on it. On enquiry. he found out that it was Appellant who was erecting the store. After making some representations to Momoh Kamara, the Vendor, he decided to sell the land to Appellant for Le1,000. The offer was accepted, but later, after he had received the money, he said he returned it to him. He said he did this only to confirm that he owned the land. James Camara Macauley said, he later found another store being erected on the same land which he discovered was being erected by Respondent. He consulted a Solicitor; action was being taken when he decided to sell the load to the Respondent. He sold the land to Respondent and executed a Deed of Conveyance which was tendered as Exhibit "G 2".
I will now consider Exhibit "(5 2".
There is a Survey Plan attached to Exhibit "G 2". It is marked LS. 1533/75 it is a Sub-division, of Survey Plan LS. 196/67. The Beacons on the Plan are marked Q.5/71; Q.6/71; Q.7/71; Q8/71. The dimension is 50.0 feet by 75.0 feet by 50.0 feet by 75.0 feet.
The various Plans are very revealing except for a difference of the .6 feet on Survey Plan IS. 1535/73 attached to Exhibit "E"; the other particulars are identical.
In his evidence, Jones Camara Macauley said "I later came to know that P.W. 1 sold ay land to Momoh Kai (Defendant). It. was in the year between 1974 - 75. Yes the only compromise was to 3ell the same land to Momoh Kai though I know P.W. 1 had sold it to him. Yes Momoh Kai told me that this land I was claiming was sold to him by F.W. 1. I see Exhibit "A" it is a Conveyance from Momoh Kai to James Tamba."
P.W.1 is the Appellant and Momoh Kai- is the Respondent. What did Res-ppndent say in respect of this transaction with James Camara Macauley. Respondent testified as follows: "I recall buying a Plot of land from Momoh Kamara through P.W.1. I paid for the land through P.W. 1 to Momoh Kamara, I paid Le600.00. A Conveyance was executed in my favour. There was a dispute concerning this land.
I later summon by D.W. 2 for the said land, he claiming ownership of the said land. Before the dispute arose I had build a store on the land I bought. The store was demolished so I reported P.W.1. Later Momoh Kamara P.W.1 told me to build store again as I an the owner of the land, so I erected a store again. I then start to build a dwelling house on the land. D.W.2 issued a Writ against me. I went to the Registrar-General's Office I discovered the some land which I had bought from Homoh Kamara through P.W.1 was in fact registered under the name of D.W.2 as the owner. As a result, I contacted D.W.2 concerning the said land telling him that I now realised he is the registered owner of the land. I later re-negotiated to purchase the land from D.W.2 for Le1,470.00 after which a Conveyance was executed in my favour."
It will be observed that the foregoing evidence was given by and on behalf of the Respondent. It is necessary to consider the evidence of the Appellant in this regard. He states :The land which was given to me to be sold by Momoh Kamara I divided into three portions, The 1st plot is the portion I sold to James Macauley also known as James Camera Macauley. The middle plot I sold to Momoh Kai the Defendant and plot furtherest I sold to Kelfala Kanu. I executed a Conveyance to Defendant Momoh Kai on 8th April, 1974......................................................................... The Defendant paid LLe600 for the plot, After the Conveyance was executed in 1975 I was invited to C.I.D. Headquarters, I met Defendant there. I was asked if I know him. I answered in the affirmative . I was asked if there was any dealing between us about land at Wellington Off Main Motor Road. I told them he gave me money for land to Momoh Kamara. I told them he paid Le600.00 to the said Momoh Kamara (Defendant ) (Deceased). He now wants Le1,637.50 for the same land sold previously to him for Le600.00. He 3nid ha had developed the land.
I paid this amount of Le 1,657.50 to the C.J.,D. Headquarters and Defendant handed over all the document to me again.
The Defendant re-conveyed the land to me in 1976 of the same land. The Conveyance was executed to me in ay name. This Conveyance - tendered no objection - Exhibit "A".
This is a convenient point at which to examine Exhibit ''a". Exhibit "A" is a Deed of Conveyance made between Momoh Kai and James Tamba. The Survey Plan is marked IS 1766/75 and is a re-survey ox IS.21A/71.
The Beacons are marked Q.5/71; Q.6/71; Q.7/71; Q.3/71.. The dimension is shown as 50 fact by 74 feet by 49.6 fact by 75. feet. The common feature which runs through the various Plans mentioned above is the markings on the beacons, that is to say, Q.5/71; Q.6/71; Q.7/71; Q.8/71.
When Respondent was executing Deed of Coneyance Exhibit "A" he well knew what he was doing although he testified that he was forced into signing the documet by the C.I.D.
It must be recalled that it was the Respondent who invited the C.I.D. into a purely civil matter.
How can he be heard to say that undue influence was brought to bear on him to sign the document. Thw Respondent had already received Le1,657.50 (One Thousand Six Hundred and. Thirty-Seven Leones Fifty Cants) for what Respondent called "may money expenses wore incurred were refunded to roe by P.W.1..................................................................... At the C.I.D.; as a result of my complaint to them P.W. 1 refunded Le 1,600.00 plus this included capital expenses incurred on the land." The inference I can draw from the evidence is that the Respondent having discovered that he cannot enjoy the free and undisturbed possession of the land in dispute, opted voluntarily to dispose of it; albeit, to the. Appellant -who originally got him involved in the whole transaction, I do not agree with the Court of Appeal, when it declared that:
"The Conveyance referred to in Exhibit "A" is the ; urported re-Conveyance by Momoh Kai to James Tamba dated 20th September, 1976." In my view, Exhibit "A" was a genuine and legally executed Conveyance voluntarily made by Respondent., The answer to the first issue, is therefore, in the affirmative.
There is abundant evidence that the identity of the land was never in doubt. The evidence of the Appellant, the evidence of the Respondent, the evidence of James Camara Macauley, the evidence of Mr. McEwen the Surveyor and the various exhibits that is to say, exhibits "a", "F 2" G2 "E" speak eloquently of the identity and five a clear demareat on of its boundary.
Apart from the evidence of the Appellant, the Respondent himself, conceded that the land he conveyed to the Appellant and demarcated in the Plan on Exhibit "A" was the plot sold to him originally by Momoh Kamanra which was subsequently claimed by James Camara Macauley. He conceded also that was the piece or parcel of land James Camara Macauley sold to him.
The evidence of Mr. M'cEwen is too cogent to bo ignored. I am surprised that the Court of Appeal was not attracted by such evidence. Indeed the Court of Appeal dismissed the evidence of both Surveyors summarily. In my view, the Court of Appeal misdirected itself on the evidence touching and concerning the identity of the land. It is quite clear that if the Court had carefully considered the survey plans on the various exhibits culminating in Exhibit "A" and the evidence of Mr. Mc'Ewen, the identity of the land would have been made crystal clear to the Court of Appeal..
Even Exhibit "C " which was tendered as an encroachment plan is in the perimeter of land enclosed by beacons Q.5/71; Q6/71; Q.7/71 and Q.8/71.
In ay view, the Court of Appeal did not attach much weight to the Survey Plans, which, with respect was unfortunate. The Learned Trial Judge considered them and the identity of the land was proved by evidence. I hasten to add, that the throe plots of land into which the land of Momoh Kamara was divided and given in evidence, in my opinion, misled the Court of Appeal. The powers of the Court of Appeal to disturb a finding of fact by the Trial Judge has been well established by a series of decisions over the years. These powers are exercised or. well established principles:-
See the Case of Powell v. Streatham Manor Nursing Home A.E.R. Reprint (1935) 53. The Head note states:- "On an Appeal from the decision of a Judge sitting without a Jury the jurisdiction of the Court of Appeal is free and unrestricted. The Court has the same right as the Trial Judges to come to decisions on issues of fact as well as of law. But the Court is still a Court of
Appeal, and in exercising it's functions it is subject to the inevitable qualifications of that position. Where the question is one of credibility, where either story told in the witness box may be true, where the probabilities and possibilities are evenly balanced, And where the personal motives and interests of the parties cannot but affect their testimony, an Appellate Court should be reluctant to differ from the Judge who has seen and heard the witnesses and has had the opportunity of watching their demeanour, unless it is clearly shown that he has fallen in error."
This was a Case decided in the Rouse of Lords; Among the Law Lords who gave concurring judgments was Lord Wright . In his judgment the learned Law Lord referred to the principles laid ''own in Clarke v. Edinburgh and District.Tramways Co. (1914) S.C. 775 and then said:-
"Two principles are, I think, beyond controversy... First it is,'I think clear that in an Appeal of this character - that is from a decision of a Trial Judge based on the opinion of the trustworthiness of witness whoa be has seen - The Court of Appeal; "IK Order to reverse must not merely entertain doubts whether the decision below is right, but be convinced that it is wrong."
The Julia 31and v. Ross (1860.) 14 Moore F.C.C. at p.235 per Lord Kingsdown, cited with approval by Lord Summer (1927) A.C. at p.4T. And secondly, the Court. has no right to ignore that facts the Judge has found on his iapres3ion of the credibility of the witnesses and proceed to the. Case on paper on its own view of the probabilities as if there has been no oral hearing. Lord Summer protested against such a course being taken; he thus stated (1927) A.C. at p. 50 what wore to his mind the proper questions which the Appellate Court should propound to itself in considering the conclusions of fact of the Trial Judge.
" (i) Does it appear from the I resident's judgment that he made full use of the opportunity given him by hearing the viva voce evidence?
(ii) Was there evidence before him, affecting the relative credibility of the witnesses, which world make the exercise of his critical faculties in judging the demeanor of the witnesses a useful and necessary operation?
(iii) Is there any glaring xxxxxxx about the story accepted, sufficient in itself to constitute a governing fact which in relation to others has created a wrong impression' or any specific misunderstanding or disregard of a material fact, or any extreme or over whelming pressure that has had the same effect?
Did the Court of Appeal give heed to the above guidelines? I do not think so. See also the Case Dr. C.J. Seymour -Wilson v. Husa Abesa Civ. App. No.5/79 decided in this Court on the 17th day of June, 1981 (un.reported) Luke C.J said at p. 66 "There is no doubt that an Appellate Court has power to evaluate the evidence led in the Court below reach its own conclusion and in a suitable case to reverse, the findings of fact of a Trial Judge. But those powers are exercisable on well nettled principles and an Appellante Court "will not disturb the findings of fact of a Trial Judge unless those principles are applicable. The principles have been frequently stated locally and in other Commonwealth Countries.
In view of what I have stated above , the e was no justifiable reason for the Court of Appeal to disturb the finding of fact of the Learned Trial Judge. "Having found that the identity of the land is not in doubt, I will now consider whether the Appellant was in possession of the 'land. I have already found that the Appellant was armed with a validity executed Conveyance relating to the land i.e. Exhibit "A". However he is not claiming for a Declaration of Title, he is claiming for trespass to a piece or parcel of land based on Exhibit "A".
In order to prove trespass the Appellant must show by evidence that he was in possession of the land.
''Trespass to land is an entry upon. or any direct and immediate act or interference with the possession of land."
This was so stated by Mrs. Justice A.V.A. Awunor-Renner in the Case of Momoh Seisay v. Amadu Kargbo and others Sup. Court Civ. App. No. 1/82 delivered on the 31 st December, 1984 (unreported. The Learned Justice then referred to two passages of Halburys Laws of England 3rd Edition Volume 30 at p. 739 Para. 1205 and p. 744 para. 1214. She then referred to the Cases of Wuta Ofei v. Danquah (1961) 2 W.L.R. 1238,, and Bristow v. Cormmican (1378) 3 A.C. 641 at 637; and Ocean Estates v. Norman Pinder (1969) 2 W.L.R. 1359 at 1364. After the teamed Justice had stated the principles of law enunciated in those Cases; She had this to say:-
"Actual Possession is a question of fact which consists of an intention to possess the land in question and exercise control over the land. The type of control which should be exercised over the land would vary with the nature of the land and the use made of the land in question."
I entirely agree with the Learned Justice and would not add anything more. The standard of proof required in a case of trespass based on title to land is much higher than that based on possession. See the Case of Dunstant E. John and Another v. William Stafford and Others Sup. Court Civ. App. No. 1/75. Judgment delivered 13th July, 1976 per Betts J.S.C. page 11 - p. 12 (unreported). This Judgment is very instructive and the ratio decidendi can be applied with equal force in the instant case. "The Respondent in his Statement of Defence has claimed "that he is the legal and rightful owner of the said property' dated 15th day of October 1975 registered as No. 922 at Page 48 in Volume 279 in the Books of Conveyances in the Office of the Registrar General." The Respondent gave evidence in support of his claim.
In another case Dr. Seymour-Wilson v. Musa Abess Civ. App. No. 5/79 decided in the Court of Appeal on 17th June, 1981 (unreported) above the Learned Chief Justice referring to the Case of Kokilinye v. Odu (1935)
2 W.A.C.A.. 336 at 337 - 338 said inter alia, "Quite apart from the Rule first stated above it is relevant to mention that the Defendant pleaded in his Defence that he was in possession of 'the disputed land. That Plea is in accordance with Order XVIII Rule 20 of the High Court Rules.
. The effect of such Plea is a denial of the allegations of facts in the Statement of Claim."
The Learned Chief Justice then referred to the Case of Danford v. McAnulty (1.883) 8 App. Cas. 456."
Has the Appellant . roved the averment that he was in' possession? In my opinion, he has by virtue of Exhibit "A" The Learned Trial Judge did not make any specific finding that the Appellant was in possession at the time of the trespass by Respondent. Nevertheless the Learned Trial Judge made a positive finding of fact that Appellant was legal owner of the land by virtue of Exhibit A". I do not think this finding ought to have been disturbed by the Court of Appeal. This is a complete disregard of the principles laid clown over the years where a Court of Appeal can disturb a finding of fact by a Trail Judge. The Court of Appeal deprived itself of the opportunity of disturbing this finding of fact when it held that "The real "res" for identification in this Case was which of the three Plots of land being Off Main Motor Road, Wellington NOT THE LAND off Main Motor Road Wellington. This is my respectfull view, was the crux of the matter which eluded the Learned Judge's attention and which was never identified with any precision." In my opinion, the identity of the land did not elude the Learned Trial Judge's attention nor did it elude my attention either. The evidence is clear and unmistakable.
For the reasons I .have stated above, I will give the answer to the third issue in the affirmative and hold that the Respondent committed an act of trespass on the land owned by Appellant.
Is the Appellant entitled to Damages and Injunction? I believe he is entitled to Damages and the injunction prayed for.
No evidence was given to warrant a relief for mesne profit. In the circumstances I will allow the Appeal, set aside the Judgment and Orders of the Court of Appeal, restore the Judgment of the High Court in respect of trespass and the consequent Damages' awarded and the injunction ordered.
I will also award Taxed Costs to the Appellant incurred in the High Court and the Court of Appeal respectively. Costs occasioned by this Appeal to the Appellant assessed at Le50,000.
(SGD.).HON. SYDNEY C.E. WARNE
JUSTICE OF THE SUPREME COURT
(SGD.) HON. JUSTICE S.M.F. KUTUBU CHIEF JUSTICE
(SGD.) HON JUSTICE A.V.A. AWUNOR-RENNER JUSTICE OF THE SUPREME COURT
I agree .......................................
(SGD.) HON. JUSTICE S.. B. DAVIES
JUSTICE OF THE SUPREME COURT.