The Plaintiffs (suing in a representative capacity) claim against the Defendants as endorsed in the Writ of Summons is for;
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1
The sum of N500,000 as special and general damages for trespass on the plaintiffs' land at Bakatari, along Ibadan/Abeokuta Road and destruction thereon, cassava plants, palm trees and also digging and removing there-from several yards of laterite.
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2
Injunction restraining the Defendants, their Agents and/or servants from committing further acts of trespass on the said land.
Pleadings were ordered and filed. These were later amended. Before the actual hearing began, that is the taking of evidence of witnesses, the plaintiffs dropped their claims against the second defendant and his name was struck out. The case therefore proceeded against the 1st defendant only. In paragraph 15 of the plaintiffs final amended statement of claim they gave the particulars of their claims as follows:-
"Special Damage
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1
Value of 18 palm trees destroyed on the area edged yellow lying to the East of the Plan No. JFA 556 at N100.00 each … N1.800.00
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2
Value of excavated laterite on the two portions marked yellow on Survey Plan No. JFA 556 = 22182 M2 & 10835 M3 = 8573 lorry loads at ownership disposal at N12.00 per load…. N102,876.00
2ND PLAINTIFF
Value of cassava plants on area marked yellow and lying on the East of Survey Plan No. JFA 556 - 8000 plants at 20k...... N1.600.00
General Damages
The 1st and 2nd plaintiffs jointly and or severally claim General Damages."
Oral as well as documentary evidence was adduced by both sides. This was reviewed and considered by the learned trial Judge in his judgment and he concluded:-
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"My judgment, therefore is that the plaintiffs have failed to prove their claims as required by law and all the claims are dismissed."
Dissatisfied with the judgment above, the plaintiffs appealed to the Court of Appeal. The Court of Appeal in a majority Judgment of two to one (Gambari and Omololu Thomas, JJ.C.A. agreeing, with Ogundare, J.C.A. dissenting) reheard the case reviewing and reconsidering the findings of the learned trial Judge on the evidence adduced before him and Gambari, J.C.A., writing the lead judgment of the court. concluded -
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"In order to entitle him to maintain an action, a plaintiff with reversionary interest must allege and prove that the act complained of was injurious to his reversion¬ary interest, or that it should appear to be of such a permanent nature as to be necessarily injurious to it and as was decided in Mayfair Property Co. v. Johnson (supra) that where there was a taking of part of the land, carrying away of the existing materials and putting in the foundations of a building which was clear¬ly intended to be permanent, the plaintiff with reversionary interest was held en¬titled to maintain a suit in trespass.
It follows therefore that the learned trial Judge was wrong, in my view to have come to the conclusion that the defendant was not liable to the plaintiffs. It is surely liable to the plaintiffs for excavating gravel or laterites from their land and particularly the part said to have been built up must have been dug before the buildings were constructed and before the action was commenced in that case, the defendant would be liable to the plaintiffs for trespass in regard to that portion of land. The defendant will be equally liable for the remaining part of the land which were not built upon and for which the learned trial Judge had patently omitted to consider in his judgment."
He then awarded N5,000.00 general damages to the plaintiffs. Dissatisfied with the majority decision of the Court of Appeal, the defendant appealed to this Court.
