CARRENA V. AKINLASE (2008)

Background

This appeal concerned the enforceability of a judgment relating to title and trespass over land situated at Ojokoro, Mile 16½, Abule-Egba, on the Agege-Abeokuta Road in Lagos State. The original plaintiff, Mr. E. A. Carrena, commenced suit No. LD/1093/80 against Chief Akinlase and eleven others. He claimed a declaration of title based on a registered deed of conveyance, damages for trespass and a perpetual injunction restraining further acts of trespass. The High Court of Lagos State granted all the reliefs on 13 November 1987. The judgment was subsequently affirmed by the Court of Appeal.

Chief Jimoh Arowolo, who had not been an original party to the trial proceedings, obtained leave to intervene and prosecute an appeal as an interested party, representing himself and the Olarokun family. The Court of Appeal dismissed his appeal. His further appeal to the Supreme Court was later struck out for want of diligent prosecution. Despite having intervened in the earlier proceedings, Chief Arowolo instituted a fresh action, suit No. ID/3131/94, against the Carrenas concerning the same land and seeking declaration of title, damages for trespass, injunction and possession.

While the fresh action was pending, the Carrenas sought to enforce the judgment in LD/1093/80 by obtaining writs of execution, including a writ of possession and writ of fieri facias. Chief Arowolo applied for a stay of execution, an order restraining the Carrenas from taking possession and an order setting aside the writs. The High Court dismissed the application and held that the Carrenas were at liberty to enforce their judgment. The Court of Appeal reversed that decision, set aside the writs and held that the earlier judgment was merely declaratory and not enforceable against Chief Arowolo and those substituted for him. The Carrenas appealed to the Supreme Court.

Issues

1. Whether the earlier judgment was merely declaratory or was also executory and enforceable.
2. Whether the judgment could be enforced against Chief Arowolo and the persons substituted for him after he had intervened in the appeal.
3. Whether a writ of possession could issue even though possession was not expressly claimed in the original action.
4. Whether the later suit justified a stay of execution of the concluded judgment.

Ratio Decidendi

The Supreme Court unanimously allowed the appeal. It held that a judgment may be partly declaratory and partly executory. A declaratory judgment merely proclaims a legal relationship and contains no command requiring performance. An executory judgment, however, declares the parties’ rights and additionally orders a party to pay money, refrain from conduct or otherwise act in a specified manner. The judgment in favour of the Carrenas was not merely declaratory because it awarded damages for trespass and granted a perpetual injunction. Those orders were capable of enforcement against the defendants.

The Court further held that once Chief Arowolo applied to be joined as an interested party and was permitted to prosecute the appeal, he became an intervener or aggrieved party. The purpose of joinder is to ensure that a person whose interest may be affected is bound by the result. Having voluntarily intervened and prosecuted the matter to its conclusion, he and those substituted for him were bound by the final decision. The striking out of his Supreme Court appeal did not nullify the subsisting Court of Appeal judgment affirming the trial court’s decision.

Court Findings

The Court distinguished an action for trespass from an action for recovery of possession. Trespass presupposes that the claimant has actual or constructive possession when the wrongful entry occurs. A claim for possession, by contrast, is appropriate where the claimant has been dispossessed and seeks restoration. Since title is legally presumed to carry possession, a successful title holder is treated as being in constructive possession even if a trespasser is physically occupying the land. The trespasser cannot acquire lawful possession merely through his wrongful entry.

Accordingly, the Carrenas were not required to commence a separate action for possession. Their established title, damages award and perpetual injunction entitled them to enforce the judgment and obtain a writ of possession. Requiring another possession action would wrongly disregard the legal effect of the determination of title and would encourage needless relitigation.

The Court also held that the subsequent suit concerning the same land could not justify staying enforcement. The earlier suit had been finally determined, and the later action could not suspend the fruits of that judgment merely because it remained pending. Under Order 2 rule 14 of the Sheriffs and Civil Process Act, a stay is discretionary and may be granted only where it appears just and reasonable. No such circumstances existed. The later action was also described as an abuse of court process because it sought to reopen issues after the intervening party had already participated in the earlier litigation.

Conclusion

The Supreme Court set aside the judgment of the Court of Appeal delivered on 16 July 2001 and restored the ruling of Moni Fafiade J of 2 March 2000. The writ of possession and writ of fieri facias could stand, and the Carrenas were entitled to enforce the judgment in LD/1093/80. Costs of N50,000 were awarded in favour of the appellants.

Significance

The decision confirms that a judgment granting title, damages for trespass and a perpetual injunction is enforceable even where the relief of possession was not expressly pleaded. It also establishes that an intervener who voluntarily joins an appeal becomes bound by the eventual judgment. The case is significant for Nigerian land law and civil procedure because it prevents a trespasser from relying on physical occupation to defeat a title holder’s constructive possession, and it discourages parallel proceedings designed to delay execution or undermine a final judgment.