IBADAN LOCAL GOVERNMENTS PROPERTIES COMPANY LIMITED & ORS v. MR. DAVID OKUNADE(2004)

IBADAN LOCAL GOVERNMENTS PROPERTIES COMPANY LIMITED & ORS v. MR. DAVID OKUNADE

(2004)LCN/1576(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of May, 2004

CA/I/160/2002

RATIO

DAMAGES: AWARD OF DAMAGES

“The court below reduced the plaintiff’s claim for damages for expenditure incurred on the services of legal practitioner, since as per the judgment of Uwaifo JCA, as he then was in Ihekwoaba v. ACB & Ors. (1998) 10 NWLR (Pt. 571) 590, paragraphs H-A, where the justice wrote that since solicitors fees are not submitted for taxation, it is not right to award damages for expenses incurred on solicitors fees. The defendants were dissatisfied with the judgment of the High Court, they filed initially an omnibus ground, he amended the grounds of appeal.” PER SAKA ADEYEMI IBIYEYE, J.C.A.

TORT LAW: WHETHER TORT IS ACTIONABLE

“The act amounts to an infringement of the right of the respondent to his property without his consent – which is a trespass under the common law, it is a tortuous act which entitles the claimant to damages in cash. The course of action here is found on tort – which is actionable on proof of damages. The standard of proof is as in civil cases on preponderance of evidence and on balance of probabilities. Elias v. Omo-bare (1982) 5 SC 25. Odulaja v. Haddad 197311 SC 357. Woluchem v. Gudi (1981) 5 SC 291.” PER SAKA ADEYEMI IBIYEYE, J.C.A.

JUSTICES

SAKA ADEYEMI IBIYEYE Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria

Between

IBADAN LOCAL GOVERNMENTS PROPERTIES COMPANY LIMITED
2. MR.DAUDA BUSARI
3. MR. RAMONI JIMOH Appellant(s)

AND

DAVID OKUNADE Respondent(s)

SAKA ADEYEMI IBIYEYE, J.C.A. (Delivering the Leading Judgment):

This is an appeal brought against the judgment of Akinola J. of the Ibadan Judicial Division of the High Court of Justice of Oyo State, delivered on the 19th day of July, 1999, in which the reliefs sought by the plaintiff against the defendants were allowed.

The reliefs sought by the plaintiff are set out in paragraph 14 of the amended statement of claim. The said reliefs which are jointly and severally against the defendants are as follows:
“1. A declaration that the action of the 1st defendant who is the successor – in -title of Ibadan Metropolitan Town Planning Authority in depriving the plaintiff a right of hearing before ordering the demolition of the plaintiff’s property situate at Oke Ogbere, off Akanran Road, Ibadan, on 23/1/89 or thereabout is a violation of the plaintiff’s civil rights as entrenched in the Nigerian Constitution.

2. An order for the payment of the sum of N162,980.00 (One hundred and sixty two thousand nine hundred and eighty Naira) being special and general damages suffered by the plaintiff, when the 1st defendant through the 2nd to 4th defendants, their servants and/or agents wrongfully demolished part of the plaintiff’s building erected on his land at Oke-Ogbere, off Akanran Road, Ibadan, on or about 23-1-89.

3. An order for injunction restraining the defendants, their servants, agents and privies from further demolishing the remaining part of the plaintiff’s said building.”

In their joint statement of defence of twelve paragraphs, which are replete with denials of the averments in the amended statement of claim in their ultimate paragraph stated:
“12. Whereof the defendants aver that this action is speculative, gold digging, without merit and ought to be dismissed with substantial costs.”

In order to appreciate the judgment appealed against, I shall briefly state its antecedents. Thus, the plaintiff testified and called three witnesses. The defendants on their part called only two witnesses which included the 2nd defendant

The plaintiff testifying as the PW1 said that he and his friend – Lamidi Ajao – (the P.W3) bought a parcel of land at Oke Ogbere off Akanran Road, Olorunsogo, Ibadan in 1977. The parcel of land was shared and he built on his own land. He identified exhibits B, C and D which are respectively, the deed of conveyance, survey plan and the approved building plan. He employed Mr. Muili Ajadi (the P.W2), a mason, to build a house on the land. The PW2 carried out his instructions. On 23/1/89, the P.W.2 reported to him that a portion of his house had been demolished. He went to the building site and confirmed the information given by P.W.2. He thereafter went to inform Lamidi Ajao (the P.W3), his friend and co-landowner of the land on which his building is situate.

The PW3 accompanied him to the building site and he (the P.W3) saw the damage done to his building. He and the PW3 later went to lodge a complaint at the Town Planning Authority Office at Olorunsogo, Ibadan, where they met the 2nd defendant who confessed that the officers of Ibadan Metropolitan Planning Authority demolished part of his house out of sheer mistake, as their intention was to demolish a house adjacent to his (the plaintiff’s) house and not the plaintiff’s house. He alleged that one Sunday Ogunsola, the erstwhile 2nd defendant now deceased, being a superior officer to current 2nd and 3rd defendants (that is to say Mr. Dauda Busari and Mr. Ramoni Jimoh) went to carry out the demolition of part of his house.

He identified exhibit E which is the extent of damage and how much it would cost to rehabilitate the building demolished. He asserted that neither the defendants, nor the Landlords’ Association in the area served any notice of impropriety on him before the defendants demolished his house in 1989. He further asserted that he constructed his building in conformity with exhibit D (the building plan). On being cross examined, the PW.1 said that he was not present when part of his was demolished.

The defendants admitted while he (the P.W1) was in their office to make enquiries that they carried out the demolition. He prayed the Court to award him as damages the sum of N112,980.00 as the demolished portion was still left unattended to. The P.W.2 confirmed the testimony of the P.W.1 as regards the demolition of part of the building of the P.W.1, building of specification in exhibit D (the approved building plan) and that he prepared exhibit E (estimated costs to rehabilitation of the kitchen, bathroom and toilet of the demolished building). He, under cross examination, denied being present when the demolition was carried out.

The evidence of the P.W.3 – Lamidi Ajao – is not dissimilar to that of the P.W.1. It should, however, be emphasized that when he and the P.W.1 went to the Town Planning Office the 2nd defendant confessed to them that the house of the P.W.1 was demolished in error by the Town Planning Authority’s personnel.

On the part of the defendant, Mr. Tunde Aderinto, the company secretary to the 1st defendant testified that the 1st defendant was established in 1991 and it was a successor to the defunct Ibadan Metropolitan Planning Authority. He added that the 1st defendant inherited the assets and liabilities of the defunct Ibadan Metropolitan Planning Authority (hereinafter referred to as I.M.P.A.) On being cross examined by J.A.O Kalejaiye Esq., the learned Counsel for the plaintiff, the D.W.1 admitted that the 2nd and 3rd defendants were employees of I.M.P.A. before the 1st defendant took over the assets and liabilities of the Authority. He also admitted that the chief executive of the 1st defendant, late Mr. Ogunsola, Mr. Busati and Mr. Ramoni visited the plaintiff’s building site.

He added that they demolished the plaintiff’s building upon complaints received from members of the Lardlords’ Associaion of his area. He admitted that he was a senior estate officer in 1989, when the said demolition was carried out. He identified exhibits A and D as the plaintiff’s letter of complaint that part of his (plaintiff’s) house was demolished and the approved building plan respectively.

D.W.2, Mr. Dauda Busari (the 2nd defendant) testified that he was a staff of I.M.P.A and that he knew the plaintiff when a petition was written by Orisumbare Landlords’ Association in 1987/88. He identified exhibits F and F1 as the letter and its attachment. Under cross examination, the D.W.2 admitted that no contravention notice was served on the plaintiff and that the defunct LM.P.A did not refer any complaint about the plaintiff’s building to him. He denied being one of those who demolished the plaintiff’s property.

Both learned Counsel for the parties addressed the court. In a considered judgment, the learned trial Judge allowed all the reliefs sought by the plaintiff.

The defendants were utterly aggrieved by the judgment and appealed to this court on only the omnibus ground.

The defendants now the appellants identified the following sole issue for the determination of this appeal.

“Whether the evidence elicited under cross examination from the D.W.1 purportedly confessing to the demolition of respondent house, having regard to the totality of the admissible evidence led at trial (sic) is of such a nature to obviate the need for and operate to discharge the burden imposed on the respondent by section 138(1) and (2) of the Evidence Act Cap 112 Laws of the Federation 1990.”

The plaintiff, now the respondent, on his part, also identified only one issue which reads:
“Whether any crime was alleged in the pleading of the parties as to invoke section 138(1) and (2) of the Evidence Act Cap 112 Laws of the Federation 1990, which compels the respondent to prove his claim beyond reasonable doubt and/or whether the respondent could rely on admissions made by the appellants in support of proof of his case.”

At the hearing of this appeal on the 9th of February, 2004, K. Ishola Esq. and J.O.A Kalejaiye Esq., who were respectively the learned Counsel for the appellants and the respondent seriatim adopted and relied on their respective briefs of argument. The learned Counsel urged the court to allow the appeal and to dismiss the appeal without any amplification as it relates to the parties’ briefs of argument.

The learned Counsel for the appellants after reviewing the items of evidence adduced on behalf of the respondent submitted that neither the respondent nor his witnesses proffered credible evidence or any evidence at all to establish the demolition of his property. He contended that the evidence elicited from the D.W.1 under cross examination though admissible is not conclusive on the issue of proof of the fact of demolition of the respondent’s property. Learned Counsel went to posit, albeit inchoate, as follows at page 7 of the appellants’ brief of argument:
“More so when the act of the 2nd appellant (the alleged confession to demolition of the respondent’s property in error) is in dispute and when the said confession has been denied by the 2nd appellant who himself was called as a witness (DN2) at page 138 of the records which denial was not shaken under cross examination (sic)…..”

I dare say that this poser is neither here nor there!

The learned Counsel for the appellants further submitted that the evidence elicited from the D.W.1 under cross-examination allegedly admitting the demolition of the respondent’s property by the appellants amounts or is akin to a confessional statement made by an accused person implicating other co-accused persons is not binding on them except it is adopted by words or conduct by other co-accused persons. It is only then that the court can treat such a confessional statement as an admission. He relied on section 27(3) of the Evidence Act 1990 and the case of Onyeukwu v. State (2000) 12 NWLR (Part 681) 256 at 260.

He equally submitted that a confessional statement which implicates a co-accused person in the commission of a clime to amount to corroborative evidence and qualify civilly as an admission must be direct, positive and unequivocal and must relate to facts that are within the personal knowledge of the maker and not derivatively acquired. He cited in support the case of Idowu v. State (2000) 12 NWLR (Part 680) 48 at 53. The learned Counsel urged the court to allow the appeal and set aside the judgment of the trial court.

In reply, the learned Counsel for the respondent contended that the respondent did not allege any crime against the appellant. What was instead the allege was the tort of damage to property. He therefore, submitted that there was little or no need to prove any of his claims beyond reasonable doubt but only on balance of probability.

The learned Counsel referred to paragraph 9 of the reply to the statement of defence by the plaintiff/respondent that it was averred that Dauda Busari (the 2nd appellant) admitted that they (that is the 2nd and 3rd appellants) demolished the building of the plaintiff/respondent and the plaintiff/respondent led evidence to that effect. He further pointed out that the D.W.1 admitted under cross examination that the appellants demolished the respondent’s building. The learned Counsel therefore submitted that where any piece of evidence of the appellants supports the respondent’s case, the court ought to give effect to it. He cited in support the following cases: Efetiroroje v. His Highness Okpalefe II (1999) 5 NWLR (Pt.193) 517; (1991) 7 SCNJ 85 at 94; Akinola & Ors. v. Oluwo & Ors. (1962)1 SCNLR 352; (1962) 1 All NLR 224 at 228 and Ibeziako v. Nwagbogu (1973) 1 NMLR 113; (1973) 639.

He further submitted that what is admitted need no further proof as well as that uncontradicted evidence must be accepted by the trial Judge. He cited in support of those submissions the cases of Adesola v. Abidoye (2001) 2 WRN 60 which referred to the case of Bello v. Farmers Supply Co. Ltd. (1998) 10 NWLR (Pt. 568) 64 as well as Obanor v. Obanor (1976) 1 NMLR 34. He finally urged the court to hold that the appeal lacks merit and should be dismissed.

What is of moment in this appeal with particular reference to the common issue raised by the patties is the standard of proof based on the totality of the evidence available in this appeal.

In order to appreciate the standard of proof in any matter it is a bounden duty of the court to know the nature of the cause of action. In the instant case, the respondent alleged that the appellant demolished part of his building. The appellants in an attempt to deny the assertion testified as per the evidence of D.W.1 under cross examination as follows:
“…we went and demolished the plaintiff’s building upon complaints received from members of landlords’ association of his area …”

This testimony as well as assertion and evidence by the respondent and his witnesses that the appellants demolished part of his building have a connotation of criminality. This matter is therefore caught by the provision of section 138(1) of the Evidence Act 1990. It reads:”138(1) if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

It is not in doubt that the action instituted by the respondent against the appellants is apparently civil in nature, but having clinically examined the pleadings and the supporting evidence, I formed the opinion that the fact of demolition of property which has sufficient connotation of a crime became prominent. The commission of a crime in a civil action therefore becomes a direct issue. This then placed a greater burden on the respondent to prove the crime of demolition beyond reasonable doubt. The question is: was the plaintiff/respondent able to meet the high standard of proof beyond reasonable doubt in the trial court? To answer this question there is need to have a hard look at the record of appeal. Thus, the P.W.1 and P.W.3 adduced evidence on what appeared to be a confession by the D.W.2 who they claimed said that “the house of the plaintiff was demolished in error by the Town Planning Authority’s personnel.

Equally relevant to the fact of committing a crime by the defendant/appellants is the evidence of the D.W1 while under cross examination when he said at page 137 of the record of appeal:
“I am representing the 1st defendant in this case. The Ibadan Metropolitan Planning Authority had the right to demolish an illegal structure or illegal structures. Exhibit D is the building plan of the plaintiff which we approved… The Ibadan Metropolitan Planning Authority visited the area. The Chief Executive then visited the area. Late Mr. Ogunsola, Mr. Busari and Mr. Ramoni visited the site… We went and demolished the plaintiff’s building upon complains received from members of landlords’ association of his area. We demolished with justification…” (Italics for emphasis).

From the foregoing, it appears the D.W.1, a highly placed officer in the establishment of the 1st defendant/1st appellant could not have committed his employer without thorough investigation before confessing to a factual situation that the plaintiff/respondent’s house was demolished by personnel of the 1st appellant of which the 2nd and 3rd appellants belonged. This lucid confession was made by the adverse party (the appellants) and not the asserter of the fact of demolition (the respondent). The question is: Can the plaintiff take advantage of the weakness of the defendant’s case? The law is settled that in establishing his claim a plaintiff must succeed on the strength of his own case and not the weakness of the defendant’s case.

The rule does not, however, apply where the defendant’s case support that of the plaintiff and contains evidence on which the plaintiff is entitled to rely. See Akinola & Ors. v. Oluwo & Ors. (supra) at page 228. In the instant case, the evidence of D.W.1 abundantly supported the plaintiff/respondent’s case that the personnel of the defendants/appellants demolished the house of the former. This therefore leaves no room to doubt the assertion of the identity or identities of those who committed the crime in issue. The high standard of proof beyond reasonable doubt was met by the respondent whose position in this case is akin to that of the prosecution in a criminal matter. Proof beyond reasonable doubt connotes that there is no doubt as to the accused’s guilt.

Thus, in the instant case, the P.W.1 and P.W.3 adduced uncontroverted evidence that the D.W.2 confessed that the personnel of the 1st defendant demolished the plaintiff’s house. That evidence, in my view, is cogent enough to establish the offence of demolition of the plaintiff’s building. The evidence of the D.W.1 did no more than to strengthen the already doubtless evidence of the plaintiff who availed himself of it by virtue of the principle in Akinola & Ors. v. Oluwo (supra). That principle, at the risk of repetition, is that the plaintiff can avail himself of the defendant’s evidence which strengthens his own case.

In these circumstances, the view of the learned trial Judge who held at page 165 of the record of appeal that the plaintiff has met the standard of proof beyond reasonable doubt on the due consideration of available evidence including the evidence of the D.W.1 and D.W.2 is unimpeachable. Thus, the evidence of the D.W.1 was positive enough on the fact of demolition by the personnel of I.M.P.A. while that of the D.W.2 can only be deduced from what he told the P.W1 and P.W.3 that he did not participate in the demolition of the plaintiff’s house carried out by the personnel of I.M.P.A. This denial did not obviate the fact clearly confirmed by the D.W.1 that the personnel of the 1st defendant/1st appellant perpetrated the act of demolition.

Apart from meeting the high standard of proof as required by section 138(1) of the Evidence Act (supra), there is preponderant evidence that the appellants destroyed part of the respondent’s house. The sole issue is therefore resolved against the appellant.

In these circumstances, I find no basis to disturb the decision of the trial court. The appeal lacks merit and it is dismissed. I affirm the decision of the trial court.

I award no costs.

OMAGE, J.C.A.: The facts in this appeal commenced with the acquisition by the respondent of a building plot of land at Oke Ogbere, off Akanran road, Olorunsogo, Ibadan in 1977. The respondent’s friend Lamidi Ajao also acquired another parcel of land in the same area. The respondent in this appeal caused a deed of conveyance of the land to be made which was registered at the Ibadan Land Registry as no. 16, at page 16 in volume 2130. Before this, the respondent had surveyed the land and he tendered a building plan to the Ibadan Metropolitan Planning Authority to be approved. The said Planning Authority is the predecessor of the defendant in the suit filed against the current appellant, who lost in the proceedings in the court below.

After commencing construction of the building on his land in accordance with the building plan approved by the Ibadan Metropolitan Planning Authority, the respondent who was plaintiff in the court below testified that he received from the defendant a complaint which he was told by officials of the Authority came from the landlords of the area that he was blocking the road with his house, the now respondent said he rectified the building to obviate the complaint. The respondent also informed the complainants that the area of land described as a road by the people is in fact his land: and the respondent’s tendered in the court below, his deed of conveyance, his building plan, and survey plan respectively as exhibits B, C and D which were all received in evidence.

The respondent in this appeal deposed as the plaintiff in the court below that he received a report one day from his brick layer that part of his house had been demolished by the officials of the Ibadan Metropolitan Planning Authority. The brick layer, and the friend of the respondent, who testified as PW3, in the court below went to see the damage done to the respondent’s house, whereupon the two went to lodge a complaint with the officers of the Ibadan Metropolitan Planning Authority one of who was the 2nd defendant cited in the proceeding in the court below. The plaintiff now respondent testified that the 2nd defendant admitted the damage to the plaintiff/respondent house, and explained that the staff demolished part of the house in error.

In his testimony, the bricklayer to the plaintiff/respondent said the area of the respondent’s house damaged include the kitchen, bathroom and toilet. Since the 2nd plaintiff witness was the bricklayer engaged in the construction of the house, the plaintiff/respondent asked the bricklayer to itemize the damage done to the building and to put cost to same. The plaintiff/respondent caused to be typed the list prepared by PW2, which was tendered in the proceedings as exhibit E. Before the plaintiff/respondent commenced proceedings in the High Court Ibadan, he sent to the office Ibadan Metropolitan Planning Authority a letter of complaint and notice of intention to commence proceedings. The letter is admitted in evidence at the hearing in the court below as exhibit A.

The plaintiff/ respondent’s claim therefore in the court below read thus;
“(1) A declaration that the action of the 1st defendant, who is the successor in title of Ibadan Metropolitan Planning Authority, in depriving the plaintiff a right of hearing before ordering the demolition of the plaintiff’s property situate at Oke Ogbere off Akanran Road, Ibadan on 23/1/89, or thereabout is a violation of the plaintiff’s civil rights as entrenched in the Nigeria Constitution.

(2) An order for the payment of the sum of N162,980.00 being special general damages suffered by the plaintiff, when the 1st defendant through the 2nd to 4th defendants’ their servants and or agents wrongfully demolished part of the plaintiff’s building erected in his land at Oke Ogbere, Akanran Road, Ibadan, on or about 23/1/89.

(3) An order for injunction restraining the defendants, their servants, agents and privies from further demolishing the remaining part of the plaintiff’s said building. Four witnesses testified for the plaintiff.”

The defendant testified through two witnesses one of who tendered exhibit F1 and F2; DW2, said exhibit F and F1 are petition written by Orisunbare landlord association in 1987/88, he said other officers went to the scene and having made necessary measurements found that the plaintiff’s structure encroached upon the road. He said the plaintiff/respondent was advised to remove the encroaching part and the plaintiff agreed to do so. He said he later received exhibit A. Under cross examination, W1, deposed thus;
“We went and demolished the plaintiff’s building upon complaints received from members of landlords association of his area, we demolished with justification. I do not know whether or not a contravention notice was served on the plaintiff by us.”

The 2nd defence witness, who testified of the contents of exhibit F and F1, admitted in cross examination that no contravention notice was served on the plaintiff. He said he was one of those who demolished the building. The counsel on either side addressed the court. It was the submission of the defendants’ counsel in the court below that the act of demolition described in the circumstance was a criminal offence which should be proved beyond reasonable doubt.

He submitted that the plaintiff now respondent had failed to prove the demolition as the act of the defendant, the plaintiff should fail. The learned trial Judge agreed with the submission of the plaintiff’s counsel that since the defendants’ employee had admitted the act of demolition of the plaintiff’s building no further need for proof required. In the claim of the plaintiff in the court below. Nor only that the plaintiff’s claim is founded on wrongful damage and trespass which is founded on a civil claim for damages; there is no criminal imputation required, and the burden of proof is on a preponderance of evidence; not a proof beyond reasonable doubt. The court below therefore awarded damages to the plaintiff on satisfaction, that the plaintiff has established his claim on a preponderance of evidence.

The court below reduced the plaintiff’s claim for damages for expenditure incurred on the services of legal practitioner, since as per the judgment of Uwaifo JCA, as he then was in Ihekwoaba v. ACB & Ors. (1998) 10 NWLR (Pt. 571) 590, paragraphs H-A, where the justice wrote that since solicitors fees are not submitted for taxation, it is not right to award damages for expenses incurred on solicitors fees. The defendants were dissatisfied with the judgment of the High Court, they filed initially an omnibus ground, he amended the grounds of appeal.

Eventually, the defendants in their appeal formulated the issue for determination of the appeal thus;
“Whether the evidence elicited under cross examination from the DW1 purportedly confessing to the demolition of (the) respondents’ house, having regard to the totality of admissible evidence led at the trial is of such a nature to obviate the need for and operate to discharge the burden imposed on the respondent by section 138(1) and (2) of Evidence, Act Cap 112, Laws of the Federation of Nigeria”.

In the respondent’s brief, the respondent formulated the issue for determination of the appeal in these words;
(1) Whether any crime was alleged in the pleadings of the parties as to invoke section 138(1) and (2) of Evidence, Act Cap 112, Laws of the Federation of Nigeria, 1990, which compels the respondent to prove his claim beyond reasonable doubt and or whether the respondent could rely on admission made by the appellants’ in support of proof of his case”.

I have considered the submissions made by the appellant in expousing his theory that the plaintiff’s claim is founded on a criminal charge of damage which requires proof of the damage beyond reasonable doubt. A great deal of time and pain will be saved, if I decline to restate here the submissions of the appellant’s counsel on this issue of proof of the claim beyond reasonable doubt which seem to me to be a misconception of the plaintiff’s claim in the court below by the appellant’s counsel.

The purport of the first issue in the plaintiff’s claim in the court below is a declaration that the action of the 1st defendant in demolishing the property of the plaintiff, without a previous notice to the plaintiff, deprives the plaintiff a right of hearing before the property of the plaintiff was destroyed. The plaintiff’s described the property as the building construction going on at Oke Ogbere, off Akanran Road, Ibadan.

The issues which fall to be determined on the plaintiff’s claim are;
(i) Was there evidence of damage to the plaintiff’s building under construction?
(ii) Was the damage done to the property of the plaintiff done by the defendants?
(iii) Was the plaintiff informed of the contravention of the defendant’s rule before the defendant carried out the damage to plaintiff’s property?
In any case was the plaintiff informed of the date and time, when the damage to his property would be carried out?
(iv) Is the plaintiff entitled to be so informed before the destruction of part of his property was carried out by the employees of the 1st defendant?
(v) Was the destruction of the plaintiff’s property lawfully done, in other words was due process followed?

It seems to me that the trial court considered all the above issues in coming to the conclusion;
(1) That on the evidence tendered in court the defendant particularly through the testimony of DW1 cannot deny knowledge of the demolition of part of the respondent’s property.

In fact, the DW1 admitted that the staff of the 1st defendant carried out the demolition of parts of the plaintiff’s building property. The testimony of DW2 admitted also the demolition of part of the respondent’s property, but was mistaken as to which of the complaint made to the plaintiff by the defendant prompted the subsequent act of demolition; and concluded that no notice of the demolition was given by the 1st defendant to the plaintiff/respondent. It is trite law, that what is admitted need not be proved. Clearly, the onus of proof of a fact in issue is on the party who will lose if such a fact is not proved.

However, where the party against who the fact is sought to be proved has admitted it, the requirement to discharge the onus of proof abates, see Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 S.C 19 at 84 (ii) HMS Ltd. v. First Bank (1991) 1 NWLR (Pt. 167) 290. Now in his submission, the appellant has submitted in his brief; that the damage pleaded by the plaintiff/respondent is of a criminal nature, which requires to be proved by the respondent in the court below beyond reasonable doubt. Without any doubt, the onus of proof when there is an imputation of crime in a criminal proceedings is under the provisions of section 138 of the Evidence Act; which is a proof beyond reasonable doubt, see H.M.S. Ltd. v. First Bank (1991) 1 NWLR (Pt. 167) SC. 290 (ii) Ikoku v. Oil, 1962, 1 SCNLR 307. In the facts before the court below is there any imputation of criminality? Informed view of the law will disagree that the plaintiff’s claim has any criminal imputation. It is a claim in civil law.

The learned trial Court did not think it is criminal and I share that view. A criminal imputation in a criminal charge requires the commission of an offence. No offence is imputed to the appellant; whether natural or under the criminal law. A wrong in tort is what is pleaded under the common law by the respondent in the court below; and a breach of the constitution is imputed by the plaintiff’s claim against the defendant, now the appellant. There is therefore in my view, no justification to require proof of the tort under Section 138 of the Evidence Act. The next sub issue which is contained in the appellant’s sole issue when considered together with the issue formulated by the respondent’s issue is this. Was there a breach of the right of the respondent to be informed by the appellant that the appellants’ intend to demolish his property? Was due process followed? Reading through the record of proceedings in the court below, the view is definitely justified which informs that the respondent was informed by the appellant at one stage to remove the obstruction caused by his building structure and the respondent promised to do so on his own. This is evident by the contents of exhibits F and F1 and the respondent rectified the complaint.

This was the testimony of the 1st DW. Was the respondent informed that his property will be damaged or destroyed? Was he entitled to be informed? Evidence in the record shows that the appellant without informing the respondent sent its staff; the now existing 2-3rd defendants to the respondent’s building structure to demolish the kitchen, bathroom, etc; of the uncompleted building. After doing this, the record also shows that DW2 was mistaken when he testified that what was demolished was a boys quarter to the house.

Exhibit D; the approved building plan made by the respondent did not contain boys’ quarters and none was built. The pertinent question to be asked is this, was the respondent entitled to be informed by the appellant that the appellant intended to demolish the kitchen, bathroom part of the building structure? In other words; if there was an infraction by the respondent of the bye laws of Ibadan Municipal Authority, was the respondent as the plaintiff entitled to be informed of a decision to exercise part of his building structure?

The appellant in the court below did not identify any breach of the local government rules. It merely averred wrongly in my view that the respondent had accused the defendant/appellant of an infraction of a criminal offence. In this appeal, the events leading to this stage occurred in 1989, on 23/1/89 specifically; the operative constitutional provision is those contained in the 1979 Constitution of Nigeria. The 1979 Constitution provides for a right of a citizen of Nigeria to have a right to protection of and for his property. Any infringement of the right to the property without his consent is a trespass under the common law. It gives right to a claim for damages for a nuisance or damage to the property of another which in all cases is a tortuous act which entitles the claimant to damage in cash.

In the instant appeal, the plaintiff/respondent’s claim in the court below has no criminal imputation; it is a tort which is actionable on proof of damages. It is an error of law for the appellant to seek proof of the claim to damages under section 138 (1) of the Evidence Act which is the standard of proof required in a criminal trial; the same standard of proof beyond reasonable doubt is required where the committal of crime is in issue in a civil trial, see Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538, S.C, but not otherwise; and not so in the instant appeal. The standard of proof in a civil claim is of preponderance of evidence on a balance of probabilities. See MBA-Ede v. Okufo (1990) 2 NWLR. Pt. 150 356 S.C. I find nothing wrong in the judgment of the trial court; and I affirm it.

ADEKEYE, J.C.A.: I had read before now, the judgment just delivered by my learned brother, S.A. Ibiyeye, JCA. The crucial issue for determination in this appeal is the standard of proof based on the totality of the evidence as demolition of property is involved, whether there is a greater burden on the respondent to prove the crime of demolition beyond reasonable doubt. The evidence of DW1 and DW2 was positive on the fact of demolition by the officers of Ibadan Municipal Authority.

The act amounts to an infringement of the right of the respondent to his property without his consent – which is a trespass under the common law, it is a tortuous act which entitles the claimant to damages in cash. The course of action here is found on tort – which is actionable on proof of damages. The standard of proof is as in civil cases on preponderance of evidence and on balance of probabilities. Elias v. Omo-bare (1982) 5 SC 25. Odulaja v. Haddad 197311 SC 357. Woluchem v. Gudi (1981) 5 SC 291.

The sole issue in this appeal is hereby resolved against the appellant. The appeal lacks merit and it is hereby, dismissed. Judgment of the lower court is affirmed.

Appeal dismissed.

Appearances