MR. EDAWADERHIE ENORIODE & ORS v. MR FRANCIS ENUDE
(2013)LCN/6515(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of November, 2013
CA/K/232/2006
RATIO
WHETHER THE STRIKING OUT OF IMPROPER PARTIES RENDERS A SUIT INCOMPETENT
The law is settled that where improper parties are struck out and there are still living parties on both sides, the suit is not rendered incompetent thereby as the living or juristic persons left are capable of sustaining the action. See: GENERAL ELECTRIC CO. v. AKANDE (2010) 18 NWLR (Pt. 1225) 596 at 616 PARAGRAPH F – G. Per PAUL ADAMU GALINJE, J.C.A.
Before Their Lordships
ABDU ABOKIJustice of The Court of Appeal of Nigeria
ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRUJustice of The Court of Appeal of Nigeria
Between
1. MR. EDAWADERHIE ENORIODE
2. MUHAMMADU KABIR GAMBO
3. ALHAJI ABDULLAHI UMARAppellant(s)
AND
MR. FRANCIS ENUDERespondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kaduna State High Court of Justice delivered on the 31st May 2006 by Bashir Sukola J.
The brief facts of the case are that the Plaintiff/Respondent was allocated a plot of land by the Kaduna North Local Government, on 26th day of August, 1978 located at No. E. E. 10 Unguwar Dosa Kaduna. He was issued with a certificate of occupancy No.010243 and has a file No.LAN/Q/655. The plot measure 50ft by 100ft. The plot has boundary with plot EE9, EE 11, Lere road and at the back with Plot EE 10A Unguwar Dosa.
The Plaintiff/Respondent said he mortgaged the property to the Bank of the North, Kano Branch and that he developed it with the proceed from the mortgage loan. After conclusion of the building, the Plaintiff/Respondent had a serious motor accident which kept him in hospital for several months and was later taken to his hometown for further medical care. The Plaintiff/Respondent alleged that the 1st Defendant/Appellant believing that the Plaintiff had died, quickly trespassed into the land and occupied the building. He also denied people who came on behalf of the Plaintiff/Respondent accesses into the building and the Premises.
The Plaintiff/Respondent upon recovering was transferred from Kaduna to Maiduguri by his employers. The Plaintiff/Respondent came from Maiduguri to Kaduna to inspect his building and he discovered that the 1st Defendant/Appellant has taken over his building and has applied for a statutory right of occupancy.
The Plaintiff/Respondent said that he briefed his solicitor who on the 18th day of September 2000 wrote to the 1st Defendant/Appellant to vacate the Plaintiffs/Respondents’ building at plot EE 10 Unguwar Dosa Kaduna and deliver up the appurtenances thereof.
The claim of the Defendants/Appellants is that the land in dispute belongs to Alhaji Danlami Ismaila and that he sold it to the 1st Defendant/Appellant and that there was no development on the land whatsoever. The Defendants/Appellants insisted that the Plaintiff’s/Respondent’s claim is belated having stayed aside and watching the development on the plot or premises for over ten years and without any form of complaint.
The claim of the Plaintiff before the trial Court as reflected in the statement of claim at page 5 of the Record of Appeal reads:
“15. WHEREOF Plaintiff claims against the Defendant as follows:
a. A DECLARATION that the Plaintiff is the owner of plot No. EE 10 Unguwar Dosa, Kaduna covered by certificate of occupancy No.010243 issued by the Kaduna North Local Government.
b. A DECLARATION that the offer of grant of statutory right of occupancy issued to the defendant by Bureau for land, survey and country planning dated 31st October 1995 and any certificate of occupancy issued thereof are null and void.
c. AN ORDER that the defendant, his agents or anybody claiming through him should relate the said Premises.
d. The sum of N80,000,00 per annum from 1995 till date for use and accusation of the said premises.
e. The sum of N2,000,000.00 (Two Million Naira) only for trespass”.
At the trial the Plaintiff/Respondent testified as PW2. PW1 was a land officer with the Kaduna North Local Government, who was subpoena to tender some files. He tender files LAN/B/655 in the name of Francis A. Enude representing Plot No.EE 10 U/Dosa Kaduna and file LAN/Q/1416 in the name of Alhaji Danlami Ismaila representing Plot No.EE10A U/Dosa Kaduna.
Several other documents were tendered in evidence in Support of the case of the Plaintiff/Respondent. The Defendants/Appellants also tendered a number of documents in support of their case.
At the conclusion of evidence by the parties the trial Court in its judgment made the following, finding at page 95 of the record of Appeal.
“It is unconceivable that a person (DW1) would criminally appropriate a plot or property belong someone (Plaintiff) to himself simply because the Plaintiff who had developed his plot No. EE 10 Lere street U/Dosa, Kaduna was away/absent/unseen for a very long time. This is a clear case of theft/criminal misappropriate/trespass e.t.c.
For the reasons given above, I have no hesitation in entering judgment in favour of the Plaintiff who has proved his genuine title to the property situate at No.EE 10 Lere street, U/Dosa Kaduna against the whole world.
Judgment is accordingly, hereby entered for the Plaintiff and against the Defendants in the following terms per the Plaintiff’s writ of summons.
1. I declare that the Plaintiff is the owner of Plot No. EE 10 Unguwar Dosa, Kaduna covered by certificate of occupancy No. 010243 issued by the Kaduna North Local Government.
2. I declare that the offer or grant statutory right of occupancy issued to the Defendants by Bureau for Lands, Surveys and Country Planning dated 31st October, 1995 and any certificate of occupancy issued thereof is/are null and void.
3. I order the Defendants, their agents or anybody claiming from them should vacate the said premises i.e No. EE 10 U/Dosa Kaduna for the Plaintiff.
4. I refuse the claim for the sum of N80,000.00 per annum for 1995 till date for use and occupation of the said premises for being arbitrary in its quantum.
5. I award the sum of N1,000,000.00 (One Million Naira) damages for trespass in favour of the Plaintiff and against the Defendant”.
It is against this decision of the trial Court that the Appellants appealed to this Court. The Notice of appeal which was dated 21st August, 2006 was filed at the Registry of the Lower Court on 22/8/06. It contains four grounds of Appeal with a statement that further grounds of appeal will be filed upon the receipt of the record of proceedings. The Appellants did not however filed any further ground of appeal. It is clear from the four grounds of appeal, that grounds one, two and three dealt with the issue of the award of damages of One Million Naira made by the Trial Court, while ground four attacked the award of title to plot No.EE 10 Unguwar Dosa, Kaduna to the Plaintiff/Respondent, alleging that the certificate of occupancy No.010243 is null and void by virtue of Kaduna State Land in Urban Area Designation order 1990 and/or as amended.
In accordance with the rules of this Court both parties filed their respective briefs of argument thus joining issue on the matter. The Appellants’ brief of argument dated 18/10/2006 was filed on 19/10/2006, Learned Counsel for the Appellants’ J. A. Achimugu Esq. said they adopted the said brief as the Appellants’ argument in this appeal. He urged the Court to allow the appeal and to set aside the award of damages made in favour of the Respondent.
A. C. Amaechi Esq learned counsel for the Respondent said the Respondents brief of argument dated 22/1/2013 was filed on 23/1/2013 pursuant to leave of Court granted on 16/1/2013. Learned counsel adopted the said brief as the Respondent’s argument in the appeal and urged this Court to dismiss the appeal.
The Appellants’ distilled four issues from their four grounds of appeal and same are hereby adumbrated as follows:-
“ISSUE NO. 1 (GROUND 1)
Whether a Court can grant to a Plaintiff a relief which the Plaintiff did not specifically claim against a Defendant.
ISSUE NO. 2 (GROUND 2)
Whether the trial Court can without any measure of quantification or assessment arbitrary award general damages for trespass.
ISSUE NO. 3 (GROUND 3)
Whether in the absence of a specific finding of trespass against the Defendants, the trial Court was legally right to have awarded damages against the Defendant(s) for trespass.
ISSUE No. 4 (GROUND 4)
Whether title to land can be founded upon a certificate of occupancy, which is statutorily null and void”.
However the Appellants stated on page 11 of their brief of argument that:
“We intend to abandon issue No, 4 since the certificate of occupancy was issued before Kaduna State (Designation of Land on Urban Area) Order 1980 and its subsequent amendment thereto and Kaduna Legal Notice No. 6 of 1990, which rendered void all certificates of Occupancy issued by the Local Governments in Kaduna State in respect of Land in Urban Area”.
It follows therefore that since ground 4 of the Notice of Appeal has no issue distilled from it, it is therefore deemed abandoned and should be struck out. I find support in this opinion of mine in the case of E. B. Ukiri v. Geco-Prakla (Nig.) Ltd (2010) 16 NWLR (pt.1220) page 544 at 565 – 566 where the Supreme Court held Per Musdapher JSC:
” . . . this Court will not close its eyes to the failure of the Appellant to formulate any issue in respect of the grounds III-IV of this Notice of Appeal. These grounds are deemed to be abandoned and they are subsequently struck out. See
Kano ile Plc v. G & H (Nig.) Ltd (2002) 2 NWLR (pt.751) 420 at 453;
Pacexs Multi Dynamic Ltd v. M.V. “Dancing Sister” (2003) 3 NWLR (Pt.648) 241.”
The Respondent on his part distilled a sole issue for determination in this appeal, as follows:-
“Whether the trial Court was in error in awarding the sum of N1,000,000.00 (One Million Naira) for trespass against the Defendants in this case.”
The issue formulated by the Respondent is all embracing and capable of accommodating the grievance of the Appellants. I adopt same for the determination of this Appeal.
The complaint of the Appellants is that although the Plaintiff did not claim in damages against the 2nd and 3rd Defendants/Appellants for trespass, the trial Court awarded the Plaintiff the sum of One million Naira damages for trespass against them. It was argued that a specific Defendant of the three Defendants was not specifically named nor identified in the judgment. It has been contended on behalf of the Appellants that in the writ of summons filed and endorsed with the statement of claim, the Plaintiff claimed against the 1st Defendant as sole Defendant on the issue of damages for trespass,
The Appellants maintained that both in the writ of summons and the statement of claim endorsed thereto no claim was made by the plaintiff against the 2nd and 3rd Defendant for damages in trespass. It was argued that the original writ of summons and the statement of claim only made a claim in damages for trespass against the 1st Defendant as sole defendant.
It was agued on behalf of the Appellants that the trial Court was wrong in law to have awarded damages in trespass without specifically stating which of the Defendants was liable to the Plaintiff in damages for trespass.
It was submitted that a Court of law, not being a charitable institution, cannot award a claimant that which he did not specifically claim against a Defendant in a suit. The Appellants argued that the plaintiff did not claim in damages for trespass against the 2nd and 3rd Defendants and that the trial Court was in error to have made the 2nd and 3rd Defendants liable to the Plaintiff for a claim not made against them.
The Appellants submitted that where a trial Court, as in this case, grants to a claimant that which he did not claim, it acts in excess of its jurisdiction and that such award or grant cannot be allowed to stand, The Court was referred to the case of Etim Ekpenyong & 3 Ors v. Inyang Efiong Nyong (1975) 2 SC 71 at 80 – 81.
It was argued that no relief were claimed in the writ of summon endorsed with the statement of claim against the 2nd and 3rd Defendants/Appellants for them to be made liable to the Plaintiff in damages for trespass. The Court was referred to the cases of Salubi v. Nwariaku (2003) FWLR (pt. 154) page 401 at 419; A. G. Abia, Delta and Lagos State v. A. G. Federation (2006) 9 MJSC page 1 at 78.
It was further argued on behalf of the Appellants that the award of damages for trespass in this suit was not a consequential relief because there was no specific relief claimed against the 2nd and 3rd Defendants/Appellants in damages for trespass.
It was submitted that the award of damages in this case does not come within the ambit or province of consequential reliefs excepted by the Supreme Court in the case of Ilona v. Idakwo (2003) FWLR (pt.171) page 1715 at 1739.
It was however conceded on behalf of the Appellants that it is trite law that where there is proof of trespass, the Plaintiff is entitled to an award of nominal damages, even if no damages or loss is caused. The Court was referred to the case of UBA Plc v. Samba Petroleum Co. Ltd (2003) FWLR (pt.137) page 1199 at 1231.
The Appellants argued that the Plaintiff/Respondent who claimed in damages for trespass did not pray for the restoration of the plot to its pre-trespass statute because he was contented to take the benefits of the development or improvements on the plot that constitute the alleged acts or trespass. It was further argued that the trial Court ought to have taken this fact into consideration in awarding damages for trespass. The Trial Court it was contended simply and merely awarded One Million Naira only as damages without any assessment or giving any reason as to how it arrived at the award against the Defendants. The Court was referred to the cases of
NEPA v. INAMETI (2002) FWLR (pt.130) page 1695 at 1724;
BODI v. Agyo (2003) FWLR (Pt.156) page 815 at 840;
Anyasinti Umunna & Ors v. Animudu Okwuraiwe & Ors (1978) 6-7 SC 12 at 36.
It was argued on behalf of the Appellants that the development or improvements adjudged to constitute the trespass was an act of enhancement and not a diminution of the plot in issue, and that that might account for the reason why the Respondent did not pray for the removal of those developments and the restoration of the plot.
The Appellants insisted that the trial Court did not carefully exercise its judicial discretion in the circumstances of this case in the award of damages of One Million Naira against the Defendants. They claimed that the trial Court failed to take into account the relevant facts that the Respondent was anxious to retain the development or improvements adjudged to constitute the trespass in awarding substantial instead of nominal damages to the Respondent. In the case of UBA Plc v. Samba Petroleum Co. Ltd (supra) at pages 1233-1234, it was argued that such consideration weighed in the mind of the court in refusing to award damages for the cost of restoration of the land.
It was argued on behalf of the Appellants that where a trial court has as in this case, failed to take relevant matters into consideration in its assessment and award, an Appellate court may disturb the award made. The court was referred to the cases of ACCC Ltd. v. Bamigboye (2004) All FWLR (Pt.210) page 1323 at 1334.
Union Bank of Nigeria Ltd v. Odusote Book Stores Ltd (1995) 12 SCNJ 175 at 201.
The court was urged to hold that the award of one Million naira only as damages for trespass is arbitrary, excessive and to set same aside.
It was submitted on behalf of the Appellants that there was no claim in trespass against the DW1 and that the 1st Appellant against whom there was a claim of the sum of N2,000,000.00 (Two Million Naira) there was no finding of trespass against him.
The Appellants contended that since the trial Court did not make any specific finding of fact against any of the Defendants for trespass in favour of the Respondent, and that the award of damages for trespass did not follow naturally a finding of trespass against the trespasser(s). They cited in support of this submission, the cases of
UBA Plc v. Samba Petroleum (supra) at page 1231;
Osuji v. Isiocha (1989) 3 NWLR (pt.111) page 623 at 636.
It was argued that the trial court was legally wrong to have awarded damages against the Appellants for trespass and the court was urged to so hold.
In response to the argument of the Appellants, the Respondent submitted that once a finding was made that the Defendants trespassed on the Respondent’s plot, the award of damages if claimed, becomes a duty/requirement expected from the court.
It was argued on behalf of the Respondent that by section 14 of the interpretation Act, Laws of the Federation of Nigeria 2004, reference to Defendant is also reference to Defendants. It was submitted that it is therefore not an error in law for the court to have used the word Defendant instead of Defendants or vice versa.
It was further submitted on behalf of the Respondent that the decision of the trial court as well as the award of damages in this case binds the 2nd and 3rd Defendants since they were joined as parties by the order of the trial court, pursuant to their request. The Respondent contended that it is not the case of the Appellants that the sum awarded was high or that an erroneous assessment of the damages done in his favour.
The court was referred to the case of Shell Pet. Dev. Co. v. Tiebo VII (2005) 9 MJSC 158 at 187-188.
It was submitted that there is no evidence in this case to show if there was any benefits derivable by the Respondent from the trespass. The Respondent contended that the facts of the case is quite different from that in UBA Plc v. Samba Petroleum Co. Ltd (supra) and Anyasinti Umunna & Ors v. Animudu Okwuraiwe & Ors (1976) 6 – 7 SC 1 cited by the Appellants.
The Respondent submitted that the award of N1,000,000.00 (One Million Naira), would in the opinion and judgment of a reasonable person be a fair and reasonable assessment of the trespass in this case where the Defendants/Appellant occupied the Respondent’s house and denied him access into the house and had wanted to acquire it.
It was submitted on behalf of the Respondent that the damages was awarded to meet the justice of the case and there is no doubt that this Court can make an award of damages where the trial Court made no assessment. The Court was referred to the case of Sonibare v. Soleye (2009) 4 MJSC 135 at 144.
The Court was urged to hold that the appeal is devoid of merit and ought to be dismissed.
The award of general damages is a matter within the exclusive discretion of the trial Court and an appellate Court will not ordinarily interfere with such an award unless under certain circumstances such as where –
1. the trial Court acted under a mistake of law.
2. the trial Court has acted in disregard of principle
3. the trial court has acted under misapprehension of facts
4. the trial Court has taken into account irrelevant matters or failed to take into account relevant matters.
5. injustice will result if the Appeal court does not interfere.
6. the amount awarded is either ridiculously high or ridiculously low that it must have been wholly erroneous estimate of the damage.
See: Aniekan Amos Peters v. Asst. Insp. General of Police (2000) FWLR (Pt.49) page 1449;
Obi Okudo v. IGP & others (1998) 1 NWLR (Pt.533) page 336;
Nwobodo v. ACB Ltd (1998) 6 NWLR (Pt.464) page 658;
UBN Ltd v. Odusote (1995) 9 NWLR (Pt. 421) page 558;
Ziks Press Ltd v. Ikoku 13 WACA 188.
It is the duty of a party wishing to invite an Appellate court to disturb an award of damages to satisfy it that the trial court in assessing the damages applied wrong principle of law such as taking into account some irrelevant factor or that the amount awarded is either, ridiculously low or so ridiculously high. See:
Aniekan Amos peter v. Asst Insp. General of Police (supra);
Umoetuk v. Union Bank Plc (2001) FWLR (Pt.81) page 1849;
Odogu v. A. G. Federation (1996) 6 NWLR (pt.450) page 508.
The court in exercising its discretion in granting an award of general damages must act judicially and judiciously, and it must also consider the surrounding circumstances of the case. See Salau v. Araba (2004) All FWLR (pt.204) page 88.
The Courts are enjoined to take judicial notice of the decline in the purchasing power of the Naira over the years and that that fact must be taken into consideration in the Assessment of damages. See ASESA v. Ekwerem (2001) 10 NWLR (pt.720) page 97.
The only reason which makes it necessary to join a person as a party to an action is that he should be bound by the result of the action and the question to be settled, See: Green v. Green (1987) 3 NWLR (pt. 61) page 480;
A. G. Federation v. A. G. Abia State and 35 Ors (2002) 10 (pt.1) NSCQR 163 at 215 – 217.
Cotecna International Ltd v. Churchgate Nigeria Ltd & Anor (2010) 14 NSCQR 641 at 684.
The 2nd and 3rd Defendants by their own application have sought to be joined in the dispute between the Plaintiff and the 1st Defendant, with the hope of sharing from any advantage or success that may accrue from the out come of the suit.
Having lost the case at the trial Court, they now appealed to this Court against the award of damages arguing that because the award read Defendant instead of Defendants, the 2nd and 3rd Defendants are not liable and that the award is only against the 1st Defendant.
The 2nd & 3rd Defendants/Appellants are being clever by half, they ought to have known that the consequences of being made a party to an action is that they will be bound by the decision and orders of the trial Court including any award of damages and costs, that may be made against them and to share in the liability as they would have done with benefits, if the decision had been in their favour.
It is very clear and unambiguous from the judgment at page 95 of the record of Appeal that the award was made against all the Defendants. The trial Court held thus:
“Judgment is accordingly hereby entered for the Plaintiff and against the Defendants in the following terms per the Plaintiff’s writ of summons”. (underline mine).
By section 14 of the Interpretation Act LFN 2004, reference to Defendant is also reference to Defendants. It follows therefore that the use of the word Defendant instead of Defendants or vice versa is not an error in law.
The 2nd and 3rd Defendants/Appellants cannot therefore discharge themselves from the liability of the award simply because item 5 of the award read Defendant instead of Defendants.
The submission made on behalf of the Appellants that the Plaintiff/Respondent did not claim in damages for trespass against the 2nd and 3rd Defendants/Appellants, and that the trial Court was in error in making them liable to the Plaintiff/Respondent is most incorrect for the reason that they voluntarily sought to be joined and were so joined in the suit at their own instance.
The cases of Etim Ekpenyong & 3 Ors v. Inyang Efiong Nyong & 6 ors (supra);
Salubi v. Nwariaku (supra); and
A. G. Abia, Delta and Lagos States v. A. G. Federation (supra) referred the Court by the Appellants are not apposite to the present case.
It is the complaint of the Appellants that the trial Court simply and merely awarded One Million naira as damages without any assessment or without giving any reason as to how it arrived at the award for trespass committed by the Defendants/ Appellants.
In Bodi v. Agyo (2003) FWLR (pt.156) page 815 at 840, it was held that:
“Where in a trespass action, general damages are claimed and established. It is the duty of the Court of trial to proceed to assess, quantify and award the appropriate amount it considers reasonable having regard to all the circumstances of the case”.
In the instant case the trial Court in its judgment at pages 94-95 of the record of appeal made the following findings:
“I have carefully considered the totality of evidence placed before me and in particular Exhibits A1 & A2, B1 – B11, C1 – C5 read and considered together with the evidence of DWI under cross examination stating:
“It is true that the size of the plot actually allocated to me was 50ft x 100ft as against my claim that it was 50ft by 200ft”.
I also observe that all the Defendants trace their root of title to DW1 who was the original guarantee of plot EE 10A Lere Street and not a party to this suit. It is also in evidence that DW1 dishonestly appropriated plot No.EE 10 Lere Street U/Dosa inappropriately to himself and sold to the 1st Defendant who in turn sold to the 2d Defendant who similarly sold to the 2nd Defendant”.
It has been held in the case of U. B. A. Plc v. Samba Petroleum Co. Ltd (2003) FWLR (pt.137) page 1199 at 1229 that:
“The award of general damages cannot be made arbitrary. It calls for some measure of quantification and a careful exercise of judicial discretion which must demonstrate the basis of the award”.
It is very clear from the findings of the trial Court in its judgment at page 95 of the record that it took into consideration the unique facts and circumstance of this case in making or arriving at the award made against the Defendants/Appellants. The Court held:
“It is inconceivable that a person (DW1) would criminally appropriate a plot or property belonging to someone (plaintiff) to himself simple because the Plaintiff who had developed his Plot No. EE 10 Lere Street U/Dosa Kaduna was away/absent/unseen for a very long time. This is a clear case of theft/criminal misappropriation/trespass e.t.c.
For the reason given above, I have no hesitation in entering judgment in favour of the Plaintiff who has proved his genuine title to the property situate at No EE 10 Lere Street U/Dosa Kaduna against the whole world.
Judgment is accordingly hereby entered for the Plaintiff and against the Defendants in the following terms per the Plaintiff’s writ of summons.
1. ……………..
2. ……………….
3. ………………..
4. I refuse the claim for the sum of N8,000,00 per annum from 1995 till date for use and occupation of the said premises for being arbitrary in its quantum.
5. I award the sum of N1,000,000.00 (One Million Naira) damages for trespass in favour of the Plaintiff and against the Defendant”.
A careful perusal of the Record of Appeal revealed that it is not one of the grounds in the notice of appeal that the award of One Million Naira damages to the Respondent for trespass was excessive, too high or that it was an erroneous assessment.
On whether this Court should interfere with the award of damages, I find support not to do so in the case of Shell Pet. Dev. Co. v. Tiebo vii (2005) 9 MJSC 158 at 187 – 188 the Supreme Court held:
“It has not been shown to us in this Court that the N5M general damages awarded was manifestly too high as to be classified an erroneous assessment of the damage done to the Plaintiffs. This is an area in which the award made by a trial Court is not readily interfered with by an appellate Court. I must therefore decline the invitation by the Appellant to interfere with the award made by the trial Court which was affirmed by the Court below”.
In the instant case the award of N1,000,000.00 (One Million Naira) as damages for trespass made by the trial Court is fair and is a reasonable assessment of the trespass committed by Appellants, in view of the acts of the Defendants/Appellants in occupying the plaintiff/Respondent’s house, and denying him access into the house and their attempt to unlawfully acquire the house.
It is very clear from the circumstances of this case, that it will be most improper to disturb the award of damages granted by the trial Court. This Court will be very reluctant in interfering with the award of damages for trespass made by the trial Court.
On the whole the appeal lacks merit and it is hereby dismissed.
There shall be no order as to costs.
ITA G. MBABA, J.C.A.: I have had the privilege of reading a draft of the judgment just delivered by my learned brother, ABDU ABOKI JCA. I agree with him that the Appeal lacks merit and should be dismissed. It is, accordingly, dismissed by me and I abide by the consequential orders in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Aboki, JCA. His Lordship has commendably resolved the issues contended in this appeal and I agree with the reasoning and conclusions reached in the lead judgment.
It is trite law that every unlawful and unauthorized entry into land in possession of another is an actionable trespass for which damages would be awarded. Such damages awarded as monetary compensation for the legal injury which a defendant has committed on the property of the claimant. The compensation in case of trespass is imposed by law – Attorney General, Bendel State Vs Aideyan (1989) 4 NWLR (Pt.118) 646, Ibrahim Vs Mohammed (1996) 3 NWLR (Pt.437) 453, Ajayi v. Jolaosho (2004) 2 NWLR (Pt.856) 89.
Thus, a successful action in trespass per se attracts damages and, even where no damage or loss is caused, the claimant is entitled to nominal or minimal damages – Ummuna Vs Okwuraiwe (1978) 6-7 SC 1, Osuji Vs Isiocha (1989) 3 NWLR (Pt 111) 623, Asuquo Vs Asuquo (2009) 16 NWLR (Pt.1167) 225, Spring Bank Plc Vs Adekunle (2011) 1 NWLR (Pt.1229) 581.
It is implicit in that award of nominal damages that there is an invasion or infraction of another’s legal right and it is of no moment that no loss or damage has been caused to the party asserting the legal right – Ogundipe Vs Attorney General, Kwara State (1993) 8 NWLR (Pt 313) 558, Ajayi Vs Jolaosho (2004) 2 NWLR (Pt.856) 89, Aminu Vs Ogunyebi (2004) 10 NWLR (Pt 882) 457.
In the instant case, the lower Court found that the three Appellants committed an infraction of the legal right of the Respondent to the property in issue. The Appellants have not challenged this finding in this appeal. The three of them were thus liable in trespass and the lower Court was explicit that judgment in the matter was entered against all the Appellants, not against the first Appellant alone. If the second and third Appellants were indeed in any doubt about the decision of the lower Court on their liability in damages, they should have approached the lower Court under the “slip rule” for a clarification, and not appealed against the award of damages.
Further, it settled that the trial court has a discretion as to the quantum of damages it would award in a claim of damages for trespass. The assessment does not strictly depend on any legal rules but the discretion of court is limited by usual caution or prudence and remoteness of damage when considering an award of damages Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt.1184) 265. An award of general damages cannot be made arbitrarily. It calls for some measure of quantification and a careful exercise of judicial discretion and it is not an exercise of judicial discretion if the basis for the award is not demonstrated – United Bank of Africa Plc Vs Samba Petroleum Ltd (2002) 16 NWLR (Pt 793) 361.
Thus, the courts have held that it is not enough for a court to simply award damages in an action for trespass to land without giving reasons as to how it arrive at what amounted to reasonable damages – Ummuna Vs Okwuraiwe (1978) 6-7 SC 1, Olurotimi Vs Ige (1993) 8 NWLR (Pt.311) 257, Abiara Vs Registered Trustees of the Methodist Church of Nigeria (2007) 11 NWLR (Pt.1045) 280.
In the present case, the lower Court demonstrated in the judgment the reasons for the award of N1 Million as damages for trespass. It was the impunity of the actions of the Appellants that necessitated the grant of such damages. In assessing damages for trespass a court is entitled to take into account the motive and conduct of the defendant where they aggravate the claimant’s injury – United Bank of Africa Plc Vs Samba Petroleum Ltd supra. Thus, in Okefi Vs Ogu (1996) 2 NWLR (Pt.432) 603, where the defendant committed persistent and several acts of trespass in open violation of a subsisting consent judgment to which he submitted and he entered the land in contempt of a court order, the court was of the view that substantial amount ought to be awarded as damages for trespass. The Appellants have not complained about the amount awarded as damages. This Court thus has no reason to disturb either the award of damages or the amount awarded as damages.
It is for these reasons, and the fuller reasons contained in the lead judgment, that I, too, find no merit in this appeal. I hereby dismiss the appeal and affirm, the judgment of the High Court of Kaduna State in Suit No.KDH/KAD/53/2001, delivered by Honorable Justice Bashir Sukola on the 31st of May, 2006. I abide the order on costs in the lead judgment.
Appearances
J. A. Achimugu with Yahaya Achadu and F. E. AuduFor Appellant
AND
A. C. AmaechiFor Respondent
