ECOBANK NIGERIA LIMITED v. CHARITY AZUBUKO & ORS
(2018)LCN/12328(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of December, 2018
CA/OW/310/2014
RATIO:
DAMAGES: TO PLEAD FOR SPECIAL DAMAGES
“With respect to the claim for special damages it is trite that to succeed in a claim for special damages, they must be specifically pleaded and strictly proved. See Anyanwu vs. Uzowuaka (2009) ALL FWLR (Part 499) 4411; Okunzua vs. Amosu (1992) 6 NWLR (Part 248) 416.” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
TORT LAW: TRESPASS TO LAND
“Equally, when two parties are on land claiming possession, trespass can only be at the suit of that party who can prove that title to the land is in him. Umeobi V. Otukoya (1978) 4 SC 33.” See Oriorio vs. Osain (2012) 16 NWLR Part 1327 page 527, per Adekeye, J.S.C. Also, in Amaechi vs. Amaechi, (2013) LPELR 20638 (CA) Owoade, J.C.A., had the following to say: “It is a settled principle of law that once an act of trespass is established, the trespasser is liable to damages. See Okunrinmeta vs. Agitan (2002) 2 NWLR (Pt. 752) 565″ This is because trespass to land is the wrongful invasion of the private property of another. It is trespass to land provided the entry into the land of another person is not authorized. Trespass to land is rooted in a right to exclusive possession of the land allegedly trespassed. See: Ndukuba vs. Izundu (2007) 1 NWLR (Pt. 1016) 432, Okoko vs. Dakolo (2006) 14 NWLR (Pt. 1000) 401, Yusuf vs. Keinsi (2005) 13 NWLR (Pt.943) 554, Oyadeji vs. Adenle (1993) 9 NWLR (Pt.316) 224.” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
ECOBANK NIGERIA LIMITED Appellant(s)
AND
1. CHARITY AZUBUKO
2. OBONG JOSIAH UMOH
3. MADUABUCHI OPARAOCHA Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment):
The suit from this appeal emanated was commenced before the High Court of Abia State on the 16th October, 2008 by formerly Oceanic Bank International Plc. On the 21st June, 2009, the original Plaintiff was substituted with Ecobank Plc. Three reliefs were sought in its Statement of Claim in the following terms:
1. A declaration that the Plaintiff is entitled to Statutory Certificate of Occupancy over the piece or parcel of land known as No. 2 Station Avenue, Aba (formerly known as Plot 36 GRA, Aba) in Aba North Local Government Area of Abia State.
2. Two Million Naira (N2,000.00.00) damages jointly And severally against the Defendants in that the Defendants without them leave, consent and authority of the Plaintiff trespassed into the Plaintiff’s property at No. 2 Station Road, Aba and erected make shift buildings on the Plaintiff’s property left as set and grass lawn thereby exposing the Plaintiff’s Banking premises to danger.
3. Perpetual Injunction restraining the Defendants from Further entry into the Plaintiff’s said property known as No. 2 Station Road, Aba in Aba North Local Government of Abia State, Nigeria.
However, the 1st and 2nd Defendants filed a Motion on Notice on the 16th January, 2009 for an extension of time to file their Statement of Defence and Counter-Claim out of time and for an order deeming their Statement of Defence and Counter-Claim filed along with the said Motion on 16/1/2009 as properly filed and served. The same was heard and granted by the lower Court on the 26th January, 2009. The 1st and 2nd Defendants then counter-claimed against the Plaintiff thus:
(i) The 1st and 2nd Defendants state that they have been dawnified (sic) and claim from the Plaintiff as follows: N15, 371, 372 Special Damages as shown on paragraph 17 (a) to (r) above.
(ii) General Damages of N20,000,000.00.
(iii) A perpetual injunction restraining the Plaintiff by itself, its staff, agents, workers and or privies and otherwise howsoever from disturbing the 1st and 2nd Defendants, when they rebuild their destroyed kiosks/batchers earlier built on Railway land allocated to the 1st and 2nd Defendants by Railway authorities since 1996.
The Plaintiff filed its Reply to the Statement of Defence and Counter-Claim of the 1st and 2nd Defendants on the 16th February, 2009. Then on the 13th March, 2009, the 1st and 2nd Defendants filed a Motion on Notice for ?An Order of Court setting down for hearing paragraphs 16, 17, 18, 19, 22, 26 and 27 of the Plaintiff?s Statement of Claim as a preliminary issue as the Applicants pleaded on paragraph 13 of their Statement of Defence and Counter-Claim? on the ground that they are embarrassing, scandalous, vexatious and an abuse of the principles of pleadings. Eventually, the entire suit was heard and in its judgment delivered on the 28th March, 2014, the lower Court pronounced thus:
After a consideration of the evidence and pleadings, judgment is entered for the Claimant as follows:
1. A declaration that the Claimant is entitled to Statutory Certificate of Occupancy over the piece or parcel of land known as No. 2 Station Avenue, Aba (formerly known as plot 36 GRA, Aba) in Aba North Local Government Area of Abia State as it relates to the Deed of Assignment dated 10/6/2010.
2. The sum of N5,000 as damages jointly and severally against the Defendants.
3. A Perpetual injunction is granted restraining the Defendants from further entry into the set back (sic) situate at No. 2 Station Road, Aba in Aba North Local Government Area of Abia State.
On the Counter-Claim, Judgment is entered for the 1st and 2nd Defendants Counter-Claimants as follows:
1. General damages of One Million Five Hundred Thousand Naira only (N1,500,00.00)
In consequence thereof, the Plaintiff filed a Notice of Appeal on the 2nd April, 2014 against the judgment in the counter-claim based on six grounds of appeal. The record of appeal was transmitted to this Court on the 15th September, 2014 but it was deemed as duly compiled and transmitted on the 29th September, 2016. The Appellant?s Brief of Argument was filed on the 6th May, 2016 and three issues were framed therein for the determination of this Court thus:
1. Whether the Learned trial Judge was right in law in his evaluation of evidence when he found and held that the Appellant was instrumental for the destruction of the Respondents’ batchers based mainly on the evidence of D.W.2 and based on the award of damages against the Appellant on the Respondent’s Counter-Claim when the C.W.2 had given evidence that he and his staff of Aba North Town Planning Authority demolished the batchers of the Respondents after they were given removal notice.
2. Whether the Learned trial Judge was not wrong in law when in his judgment, he did not consider the issue of mitigation of damages raised in the Appellant’s written address before the award of damage of the sum of N1,500,000.00(One Million Five Hundred Thousand Naira).
3. Whether the Learned trial Judge was right in law when he awarded damages of the sum ofN1,500,000.00 (One Million Five Hundred Thousand Naira) to the Respondents purely on the sentiment when the Respondents proved nothing against the Appellant.
Also, the Respondents in their Brief settled by their learned Counsel, P. O. Ehiogu, Esq., propounded three issues for the consideration herein. They are:
1. Whether the Learned trial Judge in the Court below was right based on findings of fact in awarding damages of the sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) against the Appellant.
2. Whether the Respondents herein and the Counter-Claimants in the Court below proved their case in the Court.
3. Whether the Learned trial Judge in the Court below was not right in holding the Appellant responsible for destruction of the Sheds/Stores standing on the Railway land not on the Appellant’s land.
Proffering arguments in respect of the Appellant’s issue No. 1 in its Brief of Argument, D.O. Uruakpa, Esq., queried the evaluation of evidence carried out by the lower Court in the face of cogent and credible evidence adduced by the Appellant. He made reference to paragraphs 38, 39 and 40 of C.W.1’s Statement on Oath, C.W.2’s Statement on Oath at paragraph 10, paragraphs 5, 6 and 7 of the Appellant’s Reply to Statement of Defence and Defence to Counter-Claim, the Exhibits depicted at pages 87 and 92 of the record, the respective evidence of C.W.2 under cross-examination, and the 1st Respondent as D.W.1 at pages 165 and 166 of the record, paragraphs 32 and 33 of her written Statement on Oath, the trial Court’s findings that the Appellant has proved that it was in lawful/exclusive possession of the area trespassed upon by the Respondents as to entitle it to damages for trespass and Order for Injunction, and then argued that in its evaluation of evidence, the lower Court failed to consider the evidence of the Appellant’s witnesses placed before it. It only evaluated the evidence of the Respondents.
He relied on the decisions in Tukur v. Uba (2012) 7 SCNJ page 328 at 363 and Gov. Lagos State vs. Adeyiga (2012) 2 SCNJ page 1 at 37, and submitted that it is the primary responsibility of the trial Court to fully consider in totality the evidence of the parties before it but where the trial Court failed to evaluate such evidence properly or at all, an appellate Court can intervene and re-evaluate such evidence.
Learned Counsel then implored this Court to review or re-evaluate the evidence of 1st Respondent or D.W.1 on the ground that the evidence on demolition of their batchers as shown at pages 165 and 166 of the record is not credible as the Respondents did not give the name of the alleged top official of the Appellant, secondly, the top official who allegedly partially demolished the batchers and not completely, and thirdly, the Respondents never reported the partial wilful or malicious destruction of their batchers to the Police and it occasioned a miscarriage of justice.
Counsel further referred to the deposition of D.W.1 at paragraph 33 of his Statement on Oath and pointed out too that the name of the officials of the Appellant who allegedly came in the company of some Soldiers, Mobile Police men and thugs numbering over 60 were not mentioned. He further queried the credibility of the story that two partially destroyed kiosk/batchers were what Soldiers, Mobile Policemen and thugs numbering 60 men with Caterpillar came to demolish.
On the alleged worth of the supposedly destroyed properties, learned Counsel referred to the trial Court’s reservations about it, ‘that a consideration of the photographs tendered showed that there is nothing therein to prove that those items were destroyed either on the 23rd or the 24th December, 2008, she did not tender a single receipt nor call a witness to confirm that she actually had such property in the batcher or that they were destroyed’, and strongly contended that in spite of the trial Court?s observations, it still wrongly evaluated the evidence.
It was further submitted that the evidence of the Appellant via C.W.2 that it was Government that demolished the batchers of the Respondents during the demolition of illegal structures, that it was not the officials of the Appellant that destroyed the Respondents’batchers, is more probable than that given by the Respondents. He called the attention of this Court to the testimony of C.W.2 to the effect that when he was the Secretary in charge of Aba North Planning Authority and in one of their routine inspections for demolition of illegal structures, they discovered the Respondents? batchers and then gave the Respondents Contravention and Demolition Notice in writing to remove the said illegal structures within 14 days from the date of the Notice.
The Respondent did not remove the structures as were advised, that in December, 2008 during their demolition exercise, the Respondents pleaded with them that they be allowed to remove their things which they did, after which they demolished the illegal structures. He further stressed that by the foregoing it became clearer that the trial Court did not properly evaluate the evidence placed before it by the Appellant and the Respondents. He therefore, urged this Court to hold that there is no proper evaluation of the parties evidence and for this Court to re-evaluate the evidence on demolition of the Respondents’ batchers.
With regard to issue No. 2, learned Counsel made reference to the evidence of C.W.2 at page 143 of the record particularly paragraphs 9 and 10 of his Statement on Oath where he said that the the Respondents pleaded with them to allow them remove their things which they obliged them. It was after removal of their things that they demolished the illegal structure.
He also referenced the testimony of C.W.1, the 1st Appellant’s witness in paragraph 43 of his Statement on Oath to the extent that the 1st and 2nd Defendants contributed to their loss, because if they had removed the illegal structure within the time they were given to do so, they would not have suffered any loss, assuming without conceding that they sustained any loss.
He also pointed out that the Appellant raised the issue of mitigation of damage on the part of the Respondents in that assuming without conceding that they sustained any loss that warranted the award of damages, they ought to have mitigated the loss by removing their goods in the batchers before the Government demolition exercise. The trial Court ought to have considered that before awarding damages of N1,500,000.00.He relied on the decisions in Kosile vs. Folarin (1989) 2 NSCC Vol. 20 Part 11 page 180 at 189; and Okafor vs. Ilukwe (2013) 10 NWLR Part 1363 page 465 at 483 where it was held that a Plaintiff is required to take all reasonable steps to mitigate the loss resulting from the Defendant’s wrong as no damages would be awarded in respect of any part of the loss. He stressed that by the evidence of C.W.2, the Respondents had ample opportunity to mitigate their damages if any. He therefore urged that this issue be resolved in favour of the Appellant.
On issue No.3, it submitted that the award of N1.5 million general damages was misguided and unfounded based on the trial Court’s findings at pages 249 and 250 of the record that the photograph tendered by the Respondents did not prove that those items were destroyed on the 23rd or 24th December, 2008, that it is hard to believe that the 1st Respondent saw that there were persons armed, with intent to ejecting her and demolishing her batcher yet she left properties worth millions of Naira. The trial Court also observed that the 1st Respondent did not tender any receipt nor call any witness to confirm that’s she actually had such properties in the batcher or that they were destroyed, and that her evidence fell short of strict proof required to establish the alleged destruction or the materials used to construct the batcher.
The trial Court equally found that since the 1st Respondent was not in lawful possession of the land upon which the batcher was constructed, she was not entitled to loss of profit and that there was no credible evidence to prove that she was let into possession by anyone and that she is a trespasser ab initio. Learned Counsel argued that the trial Court’s remark at page 250 of the record that the 1st and 2nd Defendants suffered loss as a result of the demolition carried out while the suit was pending before the Court, can only give rise to contempt proceeding since it is an act of contempt of Court for which the Court will invite the contemnor and punish him for the contempt and not a ground for award of general damages to a party. The award was only sentimental and not backed up by any known principles as the lower Court itself recognised that there is no proof she lost customers and as such she would be entitled to nominal damages. He argued that the trial Court erred when it shifted the claim of the Appellant against the Respondents from trespass to loss of customers, and even considered the purchasing power of Naira.
Also, while awarding the sum of N5,000 as damages to the Appellant, the Respondents were found to have trespassed into her land, then, N1,500,000.00 was given as damages to Respondents who the Appellants did not nothing to at all. He cited the cases of Aniekan Amos Peters vs. Asst. Insp. General of Police (2001) FWLR Part 49-page 1449 and Umoetuk vs. Union Bank Plc. (2001) FWLR Part 81 page 1849 and submitted that the appellate Court may interfere when either the trial Court in assessing the damages applies a wrong principle of law such as taking into account irrelevant factor or that the amount awarded is either ridiculously low or high. He then urged this Court to resolve issue 3 in favour of the Appellant.
In response, the Respondents’ learned Counsel under issue 1 submitted that based on the evidence of the Respondents before the trial Court, the trial Court was right in awarding a modest damage of N1,500,000.00. He persuaded that issue 1 be resolved in favour of the Respondents.
In relation to their issue No. 2, they submitted that it should be answered in the affirmative because the Appellant was brazen in its conduct to demolish and destroy the properties of the 1st and 2nd Respondents when the suit was still pending and the pleadings of the parties had not closed. Learned Counsel urged this Court to hold that the Appellant and its officials were callous and malicious in brazenly demolishing the kiosks/sheds of the 1st and 2nd Respondents and then resolve issue 2 in favour of the Respondents.
On issue 3, the Respondents contended the trial Court was right in holding that the Appellant was responsible for the destruction of the sheds/stores of the 1st Respondents which were standing on the Railway land outside the walls of the Appellant’s Bank. He argued that in the Exhibits tendered before the lower Court, it was clear that the Respondents were and are still tenants to Nigerian Railway Corporation which acquired the said pieces of land where the Respondents rented their stores/sheds between 1914 and 1915 and they pay their periodic rents to the Railway for the sheds allocated to them by the Railway. It is also clear that the Appellant is impudently laying claim to a land that does not belong to it, i.e. claiming ownership of land outside its walled land.
He submitted that the 1st Respondent proved all the items of her counter-claim, special damages of N15,374,372.00 and general damages of N20,000,000.00 in the Court below. He mentioned the decisions in Ijebu Ode L.G.A vs. Adedeji Balogun& Co. Ltd. (1991) 2 LRCN 287 at 307, and Anthony Odiba vs. Tule Azege(1998) 61 LRCN 4605 at 4626 paragraph G, and stressed that the special and general damages claimed by the Counter-Claimant were on the footing of solatium, that is, as damages awarded to a plaintiff as compensation for personal suffering or grief arising from an injury, in other words as a form of compensation for emotional rather than physical or financial harm. He then urged this Court to dismiss the appeal.
I have carefully studied the three reliefs postulated by the Appellant and I think the three could be compressed and considered together since they deal with evaluation of evidence and the award of damages made by the lower Court. To start with, the evidence of C.W.2 points to the fact that the Appellant was not instrumental to the demolition of the 1st and 2nd Respondents’ batchers situated at No. 2 Railway Road, Aba. C.W.1 categorically denied every assertion or insinuation that the Appellant orchestrated the destruction or pulling down of the 1st and 2nd Respondents’ said batchers. He insisted that the batcher was pulled down by the Government of Abia State. He said that the land was purchased by the Appellant from one Godwin Ogwuma. Godwin Ogwuma assigned the place the Appellant fenced up and part of the Railway Station Road. He was emphatic that the land used to belong to Godwin Ogwuma and not to the NRC.
C.W.2., the Executive Secretary of Aba Town Planning Authority, one Mr. Lawson Ananaba, a Registered Town Planner with a Masters in Urban and Registrar Planning, stated in his Statement on Oath that it was in the course of their official routine inspection of his Town Planning Area that they discovered that the Respondents had some illegal structures and an on going building at No. 2 Station Road, Aba, following which they issued a ‘Stop Work Notice and Demolition Notice’ to the occupants of the areas. They were given 14 days therefrom to remove the illegal structures. Thereafter, they carried out the demolition exercise in accordance with the Demolition Notice issued pursuant to the provisions of Section 70(1) of Abia State Urban and Regional Board/Planning Authority Law, Cap 38, Vol.II, Laws of Abia State, 1999-2000. The occupants pleaded to be allowed to remove their belongings which they obliged them with. After removal of their belongs, C.W.1, and his team embarked on the demolition exercise and then removed the illegal structures. Under cross-examination, he explained that every developer needs a Development Permit from the Town Planning Authority throughout the State.
He denied knowledge of any case pending between the parties in the Court and also denied acting on the script of the Claimant, assisting the Claimant to pull down the structures nor being rewarded. He further explained that the structures were illegal and on a road set back which belongs to the State Government. He said that even if the Railway says it owns the land, it cannot give a Development Permit on a road set back which is for the public.
D. W. 1, the 1st Respondent explains how she acquired the piece of land from the Nigerian Railway Property Company Limited. It was allocated to her on rent paying basis. She tendered receipts issued to her by the Railway Corporation to prove her assertions of being a tenant to the Railway Corporation. She said she had been a tenant of the Railway since 1996. She alleged that both serving and retired Railway staff wrote her and the 2nd Defendant that the piece of land where they had their shops/stores belong to the Claimant.
She particularly referred to a letter written to them by one F. O. Ibe, the Senior Traffic and Commercial Officer, Nigerian Railway Corporation, Aba dated 16/1/2007 stating that the land is directly on the Claimant’s fence and it has been designated a security risk. She alleged that the Claimant secured the services of the Aba North Town Planning Authority to write and threaten them to remove the batchers. Then on 24/12/2008 being the Christmas Eve, the officials of the Claimants from the Railway Station/Factory Road, Aba with force and arms, in the company of armed Soldiers, Mobile Policemen and thugs numbering over 60 brought a caterpillar which moved into the remaining and standing kiosks/batchers of the Counter-Claimants and destroyed numerous personal belongings of theirs. She further stated that the Claimant with its paid armed men and officials of Aba North Town Planning Authority deliberately and maliciously destroyed the kiosks/batchers of the 1st and 2nd Respondents and left the shop/barbing saloon of the 3rd Defendant, its informant and stooge, untouched. She listed the items damaged in the process. Under cross-examination she insisted she was put in the place by the Railway Corporation and she was its tenant and was not on the property illegally. When she was given Notice of Demolition by Aba North Town Planning Authority, she did not leave but she went to the Railway Corporation and they asked her to stay put on the property since the Town Planning Authority did not give her the place.
When asked ‘if you had removed the illegal structure as stated in the Demolition Notice you would not have lost anything?, she answered ‘Oceanic Bank and Town Planning Authority did not give me the land.’
D.W.2, James Nkpuma, a photographer, said that on the 23rd and 24th December, 2008, the 1st Defendant engaged his services to take photographs of her demolished batcher at No. 2 Station Road, Aba. He hurriedly took 19 photographs of the demolished batcher by the Claimant who employed the services of great armed soldiers, armed Policemen and thugs. Under cross-examination, he said that the 1st Defendant invited him to take photograph of her damaged store. When vigorously probed, he admitted that the date on Exhibit J2 is 2002 but explained that mistake can be made about the date.
The trial Court in its consideration posed the question, whether the Claimant encouraged, participated or initiated that demolition?. In answering the question, the trial Court stated thus:
“It is both the pleadings and evidence of D.W.1, that staff of the Claimant Bank were present during the demolition together with Soldiers and Policemen and a host of others. The fact that Aba North Town Planning Authority suddenly came up with the idea of demolishing illegal structures at Station Avenue, Aba and in particular at No. 2 Station Avenue, Aba, in my view lends credence to the evidence of DW1 and the fact that the Claimant was behind it. The planning Authority demolished the structures while this Suit was pending and without any regard for the Rule of law, despite being informed that the property was subject matter of a suit between the Bank and Defendants. It is clear in my view that they had ulterior motives. They had no right to take matters into their own hands when the Court was seised of the matter. The fact that the Planning Authority insisted on demolishing the structure of the 1st Defendant who had informed it of a pending suit. Leaving that of the 3rd Defendant is also suspicious.
From the evidence before the Court, it is clear and I find as a fact that the sudden interest of the Planning Authority in the structures was with the active connivance of the Claimant. I believe the evidence of the DW1 to the effect that she saw some staff from the Claimant bank present and that they accompanied those who carried out the destruction. It is a settled principle of law that he who does an act through another is deemed in law to do it himself. Based on this principle the Claimant is liable for these acts.
The counter claimants seek Special and General Damages and a perpetual injunction. A consideration of the pleadings shows that the relief sought in paragraph 17 relate to only the batcher of the 1st Defendant and her property therein.
With respect to the claim for special damages it is trite that to succeed in a claim for special damages, they must be specifically pleaded and strictly proved. See Anyanwu vs. Uzowuaka (2009) ALL FWLR (Part 499) 4411; Okunzua vs. Amosu (1992) 6 NWLR (Part 248) 416.
In her statement on oath DW1 led evidence as to the materials used to lay the foundation, erect or construct the batcher, roof it, put up the ceiling, electrical wiring, cost of labour, see paragraph 17 (a) ? (f). She went on to list various items of property destroyed including a television, home theatre, DVD player, two deep freezer, crates of drinks, a big generator, various food items such as bags of rice, bags of beans and over two hundred crates of assorted drinks. I must however state categorically that while I have no doubt that the structures were destroyed, a fact the Claimant does not deny. I do not believe that all the items listed in DW1 in paragraph 17 (g) to (o) were destroyed. I also find it hard to believe, that the items in paragraph 17 (a)-? represent a true picture of what was used to construct the batcher which both parties admit was not a permanent structure. I find it hard to believe, for instance that 30 buckets of oil paint, 10 buckets of white wash paint, 20 sockets, 25 switches, 100 asbestos roofing sheets, 25 rolls of electrical wire, 105 wooden blocks were used to mention but a few to erect the batcher of the 1st Defendant. What type of the temporary structure has fifteen windows?.
One then wonders how the Court below somersaulted after initially finding that there is nothing in the photographs tendered to prove that the items listed by the 1st Respondent were destroyed either on the 23rd or the 24th December, 2008. The Court even doubted the testimony of the 1st Respondent and took it with a pinch of salt when it stated thus:
“I find it hard to believe that the 1st defendant saw that there were persons armed, intent on ejecting her and demolishing her batcher, yet she still left therein properties worth millions of Naira. It is also noted that she did not tender a single receipt or call a single witness to confirm that she actually had such property in the batcher or that they were destroyed. Her evidence falls short of strict proof of the property allegedly destroyed or materials used to construct the batcher.”
In furtherance of the lower Court’s reservations about the 1st Respondent’s claim, the Court said that:
“Since she was not in lawful possession of the land upon which the batcher was built during the period, she cannot claim loss of profit. With regard to the 2nd defendant, there is no credible evidence before the Court to prove he was let into possession by anyone. He was a trespasser ab initio. On the claim for injunction, it is my considered view that since the counter-claimants have not proved they were in lawful possession, they are not entitled to the grant of a perpetual injunction nor are they entitled to rebuild the batchers/kiosks.”(Underlined by me).
The question is, if the Court below found there was no proof that the 1st and 2nd Defendants were in lawful possession of the premises in question and did not believe the evidence of the 1st Defendant, that the 1st Respondent did not call a single witness to prove her claim of damages to her property and was convinced that by the pictures tendered by C.W.2., there was nothing to prove that those items were destroyed on the 23rd or the 24th December, 2008, how then did it choose to believe the most unfounded and speculated evidence that the Appellant was responsible for the demolition of the batchers in the light of the clear and incontrovertible evidence of C.W.2, a Senior Staff of the Aba North Town Planning Authority who never minced words in his assertions that it was the Aba North Town Planning Authority that demolished the 1st Respondent’s batcher after serving her with a Demolition Notice. I think the Court below was enmeshed in a rhetorical problem and was uncontrollably and sentimentally driven rather than by reason. It is most unfortunate, as often said, that some people tend to be led by emotions and passions, not by reason, which impair them significantly.
The pictures did not show anything in the said batchers. The Respondents were adjudged trespassers yet the Court below awarded damages to the Respondents. It is trite law that “Only a person in possession of land at the material time can maintain an action for damages for trespass but when the issue is as to which of the two claimants has a better right to possession or occupation of a piece or parcel of land in dispute, the law will ascribe such possession and or occupation to the person who proves a better title thereto.
Equally, when two parties are on land claiming possession, trespass can only be at the suit of that party who can prove that title to the land is in him. Umeobi V. Otukoya (1978) 4 SC 33.” See Oriorio vs. Osain (2012) 16 NWLR Part 1327 page 527, per Adekeye, J.S.C. Also, in Amaechi vs. Amaechi, (2013) LPELR 20638 (CA) Owoade, J.C.A., had the following to say: “It is a settled principle of law that once an act of trespass is established, the trespasser is liable to damages. See Okunrinmeta vs. Agitan (2002) 2 NWLR (Pt. 752) 565”
This is because trespass to land is the wrongful invasion of the private property of another. It is trespass to land provided the entry into the land of another person is not authorized. Trespass to land is rooted in a right to exclusive possession of the land allegedly trespassed. See: Ndukuba vs. Izundu (2007) 1 NWLR (Pt. 1016) 432, Okoko vs. Dakolo (2006) 14 NWLR (Pt. 1000) 401, Yusuf vs. Keinsi (2005) 13 NWLR (Pt.943) 554, Oyadeji vs. Adenle (1993) 9 NWLR (Pt.316) 224.
It is therefore my considered view that the trial Court volte faced in the award of general damages to the Respondents and that occasioned a miscarriage of justice. Accordingly, the appeal is allowed and the judgment of the lower Court awarding the sum of N1,500,000.00 to the 1st and 2nd Respondents on their counter-claim is hereby set aside. The said counter-claim is hereby dismissed. I make no order as to costs.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my lord, T.N. ORJI-ABADUA, JCA, in the lead judgment, and allow the appeal.
The evidence of CW2, an officer Of the Aba Town Planning Authority, had absolved Appellant of involvement in the demolition of the batches built by the and 2nd Respondents. The evidence rather showed that the demolition was the act of Government, and done so in the exercise of lawful duties. Also the evidence of the 1st Respondent, who testified as DW1, on the issue rather earned a finding of doubt and improbability from the Court, as it clearly stated thus:
“l find it difficult to believe that the defendant saw that there were persons armed, intent on ejecting her and demolishing her batcher, yet she still left, therein, properties worth millions of Naira. It is also noted that she did not tender a single receipt, nor call a single witness to confirm that she actually had such property in the batcher or that they were destroyed… Her evidence falls short of strict proof of the property allegedly destroyed or materials used to construct the batcher.”
In furtherance of the lower Court’s reservations over the 1st Respondent’s claim, the Court said that since she was not in lawful possession of the land upon which the batcher was built during the period, she cannot claim loss of profit. The trial Court added:
With regard to the defendant, there is no credible evidence before the Court to prove he was let into possession by anyone. He was a trespasser ab initio. On the claim for injunction, it is my considered view that since the Counter- claimants have not proved they were in lawful possession, they are not entitled to the grant of a perpetual injunction nor are they entitled to rebuild the batchers/kiosks.
There was therefore, no basis for the award of damages of N1.5Million against the Appellant in favour of the Respondents, in the face of such a discredited evidence of the Respondents, and with clear evidence that the demolition was not the act of the Appellant.
I abide by the consequential Orders in the lead judgment.
Appearances:
D. O. Uruakpa, Esq.For Appellant(s)
K.S.C. Irobi, Esq.For Respondent(s)
