FAT-ANNY (NIG) LTD v. SABA (2020)

FAT-ANNY (NIG) LTD v. SABA

(2020)LCN/14668(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, October 12, 2020

CA/L/293M/10

RATIO

PLEADINGS: BINDINGNESS OF PLEADINGS ON PARTIES AND THE COURT

I have given ample consideration to the briefs of argument and the record of appeal containing the pleadings of the parties before the trial Court. This is because it is the law that both parties and the Court are bound by the pleadings and in particular, by the reliefs sought in the determination of the suit. The Court cannot validly go outside the pleadings to decide issues in dispute between the parties. In other words, the issues in dispute raised in the pleadings, as a necessity must be tied to the relief sought before the trial Court and by extension on appeal before this Court. See Oyewusi & Ors. Vs. Olagbami & Ors. (2018) LPELR-4490 (SC), Eagle Superpack Nig. Ltd. Vs. ACB Plc (2006) 19 NWLR (pt. 1013) 20 and Okafor Vs. Okafor & Ors. (2017) LPELR-43400 (CA). PER ALIYU, J.C.A.

TORT: NATURE OF TRESPASS

Trespass is a wrongful entry into the land or property that is in the actual or constructive possession of another. It is simply an unlawful interference with the right of possession, and a claim in trespass is rooted in possession. All plaintiff who alleges trespass has to prove is exclusive possession or at least the right to such possession. Indeed, even where the person in possession has no title to land, as in this case, he may still succeed where entry was made into the land or property without his consent. See Oyewusi & Ors. Vs. Olagbami & Ors. (2018) LPELR-44906 (SC), Shittu Vs. Egbeyemi & Ors. (1996) LPELR-3060 (SC) and Okafor Vs. Lemna Construction Co. Ltd & Anor. (2018) LPELR-46001 (CA). PER ALIYU, J.C.A.

TRESPASS: MEANING OF TRESPASS TO CHATTEL

Trespass can also be to chattels or goods where there is a wrongful interference, either intentionally or negligently with the goods that are in possession of another. Destruction of goods in the possession of the Respondent is certainly a form of trespass actionable in tort. See SPDC Vs. Okonedo (2007) LPELR-8198 (CA). PER ALIYU, J.C.A.
COURT: DUTY OF THE TRIAL JUDGE IN RELATION TO EVIDENCE

The duty of the trial Judge is to holistically assess the evidence placed before him and to ascribe probative value to it in order to determine the real question in controversy. Once this duty is carried out and it is shown why and how the decision was arrived at in the final determination of the dispute, the appellate Court will not interfere. See Ogbole & Anor. Vs. Okloho & Ors. (2015) LPELR- 41772 (CA), CPC Vs. INEC & Ors. (2008) 16 NWLR (pt. 1114) 427 (SC). PER ALIYU, J.C.A.

LAND LAW: WHETHER THE LANDLORD HAS A RIGHT TO INVADE PREMISES IN THE OCCUPATION OF A TENANT

In the case of Okafor Vs. Lemna Construction Co. Ltd & Anor. (2018) LPELR-46001 (CA), this Court held that a landlord has no right to invade premises in the occupation of a tenant or to cast his goods and belonging without the consent of the tenant. If he does, he has committed trespass because he has resorted to self-help and taking the law into his hands. It is unlawful for a landlord to take possession or re-possession of premises without following due process. See also the case of Akinkugbe Vs. Ewulum Holdings (Nig.) Ltd & anor (supra) where the Apex Court held per Aderemi, J.S.C. that:
A landlord who resorts to self-help in a bid to recover possession of the premises tenanted by him runs foul of the law and he is liable in damages. PER ALIYU, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

FAT-ANNY NIGERIA LTD APPELANT(S)

And

ALHAJA SIDIKAT SABA RESPONDENT(S)

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State (trial Court) delivered on the 4th December 2009 in respect of suit No: LD/1894/99, filed by the Respondent who was the claimant, against the Appellant being the defendant at the trial Court.

The suit was commenced via a writ of summons accompanied with an amended statement of claim which disclosed the facts that gave rise to the suit as shown in pages 3 to 8 of the record of appeal. The Respondent claimed to be a tenant in actual possession of a shop located at No. 27 Shitta Street, otherwise described as 1A Saba Court Lagos. The shop was let to her by Alhaji Momodu Aminu Akindele, the Chief Saba of Lagos and the titular head of the Saba Chieftaincy Family. She claimed that she used to pay rents on the shop to one Mr. A. Ayodele Saba son of Chief Saba upon the latter’s instructions and she was issued receipts of payments of rents. She stated that she used the shop to sell assorted soft drinks and also acted as a bailee to some traders in the vicinity of her shop who kept their respective wares in the shop for which

they pay her fees. She remained in possession of the shop and was not served with any notice to quit the shop by the Saba family who were her landlord being the owners of the land/shop or for recovery of possession of the shop.

On the 16th January 1999, the defendant, a limited liability company with its corporate head office at 9A Elegbata Street, Lagos caused its agents to destroy the entire structure along with all the wares and effects contained therein belonging to the Respondent and the traders that housed their wares with her. The next day, the Appellant’s agents dug foundation and commenced building a structure on the place where the Respondent’s shop used to be. The Respondent caused photographs of the destroyed shop to be taken, which she relied on at the trial along with the receipt for payment of rent for the shop. Upon these facts, the Respondent claimed against the Appellant:
The sum of N1.5 Million being damages for trespass to the claimant’s shop at No. 27, Shitta Street (otherwise known as 1A Saba Court), Lagos, Lagos State and to the Plaintiff’s stock in trade goods and effects in the said shop on or about

the 16th of January 1999 by the Defendant their servants or agents.

The Appellant (being the defendant) denied the claim of the Respondent in terms of its amended statement of defence filed on the 17th February 2004. It stated, inter alia, that it has nothing to do with the shop described by the Respondent, but it entered into a property development agreement with the owners of the land, the Saba Chieftaincy family, (Respondent’s landlords), which land was situated and lying at Saba Court, and was partly occupied with dilapidated structures and partly open (vacant). That before the Appellant entered into the agreement dated 29th January 1999, it made enquiry on the land and reached the conclusion that indeed the land belonged to the Saba Chieftaincy family, though various houses owners including the descendants and relatives of the Saba family within the vicinity of the land used its open space for various purpose.

It stated further that as at the time it took possession of the land for the purpose of developing it into a modern structure, the dilapidated structures together with open spaces on the land were not occupied by the Respondent or any

tenant at all, but mainly occupied by vagabonds and miscreants. The Appellant stated further that the Respondent and Late head of Saba chieftaincy family were husband and wife and therefore the question of tenancy claimed by the Respondent did not arise.

During the trial, the Respondent being the claimant testified and called six other witnesses including the traders who used to keep their wares in her shop, to prove her case. On its part, the Appellant called two witnesses in defence of the claim. Parties also tendered documents in support of their respective cases. After hearing witnesses, counsel on both sides filed written final addresses and the case was subsequently adjourned for judgment.

In his judgment, the learned trial Judge found and held that the Respondent proved her claim against the Appellant and entered judgment in her favour against the Appellant in the following terms:
1. In favour of the claimant against the defendant in the sum of N 1, 226, 800 being damages for trespass to the claimant shop at 27 Shitta Street (otherwise known as 1A Saba Court, Lagos).
2. Post judgment interest shall be on the said sum at 15% per annum

from the date hereof until final liquidation of the judgment debt.

Aggrieved by the judgment of the lower Court, the Appellant filed notice of appeal on the 15th January 2010 relying on six (6) grounds of appeal to pray this Court to set aside that judgment in its entirety. The record of appeal was transmitted on the 11th April 2011, and the Appellant’s brief of argument settled by Layi Arikewuyo Esq. was filed on the 15th November 2011, but deemed properly filed on the 25th January 2019. The Appellant submitted the following five (5) issues for the determination of this appeal:
1. Whether having regards to the statement of claim and the reliefs sought, the lower Court was right in holding that the claimant/Respondent has right of action to make monetary claim on goods of 3rd parties without evidence of power of attorney or mandate of the said 3rd parties. (Ground 3 of the Notice of Appeal).
2. Did the lower Court properly assess the import of Exhibit C6 (the photographs) in its determination of the matter and was it right to rely on three of the photographs and held that “the other two did not show anything in particular”

in sharp contrast to the oral evidence before the lower Court. (Ground 1 of the Notice of Appeal).
3. Whether the Respondent has discharged the burden of proof of the criminal allegation made against the defendant/Appellant as required by Section 138(1) of the Evidence Act 2004. (Ground 6 of the Notice of Appeal).
4. Whether the award of sum of N1, 226, 88 as damages is perverse having regard to the conclusion of the learned trial Judge that there is nothing placed before him to support the purchase of the goods allegedly lost. (Ground 4 of the Notice of Appeal).
5. Whether the identity of the shop and the owner of the shop allegedly trespassed upon were made an issue and whether the learned trial Judge was not in error when she held that the Defendant/Appellant unlawfully evicted the Respondent despite the admission of the Respondent that Saba Chieftaincy family own the shop and took it from her. (Grounds 2 and 5 of the Notice of Appeal.

The Respondent’s brief of argument, in opposition to the appeal was settled by S. B. Joseph Esq. and filed on the 13th February 2019 and he proposed a sole issue for the determination of this appeal

thus:
Whether having regard to the Claimant’s pleadings and evidence adduced thereof, the trial Court was right in awarding the sum of N1, 226, 800. 00 (one million, two hundred and twenty-six thousand, eight hundred Naira only) as damages for trespass in favour of the claimant against the Defendant, with post judgment interest on the said sum at the rate of 15% per annum from the date thereof until final liquidation of the judgment debt.

SUBMISSIONS OF COUNSEL
The learned Appellant’s counsel argued issue one from page 8 to 12 of the Appellant’s brief mainly that the Respondent had no locus standi to sue and claim damages on behalf of the other traders whom she alleged kept their wares in her shop for a fee, without a power of attorney or seeking leave to sue in representative capacity. He referred us to Section 272(1) of the Constitution of Nigeria, 1999 as amended, which empowers the lower Court to hear and determine disputes civil disputes between parties inter se and submitted that a claim premised on the apprehension of injury to other non-parties to the proceedings would not warrant a locus standi to confer jurisdiction

to the lower Court.

He further argued that the power of Court under Section 6(6) of the Constitution is limited to deciding and pronouncing a judgment only between parties who come before the Court with their disputes. That in this case, in order for the Respondent to invoke the judicial powers of the lower Court on the claim in respect of the 3rd parties as she did in her amended statement of claim, she must show that the subject of litigation is personal to her alone.

He argued that keeping of stock in trade with the Respondent for reward cannot constitute the right of action on her to make a claim for loss as she did on behalf of the traders/owners. That she can only do that by complying with the provisions of Order 4 Rule 2 and Order 13 Rule 12 and sue the Appellant in a representative capacity. He submitted that from the pleadings of the Respondent, only goods worth N334, 550 were personal to her while others belonged to the named traders, who were not parties to the suit. The learned counsel relied on the cases of Oloriode Vs. Oyebi (1984) 1 SCNLR 390 and Okafor Vs. Nnaife (1973) 3 SC 85 to submit that it is an elementary procedure (rule?) that in

prosecuting civil claims, all parties necessary must come before the Court for the Court to have jurisdiction to grant the reliefs sought.

Learned counsel referred to the evidence of the Respondent as CW5 under cross-examination at page 84 of the record wherein she admitted that some goods in the shop belonged to Taye, Adebisi, Sanya etc, who did not give her a power of attorney or a letter of authority to sue on their behalf. It was the contention of the learned Appellant’s counsel that the trial Judge fell in to error when he held that since the Appellant was a bailee to the named traders, she would be liable to the traders for the loss of their chattels entrusted to her and it therefore follows that the right to sue for the recovery of the chattels must also inure in her to recover the damages for the loss of the goods. It was contended that the learned trial Judge fell into this error based on his misconception of the case put up by the parties, leading him to misapply the case of Asafa Foods Factory Vs. Alraine Nig. Ltd (2002) 12 NWLR (pt. 781) 353 at 359. Learned counsel contended that the facts of this case are distinguishable with those of

the case of Asafa Foods Factory Vs. Alraine Nig. Ltd (supra) because in Asafa’s case, the chattels belonged to the company which sued in its capacity as the bailee against the 1st and 2nd defendants in whom the chattels were entrusted for care. But in this case, the case was not between a bailee and the bailor. He argued that this misconception of the learned trial Judge is enough for this Court to set aside the judgment. He further pointed out that the learned trial Judge was aware that there were two sets of claims before him because in his finding in page 153 of the record, he stated that:
The grand total of the goods is stated to be N1, 226, 800, N334, 550 out of which purportedly belonged to the claimant.

It was submitted that from the above finding of the learned trial Judge, it is apparent that the award of the sum of N1, 226, 800 granted by the learned trial Judge was meant to compensate both the Respondent as the party to the suit and for the benefit of the 3rd parties not joined in the suit and who she admitted that they did not give her any power of attorney or mandate to make such claims. He relied on the

case of Afolabi Vs. Adekunle (1983) 2 SCNLR 147 in urging us to set aside the award made by the trial Court in favour 3rd parties not before it and resolve issue one in favour of the Appellant.

The learned Respondent’s counsel replied to the argument of the Appellant under issue one in paragraphs 4.14 to 4.17, page 7 of the Respondent’s brief. He submitted that the argument of the learned Appellant’s counsel to the effect that in presenting a civil claim all parties necessary must be before the Court so as to give the Court jurisdiction to grant the relief sought, and the only exception is suits commenced on representative capacity or by a power of attorney is erroneous and misconceived. He relied on the English case of Buxton Vs. Baughan (1834) 6 CAP 676 to submit that the contract of bailment between the Respondent and CW2, CW3, CW4 AND CW6 was for reward as shown in paragraphs 4 and 6 of the amended statement of claim and paragraphs 9, 20 and 21 of the Respondent’s statement on oath. That since the contract of bailment between the Respondent and the said witnesses was consensual and all the conditions necessary for the contract of bailment at

inception were in place, the Respondent (CW5) needed not sue in a representative capacity or by a power of attorney from the owners of the goods before instituting the action for trespass and damages. Learned Respondent’s counsel urged us to resolve the Appellant’s issue one against the Appellant.

On the Appellant’s issue 2, learned Appellant’s counsel referred to the oral evidence given by the Respondent and her witnesses which he said painted a picture of riotous scene that prevented them from accessing the scene of the alleged incidence that occurred on the 16th January 1999 to salvage any of their goods. He submitted that the learned trial Judge failed to evaluate the photographs of the said scene admitted as exhibit C6 to assess the oral evidence given by the witnesses. He contended that exhibits C6 (five photographs) must each be read together to assess the oral evidence led, but that the learned trial Judge evaluated only three out of the five photographs, and failed to evaluate the other two. He argued that if the learned trial Judge had evaluated the remaining two photographs, he would have reached a different conclusion

because the riotous scene painted by the Respondent and her witnesses were not reflected in the photographs.

He also submitted that the finding of the learned trial Judge that the three photographs showed a roof being removed was not supported by the evidence of the Respondent (CW5). He argued that there was no certainty of the identity of the shop or that the Appellant sent the people shown on the rooftop of the shop in the photographs. Since the parties made the identity of the shop an issue, the learned trial Judge needed to resolve same, but that all the findings made by him were not supported by evidence. He relied on the cases of Dawodu Vs. Majolagbe (2001) 3 NWLR (pt. 703) 234, Okhuarobo Vs. Aigbe (2002) 9 NWLR (pt. 771) 29 in urging us to re-evaluate the oral evidence on record and hold that the Respondent did not discharge the onus of proof to enable her succeed in her claim that her shops and chattels were destroyed by the Appellant and to resolve issue two in favour of the Appellant.

In reply to the argument of the Appellant on its issue two, the Respondent referred to the evidence of CW1 the son of the Respondent and CW2 the photographer who

made exhibit ‘C6’, and argued that their evidence was not challenged under cross-examination. As such, it is out of place for the Appellant to complain on their evidence having failed to cross-examine the witnesses during the trial. He relied on the case of Mogaji & Ors. Vs. Odofin & Ors. (1978) 4 SC 91 at 93 to submit that in civil cases the correct approach is for the trial Judge to put the evidence of both the Plaintiff and the defendant on either side of an imaginary scale and weigh them together. The Court was urged to hold that the findings of the trial Court on exhibit C6 was rightly arrived at and resolve issue 2 against the Appellant.

With regards to the Appellant’s issue 3, the learned counsel submitted that from the facts pleaded by the Respondent, particularly in paragraph 5 of her statement of claim, it was obvious that criminal offence of malicious destruction of her shop, contrary to Section 451 of the Criminal Code and punishable with 2 years’ imprisonment was alleged against the Appellant. He relied on the case of Akinkugbe Vs. Ewulum Holdings Nig. Ltd & ors. (2008) 4 S.C. 125 at 145 to submit that if a

commission of crime by a party in a civil case is directly in issue, the party alleging must prove it beyond reasonable doubt. He contended that none of the Respondent’s seven witnesses “frontally” address the issue of crime alleged as required by law. In fact, all the witnesses who testified on the destruction of their propertied admitted under cross-examination that they did not report the matter to the police. He said that this particular issue was presented to the trial Court under issue 4 for its determination but the learned trial Judge abandoned the issues submitted to him by the parties and formulated 3 different issues upon which he determined the case. He submitted that had the learned trial Judge not abdicated his obligation as an arbiter, he would have had no difficulties in finding that the Respondent action was predicated on criminal conduct, which by law must be proved beyond reasonable doubt. He urged the Court to resolve issue 3 in favour of the Appellant.

Responding to the argument of the Appellant under its issue 3, the Respondent’s learned counsel submitted in paragraph 4.23 of the Respondent’s brief that

the question of discharging a burden of proof beyond reasonable doubt does not arise because the suit was purely based on tort. He conceded that the Respondent made what may be termed as an allegation of a crime in the destruction of her shop in the civil proceeding, but that she did not make the commission of crime of destruction of her shop the basis of her case. He submitted further that where averments alleging crime are severable and if after such severance, there still remains in the pleadings and evidence sufficient materials devoid of such criminal averments on which the plaintiff can succeed in the claim, then the burden of proof of such non-criminal averments is on the balance of probability. He relied on the cases of Nwobodo Vs. Onoh & ors. (1984) 1 SC 40 at 42 and Omoboriowo & Anor. Vs. Chief Ajasin (1984) 1 SC 216, for support.

He further argued that though paragraph 5 of the Respondent’s statement of claim she made allegations of crime, it can be severed and she could still succeed in her claims of trespass because her case disclosed the main ingredient of trespass of duty of care owed to her and the breach thereof. In the

circumstance, learned counsel submitted that the case of Lawal Vs. Adebayo (2010) 5 WRN 96 cited by the Appellant is inappropriate. He urged the Court to resolve issue 3 against the Appellant.

On the Appellant’s issue 4, learned counsel referred to the finding and conclusion reached by the learned trial Judge in page 156 of the record to the effect that despite the fact that there was no evidence of purchase of the goods allegedly destroyed with the Respondent’s shop, the scale of evidence tips in favour of the Respondent. He submitted that even assuming that the claim of N1, 226, 800 was a special damage for loss; it requires strict proof on credible and ascertainable facts. He argued that it could be safely concluded that the award of this sum to the Respondent was in the category of special damages though not expressly stated in the judgment.

He drew the Court’s attention to the defence put up by the Appellant before the trial Court, to the effect that the issue of loss emanated from the alleged criminal act of the Appellant and it required proof beyond reasonable doubt. He contended that the lower Court erroneously based its judgment

on balance of probability in a civil action when crime was the main issue before it. He further submitted that though an appellate Court will ordinarily not interfere with the award of damages by a lower Court unless where a wrong principle of law was relied upon in making the award. However, in this case, it is apparent that the learned trial Judge evaluated the evidence of the commission of crime on preponderance of evidence contrary to the all known established principle of law. He relied once again on the case of Akinkugbe Vs. Ewulum Holidngs Nig. Ltd (supra), where the Apex Court held inter alia that once the lower Court failed to apply the right principle of law as to the standard of proof and strict proof before making an award, the appellate Court is in law entitled to review the award and if found wanting make appropriate award in the circumstances of the case. He urged the Court to resolve issue 4 in favour of the Appellant.

In response to the argument of the Appellant on its issue 4, the Respondent’s learned counsel submitted in paragraph 4.10 of the Respondent’s brief that the Respondent having established by credible and

uncontroverted evidence that she was in lawful possession of shop 27 as a tenant and that she used the said shop for the purpose of bailment of other traders’ goods stored therein, she was rightly entitled to judgment in the sum she claimed as damages for trespass against the Appellant. Learned counsel contended that it follows that the Appellant’s issue 4 must be resolved against the Appellant and we were urged upon to do so.

In arguing the Appellant’s issue 5, its learned counsel submitted that the case of the Respondent before the trial Court was that the shop in issue was let to her by the late head of Saba chieftaincy family and that the Appellant forcefully entered and destroyed it. On the other hand, the defence of the Appellant to the claim before the trial Court was that it was given vacant possession of the dilapidated structure by the same Saba chieftaincy family who are the landlords of the Respondent. He contended that the evidence of the Respondent’s witnesses was at variance with the facts she pleaded while the evidence of DW1 and DW2 supported the case of the Appellant to the effect that the Respondent did not have

exclusive possession of the shop as at the time the Appellant commenced construction. That the Respondent did not establish lawful and exclusive possession to qualify her as a lawful tenant, having admitted that the shop belonged to the Saba family who has taken possession of it apparently before the Appellant came into the picture.

He further submitted that in the face of the evidence before the trial Court it was wrong to speculate that the Saba family was the claimant’s landlords who ought to employ lawful method in recovering the shop from the Respondent, because the issuance of valid notice to quit was never part of the pleadings or evidence before the trial Court. Learned counsel submitted that the learned trial Judge was in error to raise the issue of quit notice suo moto and resolved it without inviting the parties to address it. He relied on the case of Chief Elugbe Vs. Chief Emimigbe & Ors. (2004) 11-12 NWLR and others to argue that the reliance of the learned trial Judge on the provisions of Sections 14 to 16 of the Rent Control and Recovery of Premises Law of Lagos State by the trial Court was a judicial indiscretion to help the case of

the Respondent. He urged upon us to resolve issue 5 in favour of the Appellant.

In his response to the argument of counsel on issue 5, learned Respondent’s counsel referred to the pleadings and evidence led by the Respondent before the trial Court and submitted that she has proved, by credible evidence, that she was in actual possession of the shop, and that the identity of the shop was not in question before the trial Court, and also, the issues of ownership and possession of the shop were not in contention between the parties before the trial Court. He therefore urged the Court to disregard the argument of the Appellant and to resolve its issue 5 against the Appellant.

RESOLUTION
I have given ample consideration to the briefs of argument and the record of appeal containing the pleadings of the parties before the trial Court. This is because it is the law that both parties and the Court are bound by the pleadings and in particular, by the reliefs sought in the determination of the suit. The Court cannot validly go outside the pleadings to decide issues in dispute between the parties. In other words, the issues in dispute raised in the

pleadings, as a necessity must be tied to the relief sought before the trial Court and by extension on appeal before this Court. See Oyewusi & Ors. Vs. Olagbami & Ors. (2018) LPELR-4490 (SC), Eagle Superpack Nig. Ltd. Vs. ACB Plc (2006) 19 NWLR (pt. 1013) 20 and Okafor Vs. Okafor & Ors. (2017) LPELR-43400 (CA).

As noted earlier, the Respondent sought a sole relief against the Appellant, i.e. for award of “the sum of N1.5million being damages for trespass” and the destruction of her stock in trade goods and effects in the said shop leased to her by the Saba Chieftaincy family and which she was in actual possession of when the Appellant trespassed and destroyed it along with the properties kept therein. Therefore, I will determine this appeal within the narrow compass of the relief claimed by the Respondent and for that reason I am of the view that the lone issue proposed by the Respondent adequately captured the complaints of the Appellant and I adopt it to guide me in the determination of the correctness or otherwise of the decision of the trial Court appealed against.

The first grouse of the Appellant against the judgment of

the trial Court is that the Respondent has no right of action to make monetary claim on behalf of the traders who are not parties to the suit. The Appellant’s learned counsel contended that the Respondent’s claim for damages was made on behalf of the traders who kept their wares in the shop without their authorization. This complaint stemmed from the Respondent’s pleading in which she listed the particulars and values of wares and effects that were destroyed along with the shop, which properties belonged to her and to the other traders who kept their wares therein. See page 5 to 8 of the record of appeal. In answer to this pleading the Appellant denied the existence of the shop at all and in paragraph 15 of its statement of defence copied at page 10 of the record, it stated that:
The defendant denies destroying any wares either of the plaintiff or any other person(s) mentioned in the Amended statement of claim.

These pleadings show that the issue in controversy is the trespass to the shop and the consequential destruction and losses/damages the Respondent claimed to have suffered as a result. The evidence in chief of the Respondent

is a replica of her amended statement of claim and again, she listed the items destroyed along with her shop in paragraphs 21 thereof. In paragraph 22 of her statement on oath, the Respondent stated:
That by reason of the premises, I have been wrongfully deprived of my stock in trade, goods and effects and prevented from carrying on my business as a business woman and bailee. I have also been deprived of the profits which I would otherwise have made and I have thereby suffered loss and damage.

Again, she itemized the losses and damages she suffered which total she stated amounted to N1, 226, 800, and concluded her evidence by claiming in paragraph 23, for N1.5million against the Appellant as damages for trespass and the damages to her goods and effects. The traders that kept their wares in the shop testified and listed the items they kept with the Respondent; all in support of the Respondent’s case of trespass against the Appellant and the losses she suffered rather than a claim for themselves against the Appellant. The learned trial Judge rightly found in page 149 of the record of appeal that the evidence of the Respondent in support of her

claim was corroborated by the evidence of the four traders who “all stated that the claimant is the owner of the shop at 27 Shitta Street Lagos” where she kept their wares for them for bailment for which they paid her.

From these facts and evidence on record, it is clear that the claim of the Respondent against the Appellant is for trespass. Trespass is a wrongful entry into the land or property that is in the actual or constructive possession of another. It is simply an unlawful interference with the right of possession, and a claim in trespass is rooted in possession. All plaintiff who alleges trespass has to prove is exclusive possession or at least the right to such possession. Indeed, even where the person in possession has no title to land, as in this case, he may still succeed where entry was made into the land or property without his consent. See Oyewusi & Ors. Vs. Olagbami & Ors. (2018) LPELR-44906 (SC), Shittu Vs. Egbeyemi & Ors. (1996) LPELR-3060 (SC) and Okafor Vs. Lemna Construction Co. Ltd & Anor. (2018) LPELR-46001 (CA).

There is nowhere in the pleadings and evidence of the Respondent she claimed that she

was making a claim on behalf of the traders, neither were they named as parties to the suit. The listing of her goods in trade and those of the traders who testify was in further support of the relief sought, which is for damages for trespass. Trespass can also be to chattels or goods where there is a wrongful interference, either intentionally or negligently with the goods that are in possession of another. Destruction of goods in the possession of the Respondent is certainly a form of trespass actionable in tort. See SPDC Vs. Okonedo (2007) LPELR-8198 (CA).
Therefore since evidence on record showed that the goods of the traders were in the possession of the Respondent as a bailee and that she was in lawful possession of them, she can claim damages for trespass both to the shop in which she was a tenant in lawful possession and the goods of the traders also in her possession as a bailee. She has the legal standing and the competence to sue for trespass contrary to the contention of the Appellant.

In the circumstance, the argument of the Appellant’s leaned counsel contending that she made a claim on behalf of the traders is not supported by the

pleadings and evidence on record. It is speculative being an attempt to change or rewrite the claim/relief sought by the respondent and the real question in controversy between the parties. The argument is discountenanced.

The Appellant also complained that the identity of the shop that the Respondent claimed the Appellant trespassed into was not established before the trial Court. Again, I will refer to the pleadings of the parties and the evidence called in support to resolve this complaint. The Respondent clearly pleaded that the shop trespassed into by the Appellant was located at 27 Shitta Street otherwise known as 1A Saka Court Lagos, Lagos State. In all the testimonies of the Respondent’s witnesses, the same location of the shop was stated. The Appellant in denying the existence of the shop claimed that the property it entered into an agreement to develop belonged to the Saba chieftaincy family and that it was made up of dilapidated structure but not a shop. The learned trial Judge considered the evidence called by the parties, and in particular, the agreement between the Saba Chieftaincy family and the Appellant. It was clearly stipulated in

the agreement (relied upon by the Appellant during the trial) that the Respondent was to be allocated a shop “as a replacement of the previous one used by her”. This documentary evidence stating that there was a shop the Respondent used is the confirmation of the existence of the shop. Similarly, DW2, the current head of the Saba family testified that indeed the Respondent was occupying the old structure in the land that she called a shop. See his witness deposition in page 67 to 70 of the record.

It therefore does not lie in the Appellant to question/dispute the existence or identity of the shop that its own witnesses’ evidence confirmed existed. The complaint of the Appellant regarding the identity of the shop is baseless. I agree totally with the holding of the learned trial Judge in page 151 of the record of appeal to the effect that the evidence of the Appellant (defendant) instead of controverting the evidence of the Respondent on her being in possession of the shop actually corroborated her evidence. There is no merit in this argument of the Appellant and it is disregarded.

Another grouse of the Appellant in this appeal is that

the learned trial Judge failed to properly evaluate the Respondent’s photographs of the scene of trespass and destruction of the shop admitted during the trial as exhibit ‘C6’ vis-à-vis the oral evidence of her witnesses. The learned counsel argued that the trial Judge only evaluated three out of the five photographs of the destruction of the shop. In his judgment the learned trial Judge held:
The Court finds upon evaluation of Exhibit C6, the photographs taken on the day of demolition, 16th January 1999, that three of the 5 photographs showed that the roof of the structure was being removed whilst the other two did not show anything in particular

The Appellant’s leaned counsel contention against the above holding is that the riotous scene of the destruction painted by the Respondent’s witnesses that prevented them from having access to the shop was not captured in the photographs.

However, I observe from the record that all the witnesses of the Respondent testified that the shop was destroyed on the 16th January 1999 and the Respondent could not access the shop to salvage her properties kept in the shop. In

particular, the 1st CW, Sikiru Gbadesere Agbede Saba and 2nd CW Agbola Famuyide both stated in their evidence that they tried to take photographs of the destruction but were prevented by force. In particular, the 2nd CW stated in paragraph 6 of his statement on oath at page 25 of the record that:
That in accordance with Mr. Saba instruction, I commenced to take snapshots and after having taken five snapshots, persons whom I imagined did not want the snapshots taken came and prevented me by force from taking the snapshots.

There was no mention of riotous scene referred to by the Appellant in the evidence of the 1st and 2nd CWs. Their evidence was that they were only able to take five snapshots of the site of the trespass and the destruction of the shop in issue before they were prevented from further capturing the scene. The duty of the trial Judge is to holistically assess the evidence placed before him and to ascribe probative value to it in order to determine the real question in controversy. Once this duty is carried out and it is shown why and how the decision was arrived at in the final determination of the dispute, the appellate Court will not

interfere. See Ogbole & Anor. Vs. Okloho & Ors. (2015) LPELR- 41772 (CA), CPC Vs. INEC & Ors. (2008) 16 NWLR (pt. 1114) 427 (SC).

In this case, the learned trial judge examined the 5 photographs and found that three of them showed the roof of the structure being removed while the remaining two had nothing on them. In the light of the evidence of the 1st and 2nd CWs stating that they were prevented from taking more snapshots of the destruction, there is a logical explanation why only three photographs were clear. In any event, the photographs were tendered to corroborate the evidence of the Respondent that the Appellant trespassed into her shop and destroyed it. I am unable to fault the evaluation of the photographs by the learned trial Judge and the argument of the learned Appellant’s counsel did not persuade me to hold otherwise.

The Appellant also contended that the claims of the Respondent before the trial Court was for malicious destruction of her shop and properties contained therein, which are criminal allegation that required her to prove beyond reasonable doubt. Learned counsel for the Appellant argued that none of the

Respondent’s witnesses addressed this issue of crime and the learned trial Judge failed to address it either. The learned counsel referred us to the case of Akinkugbe Vs. Ewulum Holdings (Nig.) Ltd & Anor. (supra) and can also be found in (2008) LPELR-346 (SC), where Aderemi, JSC speaking for the Apex Court held at page 18-19, F-A that:
The law is sacrosanct that if the commission of a crime by a party to a civil case is directly in issue, the party must prove it beyond reasonable doubt and such crime must be set down specifically in his pleading.

The learned Appellant’s counsel drew our attention to paragraph 5 of the amended statement of claim in page 4 of the record of appeal where the Respondent pleaded that the Appellant forcefully entered her shop and destroyed it and dug a foundation and commenced building a structure on it. The Appellant replied to the allegations of the Respondent in paragraph 12 of its amended statement of defence (page 10 of the record) wherein it stated that it did not take possession of the land by force, but that the Saba chieftaincy family who are the owners and the landlords of the Respondent handed

the vacant possession to it for building of a modern structure. I have also considered the evidence called by the Respondent showing that she was a tenant in lawful possession of the shop since 1982 as evidenced by the receipt of payment issued to her for that year. I have already found supra that the claim of the Respondent before the trial Court was for trespass both to her shop and the properties contained therein. The evidence showed on record that the action of the Appellant effectively amounted to the Saba family forcefully taking re-possession of the shop tenanted to her and the consequential damages she suffered.

In fact, even assuming the case of the Respondent was criminal, (and I am sure it is not); it was not the central issue in contention. The evidence of the witnesses has established the destruction of her shop by the Appellant was a result of the trespass and also it has been proved beyond reasonable doubt by the evidence on record. I had noted earlier that the agreement entered into by the Appellant and the 1st DW, the head of the Saba family confirmed the existence of the shop occupied by the Appellant, which established the fact that

she was in actual possession of the shop. The 1st DW omitted to state whether the Respondent was notified of the re-possession of the shop by the family (her landlords) before letting the Appellant to trespass into the structure containing the shop.
In the case of Okafor Vs. Lemna Construction Co. Ltd & Anor. (2018) LPELR-46001 (CA), this Court held that a landlord has no right to invade premises in the occupation of a tenant or to cast his goods and belonging without the consent of the tenant. If he does, he has committed trespass because he has resorted to self-help and taking the law into his hands. It is unlawful for a landlord to take possession or re-possession of premises without following due process. See also the case of Akinkugbe Vs. Ewulum Holdings (Nig.) Ltd & anor (supra) where the Apex Court held per Aderemi, J.S.C. that:
A landlord who resorts to self-help in a bid to recover possession of the premises tenanted by him runs foul of the law and he is liable in damages.
The learned trial Judge was therefore right to award damages for trespass. I am not carried along the argument of the learned Appellant’s counsel that the

award was made in favour of the traders whose wares were destroyed and who were not parties to the suit. In view of my holding supra that the Respondent has the locus standi to claim in tort for the trespass to her shop and to the goods and effects kept in her possession regardless of who owned them. As stated earlier also, trespass is mainly concerned with possession. In the final analysis I answer the lone issue in the affirmative and resolved it against the Appellant. I find no merit in this appeal and I dismiss it.

Consequently, I affirm the judgment of the High Court of Lagos State in respect of suit No. LD/894/1999 delivered on the 4th December 2009. I award the cost of One Hundred Thousand Naira only (N100, 000) in favour of the Respondent against the Appellant.

JOSEPH SHAGBAOR IKYEGH J.C.A: I agree with the lucid judgment prepared by my learned brother, Balkisu Bello Aliyu J.C.A., with nothing useful to add.

OBANDE FESTUS OGBUINYA J.C.A: I had the singular privilege to read, in draft, the succinct and erudite leading judgment delivered by my learned brother: BALKISU BELLO ALIYU, JCA. I endorse, in toto, the reasoning and

conclusion in it. l, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in it.

Appearances:

CYRIL EBEH ESQ. For Appellant(s)

B. JOSEPH ESQ. For Respondent(s)