Oshinjirin & Ors V. Alhaji Elias & Ors (1970)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

The appellants are six of the defendants in an action in which the respondents as plaintiffs had claimed as follows:-

“The plaintiffs claim against the defendants jointly and severally ‘a350,000 being special and general damages for wrongfully entering the plaintiff’s bus terminal at Agege Motor Park No. 1 on the 21st of October, 1963 and pulling down two culverts damaging other parts of the premises and further preventing the plaintiffs from using a portion of the premises thereafter.

The plaintiffs also ask for an injunction to restrain the defendants, their servants, and or agents from continuing or repeating the trespass complained for.”

The 1st defendant in the court below was the Agege District Council and the 2nd defendant, one H. O. Dairo, was the secretary of the Council. As against both the 1st and 2nd defendants in the court below the plaintiffs’ claims were dismissed on grounds connected with the Local Government Law Cap. 65 (Laws of Western Nigeria, 1959) and the notices prescribed by section 247 of that Law.

The appellants, to be hereinafter referred to as defendants, were found liable on the claims before the court and judgement was entered against them in the words of the learned trial judge as follows:-

“There will therefore be judgement for the plaintiffs against the 3rd-5th defendants jointly and severally for the total sum of ‘a35, 103 with costs assessed at 500 guineas.

The case has lasted more than three years during which a lot of expenses have been incurred by the plaintiffs who have been compelled to engage new counsel due to circumstances. In fact, this is a second hearing of the case.

There will also be an order for perpetual injunction against the 3rd-5th defendants, their servants and/or agents, restraining them or any of them from further trespass into the said land.”

It is against this judgement that the defendants have appealed to this Court. A number of grounds of appeal were filed and argued on behalf of the defendants. In the course of argument, however, we indicated to learned counsel for the defendants that we were convinced that the learned trial judge came to the right conclusion on the issue of liability and so we do not desire in this judgement to say much on that issue.

The learned trial judge carefully considered the defences put forward by the defendants. He came to the conclusion, not without justification, that the defendants were liable for “forcibly entering upon the land in dispute”. He disbelieved “the defendants that they took possession of the land peacefully as they pretended to do” and thereafter proceeded to deal with the measure of damages.

We think that the evidence accepted by the learned trial judge does not abundantly justify his conclusions and that he was right in concluding that the defendants were liable.

With respect to damages it was argued by learned counsel for the defendants that:-
(i) The special damages awarded were not strictly proved;
(ii) The learned trial judge wrongly took into consideration matters
which were not relevent or supported by evidence as a basis for his assessment of general damages; and
(iii) in any case it was wrong to award any general damages in favour of the plaintiffs in as much as the plaintiffs had already been compensated for all their loss by way of special damages.

Undoubtedly the rule that special damages must be strictly proved applies to cases of tort. In effect the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed.