Dr. Joseph C. Okoye V. Dumez Nigeria Limited & Ors. (1985)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C. 

This appeal is against the judgment of the Court of Appeal, allowing by a majority of 2 to 1 the appeal of the present Respondents from the judgment of the High Court of the Rivers State holden at Port Harcourt. In the said High Court, the present Appellant as plaintiff had claimed against the present Respondents as defendants jointly and severally as follows:

“(a) A declaration of leasehold title to that certain piece of parcel of land known as and called ANINKPOKWUODU situate being and lying at Choba Ikwerre in the Rivers State of the Federal Republic of Nigeria property of the Plaintiff under the Deed of Lease dated the 6th day of February 1976 and registered as No. 95 at page 95 in Volume 1 of Lands Registry in the Office at Port Harcourt.

(b) N500,000.00 (five hundred thousand Naira) general damages for the acts of trespass committed by the Defendants on the said land without the leave or licence of the Plaintiff; and (c) Perpetual injunction restraining the Defendants by themselves, by their servants and agents or otherwise from committing further acts of trespass on the said land.”

After having heard the evidence, the trial Judge, Allagoa C. J., granted the declaration and injunction sought and awarded N100,000 as general damages for trespass against the Respondents. Being dissatisfied with the decision of the trial Judge, the Respondents appealed to the Court of Appeal which (Belgore and Olatawura JJ.C.A. while Aseme J.C.A. dissenting) allowed the appeal, set aside the decision of the High Court and ordered a verdict of dismissal of the plaintiff’s claim in respect of the order for injunction and the award of general damages. The Appellant has now appealed to this Court against the judgment of the Court of Appeal.

The facts of the case are simple. The families of Wegwu, Ohakwu and Odunwo are the owners of the land in dispute. The 1st Respondent was the principal contractor who won the contract for the construction of the East West Road from Patani to Opoko. The 2nd Respondent was sub-contractor. Under a Lease Agreement, exhibit E, made on 17th May, 1974 the Wegwu family leased 5.5 acres of their land to the 1st Respondent for a term of 12 months of a monthly rent of N10 per acre totalling N660 for the term. The Respondents needed the land for the storage of their construction materials, plants and equipment and for the excavation of laterite to be used for road construction. The 1st Respondent paid the N660 rents to the landlords, went into possession of the land and used it for the purposes for which it was rented. Between March to May 1974 the 1st Respondent paid a total sum of N528 as per exhibits D to the landlords as compensation for land excavation in respect of the burrow pit dug by the Respondents on the land. The Respondents also fenced part of the land on which they stored their equipment and plants.

At the expiry of the foregoing Agreement, the lease was renewed for a further term of 6 months on the same conditions with effect from 18th May 1975 to 17th November. 1975. The renewed Lease Agreement was admitted in evidence as exhibit F. The 1st Respondent paid the sum of N330 as rents and continued to be in possession. At the expiry of the renewed term, the 1st Respondent intimated to the landlords that it intended to exercise its right to renew the Agreement under the option clause of the Lease Agreement but the landlords refused to renew on the ground that they had already committed themselves to leasing the land to the Appellant.

The Respondents did not vacate the land. They continued to be in possession with their equipment and plants thereon. The evidence further shows that in February 1976 while the Respondents were still in possession, the families of Wegwu, Ohekwu and Odunwo granted to the Appellant a lease for a term of 99 years over a large area of land, to wit 18.662 acres, including the area rented by Wegwu family to the Respondents. The conveyance for the lease was registered as No. 95 at page 95 in Volume 1 of the Lands Registry. Port Harcourt. It was admitted in evidence as exhibit A.

In the course of his testimony. the Appellant admitted that while negotiating for the lease he went round the land in dispute and saw some vehicles thereon. He also saw a burrow pit and the area fenced with barbed wire. He also saw the agreement between Wegwu and the 1st Respondent. He said Wegwu told him that the 1st Respondent worked there and would be leaving. He testified that at the time he got the Deed of Conveyance the Respondents had packed out of the areas; that in April 1976 the landlords told him that they had seen several vehicles on the land and that the Respondents were excavating hundreds of tons of laterite and were completely destroying the topography of the area. As the result of that information, the Appellant said he went to the land whereon he saw several drums, vehicles, caterpillars and tanks were stored. He caused photographs of the plants and part of the land to be taken. The photographs were admitted in evidence as Exhibits C1 – C32. The learned trial judge simply relied on those photographs to find the Respondents liable for waste. He said in his judgment:

“In proof of damage done to the land the Plaintiff has tendered 32 copies of photographs showing excavation done by bulldozer and tractors and the occupation of the land by several tipper lorries belonging to the 1st and 2nd Defendants.”

In parenthesis, it may be observed that the photographer, PW1, did not describe or identify any damage he had photographed. He was not asked to say what were photographed. His evidence was short:

“I know the plaintiff. I was engaged by him in April 1976 to take some photograph of his land at Choba. I produce the negative of the photographs taken and also produce the copies of the photographs, tendered, no objection and marked C – C31.”

The trial judge did not believe the Appellant that the Respondents had vacated the land by the time the Appellant got his conveyance. He found the Respondents never left the land and one of the reasons stated by him for awarding punitive damages against the Respondents was their “recalcitrant attitude” for remaining on the land after the landlords had refused them the option to renew.

In his judgment Belgore J.C.A. held that, having regard to the right of the 1st Respondent to renew the lease under the option clause and despite the refusal of the landlords to accord to the Respondent that right, the Respondents had the right to remain on the land and were lawfully on it at the time the Appellant received his conveyance. Consequently, the Appellant’s lease was subject to the right of the Respondents over the land. The learned Justice found the Appellant did not prove that the Respondents had committed any waste of the land. The only excavations and burrow pit proved and for which the landlords were paid for had been dug by the Respondents before the Appellant acquired the lease of the land. For these reasons, the learned Justice concluded, the order for injunction and the award of damage for trespass could not stand. In his dealing with the issue as to whether the Respondents were liable for trespass. Olatatura J.C.A. stated as follows: