John O. Imona-russel Vs. Niger Construction Ltd. (1987)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C. 

On the 7th April,1987 this appeal was allowed in part. Special damages assessed at N7,000.00 together with N300.00 costs were awarded in favour of the Appellant and we reserved our reasons for the decision till today. I now give reasons.

The Appellant instituted an action in the Bendel State High Court, holden at Auchi, in which he claimed against the Respondent as follows, in paragraph 14 of his amended statement of claim –

“(a) Special damages for trespass….N22.633.00

(b) General damages for trespass…..N77,367.00

TOTAL N100,000.00

(c) Or, in the alternative, an Order of Court that the Plaintiff is, in any event entitled to and shall he paid at least N22.633 compensation.”

The facts of the case are straightforward. Sometime in 1974, the Appellant acquired lease for a term of 99 years over a parcel of land with an area of 118 acres. The parcel of land was to be employed in poultry and arable farming. A lease agreement was executed by the Appellant and his grantors the Ozalia Community of Bendel State; and the agreement was registered in the Lands Registry, Benin City as No.17 at page 17 of Volume 216. The agreement was put in evidence at the hearing of the action in the High Court as Exhibit A.

Earlier on the 29th June, 1974 another agreement, between the Government of the Mid-Western (now Bendel) State and the Respondent, for the construction of the road running from Ilushi passing through Ubiaja, Iruekpen to Ozalla was executed. This agreement was put in evidence as Exhibit G. The Respondent was inter alia awarded the contract to construct the road.

In executing the contract, the Respondent entered upon the Appellant’s land to construct part of the road in question and also dug a burrow pit for the purpose of the construction. This was discovered by the Appellant in 1975. The road occupied an area of 3.29 hectares and the burrow pit 0.77 hectare of the Appellant’s land. The Appellant instructed his Solicitors to write to the Respondent. A letter Exhibit B, was accordingly written on the 29th April, 1975 by the Solicitors to the Appellant complaining about the Respondent’s entry on to the land. The letter reads in part as follows-

“6. We have advised our clients (sic) that litigation is both dilatory and expensive and he has accordingly instructed that you should enter into negotiations with us with a view to your paying adequate compensation for trespass and damages. You may, therefore, care to know that our office is open for such negotiations from 8.am to 1 p.m. and 5 p.m. to 7.30 p.m. on every working day.

7. TAKE NOTICE that if within twenty one days of the date hereof you fail or neglect to come to this office for the said compensations, we have further instructions to institute Court action against you …. ”

The Respondent, in Exhibit C, replied as follows –

“Reference is made to your letter AMG/JIR/1 -75 of 29th April, 1975. Please note that the Ministry of Works and Transport, Benin City, is the one which (sic) such cases should be referred to.”

Following this, the Appellant addressed a letter to the Ministry and he received a reply, Exhibit D, which reads thus-