Stirling Civil Engineering (Nigeria) Ltd V. Ambassador Mahmood Yahaya (2005)

LAWGLOBAL HUB Lead Judgment Report

EDOZIE, J.S.C.

The material facts that gave rise to this case are undisputed. The appellant, a civil engineering construction company in the process of the execution of a road construction project, entered in the respondent’s farmland to excavate large quantities of earth thereby creating four large burrows or pits referred to by the parties as craters. In consequence, the respondent as plaintiff sued the defendant/appellant in the Kaduna High Court claiming reliefs formulated in paragraph 24 of the amended statement of claim in the following terms:

“24 Whereof the plaintiff claims from the defendant the following:

(a) General damages of five million naira (N5,000,000.00) for trespass, loss of use and mischief caused or done to the economic trees planted by the plaintiff.

(b)That the defendant to pay the plaintiff the sum of seventy million seven hundred and nine thousand, ninety seven naira (N70,709;097.00) being the cost of filling with laterite the four craters which need 249,450 cubic metres at N283.46 per cubic metre.”

After both parties had joined issues on the pleadings filed and exchanged by them, they called witnesses in proof of their averments and at the conclusion of trial, the learned trial Judge, Bello J, On 20th October, 1995 in favour of the respondent in a judgment in which he encapsulated his findings on pages 69-70 inter alia, thus:

“From the foregoing findings and reasoning of this court, I am of the opinion that the plaintiff had proved his claim on the balance of probability as required by the law. All his witnesses have testified to the effect that the defendant went into his farm and dug some craters and for that he could not cultivate the place, I need not go into the elementary meaning of trespass, destructions and mischief. This was done not within the 50 metres right of way but inside the farm of the plaintiff, what was done within 50 metres right of way has been compensated

I believe the plaintiff ought to have display (sic) something before the court to show and or give it a clear (sic) of what he was earning from the farm and not to make a sweeping statement of the amount he is earning. Moreso, it is not the whole farm that is being destroyed by the plaintiff (sic) but just a portion of it.

On the whole I hold that the plaintiff has proved his 1st claim against the defendant but will definitely not be entitled to the claim of N5m as he is claiming for reasons enumerated above.

I finally enter judgment for the plaintiff against the defendant in the sum of N500,000.00 being general damages for trespass, loss of use and mischief done to the economic trees planted by the plaintiff in his farm land Kaduna-Abuja Road.

Based on the consensus of both parties and their counsel, I hereby order that the defendant shall fill with laterite the 4 craters dug by it inside the said farmland of the plaintiff.” The sum of N,5000 was awarded to the respondent.

My understanding of what the learned trial Judge said in the above extract is that, in respect of the 1st claim, the plaintiff has proved the act of trespass on his land but did not establish the claim for special damages done to his economic trees yet he is entitled to N500,000.00 as “general damages for trespass, loss of use and mischief done to the economic trees.” And in respect of the second head of claim, the defendant is to refill the pits on the plaintiff’s land based on the agreement of the parties.

The appellant did not take kindly to the decision in respect of the first claim adjudging him to pay the sum of N500,000 to the respondent. Consequently, he lodged an appeal to the Court of Appeal, Kaduna Division in respect of that part of the decision, though in the amended notice of appeal, it is erroneously indicated that the appeal is against the whole decision. The amended notice is predicated on two grounds of appeal and since the decision of the Court of Appeal turned on the competency of these grounds of appeal, they are reproduced in extenso hereunder:

“1. The learned Judge erred in law when he awarded the sum of N500,000.00 to the plaintiff as general damages after he held that the claim for trespass and the destruction of economic trees failed.”