Anne-marie Egbagbe V. Arch. Bakau Ishaku & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

The plaintiff who is now the 1st respondent in this court by a writ of summons dated 9/10/97, instituted an action at the Kaduna State High Court of Justice, Kaduna, against the 1st and 2nd defendants, the 1st defendant is now the appellant and the 1st respondent’s paragraph 23 of the statement of claim dated the 28th day of November, 1997, reads:

“23. WHEREOF, the plaintiff claims against the defendants jointly and severally as follows:

(1) A DECLARATION that the plaintiff is the legal and beneficial owner of the parcel of land situate and known as plot NO.2 Road one Marafa Housing Estate Kaduna, by virtue of the sublease of same to the plaintiff by the 2nd defendant.

(2) A DECLARATION that the 1st defendant’s action in entering into and carrying on construction of structure on the said parcel of land, without the consent and authority of the plaintiff, is illegal and constitute trespass.

(3) AN ORDER of perpetual injunction restraining the 1st defendant, either by herself, her servants, agents or privies, from further trespassing into or erecting any structure on the said land.

(4) AN ORDER of mandatory injunction directing the 1st defendant to demolish the structure already erected by her on the said land.

(5) AN ORDER awarding the plaintiff against the defendants general damages of =N=500,000.00.

(6) ANY other relief this court deems fit to grant in the circumstances.”

From the printed record only the 1st respondent as the plaintiff testified before the court and tendered three documents in support of his case, admitted in evidence marked Exhibits “1”, “2” and “3”. However none of the defendants defended the action. In the printed record, Mr. Anyira, the learned counsel for the 2nd respondent informed the court that the 2nd respondent has no defence and urged the court to enter judgment as it pleases on the evidence.

At the conclusion of hearing and address by counsel, the learned trial Judge delivered his judgment contained at pages 70 – 72 of the printed record and held inter alia as follows:

“It is settled law that where evidence given by a party to any proceedings is not challenged by the other party who had the opportunity to do so, it is always open to the court seized of the matter to act on such unchallenged evidence before it. See OLAFIMICHAN V. NOVALAY TECHNICAL LTD (1998) 4 NWLR (PT.547) 608 AT 621; IRIRI V. ERHURBOBARA (1991) 2 NWLR (PT.173) 252 at 262. As the plaintiff’s evidence is unchallenged credible and very reliable I find him entitled to the declaration and orders contained in paragraph 23 (1)- (4) of the statement of claim. However in relation to the claim for =N=500,000.00 damages. However no evidence was led in proof of the same. General damages are not proved by the mere mention of the word.

The plaintiff must show why the court should award him the amount claimed. As he had not done so in the instant case, I shall award only nominal damages which I assessed at =N=50,000.00 only against the 1st defendant.”

The facts of the case as contained in the printed record as it relates to the plaintiff/1st respondent, as the only witness in the case are as follows: The plaintiff/1st respondent by a letter Exhibit “1” was allocated plot 2, Road B, Marafa Estate, Kaduna by the 2nd respondent. He paid about =N=76,000.00 to the 2nd respondent and was issued a receipt in acknowledgement of the payment, exhibit “2”. In May, 1997, he visited the site, where he noticed that some development was in progress on the said site. From the enquiries carried out by the 1st respondent, he discovered that it was the appellant that was developing the piece of land. As a result the 1st respondent wrote the appellant but the appellant did not respond.