G. A. Obanor V. Ehigie Obanor (1976)
LawGlobal-Hub Lead Judgment Report
C. O. MADARIKAN, J.S.C.
In the High Court, Benin City, the present appellant took out a writ of summons against the respondent. During the course of the proceedings (Suit No. B/26/72), the writ was amended to read as follows:-“On 1st February, 1972, the defendant, his servant or/and agents broke into the plaintiff’s house situate at and known as 45A, Owinna Street, Benin City and destroyed same.
Wherefore the plaintiff’s claims against the defendant are as follows: –
1. 5,000 pounds (i.e N10,000) special and general damages for trespass on the said house.
2. Injunction restraining the defendant, his servants or/and agents from further destroying and interfering with the said house or any part thereof.
Particulars of special damages
Cost of re-building plaintiff’s
house to its former condition 3,449.1 N6,898.10 pounds
General damages including loss
of rent at 26pounds (i.e. N52) per
month until judgment 550.19 N3,101.90 pounds Total 000. N10,000.00 pounds”
After hearing the evidence of both parties and their witnesses the learned trial Judge, in a considered judgment, found, as a fact, that the plaintiff was in possession of the building and could bring an action for trespass; and that the defendant was liable for the damage done to the building. He eventually awarded N2,000 to the plaintiff as damages and declined to grant the injunction sought.
The plaintiff has appealed against the decision of the lower court and his complaint before us was two-pronged.
Firstly, the award of damages was challenged in the first and second grounds of appeal on the ground that a lump sum of N2,000 was awarded as special and general damages without distinguishing what portion of the award was for special damages and what portion was for general damages. It was also contended that the award was contrary to the claim and the evidence in support of the plaintiff’s case.
Secondly, it was briefly but strenuously contended that the learned trial Judge erred by refusing to grant the injunction sought when the evidence was sufficient to warrant the granting of the injunction.
We have already stated that the plaintiff claimed N10,000 as special and general damages for trespass and that the claim was particularised in the writ thus: –
Cost of re-building plaintiff’s
house to its former condition N6,898.10
General damages including loss
of rent at N52 per month N3,101.90
The evidence relied upon by the plaintiff regarding the cost of replacement of the demolished building was given by one Adedokun Olatunde Talabi, a Quantity Surveyor. Mr. Talabi is a Member of the Royal Institute of Chartered Surveyors. He testified that he had inspected the building and taken necessary measurements and that it would cost N6,898.10 to replace the building. He buttressed his evidence by tendering two lists showing how he arrived at that figure. The lists were admitted in evidence and marked as Exhibits R and Q respectively.
In considering Mr. Talabi’s evidence, the learned trial Judge said: –
“The assessment of damages is not easy in this case, and so I have to use my discretion particularly as I went with both counsel to inspect the house when an attempt was being made to get the court to grant an interim injunction.
The house was a mud hosue and cemented. I am aware that the rains which began on 20th January, 1972 had made matters worse since the court visited the site.
The estimate made by Mr. Adedokun Olatunde for 3 pounds,449:1/ (Exhibit Q) appears to me rather high. I am unable to accept this figure. There were however two layers of mud wall in the house. I am afraid that I have not been much helped by the fact that the estimate was not seriously challenged by counsel for the defendant.
I have therefore got to use my discretion in this matter.”
and concluded as follows: –
“I will award – since there is no clear line of demarcation in this special kind of case – as between special and general damages – the sum of N2,000 to the plaintiff.”
Learned counsel for the plaintiff/appellant, Dr. Odje, has criticised the portion of the judgment of the lower court that we had just quoted. The gravamen of his argument was that Mr. Talabi being an expert whose evidence remains unchallenged, the lower court should have accepted his evidence unless there was good reason to reject it. Counsel relied on the case of Seismograph Services Ltd. v. B. E. Onokpasa (1972) 1 All NLR 343 and in particular, invited our attention to the observations at page 345 where this court said: –
“We are of the view, therefore, that if the learned trial Judge had applied the correct test, he would have come to the conclusion that the only expert opinions before him were those of the defence experts, and so unless for good reasons otherwise should have accepted them.”
We think there is great force in this submission. An important feature of Mr. Talabi’s evidence was that he produced in court an itemized list (Exhibit R) showing how he arrived at the estimate for replacement of the demolished building. Although Exhibit R is quite detailed, no attempt was made by the defence to either challenge the items appearing on Exhibit R or to discredit the witness under cross-examination. The defence called no evidence to contradict Mr. Talabi. That was the totality of the evidence on this point. It is cogent, uncontradicted, detailed and unchallenged. We mean no disrespect when we say that we fail to see any justification for the view taken by the learned trial Judge that he was unable to accept the figure given by Mr. Talabi. We are firmly of the view that if the evidence had received the treatment it deserved in the hands of the learned trial Judge, he would have had no difficulty in coming to the conclusion that the plaintiff had proved his entitlement to the award of N6,898.10 special damages claimed.
It appears to us that similar consideration must apply to the claim for loss of rent at the rate of N52 per month because the evidence of the plaintiff in this regard fully supports the claim and was in no way challenged, disparaged or contradicted. In our view, the plaintiff ought to have been awarded N702 under this specific head, and N200 as general damages. In the result, the award of damages under the head – general damages, including loss of rent at N52 per month until judgment – should add up to N902 (i.e. N702 plus N200).
We now advert to the third ground of appeal relating to the claim for injunction.
The learned trial judge briefly disposed of the claim for injunction in the last paragraph of his judgement. He said: –
“As for injunction, I am making no order since I have made no declaration of title.”
With respect, we hold that the learned trial Judge fell into an error in this portion of the judgment as the claim for injunction is in no way dependent on declaration of title. It is settled law that where damages are awarded for trespass to land and there is an ancilliary claim for injunction, the court will grant an injunction –
(1) to prevent multiplicity of suits (see Hanson v. Gardiner 32 ER 125);
(2) to prevent irreparable damage or injury or irremediable mischief.
The attitude of the court has always been that where award of damages is considered to be an inadequate remedy, the protection of the right in specie is the only mode of doing complete justice and this could only be achieved by granting an injunction.
Thus, in Lowndes v. Bettle (1864) LT55 where the plaintiff in possession sought to restrain one who claimed under colour of title, it was stated that the tendency of the court was to grant an injunction – at least when the acts committed did destroy or might tend to the destruction of the estate.
A case which is on all fours with the case in hand is Fenner v. Bedford (1875) Bitt. Prac. Cas. 54, where peremptory injunction was granted against the defendant who had pulled down the house of the plaintiff.
We however wish to make the following observations on the facts of the present case. Although the evidence is to the effect that the main building had been demolished by the defendant, yet we think that the plaintiff/appellant is entitled to an order of injunction in the terms sought by the plaintiff/appellant so as to enable him to restrain the defendant from demolishing what remains on the land, i.e. boys’ quarters consisting of five rooms, and/or persisting in his acts of trespass.
For the foregoing reasons this appeal must succeed and it is hereby allowed. The judgment of the High Court, Benin City (Suit No. B/26/72), dated the 14th of March, 1973, including the order for costs is hereby set aside and in its stead: –
1.the sum of N6,898.10 is hereby awarded to the plaintiff/appellant as special damages for trespass claimed as per the amended writ;
2.the sum of N902 is also awarded to the plaintiff/appellant as damages particularised on the writ as “General Damages including loss of rent at N52 per month until judgment”;
3.the plaintiff/appellant is hereby granted and injunction restraining the defendant, his servants and/or agents from further destroying or interfering with the house situated at and known as No. 45A Owinna Street, Benin City or any part thereof.
The plaintiff/appellant is entitled to the costs of this appeal assessed at N160 in this court and N300 in the High Court.
Other Citation: (1976) LCN/2330(SC)