Hon. Nze Herbert Osuji Vs Anthony Isiocha (1989)
LawGlobal-Hub Lead Judgment Report
The plaintiff claims against the defendants jointly and severally, general damages for malicious destruction of his building on the land leased to him by the defendants’ father, situate at No.2 Owerri/Onitsha Road, Owerri (formerly known as No.1 Owerri/Onitsha Road). The plaintiff claims in paragraph 10 of his statement of claim as follows:-
“10. The destroyed building and shed cost the plaintiff about Sixty Thousand Naira (N60,000) to build and its present value before destruction was about One Hundred Thousand Naira (N100,000),”
and prays for the following relief in paragraph 11 of the Statement of Claim-
- The plaintiff has suffered an unjust damage and claims from the Defendants jointly and severally N100,000 (One hundred Thousand Naira) being damages.”
The defendants denied the plaintiffs claim. They filed a joint statement of defence.
At the conclusion of the trial the learned trial Judge (Chianakwalam) reviewed and considered the evidence adduced by the parties, made findings of facts and concluded-
“From the evidence before me, I find that the plaintiff has proved his case by balance of probabilities otherwise styled preponderance of evidence. He is entitled to judgment. Accordingly, judgment is hereby entered against the defendants jointly and severally in the sum of N100,000.00 (One hundred thousand Naira) with costs assessed at N500 (Five hundred Naira), which includes plaintiffs out-of-pocket expenses and filing fees.”
Dissatisfied with the judgment of the trial court, the defendants appealed to the Court of Appeal, Enugu, and the Court of Appeal, in a majority judgment delivered by Babalakin, J. C.A., with which Maidama, J.C.A., concurred, dismissed the appeal and confirmed the judgment of the trial court. Akpata, J .C.A., gave a dissenting judgment in which he agreed with the “reasonings and conclusions reached in all but one point” in the majority judgment which “relates to additional Ground 1, particular (iv).” After stating his reasons for doing so, he concluded his dissenting judgment thus –
“The position however is that there was trespass to a structure, a kiosk or a shed. As the remnants of the shed or kiosk may no longer be at the site it will not serve the interest of justice to remit this case to the High Court for retrial. As the learned trial Judge held that there was trespass to the structure in issue, I think, that justice demands that nominal damages be awarded to the respondent. In the circumstances, I award nominal damages of N5,000.00 (Five Thousand Naira), in favour of the respondent.”
The brief facts of the case can be stated thus –
Before 1966, the plaintiff who was at that time a motor driver was driving Chief J.K. Osuji to court and other places. Chief J.K. Osuji was the defendants’ father. And in 1966, apparently in appreciation of the plaintiffs services to him, Chief Osuji agreed to lease to the plaintiff (or a consideration of 30 Pounds and for a period of 60 years, his parcel of land lying and situate at No.2 Owerri/Onitsha Road (then known and called No.1 Owerri/Onitsha Road). The plaintiff went into immediate possession and put up 2 structures, a shed and a 15 bedroom house as per approved plans Exhibit A and B respectively. The 15 bedroom house is occupied by the plaintiff and his tenants while the shed was being used by plaintiff for storing and selling his wares. Both the house and the shed were constructed between 1966 and 1978 when the Defendants’ father, Chief Osuji, was still alive and he raised no objection. The Defendants also did not raise any objection at that time, until November, 1981, after the 1st defendant had been elected into Imo State House of Assembly and was appointed its Leader, when he sent his thugs onto the land to disturb and harass the plaintiff. The plaintiff complained to the Commissioner of Police and the Governor of the State about the incident and asked for protection but to no avail. The final onslaught came on 2nd December, 1982, when the Defendants, accompanied by their thugs, entered the plaintiffs land and destroyed the shed. The plaintiff immediately complained to the Police who advised him to take civil action against the defendants.
From now on, the plaintiff and the defendants will be referred to as the respondent and the appellants respectively.
Both parties filed and exchanged briefs. Learned counsel for the appellants formulated in his brief eight issues for determination while the respondent formulated four issues in his own brief for determination.
The issues formulated by both the appellants and the respondent can be narrowed down to
- Whether trespass was jointly committed by the appellants by entering the respondent’s land, and if so,
- Whether the damages awarded by the trial court to the respondent, which was affirmed by the majority judgment of the Court of Appeal was justified in the given circumstance.
In paragraph 8 of the Statement of Claim the respondent pleaded
“On 7th December, 1982, the Defendants collected thugs and pulled down the plaintiffs building and carried away the wares therein. The destruction was carried out in the presence of Lawrence Onyenwe, Emmanuel Isiocha and Mrs. Juliana Emeka and others. When the plaintiff arrived at the scene, the defendants and their thugs threatened him with violence. The plaintiff reported to the Police who arrested them and they admitted destroying plaintiff’s house. Photographs of the destruction were taken and shall be tendered at the hearing and relied upon.”
The facts averred in paragraph 8 of Statement of Claim supra were not specifically denied by the appellants; they were in fact admitted in paragraphs 3 and 4 of the Statement of Defence as follows:-
“3. The defendants deny paragraph 2 of statement of claim and aver that what was involved was not a building but a kiosk or at best a hut made of old plywood and empty box casings and old C.I. sheets.
- This kiosk was left at the side of the road by the Road Construction Company doing the adjoining road. When they abandoned the kiosk the plaintiff in order to trespass into defendants’ adjoining land carried the kiosk and attempted to plant it on defendants’ land without leave or licence from the defendants and the defendants objected and pushed it off into the gutter where it can still be seen up till now.”
In the respondent’s pleading it was averred that the appellants entered the land in the respondent’s exclusive possession without the latter’s consent, either express or implied. Trespass to land is unlawful interference with exclusive possession. “If the defendant placed a part of his foot on the plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it” – per Coleridge, C.J. in Ellis v. Loftus Iron Co. (1874) L.R. 10 C.P.10 at 12. It is an act of trespass to remove or tamper with any part of a building or structure attached to land in the exclusive possession of another which has become part of the land. Likewise it is trespass to place anything on or in the land in possession of another. See Lavender v. Bretts (1942) 2 All E.R. 72 and Simpson v. Weber (1825) 41 T.L.R. 302. Where even the plaintiff’s title is defective, once he is in exclusive possession of the land in dispute, he can maintain an action in trespass against a defendant who could not prove a better title. See Alhaji Fasasi Adeshoye v. J. O. Shiwoniku 14 W.A.C.A.86.
In the instant case, there was evidence which was accepted by the learned trial Judge that the respondent was in exclusive lawful possession of the land and the structures thereon when the appellants by themselves or through their agents unlawfully entered the land and destroyed the temporary shed. This is more particularly elucidated in the following excerpts from the judgment of the trial court
“In this case where the plaintiff has been in undisturbed possession of the land and houses from 1966 (defendants say it was from 1958), the Court will not aid the defendants to disturb it on the flimsy and unsubstantiated reason that the grant of the plaintiff had expired or that the plaintiff is either a squatter or a tenant at will, more so when his right of possession had not been determined through the processes of the law court.”
“From the evidence before me, I am satisfied first defendant was obsessed and intoxicated by power and his position in the defunct Imo State House of Assembly. In the craze, he and his brother, the second defendant, embarked upon a dishonourable and extreme act of so to say re-writing the will of their departed ancestral father. As a result, in December, 1982, they destroyed a building erected during the life-time of their father in 1966 through 1971.
I do not think the circumstances of this case justify mere oral warning by the defendants to the plaintiff to vacate the premises was conclusive or reasonable to warrant the pulling down of the house. I find the act of the defendants tortious. In respect of their thugs/labourers who assisted them in demolition of the building, an agent who commits an act of trespass on behalf of his principal is jointly and severally liable with the principal (See Pan Brothers Ltd. v. Landed Property Ltd. & Anor. (1962) 2 All E N.L.R. (Part 1) page 22).”
In my view, the learned trial Judge was perfectly right on the evidence adduced before him to make those findings. Both the majority and the minority judgments of the Court of Appeal also affirmed these findings. The appellants committed trespass by unlawfully entering the land in the exclusive possession of the respondent and also destroying the temporary shed erected thereon by the respondent.
Having dealt with the issue of the appellants’ liability in trespass, the next issue to consider is the nature and quantum of damages the respondent is entitled to.
The respondent’s claim, looking at his Writ of Summons and paragraph 11 of the Statement of Claim, is for general damages for the destruction by the appellants of the shed he erected on the land leased to him by the appellants’ father. The specification of the shed was given in Exhibit A – the approved plan.
In paragraph 6 of the Statement of Claim the respondent was claiming the current equivalent value of the shed destroyed. He admitted in his evidence that the 15 bedroom house he built on the land is still there and has not been tampered with. In the Statement of Claim he gave a lump sum figure of N60,000 as the initial costs of the shed and the house, but failed to state in his pleading how much he spent out of the sum, for erecting the shed. The learned trial Judge however, without adverting his mind to this serious defect in the pleading, proceeded to treat the matter as if it were a claim for special damages. This is evidenced in his judgment where he said-
“The issue raised in this action is not strictly on title or ownership of land as such. It is trespass to a building which plaintiff said was a shed he constructed on land leased to him by the father of the defendants in 1966, which he developed by putting up a building in accordance with a building plan in evidence as Exhibit ‘A’ between 1966 and 1971. The other building erected in accordance with the building plan covered by Exhibit ‘B’ does not appear to be the subject- matter of the claim in this action.
In considering the quantum of damages to be awarded the learned trial Judge said-
“The prima facie measure of damages for all torts affecting land is the diminution in value to the plaintiff or, in the case of a plaintiff in possession with ownership, the cost of reasonable reinstatement. In the later case no deduction falls to be made merely because the plaintiff gets “new for old” that is to say, a betterment which is the necessary result of reinstatement (See Halsbury’s Laws of England, Vol. 12, 4th edition, page 458). Plaintiff gave evidence of the value of the house in 1971 when he erected it. He gave the value at the time of the destruction. There are no facts controverting the unchallenged evidence. I have no reason not to accept the evidence. I accept it and find as a fact the current value at the time of destruction was N100,000.00″
Special damages must not only be specifically pleaded with relevant particulars but must also be strictly proved – See Shell BP v. Cole (1978) 3 S.C.183; Dumez (Nig.) Ltd. v. Patrick Waka Ogboli (1977) 2 S.C.45. In the instant case none was pleaded and none was admitted. The learned trial Judge therefore misdirected himself in both law and fact when he awarded N100,000 compensatory damages to the respondent as the current value of the shed destroyed by the appellants by treating the claim as that for special damages. It was not a situation where the principle of statement of claim superseding the Writ of Summons could apply. If anything, the pleadings, particularly paragraph 11 thereof further qualifies that the respondent’s claim is for general damages simpliciter as stated in the Writ of Summons. The Court of Appeal is therefore wrong to affirm the award made by the trial court.
While I accept the reason given by Akpata, J.C.A., that the respondent is entitled to the award of general damages for the trespass committed by the appellants on the respondent’s land, I do not think that a visit to the locus is necessary in the circumstance because to do so would be tantamount to agreeing with the trial court that the claim is for special damages. The appellants had admitted entering into the land and tampering with the shed, and with Exhibit A (which contains the specification of the shed) the court is in a position to determine the amount of general damages to be awarded to the respondent that can adequately compensate him.
In Umunna & Ors. v. Okwuraiwe & Ors. (1978) 6-7 S.C.1 the issue of the excessiveness of the quantum of damages that can be awarded in cases of trespass to land came up for consideration by this Court. In his consideration of the issue, Obaseki, J.S.C., said at pages 11 to 12 –
“It is true that the award of exemplary damages is a somewhat make-shift and arbitrary method of presenting a tort-feasor’ “unjust enrichment.” But no unjust enrichment has been alleged or proved in this case.
The learned authors of Volume 12 of the Halsbury’s Laws of England 4th Edition dealt with the rules regarding measure of damages in regard to trespass to land in paragraph 1170 and therein at page 460 commented as follows:
“A plaintiff is entitled to nominal damages for trespass/ See Armstrong v. Sheppard and Short Ltd. (1959) 4 Q.B. 384 (1959) 2 All E.R. 651 C.A.; even if no damage or loss is caused; if damage or loss is caused, he is entitled to recover in respect of his loss according to general principles.
Where by the trespass the plaintiff has been wholly deprived of his land he is to be compensated according to the value of his interest and if he is a freeholder entitled to possession, the damages will be the value of the produce of the land during the period of deprivation subject to the proper expense of management or in the case of permanent deprivation, its selling value McArthur & Co. v. Cornwall (1892) A.C. 75 P.C. Spenser v. Registrar of Titles (Third Appeal) 1910 (103) L.T. 647 PC. Where the defendant has by the trespass made use of plaintiff’s land the plaintiff is entitled to receive by way of damages such sum as should reasonably be paid for the use. It is immaterial that the plaintiff was not in fact thereby impeded or prevented from himself using his own land either because he did not wish to do so or for any other reason: Whitwham v. Westminster Brymbo Coal and Coke Coy (1896) 2 Ch. 538 CA”
We see no basis for awarding N3000.00. We are of the opinion, therefore, that N200.00 general damages will be adequate compensation in the circumstances….”
There is no basis therefore, for the award of the punitive sum of N100,000 as damages in this case. I agree with the figure of N5,000.00 awarded by Akpata, J.C.A., in his dissenting judgment, as general damages. It is adequate and reasonable in the circumstances of the case and I hereby adopt it.
The appeal therefore partly succeeds and it is allowed. The award of N100,000 damages by both the High Court and the Court of Appeal is hereby set aside. In its place, the respondent is awarded N5,000.00 as general damages.
The appellants are awarded N250.00 costs in the Court of Appeal and N500.00 costs in this Court against the respondent.
Other Citation: (1988) LCN/2396(SC)