Ibadan Local Governments Properties Company Limited & Ors V. Mr. David Okunade (2004)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, J.C.A.
This is an appeal brought against the judgment of Akinola J. of the Ibadan Judicial Division of the High Court of Justice of Oyo State, delivered on the 19th day of July, 1999, in which the reliefs sought by the plaintiff against the defendants were allowed.
The reliefs sought by the plaintiff are set out in paragraph 14 of the amended statement of claim. The said reliefs which are jointly and severally against the defendants are as follows:
“1. A declaration that the action of the 1st defendant who is the successor – in -title of Ibadan Metropolitan Town Planning Authority in depriving the plaintiff a right of hearing before ordering the demolition of the plaintiff’s property situate at Oke Ogbere, off Akanran Road, Ibadan, on 23/1/89 or thereabout is a violation of the plaintiff’s civil rights as entrenched in the Nigerian Constitution.
2. An order for the payment of the sum of N162,980.00 (One hundred and sixty two thousand nine hundred and eighty Naira) being special and general damages suffered by the plaintiff, when the 1st defendant through the 2nd to 4th defendants, their servants and/or agents wrongfully demolished part of the plaintiff’s building erected on his land at Oke-Ogbere, off Akanran Road, Ibadan, on or about 23-1-89.
3. An order for injunction restraining the defendants, their servants, agents and privies from further demolishing the remaining part of the plaintiff’s said building.”
In their joint statement of defence of twelve paragraphs, which are replete with denials of the averments in the amended statement of claim in their ultimate paragraph stated:
“12. Whereof the defendants aver that this action is speculative, gold digging, without merit and ought to be dismissed with substantial costs.”
In order to appreciate the judgment appealed against, I shall briefly state its antecedents. Thus, the plaintiff testified and called three witnesses. The defendants on their part called only two witnesses which included the 2nd defendant
The plaintiff testifying as the PW1 said that he and his friend – Lamidi Ajao – (the P.W3) bought a parcel of land at Oke Ogbere off Akanran Road, Olorunsogo, Ibadan in 1977. The parcel of land was shared and he built on his own land. He identified exhibits B, C and D which are respectively, the deed of conveyance, survey plan and the approved building plan. He employed Mr. Muili Ajadi (the P.W2), a mason, to build a house on the land. The PW2 carried out his instructions. On 23/1/89, the P.W.2 reported to him that a portion of his house had been demolished. He went to the building site and confirmed the information given by P.W.2. He thereafter went to inform Lamidi Ajao (the P.W3), his friend and co-landowner of the land on which his building is situate.
The PW3 accompanied him to the building site and he (the P.W3) saw the damage done to his building. He and the PW3 later went to lodge a complaint at the Town Planning Authority Office at Olorunsogo, Ibadan, where they met the 2nd defendant who confessed that the officers of Ibadan Metropolitan Planning Authority demolished part of his house out of sheer mistake, as their intention was to demolish a house adjacent to his (the plaintiff’s) house and not the plaintiff’s house. He alleged that one Sunday Ogunsola, the erstwhile 2nd defendant now deceased, being a superior officer to current 2nd and 3rd defendants (that is to say Mr. Dauda Busari and Mr. Ramoni Jimoh) went to carry out the demolition of part of his house.
He identified exhibit E which is the extent of damage and how much it would cost to rehabilitate the building demolished. He asserted that neither the defendants, nor the Landlords’ Association in the area served any notice of impropriety on him before the defendants demolished his house in 1989. He further asserted that he constructed his building in conformity with exhibit D (the building plan). On being cross examined, the PW.1 said that he was not present when part of his was demolished.
The defendants admitted while he (the P.W1) was in their office to make enquiries that they carried out the demolition. He prayed the Court to award him as damages the sum of N112,980.00 as the demolished portion was still left unattended to. The P.W.2 confirmed the testimony of the P.W.1 as regards the demolition of part of the building of the P.W.1, building of specification in exhibit D (the approved building plan) and that he prepared exhibit E (estimated costs to rehabilitation of the kitchen, bathroom and toilet of the demolished building). He, under cross examination, denied being present when the demolition was carried out.
The evidence of the P.W.3 – Lamidi Ajao – is not dissimilar to that of the P.W.1. It should, however, be emphasized that when he and the P.W.1 went to the Town Planning Office the 2nd defendant confessed to them that the house of the P.W.1 was demolished in error by the Town Planning Authority’s personnel.
On the part of the defendant, Mr. Tunde Aderinto, the company secretary to the 1st defendant testified that the 1st defendant was established in 1991 and it was a successor to the defunct Ibadan Metropolitan Planning Authority. He added that the 1st defendant inherited the assets and liabilities of the defunct Ibadan Metropolitan Planning Authority (hereinafter referred to as I.M.P.A.) On being cross examined by J.A.O Kalejaiye Esq., the learned Counsel for the plaintiff, the D.W.1 admitted that the 2nd and 3rd defendants were employees of I.M.P.A. before the 1st defendant took over the assets and liabilities of the Authority. He also admitted that the chief executive of the 1st defendant, late Mr. Ogunsola, Mr. Busati and Mr. Ramoni visited the plaintiff’s building site.
He added that they demolished the plaintiff’s building upon complaints received from members of the Lardlords’ Associaion of his area. He admitted that he was a senior estate officer in 1989, when the said demolition was carried out. He identified exhibits A and D as the plaintiff’s letter of complaint that part of his (plaintiff’s) house was demolished and the approved building plan respectively.
D.W.2, Mr. Dauda Busari (the 2nd defendant) testified that he was a staff of I.M.P.A and that he knew the plaintiff when a petition was written by Orisumbare Landlords’ Association in 1987/88. He identified exhibits F and F1 as the letter and its attachment. Under cross examination, the D.W.2 admitted that no contravention notice was served on the plaintiff and that the defunct LM.P.A did not refer any complaint about the plaintiff’s building to him. He denied being one of those who demolished the plaintiff’s property.
Both learned Counsel for the parties addressed the court. In a considered judgment, the learned trial Judge allowed all the reliefs sought by the plaintiff.
The defendants were utterly aggrieved by the judgment and appealed to this court on only the omnibus ground.
The defendants now the appellants identified the following sole issue for the determination of this appeal.
“Whether the evidence elicited under cross examination from the D.W.1 purportedly confessing to the demolition of respondent house, having regard to the totality of the admissible evidence led at trial (sic) is of such a nature to obviate the need for and operate to discharge the burden imposed on the respondent by section 138(1) and (2) of the Evidence Act Cap 112 Laws of the Federation 1990.”
The plaintiff, now the respondent, on his part, also identified only one issue which reads:
“Whether any crime was alleged in the pleading of the parties as to invoke section 138(1) and (2) of the Evidence Act Cap 112 Laws of the Federation 1990, which compels the respondent to prove his claim beyond reasonable doubt and/or whether the respondent could rely on admissions made by the appellants in support of proof of his case.”
At the hearing of this appeal on the 9th of February, 2004, K. Ishola Esq. and J.O.A Kalejaiye Esq., who were respectively the learned Counsel for the appellants and the respondent seriatim adopted and relied on their respective briefs of argument. The learned Counsel urged the court to allow the appeal and to dismiss the appeal without any amplification as it relates to the parties’ briefs of argument.
The learned Counsel for the appellants after reviewing the items of evidence adduced on behalf of the respondent submitted that neither the respondent nor his witnesses proffered credible evidence or any evidence at all to establish the demolition of his property. He contended that the evidence elicited from the D.W.1 under cross examination though admissible is not conclusive on the issue of proof of the fact of demolition of the respondent’s property. Learned Counsel went to posit, albeit inchoate, as follows at page 7 of the appellants’ brief of argument:
“More so when the act of the 2nd appellant (the alleged confession to demolition of the respondent’s property in error) is in dispute and when the said confession has been denied by the 2nd appellant who himself was called as a witness (DN2) at page 138 of the records which denial was not shaken under cross examination (sic)…..”
I dare say that this poser is neither here nor there!
The learned Counsel for the appellants further submitted that the evidence elicited from the D.W.1 under cross-examination allegedly admitting the demolition of the respondent’s property by the appellants amounts or is akin to a confessional statement made by an accused person implicating other co-accused persons is not binding on them except it is adopted by words or conduct by other co-accused persons. It is only then that the court can treat such a confessional statement as an admission. He relied on section 27(3) of the Evidence Act 1990 and the case of Onyeukwu v. State (2000) 12 NWLR (Part 681) 256 at 260.
He equally submitted that a confessional statement which implicates a co-accused person in the commission of a clime to amount to corroborative evidence and qualify civilly as an admission must be direct, positive and unequivocal and must relate to facts that are within the personal knowledge of the maker and not derivatively acquired. He cited in support the case of Idowu v. State (2000) 12 NWLR (Part 680) 48 at 53. The learned Counsel urged the court to allow the appeal and set aside the judgment of the trial court.
In reply, the learned Counsel for the respondent contended that the respondent did not allege any crime against the appellant. What was instead the allege was the tort of damage to property. He therefore, submitted that there was little or no need to prove any of his claims beyond reasonable doubt but only on balance of probability.
The learned Counsel referred to paragraph 9 of the reply to the statement of defence by the plaintiff/respondent that it was averred that Dauda Busari (the 2nd appellant) admitted that they (that is the 2nd and 3rd appellants) demolished the building of the plaintiff/respondent and the plaintiff/respondent led evidence to that effect. He further pointed out that the D.W.1 admitted under cross examination that the appellants demolished the respondent’s building. The learned Counsel therefore submitted that where any piece of evidence of the appellants supports the respondent’s case, the court ought to give effect to it. He cited in support the following cases: Efetiroroje v. His Highness Okpalefe II (1999) 5 NWLR (Pt.193) 517; (1991) 7 SCNJ 85 at 94; Akinola & Ors. v. Oluwo & Ors. (1962)1 SCNLR 352; (1962) 1 All NLR 224 at 228 and Ibeziako v. Nwagbogu (1973) 1 NMLR 113; (1973) 639.
He further submitted that what is admitted need no further proof as well as that uncontradicted evidence must be accepted by the trial Judge. He cited in support of those submissions the cases of Adesola v. Abidoye (2001) 2 WRN 60 which referred to the case of Bello v. Farmers Supply Co. Ltd. (1998) 10 NWLR (Pt. 568) 64 as well as Obanor v. Obanor (1976) 1 NMLR 34. He finally urged the court to hold that the appeal lacks merit and should be dismissed.
What is of moment in this appeal with particular reference to the common issue raised by the patties is the standard of proof based on the totality of the evidence available in this appeal.
In order to appreciate the standard of proof in any matter it is a bounden duty of the court to know the nature of the cause of action. In the instant case, the respondent alleged that the appellant demolished part of his building. The appellants in an attempt to deny the assertion testified as per the evidence of D.W.1 under cross examination as follows:
“…we went and demolished the plaintiff’s building upon complaints received from members of landlords’ association of his area …”
This testimony as well as assertion and evidence by the respondent and his witnesses that the appellants demolished part of his building have a connotation of criminality. This matter is therefore caught by the provision of section 138(1) of the Evidence Act 1990. It reads:”138(1) if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
It is not in doubt that the action instituted by the respondent against the appellants is apparently civil in nature, but having clinically examined the pleadings and the supporting evidence, I formed the opinion that the fact of demolition of property which has sufficient connotation of a crime became prominent. The commission of a crime in a civil action therefore becomes a direct issue. This then placed a greater burden on the respondent to prove the crime of demolition beyond reasonable doubt. The question is: was the plaintiff/respondent able to meet the high standard of proof beyond reasonable doubt in the trial court? To answer this question there is need to have a hard look at the record of appeal. Thus, the P.W.1 and P.W.3 adduced evidence on what appeared to be a confession by the D.W.2 who they claimed said that “the house of the plaintiff was demolished in error by the Town Planning Authority’s personnel.
Equally relevant to the fact of committing a crime by the defendant/appellants is the evidence of the D.W1 while under cross examination when he said at page 137 of the record of appeal:
“I am representing the 1st defendant in this case. The Ibadan Metropolitan Planning Authority had the right to demolish an illegal structure or illegal structures. Exhibit D is the building plan of the plaintiff which we approved… The Ibadan Metropolitan Planning Authority visited the area. The Chief Executive then visited the area. Late Mr. Ogunsola, Mr. Busari and Mr. Ramoni visited the site… We went and demolished the plaintiff’s building upon complains received from members of landlords’ association of his area. We demolished with justification…” (Italics for emphasis).
From the foregoing, it appears the D.W.1, a highly placed officer in the establishment of the 1st defendant/1st appellant could not have committed his employer without thorough investigation before confessing to a factual situation that the plaintiff/respondent’s house was demolished by personnel of the 1st appellant of which the 2nd and 3rd appellants belonged. This lucid confession was made by the adverse party (the appellants) and not the asserter of the fact of demolition (the respondent). The question is: Can the plaintiff take advantage of the weakness of the defendant’s case? The law is settled that in establishing his claim a plaintiff must succeed on the strength of his own case and not the weakness of the defendant’s case.
The rule does not, however, apply where the defendant’s case support that of the plaintiff and contains evidence on which the plaintiff is entitled to rely. See Akinola & Ors. v. Oluwo & Ors. (supra) at page 228. In the instant case, the evidence of D.W.1 abundantly supported the plaintiff/respondent’s case that the personnel of the defendants/appellants demolished the house of the former. This therefore leaves no room to doubt the assertion of the identity or identities of those who committed the crime in issue. The high standard of proof beyond reasonable doubt was met by the respondent whose position in this case is akin to that of the prosecution in a criminal matter. Proof beyond reasonable doubt connotes that there is no doubt as to the accused’s guilt.
Thus, in the instant case, the P.W.1 and P.W.3 adduced uncontroverted evidence that the D.W.2 confessed that the personnel of the 1st defendant demolished the plaintiff’s house. That evidence, in my view, is cogent enough to establish the offence of demolition of the plaintiff’s building. The evidence of the D.W.1 did no more than to strengthen the already doubtless evidence of the plaintiff who availed himself of it by virtue of the principle in Akinola & Ors. v. Oluwo (supra). That principle, at the risk of repetition, is that the plaintiff can avail himself of the defendant’s evidence which strengthens his own case.
In these circumstances, the view of the learned trial Judge who held at page 165 of the record of appeal that the plaintiff has met the standard of proof beyond reasonable doubt on the due consideration of available evidence including the evidence of the D.W.1 and D.W.2 is unimpeachable. Thus, the evidence of the D.W.1 was positive enough on the fact of demolition by the personnel of I.M.P.A. while that of the D.W.2 can only be deduced from what he told the P.W1 and P.W.3 that he did not participate in the demolition of the plaintiff’s house carried out by the personnel of I.M.P.A. This denial did not obviate the fact clearly confirmed by the D.W.1 that the personnel of the 1st defendant/1st appellant perpetrated the act of demolition.
Apart from meeting the high standard of proof as required by section 138(1) of the Evidence Act (supra), there is preponderant evidence that the appellants destroyed part of the respondent’s house. The sole issue is therefore resolved against the appellant.
In these circumstances, I find no basis to disturb the decision of the trial court. The appeal lacks merit and it is dismissed. I affirm the decision of the trial court.
I award no costs.
Other Citations: (2004)LCN/1576(CA)