Iboje Itambong & Ors V. Michael Akonye (1964)

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The three plaintiffs, on behalf of themselves and the people of Awi-Arochuku Road, Calabar, sued the defendant in the High Court of Calabar claiming, to quote the writ:

“The sum of £2000 (Two Thousand Pounds) sterling being general and special damages for trespass in that on or about the month of August, 1959 the defendant his workmen or servants unlawfully broke and entered the land of the plaintiffs at Awi between mile 23 and 24 on the Calabar Arochuku Road destroyed the plaintiffs farms and excavated and removed 809 cubic yards of gravels without the consent or authority and in flout of the right of possession of the plaintiffs to the said land.”

The main defence, and the one on which the appeal turns, is contained in paragraph 4 of the Statement of Defence which reads thus:

“The defendant denies paragraph 5 of the Statement of Claim. Alternatively, the defendant states that if he, his workmen and/or servants broke and entered and excavated and removed gravel from the said land, which is denied, they did not exceed the distance from the centre line of the said Calabar-Arochuku Road as is authorised by law and the said gravel was taken for the maintenance of the said Road and/or on behalf of and by the permission, authority and instruction of the authorities responsible for the upkeep of the said Calabar-Arochuku Road namely the Public Works Department, Calabar.”

The Learned trial Judge, after hearing the parties, dismissed the action holding inter alia that:

“In short I have to say that the Plaintiffs have failed to prove that the Defendant was a trespasser since he was acting on the authority of his employer the Ministry of Works and therefore I am of opinion that this action must fail.”

The plaintiffs being dissatisfied with the Judgment have appealed to this Court and have filed eight grounds of appeal in respect thereof. With the exception of the Omnibus ground the other seven grounds raise the following two issues:

1. Did the Ministry of Works in point of fact authorise or permit the defendant either directly or through Mr. Asika, the Provincial Engineer, to do the work the subject matter of the alleged trespass?

2. If the defendant was so authorised by the said Ministry, was the Ministry empowered to delegate its authority?

The trial Judge was satisfied on the evidence before him that the first point must be resolved in the defendant’s favour and we think that on the evidence of Mr. Asika, the Provincial Engineer, no other conclusion could have been reached. It is true that ground 4 of the grounds of appeal complains that Asika was the Provincial Engineer Calabar only up till July, 1959 whereas the trespass complained of was in August, 1959. The evidence of D.W.3 Stephen Akanu, one of the Contractors working with the defendant, is however to the effect that the work began in Easter of 1959 and was completed in August of that year. It is clear therefore that the authority was given and the work commenced at a time when Asika was the Provincial Engineer.

The only point of substance requiring serious consideration is whether the Ministry of Works, a body empowered by law to maintain the Calabar-Arochuku Road, can delegate that authority to the defendant. Learned Counsel for the plaintiffs/appellants did not in the High Court, and does not contend that the Ministry of Works has not the right to dig gravel by the Calabar-Arochuku Road at mile 23-24 for the purpose of maintaining that road. His point is that it cannot delegate this power to an independent Contractor. Learned Counsel also urged that even if the Ministry of Works dug gravel as aforesaid, the appellants would be entitled to compensation as owners of the land. This is a point that has not arisen on the pleadings or the evidence adduced in the Court below and on which we are not prepared to comment. The action on appeal before us is one of Trespass pure and simple. Mr. Uwemedimo, who appeared for the respondent, contended that if the Public Works Department can dig for gravel at the site aforesaid, then that department can give permission to, or engage anyone else to do so.

We have received no assistance from Learned Counsel on either side by way of Legal authorities for, or against the proposition contended for by either of the parties to the case on appeal. It is conceded that by virtue of S. 11 of the Building Regulation Ordinance of the 4th June, 1936, as amended by E.R.No. 4 of 1952 the Authority responsible for the maintenance of the Calabar-Arochuku Road is entitled to take “within 50 feet of the central line of such road such materials as may be necessary for the maintenance of the road.” Our attention has not been drawn to any provision or law which says, or from which the inference or implication can be drawn, that such a power cannot be delegated. In this connection we think the case of Hardakar v. Idle District Council [1896] 1 Q.B. 335 is in point:

The head note to the case reads thus: