Oshinjinrin & Ors Vs Alhaji Elias & Ors (1970)

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COKER, JSC. 

The appellants are six of the defendants in an action in which the respondents as plaintiffs had claimed as follows:- “The plaintiffs claim against the defendants jointly and severally £50,000 being special and general damages for wrongfully entering the plaintiffs’ bus terminal at Agege Motor Park No.1 on the 21st of October, 1963 and pulling down two culverts damaging other parts of the premises and further preventing the plaintiffs from using a portion of the premises thereafter.

The plaintiffs also ask for an injunction to restrain the defendants, their servants, and or agents from continuing or repeating the trespass complained for.”

The 1st defendant in the court below was the Agege District Council and the 2nd defendant, one H.O. Dairo, was the secretary of the Council. As against both the 1st and 2nd defendants in the court below the plaintiffs’ claims were dismissed on grounds connected with the Local Government Law Cap. 68 (Laws of Western Nigeria, 1959) and the notices prescribed by section 247 of that Law. The appellants, to be hereinafter referred to as defendants, were found liable on the claims before the court and judgment was entered against them in the words of the learned trial Judge as follows:- “There will therefore be judgment for the plaintiffs against the 3rd-8th defendants jointly and severally for the total sum of £8,103 with costs assessed at 500 guineas. The case has lasted more than three years during which a lot of expenses have been incurred by the plaintiffs who have been compelled to engage new counsel due to the circumstances. In fact, this is a second hearing of the case. There will also be an order for perpetual injunction against the 3rd-8th defendants, their servants and/or agents, restraining them or any of them from further trespass into the said land.”

It is against this judgment that the defendants have appealed to this Court. A number of grounds of appeal were filed and argued on behalf of the defendants. In the course of argument, however, we indicated to learned counsel for the defendants that we were convinced that the learned trial judge came to the right conclusion on the issue of liability and so we do not desire in this judgment to say much on that issue.

The learned trial judge carefully considered the defences put forward by the defendants. He came to the conclusion, not without justification, that the defendants were liable for “forcibly entering upon the land in dispute.” He disbelieved “the defendants that they took possession of the land peacefully as they pretended to do” and thereafter proceeded to deal with the measure of damages. We think that the evidence accepted by the learned trial judge does abundantly justify his conclusions and that he was right in concluding that the defendants were liable.

With respect to damages it was argued by learned counsel for the defendants that:- (i) the special damages awarded were not strictly proved; (ii) the learned trial judge wrongly took into consideration matters which were not relevant or supported by evidence as a basis for his assessment of general damages; and (iii) in any case it was wrong to award any general damages in favour of the plaintiffs inasmuch as the plaintiffs had already been compensated for all their loss by way of special damages.

Undoubtedly the rule that special damages must be strictly proved applies to cases of tort. In effect the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed.

This however does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. What is required is that the person claiming should establish his entitlement to that type of damages by creditable evidence of such a character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates.

In the case in hand, learned counsel for the defendants concedes that there was evidence concerning the special damages claimed and that the learned trial judge accepted the evidence thus given in that respect. He however complained that the evidence should not have been accepted and acted upon by the learned trial judge and submitted that for the evidence to be acceptable it should have been cumulative and not based on the ipse dixit of the claimant alone. We are of course unable to accept this submission and no authority whatsoever has been cited to us in support of it. A court trying such a case should give adequate consideration to the evidence offered in support of a claim for special damages and if the accepted evidence possesses such a probative value as preponderates the case in favour of the person claiming, then an award would certainly be justified (see Agbaje v. National Motors, S.C. 20/68 of 13th March, 1970).

In the case in hand, we think that on the evidence of the plaintiff’s witness, Samuel Anibaba, which the learned trial judge accepted, he was entitled to make, as he did, the award for special damages. The complaints against the award of general damages are more serious. In the first place, it was said that the judge based his award on a consideration of irrelevant matters which were largely not supported by the evidence before him.

It is true to say that the learned trial judge here and there in his judgment made expressions which were not supported by the written evidence before him. It cannot however be said that by and large his comments, very strong at times, did not correctly represent the purport or substance of the evidence before him. Before awarding general damages of £7,500 against the defendants, the learned trial judge directed himself as follows:-

“On the issue of damages, I accept the evidence about the special damages as given by the 4th plaintiff and I award the plaintiffs the total of £603 in respect of them. I disbelieve the defendants that they took possession of the land peacefully as they pretended to do. On the issue of general damages, I consider the conduct of the 3rd-8th defendants to be very reckless, high-handed and therefore most reprehensible.

In fact, their loaders used their official positions wrongly to oppress the plaintiffs who were their trade rivals and they did all they could to ruin their business where it would hurt most. It was a case of abuse of power for their own benefit.” We think that these comments are justified by the evidence but that the learned trial judge ought to have confined himself to the evidence. His other comments without doubt go to raise his estimation of the plaintiff’s damages.