Sunny Dike Odogwu & Anor V. Albert Chukwuka Ilombu & Anor (2007)
LawGlobal-Hub Lead Judgment Report
GUMEL, J.C.A.
This is an appeal against the judgment of Delta State High Court, Asaba, delivered on the 27th October, 2000 in favour of the plaintiff/1st respondent/cross-appellant against the 1st and 2nd defendants/appellants, and the 2nd respondent. In the said judgment, the trial court granted the 2 declarations sought by the plaintiff/respondent and also awarded the sum of N4, 500,000 (four million, five hundred thousand naira) as general damages for trespass and an order of perpetual injunction against the 1st and 2nd defendants/appellants and the 2nd respondent. The 1st and 2nd defendants/appellants were dissatisfied with this decision and they each filed their respective notices and grounds of appeal. The plaintiff/1st respondent cross-appealed on the refusal of the learned trial Judge to make an award of special damages.
By a writ of summons filed on 25th September, 1997, the plaintiff/respondent claimed before the High Court of Delta State at Asaba as follows:
“(1) A declaration that the statutory certificate of occupancy No. BDSR 6222 granted to the plaintiff on the 6th December, 1986, by the then Bendel State Government of Nigeria and registered as No. 50 at page 50 in volume B.83 of the Lands Registry formerly in the office at Benin but now in the office at Asaba is still subsisting;
(2) A declaration that the statutory certificate of occupancy No. DTSR 875 granted to the 2nd defendant, Grand Hotels Limited, on the 20th day of August, 1996, by the Delta State Government of Nigeria and registered as No. 16 at page 16 in volume CO. 16 of the Lands Registry in the office at Asaba in so far as it purports to include the parcel of land previously granted to the plaintiff, Albert Chukwuka Ilombu, under the statutory certificate of occupancy No. BDSR 6222 registered as No. 50 at page 50 in volume B.83 of the Lands Registry formerly in the office at Benin but now in the office at Asaba is null and void ab initio;
(3) N50, 000,000 (Fifty million Naira) special and general damages for trespass against the 1st and 2nd defendants; and
(4) An order of injunction restraining the defendants, their servants and agents from entering or remaining in the plaintiff’s land verged pink on the Government survey plan No. AS. 51 or from building or erecting any structure thereon or from in any manner whatsoever interfering with the plaintiff’s rights of ownership and possession of the said land.”
Pleadings were duly filed and exchanged. Witnesses gave oral evidence on both sides. A number of documents were also tendered and admitted in evidence. After the addresses of respective learned counsel, the learned trial Judge reserved and delivered a well considered judgment.
From the records of appeal, the fact of this case are that the 1st respondent/cross-appellant is the holder of a certificate of statutory right of occupancy Number BDSR 6222 dated 5th December, 1986, containing a plot of land measuring 2099.343 sq. meters which fell within a larger parcel of land acquired by the Delta State Government in 1993. By a notice of revocation of rights of occupancy pursuant to S. 28 of the Land Use Act, 1978, the Delta State Government revoked all the existing rights of occupancy involving a parcel of land comprising an area of approximately 3.150 hectares. The land of the 1st respondent/cross-appellant was one of the lands comprising, this land of approximately 3.150 hectres. The notice of revocation was published in the Delta State of Nigeria Official Gazette No.9 dated 19th July, 1993. The 1st respondent/cross-appellant claims that he was not served with any notice of revocation as required by law.
Based on their respective notices and grounds of appeal, the 1st and 2nd defendants/appellants as well as the 1st respondent/cross-appellant and the 2nd respondent complied with the rules of this court by filing and exchanging their respective briefs of argument. The appellants’ amended brief was filed on 28/4/2003. The 1st respondent’s brief was deemed filed on 17/2/2004. Also, the 2nd respondent’s brief was deemed filed on 17/2/2004 while the appellants’ reply brief was deemed filed on the 6/7/2004. With respect to the cross-appeal, the 1st respondent/cross-appellant filed a brief of argument and the appellants/cross-respondents’ brief was deemed, filed on 5th June, 2006. The 1st respondent/cross-appellants, reply brief was filed on 19/6/2006.
When this appeal came before us for hearing on 20th November, 2006, respective learned counsel adopted and relied on their respective briefs on the main appeal and the cross-appeal. The 2nd respondent did not respond to the cross-appeal. Learned counsel to the appellants. Dr. Ajibade took the liberty of the hearing to explain and highlight some areas of his amended appellant’s brief. Also, learned counsel to the 1st respondent, Chief Egonu, SAN responded to the explanatory remarks of learned counsel, Dr. Ajibade and further amplified some areas of his 1st respondent’s brief.
From the cumulative number of grounds of appeal, the appellants formulated the following issues for determination in this appeal. They are:
“1. On whom lies the burden of proof that the other party had trespassed on his land and whether that burden of establishing trespass has been met by the party with the burden of proof in this case;
- Whether the judgment of the court below was the result of a proper evaluation of the entire evidence in the case;
- Whether having regard to the plaintiffs’ statement of claim and the evidence before the court, the 1st appellant was personally liable to warrant the judgment of the lower court being entered jointly and severally against him;
- What is the effect of notice of revocation that is gazetted and on whom lies the burden of proof of service or non-service of notice of revocation where same was properly gazetted;
- Whether having rejected the plaintiff’s evidence on special damages the court can proceed to award a whopping general damages of N4,500,000 thereby granting the special damages through the backdoor. Can the plaintiff also claim general damages twice? and;
- Whether this is a proper case for the grant of an order of perpetual injunction.”
The 1st respondent formulated a set of 5 issues for determination. They appear to be more succinct and elegant. They are:
“1. Whether the statutory certificate of occupancy granted to the plaintiff/1st respondent was revoked?
- Whether the plaintiff/1st respondent proved his case?
- Whether the learned trial Judge was right in entering judgment for the plaintiff/1st respondent in suit No. A/86/97;
- Whether the 1st and 2nd defendants/appellants were jointly and severally liable to the plaintiff/1st respondent in suit No. A/86/97; and
- Whether the general damages awarded were excessive?”
The 2nd respondent on his own part also elected to formulate his issues for determination quite separately from those of the appellants and the 1st respondent. They are as follows:
(1) Whether the 1st respondent’s Certificate of Occupancy No. BDSR 6222 dated 6/12/86 was validly revoked by the Government of Delta State on 9th July, 1993 when the revocation was published;
(2) Whether the lower court could make an order of injunction to restrain trespass in the circumstance of this case; and
(3) Whether the lower court judiciously and judicially exercised its discretion when it awarded N4, 500,000 as general damages in favour of the 1st respondent.
The issues formulated by the appellants are a bit inelegant. They could have been better. Though slightly untidy, I will take them as they are and decide this appeal based on their formulation. However, before I go into these issues, I would wish to set the record correct.
At the hearing of this appeal, learned counsel, Dr. Ajibade explained that issue 2 arises out of grounds 8 and 9 of the grounds of appeal while issue 4 arises from grounds 2 and 11. Learned counsel drew our attention to ground 7. He explained that no issue was formulated out of it and therefore should be deemed as having been abandoned.
Learned counsel, Dr. Ajibade elaborated on issues 6, 5 and 3 in that order. He argued that even if the court below was right, though without conceding, that the certificate of occupancy was not rightly revoked and trespass was committed on the land of the 1st respondent, a perpetual injunction ought not to have been granted. He added that an award of damages would have been the appropriate relief in the circumstance. He relied on the case of Brown v. Adebanjo (1986) 1 NWLR (Pt.16) 383. He urged this court to review the equities in this matter because an injunction should not be enforced if it could lead to more harm than good. Learned counsel went further to attack the award of general damages along with an order of perpetual injunction. He referred to pages 167 to 168 of the record and submitted that in awarding the sum of N4.5 million as general damages, the lower court did not consider the relevant guiding principles properly or correctly as the award was excessive. He explained that the payment of ground rent should not be a factor in the assessment of damages.
On issue No.3, learned counsel referred to the statement of defence at page 20 of the record and argued that because the land was granted to the 2nd defendant/appellant, Grand Hotels Limited and not Chief Odogwu, the propriety of the 1st defendant/appellant being a party to this action is very questionable. He argued further that the 1st defendant/appellant was sued not because of his being a shareholder of the 2nd defendant/appellant but because of his being a shareholder/Director of the 2nd defendant/appellant. He maintained that the 1st defendant/appellant should not be a proper party as he was not directly linked with the alleged trespass and added that if there was any trespass it was committed by the 2nd defendant. He urged the court to allow the appeal in its entirety.
In his response, learned counsel to the 1st respondent, Mr. Egonu, SAN, after adopting and relying on his brief explained that issues 1, 2 and 3 were argued together at pages 2 to 9, while issue 4 was argued at page 10 and issue 5 at pages 10 – 12 thereby fully responding to the arguments of learned counsel Dr. Ajibade for the appellants. Learned counsel Mr. Egonu, SAN added that the rights of the plaintiff/1st respondent was fully recognized and upheld by the lower court. He submitted that because of the recognition of this right and the need for its protection an order of perpetual injunction was necessary in the circumstance. He maintained that an order of injunction was an appropriate remedy. It was also the view of Mr. Egonu, SAN that because the lower court took all the necessary facts and evidence into consideration, the award of N4.5 million as general damages was not excessive and the decision of the lower court was right in the circumstance.
On the issue of joint liability for trespass, the learned SAN remarked that our law recognizes joint tortfeasors. He referred to paragraph 11 of the statement of claim and suggested that the 1st and 2nd defendants/appellants committed acts of trespass on the 1st respondent’s land. He further referred to page 86 of the record of appeal and opined that there was ample evidence before the lower court as to acts of trespass. He urged the court to uphold the judgment of the lower court and dismiss this appeal for lacking in merit. Learned counsel to the 2nd respondent urged the court to allow this appeal.
On whether certificate of occupancy No. BDSR 6222 was validly revoked, the appellants’ amended brief tackled this issue in their 4th issue for determination, while the 1st respondent argued it in his 1st issue. The 2nd respondent did not also leave out this issue.
It was argued at pages 4 and 5 of the respondent’s brief. The position of the appellants and the 2nd respondent on this point appears to revolve around the raising and publication of the revocation order (exhibit R). To the appellants and the 2nd respondent, the publication of the notice of revocation in a Gazette constitute notice to the whole world and because the 1st respondent does not contest the law that the Governor can revoke a certificate of occupancy posting of the revocation notice on the land in dispute is sufficient to divest the 1st respondent of his interest in the land in dispute. Learned counsel to the appellants argued that the burden of proof was on the 1st respondent to convince the lower court that the notice of revocation was not duly served on him. He attacked the steps taken by the learned trial Judge in determining on whom proof lies.
The learned trial Judge was not unmindful of the crucial need to determine this serious question of law and fact on whether the revocation of right of occupancy No. BDSR 6222 was validly carried out. It is at the centre of the dispute in this action. Let me try to locate the effort of the learned trial Judge in tackling this radical and crucial question.
After the oral evidence of the various witnesses, the learned trial Judge noted at page 136 of the record that one of the issues in controversy was whether the interest of the plaintiff/1st respondent on the land in dispute can be revoked by the State Government and if yes under what circumstances? The learned trial Judge focused his attention on the provisions of S. 28 of the Land Use Act, 1978, and identified it rightly as the statutory framework within or around which his poser could be answered. To also, remain focused and within con, I wish to reproduce the relevant portions of S. 28 of the Land Use Act.
“S. 28(1) It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
(2) …
(3) …
(4) …
(5) The Governor may revoke a statutory right of occupancy on the ground of –
(a) a breach of any of the provisions which a certificate of occupancy is by section 10 of this Act deemed to contain;
(b) a breach of any term contained in the certificate of occupancy or in any special contract made under section 8 of this Act;
(c) a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under subsection (3) of section 9 of this Act.
(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf by the Governor and notice thereof shall be given to the holder.
(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under sub-section (6) of this section or on such later date as may be stated in the notice.
There is no doubt that S.44 of the Land Use Act read together with S.28 (supra) will assist in determination this crucial issue. Section 44 provides:
“Any notice required by this Act to be served on any person shall be effectively served on him.
(a) By delivering it to the person on whom it is to be served:
(b) By leaving it as the usual or last known address of abode of that person: or
(c) By sending it in a prepaid registered letter addressed to that person at his usual or last known place of adobe; or
(d) …
(e) If it is not practicable after reasonable inquiry to ascertain the name or address of a holder or occupier of land or whom it should be served by addressing it to him by the descriptions of holder or occupier of the premises (naming them) to which it relates and by delivering it to some person on the premises or, if there is no person on the premises to whom it can be delivered by affixing it, or a copy of it, to some conspicuous part of the premises.”
After considering, paragraph 12 of the statement of claim and its being admitted in paragraph 3 of the statement of defence of the 1st defendant on one hand and the oral evidence of the plaintiff on the other hand, on the issue of service of notice of revocation, the learned trial Judge went further to reproduce paragraph 7 of the statement of defence of the 1st defendant. In his oral evidence on the averment in paragraph 12 of the statement of claim, the plaintiff/1st respondent told the court that (referred at page 143)-
… It is not true that the Delta State Government revoked my certificate of occupancy. It is not true that I was served with a notice of revocation of my certificate of occupancy. I was not at no time served with a notice of revocation. No notice of revocation was pasted on any tree on my land. There is only one mango tree on the land and no notice of revocation was pasted on the land. No notice of revocation published in any gazette brought to my knowledge or came to my knowledge.”
Paragraph 7 of the statement of defence of the 1st defendant is to the effect that the notice of revocation was published in the gazette and served on the 1st respondent or otherwise came to his knowledge or notice as copies thereof were affixed to a number of trees on the said land. This remains a positive averment on a very crucial fact.
On this issue, the learned trial Judge, remarked at page 144 thus:
“The 1st defendant did not call evidence to energize paragraph 7 of his statement of defence that the plaintiff had notice of the revocation. The 1st defendant did not move the 3rd defendant to state who issued the notice, who pasted on the trees and how it came to the knowledge of the plaintiff.”
Because the statement of defence of the 2nd defendant is in similar terms with paragraph 7 of the 1st defendant’s statement of defence, the learned trial Judge continued to probe further when he considered the oral evidence of DW1 and discovered that no oral or documentary evidence was brought by the 2nd defendant to support its similar averment to paragraph 7. Pressing the issue to the ultimate, the learned trial Judge, considered the averment in paragraphs 4 and 6 of the statement of defence of the 3rd defendant. These paragraphs averred as follows:
“4. That the plaintiff had notice of the revocation aforementioned.
- The 3rd defendant will rely on the aid notice at the trial of this suit.”
The main witness of the 3rd defendant was DW2 and in his oral evidence he said thus:
“I will not know whether the service of the gazette was served on the plaintiff. From all indications there is nothing to show that the plaintiff was served.”
The learned trial Judge underlined this evidence of DW2 for maximum effect. After considering a number of decided cases to the effect that the proof of a civil case is on preponderance of fact and balance of probabilities and faced with these averments and the pieces of evidence on them or otherwise and a very thorough going evaluation and analysis of the evidence, the learned trial Judge took the ultimate decision. At page 150 of the record, the lower court held that –
“In my considered opinion, and on the basis of the evidence before me, I find that the plaintiff was not served with a notice of revocation on the land for which exhibit J was issued in his favour in 1986. The plea of revocation by the defendants involves acknowledgement of existence of right of occupancy prior to that revocation. The burden to plead and prove valid revocation of the right of occupancy therefore rests on the party alleging revocation. There is no evidence that any revocation notice was served on the plaintiff in the manner set out in section 44 of the Land Use Act.”
On the basis of this crucial finding, the court below referred to the Supreme Court decision in Attorney-General, Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646, more particularly at 674 and Nnaemeka-Agu, JSC at 673 and held further that:
“I therefore find and hold that the purported revocation of the interest of the plaintiff on the land covered by exhibit J was arbitrary, null and void ab initio.”
After a further review of the decisions in Bello v. Diocesan Synod of Lagos & Ors. (1973) 3 SC 103; Obikoya & Sons v. Governor of Lagos State (1987) 1 NWLR (Pt. 50) 385 etc, the learned trial Judge decided that because the notice of revocation was not served according to law, particularly S. 44 of the Land Use Act, the grant of a certificate of occupancy to the 2nd defendant over the said land was a nullity and void ab initio.
I went to this great length to show the steps taken by the learned trial Judge to arrive at his decision to grant the declaratory reliefs sought by the plaintiff/1st respondent. I have no doubt that the learned trial Judge did a very good and impeccable job.
With respect to the facts and circumstances of this case and the 2nd and 4th issues formulated by the appellants, the task before this court, as a primary role is to seek to know the evidence before the lower court and also find out whether it accepted or rejected any evidence upon the correct perception. It is also necessary for this court to find out and know whether the trial court correctly approached the assessment of the evidence before it and placed the right probative value on it and also whether it used the imaginary scale of justice to weigh the evidence on either side. See Egonu V. Egonu (1978) 11-12 SC 111.
It should also be the attitude of an appellate court in respect of evaluation of evidence of a trial court to see whether the lower court appreciated upon the preponderance of evidence which side of the scale weighed having regard to the burden of proof. A proper evaluation of evidence involves a conscious and essential focus on making proper findings and reaching the correct judgment upon established facts before the court. In the instant case, the learned trial Judge cannot be faulted in his impeccable review, analysis and general evaluation of the evidence on the issue of revocation of right of occupancy. He did a very thorough going and painstaking exercise.
The learned trial Judge did not speculate on the evidence on the service of notice of revocation. He went into his record to gather what witnesses said upon the pleadings of the parties.
On the 2 declaratory reliefs, the learned trial Judge had discretion to exercise whether to grant same or not. Expectedly, this discretion must be exercised judicially and judiciously. This would have been well done if the lower court acted only on the evidence placed before it. I am fully satisfied that the learned trial Judge properly evaluated the evidence and applied the correct law to the well established facts, issues 2 and 4, must be resolved in favour of the findings of the lower court.
I would now wish to consider issues 1 and 3 as formulated by the appellants together based on the findings upon the evidence before the lower court.
As noted above, the lower court held that there was no valid revocation of the certificate of occupancy granted to the 1st respondent and also that the grant made to the 2nd appellant was a nullity and void ab initio. After this crucial finding the learned trial Judge went on to consider the effect of his decision against the 3rd and 4th reliefs as sought by the plaintiff/1st respondent. The learned trial Judge assessed and evaluated the oral evidence of the plaintiff/1st respondent on what happened on his land on the 11th and 12th August, 1997.
Upon the evidence of PW2 and the photographs admitted in evidence as exhibits A-A-one to H-H-one, the court below accepted it that the 1st and 2nd appellants brought caterpillars on the land of the 1st respondent and as a result of this entry by caterpillars damaged was caused to the 1st respondent and his property. The court then referred to the definition of trespass in the case of Shettimari v. Nwokoye (1991) 9 NWLR (Pt. 213) 60 and held that the entry of the appellants on the land of the 1st respondent amounted to a trespass because he was in possession of the land by virtue of the certificate of occupancy granted to him. The lower court recalled that the purported revocation of the 1st respondent’s proprietary right over the land was invalid. In support of his decision that trespass is a wrong against possession and a trespasser does not by the act of trespass secure possession in law from the person against whom he is in trespass, he relied on the decision of the Supreme Court in Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157. I agree with the lower court that this decision is relevant and support the evidence on record to wan-ant a finding of liability for trespass against the appellants. I wish to re-enforce this finding with another decision of the Supreme Court in M. S. Atunrase & Ors. v. Alhaji Abdul Mojid Sunmola & Anor. (1985) 1 SC 349; (1985) 1 NWLR (Pt. 1) 105. From the pleadings and the evidence before the lower court, it is quite clear that a case of trespass is well founded against the appellants. The burden to establish trespass was on the 1st respondent and he fully discharged it by establishing his possession of the land in dispute when evidence showed that the purported revocation of right of occupancy pursuant to which the appellants entered the land was indeed illegal and void ib initio. There was ample evidence before the court that the appellants indeed entered the land of the 1st respondent with caterpillars with a view to clearing it or may be to build roads. Issue 1 must therefore also be resolved against the appellants.
There is abundant evidence in this action that the 1st defendant is a Director of the 2nd defendant. It came to light in the evidence of DW 1. In his cross-examination he said:
“Chief Sunny Odogwu is the Chairman of the Board of Directors of the 2nd defendant. Chief Sunny Odogwu is a Director of the 2nd defendant.”
Further to this and while still responding to cross-examination, DW1 told the court that:
“The grasses and trees on the land are no longer there. We cut the grasses and trees on the land. The 1st defendant entered the land after its delivery.”
In paragraph 3 of the statement of claim, it was averred thus:
“2. The 2nd defendant is a limited liability company registered in Nigeria and carrying on business at Asaba.”
The defendants admitted this paragraph in their respective statements of defence. It is trite that what is admitted need not be proved.
Now the 2nd defendant being a limited liability company is an artificial person. It is not a natural or human person. However, there is a legal fiction that a limited liability company has some corporate existence that it can sue and be sued as well as certain human actions being attributable to it. It is a legal fiction that has fully been recognized and enforced by the courts since the decision in Salomon v. Salomon (1897) AC 22. The 2nd defendant/appellant has no mind or body of its own that is capable of physical existence. It can only act through its human operators. The directors of a company, and its other principal officers, are the directing minds through which it carries out its declared objects. These directors are in a fiduciary relationship with the company. They are sometimes called alter egos of the company.
In legal parlance, it is well accepted that qui facit per alium facit per se (He who does something through another does it by himself). By paragraph 2 of the statement of claim, the 1st appellant was sued as a director of the 2nd defendant. All the arguments of learned counsel. Dr. Ajibade at pages 12 and 13 of the appellants’ amended brief are well taken as illuminating. However, learned counsel, despite all his endeavour to explain the law on corporate personality, still failed to relate it well with the facts and circumstances of this case. The 1st appellant, as a director of the 2nd appellant is capable of doing things in the course of his employment as a director which would be sufficient to be binding on the company and to be so bound. There is evidence on record that the 1st appellant entered the land after its purported delivery to the 2nd appellant in 1996. Evidence has shown that in the circumstance of this case, that entry was an actionable wrong called trespass.
The 1st defendant/appellant having been sued in this matter as a director of the 2nd defendant/appellant, in so far as the dispute in this action pertained to a land purportedly granted to the 2nd defendant/appellant, was in my humble view properly sued, as rightly found by the learned trial Judge at page 162 of the record of appeal.
The 1st defendant/appellant has been found by credible evidence to have entered land belonging to another without any lawful justification. He is liable for trespass and was rightly so found by the learned trial Judge. Issue 3 must also be resolved against the appellants.
Issues 5 and 6 can also be taken together. Having found the appellants liable for trespass after granting the 2 declaratory reliefs, the learned trial Judge discountenanced the evidence in support of the claim for special damages. He found all the pieces of evidence relied on by the 1st respondent to prove special damages as insufficient (see page 165 of the record). Having discountenanced the evidence tendered in support of an award of special damages, the learned trial Judge, refused to grant same. Upon this refusal he then proceeded to consider the claim for general damages. After considering some of the guiding principles for the award of general damages together with some of the paragraphs of the pleadings and the evidence on record, his earlier findings as well as some facts which he considered common knowledge, he proceeded to award general damages to the 1st respondent in the sum of N4.5 Million.
In one of the grounds of appeal out of which issue No.5 was formulated, the appellants have attacked this award of general damages both for being excessive and/or wrong in its entirety. One of the factors to be considered by an appellate court when deciding the award of general damages by a trial court i.e. whether the award ought to be affirmed or not, is to recall that it is within the discretion of a trial court to make its own assessment based on the evidence on record.
It may be noted that a party claiming special damages must strictly prove his claim. The requirement here is strict proof. However, if it is general damages he need not specifically prove the loss he suffered. This is because general damages are presumed by the law to flow from the wrong complained of. They are assessed not on any measure but on the opinion and judgment of a reasonable man. See Attorney-General of Oyo State v. Fairlakes Hotels Ltd. (No.2) (1989) 5 NWLR (Pt. 121) 255; UBN Plc. v. Ikwen (2000) 3 NWLR (Pt. 648) 223; and Yalaju-Amaye v. A.R.E. C. Ltd. (1990) 4 NWLR (Pt. 145) 422. According to Dumez v. Ogboli (1972) 3 SC 196, an appeal on general damages will only be altered if they were shown to be either manifestly too high or manifestly too low or awarded on a wrong principle. This court will not interfere with the exercise of a discretionary power of a trial court, except it is manifestly wrong, arbitrary, reckless or injurious. See Chidoka v. First City Finance Co. Ltd. (2001) 2 NWLR (Pt. 697) 216.
In the circumstance of this case, the lower court refused to make an award of special damages because there were no receipts tendered and since proof of special damages is strict, the claim failed. However, the failure of the claim for special damages did not obliterate the evidence that the 1st respondent suffered some damage as a result of the wrongful entry into his land by the appellants. For example, there was evidence that trees were cut down. Walls were also pulled down as well as the disturbance of peaceable possession. In my view, it does not deprive the learned trial judge the power and discretion to make an award of general damages after refusing to award special damages, so long as there was credible evidence to support the award of special damages. All the arguments and submissions of learned counsel to the appellants and counsel to the 2nd respondent have not convinced me that the award of general damages in this case was wrong or was made on the wrong principles.
The decision of the learned trial Judge to assess and award general damages was right and cannot be faulted. The sum of N4.5 Million is not too high or excessive in the instant case.
On the granting of perpetual injunction, the learned trial Judge remarked that:-
“Accordingly, the ancillary relief for an injunction must be successful. For having established a right to the land, the law must support the plaintiff to enjoy that right as to ward off trespass, conduct and acts anti-thetical to his interest on the land.”
In making the order of perpetual injunction, I believe the learned trial Judge was exercising a discretionary power based on the evidence before him as he did not refer to any judicial decision directly on the point. Learned counsel Dr. Ajibade referred to Brown v. Adebanjo (supra) to attack the granting of an injunction. On his own part, learned counsel to the 2nd respondent, also referred to Brown v. Adebanjo (supra) and added the case of Ibenwelu v. Lawal (1971) 1 All NLR 23. From what was quoted by Dr. Ajibade from the Judge in Adebanjo, and my understanding of that decision, learned counsel Dr. Ajibade, in my view totally misconceived the issue. The facts and the decision in Adebanjo must be distinguished from the facts and decision in the instant case. In this action there was no evidence on record that the appellants have put up any building on the 2nd respondent’s land that has now been made the subject of a perpetual injunction. In Atunrase v. Sunmola (supra) the Supreme Court upheld the decision of the trial court to grant an injunction against further trespass in circumstances not too dissimilar with this case.
Exhibit P should be of special interest in this matter. I have carefully looked at it. The appellants’ land is verged green on this survey plan. The land of the 2nd respondent is verged red. There are access roads to the land of the 1st respondent from 2 sides of it. While it remains closely attached to the land of the appellants, the 1st respondent can have access to his land without trespassing into the land of the appellants. So too, also the appellants can have access to whatever remains of certificate of occupancy No. DTSR 875. In my view it will not only be irregular but indefensible to set aside the order of injunction made in the exercise of the discretionary power of the learned trial Judge which order I find to have been made judicially and judiciously having regards to the facts and circumstance of this case. I therefore hold that the perpetual injunction was properly granted.
Having regards to all the foregoing, this appeal lacks merit and same is hereby dismissed.
On the cross-appeal of the 1st respondent/cross-appellant, I have considered all the submissions and arguments of respective learned counsel together with all the decided cases referred to. I also took pains to review and consider the evaluation of the evidence before the lower court. It is trite law that a party who claims special damages must specifically plead same and prove it strictly at that trial. There is no doubt that the 1st respondent/cross-appellant had pleaded special damages with all particulars thereof but the oral evidence adduced through PW1 and PW3 was found by the learned trial Judge to be short of the strict requirement of the law. I accept this finding of the learned trial Judge to be correct. The totality of the evidence adduced at the trial was insufficient to justify the award of any special damages.
Learned counsel to the 1st respondent/cross-appellant maintained that proof of special damages is not proof beyond reasonable doubt, I still do not see all his arguments as robust enough to change the quality of the finding of the lower court that evidence on record fell short of the required value to warrant the award of special damages. I therefore do not hesitate to dismiss this cross-appeal as lacking in merit. Main appeal is hereby dismissed. Cross-appeal is also dismissed. The judgment of Delta State High Court, Asaba dated 27th October, 2000 is hereby affirmed.
Parties shall bear their own costs.
Other Citations: (2007)LCN/2583(CA)
