Baale Simeon Akinya & Anor V. Chief Clement Omeyi (2016)
LawGlobal-Hub Lead Judgment Report
MOJEED ADEKUNLE OWOADE, J.C.A.
This is an appeal against the judgment of Hon. Justice F. O, Aguda-Taiwo delivered on 21st October 2010 in the Ore Judicial Division of the High Court of Ondo State.
By a Writ of Summons of 26/9/2007 followed by a statement of claim of 2/11/2007, the Respondent as 1st Plaintiff claimed against the Appellants as defendants as follows:
(a) A declaration that the execution of the judgment in Suit No. ORCC/87/2004 at the 1st Plaintiff?s premises at kilometer 100 Lagos- Benin Express Way on 24th day of September 2007 is unlawful, unconstitutional/null and void and of no effect and as such amounts to trespass.
(b) An order on the defendants jointly and severally to pay special and general damages to the 1st plaintiff as follows:
(i) N5000 per day special damages for Hotel accommodation for the two rooms the 1st Plaintiff and his household occupied at Philinneka Hotel, Benin-Lagos Express Way, Showboy with effect from 24th day of September 2007 till the seal is (sic) removed from the 1st Plaintiff’s house or the date of judgment whichever is earlier.
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(c) N2000 per day for the loss of profit from the sale of food and drinks on the 1st Plaintiff’s Restaurant with effect from 24th day of September, 2007 till the seal is (sic) removed from the 1st Plaintiff’s house or the date of judgment in this case, whichever is earlier.
(d) Three Million Naira (3,000,000) general damages for the trespass committed by the defendants on 24th September, 2007 when the defendants and their agents and servants broke into and entered the 1st Plaintiff’s premises to execute the judgment in Suit No. ORCC/87/2004.
(e) A perpetual injunction restraining the defendants, their servants, agents, privies or any other person whosoever from further acts of trespass on the 1st Plaintiff?s properties.
The Appellants as defendants filed a statement of defence on 26/5/2008, consequent upon which the Respondent filed a Reply to statement of defence on 26/9/2008.
In the Court below, the Plaintiff testified and called his wife as a witness while the 1st and 3rd defendants testified and called one other witness.
?The Respondent as Plaintiff gave evidence that the Plaintiffs in Suit No. ORCC/87/2004 levied execution of
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the judgment through the balliffs who earlier pasted Exhibit E on his Respondents house and the police, who came to his premises on the 24th of September to drive him and his family out of his premises which was locked up. All the parties also agreed that the Respondent?s premises were actually sealed up on the 24th September 2007. The Respondent gave evidence that on the 24th of September, two policemen came into his premises containing three structures and sealed it up without letting him take anything out. His evidence was supported by that of PW2. Both DW1 and DW3 also gave evidence that the premises of the Respondent was sealed and locked up.
The Appellants as defendants gave evidence that the Respondent was served with a Writ of Summons in respect of Suit No. ORCC/87/2004.They admitted however that he (the Respondent) was not joined as a party to the said suit. In particular, DW1 further testified that he is not liable to pay damages to the Respondent who still stayed in his house after the Court’s bailiff was instructed to open the premises to him on his (DW1?s) instruction.
?The learned trial Judge made copious references to
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the judgment of the Customary Court in Suit No. ORCC/87/2004 and found out that the Respondent was not a party to suit No. ORCC/87/2004. The learned trial Judge held first at pages 92 – 93 of the record that:
The defendant/judgment debtor in this case is Emmanuel Egbedofor who was sued personally.
There is no evidence before the Court that the Plaintiff who is not a party to the suit was a servant, agent or privy of the defendant or that Egbedofor sold or alienated any land to the Plaintiff?.
There is no evidence that the land which was developed by the Plaintiff is the same as that in respect of which judgment was given. There was however evidence that the defendants acting through the police temporarily dispossessed the Plaintiff of the enjoyment of his property. Since the Plaintiff gave unchallenged evidence that he carried on restaurant business in the premises as well, he was also deprived of his means of livelihood”.
After finding that the service of both the Writ of Summons and Writ of Possession on those who are not parties to suit No ORCC/87/2014 is irregular, the learned trial Judge further held at pages 96
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– 97 of the record as follows:-
“The Plaintiffs claim is for damages for trespass due to unlawful entry into his land. The long and uninterrupted possession by the Plaintiff over the land was not challenged by the defendants.
There is evidence before the Court that the Plaintiff had remained on the land in dispute since 1978 unchallenged. He carried out the survey on the land in 1984, he was issued with a Certificate of Customary Right of Occupancy Exhibit C in respect of the same land contained in the Survey Plan Exhibit B in March 1985 ?.
I am satisfied that the Plaintiff was able to prove acts of long, clear and exclusive possession of his property.
The developments of the land constitute definite act indicating possession. The entry on the Plaintiff’s land by the Court bailiff to paste documents on the house and the entry and forceful ejection of the Plaintiff and his family members by the men of the police force at the instance of the defendants definitely constitute trespass and unjustifiable interference with the Plaintiff’s possession and enjoyment of his property.
I therefore find the defendants trespassed on the Plaintiff’s land.”
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Having held as above, the learned trial Judge awarded a sum of N25,000.00 as special damages for hotel accommodation and N10,000.00 loss of profit from sale of food making a total amount of N35,000.00 as special damages.
The learned trial Judge also awarded general damages of N100,000.00 and granted perpetual injunction in favour of the Respondent.
Dissatisfied with the judgment, the Appellants filed a Notice of Appeal containing six (6) grounds of appeal in this Court on 25/10/2010.
The relevant briefs of argument are as follows:
a. Appellants brief of argument dated and filed on 31/3/2011 – Settled by Prince A. F. Adejayan.
b. Respondent’s brief of argument dated 16/5/201l and filed on 19/5/2011 – Settled by D.A Sowade Esq.
?Learned Counsel for the Appellants nominated five issues for determination. They are:-
1. Whether from the reliefs sought by the Respondent before the lower Court, title to land is not in issue.
2. Whether the plea of long possession over land can defeat the title of a true owner of land.
3. Whether the trial Judge is right to perpetually restrain the Appellants over
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the land in dispute when title to land was not determined by the trial Court.
4. Whether the execution of the judgment of the Customary Court by the bailiffs of the said Court was done according to law contrary to the view held by the trial Judge.
5. Whether the trial Court is right to award special damage so to say in this matter OR put differently on whom lies the onus’ of proof of special damages.
Learned Counsel for the Respondent formulated three issues for determination as follows:-
1. Whether the execution of the judgment in ORCC/87/2004 between His Highness J.A Ademoye and 2 ors (for themselves and on behalf of Akintope family of Odigbo-Ore) versus Mr. Bourdillon Egbodofo on the Respondents premises at Km. 100 Benin-Lagos Express Way was competent, regular and lawful (Grounds 1 and 2).
2. Whether or not the Respondent had shown Exclusive possession sufficient to justify Respondent?s claim for trespass (Grounds 3 and 6).
3. Whether in view of the Appellant admission of inteference with Respondent’s possessory right and liberty the trial Court is not justified in awarding damages.
?Learned Counsel for the Appellant
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argued issue 1, 2, and 3 together in one breath. He reiterated the Respondent’s claims and submitted that a claim for trespass is rooted in exclusive possession. All that a Plaintiff needs to succeed in such a case is possession of the land in dispute.
However, that once the defendant asserts ownership of such land, title thereto is automatically put in issue and the Plaintiff to succeed must establish a better title.
He referred to the cases of Amakor v. Obiefuna (1974) 3 sc 67 at 148; Fasakin II v. Oluronke II (1999) 65 LRCN 144 at 117; Adedeji v. Oloso (2007) FWLR (Pt. 356) 610 at 623; Ugoji v. Onukogu (2005) 129 LRCN 1813 at 1822 – 1827.
He submitted that in the instant appeal, the Respondent having sued for damages for trespass and an order of perpetual injunction tendering Exhibits A – D in this regard claiming ownership of the land, title is automatically put in issue and the trial judge in arriving at her decision failed to consider the issue of title thereby occasioning a miscarriage of justice and improper understanding of the case presented before the trial Court.
?Counsel referred to page 96 of the record, where the learned trial
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Judge stated thus:
“The issue relating to the determination of ownership of land in this case does not even arise in this case at all. It was therefore not necessary for the defendants to try to show that they have better title to the Plaintiffs land
Appellants’ Counsel referred to the case of Adebayo V. Ighodalo (1996) 38 LRCN 747 at 749 – 750 where the Supreme Court held that where there is a claim for trespass and injunction, title to land involved is put in issue, and that this makes it incumbent on the trial Judge to consider the issue of title to the land or exclusive possession.
He submitted that, the Respondent having failed to prove his title, it is wrong of him to turn around to rely on acts of possession which acts only smack of the radical title pleaded. It is unnecessary therefore to consider the Respondent’s acts of possession as such acts by him on the land in dispute rather than being viewed as acts of possession become acts of trespass.
He referred to the case of Ogunbiyi V. Ishola (1996) 38 LRCN 824 at 926. He submitted that the only way the Respondent can proof his title to the land in dispute is by
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establishing same through one of the five ways laid down by the Supreme Court in Idundun V. Okumagba (1976) 1 NMLR 200 as re echoed in Nkado V. Obiano (1997) 50 which he said the Respondent failed to do.
Counsel submitted that the authenticity of the execution of the documents relied on Exhibits A, B, C, D were not proved, so also were they not registered being registrable instruments and by S. 16 of the Instruments Registration Law of Ondo State are inadmissible.
He submitted further that the Respondent both in his evidence in chief and under cross-examination never showed that he was in exclusive possession of the land in dispute. He debunked the pleading and evidence of the Respondent based on long possession on the ground that where radical title pleaded is not proved, possession no matter how long will become an act of trespass and that it is trite that a Plaintiff claiming to be owner of land cannot at the same time sought to rely on the plea of laches, acquiescence, long possession and standing as done be the Respondent.
?He referred to the cases of Akinkunmi V. Sadiq (2001) 2 NWLR (Pt.696)101 at 112; Owhonda V. Ekpechi (2003 113 LRCN 2525 at 2528.
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He submitted that from the foregoing, title is clearly in dispute in this suit. That the trial Court failed to consider same but rather based its decision on exclusive possession and it is trite that possession no matter how long cannot displace the title of a true owner of the land in dispute.
He added that the trial Court having failed to consider issue of title to land ought not to have perpetually restrained the Appellants from the land in dispute.
In response to Appellants Issue 1, 2 and 3, the learned Counsel to the Respondent reiterated the facts of the case in response and emphasized the fact that the Respondent was not a party to Suit No. ORCC/87/2004 which judgment was purportedly but unlawfully executed on the Respondent premises.
At page 6 in Paragraph 5.07, Learned Counsel for the Respondent articulated his reply on Appellants issues 1, 2, and 3 more clearly when he submitted that the issue of proof of title does not arise in this case because there is no dispute about who is in exclusive possession at the time of the trespass.
?That the Appellant admitted that the Respondent was in exclusive possession and
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as such there is no need to establish title. He submitted further that by virtue of S. 146 Evidence Act, there is a presumption of ownership on the Respondent who was in possession and that the onus that he is not in possession rest on the Appellant.
He referred to the case of Alhaji Goni Kyari V. Alhaji Alkali & Ors (2001) FWLR (Pt. 60) 1481 at 1506.
He urged us to hold that the Respondent had shown sufficient acts of exclusive possession to justify an award of trespass in his favour.
In the instant case, the long and uninterrupted possession by the Respondent over the land was not challenged by the Appellants.
?The simple answer to Appellants Issues 1, 2 and 3 was provided by the learned trial Judge at page 96 of the record as follows:
“The Plaintiff showed that he had been in possession, exclusive possession of the land in dispute since 1978. It is only where there is a dispute as to which of two persons is in possession of land that the issue of ownership of land would arise because the presumption is that the person having better title in the land is in lawful possession. The issue relating to the determination of ownership of
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land on this case does not even arise in this case at all. It was therefore not necessary for the defendants to try to show that they have better title to the Plaintiff’s land. There is no correlation between the land in which judgment (where the Plaintiff was not made a party) was given and the land developed by the defendant. Even assuming without conceding that the Plaintiff was an original trespasser, he can maintain an action for trespass against the defendants in this case who had disturbed his possession.”
The justification of the above passage by the learned trial Judge lies in the fact that trespass to land as a wrongful invasion of the private property of another is rooted in the right of exclusive possession and actionable at the instance of a person in possession. Okolo V. Dakolo (2006) 14 NWLR (Pt. 1000) 401.
In an action for trespass all that a Plaintiff is required to prove in Court is not title to the land in dispute but exclusive possession of the land on which trespass has been committed. Thus a Plaintiff can succeed in a claim for damages for trespass and injunction even where his claim for a declaration of title fails.
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In other words, where the claim of title of the parties to a case fails or is defective the Court can still maintain and uphold an action or claim for trespass and injunction if possession is established.
See. Balogun V. Akanji (2005) 10 NWLR (Pt. 933) 394; Ude V. Chimbo (1998) 12 NWLR (Pt. 577) 169; Okhuarobo V. Aigbe (2002) 9 NWLR (Pt. 771) 29; Adegbite V Ogunfaolu (1990) 4 NWLR (Pt.146) 578; Ogunbiyi V. Adewunmi (1988) 5 NWLR (Pt.93) 215.
In the instant case, the trial Court was right to have based the award of damages for trespass and injunction on the undisputed exclusive possession by the Respondent.
In the circumstance, it was absolutely unnecessary for the Appellants to try to show that they have better title to the land than the Respondent who was in exclusive possession.
Issues 1, 2 and 3 are resolved against the Appellants.
On issue 4, Learned Counsel for the Appellants submitted that execution was levied by the bailiffs of the Customary Court accompanied by policemen in accordance with the procedure under the Rules of Customary Court of Ondo State of Nigeria 1980 and contrary to the view expressed by the learned trial Judge
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that the Appellants used extra Judicial means by exploring the services of police to dispossess the Respondent of his property.
He submitted that Exhibit E was tendered by the Respondent containing the Writ of Possession duly issued by the President of the Customary Court in Suit No ORCC/87/2007 and the judgment of the Customary Court in accordance with Order 16 Rule 1 of the Customary Court Rules stating clearly the boundaries of the adjudged land. That it is not in dispute that the Writ of possession and the judgment were originally served on the Respondent in MAY 2007 before execution was levied and possession delivered to the Appellants in September 2007. That it was also not in dispute that between May 2007 and September 2007, the Respondent did nothing to challenge the judgment or Writ of possession served on him other than the fact stated by him and his witness that they were visiting the house of the Appellants to make peace.
He urged us to hold that the judgment in suit No. ORCC/87/2004 was properly executed according to law and that the land in dispute falls within the adjudged land as the Respondent never challenged the jurisdiction of the
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Customary Court in respect of the execution processes issued by it.
Learned Counsel for the Respondent made five points as follows in relation to Appellants issue 4:
(a) In Suit ORCC/87/2004 the Plaintiffs got judgment against Mr. Bourdillion Egbodofor. Mr. Egbodofor was sued in his individual capacity.
(b) There was nowhere in the pleadings and evidence where the Appellants connected the Respondent with Mr. Egbodofor. The Respondent was not also shown either as a servant, agent or privy of Mr. Egbodofor.
It is the law that matters adjudged in a case do not prejudice those who were not parties to it.
Okomu Oil Palm Company Limited V. O. S. Iserhienrhien (2001) 5 NSCQR 802 at 819.
(c) Exhibit ‘E’ dated 15/11/2006 titled Writ of possession made pursuant to Order 16 Rule 1 of the Customary Court Rules was not addressed to the Respondent in this appeal who was not a party to Suit No. ORCC/87/2004 or to any person specifically. The Writ of possession was at large and it is thereby defective, irregular and incompetent.
(d) There is no nexus between the land of the Respondent and the land the subject matter of ORCC/87/2004.
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(e) A Court cannot make an order against a person who is neither a party nor party to a proceeding before it. See Kokoro – Owo & Ors V Lagos State Government & Ors (2001) 6 NSCQR (Pt. 11) 615 – 626, 632; Anyanwoko V. Okoye (2010) 1 SCM 21 – 38; Olajimi V. A.G. of Western Region (1967) All NLR 331 A.G. Federation V. A.I.C. Ltd (2000) 79 LRCN 1872 – 1889.
It seems to me that the learned Counsel for the Respondent has provided full answers to Appellants Issue 4. The learned trial Judge was thus right when he held severally at pages 93 – 95 of the record first that:
“There is no evidence before the Court that the Plaintiff who is not a party to the suit was a servant agent or privy of the defendant or that Egbedofor sold or alienated any land to the plaintiff..?.”
Second, that:
“The service of both the Writ of Summons and Writ of Possession on those who are not parties to Suit No. ORCC/87/2004 is irregular.”
Third, that:
“On the whole I find that the judgment of the Customary Court is not enforceable against the Plaintiff who is not a party to the suit and so the judgment cannot be executed against his.<br< p=””
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Fourth, and finally on the issue that:
“The Plaintiff in this case is not a judgment debtor in Suit No. ORCC/87/2004 in respect of which the bailiff executed judgment at the instance of the Plaintiffs in that suit.
Similarly Order 6 Rules 9 and 10 of the Judgment Enforcement Procedure Rules is also inapplicable to this case because the interpleader proceeding is totally outside the purview of this case.”
Issue 4 is accordingly resolved against the Appellant.
On Issue 5, Learned Counsel for the Appellants submitted that the position of the law is that a claim for special damages required strict proof by credible evidence that is in line with the same particularity that is required for the Plaintiffs pleadings. That in the instant case, the Respondent did not place any material before the trial Court to justify the award of special damages granted in his favour, that rather the Court below based its finding on the presumption given by the Appellants that if at all the Respondent stayed in any hotel, it could not be more than 4 days.
Thereby, placing unnecessary burden of proof on the Appellants.
He referred to the cases of Amadi
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V. Chinda (2009) 172 LRCN 181 at 183; Atel Ltd V. Military Government of Ogun State (2009) 175 LRCN 23 at 31.
Furthermore, the Respondent did not tender a single receipt issued him in the hotel or call any witness from the hotel to give evidence in his name that he actually lodge in the hotel.
Also, that no evidence was led to show how the Respondent came about N2000 per day as loss of earning on his restaurant.
He submitted that it is pertinent to point out that learned Counsel for the Respondent at page 3 Lines 33 – 34 of her written address conceded that the Respondent failed to prove special damages as required by law, yet the trial Court went ahead to award special damages against the Appellants.
Learned Counsel for the Respondent submitted that the learned trial Judge awarded special damages of N25,000 based on the admission of 5 days by the DW1 and also N2,000 per day for loss of profit for 5 days which the Plaintiff would have made from sales of his restaurant. He submitted that the award of total of N35,000 special damages is judicially and judiciously justified based on the findings of Court.
?There are two main heads of special
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damages claimed by the Respondent in the Court below. The first is for hotel accommodation and the second is for loss of earnings on the closed restaurant. While the learned trial Judge might be right to have accepted the unchallenged evidence of loss of earning of N2,000 a day on the restaurant and the admission of DW1 that the Respondent was locked out for 5 days; there was no credible evidence to justify the fact that the Respondent actually paid a sum of N5,000 per day at Filinneka Hotel to justify the award of N25,000 for hotel accommodation.
This is because special damages must be specially pleaded and proved. Xtoudos Services Nigeria Limited & Anor V Taisei (W.A) Limited & Anor (2006) 6 SCNJ 300; Anthony M. Soetan & Anor V. Z Ade Ogunwo (1975) 6 SC 57; Abdulkareem V. Incar (Nig.) Ltd (1984) NSCC 603; Shell BP Petroleum Company of Nigeria Limited V. His Highness Pere Cole & 6 Ors. (1979) 3 SC 128.
The fact that special damages appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. Special damages are exceptional in character and there is no room for inference by the Court.
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It is unreasonable to consider a claim for specific damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the Court.
See Nigerian National Petroleum Corporation V Klifco Nigeria Limited (2011) 4 SC (Pt. 1) 108; Union Bank of Nigeria PLC V. Alhaji Adams Ajabule & Anor (2011) 12 SC (Pt.IV) 1; Gonzee Nigeria Limited V. NERDC & Ors (2005) 8 SCM 99.
In the instant case, while the award of N10,000 for loss of earning on the Respondent’s Restaurant accords with principles, the award of N25,000 for Respondent’s hotel accommodation was not strictly proved or proved by credible evidence.
Issue 5 is accordingly resolved in part in favour of the Appellants.
In this Appeal, Issues 1, 2, 3 and 4 were resolved against the Appellants.
Issue 5 however was partly resolved in favour of the Appellants.
The appeal is allowed in part.
?The award of the sum of N25,000 as special damages for hotel accommodation to the Respondent by the learned trial Judge is set aside.
The judgment of Justice F. O.
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Aguda-Taiwo delivered in favour of the Respondent on 21/10/2010 is otherwise affirmed.
I make no order as to costs.
Other Citations: (2016)LCN/8685(CA)
