G. A. Obanor V. Ehigie Obanor (1976)

LawGlobal-Hub Lead Judgment Report

C. O. MADARIKAN, J.S.C. 

In the High Court, Benin City, the present appellant took out a writ of summons against the respondent. During the course of the proceedings (Suit No. B/26/72), the writ was amended to read as follows:-“On 1st February, 1972, the defendant, his servant or/and agents broke into the plaintiff’s house situate at and known as 45A, Owinna Street, Benin City and destroyed same.

Wherefore the plaintiff’s claims against the defendant are as follows: –

1. 5,000 pounds (i.e N10,000) special and general damages for trespass on the said house.

2. Injunction restraining the defendant, his servants or/and agents from further destroying and interfering with the said house or any part thereof.

Particulars of special damages

Cost of re-building plaintiff’s
house to its former condition      3,449.1 N6,898.10 pounds
General damages including loss
of rent at 26pounds (i.e. N52) per
month until judgment                 550.19 N3,101.90 pounds    Total  000. N10,000.00 pounds”

After hearing the evidence of both parties and their witnesses the learned trial Judge, in a considered judgment, found, as a fact, that the plaintiff was in possession of the building and could bring an action for trespass; and that the defendant was liable for the damage done to the building. He eventually awarded N2,000 to the plaintiff as damages and declined to grant the injunction sought.

The plaintiff has appealed against the decision of the lower court and his complaint before us was two-pronged.

Firstly, the award of damages was challenged in the first and second grounds of appeal on the ground that a lump sum of N2,000 was awarded as special and general damages without distinguishing what portion of the award was for special damages and what portion was for general damages.  It was also contended that the award was contrary to the claim and the evidence in support of the plaintiff’s case.

Secondly, it was briefly but strenuously contended that the learned trial Judge erred by refusing to grant the injunction sought when the evidence was sufficient to warrant the granting of the injunction.

We have already stated that the plaintiff claimed N10,000 as special and general damages for trespass and that the claim was particularised in the writ thus: –

Cost of re-building plaintiff’s
house to its former condition                N6,898.10
General damages including loss
of rent at N52 per month                     N3,101.90
N10,000.00

The evidence relied upon by the plaintiff regarding the cost of replacement of the demolished building was given by one Adedokun Olatunde Talabi, a Quantity Surveyor. Mr. Talabi is a Member of the Royal Institute of Chartered Surveyors.  He testified that he had inspected the building and taken necessary measurements and that it would cost N6,898.10 to replace the building.  He buttressed his evidence by tendering two lists showing how he arrived at that figure.  The lists were admitted in evidence and marked as Exhibits R and Q respectively.