John O. Imona-russel Vs. Niger Construction Ltd. (1987)
LawGlobal-Hub Lead Judgment Report
UWAIS, J.S.C.
On the 7th April,1987 this appeal was allowed in part. Special damages assessed at N7,000.00 together with N300.00 costs were awarded in favour of the Appellant and we reserved our reasons for the decision till today. I now give reasons.
The Appellant instituted an action in the Bendel State High Court, holden at Auchi, in which he claimed against the Respondent as follows, in paragraph 14 of his amended statement of claim –
“(a) Special damages for trespass….N22.633.00
(b) General damages for trespass…..N77,367.00
TOTAL N100,000.00
(c) Or, in the alternative, an Order of Court that the Plaintiff is, in any event entitled to and shall he paid at least N22.633 compensation.”
The facts of the case are straightforward. Sometime in 1974, the Appellant acquired lease for a term of 99 years over a parcel of land with an area of 118 acres. The parcel of land was to be employed in poultry and arable farming. A lease agreement was executed by the Appellant and his grantors the Ozalia Community of Bendel State; and the agreement was registered in the Lands Registry, Benin City as No.17 at page 17 of Volume 216. The agreement was put in evidence at the hearing of the action in the High Court as Exhibit A.
Earlier on the 29th June, 1974 another agreement, between the Government of the Mid-Western (now Bendel) State and the Respondent, for the construction of the road running from Ilushi passing through Ubiaja, Iruekpen to Ozalla was executed. This agreement was put in evidence as Exhibit G. The Respondent was inter alia awarded the contract to construct the road.
In executing the contract, the Respondent entered upon the Appellant’s land to construct part of the road in question and also dug a burrow pit for the purpose of the construction. This was discovered by the Appellant in 1975. The road occupied an area of 3.29 hectares and the burrow pit 0.77 hectare of the Appellant’s land. The Appellant instructed his Solicitors to write to the Respondent. A letter Exhibit B, was accordingly written on the 29th April, 1975 by the Solicitors to the Appellant complaining about the Respondent’s entry on to the land. The letter reads in part as follows-
“6. We have advised our clients (sic) that litigation is both dilatory and expensive and he has accordingly instructed that you should enter into negotiations with us with a view to your paying adequate compensation for trespass and damages. You may, therefore, care to know that our office is open for such negotiations from 8.am to 1 p.m. and 5 p.m. to 7.30 p.m. on every working day.
- TAKE NOTICE that if within twenty one days of the date hereof you fail or neglect to come to this office for the said compensations, we have further instructions to institute Court action against you …. ”
The Respondent, in Exhibit C, replied as follows –
“Reference is made to your letter AMG/JIR/1 -75 of 29th April, 1975. Please note that the Ministry of Works and Transport, Benin City, is the one which (sic) such cases should be referred to.”
Following this, the Appellant addressed a letter to the Ministry and he received a reply, Exhibit D, which reads thus-
MINISTRY OF WORKS AND TRANSPORT
(CIVIL ENGINEER DIVISION)
BENIN CITY
BENDEL STATE OF NIGERIA
23rd February, 1976
Your Ref: Our Ref: CE. 270/3/33
M/s. Igiekhume & Co.,
Ikelebe Chambers,
31, New Lagos Road,
P.O. Box 485,
Benin City.
Dear Sirs,
RE:- CLAIM FOR TRESPASS AND DAMAGES
Reference is requested to your letter AMGI/JIR/1 – – ’75 of 29th April, ’75 addressed to MIS. Niger Cat Ltd., with copy to the Permanent Secretary, Ministry of Works and Transport, Benin City.
The road that is the subject of discussion is the IIushi lruekpen – Ozabha – Ifon Road. The construction of this road is supervised by the Federal Ministry of Works. The claim for damages should therefore be made to the Federal Ministry of Works.
Yours faithfully,
(SGD) G.M. YOGAMANDAN)
for: The Permanent Secretary.
Ministry of Works and Transport,
Benin City.
Again as a result of Exhibit D. the appellant wrote yet another letter to the Federal Ministry of Works which replied (Exhibit E) as follows”
FEDERAL MINISTRY OF WORKS
HIGHWAYS DIVISION
HEADQUARTERS, LAGOS
P.M.B. NO. 12564
Telegram: PERMWORKS Ref: No. WR. 10485/Vol.1/18
Telephone: 56096 Date: 9th march, 1976
Messrs. Egiekhume & Co.,
Ikelebe Chambers,
31 New Lagos Road,
P.O. Box 485,
Benin City,
Bendel State.
Dear Sirs,
Ilushi Uzebba Road: Contract No. 1369
Claim for Trespass and Damages
Please refer to your letter No. IC/JIR1.76/4 of 25th February, 1976.
- The Ilushi-Uromi-Western State Border road is a State road taken over by the Federal Military Government from the Bendel State in October, 1974.
The contract for the reconstruction of the road was awarded by that State Government in January, 1974. Matters relating to land acquisition and compensation should therefore be properly dealt with by the Bendel State Government who awarded the contract. You should therefore refer your claim to them for consideration.
- This letter is being copied to the Bendel State’s Ministry of Works and Transport for its attention.
Yours faithfully,
(G.E.Otobo)
Ag. Assistant Director (Construction),
for Permanent Secretary .
The Appellant then felt that a stop must be put to the passing of the buck. He therefore decided to bring the present action against the Respondent. As to be expected, the Respondent put up the following defence in paragraphs 3.4. & 5 of its statement of defence –
“3. In answer to paragraphs 5 and 6 of the Statement of Claim the Defendant stoutly denies trespassing on the Plaintiffs farmland. The Defendant states that the Company took on contract from the Bendel State and Federal Government the construction of Ilushi/Iruekpen/Uzebba Road and the plan for the said construction (sic) of the said road received the express approval of the Federal Ministry of Works. The Defendant will found upon the contract agreement for the construction of the said Federal Road, the approved plan and to other related documents and papers.
- The Defendant will at the trial of this case contend that the area over which the said Illushi/Uzebba Road passed had been compulsorily acquired (sic) for public purpose of the Federation or of the Bendel State. It is this road that passes through the Plaintiff’s alleged farmland.
- The Defendant states that compensation for burrow pits along the said road in Ozalla Community (sic) while compensation for the crops destroyed on the said land was paid to the respective owners. The Defendants will found upon the agreements, receipts and other documents for the payment of compensation.”
At the hearing of the action, the Appellant testified on his behalf and called one witness – an estate valuer. The Respondent called four witnesses. The learned trial Judge found as follows-
“…………the action before me is a claim for damages in trespass or in the alternative compensation in lieu of damages. This Court is not called upon to assess compensation payable to the Plaintiff for the Plaintiff (sic) for his farm land which this Court has already held was never acquired as required by Decree 33/1976 (i.e. Public Lands Acquisition (Miscellaneous Provisions) Act. 1976 No. 33). The mere use of the word “compensation” in a claim for damages for trespass does not ipso facto oust the jurisdiction of the High Court to hear and determine the real question or questions in controversy between the parties I am satisfied that Plaintiff was, at the material time to the trespass complained of in this action, in possession of the parcel of land leased to him over which Ilushi-Uzebba Road traversed, as well as that portion thereof on which a burrow pit was dug by the Defendant company …..
I also find as a fact that Defendant company trespassed on Plaintiffs land and caused damages thereto. namely burrow pit the size of which Plaintiff gave as 0.77 hectare which was not challenged; and also the area occupied by the road within his farm as 3.29 hectares now lost to him (sic). I also believe that since the road cuts Plaintiffs farm land into two halves perpetually for the remainder of the term of years on the land, he will incur extra costs of transporting machinery of N120.00 per annum. This too was not disputed by evidence or challenged under cross-examination……… From the evidence before me, particularly that of Plaintiffs only witness, the valuer, I am satisfied that the special damages claimed and specifically pleaded have been strictly proved beyond questioning ….I am satisfied on the preponderance of evidence that the special damages claimed in respect of the burrow pit and the offending road have been strictly proved …
The learned trial Judge then assessed the damages due to the Appellant in this manner –
“Plaintiff has, in my opinion, successfully proved special damages in respect of the burrow pit, N7,000.00 (Seven thousand Naira) in respect of the area (sic) of 0.77 hectare covered by the burrow pit; N4.112.50 in respect of 3.29 hectares at N1,250.00 per hectare, occupied by road within his farm; N11,520.00 disturbance costs for 96 years at N12.00 per annum; total N22,632.50. With regard to the general damages claimed, I am of the view that the special damages awarded are sufficient to satisfy the damages suffered by the Plaintiff, and in the result no general damages will be awarded as it will be excessive in the circumstances. The claim for general damages is therefore refused.
In effect only the sum of N22,632.50 was awarded to Appellant as special damages. Now the Respondent appealed from that judgment to the Court of Appeal, raising three issues, to wit-
(a) Should the Defendant have been found liable as trespasser on the Plaintiffs land
(b) Should the trial judge have awarded N11,520.00 special damages against the Defendant for disturbance on the cost of transportation of machinery which the trial judge found to be non-existent And
(c) Should the trial judge have awarded N4,113.00 damages against the defendant in respect of land occupied by a thoroughfare which the Defendant constructed for public use
In considering these questions, the Court of Appeal (Okagbue, Ikwecheghi and Pepple J.J..C.A.) made the following observation –
“From their pleadings and Exhibit C, it is evident that the Defendant presumed that the Bendel State Government had acquired the land (in dispute) and would pay compensation to the owners. Having signed a contract, Exhibit G, with the State Government for the construction of the road and having been given the green light to get on with the work, Defendants were certainly entitled to so presume. The Ministries of Works of Bendel State and the Federal Government accepted responsibility for whatever Defendants did on the land. From Exhibits D and E it is obvious that while Bendel State Ministry of Works thought that the Federal Government would pay the compensation, the Federal Government took over the project after the contract had been awarded, the request for compensation should he directed to the Bendel State Government which it presumed, had already acquired the land before awarding the contract. It was only a matter of getting the two views reconciled and the payment would be made.”
The Court of Appeal then went on to make the following findings before allowing the appeal before it and setting aside the judgment of the High Court-
“From the evidence, Defendants were on the land as agents of the Federal and Bendel State Ministries of Works. Generally, a person injured by the tort of an agent has a cause of action against the agent as well as against his principal.
But in the circumstances of this case, in so far as the principals, namely the Federal Government and the Bendel State Government had admitted that they put the Defendants on the land, and had accepted responsibility in writing for the payment of compensation for the land, they have in effect rectified (sic) the act of the Defendants, and whatever Defendants did on the land is deemed to have been done by these Governments, and the Defendants are relieved of liability. As was said by Parke B. in Buron v Denman, (1848) 2 Exch. 167:
‘If the Crown ratifies an act, the Charter of the act becomes altered, for the ratification does not give the party injured the double option of bringing his action against the agent who committed the trespass or the principal who ratified it, but a remedy against the crown only, and actually exempts from all liability the person who commits the trespass.’
I have no doubt that the law is the same today and the Governments in this Country are in the same position as the Crown was in the colonial times. See Hull v Pickersgill (1819) 1 BAB 2 and Hilbery v Hatton (1864) 2 H & C 822” (italics are mine)
With respect, I do not think that statement of the law is correct in so far as the fact of the case before the Court of Appeal were concerned. But I will deal with that later. The Court of Appeal concluded its judgment with this sentiment –
“The Federal and Bendel State Governments, having ratified and adopted their acts on the land, this action ought not to lie against the Defendants who are a contracting company engaged in construction of much needed roads in this country. And the award of damages against them in these circumstances is inequitable, contrary to public policy, and hardly in the overall interest of the Nation.
Having come to this conclusion, I do not intend to look into the bases and quantum of the damages awarded.”
The Appellant was aggrieved by the decision and so he appealed against it to this Court. Only two grounds of appeal were filed but the issues arising in the appeal for determination by this Court are three. These are admirably formulated in the Respondent’s brief of argument and they read – (i) Whether the Court of appeal was right in holding that in so far as the principals, namely, the Federal Government and the Bendel State Government had admitted that they put the Respondent on the land and had accepted responsibility in writing for the payment of compensation for the land they had in effect ratified the act of the Respondent and whatever the Defendant did on the land is deemed to have been done by the governments, and the Respondent is thus relieved of liability.
(ii) Whether the Court of Appeal was right in holding that the Federal and State Governments having ratified and adopted the acts of the Respondent on the land, this action ought not to lie against the Defendants who are contractors engaged in construction of roads in the country.
(iii) Whether the Court of Appeal having found as in (i) and (ii) above was right in dismissing the Appellant’s case in its entirety against the Respondent who the Court found not to be a trespasser, having regard to the 4 (four) grounds of appeal filed and argued before it”
Prince Igiekhume, learned counsel for the Appellant, argued in the Appellant’s brief of argument that the Court of Appeal was wrong in holding that the Respondent was not liable for the Appellant’s claim. His reason for so arguing being that since the Respondent defended the action without joining the Federal Government and the Government of Bendel State as co-defendants to the action, the Respondent had, by implication, accepted to be bound by the decision of the High Court.
On the issue of payment of compensation for the burrow pit dug on the land in dispute, learned counsel for the Appellant contended that the Respondent was liable, under the agreement the Respondent entered with Bendel State Government (Exhibit G) for the construction of the road, to pay compensation to the Appellant Clause 6206 of exhibit G. provides, as relevant, as follows:-
“6206……………..The Contractor shall arrange and pay for any compensation or other payments whatsoever required for access to and occupation and use of the burrow pits for sub-base course and selected shoulder materials.”
(italics mine).
Learned counsel submitted that the Respondent had admitted in paragraph 5 of its statements of defence (quoted above) that it was solely responsible for the payment of compensation in respect of burrow pits. Although the Respondent entered agreement in Exhibits H, and H1 with Ozalla Community to pay to the Community the compensation due for burrow pits and in fact paid the sum of N92.00 in that respect to the Ozalla Community; those agreements, learned counsel for the Appellant argued, had nothing to do with the Appellant’s land, because Exhihits H and H1 were executed on the 2nd October, 1976 long after the Appellant had acquired title over the land in dispute and the Ozalla Community had divested themselves of possession of the land in question.
Mr. Rerri, learned counsel for the Respondent, conceded that having regard to Exhibits H and G the Appellant was entitled to the special damages awarded by the trial court in respect of the burrow pit on his land.
Hence our reason for allowing the appeal in part and awarding to the appellant N7,000.00 as special damages as found by the trial court.
With regard to the ratification by the Federal Government and the Government of Bendel State, of the Respondent’s trespass on the appellant’s land, learned counsel for the Respondent canvassed that the Court of Appeal was right in holding that the Respondent was not liable. He relied on the English cases cited by the Court of appeal in so holding and in addition the decision of the Court of appeal in Edok-Eter Mandilas Ltd v Ale & Ors., (1985) 3 N.W.L.R. 43 at pages 49 – 50, which followed the decision of the Court of Appeal in the present case.
Now it is necessary to examine the position of the government in England vis-a-vis the tort of its agent. At common law when a wrong is done by an officer of the Crown to a British subject the person wronged has no legal remedy against the sovereign, for the King can do no wrong. But the person wronged may sue “the King’s officer for the tortuous act, and the King’s officer cannot plead the authority of the sovereign, for “from the maxim that the King cannot be wrong it follows, as a necessary consequence, that the King cannot authorize wrong” – see Tobin v The Queen, (1864) 16 C.B. (N.S.) 310; Feather v The Queen, (1865) 6 B & S257 and Johnstone v Pedlar. (1921) 2′ A.C. 262 at page 275 (per Viscount Cave). This principle of the common law gave rise to the general rule that whatever the liability of the Crown servants or agents of the crown are personally liable for torts committed by them, notwithstanding that the acts leading to the commission of the torts were expressly authorized or ratified by the Crown – See paragraph 524 of Halsbury’s Laws of England, 3rd Edition, Volume I. There is, however, an exception to the general rule which exists in cases of “”acts of state.”
In considering the doctrine of the “acts of state” Lord Denning M.R., observed as follows in Buttes Gas & Oil Co. v Hammer, (1975)2W.L.R. 425 at page 435 –
“……..Speaking generally, it (the doctrine of acts of state) is a defence to an action of tort. If a person is sued for an alleged wrong, a defence may in proper circumstances be available to him on the ground that he acted under the orders of the British Government or a foreign government, or that his act was authorised by it or subsequently ratified by it. But the circumstances in which this defence is available are very ill defined. It is still in the process of being worked out in the cases. It is not available in respect of wrong done in this Country to a British subject or even to a foreigner. And is probably not available in respect of a wrong done to a British subject where ever committed. It is, however available in respect of an act done to a foreigner outside Her Majesty’s Dominions by a British subject by the authority of the British Government: See Buron v Denman, (1848) 2 Exch. 167; or of a foreign sovereign state: See Carr v Francis Times & Co. (1902) A.C. 176.”
By virtue of the provisions of section 3 of the Laws of England (Application Law) Cap.60 of the Laws of the Western Region of Nigeria, 1959, the common law of England was made applicable to the Mid-Western State. The section reads:-
“3 From and after the commencement of this Law and subject to the provisions of any written law, the common Law of England and the doctrines of Equity observed by Her Majesty’s
High Court of Justice in England shall be in force throughout the Region.”
It follows, therefore, that at the time the action in this case was brought in 1975, the Government of Mid-Western (now Bendel) State could not be sued for tort. Nor was the Federal Government liable in tort in view of the provisions of section 45 subsection (1) of the Law (Miscellaneous Provisions) Act, Cap.89, Laws of the Federation of Nigeria, 1958, Volume III, which states-
….. the common law of England in so far as they relate to any matter within the exclusive competence of the Federal legislature, shall be in force……..in the Federation,”
Although the position in England was changed by the Crown Proceedings Act, 1947, which put the Crown on the same footing as a British subject, though with some limitations (see section 2 thereof) there was no similar change in Nigeria at the time the appellant instituted this case in 1975, So that the Federal Government and the Government of the Mid-Western State were not liable for the tort of their servant or agent.
Now to return to the doctrine of acts of state, from the dictum of Lord Denning in the case of Buttes Gas & Oil Co. (supra) it is clear that the defence of act of state could not be available to the respondent in the present case, because the appellant is a Nigerian citizen and the tort complained of against the respondent was committed in Nigeria. A brief narration of the facts of Buran v Denman (supra), and Walker v Baird & Anor (1892) A.C.49 will illustrate the doctrine further.
In Buron v Denman (supra) the defendant, Captain Denman, was a British naval officer engaged on the coast of Africa in measures for the suppression of slave trade, The plaintiff – Buron was a Spaniard engaged in slave trade. The acts in respect of which the action was brought were the destruction by the defendant of the barracoons in which the plaintiff kept slaves for shipment and the release of the slaves. It was held that since the tort was committed abroad and against a foreigner, it was open to the defendant to plead that his act was done by the orders of the British Government, or that after it had been committed it was adopted by the British Government.
In Walker v Baird & Anor. (supra) the officers of the Crown had, with the authority of the Government, seized a lobster factory in Newfoundland belonging to British subjects. An action was brought in the Courts of Newfoundland against the officers engaged. The Superior Court of Newfoundland held that, in an action of that nature, in which the plaintiffs were British subjects, for a trespass within British territory in time of peace, it was no answer to say in exclusion of the jurisdiction of the municipal courts that the trespass was an act of state. An appeal to the Privy Council against the decision of the superior court, was dismissed.
Therefore, I am of the view that the decision of the Court of Appeal based on Buran v Denman (supra) and the other English cases it relied upon, as well and its decision in the case of Edok-Eter Mandilas Ltd. v Ale & Ors. are wrong.
It was for the aforementioned reasons that I allowed the appeal and set aside the decision of the Court of Appeal.
OBASEKI, J.S.C.: On the 7th day of April, 1987, this appeal was allowed after the submissions of counsel for the parties. The decision of the Court of Appeal was set aside and judgment was entered for the appellant in the sum of N7,000.00 special damages with costs. The case was then adjourned till today for delivery of the Reasons for the judgment. I now proceed to give my reason.
I have before now, had the advantage of reading in draft the Reasons for the Judgment just delivered by my learned brother, Uwais, J.S.C. I agree with the Reasons given in support of the judgment for N7,000.00 given by my learned brother and adopt them as my own for allowing the appeal, setting aside the decision of the Court of Appeal and entering judgment for the appellant for N7,000.00 with N300.00 costs.
The plaintiff/appellant instituted this action on the 27th day of April, 1978 against the defendant/respondent in the High Court of Justice, Bendel State of Nigeria holden at Auchi claiming N100,000.00 (One hundred thousand Naira) damages for trespass whereof N22,633.00 was claimed as special damages and N77,367 was claimed as general damages.
The particulars of
special damage pleaded were
Value of 3.29 hectares
occupied by Road N 4,113.00
Disturbance costs N11,520.00
Value of 0.77 hectares
burrow pit N 7,000.00
Total N 22,633.00
The appellant in the alternative claimed an order of court, that the plaintiff is in any event, entitled to and shall be paid at least N22,633.00 compensation. The facts are not in dispute and may be briefly stated as follows:
The respondent company was awarded a road contract by the Bendel State Government in 1974 to construct llushi/Iruekpen Uzebba Road in accordance with the plan made by the Mid Western State Government, Exhibit G is the contract. The Federal Ministry of Works later took over the supervision of the construction of the road. The road passed through part of the appellant’s land at Ozalla in Owan Local Government Area and when appellant invited the respondent through his solicitor for discussion regarding compensation for the crops and land taken up by the road, the respondent referred him to the Bendel State Ministry of Works. The appellant then contacted Bendel State Ministry of Works. Instead of giving him due attention, the Bendel State Ministry officials referred him to the Federal Ministry of Works. The officials admitted that the Federal Ministry of Works were supervising the road construction but referred the appellant back to the State’s Ministry of Works for payment of compensation.
According to the appellant’s pleadings and evidence:
“Tired of this shifting of responsibility, the plaintiff decided to take the party that actually broke and entered into his farm unauthorized to the court.”
The appellant won in the trial court, the High Court and the learned trial judge, Bare, J. entered judgment for him for N22,632.50 (twenty two thousand, six hundred and thirty two Naira, fifty kobo) being special damages for trespass committed by the defendant company on plaintiff’s farm-land situate between Ozalla and Oharmora along Ilushi-Uzebba Road. He then struck out the alternative claim for an order for entitlement to compensation. The learned trial judge refused to award general damages holding that the special damages awarded are sufficient to satisfy the damages suffered by the plaintiff/appellant.
The respondent was dissatisfied and so appealed to the Court of Appeal. The Court of Appeal, after hearing argument of counsel for the parties, allowed the appeal in a considered judgment.
Barclay Berepikibo Pepple, J.CA, delivered the lead judgment concurred in by Okagbue and Ikwechegh, J.C.A. The concluding paragraphs which was subject of severe criticism in this Court reads:
“But the circumstances of this case, in so far as the principals namely, the Federal Government and the Bendel State Government had admitted that they put defendants on the land and had accepted responsibility in writing for the payment of compensation for the land, they have, in effect, ratified the act of the defendants and whatever defendant did on the land is deemed to have been done by these governments and the defendants are relieved of liability. As was said by Park B. in Buron v Denman (1848) 2 Exch 167:
“If the crown ratifies an act, the character of the act becomes altered for the ratification does not give the party injured the double option of bringing his action against the agent who ratified it, but a remedy against the crown only and actually exempts from all liability the person who commits trespass,”
I have no doubt the law is the same today and the governments in this country are in the same position as in colonial times. See also Hull v Pickersgill (1819) 1 B & B 282 Hilbery v Halton (1864) 2 H & C 822. The Federal and the Bendel State governments having ratified and adopted their acts on the land, this action ought not to be against the defendants who are contracting company engaged in construction of much needed roads in this country. And the award of damages against them in the circumstances is inequitable, contrary to public policy and hardly in the overall interest of the nation’”
It is not a question of ratifying the act of the respondent. Ratification implies that the initial action was not authorised. The evidence conclusively shows that the action of the respondent, i.e. the construction of the road along the path it took in Ilushi-Ozalla-Uzebba was authorised in writing. The issue of the burrow pits was separated from the road in the contract Exhibit G. The respondent was, under the contract to make his own arrangement about burrow pit and payment of compensation for the earth taken therefrom with the land owners. See Exhibit G.
While the Federal and State Governments accepted liability for the land taken by the road, they took no liability for the earth taken from burrow pit dug on land adjoining the road. It was therefore in that light that counsel for the respondent, Mr Rerri, conceded liability for the burrow pit which was assessed by the learned trial judge at N7000.00
I accordingly allowed the appeal on this issue and awarded N7,000.00 damages. Going on another’s land to dig burrow pit without the owner’s consent is trespass.
It was for the above reasons and the reasons stated in the Reasons For Judgment delivered a while ago by my learned brother, Uwais, J.S.C. that I allowed the appeal and restored the N7000.00 awarded as special damages by the trial court in respect of the burrow pit dug on the land by the respondent.
SC.130/1985
