Kopek Construction Ltd. V. Johnson Koleola Ekisola (2010)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C.

The respondent in this appeal was the plaintiff at the Ibadan High Court of Oyo State, where on 2/12/1992 he issued a writ of summons against the appellant as the defendant claiming two reliefs which were set out in his ‘Further and Further amended statement of claim’ filed on 1/12/96 thus:

“1) The sum of twenty million Naira being special and general damages for continuing trespass starting roughly from June, 1992 committed by the defendants (sic) on plaintiff’s land at Ibadan/Lagos expressway.

2) Injunction to restrain the defendants (sic), their agents, servants and assignees from continuing the said trespass.”

The parties filed and exchanged pleadings after which the suit was heard by Adeniran J. In the judgment delivered by the trial judge on 30/5/95, the claims of the plaintiff were granted in their totality. The defendant before the trial court and now appellant in this court brought an appeal against the judgment of the trial court before the court of Appeal sitting at Ibadan (hereinafter referred to as ‘the court below’).

On 25/1/2002, the Court below in its unanimous judgment affirmed the judgment of the trial court as to the claim for trespass and injunction. It however reduced the damages awarded by the trial court from twenty million naira to two million, five hundred thousand naira.

The defendant was still dissatisfied with the judgment of the court below and has come before this court on a final appeal. The plaintiff also was dissatisfied with the judgment of the court below as to the reduction of the damages awarded him by the trial court. He has also brought a cross-appeal before this court. It is convenient to refer to the parties by the description they bore before the trial court i.e. plaintiff and defendant. I shall hereafter refer to them as such. In the appellant’s brief filed on behalf of the defendant, the issues identified as arising for determination in this appeal are:

“1) whether the transfer of title and or possession to the Plaintiff/Respondent in the presence of only one witness constitutes a valid transfer of title to him under native Law and custom.

2) whether there was a valid transfer of title from the Respondent’s predecessor in title to the respondent himself.

3) whether the court of Appeal was right to hold that on the state of pleadings the parties were clear as to the identity of the land in dispute,

4) whether the court of Appeal was right in awarding damages in the sum of N2,000,000.00 as special damages against the defendant.

5) whether the Court of Appeal ought not to have awarded nominal damages as general damages (if any) against the defendant.”

In the cross-appellant’s brief filed on behalf of the plaintiff, the issues for determination in the Cross-appeal were formulated thus:

“i) whether the Court of Appeal was justified to have interfered with the award of special and general damages;

2) whether the award made by the trial court amount (sic) to double compensation;

3) whether the award made by the Court of Appeal was not unreasonably low in view of the evidence on record,”

It is helpful to consider the pleadings of parties in order to have a clear understanding of the nature of the dispute between the parties to this appeal and how the two courts below approached the issues. The plaintiff in his Further and Further amended statement of claim pleaded clearly his source of title and how the said title devolved on him. The said title was traced to the Akobi Elemu family which was said to have sold the land in dispute to one Salio Adeola Salako vide a. Deed of Conveyance dated 9/4/76 and registered as No, 9 page 9 in volume 1929 of the Lands Registry, Ibadan. It was pleaded further’ that the aforementioned Saliu Adeola Salako sold the land to the plaintiff vide a purchase receipt dated 27/10/76; and that the plaintiff has since then been in possession of the land. The plaintiff in paragraphs 12 to 18 of his pleadings pleaded the acts of trespass which led to the dispute thus:

“12) in June,1992 the Plaintiff observed that the Defendant and its agents and servants broke into the land marked red on Exhibit ‘A’ excavated the laterite and carried them away without the consent of the plaintiff, and had refused neglected and failed to discontinue the trespass despite repeated warning.

13) The Defendant disfigured the said land by making big holes into it and carrying away commercially valuable laterite and also depreciated the value of the land by their activities; and trespass.

14) Plaintiff avers that the volume of excavation is about 63,631m while allowing for bulking is 21,208.2m. Thus the total compacted volume of excavation done on the Plaintiff’s land by the defendant is 84,839.2m3.

15) Plaintiff avere that the cost of laterite is N135/m3

16) The Plaintiff suffered special damage in the form of depreciation in the value of the land and in form of loss by the Defendant’s carrying away of valuable laterite and earth, estimated at N11,453,293.66k which sum the plaintiff claims as special damages.

17) Plaintiff avers that he had wanted to use the land to build a warehouse and office complex on it.

18) Plaintiff avers that to put the land into use, he would require not less than N20,000,000.00 (twenty million Naira) and he claims this amount from the Defendants.”

In the amended statement filed by the Defendant, it was pleaded in paragraphs 3 – 11 thus:

“3) As regard paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the statement of claim the 1st defendant in denying says that the plaintiff was not in possession of the land in question and that the land did not belong to the plaintiff.

4) The 1st defendant denies paragraph 12 of the statement of claim and states that it did not enter the land in June 1992 as averred by the plaintiff.

5) The defendant states further in regard to paragraph 12 of the statement of claim that it did not excavate soil gravel or granite from the land in question and that it did not receive any warning to discontinue my alleged trespass.

6) The 1st Defendant denies paragraph 13 of the statement of claim and states that the land in question was already heavily exploited of laterite and was abandoned. The 1st defendant states further that the land could not be excavated manually and it was only able to excavate a small amount of laterite by use of adequate equipment.

7) The 1st defendant avers that they visited the site for barely two months and that they vacated the land in 1992.

8) The 1st defendant was lawfully licensed to excavate laterite from the said piece of land.

9) The 1st Defendant will contend that the plaintiff had no title to the land from which the 1st Defendant took some laterite.

10) As regards paragraphs 12, 13, 14, 15, 16, 17, 18 and 19 of the statement of claim the Defendant in denying say that they did not excavate, gravel and granite of the amounts pleaded thereof or any at all.

11) The defendants say that they have not been on the land at the back of Mobil petrol station just before the toll gate on Ibadan and of Ibadan/Lagos express road.”

It is apparent from the averments contained in the defendant’s pleadings above that the defendant was clearly evasive and inconsistent to a level that one could say that it had not set out to seriously defend the plaintiff’s suit. The defendant pleaded that the land did not belong to tile plaintiff but failed. To say that the land belonged to it. In one breadth it alleged that it did not commit any act of trespass on the land in dispute but alleged in another breadth that it removed some laterite from the land by “the use of adequate equipment.” Was that the defendant’s way of saying that incursion on another person’s land would not constitute trespass if an ‘adequate equipment’ was used in the process

At the conclusion of hearing, the trial court in its judgment discussed the issue of the ownership of the land in these words.

“It is trite that where two persons claim possession at the same time over the same piece of land possession reside in the party who has a better title. This is a common place authority that it is unnecessary to cite decided cases on it. They are so many. We will now examine the title of each party to decide which of them has a better title. The plaintiff in his pleading i.e. amended statement of claim in paragraphs 7, 8, 9, 10 and 11 to support his title. Plaintiff has also called PW.2 to support his claim. Plaintiff also tendered the purchase receipt Exhibit E. All these plaintiff has done to prove sale to him by his vendor the late, Saliu Salako. The Plaintiff has thus proved that he paid the purchase price he was let into possession and the sale took place in the presence of at least a witness 2nd PW. I therefore hold that the plaintiff has led evidence to prove ingredients of sale under native law and custom

I believe his pieces of evidence verbal though and witness (P.W.2) and documentary (Exhibit E) and therefore hold that Plaintiff’s title to the land in dispute is under native law and custom and is valid.”

And at page 203 of the record of proceedings, the trial judge said:

“In the circumstances therefore I come to the irresistible conclusion that from evidence proffered by both sides, the plaintiff had proved better title i.e. if the defendant has proved any title either in Oyerinde or his brother Adedibu, it has not. In effect therefore exclusive possession is at all material times in the plaintiff. Mrs. Ayoola submitted that surveying of land and buying of land and buying pillars thereon is a very strong evidence of corning into possession.

I agree with her. Plaintiff being the owner of the land in dispute and also being in exclusive possession has the right to sue the defendant who has no justification whatsoever to be on the land in dispute for trespass. What then does trespass mean At page 461 (D – F) in Onabanjo vs Ewetuga (1993) 4 N.W.L.R. (part 288) Ubaezonu J.C.A. said “trespass is essentially a wrong or inquiry to possession and consists of any direct interference with possession. In regard to immovable property such as land, an, action for trespass will be for any unauthorised disturbances of such property of which the plaintiff is in possession, whether the nature of the disturbance is stepping on the land or going on it and doing a more substantial damage.”

(Underlining mine)

Now, how did the court below react to the above findings of fact by the trial court At page 366 of its judgment, the court below per Tabai J.C.A. (as he then was) observed:

“It is settled that where two persons claim to be in possession of the same piece of land, the persons with the superior title is ascribed by law to be in possession. See LOUIS ONIAH & OTHERS V. Chief Obi J.I.G. Onyia [1989] 1 NWLR (Part 99) 514 at 529; JIMOH ADEKOYA ODUBEKO V. VICTOR OLADIPO FOWLER& MOR [1993] 1 NWLR (Part 308) 637 at 657; MOGAJI V. ODOFIN [1978] 4 SC.91 AT 96 and AROMIRE V. AWOYEMI [1972] 1 All NLR (Part 1) 101 at 112-115. In this case both parties claim to be in possession of the land in dispute. As I said above the appellant led practically no evidence about title of that person who granted it the licence. On the other hand, the Respondents proof of title to the land in dispute was substantially as plead.”

And at page 367 of the record, the court below said:

“I agree that all the authorities relied upon by the Appellant used the word witnesses and not ‘a witness’ or’ at least one witness’. But in the absence of a clear categorical statement on the point, I am reluctant to construe that s in the various Supreme Court authorities to have laid down a principle that any sale of land transaction under native law and custom in the presence of only one witness is invalid. Such a narrow interpretation is, in my view, capable of according to the s a meaning never intended by the Supreme Court. . After all it not infrequently happens that one witness of a particular transaction has a greater weight and credibility than two or more, depending on the circumstances. In the absence of a direct pronouncement by the Supreme Court on the point therefore, I am inclined to the view of the learned trial judge that land sale transaction under native law and custom concluded in the present of only one witness is a one. On the whole I am of the view that the learned trial judge was right in his conclusion that the Respondent has a better title to the land in dispute and is by law ascribed to be in possession. This is a particularly so as there was practically no evidence of title by the person who allegedly granted the Appellant the licence to excavate laterite on the land in dispute. The first issue is accordingly resolved in favour of the Respondent.”

Before this Court, appellant’s counsel has submitted that in older to acquire a valid title to land under customary law, a party must show that there was compliance with the necessary formalities under customary law. It was contended that in this case, the plaintiff did not show that there was payment of purchase price for the land and the delivery of possession in the presence of witnesses. Counsel relied on Folarin V. Durojaiye [1988] 1 NWLR (Part 70) 357; Erinosho v. Owokoniran [1965] NMLR 479; Okiji v. Adejobi [1960] 5 F.S.C. 44. Counsel said that the plaintiff could not be said to have established his title to the land in dispute since he did not call the evidence of such customary ‘handing over’ of the land in the presence of witnesses. Respondent’s counsel in her brief argued that this Court should not disturb the concurrent findings of fact made, by the two courts below. Counsel relied on Abimbola v. Abatan [2001] FWLR (Pad 46) 989 at 1001; Obayuwana v. Ede & Ors. 2003 FWLR (Part 136) 1027; Enang v. Adu [1981] 11-12 SC25 at 42; Nwadike v. Ibekwe [1987] 4 NWLR (Part 67) 718; Igwego v. Ezengo [1992] 6 NWLR(Part 247) 561 and Chukkwendu v. Mbamali [1980] 3-4 SC31 at 75.

It is indisputable that the plaintiff’s suit was founded in trespass. In paragraphs 10, 11 and 12 of his Further and Further Amended Statement of Claim, the plaintiff pleaded thus:

“10. The land sold to the plaintiff by Saliu Meola Salako was surveyed in December, 1975 to enable the identity of the land being sold to be clear, before payment of consideration.

11. After the payment Saliu Adeola Salako put the plaintiff in possession of the said land shown on Exhibit ‘A’, and plaintiff has since remained in possession thereof..
12. In June, 1992 the Plaintiff observed that the Defendant and its agents and servants broke into the land marked red on Exhibit ‘A’ excavated the laterite and carried them away without the consent of the plaintiff, and had refused, neglected and failed to discontinue the trespass despite repeated warning.”

The relevant survey plan of the land in dispute made by the surveyor’ A. O. Adebogun in 1975 was tendered in evidence as Exhibit ‘A’. The plaintiff testified as to when he bought the land in 1975. The son of plaintiff’s vendor Olukayode Sulaimo Salako testified as 2nd P.W. He stated that he took the plaintiff to the land in dispute on the instruction of his father who died in 1982. As against the evidence called for the plaintiff, the 1st D.W Alhaji Fatai Oyerinde testified 27/02/76. He said:

“I know the land behind Mobil Petrol Station Toll Gate Ibadan and the subject matter of this case. I am the caretaker of the land in dispute for’ my brother Lamidi Adedibu. In 1992 I gave part of the land for some mechanics to work thereon. Femi Olajide came to me and told me that the defendant approached him that they needed some laterite on the land in dispute. I then requested Femi to tell the defendant that its representative should meet me on the land. They came. Defendant’s representative said the defendant needed some of the laterite I dig from the land and they also wanted to dig their own. The defendant and I agreed on an agreement. Defendant prepared the agreement which we executed. One Jimah Agbaala Femi’s apprentice witnessed the document. I collected the agreed charge from the defendant. . I identify this as the licence i gave the defendant counsel applies to tender same.”

The evidence before the trial court amply shows that whereas the plaintiff had bought and been handed possession of the land in dispute since 1975, the defendant did not came on the land to excavate laterite until 1992.

In a claim for trespass, what is primarily in issue is the possession of the land in dispute, In Akano v. Okunade [1978] 3 SC 129 at 137 this Court per Obaseki JSC discussing the nature of possession in a case for trespass observed:

“The issue of possession is separable from the issue of radical title – (See Oluwi v, Eniola [1963] NMLR339 at 340) and in our opinion there is great merit in the submission: Any form of possession, so long as it is clear and exclusive and exercised with intention to possess is sufficient to support an action of trespass against a wrongdoer. A mere trespasser who goes into occupation cannot, however, by the very act of trespass and without acquiescence give himself possession against the person whom he has ejected. (See Halsbury Laws of England 3rd Edition Vol. 38 paragraph 1213 page 743)”

Similarly, this Court in Amakor v. Obiefuna [1974] 3 S.C 67 at 75-76 said:

“It is trite law that trespass to land is actionable at the suit of the person in possession of the land,

That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession on the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrong-doers except a person who could establish a better title. Therefore anyone other than the true owner, who disturbed this possession of the land can be sued in trespass and in such an action it is no answer for the defendant to show, (as the defendant/respondent had sought to show in paragraph 7 of his Statement of defence, although he gave no evidence in support of the averment) that the title to the land is in another person.”

And finally on the point in Okolo v. Uzoka [1978] 4 SC77 at 87 where this Court said:

“It is the law and this Court has so held times without number that trespass to land is actionable at the suit of the possession in possession of the land, (Amakor v. Obiefuna [1974] 1 All NLR, (Part 1, para. 119; Adeshoye v. Shiwoniku 14 WA.CA. 347; Emegwara & Ors. V. Nwlaimo and Others 14 W.A.C.A. 347; Tongi v. Kalil 14 W.A.CA. 331).

The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title (Whittingdom v. Box all [1943] 12 L.J.OB 318; Nwosu v. Olunola [1974] 1 All NLR. (Part 1) page 533.”

The plaintiff pleaded that he was in possession of the land in dispute at the time when the defendant entered thereon to excavate laterite. The plaintiff went further to call evidence of his possession.

The two courts below accepted the evidence of the plaintiff on his possession. This court does not make a practice of interfering with the concurrent findings of fact made by the two courts below. The argument of the defendant that the plaintiff did not call satisfactory evidence of his title overlooks the fact that the plaintiff, having shown his prior possession of the land in dispute, the onus shifted to the defendant to show that it had a better title. This, the defendant failed to do. The two courts below were therefore correct to hold the defendant liable in trespass.

As for the 3rd question which the defendant raised concerning the identity of the land in dispute, the short answer in my view is that no issue arose on the pleadings of the parties as to the identity of the land in dispute. In paragraphs 7, 8, 9 of its Amended Statement of Defence, the defendant pleaded thus: .

“7. The 1st defendant avers that they visit the site for barely two months and that they vacated the land in 1992.

8. The 1st defendant was lawfully licensed to excavate laterite from the said piece of land.
9. The 1st defendant will contend that the plaintiff had no title to the land from which the 1st defendant took some laterite.”

The issue of the identity of the land is not and cannot therefore be an issue in this appeal.

Under its issues 4 and 5, the defendant contends that the court below followed the wrong approach in the assessment of damages. The plaintiff for his part also contends that the Court below wrongly interfered with the damages awarded by the trial Court. At the trial, plaintiff called as his witness PW4 who testified as to the special damages suffered by the plaintiff at pages 103,104 of the record of proceedings thus:

“I visited the scene. The Plaintiff took me to the place and gave me to a survey plan of the area. I met all my visit a mechanical excavator and pail loader into which materials can be loaded. I visited the land on 21/1/93. I noticed some damage on the land. The property before excavation was a hill. It was even piece of land. But after excavation it was no more even as a result of the excavatioin from the survey plan it was obvious that the excavation has taken up almost all the area of the land. I assessed the damage. The soil in the area of the land is laterite this type of soil is used in road construction and it is an important item as it does not allow water to pass through easily i.e. semi permeable. The depth/height of the excavation was taken. (Height if from below & depth if firm above the excavation). My team also took spot heights along the profile and average depth by height multiplied by the area gives volume of excavation. Along 331/3% for building. The 33 1/3 add to the volume of excavation. After the exercise I wrote a report of my activities. I have it with me.

Mrs. Ayoola applies that the witness be allowed to refresh his memory from the report he wrote.

Defence does not object.

Court:- Witness is allowed to refresh his memory from his report

(Sgd.) T. O. ADEDIRAN

JUDGE

27/2/96

The total volume of excavated and compacted laterite was 84,839 cubic meters. The cost of laterite as on that day per meter cube was N135,000. This multiplied by the volume excavated and compacted is N11,453,293.66 (Eleven million four hundred and fifty three thousand two hundred and ninety three Naira sixty six kobo) To bring the area back to its previous position the plaintiff has to make use of a land retaining wall the length of the profile is 102 metre and height 14.4 m. Thickness of the retaining wall would be 9 metre.”

The trial court at page 208 of the record of proceedings in its judgment reasoned thus:

“Mrs. Ayoola learned counsel for the plaintiff in her final addresses submitted general damages are presumed in law. It needs no proof, and is awarded having regard to all circumstances of the case Amount of General Damages is N8,546,706.34. Court to put into consideration the seriousness of inconvenience the act of trespass by the defendant on plaintiff. P.W.4 said the land cannot be reclaimed and used until after 10 years. p.w.4 also said from the survey plan it was obvious that the excavation has taken up almost all the area of the land. According to Exhibit A the area of the land in dispute is 2.006 acres. The 4th P.W who in my considered view from the evidence in court is an expert Quantity Surveyor by profession. He gave evidence of how much excavation the plaintiff made and he gave evidence of how he arrived at it. He also told the court that the type of soil excavated by the defendant is laterite, a type of soil used in road construction and it is an important item which does not allow water to pass through easily, i.e. semi permeable.; From his calculation the evidence of which he gave, the volume of laterite excavated to be 84,839.2 cubic meters and according to him at the time of his calculations the price of laterite “was N135.00 per” cubic metre, making a grant total of N11.453,293.66. He therefore said that was the damage the plaintiff has suffered as a result of defendant’s trespass on the land in dispute. I agree with him and I so hold, i.e. for general damages.”

(underlining mine)

The trial court went further in its judgment to award a sum of N8,546,700.34 as special damages thus bringing the total damages awarded to the sum of N20,000,000.00.

The court below considered the award on damages made by the trial court excessive. In reducing the award to N2,500,000.00 the court below at pages 375-376 of the record reasoned thus:

“Having set aside the awards of damages and in view of the finding that the Appellant is liable to the Respondent in trespass the next question is the amount to be awarded in damages. In this issue

I am conscious of the fact that an appellate court is not normally justified in substituting a figure of its own for damages awarded by the trial court simply because it would have awarded a different figure if it had tried the case in the first instance. In this case however I have to intervene because of the wrong principles of law applied by the learned trial judge. I cannot allow the double compensation to stand. Nor can I allow the order of two special damages and no general damages to stand. I have accordingly set aside the two awards. And having regard to the fact that the Appellant is clearly liable to the Respondent in trespass I have to substitute for that of the learned trial judge.

For the special damages it is clear that the second award of N8,546, 706.34 was not in support of any pleadings in the Statement of Claim and therefore went to no issues, That award should accordingly be discountenanced and it is hereby discounted. But facts in respect of the N11,453,293.66 were pleaded in paragraphs 14, 15, 16 of the Statement of Claim and so that could form the basis of my reassessment. The amount represents the value of the laterite removed by the Appellant. The evidence in respect was virtually unchallenged and so the learned trial judge awarded the full amount. Upon examination however it is not clear how PW4 came to the figure of 84,839 square metres for the laterite excavated. It is also not clear about the basis for the N135.00 per cubic metre. Although the evidence as to the value of the laterite was virtually unchallenged, the learned trial judge ought to have taken the surrounding circumstances into consideration. These surrounding circumstances in my view include the price of N6,000.00 at which the land was purchased, the fact that there was no development thereon at the time of the trespass and the fact that the initial claim was for N2,000,000.00 and the fact that the entire N20,000,000.00 subsequently claimed was awarded. After taking these into consideration, I am of the view that the amount of N20,000,000,00 awarded was unreasonably too high. In the circumstances I award the sum of N2,000;000.00 special damages for the laterite removed.

The Respondent is also entitled to general damages for the trespass and I assess this at the rate of N500,000.00”

Now in Odulaja v. Haddad [1973] 11 SC.351 this Court discussed the nature of the distinction between special and general damages thus:-

“We are in no doubt that the distinction between proof of general damages as opposed to special damage is a matter of law. This distinction is manifest from the following two English decisions Stroms Bruks Aktie/ Bolag v. Hutschinson [1905] A.C. p. 515 and (b) British Transport Commission V Gourley [1956] A.C. p.185.”

In Stroms v. Bruks Aktie Bolag v. Hutchinson, Lord Macnaghteen at pages 525-526 after stating that he thought the division into General and Special damages was more appropriate to tort than to contract said:

General damages………are such as the law will presume to be the direct natural probable consequence of the act complained of. Special damages on the other hand are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and therefore they must be claimed specially and proved strictly.’

British Transport Commission v. Gourley, Lord Goddard had this to say at page 206:

‘In an action for personal injuries the damages are always divided into two Plain parts. First, there is what is referred to as special damage, which has to be pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial and is generally capable’ of substantially exact calculation. Secondly, there is general damage which the law implies and is not generally pleaded. This includes compensation for pain and suffering and the like and if the injuries suffered are such as to lead to continuing of permanent disability compensation of earning power in the future.”

There is no doubt that the trial court did not appreciate the distinction between general and special damages. Presumably, this led it to award damages which are patently excessive and amount to double compensation. In other words the trial court was over-generous to the plaintiff in the awards it made on general and special damages. It should not have awarded a further sum of. N8,546,706.34 as special damages in addition to the N11,453,293.66 it awarded as general damages. On the other hand, the court below was unduly parsimonious and in the process unwittingly found itself reconstructing the unchallenged evidence of loss given by the plaintiff and accepted by the trial court. This error the court below fell into in the attempt to find a justification for reducing the total amount awarded as damages by the trial court. The evidence of P.W.4, which was not appreciably challenged by the defendant clearly reveals the basis of his loss. It quantified the amount of laterite excavated from the land by the defendant and how much this would cost in the open market. Clearly therefore, the plaintiff established his claim for N11,453,293.66 awarded as ‘general damages.’ The trial court should have described that award as special damages and not general damages as it did.

On general damages of N500,000.00 awarded by the court below, I consider this as excessive having regard to the fact that the plaintiff has been adequately compensated by the sum awarded as special damages. In the award of damages, a court must be mindful of the necessity to ensure that a party is not doubly compensated for the same injury. See Ogaba v. Otubusin [1961} All N.LR. 299; Ekpe v. Fagbemi [1978] 3 S.C 209. It seems to me that an award of N50,000.00 as general damages would meet the justice of this case.

In the final conclusion, the appeal fails and is dismissed. The cross-appeal succeeds and is allowed. I award in favour of the plaintiff the sum of N11,453,293.66 as special damages and N50,000.00 as general damages. I award in favour of the Plaintiff/Respondent/Cross-appellant costs assessed and fixed at N50,000.00.

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SC.213/2002