3PLR – OSUJI V. ISIOCHA

Published by Law Nigeria Admin at September 28, 2018

OTHER CITATIONS

(1989) 3 NWLR (Pt.111)623

BEFORE THEIR LORDSHIPS:

KAYODE ESO, J.S.C. (Presided)

MUHAMMADU LAWAL UWAIS, J.S.C.

ABDUL GANIYU OLATUNJI AGBAJE, J.S.C.

ABUBAKAR BASHIR WALI, J.S.C. (Read the Lead Judgment)

EBENEZER BABASANYA CRAIG, J.S.C.

BETWEEN:

HON. NZE HERBERT OSUJI
MR. T.C.K. OSUJI – APPLICANTS

AND

ANTHONY ISIOCHA – RESPONDENT

REPRESENTATION

Chief M.I. Ahamba (with him P.C. Onumajulu ESQ.,) – for Appellants

A.B.C. Egu ESQ., – for Respondent

MAIN ISSUES

TORT AND PERSONAL INJURIES – Tort – Malicious destruction of property – Remedies.

REAL ESTATE – Land Law- Trespass to land -Exclusive possession -Meaning of.

PRACTICE AND PROCEDURE – Damages – Nature of – Quantum of – Trespass to land – Special Damages – Necessity of pleading – Effect of not pleading.

MAIN JUDGEMENT

WALI, J.S.C. (Delivering the Lead Judgment):

The plaintiff claims against the defendants jointly and severally, general damages for malicious destruction of his building on the land leased to him by the defendants’ father, situate at No.2 Owerri/Onitsha Road, Owerri (formerly known as No.1 Owerri/Onitsha Road). The plaintiff claims in paragraph 10 of his statement of claim as follows:-

“10. The destroyed building and shed cost the plaintiff about Sixty Thousand Naira (=N=60,000) to build and its present value before destruction was about One Hundred Thousand Naira (=N=100,000),”

and prays for the following relief in paragraph 11 of the Statement of Claim –

“11. The plaintiff has suffered an unjust damage and claims from the Defendants jointly and severally 4*100,000 (One hundred Thousand Naira) being damages.”

The defendants denied the plaintiffs claim. They filed a joint statement of defence.

At the conclusion of the trial the learned trial Judge (Chianakwalam) reviewed and considered the evidence adduced by the parties, made findings of facts and concluded –

“From the evidence before me, I find that the plaintiff has proved his case by balance of probabilities otherwise styled preponderance of evidence. He is entitled to judgment. Accordingly, judgment is hereby entered against the defendants jointly and severally in the sum of =N=100,000.00 (One hundred thousand Naira) with costs assessed at =N=500 (Five hundred Naira), which includes plaintiffs out-of-pocket expenses and filing fees.”

Dissatisfied with the judgment of the trial court, the defendants appealed to the Court of Appeal, Enugu, and the Court of Appeal, in a majority judgment delivered by Babalakin, J.C.A., with which Maidama, J.C. A., concurred, dismissed the appeal and confirmed the judgment of the trial court. Akpata, J.C.A., gave a dissenting judgment in which he agreed with the “reasonings and conclusions reached in all but one point” in the majority judgment which “relates to additional Ground 1, particular (iv).” After stating his reasons for doing so, he concluded his dissenting judgment thus –

“The position however is that there was trespass to a structure, a kiosk or a shed. As the remnants of the shed or kiosk may no longer be at the site it will not serve the interest of justice to remit this case to the High Court for retrial. As the learned trial Judge held that there was trespass to the structure in issue, I think, that justice demands that nominal damages be awarded to the respondent. In the circumstances, I award nominal damages of **5,000.00 (Five Thousand Naira), in favour of the respondent.”

The brief facts of the case can be stated thus –

Before 1966, the plaintiff who was at that time a motor driver was driving Chief J.K. Osuji to court and other places. Chief J.K. Osuji was the defendants’ father. And in 1966, apparently in appreciation of the plaintiffs services to him, Chief Osuji agreed to lease to the plaintiff for a consideration of £30 and for a period of 60 years, his parcel of land lying and situate at No.2

Owerri/Onitsha Road (then known and called No.l Owerri/Onitsha Road). The plaintiff went into immediate possession and put up 2 structures, a shed and a 15 bed-room house as per approved plans Exhibit A and B respectively. The 15 bedroom house is occupied by the plaintiff and his tenants while the shed was being used by plaintiff for storing and selling his wares. Both the house and the shed were constructed between 1966 and 1978 when the Defendants’ father, Chief Osuji, was still alive and he raised no objection. The Defendants also did not raise any objection at that time, until November, 1981, after the 1st defendant had been elected into Imo State House of Assembly and was appointed its Leader, when he sent his thugs onto the land to disturb and harass the plaintiff. The plaintiff complained to the Commissioner of Police and the Governor of the State about the incident and asked for protection but to no avail. The final onslaught came on 2nd December, 1982, when the Defendants, accompanied by their thugs, entered the plaintiffs land and destroyed the shed. The plaintiff immediately complained to the Police who advised him to take civil action against the defendants.

From now on, the plaintiff and the defendants will be referred to as the respondent and the appellants respectively.

Both parties filed and exchanged briefs. Learned counsel for the appellants formulated in his brief eight issues for determination while the respondent formulated four issues in his own brief for determination

The issues formulated by both the appellants and the respondent can be narrowed down to –

Whether trespass was jointly committed by the appellants by entering the respondent’s land, and if so,
Whether the damages awarded by the trial court to the respondent, which was affirmed by the majority judgment of the Court of Appeal was justified in the given circumstance.

In paragraph 8 of the Statement of Claim the respondent pleaded –

“On 7th December, 1982, the Defendants collected thugs and pulled down the plaintiffs building and carried away the wares therein. The destruction was carried out in the presence of Lawrence Onyenwe, Emmanuel Isiocha and Mrs. Juliana Emeka and others. When the plaintiff arrived at the scene, the defendants and their thugs threatened him with violence. The plaintiff reported to the Police who arrested them and they admitted destroying plaintiffs house. Photographs of the destruction were taken and shall be tendered at the hearing and relied upon.”

The facts averred in paragraph 8 of Statement of Claim supra were not specifically denied by the appellants; they were in fact admitted in paragraphs 3 and 4 of the Statement of Defence as follows:-

“3. The defendants deny paragraph 2 of statement of claim and aver that what was involved was not a building but a kiosk or at best a hut made of old plywood and empty box casings and old C.I. sheets.

This kiosk was left at the side of the road by the Road Construction Company doing the adjoining road. When they abandoned _, the kiosk the plaintiff in order to trespass into defendants’ ad-joining land carried the kiosk and attempted to plant it on defendants’ land without leave or licence from the defendants and the defendants objected and pushed it off into the gutter where it can still be seen up till now.”

In the respondent’s pleading it was averred that the appellants entered the land in the respondent’s exclusive possession without the latter’s con-sent, either express or implied. Trespass to land is unlawful interference with exclusive possession. “If the defendant placed a part of his foot on the plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it” – per Coleridge, C.J. in Ellis v. Loftus Iron Co. (1874) L.R. 10 C.P. 10 at 12. It is an act of trespass to remove or tamper with any part of a building or structure attached to land in the exclusive possession of another G which has become part of the land. Likewise it is trespass to place anything on or in the land in possession of another. See Lavender v. Bretts (1942) 2 All E.R. 72 and Simpson v. Weber (1825) 41 T.L.R. 302. Where even the plaintiffs title is defective, once he is in exclusive possession of the land in dispute, he can maintain an action in trespass against a defendant who could not prove a better title. See Alhaji Fasasi Adeshoye v. J.O. Shiwoniku 14 H W.A.C.A. 86.

In the instant case, there was evidence which was accepted by the learned trial Judge that the respondent was in exclusive lawful possession of the land and the structures thereon when the appellants by themselves or through their agents unlawfully entered the land and destroyed the temporary shed. This is more particularly elucidated in the following excerpts from the judgment of the trial court –

“In this case where the plaintiff has been in undisturbed possession of the land and houses from 1966 (defendants say it was from 1958), the Court will not aid the defendants to disturb it on the flimsy and unsubstantiated reason that the grant of the plaintiff had expired or that the plaintiff is either a squatter or a tenant at g will, more so when his right of possession had not been determined through the processes of the law court.”

“From the evidence before me, I am satisfied first defendant was obsessed and intoxicated by power and his position in the defunct Imo State House of Assembly. In the craze, he and his f* brother, the second defendant, embarked upon a dishonourable and extreme act of so to say re-writing the will of their departed ancestral father. As a result, in December, 1982, they destroyed a building erected during the life-time of their father in 1966 through 1971.1 do not think the circumstances of this case justify mere oral warning by the defendants to the plaintiff to vacate the premises was conclusive or reasonable to warrant the pulling down of the house. I find the act of the defendants tortuous. In respect of their thugs/labourers who assisted them in demolition of the building, an agent who commits an act of trespass on behalf of his principal is jointly and severally liable with the principal (See Pan Brothers Ltd. v. Landed Property Ltd. & Anor. (1962) 2 All N.L.R. (Part 1) page 22).”

In my view, the learned trial Judge was perfectly right on the evidence adduced before him to make those findings. Both the majority and the minority judgments of the Court of Appeal also affirmed these findings. The appellants committed trespass by unlawfully entering the land in the exclusive possession of the respondent and also destroying the temporary shed erected thereon by the respondent.

Having dealt with the issue of the appellants’ liability in trespass, the next issue to consider is the nature and quantum of damages the respondent is entitled to.

The respondent’s claim, looking at his Writ of Summons and paragraph 11 of the Statement of Claim, is for general damages for the destruction by the appellants of the shed he erected on the land leased to him by the appellants’ father. The specification of the shed was given in Exhibit A – the approved plan.

In paragraph 6 of the Statement of Claim the respondent was claiming the current equivalent value of the shed destroyed. He admitted in his evidence that the 15 bedroom house he built on the land is still there and has not been tampered with. In the Statement of Claim he gave a lump sum figure of =N=60,000 as the initial costs of the shed and the house, but failed to state in his pleading how much he spent out of the sum, for erecting the shed. The learned trial Judge however, without adverting his mind to this serious defect in the pleading, proceeded to treat the matter as if it were a claim for special damages. This is evidenced in his judgment where he said –

“The issue raised in this action is not strictly on title or ownership of land as such. It is trespass to a building which plaintiff said was a shed he constructed on land leased to him by the father of the defendants in 1966, which he developed by putting up a building in accordance with a building plan in evidence as Exhibit ‘A’ between 1966 and 1971. The other building erected in accordance with the building plan covered by Exhibit ‘B* does not appear to be the subject- matter of the claim in this action.” In considering the quantum of damages to be awarded the learned trial Judge said –

”The prima facie measure of damages for all torts affecting land is the diminution in value to the plaintiff or, in the case of a plaintiff in possession with ownership, the cost of reasonable reinstatement. In the later case no deduction falls to be made merely because the plaintiff gets “new for old” that is to say, a betterment which is the necessary result of reinstatement (See Halsbury’s Laws of England, Vol. 12,4th edition, page 458). Plaintiff gave evidence of the value of the house in 1971 when he erected it. He gave the value at the time of the destruction. There are no facts controverting the unchallenged evidence. I have no reason not to accept the evidence. I accept it and find as a fact the current value at the time of destruction was =N=100,000.00″

Special damages must not only be specifically pleaded with relevant particulars but must also be strictly proved – See Shell BP v. Cole (1978) 3 S.C.183; Dumez (Nig.) Ltd. v. Patrick Waka Ogboli (1977) 2 S.C.45. In the instant case none was pleaded and none was admitted. The learned trial Judge therefore misdirected himself in both law and fact when he awarded =N=100,000 compensatory damages to the respondent as the current value of the shed destroyed by the appellants by treating the claim as that for special damages. It was not a situation where the principle of statement of claim superseding the Writ of Summons could apply. If anything, the pleadings, particularly paragraph 11 thereof further qualifies that the respondent’s claim is for general damages simpliciter as stated in the Writ of Summons. The Court of Appeal is therefore wrong to affirm the award made by the trial court.

While I accept the reason given by Akpata, J.C.A., that the respondent is entitled to the award of general damages for the trespass committed by the appellants on the respondent’s land, I do not think that a visit to the locus is necessary in the circumstance because to do so would be tantamount to agreeing with the trial court that the claim is for special damages. The appellants had admitted entering into the land and tampering with the shed, and with Exhibit A (which contains the specification of the shed) the court is in a position to determine the amount of general damages to be awarded to the respondent that can adequately compensate him.

In Umunna & Ors. v. Okwuraiwe & Ors. (1978) 6-7 S.C.I the issue of the excessiveness of the quantum of damages that can be awarded in cases of trespass to land came up for consideration by this Court. In his consideration of the issue, Obaseki, J.S.C., said at pages 11 to 12 –

“It is true that the award of exemplary damages is a somewhat make-shift and arbitrary method of presenting a tort-feasor’s “unjust enrichment.” But no unjust enrichment has been alleged or proved in this case.

The learned authors of Volume 12 of the Halsbury’s Laws of England 4th Edition dealt with the rules regarding measure of damages in regard to trespass to land in paragraph 1170 and therein at page 460 commented as follows:

“A plaintiff is entitled to nominal damages for trespass/ See Armstrong v. Sheppard and Short Ltd. (1959) 4 Q.B. 384 (1959) 2 All E.R. 651 C.A.; even if no damage or loss is caused; if damage or loss is caused, he is entitled to recover in respect of his loss according to general principles. Where by the trespass the plaintiff has been wholly deprived of his land he is to be compensated according to the value of his interest and if he is a freeholder entitled to possession, the damages will be the value of the produce of the land during the period of deprivation subject to the proper expense of management or in the case of permanent deprivation, its selling value McArthur & Co. v. Cornwall (1892) A.C. 75 P.C. Spenser v. Registrar of Titles (Third Appeal) 1910 (103) L.T. 647 PC. Where the defendant has by the trespass made use of plaintiff s land the plaintiff is entitled to receive by way of damages such sum as should reasonably be paid for the use. It is immaterial that the plaintiff was not in fact thereby impeded or prevented from himself using his own land either because he did not wish to do so or for any other reason: Whitwham v. Westminster Brymbo Coal and Coke Coy (1896) 2 Ch. 538 CA …………… ”

(Italics ours).

We see no basis for awarding =N=3000.00. We are of the opinion, therefore, that $4=200.00 general damages will be adequate compensation in the circumstances ….. ”

There is no basis therefore, for the award of the punitive sum of $4=100,000 as damages in this case. I agree with the figure of =N=5,000.00 awarded by Akpata, J.C.A., in his dissenting judgment, as general damages. It is adequate and reasonable in the circumstances of the case and I hereby adopt it.

The appeal therefore partly succeeds and it is allowed. The award of =N=100,000 damages by both the High Court and the Court of Appeal is hereby set aside. In its place, the respondent is awarded =N=5,000.00 as general damages.

The appellants are awarded =N=250.00 costs in the Court of Appeal and ” =N=500.00 costs in this Court against the respondent.

ESO, J.S.C.: The action before the Court was claim in general damages for what the plaintiff called “unjust damage.” He did say that his building was maliciously damaged. The building, he said, cost him about =N=60,000.00 to build. The present cost is =N=100,000.00.

The trial Court would appear to have awarded general damages, for at no time did he advert his mind to proof of special damages. The Court of Appeal in a majority decision (Babalakin and Maidama, JJ.C.A.) confirmed these findings. Akpata, J.C.A., dissented, not on the trespass, but on the question of damages which he assessed at =N=5,000.00.

The defendants have appealed to this Court. Here the issue was limited to question of quantum of damages.

What are the material facts? They are hardly in dispute in so far as the p act of trespass goes. The facts reveal of how the might of the influential could stifle the little man.

Isiocha, the plaintiff, was driver of the father of the two defendants. The “master” gave the “servant” a lease of a property over which the “servant” built a shed and a 15-bedroom house. The plans for both structures were approved by the authorities.

After the “master’s” death, his son, Chief Osuji, who later became leader of the Imo State House of Assembly got “thugs” to disturb the plaintiff on the land. Despite reports, nothing was done by the authorities to help the plaintiff. On 2nd December, 1982, the defendants accompanied by thugs went on the land and destroyed the shed.

Now, the evidence was destruction of the shed, not the 15-bedroom house. Indeed, evidence was led to the effect that the 15-bedroom house was still on the land.

The question before this Court is whether the award of =N=100,000.00 was reasonable. The answer is, it is absolutely unreasonable having regard to the evidence that it was a shed and not the house that was destroyed especially as both cost =N=60,000.00 to build.

Had the plaintiff claimed in special damages the simple answer would have been no special damages were proved or could have been proved upon the pleadings and evidence. The trial Judge himself held –

“the other building (that is, the 15-bedroom house) erected in accordance with the building plans covered by Exhibit B (the shed is covered by Exhibit A) does not appear to be the subject-matter of the claim in this action.”

One wonders how the same Judge could have awarded =N=100,000.00 (the correct value of both house and shed) for just the shed.

But more importantly how the majority of the Court of Appeal could have affirmed this.

I would agree with the lead judgment of my learned brother, Wali, J.S.C., that there is no basis for the award of the punitive sum of =N=100,000.00 as damages in this case.

I had a preview of the judgment in draft and I am in full agreement that the appeal must be allowed in part. I agree with the award of =N=5,000.00 and his order as to costs.

UWAIS, J.S.C.: I have had a preview in draft of the judgment read by my A earned brother, Wall, J.S.C. I entirely agree that the appeal should succeed n part.

It is very clear from the facts of this case, as found by the trial court, that he appellants committed trespass on the respondent’s land. Apart from trespassing onto the land, the appellants also destroyed the respondent’s Kiosk on the land the value of which the respondent claimed to be =N=100,000.00.

In paragraph 11 of his statement of claim, the respondent simply claimed =N=100,000.00 damages without specifically stating whether that sum vas claimed as general or special damages. This distinction in pleadings is necessary in view of the principle which trial courts are bound to follow in he assessment of the damages to be awarded – Odumosu v. African Conti-lental Bank Ltd., (1976) 11 S.C. 55. It is settled principle that if the damages ire special in nature credible evidence will have to be called in order that the amount pleaded may be proved. Without such proof no special damages can )e awarded. On the other hand the quantum of general damages need not be leaded or proved; for it is the loss which flows naturally from the defendant’s act and it is generally presumed by law. The manner, therefore, in .which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person -See Odulaja v. Haddad (1973) 11 C. 357 at p.360; Incar (Nig.) Ltd. v. Benson Transport Ltd. (1975) 3 S.C. 117; Omonuwa v. Wahabi, (1976) 4 S.C. 37; Lar v. Stirling Astaldi Ltd., [1977] 11-12 S.C. 53 at p.62 and Odumosu’s case (supra).

Consequently, in the absence of specific averment in his Statement of Claim asking for special damages, the respondent could only be awarded general damages by the trial court, as the loss which naturally flowed from the act of trespass which was committed by the appellants. The quantum of the general damages is, of course, what a reasonable person would award in the circumstances of the case. The High Court (Chianakwalam, J.) did not follow this principle but merely stated thus –

“….I find that the plaintiff (now respondent) proved his case by balance of probabilities otherwise styled preponderance of evidence. He is entitled to judgment. Accordingly judgment is hereby entered against the defendants (now appellants) jointly and severally in the sum of =N=100,000.00 (One hundred thousand naira) with costs assessed at =N=500.00 (Five hundred naira)…….”

The High Court was therefore in error to have awarded the sum of =N=100,000.00 claimed by the respondent since the amount was neither claimed nor pleaded as special damages. The majority of the Court of Appeal (Babalakin and Maidama, JJ.C.A.) were, with respect, also in error in upholding the damages awarded by the learned trial Judge.

Now where the court of first instance erred in assessment of damages by basing its award on wrong principles of law, such award would be interfered with by the appellate court – see Zik’s Press Ltd.

Ikoku, 13 W. A.C. A. 188, Rewane v. Okotie Eboh, 5 F.S.C. 200; Mutual Aids Society v. Akerele, (1965) 1 All N.L.R. 336 at p. 341 Eboh v. Akpotu, (1968) 1 All N.L.R. 220 at p.225; Overseas Construction Ltd. v. Creek Enterprises Ltd. & Anor., (1985) 3 N.W.L.R. (Pt.13) 407 at p. 420 and Ejowhomu v. Edok-Eter Ltd. (1986) 5 N.W.L.R. (Pt.39) 1 at p.25. Furthermore, Order 8, rule 13 (4) of the Supreme Court Rules, 1985, provides thus –

“13 – (4) In any case where the court has power to order a new trial on the ground that damages awarded by the court below are excessive or inadequate, the court may, in Hue of g ordering a new trial –

(a) substitute for the sum awarded by the court below such sum as appears to the court to be proper;

(b) reduce or increase the sum awarded by the court below by such amount as appears to the court to be proper in respect of any distinct head of damages erroneously included in or excluded from the sum so awarded; but except as aforesaid, the court shall not have power to reduce or increase the damages awarded by the court below.”

Accordingly, I am of the opinion that the sum awarded by both the High Court and the Court of Appeal which has been shown to amount to general damages only, was awarded on a wrong principle and should be interfered with. The respondent was not entitled to special damages. The award to him of the sum of =N=100,000.00 as general damages is out of tune with the nature of the damage suffered by him from the simple trespass which he proved. No reasonable person would make such an award. I think the sum of =N=5,000.00 assessed by Akpata, J.C.A. in his minority judgment in the Court of Appeal, is in consonance with the aforementioned principles for the award of general damages.

For the foregoing reasons and those contained in the judgment read by my learned brother, Wali, J.S.C. I too will allow the appeal in part by setting aside the decisions of the lower courts and reducing the general damages, which the respondent is entitled to for trespass, to =N=5,000.00 only. I adopt the order as to costs.

AGBAJE, J.S.C.: I have had the benefit of reading in draft the lead judgment of my learned brother, Wali, J.S.C. I agree with his reasoning and conclusion that this appeal should succeed on the issue of damages but fail on the issue of liability.

There is no doubt that on the printed evidence the plaintiff was in exclusive possession of the land to which his claim for damages for trespass to land relates prior to the trespass complained of by him. It is equally clear that it was the predecessor in title of the defendants who let the plaintiff into the possession of the said land. Again there was ample evidence before the trial court for him to come to the conclusion that the interest of the plaintiff in the said land was still subsisting at the time the defendants, the successors in title to the reversionary interest in the land in dispute entered upon the land in dispute and disturbed the plaintiffs possession of it. In the circumstances the defendants were evidently guilty of trespass to the land. So I am in complete agreement with the conclusion in the lead judgment that the appeal on the issue of liability must fail.

I now propose to make a further contribution to the lead judgment on issues (a) and (c) submitted for determination by the appellants in their brief of arguments namely:-

“(a) Is the claim of =N=100,000.00 stated in paragraph 11 of the statement of claim (page 6) for general damages or special damages considering the preceding (sic) averment in paragraph 10 of the same statement of claim, and, if it is for special damages, can it be said that plaintiff/respondent proved same having regard to the pleading and evidence?

(c) Can a trial court award special damages without specific proof of same? And if not were the learned Justices of the Court of Appeal right in upholding the award of =N=100,000.00 in the instant case?”

It is clear from the plaintiff’s statement of claim and his evidence in court that what he was claiming from the defendants the value of his building said to have been destroyed as a result of the wrongful act of the defendants. By paragraph 10 of his statement of claim the plaintiff pleaded that the building in question cost him =N=60,000.00 to build and that its value at the time it was destroyed was about =N=100,000.00. The plaintiff was here talking about the precise amount of the pecuniary loss which he had suffered as a result of the wrongful act of the defendants. In the circumstance I am satisfied the claim by the plaintiff for =N=100,000.00 as to the value of his building destroyed by the defendants is an item of special damage which must be pleaded and particularised, otherwise it cannot be recovered (See Ilkin v. Samuels (1963) 2 All E.R. 879). Aside from this point of pleading, the special damage must be proved strictly. See Bolag v. Hutchison (1905) A.C. 515 at 525, and British Transport Commission v. Gourly (1956) A.C. 185 at 206, both of them cited with approval by this court in Odulaja v. Haddad (1973) HS.C.357at361.

When it is said that special damage must be proved strictly, we must not lose sight of what this court said in Odulaja v. Haddad (1973) 11 S.C. at 357 on the point as follows:-

“We are of the view that strict proof in the above context can mean no more than such proof as would readily lend itself to quantification or assessment.”

It is arguable that paragraph 10 of the plaintiff’s Statement of Claim pleads the value of the plaintiffs property destroyed and therefore the special damage has been pleaded. It is however clear that paragraph 10 is lacking in any or sufficient particularities. But then the point may be made that the remedy of the defendants in such a situation was to have asked for particulars of the damage. See Milbank v. Milbank AC. (1980) 1 Ch. 376. And since they did not avail themselves of this remedy it may be said it is now too late for them to complain about the plea being lacking in particulars.

So I propose to consider the evidence for the plaintiff on the issue of damages. We have only the ipse dixit of the plaintiff on the point. The reasons why the learned trial Judge decided to accept that evidence are thus:-

“On the quantum of damages, when as a result of exchange of pleadings by parties to a case a material fact is affirmed by one of the parties but denied by the other, the question this raises between the parties is an “issue of fact.” In other to raise an issue there must be proper traverse; and a traverse must be made either by a denial or non-admission either expressly or by necessary implication

The plaintiff qualified the nature of his damage when he pleaded at paragraphs 10 and 11 of his Statement of Claim thus:

“10. The destroyed building and shed (ix) cost the plaintiff about Sixty Thousand Naira (=N=60,000) to build and its present value before destruction was about One Hundred Thousand Naira (=N=l00,000.00).”

“11. The plaintiff has suffered an unjust damage and claims from the defendants jointly and severally -=N=l 00,000 (One hundred thousand Naira) being damages.” …………………..

1 am of the view that the said paragraphs 23 and 24 of the Statement of Defence set out above were improperly before the court. Certainly, the said paragraphs, containing general denial, do not satisfactorily and properly traverse the claim of the plaintiff based on specific amount which, in my view, is material allegation. ……………………. In short, defendants’ pleadings, (paragraphs 23 and 24), did not go through the allegation of the specific amount claimed by the plaintiff, and did not deal with it to raise an issue (see Messrs, Lewis & Peat (N.R.L.) Ltd. case cited above). ……..

On the needs to have a close look at the pleadings in this case in so far as the specific amount claimed by the plaintiff is relevant, the defendants, despite the fact they knew the structure concerned, relied on “general denial”, to controvert the pleadings of the plaintiff on the issue. Despite the general denial, lam of the view that defendants’ pleading on the issue is half hearted and evasive.

On the weight of the evidence of the plaintiff who called no other evidence in the case, if the defendants seriously contested the specific amount claimed by the plaintiff based on specific and appropriate legal consideration, that is to say, the value of the property at the time of the damage, I would, in the circumstances, have considered the evidence of an expert on property valuation desirable and relevant to the issue.”

It is clear from the above that the learned trial Judge thought there was no triable issue on the head of damage of =N=100,000.00 for the building destroyed by the plaintiff hence he, the learned trial Judge, accepted the plaintiffs ipse dexit on the point. The learned trial Judge also made it clear that if A he had held that the defendants were in law contesting the issue of damages he would not have regarded the ipse dixit of the plaintiff as sufficient proof of the value of the property in question at the time of its damage. For, in that event the learned trial Judge said he would have considered the evidence of an expert on property valuation desirable and relevant on the point at issue.

The learned trial Judge, obviously misdirected himself when he held that the defendants had to plead to the allegation by the plaintiff that his building has been destroyed as a result of their wrongful act and his allegation as to the amount of damages thereby suffered before the issue of damage became a triable issue. The law is that damages are deemed to be an issue whether special or general and whether the alleged damage is part of the cause of action or not. (See Wilby v. Elston 8 C.B. 142; Foucar v. Sinclair Q 33 T.L.R. 318. So any allegation that a party has suffered damage and any allegation as to the amount of the damage is deemed to be traversed unless specifically admitted.

But for this error, I have shown that the learned trial Judge would not have been satisfied with the ipse dixit of the plaintiff on the issue of damages. I am equally satisfied that the Court of Appeal in its majority judgment was wrong when it said that the learned trial Judge based his award of damages in this case on a sound legal basis.

The conclusion I reach therefore on the issue I am considering is that having regard to the evidence at least in this case the plaintiff has not proved his allegation as to the value of his building said by him to be destroyed as a result of the wrongful act of the defendants.

This is not a case where it can be said that the only evidence in proof of the damage alleged by the plaintiff was dictated by the peculiar circumstances of this case. Nor could it be said either that the plaintiffs ipse dixit was expert evidence on the point at issue. I have earlier on in this judgment shown that the learned trial Judge would not have accepted the evidence’ as sufficient proof of the amount of the damage alleged but for his mis- p direction. So the facts of this case are not on all fours with the case of Boshali v. Allied Commercial Exporters Ltd. (1961) 1 All N.L.R. 917 where the only evidence as to loss of profit which came from the appellant in the case who was an expert in the trade and whose evidence was unconditionally accepted by the trial Judge was held to be sufficient proof of the head of damage in question. The point must be made too that in Boshali’s case it was said that p the appellant in the case was not cross-examined on the basis that his claim was excessive. As against this we in the case now before us on appeal the following passage in cross-examination of the plaintiff:-

“I carried on business of trading in the house before it was destroyed. I built the house on Exhibit ‘A’ in 1971 during the lifetime of the father of the defendants. The building was made ,, with zinc. The floor was cemented.

Put:-1 put it to you that the shed which was pulled down was not worth more than =N=200.00.?

Answer:- The value of the building when I built it was i what I stated and the current price when it was destroyed is what I stated in evidence. Witness continues.”

The Court of Appeal in its majority judgment must have misdirected itself on the above passage from the record of proceedings in this case when in its lead judgment it was said as follows:-

“The respondent stated that it costs =N=60,000.00 when he erected it in 1971 but that its value is =N=100,000.00 in 1982 when it was destroyed.

His evidence about the value at time of destruction was unchallenged by the appellants.

There was no cross-examination about this value of this structure on Exhibit A.

The only cross-examination was to suggest a figure, of =N=200.00 in respect of a shed or a kiosk. This cross-examination did not relate to a building made with zinc and cemented floor. It is therefore obvious that there has been no effective challenge to the evidence of the respondent about the cost of structure destroyed on Exhibit A. In view of the unchallenged evidence of the value given in evidence by the respondent the learned trial Judge is entitled to accept the evidence of the respondent and award same. See cases of Ogbulora v. Sunmonu (1948) 19 N.L.R. 25 and Odulaja

Haddad (1973) 2 S.C. 357.” It is evident that the defendants challenged not only the structure in respect of which the plaintiff claimed damages but also the value which he put on it. So in fact there was effective challenge by the defendants to the cost of the k structure claimed by the plaintiff from them.

It is noteworthy to refer to the scanty evidence of the plaintiff on the point of the structure destroyed by the defendants and its value:-

“When I bought the land, I built a house on it. It contained 15 rooms. I put tenants in the house. The house was started in 1966 and completed in 1971. Since 1971 tenants live there. Tenants • still live in the house. Within the land I built a shed where articles of trade are sold. The shed was built in 1971.1 obtained a building plan from Owerri Urban Council before I built it …….

On 2/12/82 the defendants came with thugs and pulled down my house and wanted to kill me. ……………..

The house cost me about =N=60,000.00 at the time I built it.

……………….. The present value of the house at the time they pulled it down was =N=100,000.00.1 claim the sum of =N=100,000.00 being the value of the house at the time of its destruction.”

So, I too will set aside the award of =N=100,000.00 damages made under this head of damage by the learned trial Judge and which was confirmed by the lower court.

In my judgment there is no merit in the appeal on the issue of liability in this case which is essentially one for damages for trespass to land. The claim for special damages having failed the plaintiff in my judgment too would only be entitled to general damages which on the authorities have to be nominal having regard to the facts of this case.

In the result, the appellant’s appeal in my judgment succeeds in part. I abide by all the consequential orders in the lead judgment including those as to general damages for trespass and costs.

CRAIG, J.S.C.: I have had the advantage of reading in draft, the judgment of my learned brother, Wali, J.S.C. and I agree with his reasoning and the conclusions reached. I in fact adopt the judgment as mine

For the reasons stated in the lead judgment, I too would dismiss the appeal on the question of liability for trespass but allow it on the quantum of damages awarded. I agree with the views expressed by Akpata, J.C. A. in his dissenting judgment that the respondent is only entitled to general damages for the trespass committed by the appellants and that a sum of =N=5,000.00 is adequate for that tort.

In the result, I make the same consequential orders as are contained in he judgment of my learned brother, Wali, J.S.C.

Appeal allowed in part.

3PLR – OSUJI V. ISIOCHA

OTHER CITATIONS

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