3PLR – S.D. LAR V. STIRLING ASTALDI (NIG.) LTD.

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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S.D. LAR

V.

STIRLING ASTALDI (NIG.) LTD.

IN THE SUPREME COURT OF NIGERIA

16TH DECEMBER, 1977.

SUIT NO. SC 392/1975.

3PLR/1977/37  (SC)

 

BEFORE THEIR LORDSHIPS                            

FATAI-WILLIAMS, J.S.C.

BELLO, J.S.C.

OBASEKI, J.S.C.

REPRESENTATION

Mr. Ogaba Ede, – for the Appellant

Mr. T A. O. Ogundeyin, – for the Respondents

MAIN ISSUES

Land Law – Damages for Trespass – Destruction of Economic Trees on property – General damages – Desire to reinstate property – Whether proper consideration in award of damages – Proof of loss – Whether essential.

MAIN JUDGEMENT

FATAI-WILLIAMS, J.S.C. (Delivering the judgment of the Court):

According to his particulars of claim, the plaintiff (now appellant) is the owner of a farm called Dinging Farm which is an orchard farm at Langtang in the former Benue Plateau State of Nigeria. He had on the farm citrus trees which were yielding fruits. Between the months of October, 1971, and July, 1972, the defendants (now appellants), a firm of engineering and building contractors, while engaged in the construction of the Ampere-Shendam Road in the said Benue Plateau State, by their servants and agents, committed acts of trespass on the plaintiff’s farm. Although the farm was fenced round with barbed wire, the defendants broke into and entered the farm with their caterpillars, tractors and bulldozers and destroyed the trees growing therein.

The plaintiff also complained that on diverse dates within the same period, the defendants by their said servants and agents wrongfully committed waste in the said farm by ‘felling, lopping, topping and shrouding the economic trees”, such as orange, cashew and guava trees growing there; they also uprooted the wire fence and hedges around the farm and excavated portions of it leaving behind deep trenches, pits and holes.

Despite repeated demands by the plaintiff to the defendants to stop these various acts of trespass, the defendants refused to comply with the demand.

In view of the damage and loss suffered as a result, the plaintiff claimed from the defendants in the Benue/Plateau Judicial Division of the High Court of the former Northern States, the sum of N147,066.60 as special and general damages. The particulars of these damages are stated in paragraphs 6 and 7 of the statement of claim as follows:-

PARTICULARS OF SPECIAL DAMAGE:

(1)     100 orange trees valued at                          N66,666.60

(2)     50 guava trees                                             36,000.00

(3)     30 cashew trees                                           12,000.00

(4)     Reclamation of excavated area

after the uprooting and

destruction of the said

economic trees at:-                                      12,000.00

(5)     Cost of destroyed wire fence

and hedges                                                 400.00

General Damages:-                                      20.000.00

N147,066,60″    

In their statement of defence, the defendants admitted that at all times material to the action complained of, they were the civil engineering and building contractors who constructed the Bukuru-Ampere-Shendam Road. They denied the various acts of trespass complained of by the plaintiff and further averred in paragraphs 3 and 4 of their statement of defence as follows:-

“3.     The defendants deny paragraph 3 of the statement of claim. In further answer to the said paragraph the defendants state that while they were constructing the Jos-Shendam Road, it became necessary to create diversion at Mile 113 to enable the defendants to rebuild the bridge there. The said diversion was made along the river bank through waste land and with no trees or citrus plants growing there.

  1. In order to fill up the diversion the defendant made a small pit at the soft rock along the river side and from the general nature of the said (soft rock) it is absolutely impossible that a farm or plantation can ever exist there. A physical visit has been made to the place where the plaintiff claims to be the farm sketches drawn there, shall form the basis of the defence in this matter. The defendants further deny leaving behind any trenches, holes or pits in the area and will at the trial of this action urge the Court to make a visit to “the farm”. Letters from the plaintiff’s solicitors to the defendant shall also be tendered so as to show that the figure, which is not even admitted, is grossly inflated.”

The learned trial judge, after considering the evidence adduced by both par-ties found, in a reserved judgment, that the plaintiff had proved his case. On the issue of damages, the judge found as follows:

“As for damages, it is up to the plaintiff to prove his liquidated damages conclusively. The plaintiff claims the sum of N12,000.00 as the cost of reclaiming the destroyed land i.e. to fill the excavated portions. To start with, there is no conclusive and certain proof of the extent of damage done. The actual length, breadth and depth on average of the excavated area could be made very easily. This has not been done. P.W.4 Mr. Bonkat, gave the length of the court-room as likely length, and half as much as breadth with about 5 feet as likely depth of the excavated land. This from an engineer is a very unimpressive evidence on matter he could decide with certainty by measuring. It is possible he was not asked to measure out when coming to give evidence the plaintiff ought to have taken him there to measure it. The evidence of the plaintiff on this too is not impressive as he gave only approximate measurements. As there is no conclusive proof of this it is not incumbent upon the Court to speculate and no award will be made.

As for the barbed wire, only the plaintiff gave evidence that barbed wire fence and hedges were destroyed. Many questions remain, however unanswered. Was the barbed wire used to fence round the farm? If so what portion of it was destroyed? Similar questions remain unanswered with the hedges. Certainly the court has not been told that the bulldozers and/or caterpillars first went round the farm to destroy the fence and hedges. The sum of N400.00 claimed has not been evidentically explained. The fact that D.W.1, Olaleye, said he saw a barbed wire on the ground is not evidence that it was destroyed. No award will also be made on this.

As for the economic trees, the Court has accepted the numbers given as minimum and the claims will be entertained subject to the evidence adduced by witness for the plaintiff, Enock Yariye Lot (P.W.5). I assume that the trees were planted in 1960. By 1971 they were just in the first year of full yielding of fruits. The evidence before me is that the life span of a citrus tree is thirty years but for compensation purpose the payment will be for the most productive years which is ten years. So that if it is bearing fruits it is valued at N15.00 each per year and this is multiplied by ten. For cashew and guava, the same period of high productivity is ten years and price per tree is N2.00.”

He thereupon awarded the plaintiff the sum of N4,980.00 as special damages which he proceeded to quantity as follows:-

“Orange Trees

(1)     100 at N15.00 each=      N1,500.00

I presume the trees are the modern ones which Mr. Lot said start producing at three years. Therefore 1963 is the year of first production and span of full production is 1963-1973. The years missed therefore are 1971, 1972 and 1973, i.e. three years.

Therefore N1,500.00 x 3 N4,500.00

(2)     50 Guava Trees at N2.00 each =        N100.00

and 1973 it is        N300.00 (3) 30 Cashew Trees at N2.00 each = N60.00

for 1971, 1972 and 1973 it is =         N180.00″

The claims for damages for the reclamation of the excavated area and for general damages were dismissed in toto on the ground that nothing had been proved to justify them.

The plaintiff has now appealed against the quantum of damages awarded. The main complaints of learned counsel for the plaintiff/appellant are summarised in the grounds of appeal which read:-

The learned trial judge having found that ‘I am satisfied by the evidence before me…… I am also satisfied that the defendant burrowed on the land for laterite and left a pit thereby. Mr. Boukat said the Government would pay 70k per cubic foot. I therefore find for the plaintiff in this action’ misdirected himself on the facts when he dismissed the plaintiff/appellant’s claim for the cost of refilling the pit holding that there was no data on which such an award might be made.

Particulars of Misdirection:

There was evidence for the plaintiff that the length and breadth of the excavation were 120 yds, and 80 yds. respectively which the depth was 2 yds. There was also evidence of the plaintiff/appellant that the cost of filling the pit was N12,000.00. The learned trial judge having found that the excavation was done by the defendants/respondent and that it would cost 70k to fill a cubic foot, ought to have awarded the sum of N12,000.00 claim in the absence of contrary evidence as to the dimensions of the pit.

(2)     The learned trial judge having held ‘I therefore find for the plaintiff in this action’ erred in law not to have awarded any damages for the plaintiff/appellant in respect of the destruction of the barbed wire fence and hedges by the defendants/respondents.

Particulars of Error.,

The unchallenged evidence for the plaintiff/appellant was that the barbed wire fence and hedges of his farm were destroyed by the defendants/respondents and that it would cost N400.00 to reinstate them. The learned trial judge having found for the plaintiff/appellant on the totality of his claim ought to have awarded the sum of N400.00 claimed for reinstating the fence and hedges.

(3)     The learned trial judge misdirected himself in law and on the facts in holding that general damages must be proved before an award may be made.

Particulars of Misdirection:

There being evidence, which the learned trial Judge believed, that a wrong been committed against the plaintiff/appellant by the defendants/respondents (i.e. that the plaintiff/appellant’s citrus trees, fence and hedges were unlawfully destroyed by the defendants/respondents) the learned trial Judge erred not to have awarded general damages on the erroneous grounds that there was no specific proof of general damages. He ought to have held that general dam-ages was a consequence of the defendants/respondents’ wrongful act in destroying the trees, fence and hedges.

(4)     The learned trial judge, having found that the life span of a citrus tree is thirty years and the other trees twenty years, misdirected himself on the facts by awarding damages for the period of three years only in each case.

Particulars of Misdirection:

The evidence of Mr. Lot (plaintiff/appellant’s witness No. 5) was that the life span of a citrus tree is thirty years and that of a fruit tree of the citrus family is twenty years and that their yearly values are N15.00, N3.00 and N2.00 respectively. And that for the purpose of compensation the amount payable is ten times the yearly value of each tree. The learned trial judge having accepted the evidence of Mr. Lot and that of the plaintiff/appellant as to the number of trees destroyed and the amount of compensation payable, ought to have awarded the total sum of N16 ,600.00 for the trees instead of N4,980.00 awarded.”

Ground 4 of the grounds of appeal was later abandoned.

In the course of his argument in support of the 1st and 2nd grounds of appeal, learned counsel for the plaintiff/appellant called the attention of the court to the portion of the reserved judgment where the learned trial judge dealt with the issue of damage done to the farm through the excavation and to which we have referred earlier. He also referred us to the testimony of the plaintiff/appellant before the court where he described the damage done to the farm through excavation. as follows:-

“I acquired the land through inheritance through my father and grandfather .

My farm is on. one side. of the river and. not astride the. river. .I instructed my solicitor in 1972 to claim for 40 citrus trees and I was claiming £5,000 because the company did not do much damage then; thereafter they continued to destroy more trees. About one-sixteenth of the land area of the farm was destroyed. The destruction was about 120 yards from the road and about 80 yards wide. The defendant burrowed pits and holes on my farm and I am not complaining about the diversion. The length of the excavation is 120 yards. The breadth is 80 yards and the depth is 2 yards and 1 understand it costs 70 kobo to fill a cubic yard. It thus costs roughly N12,000.00 to bring the destroyed farm to its original state. Some guinea corn were destroyed.” (Italics ours).

This evidence, which must be presumed to have been accepted by the learned trial judge when he found ‘for the plaintiff in this action”, indicated that damage was done by the defendants to 19,200 cubic yards of the farm land through the excavation. If it costs 70 kobo to refill a cubic yard, this will come to N13,440. We, therefore, think there is substance in the complaint of learned counsel for the plain-tiff/appellant that the learned trial judge was in error when he held that –

“there is no conclusive and certain proof of the extent of the damage done.”,

or that the evidence of the plaintiff/appellant was not impressive on the point as he gave only approximate measurements. In our view, the evidence of the plaintiff/appellants, supported by that of the 4th P.W.1 (the Civil Engineer in the Ministry of Works, Benue Plateau State), was precise and conclusive on the point and the learned trial judge should have given him the full amount claimed as special damages to bring the destroyed farmland to its original state.

In his rather tenuous reply to this complaint, we were referred by learned counsel for the respondent to Halsbury’s Laws of England, 3rd Edition, Volume eleven, page 267 at paragraph 442 where the learned author said:-

“If by a trespass injury is done to land the measure of damages is the depreciation in the selling value of the land, or in the selling value of the plaintiff’s interest in it, and not the amount of money required to put back the land into its previous condition or the premises into repair. Thus If an old building is pulled down unlawfully by a trespasser the owner can recover the value of the old buildings, but not the value of a new one. The true measure of damages here is the difference between the money value of the owner’s interest before and after the injury, which will not necessarily be the same as the cost of reinstatement.”

From the meagre authorities referred to in Halsbury’s Laws on the point, it seems to us, however, that no firm statement on the law can be made. The difficulties arise from the fact that a plaintiff may want his property in the same state as be fore the commission of the tort but the amount required to effect this may be substantially greater than the amount by which the value of the property has been diminished.

In our view, the test should be the reasonableness of a plaintiff’s desire to re-instate the property; this would be judged in part by the advantages to such a plain-tiff of reinstatement in relation to the extra cost to a defendant in having to pay damages for such reinstatement rather than damages calculated by the diminution in value of the land.

We are not surprised, therefore, that in the 4th or later Edition of the same Halsbury’s Laws, Volume 12, page 458, paragraph 1168, the author has this to say:-

‘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 full ownership, the cost of reasonable reinstatement. In the latter 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 Hollebone v. Midhurst and Fernhurst Builders and Eastman and White of Midhurst Ltd. (1968) 1 Lloyds’ Rep 38, and Harbutt’s Plasticine Ltd. v Wayne Tank and Pump Co. Ltd. (1970) 1 All E.R. 225, C.A.).

We think the plaintiff/appellant’s desire for reinstatement in the particular circumstances of the case in hand is reasonable and the learned trial judge should have awarded him the N12,000.00 which he ought to have accepted as proved from the evidence of the plaintiff/appellant (Lar) himself.

As for the complaint about the claim of N400 in respect of the barbed wire of-fence, we need only refer to that portion of the judgment which reads:-

“As for the barbed wire, only the plaintiff gave evidence that barbed wire fence and hedges were destroyed. Many questions remain, however, unanswered. Was the barbed wire used to fence round the farm? If so what portion of it was destroyed? Similar questions remain unanswered with the hedges. Certainly the court has not been told that the bulldozers and/or caterpillars first went round the farm to destroy the fence and hedges. The sum of N400.00 claimed has not been evidentically explained. The fact that D.W.1, Olaleye, said he saw a barbed wire on the ground is not evidence that it was destroyed. No award will also be made on this.”

In the face of this finding, we do not see any justification for interfering with the decision of the learned trial judge not to make any award in respect of this particular claim.

Learned counsel for the plaintiff/appellant also complained about the failure of the learned trial judge to make an award in respect of the amount of N20,000 claimed by the plaintiff as general damages. In fairness to learned counsel for the defendants/respondent, he had no real answer to this complaint and agreed to abide with whatever the Court decide on the point.

To our mind, general damages are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. (See Prehn v. Royal Bank of Liverpool) (1870) L.R.5 Exh. 92 as per Martin B at pages 99-100). It may however be unwise for a plaintiff to rely too heavily on inferences and presumptions of damage, for a failure to produce any evidence at all may result in an award of small or even nominal damages. This Is because the proper approach in such circumstances is to regard an injuria or wrong as entitling the plaintiff to a judgment for damages in his favour even without loss or damage, but where there is no loss or damage such judgment will be for nominal damages only. In the particular circumstances of this case we think the learned trial judge was also in error in not making any award with respect to the plaintiff/appellant’s claim for general damages.

This appeal as to the quantum of damages, therefore, succeeds and it is allowed. The judgment of the learned trial judge dismissing the claim of N12,000 for special damages and that of N20,000.00 for general damages are accordingly set aside. Instead, we make, in addition to the award of the sum of N4,980.00 (which we hereby affirm) made in respect of the damage done to the orange, cashew and guava trees, the following awards:-

(1)     Reclamation of excavated area after the uprooting and destruction of the economic trees          N12,000.00

(2)     General damages  N200.00

We further order that the awards made in (1) and (2) above shall form part of the judgment of the court below.

Costs in favour of the plaintiff/appellant are assessed at N150.00.

Appeal allowed.

 

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