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In The Supreme Court of Nigeria

On Thursday, the 30th day of March 1972

 

S.C. 60/1970

 

 

Before Their Lordships

 

 

Lewis

......

Justice, Supreme Court

Charles Olusoji Madarikan

......

Justice, Supreme Court

George Sodeinde Sowemimo

......

Justice, Supreme Court (Acting)

 

 

 

Between

 

 

Messrs Dumez (Nig.) Ltd

.....

Appellant

 

And

 

Patrick Nwaka Ogboli

.....

Respondent

 

 

 

Judgement of the Court

Delivered by

Lewis. J.S.C.

 

In Suit No. A/3/66 in the High Court at Agbor the plaintiff claimed damages in the sum of 565 for trespass which he alleged in his writ the defendant committed about March 1965 at Issele-Azagba in Otulu village and adjoining the new Otulu-Illah road and there "used their road implements and destroyed a large quantity of the plaintiffs farm crops and economic trees'. Paragraphs 4, 5 and 6 of the statement of claim read:—

 

"4.        The defendant company undertakes road construction and road repairs as one of its major duties.

 

5.         The plaintiff has been farming on the aforesaid piece or parcel of land since November 1929 and right from that time planted and owned palm trees, kola nut trees, banana trees, rubber trees and also owned Iroko trees on the land.

 

6.         On or about March 1965, the defendant company in the course of their duty entered into the aforesaid land of the plaintiff and used their road implements and destroyed a large quantity of the plaintiffs farm crops and economic trees namely:

 

Particulars of Damages

 

 (1)

Special Damage

s

d

 

 

21

Palm trees uprooted value 5 each

105

0

0

5

Kola nut trees destroyed value 5

25

0

0

10

Banana trees destroyed value 1 each

10

0

0

15

Plantain trees destroyed value 1 each

15

0

0

4

Iroko trees destroyed value 25 each

100

0

0

60

Rubber trees destroyed value 4 each

250

0

0

 

 

Total special damage

495

0

0

 

(2)

General Damages

70

0

0

 

 

Grand Total Damages

565

0

0

 

The defendants admitted in their statement of defence paragraph 4 of the statement of claim, denied paragraphs 5 and 6 and then in paragraphs 7 and 8 of their statement of defence pleaded: —

 

"7.        The defendants aver that in pursuance of a representation made to the Controller of Works Services, Ministry of Works and Transport, Benin City, by the plaintiff, the said Controller of Works Services caused the District Engineer, Ministry of Works and Transport, Asaba, to investigate the plaintiffs claim. That the said District Engineer, in a letter ref: No. AS/RE. 17/32/DE of the 5th July, 1966, and copied to the plaintiff and defendants, stated 'that the crops involved were within the 50 feet limit measured from the centre of the old existing road'. The defendants will rely on the said letter during the trial of this action.

 

 

8.         The defendants shall at or before the trial contend as a matter of law that:—

 

(i)         they acted within the ambit of section 9 of the Building Lines Regulation Law Cap. 14 of the Western Region of Nigeria;

 

(ii)        in the premises, the defendant cannot be liable to the plaintiff's claim:—

 

(a)        for special damages and

 

(b)       for general damages as claimed by paragraph 6(1) and (2) of the statement of claim;

 

(iii)       whereof the plaintiffs claim discloses no cause of action and therefore it is frivolous and should be dismissed with substantial costs."

 

On the 18th November 1968 Uche Omo Ag. J. (as he then was) gave judgment for the plaintiff in the sum of 295-5s-0d and in his judgment said inter alia:—

 

"I am satisfied further on the evidence that the defendant company did destroy some of the plaintiff's crops on his plantation. I accept his evidence that he has a large plantation on the site alleged which he has been working on since 1929. That this damage was done in the process of carrying out a Mid-Western Nigeria Government contract is admitted by all. I also find that the plaintiff's plantation begins about 32 feet from the centre of the road and extends far beyond 50 feet from it. In some respects the evidence led by the plaintiff and the defendant company falls rather short of what each side was in a position to adduce; this is not unimportant having regard to the submissions made by counsel at the end of the case. The plaintiff did not lead any evidence to show (a) when crops were planted on the part of his plantation immediately abutting (nearest) the road; (b) what economic trees were planted thereon; (c) no independent evidence of enumeration and/or valuation has been called. The defendant company has failed to lead positive evidence (a) to show whether or not there was authority given by anyone to it to remove the crops on the land; and if so (b) why it was necessary to damage these crops; (c) to state, if that is so, that in order to carry out the contract it was necessary to clear as much as 30-100 feet from the centre of the road on each side of it"

 

Having so found he then considered the provisions of the Building Lines Regulations Law (Cap. 14 of the Laws of the Western Region of Nigeria, 1959) applicable in the Mid-West and came to the conclusion that the defendant could not rely on the provisions of either section 4, 6, 7(1) or 9 of that Law and that there was no need for him to consider whether the exemption set out in section 10 of that Law applied and he accordingly held that that Law did not justify the defendants' action and thus he found them liable for the destruction of the plaintiff's permanent crops. He then went on to consider the damages resulting therefrom and concluded his judgment with the words:

 

"I accept the plaintiff's enumeration of the other trees destroyed as correct. Even though the plaintiff impressed me as an experienced plantation owner his case would have benefited from the evidence of an independent valuation which was not called. Having regard to the statement of claim, Exhibit 1 and other evidence before me I am unable to accept plaintiffs valuation in its entirety. I amend the valuation to read as follows:

 

 

 

 

s

d

21

Palm trees at 4 each

84

0

0

5

Kolanut trees at 2-10s each

12

10

0

10

Banana trees at 15s each

7

10

0

15

Plantain trees at 15s each

11

5

0

60

Rubber trees at 3 each

180

0

0

 

Total 

295

5

0

 

            Accordingly there will be judgment for the plaintiff in the sum of 295-5s-0d."

 

The defendants have appealed to this Court against that decision and two main issues were raised in the appeal, namely whether the defendants were exonerated from liability for the destruction of the plaintiffs permanent crops because of the provisions of the Building Lines Regulations Law, and whether even if not so exonerated the learned trial judge rightly awarded 295-5s-Qd as special damages as he did. Mr Ogunsanya for the appellants argued a ground of appeal that read:

 

"That the learned trial judge having found in essence:

 

(a)        that the plaintiff/respondent's crops were damaged in the process of carrying out a Mid-Western Nigeria contract along the Otulu-Atuma road;

 

(b)        that the Ministry of Works and Transport, Mid-Western State of Nigeria was the defendant company's employer for the purposes of this contract by reference to exhibits 1, 2, and 4 in his finding;

 

(c)        that the Otulu-Atuma road enjoys an obstruction-free zone of 50 feet from the centre of the road on either side thereof under the Building Lines Regulation Law Cap. 14 Laws of Western Region of Nigeria (Schedule to the Law);

 

(d)        that the plaintiff/respondent's plantation starts 32 feet from the centre of the road;

 

(e)        that 'any other obstruction' includes permanent crops;

 

(f)        that the plaintiff/respondent's crops in question are permanent crops;

 

misdirected himself in fact and in law when he said that there was no evidence before him that anyone authorised the defendant company to pull down or remove the said crops from the land thereby failing to apply section 7(1) of the said Law in favour of the defendant/ appellant."

 

This ground of appeal clearly relied on section 7(1) of the Building Lines Regulation Law which reads:

 

"The Provincial Engineer may cause any building or part thereof which has been or is being created or any other obstruction which has been created or is being created in contravention of section 4 or of an order under section 5 or any natural obstruction within one hundred feet of the centre of any road to which this Law applies to be pulled down or removed."

 

but, when we pointed out to Mr Ogunsanya that though having regard to the definition of 'create an obstruction' in section 2(1) of the Law it would cover 'permanent crops', the difficulty, as we saw it, was that there was no evidence that the Provincial Engineer had caused their removal, Mr Ogunsanya then conceded that this was so and first of all asked that he be allowed to substitute a reference to section 9 for the reference to section 7(1) in the ground of appeal. However, on examining section 9 which reads:

 

"the authorities responsible for the up-keep of any road to which this Law applies may take from within one hundred feet of the centre line of such road or such lesser distance as may be substituted by order under section 5 such materials as may be necessary for the maintenance of the road and may construct and maintain within the area aforesaid all drainage works necessary for the maintenance of the said road.",

 

it was clear to us that that section applies only to taking materials necessary for the maintenance of the road or constructing and maintaining drainage works necessary for such maintenance and there was no evidence on the record that the defendants were either taking materials for the maintenance of the road or constructing and maintaining drainage work for such maintenance as the only evidence was that they were constructing the road so in our view section 9 was of no assistance. Mr Ogunsanya did not then pursue his request to substitute a reference to section 9 for the reference to section 7(1) in the wording of the ground of appeal but asked us to interpret the reference to the Provincial Engineer in section 7(1) as embracing the defendants in the same way that it was held in Itambong and Others v. Akonye (1964) N.M.L.R. 128 that the Ministry of Works could delegate its power under section 9(1) of the Law to the respondent there. To our mind, however, that submission misunderstands the position and the effect of that case, as in that case there was evidence that for the purposes of section 9 "the authorities responsible for the up-keep" of the road in question were the Ministry of Works and there was further evidence that they had delegated their powers to the respondents, but in the present case there was no evidence whatsoever that the Provincial Engineer had delegated his powers (always assuming that the Provincial Engineer could so delegate) and when the section refers specifically solely to the 'Provincial Engineer' and not to "the authorities responsible for the up-keep of any road' as in section 9(1), we cannot interpret the words 'Provincial Engineer' to mean the Ministry of Works as if the Ministry was intended to have the power it would either have been named specifically in the subsection or a phrase would have been used such as is used in section 9(1) that would allow evidence to be led as though the Ministry was the authority responsible for the up-keep of the road but this was not done in section 7(1).

 

Mr Ogunsanya then sought to argue that under section 4 of the Building Lines Regulation Law which reads:

 

"No person shall, otherwise than as may be allowed by an order under section 5, create an obstruction within one hundred feet of the centre line of any road to which this Law applies to plant any crop which requires to be sown and reaped within a period of twelve months upon any ground occupied by any such road or the drains adjacent thereto.",

 

 

it was forbidden to create an obstruction and as under section 5(1) of the Law an order had been made in respect of the road in question namely Route 499 making the obstruction-free area 50 feet on either side from the centre line of the road (see page 218 of volume 1 of the Laws of Western Region of Nigeria, 1959) and as the learned trial judge had found that the plaintiff's permanent crops began 32 feet from the centre line of the road therefore the plaintiff was committing an illegal act and could not rely on it to claim damages. He further submitted that the onus lay on the plaintiff to prove, if he could, that he was exonerated from the provisions of section 4 by virtue of the provisions of section 10 which reads:

 

"The provisions of sections 4, 6 and 7 shall not apply to any structure of a permanent nature erected or to any permanent crops planted on any land before the provisions of this Law have been applied to that land.",

 

and in his submission, the plaintiff had not done so. In our view, however, when a person is found to be in possession of land, as here the plaintiff was, then the onus is on the person going on that land and causing damage to establish affirmatively his entitlement to do so and if as here he is relying for his entitlement on a Law then he must show, reading the provisions of the Law together, that he has such entitlement and this the defendants certainly failed to do here as there was evidence to the contrary which the learned trial judge accepted in his judgment when he found "that he has a large plantation on the site alleged which he has been working on since 1929", and the first Order in Council listed under the subsidiary legislation following the Building Lines Regulation Law at page 213 of Volume 1 of the Laws of the Western Region of Nigeria, 1959 was made in 1940 so that there were permanent crops on the land at the time the Law applied to the road in question and section 10 therefore exempted the plaintiff from being liable for creating an obstruction in respect of those permanent crops under section 4 of the Law. Once again therefore we see no merit in this submission.

 

Finally Mr Ogunsanya argued a ground of appeal that read:

 

"That the learned trial judge, having found that:

 

'The plaintiff did not lead any evidence to show

 

(a)        when crops were planted on the part of his plantation immediately abutting (nearest) the road;

 

(b)        what economic trees were planted thereon;

 

                                      (c)        no independent evidence of enumeration and/or valuation has been called',

 

had no basis upon which to award the plaintiff/respondent special damages as he did and so erred in law."

 

It was his submission that in the final passage of the judgment of the learned trial judge which we have quoted and in particular to the words "having regard to the statement of claim, exhibit 1 and other evidence before me I am unable to accept plaintiff's valuation in its entirety", It` was clear that the learned trial judge rejected the plaintiffs own valuation of his permanent crops yet in Mr Ogunsanya's submission the learned trial judge gave judgment for a figure for each of the items of special damages claimed without having any evidence before him of the figures that he awarded. Mr Emordi for the respondent in reply conceded that not only was there a conflict between the value put on the permanent crops in the pleadings with the evidence adduced but also conceded that there was no evidence on the record of the value of the crops in the sums awarded by the learned trial judge. He nonetheless asked this Court not to hold against the plaintiff the failure to call satisfactory evidence of the special damages and sought to say that the learned trial judge should anyway not have rejected, as he did, the plaintiffs claim for general damages. We pointed out to him, however that there was no appeal by the plaintiff against the refusal of his claim for general damages so counsel could not now be heard to argue that the learned trial judge was in error in refusing them.

 

To our mind it is clear that the learned trial judge, having rejected the evidence of the plaintiff as to the value of the permanent crops, could not set himself up as a valuer to make an assessment of their value without evidence on the record upon which he could act enabling him to do so. The plaintiff not having seen fit to appeal against the refusal of the award for general damages must stand or fall on the award of special damages and on Mr Emordi's own concession, quite rightly in our view, the learned trial judge was in error in coming to the conclusion that he did as he made an assessment without evidence before him of the amount at which he valued the respective permanent crops when he had already rejected the plaintiffs valuation thereof.

 

It is axiomatic that special damages must be strictly proved and unlike general damages where, if the plaintiff establishes in principle his legal entitlement to them, a trial judge must make his own assessment of the quantum of such general damages and on appeal to this Court such general damages will only be altered if they were shown to be either manifestly too high or manifestly too low or awarded on a wrong principal, so far as special damages are concerned, a trial judge cannot make his own individual assessment but must act strictly on the evidence before him which he accepts as establishing the amount to be awarded, just as a trial judge when for instance he is assessing compensation to be paid for land compulsorily acquired must do, as we indicated in The Governor of Mid- Western Province and Ors. v. Eluaka and Ors. S.C. 181/67 (unreported) of the 23rd October, 1970 when we said:

 

"Now we have indicated before and we must re-iterate that in determining compensation a judge must make his assessment on the evidence before him and not make guesses based on matters upon which he has not received specific evidence."

 

That special damages must be strictly proved has been repeatedly emphasised by this Court as for instance in Oshinjinrin and 5 Ors. v. Elias and Ors. S.C. 63/68 (unreported) of the 3rd April, 1970 when we said:

 

"Undoubtedly the rule that special damages must be strictly proved applies to cases of tort. In effect the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed. This however does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operated. In the case in hand, learned counsel for the defendants concedes that there was evidence concerning the special damages claimed and that the learned trial judge accepted the evidence thus given in that respect. He however complained that the evidence should not have been accepted and acted upon by the learned trial judge and submitted that for the evidence to be acceptable it should have been cumulative and not based on the ipse dixit of the claimant alone. We are of course unable to accept this submission and no authority whatsoever has been cited to us in support of it. A court trying such a case should give adequate consideration to the evidence offered in support of a claim for special damages and if the accepted evidence possesses such a probative value as preponderates the case in favour of the person claiming, then award would certainly be justified (see Agbaje v. National Motors 20/68 of 13th March, 1970)".

 

In our view therefore the plaintiff having failed to prove his claim for special damages his claim must fail and this is not a case where we see any reason why the justice of the case is such that it calls for us to enter a non-suit or order a rehearing, and we accordingly allow the appeal, set aside the judgment awarding the sum of 295-5s-0d together with the order of costs to the plaintiff of 51-1 s-0d and we do order that the plaintiffs claim be dismissed with 30 guineas costs to the defendants in the High Court. The defendants/appellants are entitled to the costs of this appeal which we assess at 70 guineas.

 

 

 

 

Counsel

 

 

A.A. Ogunsanya

......

For the Appellant

 

 

 

G.I.G. Emordi

 

For the Respondent