CORAM

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PARTIES

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ZENITH BANK PLC       APPELLANTS

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ALHAJI TITILAYO RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Claimant/Respondent alleged that the Defendant/Appellant was dumping refuse and waste materials on her land without her consent as they shared the same fence at Ikota, Lekki – Epe Express Way. She consequently instituted an action against the Defendant/Appellant claiming a declaration that it is unlawful for the Defendant/Appellant to enter upon, encroach and deposit without her consent its waste material on her property situate at No.2 Amudalat Ajuwon Close, the sum of N5,000,000(Five Million Naira) being damages for the trespass committed by the Defendant/Appellant on the Claimant’s property and an order of perpetual injunction restraining the Defendant/Appellant, its agents, servants or anyone from entering or committing any further acts of trespass on the Claimant’s land. The learned trial judge granted judgment in favour of the Claimant/Respondent. Dissatisfied with the decision of the trial court, the Defendant/Appellant has appealed to this Court.

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HELD

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Appeal Dismissed

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ISSUES

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Whether from the totality of the evidence the learned trial Judge was not in error when she held that:“The above excerpts show that the above facts were admitted and her (sic) unchallenged by the defendant.  Facts that are admitted need no further proof.  They are taken as establishing the act complained of.” Whether the learned trial Judge did not err when she held as follows:“The overwhelming video had the debris on the dividing fence between the Claimant and the Defendant showing that the Defendant’s bank to a large extent had played a prominent role in depositing their debris on the claimant’s land thereby committing an act of trespass.”

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RATIONES DECIDENDI

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TRESPASS – TRESPASS IS ACTIONABLE AT THE SUIT OF THE PERSON IN POSSESSION OF THE LAND

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“It is trite that trespass is actionable at the suit of the person in possession of the land, see Bamboye V Olusoga(1996) 4 NWLR (pt 444) 520.” PER Y.B NIMPAR, J.C.A

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DAMAGES – CLASSES OF DAMAGES

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“There are 2 classes of damages namely, general damages and special damages, the apex court in the case of Nigerian Communications Commission V Motorphone Limited & Anor (2007) LPELR – 8893 (CA)stated thus:
“General damages” are such as the law will presume to be the direct, natural or probable consequence of the act complained of whereas “Special damages” are such damages as the law will not infer from the nature of the act complained of. They are exceptional character wise and must be specifically pleaded and strictly proved. The difference between the two types of damages is that, whereas, in the former case the court can make an award when it cannot point out any measure of assessment except what it can hold in the opinion of reasonable man. In the latter case all the losses claimed on every item must have crystallized in terms and value before trial.”
See also Adekunle V Rockview Hotels Ltd (2004) 1 NWLR (Pt 853) 161 at 173 – 174; Adedo V Ismaila(1998) 11 NWLR (Pt 573) 214 and Ijebu Ode Local Government V Adedeji Balogun & Co Ltd (1991) 1 NWLR (Pt 166) 135.”PER Y.B NIMPAR, J.C.A

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TRESPASS –DEFINITION OF TRESPASS

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“The Blacks Law Dictionary describes trespass as follows:
1. A person’s unlawful entry on another’s land that is visibly enclosed. This tort consists of doing any of the following without lawful justification: (1) entering upon land in the possession of another, (2) remaining on the land, or (3) placing or projecting any object upon it.
2. At common law, an action to recover damages resulting from another’s unlawful entry on one’s land that is visibly enclosed.”
Furthermore, William Blackstone, Commentaries on the Laws of England 209 – 10 (1768) had this to say:
“Every unwarrantable entry on another’s soil; the law entitles a trespass by breaking his close; the words of the writ of trespass commending the defendant to show cause, quare clausum querentis fregit. For every man’s land is in the eye of the law enclosed and set apart from his neighbour’s; and that either by a visible and material fence, as one field is divided from another by a hedge; or as when one man’s land adjoins to another’s in the same field. And every such entry or breach of a man’s close carries necessarily along with it some damage or other: For, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage.”PER Y.B NIMPAR, J.C.A

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BURDEN OF PROOF IN CIVIL CASES – THE BURDEN OF PROOF IN CIVIL CASES OSCILLATES

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“In civil cases, the burden of proof oscillates unlike the static nature in criminal cases,” PER Y.B NIMPAR, J.C.A

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EVALUATION OF EVIDENCE – AN APPELLATE COURT CAN ONLY INTERFERE WITH AN EVALUATION OF EVIDENCE WHERE IT LEADS TO PERVERSE FINDINGS

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“An appellate court cannot interfere with findings of facts upon a proper evaluation of evidence. The court can only interfere when the evaluation was improper thereby leading to perverse findings not supported by evidence, see Gaji V Paye(2003) 8 NWLR (Pt 823) 583which held thus:
“As a general principle of law, evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial court, which saw, heard and assessed the witnesses. Where a court of trial, unquestionably evaluates the evidence and makes definite findings of fact which are fully supported by such evidence and are not perverse, it is not the business of the Court of Appeal to substitute its own views for those of the trial court. What the Court of Appeal ought to do is to find out whether there is evidence on which the trial court arrived at its findings. Once there is evidence on record, the appellate court cannot interfere.”PER Y.B NIMPAR, J.C.A

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DAMAGES – DISTINCTION BETWEEN GENERAL AND SPECIAL DAMAGES

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“Specifically on the difference between the two, see the case of Shodipo& Company Ltd V Daily Times Of Nigeria Ltd (1972) LPELR – 30 65 (SC) distinguished between the two as follows:
“The only difference is that, where one is claiming special damages the circumstances are such that one is able to put one’s finger on a particular item of loss and say, I can prove that I lost so much there, so much here.”PER Y.B NIMPAR J.C.A

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TRESPASS – MEANING OF TRESPASS

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“Trespass simply is any slightest disturbance to the possession of land by a person who cannot show a better right to possession; see Fagunwa V Adibi (2004) 17 NWLR (Pt 903) 544; Fasham V Adeloye (1974) 6 S.C 72; Prince Abdulrasheed Adetona V Zenith International Bank Plc (2011) 12 S.C (Pt iv) 44 and Ojini V Ogo Oluwa (1998) 1 SCNJ 27.”PER Y.B NIMPAR J.C.A

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ADMISSION – DEFINITION OF ADMISSION

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“An Admission was defined in the case of Achoru V INEC(2010) LPELR 3588 (CA) thus:
“Admission has been defined by the Black’s Law Dictionary, 5th Edition at page 44 as: ‘confession, concessions and voluntary acknowledgment made by a party of the exercise of certain facts: deducing from the definition in my view it follows that there are numerous legal consequences of admission by the defendant and which would serve in favour of the plaintiff. In other words:
1. It shifts the burden of proof off the plaintiff.
2. It exonerates the plaintiff.
3. It aids the plaintiff’s case.
4. It makes light the burden expected or placed on the plaintiff.”
See also Oguanishu V Chiegboka(2003) 25 WRN 113”.PER Y.B NIMPAR, J.C.A

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CASES CITED

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STATUTES REFERRED TO

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Evidence Act

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