M.O. OGUCHE (PLAINTIFF)

v.

SALISU ILIYASU AND TWO OTHERS (DEFENDANTS)

(1971) All N.L.R. 648

Division: High Court, Kano

Date of Judgment: 30th December, 1971

Case Number: SUIT NO. K/56/71

Before: Jones, S.P.J.

Civil Action.

HELD:

(1)     The rule in Smith v. Selwyn applies only when the plaintiff is the informant not, as here, when he is the suspect.

(2)     Mere possession is enough to found an action in trespass against a wrongdoer. Plaintiff had such possession.

(3)     Neither the Commissioner nor the defendants have any title or right to take physical possession of any land or to destroy buildings except by due process of law, as provided in the Land Tenure Law or any other law.

(4)     There was no proof of any M.O.W. labour or material having been used on the house in question except wooden pegs valued at about £6.

(5)     Defendants had pleaded no title, right of entry to recover their own property, or any other justification. They could not then be heard in proof of any such title or right or justification.

(6)     The special damages had not been proved except for £15.

(7)     Damages were at large. There was enough evidence to give reasonably accurate general damages.

(8)     Defendants had not acted in malice or in an outrageous manner and were not likely to repeat such an act, so exemplary damages would not be awarded.

Judgment for the Plaintiff.

Cases referred to:

Smith v. Selwyn, (1914) 3 K.B. 98 considered.

White v. Spettiguel, 13 M. & W. 603 quoted.

Rev. S.S. Odonkor v. E.D. Allutey 2 ors., 7 W.A.C.A. 160 followed.

Ene Nsude v. James Edwin Anigbo, (1958) N.N.L.R. 96 followed.

Haco Ltd. v. Peter Udeh, (1959) N.N.L.R. 61 followed (Judgment).

Rogers v. Pence, (1844) 13 M. & W. 581 followed.

Trustees Executors and Agency Co. v. Short, (1888) 13 App. Ch. 793.

Foster v. Warblington Urban Council, (1906) 1 K.B. 648 followed.

Bristow v. Cormican, (1877-8) 3 App. Cas 641 followed.

Lord Advocate v. Young, (1887) 12 App. Cas 544 followed.

Ayo Solanke v. Abraham Abed & anor. (1962) 1 All N.L.R. 230 followed.

Delaney v. J.P. Smith Ltd., (1946) 2 A.E.R. 283: distinguished.

Hope v. Osborne, (1913) 2 Ch 349 followed.

Ekemode v. Alausa, (1961) All N.L.R. 135 followed.

Rookes v. Bernard, (1964) 2 W.L.R. 269 considered.

Benson v. Frederick, (1766) 3 Burr 1845 considered.

CIVIL ACTION.

SUIT NO. K/56/71.

N.A. Akanbi for the Plaintiff.

R.O. Rowland, State Counsel, for the Defendants.

Jones, S.P.J.:-This is an application by Counsel for the defendants to stay this civil action because plaintiff is being prosecuted for the offence of theft in a matter closely connected with this claim. The application is based on the rule in Smith v. Selwyn, (1914) 3 K.B. 98.

Mr Rowland, S.C. says that this rule is that once a felonious action is directly connected with a civil action the civil action must be stayed pending prosecution. This is not quite a correct statement of that rule, nor even of the principle behind it. The rule in Smith v. Selwyn is based on a civil claim being founded on a felonious act.

The rule is perhaps best expressed by Swinfen Eady L.J., in that case, when he quoted Rolfe, B. In White v. Spettique, 13 M. & W. 603 at 608 as follows:

"I think the true principle is, that where a criminal, and consequently an injurious act towards the public has been committed, which is also a civil injury to a party, that party shall not be permitted to seek redress for the civil injury to the prejudice of public justice, and to waive the felony, and go for the conversion."

In other words, the public duty to prosecute for a felony, or to do all that can be expected in that respect, must be put before the private right to recover damages by civil action.

Mr Akanbi has cited Rev. S.S. Odonkar v. E.P. Allotey & ors., 7 W.A.C.A. 160 as authority for the proposition that the rule in Smith & Selwyn is not to be used as mere delaying tactic, and that the mere defence allegation that the claim is connected with a felony does not of itself bring in the rule in Smith v. Selwyn. This case as Mr Akanbi points out was cited with approval in Ene Nsude v. James Edwin Anigbo, (1958) N.N.L.R. 96, and I respectfully agree.

I also agree with Mr Akanbi that Haco Ltd. v. Peter Udeh, (1959) N.N.L.R. 61 at 63 is authority for the true proposition that not merely a suspicion of felony but a clear proof that the claim is founded on felony is the proper and only ground for a stay under the rule in Smith v. Selwyn.

In the present case plaintiff is not neglecting his public duty to prosecute in preference to suing for the infringement of a private right. That would be the case only if defendants were being or to be prosecuted for the crime of theft. But they are not. The affidavit in support of the motion states that it is plaintiff who is being prosecuted. It was therefore never his duty to initiate proceedings to redress the public injury before attending to his private injury. The rule in Smith v. Selwyn does not, therefore, apply.

However, I conceive that I have a discretion to stay any civil proceeding if they might prejudice or delay or embarrass a criminal trial.

There is no evidence that this civil case will clearly interfere with the criminal proceedings: Haco Ltd. (see above).

The application for stay has not been substantiated. It is refused.

JUDGMENT:

This is an action in trespass. Plaintiff claims that he is in possession of land at Wak and that in 1971 he built an 18 roomed house of mud on that land. He alleges that on the instruction of 1st defendant, relayed to him by 2nd defendant, 3rd defendant entered his land and demolished his house.

The defendants, in a joint pleading, deny liability on two grounds, (a) that the house does not belong to plaintiff, and (b) that they were acting in their capacity as public officers and are protected by the Public Officers (Protection) Law. They dispute the alleged special damages.

As a result of the pleadings the issues were settled as follows:

(1)     The site being agreed, whether plaintiff was the owner or legal possessor.

(2)     The demolition of the building being agreed, whether

(a)     Plaintiff is its owner and

(b)     it cost what plaintiff avers.

(3)     That defendants are public officers being agreed, whether they were acting in execution of their duty as such public officers.

The question in the first issue is whether plaintiff is in relation to that land in a position to bring an action for trespass thereon either as owner on the one hand down to de facto possessor on the other.

The main question on the second issue is whether the building was constructed to such an extent of materials the property of Ministry of Works and Survey that it could fairly be said to be the property of M.O.W. & S. and not of plaintiff.

The third issue needs no explanation.

The facts are for the most part undisputed. Where there is dispute the evidence leaves little if anything in doubt. Of the undisputed and disputed facts I find as follows.

Plaintiff is a technician in the employ of M.O.W. & S., Kano State. During 1971 he had been working on the Tiga road supervising the lorries carrying laterite and other materials for its construction. Third defendant was at the material time employed by M.O.W. & S. as a bulldozer operator on that road, and 2nd defendant was one of plaintiff's next superior officers there. First defendant is the Permanent Secretary of M.O.W. & S.

On 29th May, 1971 1st defendant received information that plaintiff had used M.O.W. & S. materials and labour to build himself a house at Wak. He went to Wak and accused plaintiff of so doing. Plaintiff admitted only using some wooden pegs belonging to M.O.W.S. but said they had been abandoned on the road after use. Without any further discussion, and with no written query having been issued to plaintiff, 1st defendant then ordered 2nd defendant to instruct a bulldozer operator to demolish the building in question. Second defendant instructed 3rd defendant to do so, and 3rd defendant did so.

At this time the basic structure of the building had been completed. The rafters had nearly all been put on. There remained only a few rafters and the pan roofing to be done. It was mud construction, intended for an hotel, and it had been built by plaintiff, that is to say at his expense and to his order, or himself. In building it plaintiff has used M.O.W. & S. 1,500 gallon water bowsers to bring water for mixing the mud. The drivers of these bowsers have given evidence for the defence. They all say they took water to plaintiff's building only with the permission of plaintiff's superior officers and after normal working hours. First D.W. made five such trips. Second D.W. two trips only. Plaintiff also used lorries belonging to contractors with earth-carrying contracts with M.O.W.S. on that road. These again he used only after normal working hours. It appears that these contractors were paid per cubic yard delivered at the road construction site. On balance, then I find that the work done by them for plaintiff was under a separate private contract.

Third D.W. delivered one such lorry-load of "mud" and so did 6th D.W. That is all that has been proved in this respect.

I believe 2nd defendant (8th D.W.) that he found 24 "pegs" of wood 6' x 2? x 3? belonging to M.O.W.S. in that building. I believe the evidence that the building contained 18 rooms. There is some evidence of the cost to plaintiff of this building. I will consider that later, if it becomes necessary.

I am now in a position to make a confident finding on the second issue. It has not been proved that in the construction of this large house plaintiff made wrongful use of any M.O.W. & S. property except 24 "pegs" of wood. He also used M.O.W. & S. 1,500 gallon water bowsers on seven occasions at something over 5/- per 1,000 gallon, and two lorry-loads of "mud" at 5/- per cubic yard; a lorry-load in the case of a tipper such as 3rd D.W. and 6th D.W. operated being 7 cubic yards. No price has been put on the pegs, but for comparison let us guess 5/- each. We have, then about 10,000 gallons of water costing 50/- plus 17 cubic yards of mud costing 35/- plus 24 pegs costing say £6, making a total of £12-10s-0d. This represents the highest figure I can asses for proved use of M.O.W. & S. materials on the house in question. Plaintiff puts the value of the house at about £470. Even at half this price the figure of £12-10s-0d is a very small proportion. Bearing in mind that £6 of that figure has not been proved, that the "mud" may well have been obtained as well as transported on private contract (and if it was not the onus was on defendants so to prove), and that the water was transported with the consent of plaintiffs superior officer, I confidently find against defendants on the second issue.

The first issue is the more interesting. Plaintiff claims to have purchased that land from one Yakubu, 2nd P.W. In his evidence Yakubu agrees. He says he did so with the approval of his brothers and sisters and of the ward-head. He has spoken of documents but has not produced any. He says he "inherited" that farm from his father who is still alive. Evidence of Moslem law shows that he could have received it as a gift inter vivos but could not inherit it in the strict sense of the word during the life-time of his father, Mr Rowland S.C. for defendants asks me to hold 2nd P.W. to the strict sense of the word "inherit". I have considered this. I think it would be unreasonable so to do. Second P.W. is a villager of no apparent education and no great intelligence. He would use the word loosely. I am sure he did so. I am sure that what he meant was something like "my father passed it to me as his oldest son." Since the village head was involved in the transaction between Yakubu and plaintiff I have no reason to believe that there was anything contrary to local law and customer in Yakubu's title.

Mr Rowland S.C. submits that even if there may not have been anything contrary to local law and custom in the transaction between Yakubu and plaintiff, there was certainly something wrong by statute law. As a native of Kwara State plaintiff is, he says, under the Land Tenure Law of Kano State, a non-native. Thus by s. 27 of that Law any purported sale to him by Yakubu whose title was, at best, a customary right of occupancy was unlawful since it did not have the consent of the Commissioner. Such a transaction is, by s. 32 of that Law, null and void. And this applies not only to a sale but to any purported transfer of possession.

Mr Rowland S.C.'s authority for substituting "Kano State" for "Northern Nigeria" in the definition of "native" in s. 2 of this Law is by the statutory chain of s. 2 of Decree 27 of 1967, s. 7 of Decree 14 of 1967 and s. 12 of Decree 1 of 1966. He points out that the term "Northern Nigeria" has no longer any legal meaning and is not used in the Constitution of Kano State. I accept this argument though I feel some reservation as to both its logic and law. I note that North Central State deemed it necessary to pass an Edict to substantiate this interpretation.

Mr Rowland S.C. submits that the statutory prohibition against transfer of possession contained in sections 27 and 32 of the Land Tenure Law prevail over the common-law rule that the person de facto occupying the land has a prima facie title by which he may maintain an action in trespass against all but the true owner or anyone acting under his authority.

This is an attractive argument, but I do not think it is correct. The basis of the common-law rule is the prevention of breaches of the peace. Clerk and Lindsell on Torts 12th Edition p. 1141 explains it this way.

"This protection which the law gives to bare possession seems to be nothing more than an extension of the protection that it accords to the person; (per Lord Denman, Rogers v. Spece, (1844) 13 M. & W. p. 581); possession implies to some extent personal presence and "the inviolability of the person extends to those sorts of disturbance by which the person might at any same time be interfered with "(Trustees, Executors and Agency C. v. Short, (1888) 12 App. Cas 793)."

In Foster v. Warblington Urban Council, (1906) 1 K.B. 648, Vaughan Williams L.J. finding for the occupier of oyster beds against the town council for trespass constituted by a damaging excess of sewage discharge thought that plaintiff had some property in, that is some title to the oyster beds, but he pointed that this was not necessary for him to succeed. He said:-

"In my judgment the plaintiff had sufficient occupation-and I am inclined to think property, but occupation is sufficient-to entitle him to bring this action."

In Bristow v. Cormican, (1877-8) 3 App. Cas 641 at 657 Lord Hatherley said:-

"The slightest amount of possession would be sufficient to entitle the person who is so in possession ... to recover against a mere trespasser."

In Lord Advocate v. Young (1887) 12 App. Cas 544, at 556 Lord Fitzgerald said with reference to trespass, "By possession is meant possession of that character of which the thing is capable."

and it is clear from the context that it was physical control, not legal title that he had in mind.

That is, I think, enough to show that it is bare, de facto physical possession or occupation which entitles a person to bring an action for trespass. Plaintiff's claim is not defeated by the Land Tenure Law. In Ayo Solanke v. Abraham Abed & anor. (1962) 1 All N.L.R. at 230 the Federal Supreme Court held that a purported lease of land the subject of a statutory right of occupancy made without the Minister's permission was merely void, not illegal. It left open the question whether the word "void" in the Land and Native Rights Act section 11 (which in this respect is of identical import to section 27 Land Tenure Law, which we have been considering) should be interpreted merely as "voidable" but it distinguished Delaney's Case, (1946) 2 All E.R. 283, where the English Court of Appeal found against a plaintiff who had entered into possession without the consent of the owner, by saying that in Solanke the plaintiff had "entered into possession of the premises with the consent of the owner." The "owner" referred to was the defendant, the holder of the Certificate of Occupancy.

This use of the term "owner" is important since the right of a possessor which we have been considering is his right against a wrongdoer. It cannot stand against the owner. To quote Lord Hatherley again in Bristow (above)

"Possession is sufficient against a person invading that possession without having any title whatsoever-as a mere stranger; that is to say, it is sufficient as against a wrongdoer."

It is a defence to an action for trespass, that defendant had a right to possession of the land or acted under authority of the person having such right: Halsbury's Laws of England Vol. 38 p. 749 para 1226, or that he entered to do acts which he had a legal right to do there, or that he entered to do acts which he had a legal right to do there, or that he entered to retake goods belonging to him which the plaintiff had wrongfully taken and put on that land.

Mr Rowland S.C. has submitted in support of the first of these defences that defendants had such a right by virtue of s. 19 Land Tenure Law which gives the lawful occupier of native lands exclusive rights to the land the subject of a right of occupancy, subject to statutory provisions, "against all persons other than the Commissioner" and s. 5 of the Law which reads:-

"All native lands and all rights over the same are hereby declared to be under the control and subject to the disposition of the Commissioner."

There are, to my mind, two defects to this argument. The first is that the Commissioner is not empowered by the Land Tenure Law to destroy unlawfully erected buildings or to recover possession of native lands without recourse to a court of law. Section 39(1) of the Law sets out the method of recovery of possession of native land: it is to be done by an action commenced in the High Court. Section 44 of the Law empowers the Commissioner to require a person responsible for unlawful erection of buildings in land for which he holds no right of occupancy or lawful license to remove the same within a stated time (subsection 2), and provides a penalty for failure to comply with his request. Clearly unilateral action of the sort proved in this case is not provided for or permitted by the Law. Only the "owner" that is to say the lawful holder of the right of occupancy, which is Yakubu (or his father) would, in my judgment, be able to put up the defence of title to possession.

The second is that while defendants are entitled to use any right they may have to justify their act even though they were not in fact at the time exercising that right, yet to use it as a defence such right must be pleaded. Bullen and Leake, Precedents of Pleadings 11th Ed. 1114. This title or right has not been pleaded.

What has been pleaded is that plaintiff was not in possession. However, I have found that he was in sufficient de facto possession. It is also, I think relevant that he was there with the leave of the lawful owner. That being so even the lawful owner could not, in all probability, without clearly revoking his leave, maintain such defence. Solanke (above) is not decisive on this point but appears to point to this conclusion. It would be hard to find plaintiff a trespasser against the very person who had given him leave-lawfully or otherwise-to go into possession.

It is a defence that defendant entered to do an act he had a legal right to do. This is not tenable in the present case; no legal right to demolish the building has been shown. This again must be pleaded: Hope v. Osborne, (1913) 2 Ch. 349 per Neville, J. In comments during Counsels addresses, and Halsbury's Laws of England 3rd Ed. Vol 8 para. 1228 where it is said that justification must not only be pleaded but must cover all the acts done.

Finally there is the defence of recovering goods wrongfully taken by plaintiff. This again must be specially pleaded and has not been so pleaded. it was partly, no doubt, what 1st defendant had in mind. Since he has not given evidence I cannot be certain of this. The evidence of 2nd defendant is that 1st defendant ordered him to destroy the house. He was asked and answered honestly that 1st defendant said nothing about retaking any goods, but merely ordered the destruction of the building. Thus in law and in fact this defence is not open to defendants.

The defences justifying the trespass have all failed. I have studied them carefully both in law and in fact because one cannot but have sympathy at least with the feelings of head of a department who finds what he considers incontrovertible proof of breach of trust by one of his officers. However, the courts of justice exist to ensure that such proof does in fact exist and is not mere suspicion, and they exist also to ensure that action is not taken on such evidence as there may be except by persons so authorised by law.

The words of Neville, J. in Hope v. Osborne (above) are apt here. That was a case of persons whose right of common was being abridged by growth of trees which belonged to the Lord of the manor who took it into their own hands to cut down those trees. He said:-

"No doubt in a case like this public sympathy is aroused on behalf of those who are endeavouring to assert rights of which they believe themselves to be possessed. But I think it is a matter of very great importance that it should be thoroughly understood that the occasions upon which people are entitled to take the law into their own hands with regard to rights of property are very few indeed. I think I should not be exaggerating if I said that in 99 cases out of every 100 where people choose, instead of having their rights declared by the court, to act upon what they suppose to be their rights to injure property or commit acts of violence of any kind, they will find that they have to suffer for it, and I think that in these days it is very important that every man and every woman in the kingdom should bear that constantly in mind."

I venture to say that those words are as true in Kano in 1971 as they were in England in 1913.

Having found that plaintiff can maintain this action and that he was the person who built the house which was demolished, and that the trespass has not been justified either in the pleadings or in fact I now have to consider the defence under the Public Officers (Protection) Law set up in para. 7 statement of Defence.

This pleading is deficient in that it does not stipulate which provision of the Law is being set up as protection. It is not contended that plaintiff is out of time and I can see no other applicable section. No amends have been proffered. This defence therefore fails. I would add this however, that defendants were none of them acting (in the words of s. 1 of that Law),