In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
Before Their Lordships
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
1. MR. JOHN OKECHUKWU
2. MR. MICHEAL OKECHUKWU –Appellants
1. CHIEF OGUGUO ALFRED NWOSU
2. THERESA IFEOMA NWOSU –Respondents
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of the High Court of Anambra State delivered in suit no. A/406/2013 on 21/11/2016. The respondents as the plaintiffs in the suit claimed the following reliefs against the appellants as the defendants:
The sum of N10,000:00 (Ten Million Naira Only) being general and special damages for the unlawful detention of the plaintiffs by the police based on the false report of the defendants.
The appellants counterclaimed against the respondents for:
N10,000,000:00 (Ten Million Naira) for special and general damages imposed on the defendants in the use and quiet possession of the subject property viz. john O. Okechukwu’s compound opposite Immanuel Anglican Church, Iruokwe village, Enugwu ukwu.
The dispute arose from construction of a culvert by 1st respondent over a gutter which the government constructed while building a road which passes by the area where the parties reside. The culvert was being constructed over the gutter to enable the residents vehicles pass over the gutter which was left uncovered.
The 2nd appellant got the workmen employed by the 1st respondent arrested by the police on the allegation that the culvert extended and encroached on the 1st appellant’s land. The 1st appellant then erected a dwarf wall which the respondents alleged cut off a substantial part of the culvert. The 1st appellant wrote a petition to complain about the dwarf wall to Anambra State Urban Development Board (ASUDEB). The board inspected the wall and issued a removal/demolition order to the 1st appellant to remove the wall within 14 days. According to the 1st appellant, ASUDEB demolished the wall before expiration of the 14 days stated in the notice. The 1st appellant then wrote a petition to the police and alleged that the respondents conspired with the Zonal Manager of ASUDEB to illegally and maliciously demolish his fence. The respondents alleged that the police invited them and when they reported at the police station, they were detained and only released on bail in the evening at the instance of the appellants.
The appellants and the respondents testified in support of their claims and called no other witness.
After hearing both parties, the Court awarded the sum of N500,000:00 (Five Hundred Thousand Naira) as damages for the unlawful detention of the respondents by the police instigated by the appellants. The appellants counter claim was dismissed.
Dissatisfied with the judgment, the appellants filed a notice of appeal on 14/1/2017. The appellants brief of argument was filed on 3/4/2017. The respondents brief of argument was filed on 5/5/2017. Appellants reply brief was filed on 22/5/2017. The appellants formulated 21 issues for determination. The respondents formulated 3 (Three issues) for determination. I have considered the grounds of appeal along with the issues formulated by both parties. My view is that the issues thrown up for determination in this appeal are:
1. Whether on the entire evidence adduced by both parties, the learned trial judge was right in awarding damages against the appellants.
2. Whether on the entire evidence adduced by both parties, the learned trial judge was right in dismissing the appellants counter claim.
On issue 1, the appellants counsel submitted that the learned trial judge misdirected himself when he held that the onus rests squarely on the defendants to show that they were justified in writing the petition and they failed to discharge this burden in the circumstances. He further submitted that the decision is wrong because the onus of proof in civil cases shifts and does not rest squarely on one party. He referred to DALE POWER SYSTEMS PLC V. WITT & BISCIT LIMITED (2007) ALL FWLR (PT. 394) 353 CA. Counsel also submitted that the learned trial judge misdirected himself when he awarded damages against the appellants and failed to consider the fact that the illegal and malicious demolition of the 1st appellant’s wall by ASUDEB and its officials was instigated by the respondents, with their involvement and commitment and before the expiration of the 14 days stated in the notice posted on the wall of the 1st appellant’s compound. It is submitted that the learned trial judge failed to consider the fact that the petition written to ASUDEB (Exhibit P3) is false because Exhibit D2 shows that the wall was constructed behind an electric pole and in alignment with the edge of the 1st defendant’s wall fence and did not block the access road as falsely alleged by the respondents while Exhibit D1 shows that the 1st respondent illegally blocked the access road by dumping stones there for one month. Counsel argued that the petition written to the Commissioner of Police (Exhibit P5) was written in utmost good faith by the 1st appellant and has nothing to do with the 2nd appellant. He further argued that the 2nd appellant’s joinder in the suit is malicious and intended to harass and intimidate him when he is not the owner of the property.
In his response to the above submissions, the respondents counsel referred to the entire pleadings and the evidence of the appellants, he submitted that the learned trial judge examined the evidence and rightly concluded that the appellants admitted writing Exhibit P5 which is deemed proved and needs no further proof. He referred to KAYILI V. YILBUK (2015) 7 NWLR (PT. 1457) 26 AT 63. He argued that Exhibit P5 was the basis for the invitation and detention of the respondents and it was through Exhibit P5 that the appellants set the law in motion against the respondents.
He submitted the contents of Exhibit P5 was not intended to serve as a mere information to the police about an alleged commission of the crime, it was meant to initiate a process by which the respondents would be arrested and detained by the police. He further submitted that malice in the context of the tort of unlawful imprisonment or its related tort of malicious prosecution is not considered by the law in the sense of hatred or spite against the victim but in the sense of the perpetrator being actuated by improper motive or animus mallus or in the sense of a wrongful act intentionally done. He referred to PAYIN V. ALIUAH (1953) 14 WACA 267 AT 268. OKONKWO V. OGBU (1996) 37 LRCN 580. AFRIBANK V. ONYIMA (2005) 4 FRIS AT 32-33. Counsel referred to the evidence of the 2nd appellant (DW1) under cross examination. He submitted that the learned trial judge having satisfied himself that there was no justification for writing Exhibit P5 and that it was malicious came to the right conclusion that the appellants deliberately criminalized the act of demolition of the wall to enable the police arrest and detain the respondents and rightly applied the law governing false imprisonment.
He further submitted that having found the appellants liable for false imprisonment, the learned trial judge rightly awarded damages in favour of the respondents as it is the law that where a person’s right has been infringed, he is entitled to award of damages to vindicate him even though he has not suffered any pecuniary damages. He referred to ODOGWU V.A.G. (FEDERATION) 1996 14 LRCN 1454. ISENALUMHE V. AMADIN (2001) 1 CHR 413.
In his reply, the appellants’ counsel submitted that the principles governing a claim for false imprisonment was not properly and correctly considered and evaluated by the learned trial judge. He further submitted that the onus of proof is on the party who alleges or asserts false imprisonment to prove same. He referred to BALOGUN V. EGBA ONIKOLOBO COMMUNITY BANK (NIG) LTD. (2007) ALL FWLR (PT. 382) 1952. It is submitted that the appellants have not shown that the respondents were actually instrumental in setting the law in motion against them. He referred to FAJEMIROKUN V. COMMERCIAL BANK NIG. LTD (2009) 6-7 SC (PT. 1) 26 AT 33. He further submitted that where an individual lodged a complaint to the police by way of petition and the police thereupon on their own proceeded to arrest and detain any person, the act of imprisonment is that of the police. He referred to NWANGWU V. DURU (2012) NWLR (PT. 751) 265 AT 282 283. ISHENO V. JULIUS BERGER (NIG) PLC (2008) 6 NWLR (PT. 1084) 582 AT 591.
The respondents claim was for unlawful detention based on false report by the appellants. In Nigeria, the fundamental right of freedom of movement is guaranteed by the Constitution. Any unlawful curtailment of a person’s freedom of movement may lead to an action for breach of fundamental right or false imprisonment. In this case, the claim being made is one for false imprisonment. False imprisonment occurs when a person’s movement is restricted within an area against his will and without any lawful justification. The law is settled that in an action for false imprisonment, the claimant must show that the defendant was actively instrumental in setting the law in motion against him. See OKONKWO V. OGBOGU & ANOR (1996) LPELR 2486 (SC).
It is settled that an action for false imprisonment will not lie against a private individual who merely gives information which leads the police on their initiative to arrest a suspect. See ISHENO V. JULIUS BERGER NIG PLC (SUPRA). Where a person makes a genuine complaint to the police against another and that other is arrested and detained by the police, the complainant cannot be said to have put the law in motion against him. The Supreme Court considered the issue of whether an action for false imprisonment can lie against a person who gave information to the police in OKAFOR V. ABUMOFUANI (2016) LPELR 40299 (SC) AT 50 – 51 (B – A) and held as follows:
“It is trite that where a person makes a genuine complaint against another to the police and the later is arrested, detained and prosecuted by the police, he cannot be said to have put the law in motion against him. See Gbajor vs. Ogun buregui (1961) All NLR 853, Isheno v. Julius Berger Nig. Plc (2008) 6 NWLR (Pt. 1084) 582. However where a report is made to the police and the suspect is specifically mentioned, and the report is found to be false, malicious, ill motivated and tissues of lies, in a claim for damages, the victim of the report shall be entitled to damages.
In such a suit, the police are not a necessary part because part of their duties is to receive complaint and act on it accordingly. Where the police investigation reveals that the report was made mala fide, there is no cause of action against the police except it can be shown that the appellant connived with the police in making the false report. See Okonkwo v. Ogbogu (1996) 5 NWLR (Pt 449) 420.”
The entire claims of both parties revolve around Exhibits P3, P5 and D3. Exhibit P3 is the petition of the respondents to ASUDEB. Exhibit P5 is the petition of the appellants to the police. The contents of those documents are set out hereunder for a better understanding of the arguments of both parties and the decision of the Court below.
RE: COMPLAINT/BLOCKAGE OF PUBLIC ACCESS ROAD
In line with your usual work ethics, I hereby wish to report and complain officially that one Mr. Okechukwu Micheal of Uruokwe village Enugwu Ukwu has blocked the entrance road leading to our house and other members of our extended family on his selfish and unpatriotic act.
Sir, it should be recalled that same Okechukwu has some time last year made similar blockage by instructing his brother to put a bill board on same road, which your office came and ordered him to remove.
As if that was not enough, he now erect a fence wall directly on same road leading to our compound thereby making it imperatively difficult for vehicles that use to come and drop goods for us.
Sir, I solicit that you use your office to correct the anormally before it constitutes a very big delima to our family members.
CONSPIRACY AND MALICIOUS DEMOLITION OF MY FENCE BY OGUGUA NWOSU, THERESA NWOSU AND ZONAL MANAGER AWKA ZONE A OF ASUDEB (NJIKOKA UNIT)
I write to report that the following persons Ogugua Nwosu and Zonal Manager Awka Zone A of ASUDEB conspired and maliciously demolished my fence which did not block any vehicle from using the easement. The fact is that Ogugua Nwosu and Theresa boasted that they would demolish my wall using the Zonal Manager of the ASUDEB Zone A and three days after I was given removal notice by the Anambra State Urban Development Board, they came with Theresa Nwosu and demolished the wall.
Only last Friday 12th July, 2013 Ogugua Nwosu and Theresa Nwosu came to my compound in Enugwu-Ukwu with one ASUDEB staff to deliver the notice. I was given two weeks for explanation or reason for building a dwarf wall or regularize our action before the ASUDEB Zonal Manager on conspiracy with Theresa and Ogugua Nwosu illegally demolished my wall. Ogugua Nwosu and his sister Theresa had been causing me pains in my compound and have influenced the Zonal Manager to maliciously destroy my fence.
1. Please note the labour and the materials cost me about Two Hundred and Fifty Thousand Naira (N250,000.00).
2. I took photograph of the wall before it was demolished and after it was demolished.
The Anambra State Urban Development Board letter No ASDEB/AZ/NJ/2013/037 dated 12th July, 2013 was wrongly addressed to my son Micheal Okechukwu instead of me the owner of the wall and compound.
1. Pray you to use your office to arrest the culprits namely Ogugu Nwosu, Theresa Nwosu and the Zonal Manager Awka Zone A ASUDEB, Awka Zone A.
The learned trial judge considered the entire evidence led by both parties and held as follows at pages 153 154 of the record of appeal:
From the contents of Exhibit P5 the defendants, especially the 1st defendant, were emphatic that the plaintiffs conspired with the Zonal Manager ASUDEB to demolish the wall. The 1st defendant stridently by Exhibit P5, pointed an accusing finger at the plaintiffs. This was why he prayed the Commissioner of Police to arrest the culprits namely Ogugua Nwosu and Theresa Nwosu and the Zonal Manager, Awka zone ASUDEB, Awka Zone A for prosecution. It is my considered view that by that petition to the police (Exhibit P5) the defendants deliberately criminalized the acts of demolition to enable the police arrest and detain the plaintiffs. I have no doubt in my mind to hold that Exhibit P5 was made in absolute bad faith. By their action, the defendants led the police to arrest and detain the plaintiff. The law is that a party will be held liable where he deliberately, falsely and vindictively set the machinery in motion for the breach of another person’s right to personal liberty. See Dibia vs. Igwe (1998) 9 NWLR (pt. 564) 78.
Worst still, the defendants copiously admitted reporting the plaintiffs to the police through Exhibit P5. The principle remains that where there is evidence of arrest and detention of a plaintiff which were done or instigated by the defendant, it is fort the defendant to show that the arrest and detention were lawful. In other words, the onus is on the person who admits detention of another to prove that the detention was lawful. See FAJEMIROKUN VS. CB (C.L.) (NIG.) LTD. (2002) 10 NWLR (PT. 774) 95. The evidence of DW2 with respect to Exhibits P3 and D3 show that the defendants were at all times aware that ASUDEB is an agency of Anambra State Government. The defendants were aware that none of the plaintiffs is a staff of that agency. That fact that the 2nd plaintiff petitioned the agency over the erection of the dwarf wall by the defendants ought not to have warranted the defendants to write Exhibit P5 to the police. Rather one would have expected the defendants to sue the agency over the demolition. The motive behind the Exhibit P5 was to ensure that the plaintiffs were arrested and detained. The defendants realized their wish.
The onus rests squarely on the defendants to show that they were justified in writing the petition. They failed to discharge this burden. In the circumstances.
The learned counsel for the appellants argued forcefully that the appellants never admitted anything and that it was the 1st appellant only that wrote the petition. I hereby set out the material averments of both parties for a better understanding of the involvement of the 2nd appellant in the events which culminated in the writing of Exhibit P3.
Paragraphs 3, 6 , 22 of the statement of claim read:
3.The plaintiffs aver that the 2nd defendant is a biological son of the 1st defendant.
6. The plaintiffs aver that sometime in May, 2013, the 1st plaintiff bought sands, iron rods, planks, Nails, bending wires and tipping stones and wanted to construct a culvert at the entrance leading to the compound of the parties and other families making use of the road. When the 1st plaintiff bought and kept all the materials and was waiting to commence work, the defendants never said anything nor complain to the plaintiff nor any other person for any reason whatsoever.
7. The plaintiffs aver that on the 28th June, 2013, the 1st plaintiff bought the remaining materials and hired paid labourers who commenced the construction of the said culvert that same day.
8. The plaintiffs aver that surprisingly the 2nd defendant who had been around since morning when the work started, went and brought police men from Abagana Police Station who came and arrested the paid labourers of the 1st plaintiff at about 4.pm when I was away.
9. The plaintiffs aver that it was the labourers who called the 1st plaintiff while at the Abagana Police Station and informed him that they have been arrested by the 2nd defendant.
10. The plaintiffs aver that when the 1st plaintiff arrived at the station and after he told the policemen that he was only constructing culvert leading to their house, which ordinarily should be done by the State Government. The police opted to visit the place in order to find out the true position of the matter. The 1st plaintiff, the 2nd defendant with the police went to the scene. When the policemen saw that the 1st plaintiff was being magnanimous by constructing the culvert which ordinarily should be done by the State Government, the policemen cautioned and warned the 2nd defendant to desist from disturbing and interrupting the 1st plaintiff’s labourers. The 2nd defendant allowed the labourers to complete their work. The 1st plaintiff went back to Abakaliki and allowed the paid labourers to complete their work.
11. The plaintiff aver that about 10 days after the paid labourers returned back to Abakaliki upon completion of the work, the plaintiffs visited home and saw that the 2nd defendant had illegally built dwarf wall fence with pillar, which said wall fence cut off substantial part of the said entrance culvert constructed by the 1st plaintiff that no big vehicle can pass through it. When the plaintiffs reported the action to Abagana police station who immediately followed the plaintiffs to the scene and saw the illegal dwarf wall fence used in cutting off the entrance culvert by the 2nd defendant, the policemen advised the plaintiffs to lodge a complaint with ASUDEB Awka.
12. The plaintiffs in hiding the advice of the policemen from Abagana Police Station, went and reported the illegal action to ASUDEB, Awka, which approved the petition and referred the plaintiff to their Abagana Branch.
13. The plaintiffs further aver that after the officer in charge of the Abagana Branch of ASUDEB confirmed that the 2nd defendant did not obtain any permit before his illegal dwarf fence, the officer caused a letter of removal of the said illegal dwarf wall fence to the 2nd defendant. The plaintiffs shall at the trial of his case found on the said letter of removal and the defendants are hereby given notice to produce same.
14. The plaintiffs also aver that when the 2nd defendant refused, failed and or neglected to comply with the letter of removal given to him by ASUDEB, ASUDEB then came on their own and removed all the illegal dwarf wall fence put up by the 2nd defendant.
15. The plaintiffs further aver that some days after the plaintiffs were invited to the Area Command Police Headquarter, Awka on the false allegation by the 2nd defendant that the plaintiffs connived with ASUDEB to remove his illegal dwarf wall fence.
16. When the 2nd plaintiff reported to the Area command, Awka on 22nd July, 2013 and volunteering her statement, the 2nd plaintiff was detained from 9:00am – 8:00pm at the instance of the 2nd defendant before she was granted bail upon payment of N10,000.00 (Ten Thousand Naira) Only.
17. The plaintiffs further aver that when the plaintiffs also reported to the Area Command, Awka on 25th July, 2013 and volunteered his statement; the 1st plaintiff was also detained till evening at the instance of the 2nd defendant before he was granted bail, as the 1st plaintiff could not go about his business throughout that day. The 1st plaintiff was also granted bail upon payment of N10,000.00 (Ten Thousand Naira) Only.
18. The plaintiffs aver that on the 29th July, 2013 when the officers of Area Command, Awka invited the parties for interview and interrogation, the 1st plaintiff was not present because he told the Police Officers that he will not be available and his excuse was accepted. After the 2nd plaintiff stood out the Office of the Police Officers at the Area Command, Awka for some hours, while the 2nd defendant, the Zonal Manager ASUDEB with the Police Officers were inside the office, the 2nd plaintiff was asked to go without any explanation even when the 2nd plaintiff demanded for same.
19. The plaintiffs also aver that on the 30th July, 2013 while the 2nd plaintiff was in their compound cleaning the compound, she had the sound of their gate. When the 2nd plaintiff got up, surprisingly she saw the 2nd defendant coming down to meet her and there was no other person in the compound.
20. The plaintiffs further aver that when the 2nd defendant approached the 2nd plaintiff, he was threatening to deal with the plaintiffs based on his allegation that the plaintiffs connived with ASUDEB to remove his illegal dwarf wall fence. Surprisingly the 2nd defendant raised his shirt and showed the 2nd plaintiff the gun he had in his waist and the 2nd plaintiff was panting and earth quaking. After the threat, the 2nd defendant left the plaintiffs compound.
21. The plaintiffs state that immediately the 2nd defendant left their compound after his threat of dealing with the plaintiffs, the 2nd plaintiff through the back gate rushed to the Abagana Police Station and lodged complaint. When the Policemen from Abagana Police Station approached the defendants??? compound, the 2nd defendant saw them and ran into their compound and locked their gate even when the Policemen were calling him.
When the Policemen continued calling him through the fence, he told the Policemen that he will answer the invitation at his own time. The Policemen then left.
22. The plaintiffs aver that 2nd defendant had taken the 2nd plaintiff to different station at different times for over ten times without any just cause.
The material averments of the appellants are contained in paragraphs 9 , 11, 17, 21, 23 of the statement of defence and counter claim:
9. In further answer to paragraphs 7 and 8, the defendants aver that the 2nd defendant told the labourers of the 1st plaintiff to stop work on the culvert that was encroaching on the 1st defendants land. The 1st defendant is the father of the 2nd defendant. The 1st plaintiff then threatened to kill the 2nd defendant and ordered his hired labourers to break the 2nd defendant’s head if he attempted to stop them from working. The 2nd defendant then went to Abagana police station and made a report of threat to his life against the 1st plaintiff and conduct likely to cause a breach of the peace against the 1st plaintiff and his labourers.
10. The defendants deny paragraph 9, the 2nd defendant aver that the policemen at Abagana police station collected the phone number of the 1st plaintiff and told him over the phone that he was wanted at the police station for the offence of conduct likely to cause a breach of the peace and threat to the life of the 2nd defendant.
11. The defendants deny paragraph 10, the 2nd defendant avers that the police visited the scene of crime and later at the police station, the policemen cautioned the 1st plaintiff not to trespass on the land of the defendants and cautioned to be of good behaviour. The 2nd defendant states that he did not disturb the 1st plaintiff’s labourers from constructing the culvert across the road constructed on the land the 1st defendant donated dut that he stopped the labourers from encroaching on his father???s land which he did not donate as part of the road.
17. The defendants deny paragraph 15 and avers that the 1st defendant on the 15th of July, 2013, wrote a petition to the commissioner of police, Anambra State complaining of the malicious and illegal demolition of his fence wall by the Zonal Manager of ASUBEB Zone A Awka at the instance of the plaintiffs.
Sequel to the said petition of the defendant, the plaintiffs were invited by the Special Intelligence Bureau (SIB) Anambra State which was assigned the petition of the 1st defendant for investigation by the commissioner of police. The petition of the 1st defendant was not false.
21. The defendant deny paragraphs 19 and 20 and state that it is a cock and bull story invented for the purpose of this case. The 2nd defendant states that he has never entered the compound of the plaintiffs for many years and he has never handled a gun all throughout his life. The 2nd defendant also states that he did not threaten the plaintiff on the 30th of July, 2013 or at any other time.
22. In further answer to paragraph 20, the 2nd defendant states that plaintiffs wrote a petition to A.I.G, Zone 9, Umuahia alleging that the 2nd defendant threatened the 2nd plaintiff with a gun. The matter was transferred to J.W.C Unit of Zone 9 Umuahia. When the police asked the 2nd plaintiff to produce the witnesses who were around when the alleged incident happened she craftily said that no one was present when the alleged incident happened.
The police found that the 2nd plaintiff was deliberately telling lies to implicate the 2nd defendant.
23. The defendant deny paragraph 21. The 2nd defendant aver that no police man from Abagana police station to look for him on the 30th July, 2013 or at any other time in connection with the allegation that he threatened the 2nd defendant with a gun. The 2nd defendant further avers that up till date no police man from Abagana police station has invited him to Abagana police station.
It is clear from the pleadings of both parties that the 2nd appellant cannot be exonerated or separated from the events which culminated in the writing of Exhibits P3 and P5. He was the one on ground and he witnessed the demolition of the disputed wall. He was the one who informed the 1st appellant about the demolition of the fence. His evidence under cross examination clearly confirmed that. From the entire pleadings and the evidence led, the 2nd appellant precipitated the writing of the petition, though he did not sign it. It is clear from the pleadings and the evidence of the 1st appellant that he admitted writing Exhibit P5. The 2nd appellant not only mentioned the 1st respondent’s name to the police when he lodged a complaint at the police station, he supplied his phone number to the police, the appellants names were specifically mentioned in Exhibit P5 with a request for their arrest and prosecution for illegal demolition of his wall when it was ASUDEB that served him notice to remove the wall and it was ASUDEB that demolished it. The appellants knew that it was not the respondents that demolished the wall and they knew that the wall was demolished for fencing without permit from the board. The report was made with malicious intent. It is settled law that where a report is made against a person specifically mentioned as a suspect or an accused person and the report is found to be false, the person who was actively instrumental in setting the law in motion against him is liable to pay damages or compensation for unlawful detention or false imprisonment. See OKAFOR V. ABUMOFUANI (SUPRA) AT 26 (C- E). I am of the firm view that the appellants were actively instrumental in setting the law in motion against the respondents, the learned trial judge rightly awarded a sum of N500,000:00 (Five Hundred Thousand Naira) as damages for the unlawful detention of the respondents against the appellants. Issue 1 is resolved in favour of the respondent.
On issue 2, the appellants counsel submitted that the learned trial judge misdirected himself when he held that the appellants counterclaim is confusing when it was established by evidence that the content of Exhibit P3 is false and that the demolition of the 1st appellant’s wall constitute a disturbance to the use and quiet possession of the 1st appellant’s property. He finally submitted that the learned trial judge misdirected himself when he considered the reply to the statement of defence and defence to counterclaim which was filed out of time for which no fee for late filing was paid.
In his response, the respondents counsel submitted that the defence offered by the appellants was not sufficient to prove the claim of trespass made by the appellants and in any case the learned trial judge found that the wall was demolished by the staff of ASUDEB and that the respondents failed to establish element of influence or instigation on the staff of ASUDEB.
In his reply, the respondents counsel submitted that a serious undue influence by the respondents on the ASUDEB staff was established through DW1’s evidence under cross examination and by the evidence that the 2nd respondent supported by the 1st respondent arrived at the place in the same vehicle with ASUDEB staff who without delay proceeded to unlawfully, maliciously and illegally demolish the 1st appellant’s wall before the expiration of the date stated in the demolition notice.
The law is settled that a counterclaim is a separate and independent action and the burden and standard of proof is the same as in the main claim. The defendant/counter-claimant must also discharge the burden by cogent and credible evidence. In the instant case, the appellants claim was for special/general damages for trespass and nuisance to the 1st appellant in the use and occupation of his property. I reproduce paragraph 29 of the statement of defence and counter claim:
WHEREFORE the defendants counterclaim against the plaintiff jointly and severally as follows:-
(a) N10,0000,000.00 (Ten Million Naira) for special/general damages imposed on the defendants in the use and quiet possession of the subject property viz John O. Okechukwu’s compound opposite Immanuel Anglican Church Uruokwe village Enugwu-ukwu.
(i) Defendants will in the circumstance show:-
That the petition forming the basis of the plaintiffs’ suit was written by the 1st defendant as the owner of the property that was illegally demolished by the Zonal Manager Awka Zone A of SUDEB at the instance of the plaintiffs and had nothing whatsoever to do with the 2nd defendant.
(ii) That the plaintiff’s actions on the said property constitute acts of trespass and nuisance to the 1st defendant in the use and occupation of his property.
(iii) That consequently, the 1st defendant has every right in law to write the petition he wrote to the commissioner of police more so where his fence wall was demolished by ASUDEB even without waiting for the period of the notice given to the 1st defendant to expire obviously following undue pressure from the plaintiff to effect the demolition.
The basis of the appellants’ claim is the demolition of the 1st appellant’s wall. The respondents wrote a petition to ASUDEB about the erection of the wall by the appellants. From the entire evidence on record they showed the wall to the officials of ASUDEB. The respondents merely lodged a complaint with ASUDEB, they did not participate in the demolition of the wall. The learned trial judge considered the evidence adduced in respect of the counter claim and held as follows:
The defendants in paragraphs 29(a) (1), (ii), (iii) admitted that Exhibit P5 is the basis of the plaintiffs case. That the 1st defendant has right to petition police because ASUDEB demolished his wall before the period given in the notice.
If I understand the defendants clearly, the basis of his petition (Exhibit P5) was the demolition of his wall by ASUDEB because the plaintiff mounted pressure on the zonal manager. As I held earlier, the defendants??? allegation was not proved. It was presumptive for them to say so. Besides, the DW2 emphatically testified that DW1 did not tell him that the plaintiffs participated in the actual act of demolishing the wall. This evidence violently contradicted the DW1’s evidence that he saw the 2nd plaintiff participating in the demolition. The fallacy of the position of the defendants became very clear when the defendants agreed that 1st plaintiff resides in Abakaliki and was not at home when the demolition took place. Why then was the name of the 1st plaintiff included in the petition (Exhibit P5)
The burden of proof of the counter claim rests on the defendants. The law is that whosoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts shall prove that those facts exist. See Section 131 (1) of the Evidence Act, 2011.
Having failed to discharge the onus of proof, the defendants are not entitled to the relief they claim in their counterclaim. I therefore resolve the second issue against the defendants.
The learned trial judge properly evaluated the evidence and came to a correct conclusion. The appellants grievance is that the demolition of the wall before the expiration of 14days given to him is illegal and unlawful. The respondents were not the ones that committed the alleged illegality and unlawful act.
The proper person that ought to have been sued is ASUDEB not the respondents. In any case, the reason for the demolition of the wall was that it was erected without the permission of ASUDEB. The appellants did not address that issue at all. The appellants failed to adduce cogent and credible evidence to establish the alleged illegality of the demolition of the wall by ASUDEB which can only be done by either showing that they had the permission of ASUDEB to erect the wall or that they did not need the permission of ASUDEB to erect the wall which they failed to do. See OLOKODE & ORS V. IJAOLA & ORS. (2005) LPELR 114 28 (CA) AT 31 (D – G) JEGEDE & ORS V. BAMIDELE & ORS. (2005) LPELR 11390 (CA) AT 26(A). For the above reasons, issues 2 is resolved against the appellants.
In conclusion, this appeal fails and it is hereby dismissed. Parties shall bear their own costs.
TOM SHAIBU YAKUBU, J.C.A.: I am in agreement with the opinion rendered by his Lordship, MISITURA OMODERE BOLAJI-YUSUFF, J.C.A., in the lead judgment, which culminated in the appeal being dismissed.
I too dismiss the appeal and affirm the judgment delivered in re-Suit No. A/406/2013 of 21st November, 2016 at the Anambra State High Court of justice, holden at Awka.
Each side shall bear own costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother – MISITURA OMODERE BOLAJI -YUSUFF, JCA.
I agree with his reasoning and conclusions.
The appeal is dismissed by me.
I abide by the consequential order made as to costs.
C. A. Nwankwo –For Appellant
C.P. Chibuzor –For Respondent