DANJUMA V. S.C.C. (NIG.) LTD (2016)

Background

This appeal arose from a land dispute concerning a portion of the former Giwa Forest Reserve near Sabon Iche Village in Kagarko Local Government Area of Kaduna State. The appellant, Barrister Magaji Henry Danjuma, obtained a certificate of occupancy covering approximately 98.5 hectares and took possession by farming and planting economic trees. The 2nd respondent, the Federal Ministry of Water Resources, was separately allocated land for the Gurara Lower Usman Dam water-transfer pipeline project and engaged the 1st respondent, S.C.C. (Nig.) Ltd, as contractor.

In executing the project, the 1st respondent laid pipes and constructed an access road, but also established a camp, erected structures and dug barrow pits. The appellant alleged that these activities occurred on his land, destroyed or removed his survey beacons and interfered with his possession. He claimed declarations, removal of the camp and structures, refilling of the barrow pits, replacement of the beacons, perpetual injunction and N10,000,000 general damages for trespass.

The Kaduna State High Court declared the appellant the owner of the land but refused the remaining reliefs. The trial court reasoned that the appellant had not established exclusive possession of the particular area allegedly encroached upon. The appellant appealed against that refusal.

Issue

The principal issue was whether, having regard to the pleadings and evidence, the appellant proved that the 1st respondent trespassed on his land and was therefore entitled to the reliefs claimed.

Ratio Decidendi

The Court of Appeal allowed the appeal. It held that trespass to land is an unlawful interference with the exclusive possession of another. The interference may be slight; no intention to trespass is required, and ignorance of the true owner is no defence. A person in possession, even if not the legal owner, may maintain an action for trespass. Where competing claims to possession exist, the person with the better title is ordinarily presumed to be in possession.

A claimant in trespass must generally establish possession or a right to possession, the defendant’s unlawful entry or interference, and the identity of the land. However, proof of identity becomes a live issue only where the defendant specifically disputes the area, location, boundaries or features of the land in the pleadings. In this case, the respondents did not meaningfully place the identity of the disputed land in issue. The appellant’s certificate of occupancy and attached plan, together with the evidence at trial and the visit to the land, sufficiently identified the relevant area.

The court further held that the burden of proof in civil proceedings is not static. Although the appellant initially bore the burden of showing possession and trespass, once he established that the camp and barrow pits were on his land, the evidential burden shifted to the respondents to justify their occupation or show a superior right. The trial judge wrongly required the appellant to prove the precise land allocated to the respondents and then demonstrate that the camp lay outside it.

Court Findings

The evidence showed that the appellant’s title had already been judicially recognised. Evidence from the respondents’ witnesses indicated that the disputed area had been pegged after the appellant’s claim arose, that the contractor’s camp was later moved to the site, that beacons had been removed before the construction of barrow pits, and that compensation had been paid to the Jere Traditional Council in respect of the disputed land. These facts supported the appellant’s case rather than the respondents’ contention that prior occupation since 2001 defeated the claim.

The court also considered the visit to the locus in quo. Such a visit is permitted to help the court understand physical features, boundaries and landmarks and to relate the evidence given in court to the condition of the land. The appellant’s identification of the boundaries and beacons at the site was not fresh testimony requiring oath-taking or cross-examination because it merely explained evidence already given. Nevertheless, a judge must not rely on personal impressions from the inspection as a substitute for sworn evidence. The trial judge erred by finding, without pleadings or supporting evidence, that the parties’ lands overlapped or that the appellant had encroached on the respondent’s access road. Those personal observations were discountenanced.

The argument that S.C.C. (Nig.) Ltd was merely an agent of the Federal Ministry and could not be sued was rejected. An agent acts for and on behalf of a principal, and a principal may be vicariously liable for acts within the scope of the agency. However, an agent who personally commits a tort is itself a tortfeasor and may be sued jointly or severally with the principal. The 1st and 2nd respondents were therefore properly joined and jointly liable for the trespass.

Conclusion and Orders

The Court of Appeal set aside the judgment of the Kaduna State High Court delivered on 2009-04-20. It declared that the respondents’ entry onto the appellant’s land and erection of structures amounted to trespass. S.C.C. (Nig.) Ltd was ordered to remove the camp and illegal structures, refill the barrow pits and replace the destroyed or removed beacons. The respondents, their agents, workmen, privies and assigns were permanently restrained from further trespass or construction on the land.

Under section 16 of the Court of Appeal Act, the appellate court granted the reliefs which the trial court ought to have granted. Instead of the N10,000,000 claimed, the court awarded N5,000,000 as general damages, jointly and severally against the respondents. No order was made as to costs.

Significance

The decision confirms that landowners and persons in possession are protected against direct physical interference, even where the interference is limited or undertaken for a public infrastructure project. It clarifies that a contractor cannot avoid tortious liability merely by describing itself as an agent or independent contractor. It also provides important guidance on locus in quo inspections: the inspection assists evaluation of existing evidence but cannot create unpleaded facts or replace testimony. Finally, the case illustrates the Court of Appeal’s power to provide complete relief where a trial court has correctly recognised title but improperly failed to grant consequential remedies for trespass.