CIVIL PROCEDURE – REQUIREMENTS OF MANDAMENT VAN SPOLIE – APPLICANT MUST ALLEGE AND PROVE PEACEFUL AND UNDISTURBED POSSESSION AND DEPRIVATION OF POSSESSION

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CIVIL PROCEDURE – REQUIREMENTS OF MANDAMENT VAN SPOLIE – APPLICANT MUST ALLEGE AND PROVE PEACEFUL AND UNDISTURBED POSSESSION AND DEPRIVATION OF POSSESSION

The plaintiff instituted action seeking an order directing the first defendant to remove the barrier created on a portion of land occupied by the plaintiff. The plaintiff’s case is that the land in dispute was ceded to him and that he leases it from the second defendant. The plaintiff was in the process of developing the land when the first defendant put up the barrier in order to prevent the plaintiff from having access to the land. The plaintiff claims that he is entitled to relief of the mandament van spolie. The first defendant defended the action and maintained that he acquired the said piece of land from the Traditional Authority. He argued that the plaintiff did not make out a case for the relief sought. 

MUNSU AJ considered the matter and held that:

1. In spoliation proceedings, an applicant must allege and prove peaceful and undisturbed possession of the property in question and an unlawful deprivation of that possession by the respondent.
2. Although the plaintiff did not specifically follow the words required to be alleged in spoliation proceedings, his pleadings sufficiently informed the first defendant of the case he had to meet.
3. There was no suggestion that the manner in which the plaintiff pleaded his case was prejudicial to the first defendant’s case.
4. The pleadings disclose a cause of action and the first defendant, duly represented by a legal practitioner, did not raise an exception to the plaintiff’s particulars of claim.
5. The plaintiff made out a case that he is the rightful occupant of the land in dispute which he leases from the second defendant, which occupation the first defendant did not dispute. This, coupled with the first defendant’s actions of preventing the plaintiff from accessing the land shows that the plaintiff was visibly in possession of the land.
6. As a result of the actions by the first defendant, the plaintiff has been prevented from proceeding with his construction on the land and continues to suffer damages.
7. In protecting his interests, the first defendant did not invoke the aid of the law but resorted to self-help.

In the result, the first defendant was ordered to remove the barrier he created.

Haimbondi v Immanuel NAHCNLD 6 October 2022