NIGER CONSTRUCTION CO. LTD v. ATAWODA & ORS (2020)

NIGER CONSTRUCTION CO. LTD v. ATAWODA & ORS

(2020)LCN/14154(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, May 22, 2020

CA/AS/394/2012

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

NIGER CONSTRUCTION COMPANY LIMITED APPELANT(S)

And

MR STANLEY IGHOYOVWE ATAWODA (FOR HIMSELF AND ON BEHALF OF ATAWODA FAMILY AND ERITONOBA IDIEMURURU FAMILY OF OVIORIE-OVU) 2. DIRECTOR- GENERAL MINISTRY OF WORKS AND TRANSPORT, ASABA, DELTA STATE 3. THE ATTORNEY- GENERAL AND COMMISSIONER FOR JUSTICE, DELTA STATE RESPONDENT(S)

RATIO

FACTORS TO BE CONSIDERED IN DETERMINING WHETHER A CASE IS STATUTE-BARRED

It is a trite principle of law that in determining whether a case is statute barred, the originating processes of the Plaintiff who commenced the action (writ of summons and/or the statement of claim of the Plaintiff) would be considered in ascertaining when the cause of action accrued.
A cause of action is defined in ZUBAIR v KOLAWOLE (2019) LPELR – 46928 (SC) as;
“A cause of action has been defined as consisting of “every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment.” “See: Adimora Vs Ajufo (1988) 3 NELR (PT. 80).
1. It has also been defined as “the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right judicial relief.” See: Egbe Vs Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ 20; Adekoya Vs F. H. A (2008) 11 NWLR (Pt. 1099) 539; Oshoboja Vs Amuda (1992) 6 NWLR (Pt. 250) 690.”
per KEKEERE – EKUN, JSC (P. 19, PARAS. D -F)
See also; ADEGBESAN & ANOR v ILESANMI (2017) LPELR – 42552 (CA); ADU & ORS v LAGOS STATE TASK FORCE ON ENVIRONMENT AND SPECIAL OFFENCES UNIT & ORS (2016) LPELR – 40060 (CA); LEARN AFRICA PLC v OKO (2015) LPELR – 25824 (CA); MANDATE INT’L LTD v DANGOTE CEMENT PLC & ANOR (2014) LPELR – 22666 (CA).
And in determining if this appeal is statute barred recourse would be made to the Statement of claim.
This honourable Court in BATTA TRADITIONAL COUNCIL & ANOR v TENEKE & ORS (2017) LPELR – 43005 (CA) held on how the Court determines an action is statute barred;
“…the period of limitation in any limitation statute is determined by looking at the writ of summons and the statement of claim alleging when the wrong committed which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the limitation Law, the action is statute barred.”
per HUSSAINI, JCA (PP. 24 – 25, PARAS C – A)
See also; JOEL OKUNRINBOYE EXPORT COMPANY & ANOR v SKYE BANK PLC (2014) LPELR – 24330 (CA); ADETULA v AKINYOSOFE & ORS (2017) LPELR – 42130 (CA); HASSAN & ORS v BORNO STATE GOVT & ORS (2016) LPELR – 40250 (CA); CHAIRMAN ZAIRA LOCAL GOVT. & ORS v ADAMU & ORS (2015) LPELR – 25934 (CA); KPATI & ANOR v PLATEAU INVESTMENT & PROPERTY DEVELOPMENT CO. LTD (2017) LPELR – 43365 (CA). PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT AN EVIDENCE HAS PROBATIVE VALUE IF IT TENDS TO PROVE AN ISSUE

“An evidence has probative value if it tends to prove an issue. Where an evidence is tendered in Court, it is the duty of the trial Court to ascribe probative value to the evidence or document tendered. In the case of Sule Anyegwu & Anor V. Aidoko Onuche (2009) LPELR- 521 (SC) the Supreme Court held as follows:- “What must influence his mind in ascribing the probative value is the quality of the evidence or document tendered. In achieving that, the trial Judge has to have regards to, among other things, the followings: 1. Admissibility of the evidence, 2. Relevancy of the evidence, 3. Credibility of the evidence, 4. Conclusivity of the evidence, 5. Probability of the evidence on the sense that it is more probable than the evidence of the other party and 6. Finally, after having satisfied himself that all the above have been compiled with, he shall now, apply the law to the situation presented in the case before him so as to arrive at a conclusion in one way or the other. See Mogaji V. Odofin (1978) 4 S.C 91; Adeyeye V. Ajiboye (1987) 3 NWLR (Pt. 61) 432. This assignment is an exclusive preserve of the trial Court.”
per ADAH, J.C.A (PP. 71-72, PARAS. D-C). PER OBASEKI-ADEJUMO, J.C.A.

THE GENERAL PRINCIPLE OF LAW ON AGENCY

The general principle of law on agency is that, liability falls on the principal, where the agent is carrying out his instructions/duties or where the principal gives his agent express authority to do a tortuous act. The Principal would be held liable for the tortuous act of the agent.
The agent is however not scot – free or excused from liability in matter bothering on tort. Agent and Principal are considered to be Joint tortfeasors in law, and in cases involving more than one tortfeasor, the Plaintiff can choose to sue either the master or servant separately or jointly. The Appellant actually destroyed the farms to construct the road.
This honourable Court in BEKS KIMSE (NIG) LTD v AFRICA & ANOR (2018) LPELR – 24436 (CA) held thus;
“I agree with the reasoning and conclusions reached therein. PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT THE AGENT OR EMPLOYEE WHO COMMITS A TORT ON BEHALF OF HIS PRINCIPAL, THE SAID AGENT/EMPLOYEE AND THE PRINCIPAL ARE NOT JOINT TORTFEASORS

It has been established in law that such agent who commits a tort on behalf of his principal are joint tortfeasors and can be sued either jointly or severally. In a case not dissimilar to the present case in appeal, this Court in Alhaji Lai Mohammed vs. Chief Afe Babalola (SAN) 2011 LPELR 8973, my Lord Tsammani JCA, guided by the decisions in Pan Brothers Ltd vs. Landed Properties Ltd (1952) All NLR page 22; Management Enterprises Ltd & Ors vs. Johnson Otusanya (1987) 4 SCNJ 110; Ifeanyi Osondu Co Ltd vs. Soleh Boneh Nig Ltd (2000) 3 NWLR (Pt. 656) 322, held that in situations of this nature, this plaintiff is at liberty to either sue the tortfeasors jointly, or pick which amongst the tortfeasors to sue.”
per BARKA, JCA (PP. 21 – 22, PARAS. D – C)
See also; DICKSON & ANOR v ASSAMUDO (2013) LPELR – 20416 (CA); COMMISSIONER FOR HEALTH NASSARAWA STATE & ORS v DADET (2009) LPELR – 8907 (CA); IYERE v BENDEL FEED & FLOUR MILL LTD (SUPRA). PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal stems from the judgment of Honourable Justice F. O. OHO sitting at the High Court of Justice, Oleh dated 28th September, 2007. Whereupon judgment was entered in favour of the 1st Respondent herein to the tune of N3,800,000.00 (Three Million, Eight hundred thousand Naira) as special damages and N500,000.00 (Five Hundred Thousand Naira) as general damages.

A brief summary of the facts of this case leading to the appeal; the Appellant was the 1st Defendant while the 2nd & 3rd Respondents were the 2nd & 3rd Defendants and the 1st Respondent was the Plaintiff at the lower Court.

The 1st Respondent prayed the lower Court for the sum of N5,000,000.00 (Five million Naira) being special and general damages for his crops, fish ponds, seasonal swamps etc that were destroyed by the Appellant and the 2nd and 3rd Respondents.

The lower Court gave judgment in favour of the 1st Respondent to the tune of N3,800,000.00 (Three Million, Eight hundred thousand Naira) as special damages and N500,000.00 (Five Hundred Thousand Naira) as general damages.

Displeased with the lower Court’s judgment, the Appellant filed its Amended Notice of Appeal on the 15th of May, 2019.

The parties exchanged briefs; the Appellant’s brief was filed 15th May, 2019 which was settled by Ralph Kosi Nwalia, Esq of Ralph Kosi Nwalia & Co., Trinity Chambers, wherein the following issues were formulated for determination;
1. Whether the trial Court was right in assuming jurisdiction to entertain this matter that was statute barred wherein Plaintiff’s writ of summons was filed over 12 years after the cause of action arose in 1981.
2. Whether the trial Court has jurisdiction to entertain this matter in view of the unambiguous provision of Section 30 of the Land Use Act.
3. Whether the trial Court was right in arbitrarily awarding to the 1st Respondent the sum of N4,300,000.00 (Four Million Three Hundred Thousand Naira) as damages.
4. Whether the trial Court was right in law to hold the Appellant liable in damages for the Acts of his master who authorised them to construct the road for public purpose.
5. Whether the trial Court was right in law to proceed with the matter without affording the

Appellant opportunity to defend this matter and without issuing hearing notice to be served on them as they were absent.

The Respondent’s brief was filed on 17th of July, 2019. The brief was settled by M. O. Inone (Miss) of J. E. Ogedegbe & Associates, Oghenerhoro Chambers and adopted the issues distilled by the Appellants.

APPELLANT’S SUBMISSIONS
Appellant contends that the trial Court lacks jurisdiction to entertain this matter as it is statute barred. That in ascertaining the period of limitation, evidence need not be given, it is gleaned from the pleadings and the cause of action arose in 1981 when the alleged destruction of items was done and their Writ of Summon was filed in 1988.

Counsel relied on Order 4 Rule 1 of the Limitation Law Cap 89 Vol. IV, MRS. O. ADEKOYA v FEDERAL HOUSING AUTHORITY (2008) ALL FWLR PT. 432 AT 1454 RATIO 2; CHIEF E. W. J WOHEREM JP v JOEL EMEREWA & ORS (2004) ALL FWLR PT. 221, PG 1570 AT PG 1581 – 1582, PARA B – H; NIGERIA CURTAIN SERVICE v BAZUAYE in submitting that the 1st Respondents rights became extinguished and/or evaporated 12 years ago thus rending their action statute

barred.

The Appellant on issue 2 contends that the lower Court lacks the requisite jurisdiction to entertain this matter. That a union reading of the pleadings, evidence adduced and Sections 28, 29 and 30 of the Land Use Act denies the trial Court the competence to entertain the case of the 1st Respondent.

Counsel further relied on MADUKOLU & ORS v NKEMDILIM (1962) ALL NLR PAGES 589 – 590 (where three conditions were enumerate to determine the competence of a Court to adjudicate over a matter) in submitting that the Court lacks jurisdiction and that it also lacks fulfilment of a condition precedent under the third condition of the above cited case, and as amplified by Section 30 of the Land Use Act.

Appellant further submits that the first resort is to the Land Use Committee, which is a threshold issue and fundamental to the adjudicating power of the trial Court. A factor which robs the Court of its entire jurisdiction. That the right to submit the matter of the compensation payable to the Land Use Committee is not right vested in the 1st Respondent and therefore cannot be waved.

On issue 3, the Appellant contends that the trial

Court was wrong to arbitrarily award the sum of N4,300,000.00 (Four Million Three Hundred Thousand Naira) only as special and general damages to the 1st Respondent.

That the evidence of the Plaintiff especially in paragraph 13 of his statement of claim cannot in any way be credible, he is not a fisherman and he was not an expert witness. Therefore, his testimony amounts to hearsay and he did not disclose the source of the evidence; U.B.A v SAMBA PETROLEUM CO. LTD (2003) FWLR PT. 137; A.M.C NIG LTD v VOLKWAGEN NIGERIA LIMITED (2011) FWLR PT 588 AT PG. 929 PP 952 PARA F – H.

Appellant submits that the learned trial judge proceeded to award N4,300,000.00 (Four Million Three Hundred Thousand Naira) on the principle of trespass without proper evaluation. Whereas, the main thrust of the Plaintiff’s claim before the trial Court was the construction of road for public purposes leading to alleged destruction of their crops.

That the trial Court failed to avert his mind to Section 29 (c) of the Land Use Act, parties having agreed that the State Government acquired the land and awarded the contract to the Appellant to construct the road

for public purpose and the award for loss of earning is not provided by Section 29 (c) of compensation payable. He cited the cases of XTOUDOS SERVICES NIGER LIMITED & ANOR v TAISEI (W. A) LIMITED & ANOR (2006) ALL FWLR PT. 333 AT PG. 1640, P. 1658 PARA G – H; A. S. ESA v EKWENEM (2009) ALL FWLR PT. 455 PG. 1669 PP. 1686 PARAS B – C; NATURAL CHEMICAL MARKETING PLC v K C MARDEEN LEGE ADEWORO & ANOR (2009) ALL FWLR PT. 491 AT PG 838, PP. 861 – 862, PARAS H – B, and urge this Court to set aside the award of N4, 300, 000. 00 (Four Million Three Hundred Thousand Naira).

The Appellant on issue 4, submits that the findings of the Court below in holding the Appellant liable for damages was perverse when synchronized with the evidence on record. That the parties are in agreement both in pleadings and evidence, the Appellant was an agent of a disclosed principal who contracted them to construct a road for public purpose. It is also in evidence that all matters of compensation of persons having interest in that location were settled by the 11th Respondent. He relied on AYODELE JAMES v MID MOTORS NIGERIA LTD (1978) 11 – 12,

25 PP AT PG 41 in buttressing his submission.Appellant submits further that the trial Court should have held only the 2nd & 3rd Respondents liable and answerable to the claim of the 1st Respondent, IFEANYI CHUKWU v SOLEH BONEH NIG LTD (2000) FWLR PT. 27, 2047, PG 2066 PARA B – D was cited in aid.
Appellant urges this Court to hold that the 2nd & 3rd Respondents are the ones answerable to any liability in this case.On issue 5, the Appellant’s contends that the trial Court was wrong in proceeding with the matter without affording the Appellant an opportunity to defend the matter, that the constitutional right of the Appellant to defend was breached. S.O MAI SONKA & CO. NIGERIA LIMITED & 2 ORS v ENGINEER A. A. ADZEGE (2001) FWLR PT 68 AT 1104.

That the service of hearing notice is important where the party is not present in Court or duly represented and he cited the case of LAGOS v AMALOKU (2005) ALL FWLR PT. 227, PG 929, 942, PARA E – H, P. 943, PARA D.
In conclusion, the Appellant submits that the judgment of the trial Court be set aside.

1ST RESPONDENT’S SUBMISSION
Counsel submits that it is only the Writ of summons or the statement of claim that one has to look at to see if there is a cause of action, and a cause of action is the entire set of circumstances giving rise to enforceable claim. He relied on SAMUEL OSIGWE v PSPLS MGT. CONSORTIUM LTD & 12 ORS (2009) VOL. 171 LRCN 94 AT 98 RATIO 4 and OJUKWU v YAR’ ADUA & ORS (2010) VOL. 186 LRCN 24 AT 36 RATIO 13.

Counsel submits further that from paragraphs 4, 5, 6, 7, 8, 10 and 11 of the 1st Respondent’s statement of claim, the cause of action arose only between 1991 and 1993 when the Defendants released the names of those to be paid but failed to release the names of the 1st – 10th Respondents, A. G OF LAGOS STATE v EKO HOTELS LTD & ANOR (2007) VOL. 144 LRCN 296 AT 302 RATIO 12 was cited in aid.
Counsel contends that the cause of action in this case did not arise in 1981 but either in 1991 or 1993 and urge the Court to hold so.

On issue 2, Counsel submits that the provisions of Section 30 of the Land Use Act are very clear and unambiguous and it relates to cases or situations where there are disputes as to the amount of compensation calculated

in accordance with the provisions of Section 29 of the Land Use Act.

Counsel contends that paragraphs 6, 8, 10 and 11 of the 1st Respondent’s Statement of Claim clearly shows that there is no dispute whatsoever between any amount that was calculated by any of the Defendants in accordance with Section 29 of the Land Use Act.
That the lower Court therefore had jurisdiction to hear and entertain the suit as the provisions of Section 30 of the Land Use Act were inapplicable.

Counsel in issue 3 submits that the Appellant and the 2nd & 3rd Respondents having failed to lead evidence in defence of this suit are deemed to have accepted the case and indeed the claim of the 1st Respondent. He relied on RAMONU RUFIA APENA & ANOR v OBA FATAI AILERU & ANOR (2014) VOL. 237 LRCN 1 AT 8 RATIO 5; SULE EYIGEBE v MUSA IYAJI (2013) VOL. 219 LRCN 1 AT 5 RATIO 4; NDULUE & ANOR v OJIAKOR & ORS (2013) VOL. 219 LRCN (PT 2) 186 AT 190 – 191 RATIO 5.

Counsel further submits that, where the plaintiff pleads special damages and gives necessary particulars and adduces some evidence of it without the Defendant challenging or contradicting

the evidence, he has discharged the onus of proof placed on him and unless the evidence adduced is of such a quality that no reasonable tribunal can accept, it ought to be accepted. UNION BANK OF NIGERIA PLC v CHIMAEZE (2014) VOL. 235 LRCN 35 AT 43 RATIO 7 was cited in aid.

Counsel urge the Court to hold that the learned trial judge was right in awarding the sum of N4, 300, 000. 00 (Four Million Three Hundred Thousand Naira) in favour of the 1st Respondent in this suit.

Counsel on issue 4 submits that the Appellant’s contention that it is an agent to the 2nd Respondent who is a disclosed principal is misconceived in law and mischievous. That from the facts of the case and the state of the pleadings, the issue of contract and agency does not arise between the parties and the case of the 1st Respondent is based on tort.

Counsel further submits that the Appellant and 2nd Respondents are joint tortfeasors in law, that in a case of a tortfeasor, each of two of more joint tortfeasors is liable for the entire damage resulting from the tort. That the 1st Respondent is at liberty to select and sue anyone or any number of them as he can recover his

claim in full from those he sued, they may decide to sue either the master and servant separately or both of them jointly. Counsel relied heavily on the case of R. O IYERE v BENDEL F. & F. MILL LTD (2009) VOL. 168 LRCN 143 AT 149 RATIO 6; 152 RATIO 13; 151 RATIO 11.
Counsel urge the Court to hold that the Appellant is not an agent of a disclosed principal but a tortfeasor or a joint tortfeasor.

On issue 5, 1st Respondent submits that the position from 12th of May, 2005 when the 1st Respondent started his case to when he closed his case on the 24th July, 2007 (a period of over two (2) years) before the learned trial judge was compelled to foreclose the Defence of the Appellant and 2nd & 3rd Respondents as it became clear that they either were not ready to defend the suit or they had no defence to same. The Appellant and the 2nd & 3rd Respondents were afforded ample opportunities to defend this case but they refused/neglected to make use of them.

1st Respondent further submits that a party who has been given opportunities by the Court of law to ventilate his grievances but chooses not to utilize same, he cannot be heard to complain of

breach of his right to fair hearing. He relied on MILITARY GOVERNOR OF LAGOS STATE & 4 ORS v ADEBAYO ADEYIGA (2012) VOL. 205 LRCN 1 AT 9 – 10 RATIO 4; INOGHA MFA & ANOR v MFA INOGHA (2014) VOL. 230 LRCN 89 AT 96 – 99 RATIOS 7, 8, 9 AND 16.
Counsel urge the Court to resolve issue 5 against the Appellant and in favour of the 1st Respondent.

RESOLUTION
After a critical perusal of facts before this honourable Court, I adopt the issues raised by the Appellant (and also adopted by the 1st Respondent) for the determination of this appeal.

Issue 1 borders on whether the case before the lower Court was statute barred as per limitation period to commence the action and if not bound by Section 30 Land Use Act and if the lower Court had jurisdiction to entertain the matter.

In determining whether a case is statute barred, recourse must be made to the originating processes of the Plaintiff who commenced the action, and this can only be deciphered by looking at the writ of summons and the statement of claim of the Plaintiff.
This Court in JOEL OKUNRINBOYE EXPORT COMPANY & ANOR v SKYE BANK PLC (2014) LPELR – 24330

(CA), held on how to determine period of limitation thus;
“It is trite law that in the determination of a period of limitation, one has to look at the Writ of Summons and the Statement of claim alleging when the wrong was committed which gave the Plaintiff’s a cause of action and by comparing the date with that on which the writ was filed, one would be able to resolve the issue if the suit is within or outside the limitation period allowed by law…”
per DENTON – WEST, JCA (P. 31, PARAS. C – E).
See also; BATTA TRADITIONAL COUNCIL & ANOR v TENEKE & ORS (2017) LPELR – 43005 (CA); ADETULA v AKINYOSOYE & ORS (2017) LPELR – 42130 (CA); HASSAN & ORS v BORNO STATE GOVT & ORS (2016) LPELR – 40250 (CA); CHAIRMAN ZARIA LOCAL GOVT. & ORS v ADAMU & ORS (2015) LPELR – 25934 (CA).

On the second hand, a cause of action is defined in ADEGBESAN & ANOR v ILESANMI (2017) LPELR – 42552 (CA)as;
“Cause of action has been defined as “The entire set of circumstances giving rise to an enforceable claim. It is in effect, the fact or combination of

facts which gives rise to a right to sue and consist of two elements – the wrongful act of the defendant which gives rise to the plaintiff, his cause of complaint and the consequence.” See the case of YARE V. N.S.W & I.C (2013) 12 NWLR PT. 136 AT PG. 176 RATIO 1 & 2, KASIM V N.N.P.C (2013) 10 NWLR PT. 1361 PG. 49 RATIO 1, U.B.N PLC V UMEODUAGU (2004) ALL FWLR PT. 221 PG. 1154 RATIO 2.” (Underlining Mine)
See also;ADU & ORS v LAGOS STATE TASK FORCE ON ENVIRONMENT AND SPECIAL OFFENCES UNIT & ORS (2016) LPELR – 40060 (CA); LEARN AFRICA PLC v OKO (2015) LPELR – 25824 (CA); MANDATE INT’L LTD v DANGOTE CEMENT PLC & ANOR (2014) LPELR – 22666 (CA).

As gleaned from page 18 of the record before the Court, the 1st Respondent’s writ of summon dated 23rd of November, 1998 and from his averments in paragraphs 4, 5, 6, 7, 8, 10 & 11 of his statement of claim at pages 28 -29, hereunder reproduced;
“4. In or about the year 1981, the 1st Defendant awarded the contract for the construction of the Ekpan/Eku Road to the 3rd Defendant. In the course of its construction of the Ekpan/Eku Road, 3rd

Defendant destroyed property including crops, fish ponds, seasonal fishing swamps and so on belonging to several persons. Among the property destroyed by the 3rd defendant were two ponds and a seasonal fishing swamp belonging to the Plaintiff’s Atavwoda and Eritonoba Idiemiruru families of Oviorie – Ovu.
5. Plaintiffs aver that before the 3rd defendant began the construction on the Ekpan/Eku Road, several persons including the plaintiffs Atavwoda and Eritonoba Idiemiruru families put in their claims for their various property affected by the construction of the Ekpan/Eku Road and which property were marked for destruction.
6. As a result of the Plaintiffs and several other persons claims, the 1st and 3rd Defendants sent their enumerators for an on – the spot verification, assessment and enumeration of plaintiffs claim in February 1981 as follows:
a) Atavwoda family was assessed as the fish pond with an approximate dimension of 28 metres by 51 metres with an approximate age of 12 years.
b) The Atavwoda family was also assessed as the owner of a seasonal fishing swamp with an approximate dimension of 29 metres by 52 metres with an

approximate age of 13 years.
c) The Eritonoba Idiemiruru family was assessed as the owner of a fish pond with an approximate dimension of 25 metres by 12.10 metres an approximate age of 15 years.
At the trial plaintiff shall rely on the original copies of the master – list of all copies and other property enumerated and destroyed during the construction of the Ekpan/Eku Road by the 3rd defendant and the papers or enumeration certificates issued to the Plaintiffs by the 1st Defendant during the said enumeration.
7. Plaintiffs aver that after the said enumeration in paragraph 6 above, the 3rd defendant commenced work and covered up the two fish ponds and a seasonal fishing swamp belonging to the Atavwoda and Eritonoba Idiemiruru families of Oviore – Ovu with a promise that the plaintiff’s said families will soon be paid for the items destroyed.
8. As a result of the defendants’ enumeration exercises and promise, the Atavwoda and Eritonoba Idiemiruru family donated a power of Attorney to the plaintiff to help them in the collection of their various sum of money from the defendants. At the trial the plaintiff shall rely

on the said power of Attorney and other relevant documents.
10. In 1991, 1st Defendant released a list of all those to be paid their various sums of money for their property and/or items destroyed but Atavwoda and Eritonoba Idiemiruru families(sic) names were not released on the list. Plaintiff complained to the 1st Defendant who promised that another list will be released.
11. In 1993 the Defendant paid people whose name reflected in the list referred to in paragraph 10 above. The Defendants refused to release the plaintiff’s names nor did the defendants pay the plaintiff’s in 1993. Plaintiffs repeatedly went to the defendants to demand for their compensation but the defendants refused/neglected to pay the plaintiff’s hence this action.”

From the above averments, the following facts are clear;
1. The State Government through the 1st Defendant in line with the provisions of Section 28 of the Land Use Act in 1981 revoked the rights of the Plaintiff and several persons for the construction of the Ekpan/Eku Road.
2. The Plaintiffs and several other persons were to be compensated for the destruction of their

properties including crops, fish ponds, seasonal fishing swamps and so on belonging to several people, two fish ponds and a seasonal fish swamp in line with the provisions of Section 29 of the Land Use Act.
3. In 1991, the Defendants inspected and verified/assessed the items and names of persons/families that would be compensated and the Atavwoda and Eritonoba Idiemiruru family’s names were missing.
4. Another list was expected to include the Respondents names as promised by the 11th Respondent.
5. In 1993, when the Defendants paid those persons/families reflected in the list, the Plaintiff (Atavwoda and Eritonoba Idiemiruru family) were not paid.

The Plaintiff’s cause of action did not accrue when the government revoked the plaintiff’s right of occupancy and went on the land, as compensation was promised to affected persons and this was backed up by the acts (assessment of the property and issuance of enumeration certificates) of the defendants which portrayed intentions to compensate the Plaintiffs. The Plaintiff’s cause of action arose when compensation was made to other affected persons and the Plaintiff

received nothing.

It is of importance that with great care and tact I differentiate the issue of the defendants commencing work on the plaintiffs’ land, which occurred in 1981 from the issue of non-payment of claims which only accrued in 1993. The complaint here is that after assessment and promise, they were not paid the entitled compensation for the destruction of their properties

It would have been easier to hold that the cause of action accrued in 1981 if there was no issuance of the enumeration certificate given in 1981 in anticipation of compensation. The compensation was paid in 1993 and as earlier stated, the Writ of summons is dated and filed in the year 1998, which is five years after the cause of action occurred and within the period of time stipulated in Order 4 Rule of the Limitation Law, 1976 Defunct Bendel State as applicable in Delta State.

This Court held in PDP v NWOKO & ORS (2019) LPELR – 47900 (CA) on the Definition of cause of action; when does a cause of action arise thus;
“In determining when the cause of action of the 1st Respondent arose, it is trite law that for a Court to determine what the cause of

action is in a suit, it must look only at the statement of claim. In the case of YARE VS. NATIONAL SALARIES INCOME AND WAGES COMMISSION (2006) 2 NWLR PART 965 PAGE 546, it was held: “in determining when a cause of action is said to have accrued, the Courts are enjoined to consider the plaintiff’s statement of claim or the factual situation on which the plaintiff relies to support his claim.” The Straud’s Judicial Dictionary 4th Edition defined cause of action as “the entire set of facts that gives rise to an enforceable claim.” In the case of OGBIMI VS. OLOLO (1993) 7 NWLR PART 304 PAGE 128 at 136, it was held that: “A cause of action, is in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaints and the consequent damage.” In the case of AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR PART 127 PAGE 369 AT 382 – 383; “when facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligation exists side by side, a cause of action is said to have accrued.” Finally, in the recent

Court of Appeal case of OBIKA VS. OBIKA (2018) LPELR – 43965, it was defined as “a cause of action generally refers to every fact which is necessary for the plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle or aggregate of facts which the law recognizes as giving the plaintiff a substantive and recognized right to make the claim against the relief or remedy being sought. Thus, the verifiable factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right, capable of being claimed or enforced against the defendant. In other words, the eventual factual situation relied upon by the plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the defendant that gives to the plaintiff his cause of complaints is a cause of action.”
per IDRIS, J.C.A (Pp. 36-38, PARAS. F-E)

Following from the above, I hold that the lower Court was therefore right to assume jurisdiction over the matter.

On second arm of the jurisdiction of the

Court to entertain the action, in light of the provisions of Section 30 of the Land Use Act, which provides thus;
“Where there arises any dispute as to the amount of compensation calculated in accordance with the provisions of Section 29 of this Act, such dispute shall be referred to the appropriate Land Use and Allocation Committee.”
The aim of the above provision is to avert every dispute in relationship of the amount of compensation calculated to the Land use and Allocation Committee.
In paragraphs 6 – 8 of the Plaintiff’s Statement of claim at page 29 of the record and evidenced by Exhibits B, B1 and B2. There was no dispute as to the amount assessed and verified by the enumerators of the Defendants in accordance to Section 29 of the Land Use Act.
The 1st Respondent’s claim at the lower Court was hinged on the facts that the Appellant and the 2nd Respondent carried out an enumeration exercise but was not forthcoming with the actual payment of compensation.
Section 30 of the Land Use Act would have been invoked if there was a dispute to the compensation paid or the amount assessed at the time the

certificate was issued. The lower Court therefore did not lack the requisite jurisdiction neither did it rob the Land Use and Allocation Committee of its jurisdiction.
I resolve these two issues against the Appellant.

The Appellant in issue 3, made heavy weather of the award of the sum of N 4, 300, 000. 00 (Four Million, three hundred thousand naira) as special and general damages to the 1st Respondents, on the grounds that there was no iota of evidence to support same.

It is imperative at this junction to consider the particulars of the damage as claimed by the Plaintiff and carefully itemized in paragraph 13 of his Statement of Claim at page 30 of the record. For clarity purposes, it is hereunder reproduced;
“13. Plaintiffs aver that up till now they have not been paid their money or compensation, by reason of which they have suffered damages and claim as follows;
PARTICULARS OF DAMAGES
1. Loss of earning from the Atavwoda family fish pond for 15 years at N55,000.00 per year N825,000.00
2. Loss of earning from the Atavwoda family seasonal fishing swamp for 15 years at N75,000.00 yearly N1,125,000.00.

Loss of earning from the EritonobaIdiemiruru family fish pond for 15 years at N40,000.00 per year N600,000.00
4. Value of two fish ponds at N250,000.00 each N500,000.00
5. Value of seasonal fishing swamp N800,000.00
TOTAL N3,850,000.00
General Damages N1,150,000.00
N5,000,000.00.”

The 1st Respondent in support of his averments tendered Exhibits A, B, B1 and B2 (the enumeration certificates issued by the Defendants’ enumerators) without any objection from the defendants. The defendants did not offer any contrary figure of payment even after issuing a certificate of enumeration in evidence nor pleaded any.

In the light of the circumstances, and the location of the rural community and vocation of the Respondents, it would be expecting the leg of a snake for the Respondents to have obtained a valuer when they entirely relied on the enumeration certificate. In the absence of an unchallenged evidence, I am reasonably satisfied with the decision of the lower Court that the burden of proof shifted to the Defendants, after the evidence of the 1st Respondent. The Exhibits show and confirm the existence of the items enumerated in

the pleadings, therefore, the rate claimed as stated in evidence is what, in their eyes is due.

The Supreme Court in OHOCHUKWU v ATTORNEY GENERAL OF RIVERS STATE & ORS (2012) LPELR – 7849 (SC) held on when the burden of proof would shift thus;
“It is after a Plaintiff has proved his case that the burden of proof shift to the defendant.”
per MUKHTAR, JSC (P. 37, PARA E)
This Court in MR. S. B. OLALEYE v TRUSTEES OF ECWA (2010) LPELR – 4743 (CA);
“However, while the legal burden of establishing a case without relying on the weakness of the defence is always on the plaintiff, the evidential burden of proving the existence of a particular fact can shift or tilt amongst the parties according to how one scale of evidence or the other preponderates, or according to the assertions of the parties in their pleadings. See the case of OLANLOYE v FATUNBI (1999) 8 NWLR (PT. 614) 203 at 226.”
per DENTON – WEST, JCA (P. 23, PARAS. E – G)
See also;NDUUL v WAYO & ORS (2018) LPELR – 45151 (SC); AKINBADE & ANOR v BABATUNDE & ORS (2017) LPELR – 43463 (SC); JOHN & ORS v AMAECHI & ORS

(2016) LPELR – 40982 (CA); JAJI & ORS v OLOWORA & ANOR (2015) LPELR – 25575 (CA).

The onus shifted to the Appellant and the 2nd & 3rd Respondents (Defendants). The Appellant and the 2nd & 3rd Respondents did file their Statements of Defence, but did not lead any evidence in proof of the averments therein. Their defence is therefore deemed abandoned, I draw strength from the decision of MADUIKE v TETELIS NIGERIA LTD (2015) LPELR – 24288 (CA) where it was held thus;
“Thankfully as noted by the Appellant himself in his reply brief that failure in law to rebut or join the argument raised by a party in a proceeding amounts to an admission of the issue raised by the other. Counsel cited UGBOAJA v AKINTOYE – SOWEMIMO (2008) 16 NWLR (PT. 1113) 278 at 291 292 H – A, where the Court opined: “…it is settled law that where a party fails or neglects to react to an issue in contention between the parties, the party in default is deemed to have conceded the point/issue to his opponent.”
per OBASEKI – ADEJUMO, JCA (PP. 6 – 7, PARAS. F – B)

See also; NBC PLC v UBANI (2013) LPELR – 21902 (SC); MAINAMA v KEYSTONE BANK LTD (2015) LPELR – 40877 (CA); UNITY BANK PLC v ADAMU & ORS (2013) LPELR – 22047 (CA); GTB v EKEMEZIE (2015) LPELR – 40732 (CA).

The Appellant’s submission that the Plaintiff’s evidence is not credible because he is not a fisherman, therefore, not an expert witness does not hold water. It is like saying a yam seller would not know the price of yam because he is not a farmer, he would not have an idea or inkling of the cost of yam. The 1st Respondent were into the sale of fish and rearing them, they would have to buy them from fishermen, and therefore have an idea of what cost the fish went for in the market, giving the dynamics of how our society market operates, the sellers are most times the determinant of the prices of their goods.
I resolve issue 3 in favour of the 1st Respondent.

Issue 4 borders on the issue of an agent and principal relationship.
It is imperative that I point out at this juncture, that the essence of establishing an agency relationship is to prove the tripartite relationship of; Principal – Agent – third

party. This usually creates an obligation between the principal and the agent under which there are certain rights, duties and liabilities. When the agent carries out either of them, privity of contract is created between the principal and the third party.
However, the 1st Respondents’ issue is one based on tort and not contract.
The general principle of law on agency is that, liability falls on the principal, where the agent is carrying out his instructions/duties or where the principal gives his agent express authority to do a tortuous act. The Principal would be held liable for the tortuous act of the agent.
The agent is however not scot – free or excused from liability in matter bordering on tort. Agent and Principal are considered to be Joint tortfeasors in law, and in cases involving more than one tortfeasor, the Plaintiff can choose to sue either the master or servant separately or jointly.
This honourable Court in BEKS KIMSE (NIG) LTD v AFRICA & ANOR (2018) LPELR – 24436 (CA) held thus;
“I agree with the reasoning and conclusions reached therein. The question to be answered in this appeal to my mind

is whether the agent or employee who commits a tort on behalf of his principal, the said agent/employee and the principal are not joint tortfeasors? It has been established in law that such agent who commits a tort on behalf of his principal are joint tortfeasors and can be sued either jointly or severally. In a case not dissimilar to the present case in appeal, this Court in Alhaji Lai Mohammed vs. Chief Afe Babalola (SAN) 2011 LPELR 8973, my Lord Tsammani JCA, guided by the decisions in Pan Brothers Ltd vs. Landed Properties Ltd (1952) All NLR page 22; Management Enterprises Ltd & Ors vs. Johnson Otusanya (1987) 4 SCNJ 110; Ifeanyi Osondu Co Ltd vs. Soleh Boneh Nig Ltd (2000) 3 NWLR (Pt. 656) 322, held that in situations of this nature, this plaintiff is at liberty to either sue the tortfeasors jointly, or pick which amongst the tortfeasors to sue.”
per BARKA, JCA (PP. 21 – 22, PARAS. D – C)
See also;DICKSON & ANOR v ASSAMUDO (2013) LPELR – 20416 (CA); COMMISSIONER FOR HEALTH NASSARAWA STATE & ORS v DADET (2009) LPELR – 8907 (CA); IYERE v BENDEL FEED & FLOUR MILL LTD (SUPRA).

Flowing from the above, I hold that the Appellant and the 2nd & 3rd Respondents are joint tortfeasors and are both jointly and severally liable.
I resolve issue 4 against the Appellant.

The bone of contention in issue 5, is whether the trial Court was right to proceed to give judgment without the Appellant giving his defence.
From the facts before this Court, the 1st Respondent closed his case on 12th May, 2005, and the Court adjourned to the 14th May, 2005 for defence, see pages 68 – 69 of record.
The next time the parties were present and the Court sat was on the 9th February, 2006, where the 1st Respondent’s Counsel informed the Court that there were moves to settle the matter and Court adjourned to the 30th March, 2006 for report of settlement, see page 70 of record.
However, the next time parties were present and Court sat was on the 24th of May, 2006; where Appellant’s Counsel informed the Court and ask the Court for a short date to resume settlement moves again. 1st Respondent’s Counsel submitted that the settlement offer was too paltry but he was not opposed to the application for adjournment. Court held that matter

be adjourned to the 3rd of July, 2006 for either report of settlement or a definite defence.
On the 3rd day of July, 2006, the Plaintiff, Plaintiff’s Counsel, 1st and 2nd Defendants’ Counsel were present in Court, the Defendants and 3rd Defendant’s Counsel were absent. The 1st & 2nd Defendants’ Counsel requested for a short adjournment; Court held thus;
“I am inclined to give one more opportunity. But at the next date, if the defendants are not ready to go on, I shall go ahead and foreclose the defence and ask the plaintiff to address Court. Case is adjourned to the 20th day of July, 2006 for further hearing.”
See page 72 of record.
After other adjourned dates, on the 3rd of October, 2006 and 9th of November, 2006 for report of settlement, the Court on the 17th of January, 2007 adjourned case to 5th February, 2007 for definite defence after the Plaintiff informed the Court that settlement have broken down and asked that the matter be adjourned for definite defence. The Plaintiff was the only party present in Court, see pages 74 – 75.
The next adjourned date that the Court made an order was

on 24th July, 2007 where the Court held thus;
“The Plaintiff having closed its case since 12th May 2005, this case has suffered several adjournments all at the instance of the defendants. The defendants are therefore foreclosed. The plaintiff, not bordering to address, it is left with the defendants who may wish to address Court in this matter if so desire. Case is adjourned to the 28th day of September, 2007 for address by defendants if they so desire and for judgment of Court.”
On the 28th of September, 2007, parties and counsel were present and 3rd Defendant’s Counsel informed the Court that they were ready to defend but the Court held thus;
“I think all of these is late in the late day. At the last date, the defendants were duly foreclosed by Court. What I thought you should be doing this morning is to address Court, but you have once again failed to do so. Maybe you have to do so at the Court of Appeal.”
See pages 76 – 77
I have painstakingly reproduced the above Court proceedings to lay bare, the long and excruciating time it took after the 1st Respondent closed its case (2 years) before judgment was

delivered. However, what is glaring is the over sight on the 1st Respondent and the trial Court to serve hearing notice on the Defendants, when settlement went south and the matter was once again set for continuation of trial, or when the lower Court foreclosed the defence since they were absent from Court.
Hearing notices are important where the party is not present in Court or duly represented. The Apex Court in THE NIGERIA UNION OF TEACHERS TARABA STATE & ORS v REV. SARDUANA HABU & ORS (2018) LPELR – 44057 (SC) held on the effect of failure to serve hearing notice thus;
“…Failure to serve hearing notice on the party entitled to such service is fundamental defect in the proceedings and fatal to the case. It amounts to a breach of the right of the party who should have been served fair hearing, a right guaranteed by Section 36 (1) of the 1999 Constitution. The consequence of such failure is that the Court lacks jurisdiction to entertain the proceedings, which are thereby rendered null and void…”
per KEKERE – EKUN, JSC (PP. 15 – 16, PARAS. C – B)
This Court also in the case of

NNPC v NWAFOR & ANOR (2017) LPELR – 42287 (CA), per LOKULO – SODIPE, JCA held thus;
“Decisions of the appellate Courts in this country with specific reference to the effect and consequences of the non-issuance and service of a hearing notice or hearing notices in circumstances that call for the issuance and service of the process are as numerous as those dealing with other aspects of fair hearing. The decisions in my considered view clearly bring out the fact that the issuance and service of a hearing notice or hearing notices where there is need for a Court to order its/their issuance and service, is a veritable step in the attainment of fair hearing in a case. See amongst many others the case of NIGERIAN AGRICULTURAL CO-OP & RURAL DEVELOPMENT BANK LTD V. MBIO OKU IKOT OKU ODUNG MULTI-PURPOSE CO-OP SOCIETY LTD (2013) LPELR – 20202 (CA). In the said case, Garba, JCA; delivering the leading judgment of the Court made it clear amongst others that the issuance and service of hearing notice on a party in a case only arises where or when such a party was not aware of a date fixed by the Court for the hearing of his case. That where a party was

present in Court and/or represented by counsel when his case was either fixed or adjourned by the Court in open Court, for hearing or continuation of such hearing, the need to thereafter issue such a party with the hearing notice of the date set down by the Court in his presence or presence of his counsel, would not arise and indeed becomes unnecessary in law. This is because the essence of a hearing notice is to put on notice or notify or inform a party or his counsel who are not aware of a date set down by the Court in their absence for the hearing of his case. That a trial or hearing in a case cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard in the proceedings because the right to fair hearing is a question of opportunity of being heard. The right lies in the procedure adopted by a Court in the conduct of the proceedings in a case and not in the correctness of the decision arrived at the end of a case.”
(PP. 29 – 31, PARAS. D – B)
See also; AKINNIRAN v ADE & ORS (2017) LPELR – 42175 (CA); OGUNKEYE & ORS v BOLARINWA (2017) LPELR – 42388 (CA); CHYWHITE (NIG) LTD & ANOR v DIAMOND BANK

(2015) LPELR – 41695 (CA).
The doctrine of fair hearing is a constitutional right and cannot be crucified on the cross of speedy hearing. I therefore resolve issue 5 in favour of the Appellant.
The judgment of Honourable Justice F. O. OHO sitting at the High Court of Justice, Oleh dated 28th September, 2007 is hereby set aside.
Therefore, I direct that the case file be sent to the Chief Judge of Delta State for re – assignment to another judge who shall hear this case de novo forthwith.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother OBASEKI- ADEJUMO JCA. I agree with the reasoning and final conclusion contained in the lead judgment.

Again, the Court cannot over emphasize the importance of service of hearing notice to parties to a case in Court. A party reserves the right to be informed of the date the case against him is coming up for hearing. Failure to serve hearing notice would impact greatly on the validity of the proceedings. It will vitiate the proceedings thereby making the proceedings a nullity.

See ACHUZIA VS OGBOMO (2016) LPELR 40050, COMPACT MANIFOLD AND ENERGY SERVICES NIG LTD V. PAZAN SERVICES (NIG) LTD (2017) LPELR 41913.

For this and the robust reasoning in the lead judgment. This appeal has merit. It is allowed. I abide by the orders contained in the lead judgment.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: There was a breach of fair hearing at the trial Court. Fair hearing, and the opportunity thereof to parties in litigation is the hallmark of the work of an impartial umpire in any dispute in litigation.

I agree with my lord, Abimbola Osarugue Obaseki Adejumo, JCA therefore that the appeal be allowed for lack of fair hearing at the trial leading to this appeal. The appeal is allowed and I abide by the consequential order setting aside the entirety of the judgment and the order made, relating to the de novo hearing.

Appearances:

…For Appellant(s)

…For Respondent(s)