MATA v. CHOJI & ANOR (2020)

MATA v. CHOJI & ANOR

(2020)LCN/14830(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Friday, December 18, 2020

CA/J/201/2019

RATIO

EVIDENCE: BURDEN OF PROOF IN CIVIL MATTERS

It is trite that whoever 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 of the Evidence Act. It is also the law that the burden of proof lies on that person who would fail if no evidence at all were given on either side. See Section 132 of the Evidence Act. Under Section 134, of the Evidence Act, the burden of proof shall be discharged on the balance of probabilities in civil proceeding. It is also elementary principle of civil proceedings that civil cases are decided on the balance of probabilities based on preponderance of evidence. See the cases of NSEOBONG NOBERT INYANG V CHINA CIVIL ENGINEERING CONSTRUCTION CORPORATION NIGERIA LTD (2020) LPELR – 49694. The general principle of law is that whoever asserts must prove. See the cases of EWAOCHE OGWUCHE V BENUE STATE CIVIL SERVICE COMMISSION AND ORS (2013) LPELR 22748, KOKOROOWO V OGUNBAMI (1993) 8 NWLR (Pt. 313) 627, BALOGUN V LABIRAN (1988) 3 NWLR (Pt. 80) 66. Let me add that burden of proof in civil case is on the balance of probabilities and which burden lies on the Plaintiff. See Section 133 of the Evidence Act and the case of HIGH CHIEF A. A. AKINGBULU & ORS V OBA ADEOYE IDEPEFO & ORS (2015) LPELR – 25793. PER NASIRU ONIYANGI, J.C.A.

LAND LAW: WAYS OF PROVING OWNERSHIP OF LAND

Our Courts have long set out the five different ways of proving ownership of land in the locus classico case of IDUNDUN V OKUMAGBA (1976) 9-10 SC 246-250. It is trite that the proof of any of the five ways will suffice. See MR OKE OJO OYEDELE V MR MICHEAL ODUMOSU (2016) LPELR – 41441. PER NASIRU ONIYANGI, J.C.A.

DAMAGES: PRINCIPLES GOVERNING GENERAL DAMAGES

In the old case of STORMS BURK AKTIE BOLAG V HUTCHISON (1905) AC page 515, Lord Macnaghten at pages 525-526 said thus:
“General damages… are such as the law will presume to be the direct natural or probable consequence of the act complained of. Special damages on the other hand are such as law will not infer from the nature of the act. They do not follow in the ordinary cause. They are exceptional in their character and therefore they must be claimed specially and proved strictly.”
General damages are those which the law implies. The qualification of general damages in terms of money is however, a matter for the Court to determine.
In the case of MACHINE UMUDJE & ANOR V SHELL B. P. PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (1975) 9-11 SC 95, the Court said thus:
“Damages are in their fundamental character compensatory. Whether the matter complained of be a breach of contract or a tort, the primary theoretical notice is to place the Plaintiff in as good a position, so far as money can do it, as if the matter complained of had not occurred.”
Further to the foregoing, it is trite that damages claimed are always to be treated as a matter in issue and which must be proved by evidence. See IWUEKE V IMO BROADCASTING CORPORATION (2005) ALL NLR 251. Now on proof of damages. The principle is that in civil cases, facts are proved on preponderance of evidence. Where there is nothing on the other side of the balance as in this appeal at hand, the onus of proof is discharged on a minimal of proof but unlike special damages which must be pleaded and proved strictly. See the case of ONWUKA & ANOR V. R.I. OMOGUI (1992) 3 SCNJ 98. Damages are awarded to restore the Plaintiff as far as money can, to the position he would have been if there had no breach. See CAMEROON AIRLINES V MR. MIKE E. OTUTUIZU (2011) 1-2 SC (Pt. 111) 200, AGBANELO V UNION BANK (2000) 4 SCNJ 353, ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR V EKWENEM (2009) 607 (Pt. 11) SC 5. PER NASIRU ONIYANGI, J.C.A.

EVIDENCE: EFFECT OF UNCHALLENGED FACTS

When facts deposed to against the Appellant as in the appeal are not challenged or controverted, they will be taken as true. See MOHAMMED TATA V ATTORNEY GENERAL, BAUCHI & ANOR (1993) 9 NWLR (Pt. 317) 358 at 368, ADELAKUN V ORUKU (2007) 17 WRN 89 at 95, A.G. LAGOS STATE V PURIFICATION TECH (NIG) LTD (2003) 16 NWLR (Pt. 845) 1 at 18, CHIEF UFIKAIRO MONDAY EFET V INEC (2011) 1-2 SC (Pt. 111) pg. 61 at 85. PER NASIRU ONIYANGI, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

MARTHA GARBA MATA APPELANT(S)

And

DALYOP CHOJI 2. PAM DALYOP RESPONDENT(S)

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): At the High Court of Justice Plateau State, sitting in Jos, the 1st and 2nd Respondents in this appeal, as Plaintiffs took out a Writ of Summons against the Appellant Martha Garba Mata, as 2nd Defendant and Dauda Dadi, 1st Defendant, Ministry of Land Survey and Town Planning Plateau State, 3rd Defendant and the Attorney General of Plateau State as 4th Defendant seeking for the following reliefs as stated in paragraph 27 of their Statement of Claim dated 24th day of February, 2012 but filed on 28th day of February, 2012.
PARAGRAPH 27
“WHEREOF the Plaintiffs claims from the Defendants are as follows:-
(a) Declaration that the Plaintiffs are the legal owners of the pieces of land and are entitled to the Right of Occupancy of the Land in dispute.
(b) A declaration that the Plaintiffs are entitled to quit possession of the Land in dispute.
(c) An order of perpetual injunction restraining the 2nd Defendant, her servants, privies, agents, assigns or by whosoever on her behalf from using the men of the police to harass and prevent the Plaintiffs from developing their

landed property.
(d) General damages of Five Million (N5,000,000.00).
(e) Cost of this action.”

Consequent upon service of the Writ on respective Defendants, issues were joined. That is to say that pleadings were filed and exchanged. The Defendants denied liability and hence the matter went through a full trial. In the end, the learned trial judge in his wisdom gave judgment in favour of the Plaintiffs (1st and 2nd Respondents).

Miffed by the outcome of the trial hence this appeal by the 2nd Defendant (appellant) which is predicated on the notice of appeal dated and filed on the 26th day of November, 2018

The said notice has five grounds of appeal. The reliefs sought are as follows:
(i) An Order allowing the appeal.
(ii) An Order setting aside the judgment of the lower Court.
(iii) Such further or other orders as the Court may deem fit.

The Record of Appeal was transmitted out of time on 21st May, 2019 and vide the Order of this Court was deemed as properly compiled and transmitted on 20th day of November, 2019.

The Appellant’s brief of argument authored by P. H. Hammache of Counsel is dated and

filed on 27th November, 2019. Therein he submitted the following issues for the determination of the appeal.

APPELLANT’S ISSUES FOR DETERMINATION
(1) Whether there is a valid judgment against the Appellant who was wrongly sued as Martha Garba Matta instead of her real name of Kwarama Garba Matta. (Ground 1).
(2) Whether the Respondents have established their case based on the quality of evidence adduced before the trial Court to be entitled to judgment (Grounds 2, 3 and 4)
(3) Whether the trial Court was right in awarding damages of N1,000,000.00 against the Appellant in favour of the Respondents (Ground 5)

In the brief of argument of the Respondents, dated and filed on the 13th day of December, 2019, by I. K. Randa Esq., the issue formulated by the Appellant was adopted for the determination of the appeal. Therefore, this appeal will be determined based on the three issues presented by the Appellant.

ISSUE ONE
(1) Whether there is a valid judgment against the Appellant who was wrongly sued as Martha Garba Matta instead of her real name of Kwarama Garba Matta. (Ground 1).

The argument of the Appellant in respect

of this issue in the main is that there is no valid judgment against the Appellant because the names of parties to an action is very important. He added that as a general rule, a person has to be named in a suit before the judgment in that suit could apply to him. He relied on the cases of THE ADMIN & EXEC. OF THE ESTATE OF ABACHA V EKE-SPIFF & ORS (2009) LPELR – 3152 (SC) (p. 51 paras. A-B), SPDC & ANOR V PESSU (2014) LPELR – 23325 (CA) P. 54 paras. B-C.

It is his contention that the Appellant was sued as a second Defendant in the name “Martha Garba Matta” instead of her real name “KWARAMA GARBA MATTA”. He added that when she noticed this, she complained to the Court and referred to pages 22-23 of the Record of Appeal for her application in that regard. He therefore submitted that since the judgment does not carry the real name of the Appellant as disclosed by her during trial, it follows that the judgment cannot apply to her and the Appellant cannot be bound by a judgment she is not a party. He relied on the case of AZUBUIKE V PDP & ORS (2014) LPELR – 22258 (SC) (P. 17 paras B-D). He urged the

Court to hold that the judgment of the lower Court is not binding on her.

On behalf of the Respondents, it is submitted that the Appellant holds an erroneous view that a wrong party was sued at the trial Court. He argued that the complaint is incongruent and inconsistent with the principle of law. It is his case that a party sued in a name other than his own name on receipt of the process, he will immediately inform the Court about the error in his name. Rather, the Appellant in this appeal as a Defendant testified that she knows the Plaintiff since early 70’s. He argued that the Appellant has been known with the name in question since that time i.e. “MARTHA GARBA MATTA”. In support of the foregoing, he referred to pages 35, 36, 43 and 44 of the record of appeal. He added that despite the Appellant’s application for change of name on 3rd day of December, 2013, she still went ahead on the 1st day of July, 2015 and addressed herself as Martha Garba Matta alias Mama Masaram to Kwarama Garba. It was not in the presence of the Commissioner for Oath and thus has no legal flavour and was deemed abandoned. He relied on the cases of

RASAKI V AJIJOLA (No.1) (2018) 7 NWLR (Pt. 1617) 13 at pg. 35 paras C-F, UDEORA V NWAKONOBI (2013) 4 NWLR (Pt. 811) 643 at 674. He submitted further that the witness statement on Oath, statement of defence and the Appellant’s written address are all documents before the trial Court. Judgment was entered based on the processes before the Court. That oral testimony cannot alter a statement that was made on Oath before the Court. He relied on the case of OYEWUSI V OLAGBAMI (2018) 14 NWLR (Pt. 1639) 297 at 321 paras. G-H. He added that the Appellant portrayed herself as an unreliable witness during trial and that the Court should hold so.

He contended further that the Appellant has not pointed out how the use of the name Martha Garba Matta (alias Mama Masaram) instead of Kwarama Garba Matta has occasioned a miscarriage of justice. He added that assuming without conceding that the Plaintiffs referred to as the Respondent as well as 2nd Defendant, referred to as the Appellant had all used the Appellant’s name “Martha Garba Matta” that is on Oath in error and the Court gave judgment against Martha Garba Matta, such error is a mere slip which does not

occasion miscarriage of justice that would warrant this Honourable Court to set aside the said judgment. He relied on the case of DARLINGTON V F.R.N. (2018) 11 NWLR (Pt. 1629) 152 at page 166 paras. D-E where it was held that it is not every error or slip committed by a lower Court that entitles an Appellant to have his appeal allowed and the judgment appealed set aside. An error committed by the lower Court entitling an Appellant to succeed in setting aside the decision appealed is one that is substantial and resulting in a miscarriage of justice.
He urged the Court to so hold and resolve issue one in favour of the Respondents.

The Appellant’s contention in the main is that the name Martha Garba Matta as contained in the judgment is not her name and that her real name is Kwarama Garba Matta. To buttress this assertion, he referred to pages 22 and 23 of the Record of Appeal where her application to correct her name was granted. Let me quickly put on record here, that consequent upon a careful perusal of the pages in question, i.e. pages 22 and 23 of the record of appeal, I cannot find any such application granted by the trial Court. What is on

those pages are part of the witness statement on Oath of Pam Dalyop and the memorandum of appearance in respect of the Ministry of Lands, Survey and Town Planning and the Attorney General of Plateau State as 3rd and 4th Defendants, dated 14th day of November, 2012.

Having said this, and assuming without conceding that the Appellant intimated the Court of the mistake in her name, and the Court granted same, it is for the Appellant to correct her processes to read the correct name she wants to be called and referred to. To start with, in the memorandum of appearance by the Appellant dated 14th day of April, 2012, the Appellant referred to herself as MARTHA GARBA MATA (Alias MAMAM MASARAM) (See page 31 of the record. This is the process that ushers in the Appellant into the proceedings. This was filed on his behalf by his Counsel. M.Z. Jakonda Esq.

In the Appellant’s statement of defence as 2nd Defendant, she put her name as MARTHA GARBA MATA (Alias MAMAN MASARAM).

In the witness statement on Oath of the Appellant as 2nd Defendant dated 15th November, 2013, the Appellant’s name is put as Martha Garba Mata. But somehow an unidentifiable person

correct the name by deleting Martha and wrote Kwarama. The fellow who did this did not append his signature. However in the opening paragraph of the said process, the deponent is still referred to as MRS MARTHA GARBA MATA (See pages 25-36 of the record). To me this process was deposed to by two different persons i.e. KWARAMA GARBA MATA and MRS MARTHA GARBA MATA. See another process filed by the Appellant on pages 43-44, the final written address on pages 45-49 dated 15th January, 2015. It is on record that the Court granted the 2nd Defendant leave to amend his name on 3rd December, 2013. But since after the grant of that order the 2nd Defendant did not amend any of his existing processes as directed by the Court. Failure to amend and file her process with the name suggested by her to me constitute an abandonment of the order granted. In that situation, it stands to reason that she still want and prefer to be called and addressed as MARTHA GARBA MATA. The Court cannot be blamed for the short coming of the 2nd Defendant/Appellant. After all she was given the opportunity to properly defend herself in the name she choose to be known. Therefore the judgment of that

trial Court cannot be invalidated based on the misconception of the Appellant and failure to take advantage of the order to amend granted by the Court.

Further to this, I have cause to look at the Notice of Appeal filed on November, 2013. The Appellant’s name also put as MARTHA GARBA MATA. (See page 112 of the record of Appeal). If the Appellant is denying the name MARTHA GARBA MATA, then it follows logically that there is no appeal before this Court by any person called Kwarama Garba Matta as the Appellant want the Court to believe. That might render the Notice of Appeal liable to an order of striking out. I am hesitant to do this rather I will resolve this issue against the Appellant for lack of substance.

ISSUE 2
Whether the Respondents have established their case based on the quality of evidence adduced before the trial Court to be entitled to judgment (Grounds 2, 3 and 4)
After answering the question posed in this issue in the affirmative, he argued that a Plaintiff must succeed on the strength of his case and not on the weakness of the Defendant’s case. He relied on the case of MOMOH & ORS V UMORU & ORS (2011) LPELR

– 8130 (SC). He contended that the source of ownership of the 1st and 2nd Respondent is that traced to PW1 (Pastor Sati Chung (RTD) who testified to the fact that he sold the land in question to the 1st and 2nd Respondents. It is his case that the PW1 did not give evidence as to how he acquired the land. He submitted that pleading is not evidence. He cited the cases of EYIGEBE V IYAJI (2013) LPELR – 20522 (SC) pg. 16 paras. C-D, LAWAL V UBN PLC & ORS (1995) LPELR – 1762 (SC) p. 24 paras. A-B, DAIRO & ORS V REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2017) LPELR – 42573 (SC) pg. 14-17 paras. C-G. It is his contention that the Respondents are expected to lead credible evidence to show how they came to be customary owners. They must prove the root of title of their vendor. He relied on OTANMA V YOUDUBAGHA (2006) ALL FWLR (Pt. 300) 1579 at 1595 para. E, OLUKOYA V ASHIRU (2006) ALL FWLR (Pt. 322) 1479 at 1506 paras. A-B, ONOVO V MBA (2014) 14 NWLR (Pt. 1427) 391 at 414 paras. B-C.

On the need for a Plaintiff seeking for a declaratory title to prove his title by any of the five ways recognized by law. He relied on the

cases of AIYEOLA V PEDRO (2014) 13 NWLR (Pt. 1424) 409 at 446 paras. D-F, AGEH V TORTYA (2003) 6 NWLR (Pt. 816) 385 at 396 paras. E-F.

On the need for the registration of instrument to land, he referred to the case of W.A. COTTON LTD. V MAIWADA (2008) ALL FWLR (Pt. 405) 1784 at 1796 paras. A-C. Further, he argued that the price for the sale of the land is contradictory. He alleged that at one point it was sold for N20,000.00 and in another instance it was said to have been sold for N21,000.00. He relied on the case of ARCHIBONG V STATE (supra) – 1768 para. D.

He urged the Court to hold that there was no legal basis for the holding of the learned trial Judge that the Plaintiff have not only adduce evidence of traditional history of the land in dispute but also tendered documents of title in proof of their claim of title to the disputed land. He cited the case of NDUKUBA V IZUNDU (2006) ALL FWLR (Pt. 343) 1740 at 1754 paras. E-F. He urge the Court to resolve the issue in favour of the Appellant.

After answering the question posed in issue two in the affirmative, the learned Counsel representing the Respondents succinctly reproduced the

Respondents’ evidence before the trial Court, he submitted regarding the issue of signing of the sale agreement by the Ward Head that it is usually dispensed of once the Local Government form 111 (change of ownership of property) is signed by the Ward/Village Head, his signature can be dispensed with in the sale agreement hence he is not party in the transaction. He referred to Section 129 of the Evidence Act, 2011. He argued further that the Appellant stated that her husband never acquired the piece of land referred to and that the set back was never acquired by her late husband. He referred to page 81 of the Record. He submitted that facts not disputed need no further proof. He relied on the case of DANBABA V STATE (2018) 11 NWLR (Pt. 163) 426 at p. 451 Para. C. He added that there is no better proof than that which an adversary admits wholly and voluntarily owns up to an existed fact. He relied on the case of C.C.B. LTD V NWOKOCHA (1998) 9 NWLR (Pt. 564) pg. 98 Ratio 14 and Section 75 of the Evidence Act. Referring to pages 17-23 and 9-12 of the record, he contended that the Respondents’ evidence therein are not contradicted and that the only

point contradicted by the Appellant is the issue of signing by the Ward Head. Where evidence is not contradicted or controverted the Court is duty bound to admit same. He relied on STANBIC IBTC BANK PLC V L.G.C LTD (2018) 10 NWLR (Pt. 1626) 96 Ratio 10. OKOH V NIGERIA ARMY (2018) 6 NWLR (Pt. 1614) 176 at 190. He urged the Court to resolve the issue in favour of the Respondents.

Having regard to all the foregoing, the pertinent question is whether or not the Respondents as Plaintiffs discharged the burden of proof required of them. It is trite that whoever 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 of the Evidence Act. It is also the law that the burden of proof lies on that person who would fail if no evidence at all were given on either side. See Section 132 of the Evidence Act. Under Section 134, of the Evidence Act, the burden of proof shall be discharged on the balance of probabilities in civil proceeding. It is also elementary principle of civil proceedings that civil cases are decided on the balance of probabilities

based on preponderance of evidence. See the cases of NSEOBONG NOBERT INYANG V CHINA CIVIL ENGINEERING CONSTRUCTION CORPORATION NIGERIA LTD (2020) LPELR – 49694. The general principle of law is that whoever asserts must prove. See the cases of EWAOCHE OGWUCHE V BENUE STATE CIVIL SERVICE COMMISSION AND ORS (2013) LPELR 22748, KOKOROOWO V OGUNBAMI (1993) 8 NWLR (Pt. 313) 627, BALOGUN V LABIRAN (1988) 3 NWLR (Pt. 80) 66. Let me add that burden of proof in civil case is on the balance of probabilities and which burden lies on the Plaintiff. See Section 133 of the Evidence Act and the case of HIGH CHIEF A. A. AKINGBULU & ORS V OBA ADEOYE IDEPEFO & ORS (2015) LPELR – 25793.

The Respondents’ case as Plaintiff before the trial Court is as posited by his three witnesses and the four exhibits tendered and admitted. It is on record that the Appellant in his evidence said the land in dispute was never acquired by her husband. One may ask the question, what is then the Appellant’s interest in the land in issue? Our Courts have long set out the five different ways of proving ownership of land in the locus classico case of

IDUNDUN V OKUMAGBA (1976) 9-10 SC 246-250. It is trite that the proof of any of the five ways will suffice. See MR OKE OJO OYEDELE V MR MICHEAL ODUMOSU (2016) LPELR – 41441. In my view the evidence of the Respondents as Plaintiffs to a very large extent is never controverted nor rebutted in any material effect. That evidence in my humble view are preponderate enough and establishes more than one of the five conditions specified in the case of IDUNDUN V OKUMAGBA (supra). The Appellant as I said, on her own volition posited that her husband did not acquire the land in issue which is bordered by the land presently occupied by the Appellant. One stands to wonder whether or not she is not a mere busy body. On the whole therefore, it is my ardent view that the evidence of the Respondents is preponderate and sufficient to establish their case. I therefore resolve this issue against the Appellant.

ISSUE 3
Whether the trial Court was right in awarding damages of N1,000,000.00 (One Million Naira) against the Appellant in favour of the Respondents.
The argument of the Appellant is that the case of the Respondents being principally for a declaration of title and

for the Court to hold the Appellant in trespass. He added that it is when the Respondents can prove ownership of the land that issue of trespass can come bye. Having failed to prove title to the land, they are not entitled to any form of damages. He relied on S.P.D.C. V OKONEDO (2007) ALL FWLR (Pt. 368) 1104 at 1138 Para. H. On issue of N500,000.00, he argued that they have not prove that they indeed lost the said amount. Damages should be strictly proved. He again relied on S.P.D.C. V OKONEDO (supra) at 1134 Paras. F-G, AKINKUGBE V EWULUM HOLDINGS (2008) FWLR (Pt. 432) 1269 at 1286 Para. He urged the Court to resolved the issue against the Respondents and allow the appeal.

In response, the learned Counsel representing the Respondents aligned themselves with the submission by the Appellant in paragraphs 5.2, 5.3 and 5.4 of the Appellant’s brief. Further to this, he referred to the finding of the Court on pages 111 of the Record of Appeal where the Court said “in the circumstance I award damages against the Defendant in the sum of N1,000,000.00 (One Million) Naira only for the personal and other injuries incurred. He argued that general damages

are such lost which flows naturally from the Defendant’s act, this is because it arises by the inference of law and so it does not need to be proved by evidence as much as there are pleadings to support it. He referred to paragraph 27. D. on page 8 of the Record of Appeal. Further he argued that the Court has onerous task to award special damages once Plaintiff gives evidence in support and which is unchallenged or un-contradicted, the Court ought to accept. He referred to the case of CHIDI V AGGO (2018) 2 NWLR (Pt. 1603) 175 at pg. 222-223 paragraphs H-D, D-F, FBN PLC V AGF (2018) 2 NWLR (Pt. 1617) 121 at pg 162 paras. B-D, 175 paras. A-C on the reason for award of damages and EDOSACA V OSAKUE (2018) 16 NWLR (Pt. 1645) 199 at pg. 230 paras. D-F.

He urged the Court to so hold and resolve the issue in favour of the Respondents and dismiss the appeal with cost.

hand are such as law will not infer from the nature of the act. They do not follow in the ordinary cause. They are exceptional in their character and therefore they must be claimed specially and proved strictly.”
General damages are those which the law implies. The qualification of general damages in terms of money is however, a matter for the Court to determine.
In the case of MACHINE UMUDJE & ANOR V SHELL B. P. PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (1975) 9-11 SC 95, the Court said thus:
“Damages are in their fundamental character compensatory. Whether the matter complained of be a breach of contract or a tort, the primary theoretical notice is to place the Plaintiff in as good a position, so far as money can do it, as if the matter complained of had not occurred.”
Further to the foregoing, it is trite that damages claimed are always to be treated as a matter in issue and which must be proved by evidence. See IWUEKE V IMO BROADCASTING CORPORATION (2005) ALL NLR 251. Now on proof of damages. The principle is that in civil cases, facts are proved on preponderance of evidence. Where there is nothing on the

other side of the balance as in this appeal at hand, the onus of proof is discharged on a minimal of proof but unlike special damages which must be pleaded and proved strictly. See the case of ONWUKA & ANOR V. R.I. OMOGUI (1992) 3 SCNJ 98. Damages are awarded to restore the Plaintiff as far as money can, to the position he would have been if there had no breach. See CAMEROON AIRLINES V MR. MIKE E. OTUTUIZU (2011) 1-2 SC (Pt. 111) 200, AGBANELO V UNION BANK (2000) 4 SCNJ 353, ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR V EKWENEM (2009) 607 (Pt. 11) SC 5.

Having said the foregoing, the question is whether there is evidence to justify the award of damages awarded by the learned trial judge in this case. From the evidence of the Respondents on record, the Respondents purchased the land and they led their vendor in evidence to that effect. I am not unmindful of the challenge by the Appellant that there is inconsistency in the evidence of the seller as to whether the land was sold for N20,000.00 or N21,000.00. As long as the evidence on payment of money which is acknowledged by the vendor, the issue of whether it was N20,000.00 or N21,000.00

will not negate the transaction.

Further to this, there is that unchallenged nor contradicted evidence by the Respondents that the labourers they engaged to dig foundation on the land in dispute were chased away by the Appellant. There is also the uncontradicted evidence that they paid the labourers the sum of N50,000.00 advance to carry out the work. Equally the Appellant has not denied the fact alleged that she drove away the labourers engaged by the Respondents and caused them to be arrested and detained by the police. When facts deposed to against the Appellant as in the appeal are not challenged or controverted, they will be taken as true. See MOHAMMED TATA V ATTORNEY GENERAL, BAUCHI & ANOR (1993) 9 NWLR (Pt. 317) 358 at 368, ADELAKUN V ORUKU (2007) 17 WRN 89 at 95, A.G. LAGOS STATE V PURIFICATION TECH (NIG) LTD (2003) 16 NWLR (Pt. 845) 1 at 18, CHIEF UFIKAIRO MONDAY EFET V INEC (2011) 1-2 SC (Pt. 111) pg. 61 at 85. It therefore stands to reason that the finding of learned trial judge in the circumstances of this case cannot be faulted. There also, that volunteered statement of the Appellant that her husband never acquired the land in dispute.

One start to wonder why the Appellant was sending people away from the land that does not belong to her.

On this note, I find no justifiable reason to disturb the finding of the learned trial judge on the award of general damages of N1,000,000.00 against the Defendants. Accordingly this issue is resolved against the Appellant.
In conclusion therefore, I find this appeal devoid of any merit and in consequence the appeal is dismissed.

The judgment of the High Court of Justice Plateau State in Suit No. PLD/J77/2012 delivered on the 30th day of September, 2015 Coram, Hon. Justice P. D. Damulak (Former Chief Judge) be and is hereby affirmed.
Parties to bear their respective costs.

TANI YUSUF HASSAN, J.C.A.: I agree.

BOLOUKUROMO MOSES UGO, J.C.A.: I had earlier read in draft the lead judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A., in both the main appeal and cross-appeal and I am in agreement with his reasoning and conclusion in both appeals. I have nothing useful to add.

Appearances:

H. Hammache, Esq., with him, P.A. Danbaba Esq. For Appellant(s)

I.K. Randa, Esq., with him, B. I. Randa, Esq. For Respondent(s)