ZENITH BANK PLC & ANOR. V. CHIEF DENNIS EKEREUWEM & ANOR. (2011)

ZENITH BANK PLC & ANOR. V. CHIEF DENNIS EKEREUWEM & ANOR.

(2011)LCN/4414(CA)

In The Court of Appeal of Nigeria

On Friday, the 25th day of March, 2011

CA/C/180/2009

RATIO

DECLARATORY RELIEF: DUTY PLACED ON A PARTY SEEKING A DECLARATORY RELIEF

…it is incumbent on the party seeking a declaratory relief to support it with credible evidence. This is because its success depends on the strength of the case and not on the weakness of the defence except where the defence supports the case of the claimant. See Bello vs. Eweka (1981) SC 1; Clay Industries (Nig) Ltd. vs. Anina (1997) 8 NWLR (Pt. 516) 208; Adeleke vs. Aserifa (1986) 3 NWLR (Pt. 30) 575. PER ISAIAH OLUFEMI AKEJU, J.C.A.

TRESPASS: DEFINITION OF THE WORD “TRESPASS”

TRESPASS TO LAND: WHAT “TRESPASS TO LAND” ENTAILS

Trespass to land or premises as now well described through numerous decisions of courts is unauthorized and unlawful entry upon the land in possession of another person or a direct and immediate interference with another person’s possession of the land. See Renner vs. Annam 2 WACA 28; Fagunwa vs. Adibi (2004) 17 NWLR (Pt. 903) 54; Salami vs. Lawal (2008) 14 NWLR (Pt. 1108) 546; Dantosho vs. Mohammed (2003) FWLR (Pt. 150) 1717; Olubodun vs. Lawal (2008) All FWLR (Pt. 434) 1468; Okoko vs. Dakolo (2006) 14 NWLR (Pt. 1000) 401; Mona Russell vs. Niger construction Ltd. (1987) 3 NWLR (Pt. 60) 298. PER ISAIAH OLUFEMI AKEJU, J.C.A.

PLEADINGS: ESSENCE OF FILING AND EXCHANGING OF PLEADINGS BY THE PARTIES; WHETHER A PARTY CAN BE ALLOWED TO ADDUCE AN UNPLEADED EVIDENCE

In an action fought on pleadings, the very foundation is the pleadings of the parties. Pleadings are filed and exchanged by the parties as a means of showing with some exactitude the case each party intends to present at the trial and what the adversary is to contend with. This is to avoid one party springing surprise on the other party. When pleadings are filed therefore, the parties as well as the court itself must be bound by the pleadings. The implication is that the oral evidence of the parties must be in line with the pleadings and no party is allowed to adduce evidence outside what is pleaded, where a party does so, such evidence must go to no issue. See Onwhka vs. Omogui (1992) 3 NWLR (Pt. 230) 393; Oladunjoye vs. Akinterinwa (2000) 4 SC (Pt. 1) 19; Emegokwe vs. Okadigbo (1973) 4 SC 193; Makinde vs. Akinwale (2000) 1 SC 89; Adeleke vs. Iyanda (2001) 13 NWLR. (Pt. 29) 1; Ukaegbu vs. Nwololo (2009) All FWLR (Pt.466) 1852; Ito vs. Ekpe (2000) 2 SC 98. PER ISAIAH OLUFEMI AKEJU, J.C.A.

BURDEN OF PROOF: ON WHOM RESTS THE BURDEN TO PROVE AN ASSERTION

It is an elementary principle of law that it is he who asserts the existence of a fact that bears the burden to prove the assertion. This principle is firmly rooted in sections 135, 136 and 137 of the Evidence Act, cap. E14 LFN and it has been judicially expressed in a prethora of cases which include; Daodu vs. NNPC (1998) 2 NWLR (pt. 538) 355; Itauma vs. Akpe-Ime (2000) 7 SC (pt. II) 24; Agbi vs. Ogbeh (2006) 11 NWLR (pt. 990) 65; Ewo vs. Ani (2004) All FWLR (pt. 200) 1484; Attorney-Gen. Bayelsa State vs. Attorney-Gen. Rivers State (2007) All FWLT (pt. 349) 1012. PER ISAIAH OLUFEMI AKEJU, J.C.A.

EVALUATION OF EVIDENCE: WHETHER IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE THERETO AND CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE SAME

It is now the law that where the trial court that has the primary duty of evaluating evidence and ascribing probative value thereto due to its pre-eminent position of seeing and hearing the witnesses has done so correctly, the appellate court will have no business to embark on the same exercise, but where the trial court has not correctly approached this business of evaluation the appellate court that has the full record can, and indeed should evaluate the evidence to avoid injustice. See Wofuchem vs. Gudi (1981) 5 SC 291; Fagbenro vs. Arobadi (2006) 7 NWLR (Pt. 97A) 174; Teriba vs. Adeyemo (2010) All FWLR (Pt. 533) 1868; Oyewote vs. Akande (2OO9) All FWLR (Pt.491) 813. PER ISAIAH OLUFEMI AKEJU, J.C.A.

ADMISSION: WHETHER UNDENIED AVERMENT OF THE OTHER PARTY AMOUNTS TO ADMISSION

The failure to frontally deny the averment of the appellants amounts to an admission. See: Owosho & Ors. Vs. Dada (1984) NSCC 568. PER ISAIAH OLUFEMI AKEJU, J.C.A.

ADMISSION: WHETHER ADMITTED FACTS REQUIRE FURTHER PROOF

By section 75 of Evidence Act, a fact that has been admitted does not require to be proved further. See Akpan vs. Umoh (1999) 7 SC (Pt. II) 13; Agbaneto vs. Union Bank of Nigeria Ltd. (2004) 4 SC (Pt. 1) 233. PER ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

1. ZENITH BANK PLC

2. MRS.MARYAN ABUBAKAR – Appellant(s)

AND

1. CHIEF DENNIS EKEREUWEM

2. MRS. GEORGETTE EKEREUWEM – Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): The Appellants were the defendants in Suit No. HEK/80/2006 at the Eket Division of the High court of Akwa Ibom State. The Respondents commenced the action through the Writ of Summons and Statement of Claim dated 28th June, 2006 wherein they claimed as follows:

“1. A declaration that the acts of the Defendants through their staff and agents in invading the private residence of the plaintiffs, assaulting and battering the 1st Plaintiff and damaging his properties are unlawful and constitute trespass to person and property.

2. One million five hundred thousand naira (N1, 500, 000.00) in special damages, being cost of repair and replacement of damaged ornamental glass windows, plastic chairs and seats at the 1st plaintiff’s residence by the Defendants.

3. Fifty million naira (N50, 000,000.00) in general damages for assault, battery and trespass to property.

4. A declaration that the Statement of the 2nd Defendant to wit:

“Look at this thief. He used our money to build house; useless man. you married a white woman now you cannot maintain her, She has drained and you now take to stealing,” and

“You harlot, you are married to a thief”, published of and concerning the 1st and 2nd plaintiffs respectively, have lowered the reputation of the 1st and 2nd Plaintiffs in the estimation of right thinking members of the public generally and constitute slander.

5. Fifty million naira (N50,000, 000.00) in general damages for defamation.”

In their Amended statement of Defence and counter claim, the appellants by way of Counter claim sought N40, 013,000 as special damages in the following terms:

(a) Cost of one designer shirt ripped by 1st plaintiff’s dogs- N8, 000.00

(b) Loss of profit from transaction – 8 million yearly x 5 years = N40, 000, 000.00.

Another N65, 000, 000.00 was also claimed as exemplary and general damages for false imprisonment, assault and battery, emotional trauma and loss of anticipated profit.

I need to state that from their pleadings the parties did not dispute the following facts. The 2nd Appellant was a staff of the 1st Appellant, a public liability company carrying on banking business with its head office at plot 84, Ajose Adeogun Street, Victoria Island, Lagos and branches in many places in Nigeria including Eket and Uyo in Akwa Ibom State. The 1st and 2nd Respondents (Cross Appellants) are husband and wife living in their house at No. 12, Idim Ndito Street, Rose Garden Estate, Eket.

On 2nd June, 2006, the 2nd defendant accompanied by two other employees of the 1st appellant bank went to the house of the respondents for recovery of the debt owed to the bank by one Mr. Dee Ventures Ltd a company which Respondents were connected with as the Chairman and Director respectively. It was at the house of the Respondents (Cross Appellants) that the events which culminated in the court action that led to this appeal occurred.

At the end of trial, the learned trial judge Ekerete A. Ebienyie, J. in the judgment delivered on 5th June, 2009, granted the declaration that the acts of the defendants constituted an invasion of the private residence of the plaintiffs, assaulting and battering the 1st plaintiff and damaging his property which were unlawful and amounted to trespass to person and property. He awarded N1 million naira general damages for assault, battery and trespasses to property and person of the 1st plaintiff and dismissed the other claims including the counter claim.

The appellants were dissatisfied with the decision of the court and appealed to this court on the three grounds (A, B and C) in the Notice and Grounds of Appeal filed on 29th June, 2009. The respondents also by the order of this court filed a Notice of Cross Appeal on 28th October 2009 with two Grounds of Appeal.

In respect of the appeal, the appellants formulated the following issues in the Appellants’ Brief of Argument settled by G. A. Akitoye Esq.

1. Whether the defendant/appellant (sic) trespassed into the property of the respondent (sic) at No. 12 Idim Ndito Street, Rose Garden Street, Off Marina Road, Eket, Akwa Ibom State.

2. Whether the learned trial judge was right when he concluded that the appellants assaulted the 1st plaintiff/respondent and thereby awarded general damages against the appellants to the tune of N1 million.

3. Whether the learned trial judge was right in dismissing in entirety Counter Claim of the appellant.” (sic).

In the Respondents'(Cross Appellants’) Brief of Argument, the learned counsel, Mrs. Glory Udonnah adopted the above three issues and formulated two other issues which were stated to be issues 4 and 5 as follows:

“4 Whether the court can grant a claim in special damages for cost of repairs or replacement of items damaged by a trespasser in the course of trespass.

5. Whether damages in the sum of (N1,000,000.00) One Million Naira is adequate compensation for assault, battery and trespass to property suffered by the respondents having regard to the totality of the circumstances of this case.”

The two issues (4 and 5 above) were also the issues raised for determination in the Cross Appellant’s Brief of Argument filed on 25th October, 2010 which were adopted by the Appellants (as Cross Respondents) in the Cross Respondents’ brief of Argument. In all therefore 5 issues were set down for determination in the Briefs of Argument filed and exchanged.

The first issue is whether the appellants trespassed into the property of the respondents at No. 12, Idim Ndito Street, Rose Garden Street, off Marina Road, EKet, or if I may adopt directly the word of learned trial judge, whether the entry of the Appellants (Cross Respondents) (now henceforth called the Appellants) amounted to an invasion of or invading the house of the Respondents.

The argument of the appellants’ counsel on this first issue is that one Beauty Ekwere, the domestic servant of the respondents who was allegedly pushed by the 2nd appellant to invade the premises was not called as a witness to give direct evidence of how the appellants entered the premises, and that the evidence of the PW1 on that issue in so far as it was a narration of a statement made to him by a person who was not called as a witness and it was meant to establish the truth of what was stated, amounted to inadmissible hearsay evidence by virtue of Section 77 of the Evidence Act which provides that oral evidence must be direct.

The learned counsel submitted that for an act of entering the premises of the respondents to constitute trespass it must have been done without their consent, citing Kenneth Ndukuba vs. Izundu (2001) NWLR (Pt. 1016) 423 and Oyadeji vs. Adenle (1993) 9 NWLR (Pt.316) 224.

According to the learned counsel, the evidence of the appellants that they entered into the premises through the gate opened by Beauty Ekwere, the respondents’ maid remained unchallenged and was to be in favour of the appellants as decided in Nigerian Bar Association vs. Chris Ekemezie Esq. (2008) 12 NWLR (Pt. 1100) 326.

He contended that the learned trial judge did not correctly evaluate the evidence of the witnesses and he thereby reached a wrong conclusion in law especially on the evidence of the PW1 and PW2 as to what happened at the gate. He submitted that while the trial court has the primary function of evaluating evidence the appellate court will intervene where the trial court has failed to properly do so. He cited I.B.W.A Ltd. vs. Elue Construction Co. Ltd. & Anor. (2004) 7 NWLR (pt. 873) 601. He submitted that the respondents failed to prove their assertion of trespass made against the appellants and the burden on them to prove their assertion was not discharged by them. He placed reliance on Famuroti vs. Agbeke (1991) 5 NWLR (Pt. 189) 1; and C. O. P. V. Oguntayo (1993) 6 NWLR (Pt. 299) 259.

In the Respondents Brief, it was argued that the appellants trespassed into the property of the Respondents. According to learned counsel, the transaction that took the Appellants to the premises was recovery of the debt owed by Mr. Dee Ventures Ltd. the liability of the Respondents to which was limited to their contribution to the assets of Mr. Dee Ventures Limited as Respondents were, on the authority of Salomon vs. Salomon & Co. (1897) A.C.22 and Ehidimhen vs. Musa (2000) FWLR (Pt. 21) 935 separate individuals from Mr. Dee Ventures Ltd. Learned counsel said the evidence of the respondents showed acts of forceful entry by Appellants.

On failure to call Beauty Ekwere, the respondents’ maid who was at the gate, the learned counsel submitted that the respondents were not under any obligation to do so in law because they had discretion as to who to call as a witness provided they were able to prove their case through the witnesses called. Reference was made to National Salt Company of Nigeria Ltd vs. Innis Palmer (1992) 1 NWLR (Pt. 218) 422; Onwujuba vs. Obienu (1991) 1 NWLR (Pt. 183) 17. The evidence of Beauty Ekwere, according to learned counsel was dispensable. The Respondents’ counsel contended further that even where the entry was lawful initially, it became unlawful ab initio where the appellants failed to meet the demand of the Respondents that they should leave the premises when hostilities began. The case of Ajibade vs. Opedro (1992) 5 NWLR (Pt. 241) 257 was cited in support.

The point to first realize is that the relief of a declaration sought by the Respondents (Cross Appellants) (hereinafter called the Respondents) calls for a dispassionate exercise of the court’s discretion and when it comes to the exercise of its discretion the court must act judicially and judiciously. The judge must dispassionately consider the facts placed before the court and give adequate consideration to relevant matters while wholly avoiding placing undue reliance on irrelevant matters. See: Enekebe vs. Enekebe (1964) 1 ANLR 102; Mobil Oil vs. Federal Board of Inland Revenue (1977) 3SC 97; Eguamwense vs. Amaghizenwen (1993) 9 NWLR (pt. 315) 1; University of Lagos vs. Olaniyan (1985) 1 NWLR (Pt. 1) 156.

A second and almost related point to be considered on a relief of a declaration is that it is incumbent on the party seeking a declaratory relief to support it with credible evidence. This is because its success depends on the strength of the case and not on the weakness of the defence except where the defence supports the case of the claimant. See Bello vs. Eweka (1981) SC 1; Clay Industries (Nig) Ltd. vs. Anina (1997) 8 NWLR (Pt. 516) 208; Adeleke vs. Aserifa (1986) 3 NWLR (Pt. 30) 575.

Again, I find it quite pertinent to observe that in the judgment under appeal, the learned trial judge had concluded as follows inter alia:

“1. It is hereby declared that the acts of the Defendants in invading the private residence of the Plaintiffs, assaulting and battering the 1st Plaintiff and damaging the Plaintiffs properties are unlawful and constitute trespass to person and Property.

2. The sum of N1, 000, 000.00 (One million Naira) is hereby awarded against the Defendants jointly and severally as general damages for assault, battery and trespass to property and person of the 1st Plaintiff'”

By its definition in the Black’s Law Dictionary, 8th Edition page 1541, trespass means an unlawful act committed against the person or property of another especially wrongful entry on another’s real property. Trespass to land or premises as now well described through numerous decisions of courts is unauthorized and unlawful entry upon the land in possession of another person or a direct and immediate interference with another person’s possession of the land. See Renner vs. Annam 2 WACA 28; Fagunwa vs. Adibi (2004) 17 NWLR (Pt. 903) 54; Salami vs. Lawal (2008) 14 NWLR (Pt. 1108) 546; Dantosho vs. Mohammed (2003) FWLR (Pt. 150) 1717; Olubodun vs. Lawal (2008) All FWLR (Pt. 434) 1468; Okoko vs. Dakolo (2006) 14 NWLR (Pt. 1000) 401; Mona Russell vs. Niger construction Ltd. (1987) 3 NWLR (Pt. 60) 298.

From the state of pleadings in the instant case, it was the Respondents as plaintiffs that asserted the fact of invasion (trespass) by the Appellants and the burden was squarely on them to prove that which they asserted. It is an elementary principle of law that it is he who asserts the existence of a fact that bears the burden to prove the assertion. This principle is firmly rooted in sections 135, 136 and 137 of the Evidence Act, cap. E14 LFN and it has been judicially expressed in a prethora of cases which include; Daodu vs. NNPC (1998) 2 NWLR (pt. 538) 355; Itauma vs. Akpe-Ime (2000) 7 SC (pt. II) 24; Agbi vs. Ogbeh (2006) 11 NWLR (pt. 990) 65; Ewo vs. Ani (2004) All FWLR (pt. 200) 1484; Attorney-Gen. Bayelsa State vs. Attorney-Gen. Rivers State (2007) All FWLT (pt. 349) 1012.

The appellants argued that the lower court did not correctly evaluate the evidence of the parties before arriving at its decision on the issue of trespass.

It becomes quite pertinent to determine whether the Appellants “invaded” the premises of the Appellants on 2nd June, 2006. I will start from the pleadings of the parties. The Respondents in paragraphs 6, 7 and 8 of their Statement of Claim on the entry of the Appellants into the premises averred as follows:

“6. On Friday 2nd June, 2006, at about 10.00am; the 2nd Defendant led one Uchendu Anayo and another man both staff of the 1st Defendant to the 1st Plaintiff’s residence at No. 12 Idim Ndito Street, Rose Garden Estate, off Marina Road, Eket.

7. At the said premises the 2nd Defendant misrepresented herself as “Mrs. Effiong” to the 1st Plaintiff servant and asked to be let in’ Not knowing any Mrs. Effiong, the servant refused to open the gate.

8. The 2nd Defendant then asked for water to drink and as the servant made to give her water, the 2nd Defendant pushed her down, forced the gate open and entered the premises with her colleagues.”

In the Appellants’ Amended Statement of Defence and Counter Claim, they denied paragraphs 7 and B above. They averred in paragraph 3 as follows:

“3. (II) That when the 2nd Defendant and two (2) of her colleagues got to the 1st Plaintiffs residence, they informed the servant who opened the gate that they want (sic) to see the 1st Plaintiff and the servant asked them to wait so that she will go and confirm if the 1st Plaintiff is (sic) in the house.

3. (III) the 2nd Defendant asked the servant to get drinking water for her on her way back to report if the master is (sic) in.

3. (IV) However the 2nd Defendant and her colleagues had on arrival and prior to knocking at the gate sighted the 1st Plaintiff on the upstairs of his building.

3. (V) When the servant returned with the water she informed them that her master is (sic) not in the house

3. (VI) the 2nd Defendant informed the servant that they will wait for the 1st Plaintiff as they were on appointment and that the 1st Plaintiff may be on his way back to the house.

3. (VII) the 2nd Defendant and her colleagues settled down on plastic chairs provided within the 1st Plaintiff’s premises, a little removed from the gate.”

The reaction of the respondents is in paragraph 3 of the reply to Statement of Defence thus:

“Paragraphs 3 (IV), (V), 3 (VI) and 3 (VII) of the Statement of defence are denied. The 2nd Defendant and her colleagues did not sight the 1st Plaintiff as alleged or at all, neither did the servant inform the 2nd defendant and her colleagues that her master was not in the house. The 2nd Defendant and her colleagues did not sit down in the premises as alleged or at all.”

In other words paragraph 3 (II) of the Statement of defence was not denied.

The failure to frontally deny the averment of the appellants amounts to an admission. See: Owosho & Ors. Vs. Dada (1984) NSCC 568. By section 75 of Evidence Act, a fact that has been admitted does not require to be proved further. See Akpan vs. Umoh (1999) 7 SC (Pt. II) 13; Agbaneto vs. Union Bank of Nigeria Ltd. (2004) 4 SC (Pt. 1) 233. The immediate implication is that the issue of entry into the premises remained settled on the pleadings.

At the trial, the Respondents testified as PW1 and PW2 while 2nd Appellant testified as DW1 and called another witness, as DW2. The Respondents were not at the gate according to the pleadings. It was their maid who attended to the 2nd appellant and her at the gate team that related what happened to the respondents and came back to the appellants at the gate. The maid was not called as a witness on this important issue of what transpired at the gate which was the point of entry. It was the respondents who were not present at the gate that testified on what transpired there. The learned trial judge considered the evidence of the 1st respondent on the events at the gate and concluded that:

“PW1’s evidence as to what happened at the gate and how DW1 and her team members pushed Beauty Ekwere aside and forced their way into the premises is hearsay.”

The learned trial judge was quite right. The law as provided in Section 77 of Evidence Act is that oral evidence must in all circumstances be direct. It must be the evidence of the person who saw, heard, perceived or held opinion, whichever may be applicable. The exceptions are not relevant to the instant case. The statement of a witness in court about what he was told by a third person who is not called as a witness in the proceedings amounts to hearsay where the statement is intended to be believed as the truth of the fact it seeks to establish. See Subramanian vs. Public Prosecutor (1956) 1 WLR 969; Kata vs. Potiskum (1998) 3 NWLR (Pt. 540) 1.

However the learned trial judge stated that the evidence of the PW2 cured the defect in the evidence of the PW1 and he admitted the evidence of the PW2 on the issue of entry into the premises. But did the evidence of PW2 fare any better? With respect, I do not think so.

At page 95 of the record, after narrating what her maid Beauty Ekwere told her about what happened at the gate, the PW2 said:

“From my bed room window, I saw a lady who pushed my maid inside and forced her way inside the premises. Two men followed her in.”

The evidence of the 1st Respondent shows that the Respondents were at the same place at that material time and the maid was narrating to the two of them, so what rendered the evidence of 1st Respondent inadmissible as hearsay ipso facto affected that of 2nd Respondent. Secondly the fact that the PW2 was in any position to see “a lady” who pushed the maid inside and forced her way inside the premises while two other men followed had no firm root in the pleadings. Evidence at variance with pleadings goes to no issue as unpleaded fact. See Adefeke vs. Iyanda (2001) 13 NWLR (pt. 729) 1; Okoko vs. Dakoto (2006) All FWLR (pt. 336) 201.

When the complaint is about the reception of inadmissible evidence by the lower court and reliance upon that evidence which indeed influenced the decision of the lower court, the appellate court will be entitled to interfere. See Ajayi vs. Fisher. (1956) N.S.C.C 82.

In Abolade Agboola Alade vs. Salami Jagun Olukade (1976) 1 SC 93, the Supreme Court (per Idigbe JSC) put the position thus at page 86:

“In a trial by a judge alone, as in the case in hand, a distinction must be drawn those between cases where the evidence complained of is in no circumstance admissible in law and evidence complained of is admissible under certain conditions. In the former class of cases the evidence cannot be acted upon even if parties admitted it by consent and the Court of Appeal will entertain a complaint on the admissibility of such evidence by the lower although the evidence was admitted in the lower court without objection.”

Where a court has received evidence that is inadmissible, the proper thing is to expunge such evidence and where there is no other evidence to support the claim it cannot be sustained and per force must fail.

Argument by the learned counsel for the Respondents that a party is not bound to call any particular or any number of witnesses in proving the case is valid in law, and it is supported by Section 179 (1) Evidence Act. See Alao vs. Akano (2005) All FWLR (pt. 264) 799.

However, in the absence of any evidence outside those of the pw1 and pw2 which are hearsay and/or unpleaded, the evidence of the appellants as to the mode of entry has remained unchallenged and the legitimate position remains that their entry did not amount to an invasion of the premises. They entered through the gate that Beauty Ekwere the respondents, maid opened for them. This removes the foundation from the act of invasion found by the trial judge.

The finding of the learned trial judge that the appellants failed to heed the request of the 1st respondent that they should leave the premises and their act thereby became trespass ab initio was also advanced by the Respondents, counsel in the Respondents’ Brief in support of which attention was drawn to the case of Ajibade vs. pedro (1992) 5 NWLR (pt. 241) 257. The learned trial judge regarded the evidence of the 1st respondent that he asked the appellants to leave the premises as unchallenged evidence and herd that the respondents refused to leave the premises.

The learned trial judge ignored the content of paragraph 3 (XIII), 3 (XIV), 3 (XV), 3 (XVI), 3 (XVII), 3 (XVIII) and 3 (XXI) of the Statement of Defence and Counter Claim, and the oral testimony of the Appellants thereon as to the reason why they did not and indeed could not leave the premises. The appellants’ evidence was that the 1st Respondent locked the gate, and thereby prevented them from leaving. It can therefore not be said that they refused to heed the warning of the 1st Respondent and refused to leave the premises or that the evidence of the 1st respondent on that issue remained unchallenged. The surrounding circumstances that no one could intervene throughout the period the appellants were in the premises and had to be rescued by police men is strong enough to be deserved considered by the learned trial judge as it lends credence to the defence of the appellants.

The evidence and the peculiar circumstances of this case should be considered. The 2nd Appellant and the two other persons were officials of a bank, the 1st Appellant.

The 2nd Appellant as DW1, said at page 110 of the record:

“It is not correct as alleged by the Plaintiffs that I beat up the 1st Plaintiff, damaged his plastic chairs, glass windows and upholsteries chairs. We are professionals and we are trained to be nice to our customers and not fight with them.”

The DW2, Anayo Uchendu also a staff of the 1st Appellant said under cross examination at page 120 of the record:

“As a banker the correct dress codes is a suit, tie and shirt. It is part of the dress codes also that when it is hot-one can remove his jacket. On that day it was a hot sunny day so I removed my jacket”

The above pieces of evidence by DW1 and DW2 were not shaken. It was the evidence of the 1st respondent that these bank workers used sticks, and stones to destroy his doors and windows as well as his upholstery chairs while they battered him and tore his T shirt in the process; and that after the episode, police took all those items away and remained with Police up to the time of his testimony in court. No item or weapon of destruction was produced nor was any reason given for not doing so. Considering all the circumstances of this case, the evidence of the Respondents fell short of the probative value required in proving their assertions and fell short of the preponderance required to establish the declaration they sought.

The second issue is the propriety of the award of N1 million as general damages to the 1st Respondent.

Appellants’ counsel again undertook a review of the evidence on record and argued that the learned trial judge did not properly evaluate the evidence before him and urged this court to look at the evidence on record on the authority of Sampson Enenehi vs. The State (2009) 6 NWLR (pt. 1138) 431; Fatoyinbo vs. Williams (1956) SCNLR 274.

The learned counsel for the Respondents argued in support of the award and urged this court to uphold it or rather not to disturb it.

In the absence of evidence in support of the claim for assault, trespass and battery, the learned trial judge resorted to exhibit A which in his opinion was a criminal form usually issued to a victim of assault. He found therein that Uchendu Anayo was described as the accused while 1st Respondent was said to be the person assaulted.

The approach of the court to a matter of documentary evidence as explained in Akinbisade vs. State (2007) All FWLR (Pt. 344) 17 is that the document must be interpreted as a whole and not in parts or pockets convenient to a party and a party is not to pick and choose extracts therefrom that is convenient to his case’ Exhibit A which the learned trial judge described as a clear proof that PW1 was assaulted has at the best raised a suspicion of commission of crime by the Uchendu Anayo mentioned therein who was not at anytime joined as a party to the instant civil claim and who was not proved to have any criminal charge against him in any court.

Uchendu Anayo therefore was in all the circumstances entitled to the right of fair hearing and being presumed innocent until the contrary would be proved as entrenched in Section 36 (1) and (5) respectively of the Constitution of the Federal Republic of Nigeria, 1999.

In awarding the general damages of N1 million now in contention, the learned trial judge stated at page 150 the basis thereof as follows:

“2. The sum of N1, 000, 000.00 (One million naira) is hereby awarded against the defendants jointly and severally as general damages for assault, battery and trespass to property and person of the 1st plaintiff.”

An examination of the evidence has however shown that the lower court relied on inadmissible evidence for the finding of trespass while he placed undue reliance on exhibit A, the police medical form to find against the appellants in respect of assault and battery especially in the absence of the materials allegedly used by the appellants.

The trial court possesses the duty to assess and award damages and the appellate court should not disturb the award on the basis that it would have awarded a different figure.

However the appellate court can interfere or upset the award of damages in the following circumstances.

1. Where the trial court has acted under a mistake of law or disregard of principles.

2. Where the amount awarded by the trial court was entirely a wrong estimate in that it is either too high or too low.

3. Where the trial court has failed to consider relevant matters or has acted under a misapprehension of facts.

4. Where injustice will result if the Appeal Court does not intervene.

See: Obere vs. Board of Management, Eku Baptist Hospital (1978) 6-7 SC 15; U.B.N. Ltd. vs. Odusote Bookshops Ltd. (1995) 5 NWLR (Pt. 421) 559.

In the instant case, the lower court acted on wrong principles of law by awarding an amount of N1 million as general damages to a party who has not proved the alleged wrong done to him. Where a party fails to prove any damage or wrong, the proper order is a dismissal of the action. The Court cannot compensate him with an award of damages as much as N1 million.

In their Amended Statement of Defence And Counter Claim, the appellants made a claim for N65, 000, 000.00 (Sixty five million naira) as “exemplary and general damages” for false imprisonment, assault, and battery, emotional trauma and loss of anticipated profit while another N40, 000, 000.00 (Forty million naira) was claimed as special damages being cost of shirt ripped by 1st plaintiff’s dogs, loss of anticipated profit from transaction and penalty for late pick up of ward from school.

It is the law that a Counter claim is a claim on its own in the same suit whereby the defendant becomes a plaintiff or claimant and the plaintiff in the action itself becomes a defendant for the purposes of the Counter Claim. The procedure of a counter claim is resorted to where the facts of the plaintiff’s claim are also conceived by the defendant as giving rise to his own reliefs and claims such relief therein to avoid’ multiple actions. Thus the counter claim must pass the test of pleadings and the burden of proof of assertions under sections 135 and 137 of Evidence Act.

Exemplary damages, also known as punitive damages, are intended to punish and deter blame worthy conduct and thereby prevent the occurrence of the same act in future.

The circumstances in which exemplary damages may be awarded as well laid out by Tobi, JCA (as he then was) in the case of Onagoruwa vs. I.G.P (1991) 5 NWLR (pt. 193) 593 at 647 – 648 are:

“(a) Where there is an express authorization by statute.

(b) In the case of oppressive, arbitrary or unconstitutional action by the servants of the government.

(c) Where the defendants’ conduct had been calculated by the him to make a profit for himself exceed the compensation might well the compensation payable to the plaintiff.

In order to succeed, a plaintiff must be able to prove any of these conditions. He needs not prove all the three conditions to succeed. Once any of the three conditions is proved, a court of law will award exemplary damages. See: Ezeani vs. Ejidike (1964) 1 All NLR 402; A.R.E.C. vs. Amaye (1986) 3 NWLR (Pt. 31) 653; Eliachin (Nig) Ltd. vs. Mbakwe (1986) 1 NWLR (Pt. 4) 47; Williams vs. Dairy Times of Nigeria Ltd. (1990) 1 NWLR (pt. 124) 1; Ilouno vs. Chiekwe (1991) 2 NWLR (Pt. 173) 316.”

The facts of the counter claim and the evidence rendered in its support do not bring the appellants within any of the three classes stated above. There exists no basis for award of extemporary damages to the appellants and that head of damages was rightly refused by the lower court.

While the award of general damages is a matter for the trial court to determine by applying the relevant and settled principles, and will only be disturbed in the circumstances I earlier on enumerated in this judgment, it is now settled that special damages must be specificaly pleaded and strictly proved. What this presupposes is that a party claiming special damages must state with necessary details or particularity how the sum claimed is arrived at. The strict proof of special damages means that the claimant should adduce credible evidence that will make the assessment and award achievable. See. Obasuyi vs. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668; Ihekoronye vs. Hart (2000) 15 NWLR (pt. 692) 840; Dumez (Nig.) Ltd. vs. Ogboli (1972) 1 All NLR (Pt. 1) 241; SPDC (Nig.) Ltd. vs. Tiegbo VII (2005) 9 NWLR (Pt. 931) 439; Neka B.B.B. Manufacturing Co. Ltd. vs. ACB Ltd. (2004) All FWLR (pt. 198) 175.

The special damages claimed by the Appellants is about anticipated profit of N40, 000, 000.00 and N5, 000.00 for late picking of ward while N8, 000.00 was claimed as cost of the shirt of Uchendu Anayo who was not a party to the suit. Exhibit H tendered in support of the claim for N40, 000, 000.00 loss of profit itself disclosed only N30, 000, 000.00 without stating the number of years. It does not show accurately that the Appellants would have earned N40, 000, 000.00 even if the business had been carried out. Also there was no evidence of how the N5, 000.00 for late picking of ward was arrived at. The evidence adduced by the Appellants did not meet the requirement of strict proof and in my view the claim for special damages was rightly rejected by the lower court. I do not find any basis also to interfere with the decision of the lower court on the refusal to aw.ard general damages to the Appellants.

”Since issues 4 and 5 formulated in the Respondents, Brief of Argument are the same issues formulated in the Cross Appellants’ Brief of Argument, I will now go to the Cross Appeal.

Issue No. 1 is whether the court can grant a claim of special damages for cost of repair or replacement of items damaged by a trespasser in the course of trespass, while issue No. 2 is whether damages in the sum of N1, 000, 000.00 (One Million Naira) is adequate compensation for assault, battery and trespass to property suffered by the Respondents, having regard to the totality of the circumstances of this case. These two issues were adopted by the cross Respondents in the cross Respondents, Brief of Argument.

The case of Reynolds Construction Co. Nigeria Ltd. vs. Rockonoh properties Co. Ltd. (2005) 4 SC 1 was retied upon by the rower court in rejecting the item claimed by the cross Appellants as cost of repair or replacement. That case was between a landlord and the tenant in respect of the property (buildings) at Rockonor Estate, GRA Enugu. At the expiration of the tenancy the appellant attempted to surrender the demised property but the landlord refused on the ground that there were repairs to be effected by the (tenant). The landlord rater sued for the arrears of rent and menses profits covering the period the property remained unoccupied as a result of his refusal to accept the surrender of the property thereby treating the tenant as remaining in possession. The crucial ‘issue in that case was the reasonableness (or otherwise) of the refusal of the respondent to accept the keys to his property at the expiration of the tenancy on ground that there had been breach of covenant to repair by the appellant only to turn around and regard the appellant as still being in possession.

For the reason that the case of Reynolds Construction Ltd vs. Rockonoh Properties Co. Ltd (supra) was a matter of landlord and tenant in which there was no dispute as to whether or how the alleged damage to the property demised occurred, the case does not directly apply to the instant one where the cross Respondents did not only dispute the alleged trespass but denied also any act of damage in the premises of the respondents.

The claim of the cross Appellants under this head is for special damages. They must meet the specific pleading and strict proof required in special damages. See Odulaja vs. Haddad (1973) 11 SC 35; ACME Builders Ltd. vs. Kaduna State Water Board (1999) 2 NWLR (pt. 59O) 288.

To establish their claim for cost of repairs, the Respondents must prove:

(1) That there was damage;

(2) That it was the Cross Respondents that did the damage.

(3) That it was the item damaged that was replaced or repaired.

(4) That the actual cost of replacement is the amount now being claimed.

(5) That the cost itself was the reasonable cost in the circumstance of the case, in other words that a reasonable person would not have done it for less.

In the instant case for instance, the pW1 said he expended a total of N1, 500, 000.00 as cost of repair of damaged items. Neither in the pleadings nor the evidence were the details of repair or replacement stated. The pw3 testified as the person that did the replacement of broken grasses and issued exhibit D as his receipt for a total of one Million Two Hundred thousand Naira covering a lump sum of N1, 072, 000.00 for glasses and N128, 000 as labour and transportation cost, again without the details. What the pW3 said was that the pW1 called him “sometime ago” and showed him broken glasses which he fixed and was paid his balance on completion of the job for which he issued receipt which was admitted as exhibit D dated 3/6/2006 while the damage was allegedly done on 2/6/2006. It will come to the same question I mentioned earlier which is who did the damage to the glass allegedly replaced by the pW3? Not even the PW1 could establish that fact with probative evidence.

The answer to this issue is that what the law compensates for by way of damages is the loss incurred by the claimant as a result of the wrong done to him. This loss or damage must be linked to the alleged trespassers before the claimant can succeed in the claim for cost of repair or replacement of the damaged items.

In the earlier part of this judgment it had been found that the respondents (cross Appellants) did not establish damage of the allegedly done by the appellants (Cross Respondents). This only means that there is no basis for granting the relief of special damages in respect of the same items now claimed as cost of replacement or repair and for this reason this issue is resolved that while it is not unlawful for a claimant (cross Appellants inclusive) to make a claim for special damages as cost of repair or replacement of damaged items, the damage must be established against the persons claimed against while the requirements of specific pleading and strict proof of special damages must be met by the claimant.

I resolve issues 1 and 2 in favour of the appellant while issue 3 is resolved against them.

On the whole the appeal is meritorious and it is allowed.

Consequently the declaration granted by the lower court and the award of N1 Million Naira general damages are set aside.

The Cross Appeal fails and it is dismissed accordingly.

I make no order as to costs.

JA’AFARU MIKA’ILU, J.C.A.: I agree.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the opportunity of reading before now the lead judgment of my learned brother, Akeju, JCA. His Lordship has elucidating dealt with the issues in both the main appeal and cross – appeal. I agree with the reasoning and conclusions reached therein that the appeal has merit and should be allowed. I also allow the appeal and abide by the consequential orders made in the said lead judgment including the order on costs.

Regarding the cross – appeal, I also agree that it lacks merit and ought to be dismissed. For the reasons so ably expressed in the le ad judgment of my learned brother, Akeju, JCA and the conclusion which I adopt as mine, I also dismiss the cross – appeal. I make no order with regard to costs.

Appearances

G. Akitoye, Esq.For Appellant

AND

Mrs. Glory UdonnahFor Respondent