ENGINEER SAMUEL EGBEDINA AKINBIYI v. LAGOS ISLAND LOCAL GOVERNMENT COUNCIL & ORS.
(2012)LCN/5619(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of October, 2012
CA/L/882/2010
RATIO
ACTION: WHETHER A PARTY CAN APPROBATE AND REPROBATE
it’s a trite law, that a party cannot approbate and reprobate: LONGE v. FBN PLC (2006) 3 NWLT (pt. 967) 250. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
LOCAL GOVERNMENT: FUNCTIONS OF THE LOCAL GOVERNMENT
In accordance with the Fourth Schedule to the Constitution, the main functions of the 1st Respondent, nay any other Local Government for that matter, shall include –
(a) The consideration and the making of recommendations to a State Commission on Economic Planning or any similar body on:-
(i) The economic development of the State, particularly in so far as the areas of authority of the Council and the State are affected.
(b) Collection of rates, radio and television licences… PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUDGMENT: EFFECT OF A DECISION OF A COURT OF COMPETENT JURISDICTION
it’s a well settled principle, that a decision or order duly given by a Court of competent jurisdiction, remains valid until otherwise set aside by a competent appellate Court. See BABATUNDE v. OLATUNJI (2002) 2 SC 9; FIDELITY BANK PLC v. MT “TABORO” (2009) 8 NWLR (Pt. 1142) 87. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
DAMAGES: MEANING AND NATURE OF DAMAGES
It’s a trite and well settled doctrine, that the term damages denotes an amount of money claimed by or ordered to be paid (by a Court) to a person as compensation for loss or injury. It equally connotes the sum of money which a person wronged is entitled to receive from the wrong doer as compensation for the wrong. See CBN v. BECKETI CONSTRUCTION LTD. (2012) ALL FWLR (Pt. 620) 1266 at 1296 Paras. G – H.
General damages, properly so called, are by nature compensatory (damages) for the harm or wrong that usually results from tort for which a party has sued that the harm is so obvious, or reasonably expected, thus need not to be specifically claimed (pleaded). Also termed direct necessary damages, et al. Instructively, special damages relate and are allegedly sustained in the circumstances of a particular wrong. To be grantable (awardable), special damages must be explicitly, and in most unequivocal terms, pleaded (claimed) and proved. Also termed particular damages. See BLACK’S LAW DICTIONARY, 9th Edition, 2009 at 448. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
ENGINEER SAMUEL EGBEDINA AKINBIYI
(Trading under the name & style of SEAK ASSOCIATES) Appellant(s)
AND
(1) LAGOS ISLAND LOCAL GOVERNMENT COUNCIL
(2) MR. AKINOLA
(3) MR. ONILEERE Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: The instant Appeal is a fall-out of the Judgment delivered on April 22, 2010 by the Hon. Justice O. A. Adefope-Okojie of the High Court of Lagos State in Suit No.LD/1899/2000. By virtue of the Judgment in question, the learned trial Judge dismissed the Appellant’s suit in part and granted the Respondents’ Counter-Claim in part.
FACTS AND CIRCUMSTANCES SURROUNDING THE APPEAL:
It’s discernible from the Records of Appeal, that the Appellant had (on 19/07/2000) filed in the Court below a Writ of Summons and Statement of Claim, seeking various declaratory reliefs against the Respondents. However, by the amended Statement of Claim thereof (filed on 25/08/10), the Appellant claimed against the three Respondents, jointly and severally, as follows:
(a) A DECLARATION that the Defendants’ conduct in invading the Plaintiff’s office on or about Wednesday 19th April 2000 without lawful justification is unconstitutional, illegal and a breach of the Plaintiff’s right to privacy under Section 37 of the Constitution of the Federal Republic of Nigeria 1999.
(b) A DECLARATION that the Defendants’ conduct in invading the Plaintiff’s office on or about Wednesday 19th April 2000 without lawful justification is unconstitutional, illegal and constitutes trespass.
(c) AN ORDER of this honourable Court directing the Defendants’ to return to the Plaintiff forthwith the Plaintiff’s Coleman 5.0KVA generator in a good working condition which generator was seized by the Defendants’ on 19th April 2000.
(d) The sum of N315,000.00 (Three hundred and fifteen thousand naira) as special damages under paragraph 19 hereof.
(e) The sum of N2,500.00 (Two thousand, five hundred naira) or such higher sums per day for every day of the week excluding Sundays as may be established in evidence during trial as special damages under paragraph 20 hereof with effect from 18th December 2000 until judgment.
(f) The sum of N5,000,000.00 (Five million naira) as damages under paragraphs 12 and 13 hereof.
(g) The sum of N1,000,000.00 (One million naira) as damages under paragraph 9 hereof.
(h) The sum of N1,000,000.00 (One million naira) as damages under paragraph 10 hereof.
(i) The sum of N1,000,000.00 (one million naira) as damages under paragraph 11 hereof.
(j) The sum of N1,000,000.00 (One million naira) being general damages.
(k) Costs of the institution and prosecution of this action.
In response to the Appellant’s amended Statement of Claim, the Respondents filed an amended Statement of Defence and Counter-Claim thereof on 05/03/09. In the said amended Statement of Defence, the Respondents denied the claim, inter alia, thus:-
“51. Where upon the Defendants avers (Sic) that the Claimant’s claim is mischievous unmeritorious adventurous, speculative and should be dismissed with substantial cost”
The Respondents did not only deny the claim in toto, but equally counter-claimed against the Appellant, viz:
“COUNTER-CLAIM”
The Counter-Claimant (sic) Counter-Claim as follows:
i. That payment of advertisement rate being owed since 2000 till date calculated at N7,500 yearly.
ii. Expenses incurred in the process of enforcement which the Claimant had put them, due to his flagrant disobedience (sic).
iii. Interest of 18% on the debt rate owed.
PARTICULARS OF COUNTER-CLAIM
i. N7,500 being rate owed since 2000 – 2009 – N67,500.
ii. Expenses incurred on enforcement – N200,000.
iii. Cost of defending this suit – N1,000,000.
iv. 18% compound interest rate on debt rate owed since 2000 – 2009 – N35,782.
Total = N1,302,782.00
Pleadings having been duly settled, the suit eventually proceeded to trial. A total of four witnesses had so far testified for the Appellant. On their part thereof, two witnesses testified for the Respondent.
On April 22, 2010, at the conclusion of the trial, the lower Court delivered the vexed Judgment in question to the conclusive effect thus:-
In conclusion, both the Claimant’s case and the Counter-Claim of the Defendants succeed in part.
I refuse the reliefs sought by the Claimant, save the following: –
(1) I make an order directing the Defendants to return to the Claimant forthwith the Claimant’s Coleman 5.0KVA generator in a good working condition which generator was seized by the Defendants on 19th April, 2000.
(2) I award the sum of N15,000 to the Claimant being the cost of hiring generators for the period of one week.
I refuse the reliefs sought by the Defendants in their Counter-Claim save the award in favour of the Defendants of the sum of N7,500 being the rate owed for the year 2000.
I make no order as to costs.
O. A. Adefope – Okojie
Judge.
Not unnaturally, being dissatisfied with the Judgment, the Appellant deemed it expedient to file the Notice of Appeal thereof in the lower Court on 14/07/10. The said Notice of Appeal is predicated upon a total of seven grounds. It is evident, that the Record of Appeal was duly served on the Appellant on 13/09/10. The Appellant’s brief of argument was filed on 22/10/10, while that of the Respondent was filed on 23/11/10, respectively.
On 18/09/12, when the Appeal last came up for hearing, the learned Counsel to the parties adopted the argument in the respective briefs thereof. Thus, resulting in reserving the Appeal for delivery of judgment.
In the Appellant’s brief of argument, a total of seven issues have been distilled seriatim from the seven Grounds of Appeal, to wit:
(1) Whether from the facts and circumstances of this case, the Learned Trial Judge had the jurisdiction to entertain the 1st Respondent’s Counter-Claim for N7,500.00 being the advertisement rate for year 2000. (Ground One).
(2) Whether from the facts and circumstances of this case, the 1st Respondent was entitled to Judgment in the sum of N7,500.00 being advert rate for year 2000. (Ground Two).
(3) Whether the Learned Trial Judge rightly held that Exhibits D5 and D6 are genuine, valid and subsisting judgment/order of the Magistrate Court in Charge No.LE/AD/022/2000. (Ground Three).
(4) Whether the Learned Trial Judge was right in holding that the Respondents were at all times on 19th April, 2000 lawfully on the Appellant’s office premises. (Ground Four).
(5) Whether from the facts and circumstances of this case, the Respondents’ presence in the Appellant’s office premises on 19th April, 2000 was in breach of the Appellant’s constitutional right to privacy under S.37 of the 1999 Constitution. (Ground Five).
(6) Whether from the facts and circumstances of this case, the Learned Trial Judge’s assessment and award of special damages in the sum of N15,000.00 for the Respondents unlawful seizure of the Appellant’s generator from 19th April, 2000 till judgment of the Court was adequate, equitable, fair and just. (Ground Six).
(7) Whether from the facts and circumstances of this case, the Learned Trial Judge denied the Appellant his right to fair hearing. (Ground Seven).
The Appellant submitted on issue No.1, that in view of the judgment/order of the Magistrate Court (in charge No.LE/AD/022/200), the lower Court had the jurisdiction to entertain the 1st Respondent’s claim for the sum of N7,500.00, being the advertisement rate for the year 2000 owed by the Appellant.
Allegedly, issues were joined by both parties on whether the said judgment/order of the Magistrate Court was genuine, valid and subsisting. It was contended, that having found that the said judgment/order of the Magistrate Court was genuine, valid and subsisting, the trial Court had no jurisdiction to entertain same nor make an order thereon. This is because the issue decided by the Magistrate Court in question has become res judicata. See THE HONDA PLACE LTD. v. GLOBE MOTOR HOUSINGS NIG. LTD. (2005) 14 NWLR (pt. 945) 273 at 296 Paragraphs E – F; NTUKS v. NIG. PORTS AUTHORITY (2007) 13 NWLR (pt. 1051) 392 at 417 paragraphs A – C; 412 paragraph G; MADUKOLU v. NKEMDILIM (1962) SCNLR 341; (1962) NSCC 374.
Thus, the Court has been urged upon to resolve the first issue in favour of the Appellant, and accordingly set aside the award of N7,500.00 Counter-Claim to the Respondent.
On issue No.2, it was essentially contended, that there was no basis for the granting of the Counter-Claim. The Court has been urged to so hold, and accordingly resolve the said issue in favour of the Appellant.
On issue No.3, it was submitted, inter alia, that ordinarily, the Court should totally reject exhibit 5 for being a document that was not signed by the presiding Magistrate, therefore totally worthless. See OMEGA BANK (NIG) PLC v. OBC LTD. (2005) 7 NWLR (pt. 928) 547.
It’s also alleged that both Exhibits 5 & 6 were inconsistent and hurriedly manufactured by Respondents, thus ought to be rejected by the Court. See YUSUF v. OBASANJO (2005) 18 NWLR (Pt. 956) 96 at 214 paragraphs E – R. Accordingly, the Court has been urged to resolve issue No.3 in favour of the Appellant.
On issue No.4, it was submitted that the Appellant has pleaded severally that the Respondents presence in his office on 19/04/2000 was illegal, unlawful and unconstitutional, thus has constituted trespass in law. By sealing the Appellant’s office, seizing and carting away the generator thereof, the Respondents were allegedly liable to trespass. See AJIBULU v. AJAYI (2004) 11 NWLR (Pt. 885) 458 at 481 paragraph E; ANYANWU v. UZOWU AKA (2009) 13 NWLR (Pt. 1159) 445 at 473 paragraph G; 474 paragraph C.
The court has been urged to equally resolve the fourth issue in favour of the Appellant.
On issue No.5, it was contended, that having established the fourth issue, the Appellant is entitled to damages for the Respondents’ breach of the constitutional rights thereof. The Court has been urged to resolve issue No.5 in favour of the Appellant.
On issue No.6, it was submitted that the trial Court was wrong to have foisted an obligation, which did not exist in law, upon the Appellant. See ANAMBRA STATE ENV. SANITATION AUTH. v. EKWENEM (2009) 13 NWLR (Pt. 1158) 410 at 439 – 440 paras. G – B; OSHO v. FOREIGN FINANCE CORP. (1991) 4 NWLR (Pt. 184) 157 at 202.
It was equally argued, that the Appellant claimed and strictly proved special damages. Thus, the Court is duty bound to award the special damages (claimed for). See ELIOCHIN (NIG.) LTD. v. MBADIWE (1986) 1 NWLR (Pt. 14) 47; ANAMBRA STATE ENV. SANITATION AUTH. v. EKWENEM (supra); WIEDMANN v. OLUWA (supra) at 308 lines 2 – 7; UNIVERSAL TRUST BANK vs. OZOEMENA (2007) 3 NWLR (Pt. 1022) 448; DAGGASH VS. BULAMA (2004) 14 NWLR (pt. 892) 144; AGBO v. STATE (2006) 6 NWLR (Pt. 977) 545; NIG CUSTOMS SERVICE v. BAZUAYE (2006) 3 NWLR (pt. 967) 363.
The Court has been urged to thus resolve the sixth issue in favour of the Appellant.
On the 7th and last issue, it was submitted, inter alia, that the trial Court has failed in its duty to consider and pronounce on all the issues properly placed before it. See BAYOL v. AHEMBA (1999) 10 NWLR (Pt. 623) 381.
Allegedly, that failure by the lower Court to consider and pronounce on the various issues canvassed before it, and failure to follow all binding decisions cited, has amounted to a failure to hold the scale of justice evenly between the parties. The Court has been urged to so hold, and accordingly resolve the seventh issue in the Appellant’s favour.
Conclusively, the Appellant has urged upon the Court to allow the Appeal, and grant all the reliefs sought.
On the other hand, the Respondents have adopted all Appellant’s seven issues for determination of the appeal. Arguing both issues 1 & 2 together, it was submitted, inter alia, by the Respondents that the Appellant cannot rely on the same judgment, he challenged to be fake, to plead estoppel per rem judicata. It is trite, that a person cannot approbate and reprobate. See LONGE v. FBN PLC (2006) 3 NWLR (Pt. 967) 250.
Accordingly, the Court is urged upon to resolve both issues 1 & 2 in favour of the Respondents.
On issue 3, it was contended, that the lower Court rightly held that exhibits D5 & D6 were genuine, valid and subsisting judgment/order of the Magistrate Court in charge No.LE/AD/022/2000.
It is for the Court (not Appellant) to so declare an order fake. See BABATUNDE v. OLATUNJI (2007) SC 9; SPDC v. OLAREWAJU (2008) 18 NWLR (Pt. 1118) 7; IDRIS v. ANPP (2009) 18 NWLR (Pt. 1088) 35.
The Court has been urged to resolve issue No.3 in favour of the Respondents.
On issue No.4, it was submitted, that the Respondents’ presence (at the Appellant’s premises) was lawful, thus does not amount to a breach of the Appellant’s constitutional right of privacy: Sections 7(1) & (5), 45(1) of the 1999 Constitution.
That, the Court’s order remains valid until it is set aside. See BABATUNDE v. OLATUNJI (2002) 2 S.C. 9; FIDELITY BANK PLC v. MT “TABORO” (2009) 8 NWLR (Pt. 1142) 87; IDRIS v. ANPP (2009) 8 NWLR (Pt. 1088) 35.
It was equally contended, that the order of the Court in question was neither challenged, nor was the supervisory or appellate jurisdiction of the lower Court invoked by the Appellant. Thus, the Appellant is estopped from raising this issue in the lower Court. See AJAYI v. NURTW (2009) 9 NWLR (Pt. 1144) 426. See also Section 40 of the Magistrates Court Law (of Lagos State) 1994; Sections 15, 47 & 42 of the Sheriffs and Civil Process Act; Order 1 Rule 9 of the Judgment (Enforcement) Rules, respectively.
The Court has been urged to resolve issue No.4 in favour of the Respondents.
On issue No.5, a reliance was placed on Sections 7(1) & (5), 37, 44(1), 45(1) of the 1999 Constitution, to the effect, inter alia, that the Respondents’ action in question did not constitute an infringement of the Appellant’s fundamental right. See SALAMI v. GOVERNOR OF OGUN STATE (1985) SC NLR 816. The Court has been urged to thus resolve the fifth issue in favour of the Respondents.
On issue No. 6, it was submitted, inter alia, that the Appellant went out of his way to create damages arising from his own failure to perform his civil duty, thus he cannot take advantage of his own wrong. See BUHARI v. OBASANJO (2005) 2 NWLR (Pt. 910) 321; FBIR v. IDS LTD. (2007) 8 NWLR (Pt. 1144) 623; OSHIOMHOLE v. FGN (2009) 8 NWLR (Pt. 1035) 64; DUNKIRK COLLIERY CO. v. LEVER (1878) 9 CH.D 20 at 20; BRITISH WESTINGHOUSE ELECTRONIC AND MANUFACTURING CO. LTD v. CONSERGROUNICS ELECTRONTC RLY CO. OF LONDON (1912) AC 673 at 689.
The Court has been urged to so hold.
On issue No.7, it was submitted, inter alia, that the lower Court has answered all the issues for determination, thus it has no jurisdiction to inquire further as if it was sitting as an appellate Court.
On the whole, the Court has been urged to accordingly dismiss the Appeal, with substantial costs.
The Appellant was not done yet. In the Reply Brief thereof, he has extensively responded to all the seven issues canvassed in the Respondents brief. On the whole, the Appellant has once more urged upon the Court to allow the Appeal, and accordingly set aside the Judgment of the Court below.
As alluded to above, the seven issues formulated in the Appellant’s brief of argument have been adopted by the Respondents in the brief thereof. I have equally adopted the seven issues in question for the purpose of determining the appeal, anon.
ISSUES 1, 2 & 3:
Issues 1, 2 & 3 raise the vexed question of whether the lower Court had the jurisdiction to entertain the 1st Respondent’s Counter-Claim; whether the 1st Respondent was entitled to Judgment in the sum of N7,500 awarded thereto; and whether exhibits D5 & D6 were genuine, valid and subsisting judgment/order.
It’s evident from the Record of Appeal (page 225), that the Respondents’ Counter-Claim against the Appellant is to the effect, inter alia, thus:
i. That payment of advertisement rate being owed since 2000 till date calculated at N7,500 yearly.
PARTICULARS OF COUNTER-CLAIM
i. 7,500 being rate owed since 2000 – 2009 – 67,500.
The lower Court, in its wisdom, refused the reliefs sought in the said Counter-Claim –
“Save the award in favour of the Defendants of the sum of N6,500 being the rate owed for the year 2000.”
The vexed order of the Magistrate Grade III Lagos (dated 10/3/2000), alluded to in both briefs of argument, is to the following effect:
“Order is granted as marked for L.I.L.G. to seal up the premises of Seak Associates, Igbosere Road, Lagos, in accordance with Sec. 12(1) of the L.I.L.G. Bye-Law No.1 1997 control of advertisement.”
The proceedings of the Magistrate Court, Lagos in question might be somewhat irregular. Most ironically, however, it’s rather apparent that there was no appeal against the said order. Thus, not surprisingly in my view, the Court below came to the conclusion thus:
…However, the appellate jurisdiction of this Court has not been invoked, neither have prerogative writs been filed, seeking an Order of certiorari seeking to quash the orders made by the Magistrate Court. This Court can thus not interfere with a subsisting order of a Court of competent jurisdiction. (page 336, lines 1 – 10).
Hence, in view of the above highlight, the Court below was absolutely right in coming to the conclusion, as it did, that the order of the Magistrate Court in question was “a subsisting order of a Court of competent jurisdiction.”
The fact that the parties in the Magistrate Court’s case and the instant case are the same, and that the subject-matter arose from the same transaction, notwithstanding. The decision of the apex Court in the case of HONDA PLACE LTD v. GLOBE MOTOR HOLDINGS NIG. LTD (supra), et al, cannot in any way help the Appellant’s case, for the obvious reasons alluded to above.
It was the contention of the Appellant, that the Magistrate Court’s decision/order was fake. Thus, it would most certainly be preposterous for him to have relied upon the alleged fake decision/order to make a plea for estoppels per res judicata.
Yet, it’s a trite law, that a party cannot approbate and reprobate: LONGE v. FBN PLC (2006) 3 NWLT (pt. 967) 250.
In the circumstance, issues 1, 2 & 3 ought to be, and same are hereby answered in the positive, and accordingly resolved against the Appellant.
ISSUES 4 & 5:
Apparently, issues 4 & 5 are birds of the same feather. Thus, they should be determined together. The two issues raise the question of whether the lower Court was right in holding that the Respondents’ presence in the Appellant’s premises (on 19/04/2000) was lawful and not in breach of the Appellant’s constitutional right to privacy, under Section 37 of the 1999 Constitution.
Invariably, the Appellant’s case was that the Respondents’ presence in his office premises on 19/04/2000 in question was “illegal, unlawful and unconstitutional and therefore constituted trespass.” In that regard, the Court below (page 335 lines 14 – 17 of the Record) came to the conclusion on the issue thus:-
In the circumstances of this case, the question is whether the Defendants were lawfully on the premises of the Claimant. I answer this question in the affirmative. The 1st Defendant, by law, I hold, is constitutionally empowered to collect rates and regulate, outdoor advertising.
Undoubtedly, the above holding by the Court below is aptly unassailable. Indeed it’s trite, that the Lagos Island Local Government Council (1st Respondent) is one of the 768 Local Government Areas created pursuant to the Provision of Section 3 (6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. By virtue of the provision of the said Section 3 of 1999 Constitution –
“(6) There shall be seven hundred and sixty eight Local Government Areas in Nigeria as shown in the second column of part 1 of the First Schedule to this Constitution and six area Councils as shown in part 11 of that schedule.”
Instructively, Under part 1 of the First Schedule to the 1999 Constitution, the 1st Respondent has been listed as one of the twenty Local Government Councils making up the entire Lagos State. As a matter of principle and policy, the system of Local Government by democratically elected Local Government Councils has been duly guaranteed under the 1999 Constitution thus:
7. (1) The system of Local Government by democratically elected Local Government of every State shall, subject to Section 8 of this Constitution ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such Councils.
In accordance with the Fourth Schedule to the Constitution, the main functions of the 1st Respondent, nay any other Local Government for that matter, shall include –
(a) The consideration and the making of recommendations to a State Commission on Economic Planning or any similar body on:-
(i) The economic development of the State, particularly in so far as the areas of authority of the Council and the State are affected.
(b) Collection of rates, radio and television licences…
Thus, as rightly held by the court below, the Respondents were, by law, constitutionally empowered to collect rates and regulate outdoor advertising.
What’s more, by paragraphs 9, 10 & 11 of the defence witness No.1 (Femi Folorunsho) deposition on oath, the Respondents’ action and presence on the Appellant’s – office premises was pursuant to the execution of the Magistrate Court’s order in question.
Most ironically, however, the Appellant, for reasons best known thereto, had not deemed it expedient to appeal against the order in question. Yet, it’s a well settled principle, that a decision or order duly given by a Court of competent jurisdiction, remains valid until otherwise set aside by a competent appellate Court. See BABATUNDE v. OLATUNJI (2002) 2 SC 9; FIDELITY BANK PLC v. MT “TABORO” (2009) 8 NWLR (Pt. 1142) 87.
Hence, in my considered view, the Court below was absolutely right when it, inter alia, held that:
“However, the Appellate jurisdiction of this Court has not been invoked, neither (sic) have prerogative writs been filed, seeking an order of certiorari seeking to quash the order made by the Magistrate Court. This Court can thus not interfere with a subsisting order of a Court of competent jurisdiction.”
Undoubtedly, having failed to invoke the appellate jurisdiction of the lower Court (by way of an appeal thereto), this Court lacks the jurisdictional competence to question and quash the trial Magistrate Court’s order in question. See Section 28 of the High Court Law Cap. 43, Laws of Lagos State of Nigeria 2004 thus:-
28. Jurisdiction in appeals and case stated
The High Court shall have appellate jurisdiction to hear and determine all appeals from the decisions of the Magistrates’ Courts in civil and criminal causes and matters as well as cases stated by Magistrates in accordance with the relevant provisions of the Constitution of the Federal Republic of Nigeria relating to appeals.
See also Sections 240 & 241 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
Thus, both issues 4 & 5 ought to be, and same are hereby answered in the positive, and accordingly resolved against the Appellant.
ISSUE NO.6
The 6th issue raises the vexed question of whether, or not, the lower Court’s assessment and award of the sum of N15,000.00 as special damages to the Appellant for the unlawful seizure of the Coleman 5.0KVA generator thereof (on 19/04/2000) by the Respondents, was adequate, equitable, fair and just.
At page 336, lines 16 – 23 of the Record, the lower Court was recorded to have held thus:
It is my opinion, however, that the Defendants did not have the authority to vary the order of the Magistrate Court. If, for some reasons, the order was incapable of being enforced, the 2nd and 3rd Defendants should have gone to the Court to seek the variation of the Court’s order. This, they did not do. I hold that the seizure of the Claimant’s generator was unlawful. Thus while resolving the 2nd and 3rd issues in favour of the Defendants. I resolve the 1st issue for determination in favour of the Claimant.
The Court below, in its wisdom thus came to the following conclusion –
I thus hold, taking the circumstances of this case in to consideration that the Claimant is entitled to special damages of N15,000.00 being the cost of hiring a generator for one week.
In conclusion both the Claimant’s case and the Counter-Claim of the Defendants succeed in part.
I refuse the reliefs sought by the Claimant save the following:-
(1) I make an order directing the Defendants to return to the Claimant forthwith the Claimant’s Coleman 5.0KVA generator in a good working condition which generator was seized by the Defendants on 19th April 2000.
(2) I award the sum of N15,000.00 to the Claimant being the cost of hiring generators for the period of one week.
Most particularly, paragraphs 19, 18, 20, 21, & 22 (d) & (c) of the amended Statement of Claim deal with special damages sought by the Appellant. Paragraph 7 of the amended Statement of Claim is to the effect that:-
7. The action of the Defendants and their accomplices caused commotion and pandemonium within the building, housing the Plaintiff’s office and its environs.
Terrorizing and harassing the Plaintiff’s staff, his customers/clients and other people around, the Defendants and their accomplices ransacked the Plaintiff’s office and carted away the Plaintiff’s brand new Coleman 5.0KVA generator valued at N135,000.00 being used to run the office.
By the above paragraph, the actual value of the Coleman 5.0KVA generator in question has been put at N135,000.00. Whereas, the cost of hiring generators incurred by the Appellant for the period between 24/07/2000 and 16/12/2000 was put at N315,000.00. That’s not all. It was postulated at page 21, paragraphs 4.57 & 4.58 of the Appellant’s brief that:-
Thus as at 22nd April, 2010 being the date of the judgment of the Court below, the Appellant had spent a total of N9,927,500.00 i.e. N6,707,500.00 for the period 8th January 2004 to 30th April, 2007 plus N3,220,000.00 for the period of 1st May, 2007 till 22nd April, 2010.
…The Appellant’s entitlement to judgment in the sum of N9,927,500.00 being the hiring cost of generators from 8th January, 2004 to 22nd April, 2010 is cognisable in law, as the law sees actions of this nature as an action for restitution rather (than) an action for tort.
It’s a trite and well settled doctrine, that the term damages denotes an amount of money claimed by or ordered to be paid (by a Court) to a person as compensation for loss or injury. It equally connotes the sum of money which a person wronged is entitled to receive from the wrong doer as compensation for the wrong. See CBN v. BECKETI CONSTRUCTION LTD. (2012) ALL FWLR (Pt. 620) 1266 at 1296 Paras. G – H.
General damages, properly so called, are by nature compensatory (damages) for the harm or wrong that usually results from tort for which a party has sued that the harm is so obvious, or reasonably expected, thus need not to be specifically claimed (pleaded). Also termed direct necessary damages, et al. Instructively, special damages relate and are allegedly sustained in the circumstances of a particular wrong. To be grantable (awardable), special damages must be explicitly, and in most unequivocal terms, pleaded (claimed) and proved. Also termed particular damages. See BLACK’S LAW DICTIONARY, 9th Edition, 2009 at 448.
It’s a well settled principle, that: –
Claims for loss of profits are in the nature of special damages which invariably have to be particularized or specified in the Plaintiff’s pleadings in order that he may be allowed to give evidence thereon by discharging the usual evidential burden of proof in civil cases i.e. preponderance of evidence. Any judgment on such claim and award of damages must be predicated on legal evidence of the highest probative value and weight.
See CBN VS. BECKITI CONSTRUCTION LTD. (supra) at 1298 paras. E – H; OBERE v. BOARD OF MANAGEMENT OF EKU BAPTIST CHURCH (1978) 1 LRN 246; (1978) 6 – 7 SC 15; BARAU v. CUBITIS (NIG.) LTD. (1990) NWLR (Pt. 152) 630; A.G. OYO STATE v. FAIR LAKES (1989) 5 NWLR (Pt. 121) 755; UWA v. INV. TRUST (1988) 5 NWLR (Pt. 92) 110; ODUMOSU v. ACB LTD. (1976) U SC 55.
In the instant case, it’s rather baffling to note that the Appellant who was owing the 1st Respondent the paltry sum of N7,500.00 upon the seizure of the Coleman 5.0KVA generator thereof deemed it expedient to hire another generator at the rate of N2,500.00 daily resulting in allegedly incurring bills amounting to the colossal sum of N315,000.00 in barely six months alone (i.e. from 24/07/2000 to 16/12/2000) alone. And according to the Appellant, at page 21 paragraph 4.58 of the brief thereof:-
Thus as at 22nd April, 2010 being the date of the judgment of the court below, the Appellant had spent a total of N9,927,500.00 i.e. N6,707,500.00 for period 8th January, 2004 to 30th April, 2007 plus N3,220,000.00 for the period 1st May, 2007 till 22nd April, 2010.
I would want to believe, that the above postulation by the Appellant is most superfluous, and rather unfortunate, to say the very least! As aptly postulated by the Respondents at page 15, paragraph 3.72 of the brief thereof:-
The Appellant by failing to pay tax as required by law has committed an offence. My Lord, damages and compensation are all equitable reliefs and he who seeks equity must come with clean hands and must also do equity. The Appellant having not paid his rate till date and failure to pay rates as required by law has committed an offence, the compensation sought by the Appellant is in consequence of his illegal act.
I think, I cannot agree more with the above apt submission. Undoubtedly, the wrongful “seizure” and “detention” of the Appellant’s 5.04 generator by the Respondents is rather uncondonable. However, there is every cogent reason for me to hold that the attitudinal disposition of the Appellant is equally reprehensible.
It was aptly, and rather authoritatively, held by the apex Court that:-
“No Court of law should lend its hand to a person or body bent on beating the efforts of government at collecting revenue by relying on technicalities of the law with a frugal aim to cheat government of its legitimate income.”
See F.B.I.R. v. I.D.S. LTD. (2007) 8 NWLR (Pt. 1144) 623; BUHARI v.OBASANJO (2005) 2 NWLR (Pt. 910) 321; OSHIOMHOLE v. FGN (2009) 8 NWLR (Pt. 1035) 64.
I would want to appreciate, that the lower Court was right in holding, as it did, to the effect, inter alia, that:-
“…the Claimant owed himself an obligation to mitigate his loss by paying the rate demanded and collecting his generator…”
As rightly postulated by the Respondents, the above decision of the Court below is in accord with the well laid down common law doctrine of mitigation. See BRITISH WESTINGHOUSE ELECTRONIC AND MANUFACTURING COY LTD v. UNDER GROUND ELECTRONIC RAILWAY COY OF LONDON (1912) AC 673 at 689, per Lord Heldone upholding the diction in DUNKIRK COLLIERY COY v. LEVER (1878 9 CH.D 20) thus:-
What the Plaintiffs are entitled to is full amount of damage which they have really suffered by a breach of contract the person who has broken the contract not being exposed to additional cost by reason of the Plaintiffs not doing what they ought to have done as reasonable men and the Plaintiffs not being under any obligation to do anything not in the ordinary course of business.
Hence in the light of the above postulations, the answer to issue No.6 is in the affirmative, and same is hereby resolved against the Appellant.
ISSUE NO.7
The seventh and last issue raises the very vexed question of whether or not the lower Court had denied the Appellant the right to fair hearing.
It was alleged by the Appellant, that several issues properly placed before the Court below were not pronounced upon, thus the failure of which has occasioned a miscarriage of justice to the Appellant. A total of six instances were highlighted where by the Court below failed to pronounce on issues raised by the Appellant. First, it was alleged that the lower Court failed to pronounce on the issue of the Respondents being trespassers ab initio in law in consequence of their unlawful seizure of the Appellant’s generator on 19/4/2000. Second, the lower Court was alleged to have failed to consider and pronounce on the issue of the alleged inconsistencies and contradictions in exhibits D5 & D6. Third, that the lower Court failed to pronounce on the issue of the legality or otherwise of a Local Government Authority or officials thereof executing the judgment/order of a Magistrate Court instead of the Sheriffs and Bailiffs of Court provided for in law. Fourth, that the lower Court failed to consider and pronounce on the issue of the existence or validity of the Lagos Island Local Government Bye Law No.1 of 1997, under which the Respondents purported to act. Fifth, that the lower Court failed to consider and pronounce on the Appellant’s claims for damages for disruption of his business and loss incurred, et al. Sixth, the lower Court was equally alleged to have failed to consider and apply or follow all the binding relevant decisions of the Court of Appeal and the Supreme Court of Nigeria cited by the Appellant.
In view of the far reaching postulations resulting in resolving each of the foregoing six issues in question against the Appellant, there is no gain saying the fact, that the issue No.7 is utterly preposterous, to say the least. As rightly held by the Court below in the judgment in question:-
“The appellate jurisdiction of this Court has not been invoked, neither (six) have prerogative writs been filed, see King(SIC) an order of certiorari seeking to quash the orders made by the Magistrate Court. This Court can thus not interfere with a subsisting order of a Court of competent jurisdiction.”
I think the lower Court was absolutely right in refraining from making pronouncement regarding the decision and order of the Magistrate’s Court in question. And the reason is not farfetched. As alluded to above, the Appellant, for reasons best known thereto, failed to appeal against the Magistrate Court’s decision/order in question, thereby unwittingly depriving the lower court of the necessary (appellate) jurisdictional competence to make any pronouncement on the validity or otherwise of the Magistrate Court’s decision/order in question. However, the lower court, in its wisdom, had held “that the seizure of the Claimant’s generator was unlawful.” That was essentially because the seizure of the generator, or any item at all, was apparently not within the purview of the Magistrate Court’s order.
Thus, in the light of the above postulations, the answer to issue No.7 shall be in the affirmative, and same is hereby resolved against the Appellant.
Before putting the last dot to this judgment, I have deemed it expedient to observe, at this point in time, that the attitudinal disposition of the Appellant is far from being patriotic. As a citizen (and entrepreneur), he owes a duty to the Government (the 1st Respondent inclusive) to voluntarily and conscientiously discharge the Civil responsibility thereof. It’s trite, that taxation vis-a-vis revenue generation (collection) is intricately interwoven with governance, as a matter of fundamental imperative. One cannot simply be divorced from the other. Just as in the medieval African monarchies, contemporary democracies all over the world rely on the citizens financial contributions for the sustenance of government and public good.
Instructively, the tripartite intricate link between TAXATION, DEMOCRACY and GOOD GOVERNANCE cannot be emphasized. As Brautigam has aptly postulated. –
The duty of paying for government legitimizes demands for services and accountability…
Democracies are built not only on periodic elections but also on a social contract based on bargaining over the collection and spending of public revenue.
See Ipaye, AR in TAXATION and GOOD GOVERNANCE IN A DEVELOPING DEMOCRACY, 15/12/10 at Page 10.
Consequently, having resolved all the seven issues against the Appellant, there’s no gain saying the fact that the Appeal, in its entirety, is grossly devoid of merit. Thus, without any further hesitation, the Appeal is hereby dismissed by me for lacking in merit. The judgment of the Court below in question, delivered by the Hon. Justice O. A. Adefope-Okojie on the April 22, 2010 is hereby affirmed.
The Respondents shall be entitled to N50,000.00 costs, against the Appellant.
SIDI DAUDA BAGE, J.C.A.: I had the special privilege of reading in draft the Judgment of my learned brother, SAULAWA, JCA, which I am in complete agreement with, that this Appeal is devoid of any merit. I will like however to add a few words of my own on the famous common law doctrine of mitigation.
The law imposes a duty on the plaintiff (Appellant as in this case) to take steps to avoid any losses which are avoidable. Persons against whom wrongs have been committed are not entitled to sit back and suffer loss which could be avoided by reasonable efforts or to continue an activity unreasonably so as to increase the loss. This well established rule finds its most authoritative expression the speech of Vis Court Hololane LC in the leading case of British Westing House Co. v. Underground Rly (1912) AC 673, 689, it was held:
“The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach, but this first principle is qualified by a second which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach and debars him from claiming any part of the damage which is due to his neglect to take such steps.”
There are various Nigerian authorities that followed this decision.
The case of Onwuka vs. Omogui (1992) 3 NWLR (pt. 230) 392, at 401 per Babalakin J.S.C. (as he then was).
”In law, a plaintiff is under an obligation to minimize damages – see cases of British Westinghouse Electric and Manufacturing Company Ltd. v. Underground Electric Railways Company of London Ltd. (1912) A.C. 673, and owners of Dredgers Liesboseh v. Owners of Steamship Edison (1933) A.C. 449. The evidence is that the plaintiff/respondent was the vehicle for conveyance of kerosene daily. It is therefore unreasonable for him to leave this vehicle idle in the defendant/appellant’s yard from 6/8/81 till 6/9/83.”
See also McGregor on Damages (14th Ed) page 153 paragraph 213; Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (pt 658) 668, at 683; Okongwu v. N.N.P.C (1989) 4 NWLR (pt. 115) 296, at 319 – 320.The appellant in this Appeal was under a duty to mitigate the losses suffered by him, with the action of the respondents.
For the detailed reasoning contained in the lead Judgment, I too have dismissed this Appeal for lacking in merits. In consequence therefore, I have also affirmed the Judgment of Hon. Justice O.A. Adefope-Okojie delivered on April 22, 2010.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: My Lord, Ibrahim Mohammed Musa Saulawa J.C.A, had availed me the benefit of reading his lead Judgment in draft before now.
I have painstakingly studied the said lead Judgment and have no difficulty nor hesitation in agreeing with and adopting same in it’s entirely as mine.
My lord with an eagle eye captured the essence of the Appeal and so succinctly and meticulously considered and resolved all the contending live issues such that I have nothing more useful to add.
Appeal dismissed by me also.
Appearances
ANDREW IGBOEKWE with JEUGO & JC UGO Esq.For Appellant
AND
H. O. GIWA with M. O. SADIQFor Respondent
