DICKSON FRIDAY DICKSON & ANOR. v. NATHANIEL MOSES ASSAMUDO
(2018)LCN/12446(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of February, 2013
CA/C/43/2010
RATIO
EVIDENCE: DUTY OF EVALUATION AND ASSESSMENT
“Let me restate the elementary principle of law that it is the party in the case who desired and therefore approaches the court to enter judgment in his favour on the basis of facts asserted by him that owes and bears the initial evidential burden of proving those facts to the satisfaction of the court and on the preponderance of evidence. He it is, who would lose if no evidence at all was adduced in the case and so has the legal burden of proof placed on him by law. See sections 131, 132 and 133(1) of the 2011 Evidence Act (Sections 135, 136 and 137(1) of the 2004 Act), Amodu v. Amode (1990) 5 NWLR (150) 356; Kwasalba (Nig) Ltd. v. Okonkwo (1992) 1 NWLR (218) 407; Dawodu v. NNPC (1998) 2 NWLR (538) 355; Itauma v. Akpe-Ime (2000) 7 SC (Pt.II) 24; Archibong v. Ita (2004) 4 SC (Pt.1) 108. Another principle of law in judicial practice that had been firmly established is that the duty of evaluation or assessment of the evidence adduced by the parties in a case is primarily that of the trial court with the unique advantage of physically seeing and hearing oral evidence from the witnesses in addition to documentary evidence that may also be adduced. See T.A.S.A. Ltd. v. I.A.S. Cargo Airlines (1991) 7 NWLR (202) 156; Ogoala v. State (1991) 7 NWLR (202) 156; Ogoala v. State (1991) 2 NWLR (175) 509; SHA v. KWAN (2000) 5 SC, 178 Adebayo v. Adusei (2004) 4 NWLR (862) 44; Agbi v. Ogboh (2006) 11 NWLR (990) 65; Fagbenro v. Arobadi (2006) ALL FWLR (310) 1575.” PER MOHAMMED LAWAL GARBA, J.C.A.
LAND LAW: TENANCY AGREEMENT
“A tenancy relationship is created by an agreement entered into by the landlord; owner of the land or buildings thereon and the tenant, who desires the use and enjoyment of possession of the said land or buildings on the terms and conditions freely agreed to (which may be regulated by statutes in some cases) by the two of them. In law, there are two categories of tenancies; a contractual tenancy and a statutory tenancy. See Pan Asian African Co. Ltd. v. NICON (1982) 9 SC 1; African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (200) 391.” PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
1. DICKSON FRIDAY DICKSON
2. EMMANUEL FRIDAY DICKSON Appellant(s)
AND
NATHANIEL MOSES ASSAMUDO Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
By a writ of summons dated the 27/5/99 taken out of the Registry of the High Court of Akwa Ibom State at Eket, the Respondent had sued one Friday Dickson, (now deceased) and the two Appellants, his children, “for unlawful trespass and illegal acquisition of possession of the apartment occupied by the plaintiff without due legal process and seizure/damage of the plaintiff’s personal belongings”.
It was further endorsed on the writ as follows:
“Wherefore the plaintiff claims against the defendants jointly and severally as follows:
N3 million as special and general damages for unlawful trespass, costs of property seized, damaged or exposed to heavy rains outside the apartment occupied by the plaintiff.”
Eventually, in an amended statement of claim dated 20/2/07 filed on the same date, after the death of the Appellant’s father, the Respondent had claimed as follows against the Appellants in paragraph 25:-
“25. WHEREFORE the plaintiff claims from the Defendants jointly and severally the sum of N5,000,000.00 (Five Million Naira) being aggravated general damages for trespass to chattels, unlawful ejection and damage to chattel belonging to the plaintiff.”
After trial of the case, the High Court in a judgment delivered on the 19/11/09, found for the Respondent and ordered the Appellants to jointly and severally pay him aggravated general damages in the sum of Three Million and Five Hundred Thousand Naira (N3,500,000.00).
This appeal is against that decision because the Appellants were not satisfied therewith. The notice of appeal was filed 5/2/2010 and it contained two (2) grounds of appeal. In the Appellants’ brief filed on the 10/8/2010 but deemed on 30/10/10, Mr. Livinus Udofia, Esq., learned counsel for the Appellant had raised two (2) issues for determination as follows:
“1. Whether the learned trial judge was right in finding and holding that the appellants were liable to pay damage to the plaintiff.
2.Whether the learned trial judge was not biased in evaluating the evidence adduce before him by the appellants.”
The Respondents brief was filed on the 18/4/12 but deemed on the 27/6/12 and the learned counsel for the Respondent, Mr. Chris O. Ezeibe, Esq., had formulated a sole issue therein, for decision in the appeal. It is thus:
“whether the trial learned Judge was right in entering judgment against the Appellants.”
Although the learned counsel for the Appellants did not indicate from which of the two (2) grounds of the appeal his issues were distilled, as required by diligent and established practice of brief writing, the issues can be said to be derivable from the two grounds of appeal. Perhaps I should point out that it would be merely simplistic to assume that because there two (2) grounds of appeal, the two (2) issues must necessarily have been derived from them.
I intend to use the Appellants’ issues in the determination of the appeal. At the hearing of the appeal on the 5/12/12, the briefs were adopted and relied on by the learned counsel for the parties as the submissions in support of their respective positions in the appeal.
The submissions by the learned counsel for the Appellant on his issue 1 were that the Respondent had admitted that the late father of the Appellants was his landlord who admitted the allegation of trespass to his properly in a charge at a Magistrate Court. That the Respondent did not allege or complain against the Appellants for the trespass with which their late father was charged and that they were not present when the alleged trespass was committed. It was further submitted that the Respondent only brought the Appellants in the case before the High Court when he asserted that they joined their father in throwing his property out of the house he rented from him and that the proceedings before the Magistrate Court, tendered before the High Court as Exhibit ‘B’, show that the Respondent did not complain against the Appellants but their father, atone in his evidence in that court.
Also, that the Respondent did not call any other witness to say that the Appellants in fact participated in the trespass to his rented house since he did not witness it. The cases of Abubakar v. Joseph (2008) ALL FWLR (432) 1065 and Int’l Messenger Nig. Ltd. v. Pegafor Ind. Ltd. (2005) ALL FWLR (270) 2018 were cited on the requirements of section 135 of the Evidence Act which the Respondent was said not to have satisfied. In further arguments, learned counsel said the action against the Appellants was not instituted against them as administrators of their late father’s estate and the estate was not sued or in issue in the case, for which the finding that they are administrators is not supported by the Respondent’s case.
In addition, it was the contention of counsel that Appellants had in their defence testified that they were at Ikot Abasi and Calabar respectively on the day of the alleged trespass to the Respondent’s properly which was supported by the fact that the Respondent did not complain against them to the police in respect of the trespass. He submitted that the finding by the High Court at page 172 of the record of appeal that the Appellants did not deny that the Respondents roof was removed and his properly thrown out of the house and because the suit was against the Appellants and their late father jointly and severally, they were liable, was incongruous with the facts of the case. The case cited by the High Court in the finding was said to be inapplicable because the Appellants’ father was not shown to have acted as their agent in the trespass which he personally admitted committing before the Magistrate Court. That there was no vicarious liability for an act committed by their father on the ground that they were his sons only.
On the issue 2, it was submitted by the learned counsel for the Appellants that the High Court did not properly evaluate exhibit ‘B’ but only used the demeanour of DW1 which had nothing to do with it to find the Appellants liable. That failure to evaluate the Exhibit ‘B’ by the High Court, according to counsel, has left the Appellants without remedy and we were invited to evaluate the exhibit under the provisions of Section 15 of the Court of Appeal Act, 2004 citing Okwejimnor v. Gbakeji (2008) ALL FWLR (409) 405; Odutola v. Sanya (2008) FWLR (400) 780 and Okedion v. FAAN (2008) FWLR (441) 914 for the invitation. Learned counsel had maintained that the Respondent did not mention the names of the Appellants in his complaint against their father for trespass which he did not witness. In conclusion, we were urged to allow the appeal.
For the Respondent, it was submitted that the Respondent’s case before the High Court was that the Appellants along with their late father committed trespass to his rented house and property in his absence. That the parties joined issues on the facts which the Appellants were said to have admitted and that the High Court was obliged to enter judgment for the Respondent. Section 75 of the Evidence Act and Ejimadu v. Delta Freeze Ltd. (2007) 13 NWLR (1050) 96 at 99 were cited as authorities for the submission. Furthermore, relying on Susainah (Trav. Vesser) v. Abogun (2007) 1 NWLR (1016) 456 at 477 among other cases, it was said that the High Court had duly exercised its duty in the evaluation of the evidence before it and ascribing value to it. That the High Court as a trial court, had the privilege to observe the demeanour of witnesses and assess their credibility which an appellate will be wary to interfere with. The case of Kazeem v. Mosaku (2007) 17 NWLR (1064) 523 at 545 was relied on and it was said by counsel that the High Court who saw the witnesses before it had properly assessed their credibility.
It was the further submission by counsel that the Appellants had in their defence said they had obtained letters of administration for their father’s estate including the subject of the action and so have stepped into the shoes of ownership of the property. According to him, without more, the Appellants are obligated to the respondent in damage in relation to wrong against him in the matter of the estate, citing Akinyemi v. Ojo (2011) 10 NWLR (1254) 188 at 202; Okomu Oil Palm Ltd. v. Okpame (2007) 3 NWLR (1020) 71 at 73.
Besides, argued counsel, since the Appellants were sued along with their father jointly and severally, the High Court was right to have found them liable. In conclusion, he said the Appellants have failed to show any grounds upon which the court can interfere with the decision by the High Court and so the appeal is lacking in merit, liable to be dismissed.
Before delving in to a consideration of the merit of the submissions by the learned counsel for the parties, I would briefly, state the facts leading to the claims before the High Court as set out in the Respondent’s Amended Statement of Claim which appears at pp. 94 – 103 of the record of the appeal.
The relevant facts are that the Respondent was a tenant who rented a two room house from the Appellants’ father at No.11 Afaha Uqua Road, Eket. That the Appellants’ father had served the Respondent with quit notices dated 13th January and 19th February, 1999 and a notice of intention to recover possession, on the 25th of March, 1999. That without an order of court, the Appellants’ father with their help and support, on the 19/2/99, removed the roof to the Respondent’s house in his absence as a result of which the house was flooded and the Respondent’s property damaged. Further, that on 4/4/99, the rooms of the Respondent’s house were broken into and the properly therein packed out by the Appellants’ father, with their support, some of which were damaged, once again, in his absence. That the Respondent reported the break-in to the police who eventually charged the Appellants’ father to the Magistrate Court. See paragraphs 1, 2, 4, 7, 8, 9, 10, 11, 13, 19, 20 and 21 of the Amended Statement of Claim by the Respondent.
Now, back to the Appellants’ issue 1. Their case, it may be recalled, is that the trespass alleged by the Respondent in the case was said to have been committed by their father alone, against whom the Respondent had complained to the police who charged him to the Magistrate Court and which he admitted. Exhibited ‘B’ was relied on by them.
I shall first say that the criminal charge against the Appellants’ father at the Magistrate Court in respect of the trespass the Respondent complained of, was a separate and distinct case from the civil claim for the tort of the trespass filed against the Appellants and their father before the High Court. Generally, trespass is a civil wrong recognized by the law as a tort of unauthorized interference with the possession of land, which for that purpose, includes any buildings or fixtures thereon, by a person who cannot show or does not have a better right or title to the land in question. Trespass is therefore the slightest unauthorized disturbance or interference with the exclusive possession of land by a person who has the right to retain it and to undisturbed enjoyment of it, by another who has no or cannot establish a better right to possession or title as the case may be. The action for trespass is based on exclusive possession and it lies against the whole world except one who can show better right to possession or title. See Foreign Finance v. L.S.D.P.C. (1991) 5 SCNJ 52 at 74; Shittu v. Egbeyemi (1996) 6 NWLR (457) 650 at 658; Tumo v Murano (2000) 12 NWLR (681) 370 at 391; Amakor v. Obiefuna (1974) 3 SC, 67 at 75; Imona Russel v. Niger Constr. Ltd. (1987) 3 NWLR (60) 298; Oluwole v. Abubakar (2004) NWLR (882) 549.
However, the tort of trespass may also be rendered a penal action by statute by making provisions for penalty in the circumstances that are specifically set out in the statute. Thus, apart from being generally a civil wrong which is actionable as a tort, trespass may also constitute an offence punishable under the provisions of a relevant statute and both the civil wrong and the offence may arise from the same set of facts, evidence of which can be used to prove each of them. As a result, the fact that the Appellants’ father alone was charged for the trespass complained of by the Respondent, which constituted an offence under the provisions of the Akwa Ibom State Criminal Code, would not prevent the Respondent from filing a civil action against the father and the Appellants for claims arising from the fact of the trespass, as a tort committed against him. The criminal trespass was for violation of the penal laws of the state while the civil tort of trespass was against the right of the Respondent to the exclusive possession of the house in dispute and his property said to be therein at the material time. The law is settled that the wrong or tort of trespass is actionable per se by a person who is in exclusive possession. Osho v. Foreign Finance Corp. (1991) 4 NWLR (184) 157; Adeniran v. Alao (1992) 2 NWLR (222) 350; Echere v. Ezerike (2006) ALL FWLR (323) 1597.
In the present appeal, there is no dispute, that the Respondent was a tenant to the Appellants’ father, who was the owner of the house in dispute and therefore the landlord. In other words, the relationship between the Respondent and the Appellants’ father at the time material to the case before the High Court was that of landlord and tenant in respect of the house in dispute. A tenancy relationship is created by an agreement entered into by the landlord; owner of the land or buildings thereon and the tenant, who desires the use and enjoyment of possession of the said land or buildings on the terms and conditions freely agreed to (which may be regulated by statutes in some cases) by the two of them.
In law, there are two categories of tenancies; a contractual tenancy and a statutory tenancy. See Pan Asian African Co. Ltd. v. NICON (1982) 9 SC 1; African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (200) 391. The Respondent’s tenancy, was a contractual tenancy by which he was let into lawful possession of the house in dispute by the landlord, on the terms and fulfillment of the conditions agreed to by the two of them. During the pendency of the tenancy agreement between them, the respondent had and was entitled to the peaceful and un-interfered, exclusive possession of the house in dispute upon the said terms and conditions agreed with the landlord. The rights generally conferred by a tenancy agreement on a tenant include the right to peaceful and exclusive enjoyment of the possession of the demised property and the right against unlawful, forceful or illegal ejection or even interference from any one including the landlord while the tenancy lasts. In fact, even where a tenancy expires or a tenant breaches any or some of the terms and conditions of the tenancy, the right against forceful or illegal ejection may still subsists in favour of a tenant and can only be determined by the procedure prescribed by law. In the case of Oni v. Dada (1957) SCNLR, 258, it was held by the Supreme Court that:
“Even if a tenant commits a breach of his agreement with his landlord, it does not justify the landlord taking the laws into his own hands by summarily terminating the tenancy or unlawfully ejecting the tenant.”
See also Elochin Ltd. v. Mbadiwe (1986) 1 NWLR (14) 47 at 60; Iheanacho v. Uzochukwu (977) 1 SCNJ, 128.
A reading of the facts in the pleadings of the Respondent which form the basis of the claim against the Appellants’ would show that they were said to have supported their father in the acts of the trespass committed while the Respondent was away or was not present at the house, subject of the trespass. These were the pleadings in paragraphs 4, 10, 12 and 13 of the Amended Statement of Claim. In support of these facts, the Respondent as PW1 testified in his evidence in chief that:-
“On 4/4/99 the landlord and the other defendants threw out my household properties from the house where I was living 4/4/99 was a Good Friday. At the time I was attending a retreat in my church. On my return I met my household properties of the veranda of the house, some at the backyard and some at the parlour of the landlord. On my return from the church I found another person already occupying that my house. Before he removed my properties from the house, the landlord had given notice to quit from the Magistrate’s court, Eket. He had also given me 7 days notice.”
Then at page 111, the Respondent continued that:
“After receiving Exhibit ‘A’, the defendants two days later removed the roof of the house and another two days later it rained and the rain damaged my properties in the house.”
Under cross examination, the Respondent had said he did not see the Appellants or who actually threw his property away or outside the house in dispute and that Appellants’ father was charged alone at Magistrate Court.
In the statement of defence to the Respondent’s case, the Appellants and their father who was then alive, had deposed to the facts that it was only the father alone and in the absence of the Appellants that broke the lock to the house in dispute and packed away the few things left in the room by the Respondent who was not present at the time. See paragraphs 5, 6, 12 and 14 of the statement of defence at pp. 46 – 50 of the record of the appeal. In his testimony, the 1st Appellant gave evidence in line with the pleadings in these paragraphs of statement of defence which was not shaken under cross examination.
Although the Respondent had filed a Reply to the statement of defence, facts in the statement of defence that it was the Appellants’ father alone who committed the acts of the trespass claimed by the Respondent were not controverted.
It is worthy of note that the Amended Statement of Claim was filed for the Respondent on 20/2/07 and deemed by the High Court on 11/6/09, almost three (3) years after the case for the defence was closed on the 14/8/2006.
Let me restate the elementary principle of law that it is the party in the case who desired and therefore approaches the court to enter judgment in his favour on the basis of facts asserted by him that owes and bears the initial evidential burden of proving those facts to the satisfaction of the court and on the preponderance of evidence. He it is, who would lose if no evidence at all was adduced in the case and so has the legal burden of proof placed on him by law. See sections 131, 132 and 133(1) of the 2011 Evidence Act (Sections 135, 136 and 137(1) of the 2004 Act), Amodu v. Amode (1990) 5 NWLR (150) 356; Kwasalba (Nig) Ltd. v. Okonkwo (1992) 1 NWLR (218) 407; Dawodu v. NNPC (1998) 2 NWLR (538) 355; Itauma v. Akpe-Ime (2000) 7 SC (Pt.II) 24; Archibong v. Ita (2004) 4 SC (Pt.1) 108.
Another principle of law in judicial practice that had been firmly established is that the duty of evaluation or assessment of the evidence adduced by the parties in a case is primarily that of the trial court with the unique advantage of physically seeing and hearing oral evidence from the witnesses in addition to documentary evidence that may also be adduced. See T.A.S.A. Ltd. v. I.A.S. Cargo Airlines (1991) 7 NWLR (202) 156; Ogoala v. State (1991) 7 NWLR (202) 156; Ogoala v. State (1991) 2 NWLR (175) 509; SHA v. KWAN (2000) 5 SC, 178 Adebayo v. Adusei (2004) 4 NWLR (862) 44; Agbi v. Ogboh (2006) 11 NWLR (990) 65; Fagbenro v. Arobadi (2006) ALL FWLR (310) 1575.
The attitude, generally, of an appellate court is not to interfere with the proper and correct performance of the trial court in the discharge of that primary function. The appellate court only interferes where a trial court either fails to discharge the duty at all or improperly did so and thereby drew wrong inferences for which the evidence before it does not provide support. See Odiba v. Azege (1991) 7 NWLR (206) 724; Adebayo v. Adusei (supra); Saleh v. Bank of the North (2006) All FWLR (310) 1600; Olodo v. Josiah (2010) 18 NWLR (1225) 653; Fashanu v. Adekoya (1974) 6 SC, 83 at 91; Oko v. Ntukidem (1993) 2 NWLR, 124 at 135.
In the present appeal, the Respondent bore the initial legal burden of adducing evidence before the High Court to prove the claims for trespass he made against the Appellants as required by law. Until he discharged that legal burden, the law is that the Appellants had nothing to disprove by way of defence to the claims. See Okonkwo v. Okonkwo (1998) 2 A.L.R.I. at 11; Ogwule Ankpa Agatu Co-op G.P.F Society v. N.A.C.B. (1999) 2 NWLR (590) 234 at 243 – 4; Agu v. Nnadi (2002) 18 NWLR (798) 103 at 128.
In both pleadings and evidence of the parties, there was no dispute that the roof to the house in dispute was removed in his absence and some property in the rooms taken out. In pleadings, the late father of the Appellants unequivocally admitted that he did so in the absence of the Appellants and alone. It should be noted that the fact that the Appellants’ father admitted the acts complained of by the Respondent alone did not reasonably mean that he personally used his own hands to either remove the roof or the property of the Respondent. The admission by him can only reasonably mean that he was personally responsible for the acts in law because he caused them. No evidence at all was called to show how the 82 year old landlord caused the roof and property to be removed from the house in dispute or who he used in doing so. The Respondent who was the only witness in the case for the claims, said he was not present when the acts he complained of were committed and that he did not see the Appellants participate in the acts. He only insisted that they participated because the Appellants were his landlord’s sons who also resided in the same compound and that the father was an old man who could not have committed the acts alone and so the Appellants must have supported and participated in the trespass. That was the story believed and relied on by the High Court, which was purely and clearly very speculative, to find that the Respondent had proved that the Appellants in fact and deed, committed the trespass claimed. The law is known that courts of law do not use or rely on speculations to arrive at their decisions in the case before them, but cold facts which are ossified by credible evidence adduced before them. See Edosa v. Zaccala (2006) ALL FWLR (306) 881; Olalomi v. Nig. Ind. Dev. Bank (2009) 7 MJSC (III), 136; Agharuka v. F.B.N. Ltd. (2010) 3 NWLR (1182) 465.
The acts of removing the roof to a house and the property alleged by the Respondent could not have been done in secrete or nocturnally by the landlord without any other person seeing it, particularly when the evidence by the Respondent himself shows that there were other tenants in the compound where he rented the house in question and whose roofs were said by him not to have been removed by the landlord. See the evidence-in-chief of the Respondent as PW1 at page 118 lines 4 – 6 of the record of appeal. Why did the Respondent not call any other witness who saw the Appellants commit the acts of trespass he claimed in order to support and provide some credibility to his ipse dixit in order to render his evidence probable and reliable? In the assessment of the evidence before it, the High Court had said that the Appellants had admitted that the roof to the Respondent’s house and property were removed by them, but that finding, with respect due to that court, is not borne out by the pleadings and evidence of the Appellants. The relevant pleadings in the Appellants’ statement of defence which I have referred to earlier, were to the effect that their father alone was responsible for the acts complained of by the respondent and in the testimony by the 1st Appellant, he maintained without effective challenge, that the Appellants did not participate in the commission of the acts and were in fact not present at the material time. However, can either the pleadings or evidence given in support thereof by the Appellants be said to amount to an admission of the claim for trespass? By the provisions of Section 20 of the 2011 Evidence Act (section 19 of the 2004 Act) an admission is a statement, oral or documentary, or conduct which suggest the inference as to any fact in issue or relevant fact, which is made by any of the persons, and in the circumstances, mentioned in the Act. In the case of N.A.S. Ltd. v. UBA Plc. (2005) 7 SC, 139 at 144, the Supreme Court had defined admission in the following terms:
“An admission, as defined in Black’s Law Dictionary, 6th Edition, 1990, page 47, “is a statement made by one of the parties to an action which amounts to a prior acknowledgement by him that out of the material facts relevant to the issues is not as he now claims.”
Similarly, the apex court had earlier in Ogunaike v. Ojayemi (1987) 3 SCNJ, 69 at 76, defined admission as;
“A statement, oral or written (expressed or implied) which is made by a party to a civil proceeding and which statement is addressed to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement.” See also Seismograph Services Ltd. v. Eyafe (1976) 9 & 10 SC, 135; Titiloye v. Olupo (1991) 7 NWLR (205) 519; Gabari v. Ilori (2002) 14 NWLR (786), 78.
The law is settled now that for admission in pleadings to be effective, it must be clear, unequivocal and unambiguous otherwise it would not be taken as true admission. Nnaemeka Agu, J.C.A. (later JSC) stated the law in NBN Ltd. v. Gurheric Ltd. (1987) 2 NWLR (56) 253 at 263 thus:
“I should recall the dicta of LORD GREENE in Ashie v. Heminson & Co. Publishers (1936) 1 Ch. Div., 489 at 502. A plaintiff who relies for proof of a substantial part of his case upon admission in the defence must in my judgment should that the matters in question are clearly pleaded and clearly admitted, he is not entitled to ask the court to read meaning into his pleading which upon a fair construction do not clearly appear in order to fix the defendant with an admission. I adopt this opinion…” See also Bello v. Iweka (1981) 1 SC, 101; Motunwase v. Sorungbe (1988) 5 NWLR (92) 90 at 102.
The pleadings and evidence of the Appellants before the High Court were unequivocal, direct and a compelling challenge and traverse of the Respondent’s averments that they participated in the acts he complained of in the case against them. The vehement and express challenge and traverse of the pleadings by the Appellants cannot by any stretch of imagination in law, be said to amount to an admission of the assertion by the Respondent that they participated in the acts he complained of as trespass to his house and property. There was no admission on the part of the Appellants either in the pleadings or evidence that they participated in removing the roof to the Appellants’ house and breaking into the rooms and throwing out his property therefrom. For the Respondent to succeed therefore on his assertions and claims against the Appellants, he had the legal burden of proof by adducing credible and sufficient evidence to support them. In my view, the Respondent did not adduce evidence which was credible and worthy of the probative value to meet the standard of proof on the balance of probability. His ipse dixit alone did not preponderate in the way of proving that the Appellants committed the acts of the trespass he claimed against them.
The High Court had made a finding that because the Appellants were sued jointly and severally along with their father, each of them was responsible for the damage irrespective of the extent of participation, relying on the case of Ifeanyichukwu Osondu Co. Ltd. v. Soljeh Bonen (Nig) Ltd. (2000) 5 NWLR (656) 322. The law is beyond argument that joint tortfeasors can be sued severally and jointly and each would be liable in damages for the injuries caused by their joint acts which amounted to the tort in issue. See Izuoqu v. Emuwa (1991) 4 NWLR (183) 78; Iyere v. B. F. & F. M. (2008) 12 MJSC, 102. However, it is to be noted that before the issue of joint or several liability of joint tortfeasors arises, there must be evidence of participation of the persons or parties sued in the commission of the tort complained of, first, Mere presence of a person at the scene of an alleged tort without evidence of participation directly or by conduct in the commission of the tortuous acts would not or better, cannot make a person liable for such acts simply because he was sued along with the tortfeasors.
This was the case of the Appellants who simply because they are sons of the Respondent’s landlord who expressly admitted committing the tortuous acts in question in the pleadings before the High Court and live at the same address as the Respondent, without any evidence howsoever, that they actually participated in the commission of the acts, were found liable for the tort. Mere presence or relationship, no matter how close it might be and I dare say, not even a husband and wife who are considered as one in marriage, would Ipso facto incur a tortuous liability, in law. For liability to arise, there must be facts and proof of participation in any manner against the persons sued.
The case of Osondu v. Soleh Boneh (supra) relied on by the High Court on the joint tortfeasors liability was essentially decided on the issue of the vicarious liability of the master for the tort committed by a servant while in the discharge of the duties of his employment with the master. The case did not decide that even where there was no evidence to establish that the servant had committed the tort, the master would still be liable. Once more, the crucial issue that called for decision before the High Court was whether there was cogent, credible and sufficient evidence to prove that the Appellants had participated in the tortuous acts complained of by the Respondent and not whether the acts were committed against the house in question and the Respondent’s property.
In its judgment, the High Court had stated that:-
“When the plaintiff and DW1 were each in the witness box, I carefully watched their demeanour. DW1 did not impress me as a witness of truth.” See page 174, lines 10 – 12 of the record of appeal.
have said it before now that it is the primary duty of a trial court to evaluate oral evidence of witnesses who testified before it in a case particularly having the opportunity to see and hear them physically. That opportunity enables a trial court to experience the subtle and often influencing nuances of the witnesses in giving account of facts upon which it bases its findings in the case based on their credibility. However in the assessment of the credibility of a witness, a trial has a duty to state clearly the reason/s why a particular witness lacks credibility and his evidence not worthy of any probative value. It is not enough or sufficient for a trial court to simply say a witness “did not impress me as a witness of truth” without stating the basis of such an assessment. Such a statement can be likened to the now familiar phrases or statements by trial courts that “I believe” or “I do not believe” the evidence of a witness without stating the basis or reasons, in the judgment why the witness is believed or not believed. There is nothing sacrosanct about such statements by trial courts in their assessment or evaluation of the credibility of a witness without demonstrating in the judgment, reasons on which they are based. Using such statements only to impugn the credibility of a witness is in my view, not a proper and correct evaluation or assessment of the evidence by a trial court. In its judgment, the High Court, immediately after the above statement, found that the Appellants “trespassed to the plaintiff’s properties” and “took the law into their hands and resorted to self help in removing the roof of the plaintiff’s house…..” when in fact, as demonstrated earlier, there was no credible evidence that the Appellants had participated in the alleged trespass. The finding was therefore not based on the evidence and not supported by the evidence before the High Court. The finding cannot and should not be allowed to stand if it was not supported by the evidence before the High Court. The preponderance of the evidence before the High Court shows that the Appellants did not participate in the commission of the trespass which was personally admitted by their father, who the evidence did not show to be Appellants’ servant or employee, for them to incur vicarious liability.
The issue of the Appellants’ liability, as administrators of their late father’s estate, including the house in question, did not arise from the decision by the High Court. For that reason, it is liable to be discountenanced for being incompetent. Okpala v. Okaror (1991) 7 NWLR (204) 510; University of Ilorin Teaching Hospital Management Board v. Ajide (2006) ALL FWLR (326) 282.
In addition,the tort of trespass is personal to the person against whom it was claimed and unless he was found liable for it by a court of law while he was alive, it dies with him when he dies and his estate cannot properly be held liable after his death, for it.
In the above circumstances, I find merit in the submissions by the learned counsel for the Appellants on the issue 1 which I resolve in favour of the Appellants.
The Appellants’ issue 2 which is whether the High Court was biased in the evaluation of the evidence adduced by the Appellants has apparently been subsumed in my determination of the issue 1. The pith of the issue 2 was that the High Court had failed to evaluate Exh. ‘B’; copy of the criminal proceedings before the Magistrate Court in which their father was convicted of the trespass complained of by the Respondent on his admission or confession that he did so.
Having found under issue 1 that the High Court did not properly evaluate the evidence adduced by the parties before it, including that by the Appellants and that there was no evidence to establish their liability for the trespass, all that remains of the issue is for me to say that I found no evidence of any bias in the evaluation of the evidence. Judicial bias is an opinion or feeling in favour of one side in dispute or argument resulting in the likelihood that the court so influenced, will be unable to hold the scale of justice evenly. It is the instinct which causes the mind to incline towards a particular object or cause. When a court appears to give more favour or consideration to one of the parties to a case before it, either in utterances, attention or actions which is open and capable of perverting the cause of justice, convertly or overtly, then judicial bias may be said to exist. See Kenon v. Tekam (2001) 14 NWLR (732) 12; Elike v. Nwankwoala (1984) 12 SC. 301; Womiloju v. Anibire (2010) 10 NWLR (1203) 545, 571; Bamboye v. University of Ilorin (1999) 10 NWLR (622) 290 at 355.
The allegation of bias against a court is a very serious attack on the integrity of the court and so counsel should desist from unfairly accusing courts of bias unless there is concrete, cogent and compelling evidence on which they rely in making the allegation. The likelihood of the bias must be manifestly real and not a caricature or pure blackmail. See Olue v Enenwali (1976) 2 SC. 23; Deduwa v. Okorodudu (1976) 1 NMLR 236; Akor v. Abuh (1988) 696; Anuebe v. Adesiyun (1997) 5 NWLR (505) 403 at 423 – 4; Onigbede v. Balogun (2002) 6 NWLR (762) 686; Abalaka v. Min. of Health (2006) 2 NWLR (963) 105. Like I said earlier, I am unable to find any real likely of not to talk of bias in the evaluation of the evidence merely because the High Court failed to or did not consider a particular piece of evidence in the case before it. The omission or failure to evaluate evidence by a trial court generally is no valid ground on its own, for the allegation of bias against that court. Rather, it is a valid and strong ground of an appeal against the decision of a trial court to an appellate court.
In the result, my answer to the Appellants’ issue 2 is in the negative; that is that there was no evidence of bias in the evaluation of the evidence adduced by the Appellants before the High Court.
In the final result, my resolution of the issue 1 in favour of the Appellants means the appeal is meritorious and deserve to succeed. It does and I allow it. Consequently, the decision of the High Court finding the Appellants liable for trespass to the Respondent’s house and property, is set aside. In the absence of liability for the trespass, there could not be damages which are supposed to be remedy for the tort. Where there is no wrong in law, there cannot be damages. See Adeniran v. Alao (1992) 2 NWLR (223), 350 at 372.
For want of sufficient evidence to prove his case of trespass against the Appellants, the Respondent’s case before the High Court must fail and be liable to be dismissed. It is dismissed with an order that the parties shall bear their respective costs of prosecuting the appeal.
JOSEPH TINE TUR, J.C.A: I agree with my Lord, Mohammed Lawal Garba, J.C.A. that there is merit in this appeal which should be allowed. I abide by all the consequential orders made by my Lord.
The relevant paragraphs of the Amended Statement of Claim filed on 20th day of February, 2007 by Respondent reads as follows:
“1. The Plaintiff is a plumbing contractor and a hotelier. He resides at Ikot Udoma village, Eket within the jurisdiction of the court, Eket. The Plaintiff occupied the property of the deceased 1st defendant as a tenant at No.11 Afaha Uqua Road, Eket.
2. The deceased 1st defendant is the Landlord of the plaintiff at No.11 Afana Uqua Road, Eket. The 1st defendant is the 1st son while the 2nd defendant is the 2nd son of the deceased 1st defendant. All the defendants resides at No.11 Afaha Uqua Road, Eket.
3. The Plaintiff at the moment lives in Ikot Udoma village, Eket. The plaintiff avers that he was occupying a two room house with a parlour/a kitchen etc at No.17 Afana Uqua Road, Eket as a yearly tenant in the first instance and later as a monthly tenant.
4. On the Good Friday, the deceased 1st defendant he damaged the union lock and the padlock into the apartment. There was no person in the house at the material time. The deceased 1st defendant led other defendants into the apartment and carted away all items of personal effects in the plaintiff’s apartment.
5. The Defendants threw those items outside except 16 Sony colour TV, black and while Philips Television set, standing fan, one bay bed, three family beds with foams, one executive writing desk, two trunk boxes of cloths belonging to Plaintiff’s wife, one children’s box, big round chair, one singer zigzag sewing machine, one big show-case, 10 pillows/cases, electric motors, plaintiff’s 20 shirts, 3 handbags, 3 sets of breakable plates, 6 glasses in a case, three dozen of tea cups and saucers, one drinking jug and a set of glasses, 10 pairs of trousers, one mechanical tools box of plumbing materials, shelf, one cupboard of books were all at the 1st defendant’s verandah.
6. The items the defendants threw outside included the following: One palm oil digester engine, two complete kernel cracking machines, one palm oil pressing engine, one Garri grating machine, one Garri presser, one Garri frying pot, one big palm fruit cooking pot, one 404 pick-up engine and electric Yamaha motor-cycle engine.”
The appellants joined issue with the Respondent in their Joint Amended Statement of Defence filed on 2nd June, 2000 as follows:
“1. Save as is hereinafter expressly admitted, the defendants hereby denies each and every material allegation of fact as if same were specifically set out and traversed seriatim.
2. The Defendants admit paragraph 1 of the statement of claim only to the extent that the plaintiff occupied the property of the 1st defendant as a tenant at No.11 Afana Uqua Road, Eket. All other averments therein are within the knowledge of the plaintiff which the defendants shall requires strict proof of them at the trial of this suit.
3. The Defendants admit paragraph 2 of the statement of claim.
4. In answer to paragraph 3 of the statement of claim the Defendants state that where the plaintiff resides is within his knowledge and the defendants are not in a position to deny or admit same. The Defendants however admit all other averments therein.
5. Paragraph 4 of the statement of claim is denied. The Defendants, particularly the 1st defendant, state(s) that he ignorantly packed out the plaintiffs few items left inside his apartment out to a safe place on the Saturday following the Good Friday and that he did that alone in the absence of the 2nd and 3rd defendants.
6. In answer to paragraphs 5 and 6 of the statement of claim, the 1st defendant reiterated that he alone packed out few things that the plaintiff left in the rooms. The 1st defendant states further that for the reason that the plaintiff was owing him rent the plaintiff had secretly packed out valuable and good things belonging to him from the rooms but left behind few things in the house.
7. The further answer to paragraphs 5 and 6 of the statement of claim, the 1st defendant avers that the plaintiff was then living by Eket Motor Park with his wife and children and was no more sleeping in the 1st defendant’s premises. The 1st defendant shall lead evidence at the trial to show the following:
“(a) That the plaintiff did not produce any of the items mentioned in paragraph 5 at the Magistrate’s Court in charge No.MEK/104C/99 except items tendered and marked as Exhibits “B” to “H” in the proceedings in the charge. The 1st defendant hereby pleads and shall rely on the proceedings in charge No.MEK/104C/99.
(b) That the plaintiff never told the Magistrate’s Court in charge
No.MEK/104C/99 how any of the items afore-pleaded were damaged.
(c) That the items mentioned in paragraph 6 of the statement of claim were fabricated iron equipment without any engine that were packed outside the Plaintiff’s rooms in the 1st defendant’s compound at all material items because of their nature – there was no time they were kept inside the house by the plaintiff.
(d) That at the Magistrate’s Court in charge No.MEK/104C/99 the plaintiff failed to tender before that Court any photographs of the property alleged to be thrown outside.
(e) That the 1st defendant carefully and safely packed the things removed from the plaintiff’s apartment both in his parlour and at the verandah. The things packed at the verandah were the ones that were not fragile.”
In paragraph 25 of the Amended Statement of Claim the respondent founded his action on trespass, damages to chattels, and unlawful ejection as a tenant at No.11 Afaha Uqua Road, Eket, Akwa Ibom State. Paragraph 4 of the Amended Statement of claim clearly states that on Good Friday when the alleged trespass took place there was no person in the house at that material time. Nevertheless, it was further pleaded in paragraph 10 – 15 of the Amended
Statement of Claim as follows:
“10. On the 19th February, 1999 two days after service of the first Notice of Owner’s Intention to Recover Possession, the deceased 1st defendant with the help and support of the 1st and 2nd defendants removed the zinc on the roof of the apartment occupied by the Plaintiff and his family. The plaintiff avers that the act of the defendants was illegal as his so-called Notice of Quit had only run few days when the defendants resorted to self-help. The plaintiff avers that the said acts of the defendants were aimed at ejecting him from the property without any order of Court.
11. On the 22nd day of February, 1999 there was a very heavy down pour of rain from morning till night and the personal effects of the plaintiff were damaged by the rain water which flooded the apartment occupied by the plaintiff and members of his family.
12. Prior to the 27d day of February, 1999 the Plaintiff states that he was at Akampka at the time the defendants removed the zinc from the roof of his apartment. On his return the plaintiff went to the deceased 1st defendant to find out what was responsible for that illegal and reprehensible act. The deceased 1st defendant without any hesitation replied the plaintiff that he did that to cause the plaintiff to quit his property immediately and that he was not in any mood to discuss anything further with the plaintiff.
The plaintiff avers that the Notice of Owner’s Intention to Recover Possession dated the 25th day of March, 1999 was to expire on 2nd April, 1999 being a Good Friday. But on the 4th day of April, 1999 the deceased 1st defendant rather file a suit in Court for possession/arrears of rent, if any, in furtherance of the self-help he resorted to, proceeded to break into the three rooms at about 7pm and packed out the plaintiff’s belongings. The deceased 1st defendant was supported by the 1st and 2nd defendants during the illegal exercise.
14. That plaintiff further states that on packing out his personal belonging the defendants chose to keep some of the items in the deceased 1st defendant’s parlour. Some of the belonging were kept in his verandah while others were scattered outside.
15. That plaintiff will lead evidence to the fact that the deceased 1st defendant with the support of his children, the 1st and 2nd defendants put in two new tenants into the property occupied by the plaintiff.”
From the facts set out in the Amended Statement of Claim the onus rested on the respondent to prove at the trial how, though there was no body in the compound when the alleged acts of trespass were committed, he knew that the 1st and 2nd appellants acted with their deceased father (Friday Dickson Ekanem) to commit the acts now subject matter of this appeal. Furthermore, it can be seen from the pleadings that the allegations of criminal misconduct or wrongful acts proffered against the appellants and their late father is the foundation of the Respondent’s action before the lower Court. These criminal or wrongful acts have to be proved beyond reasonable doubt as provided under Section 135(1) to (3) of the Evidence Act, 2011 which reads as follows:
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt the burden of proving reasonable doubt is shifted on to the defendant”
In Aguda: The Law of Evidence, Spectrum Law Series, 4th edition, page 214 the learned author wrote that:
“In civil cases, the ultimate burden of establishing a case is as disclosed in the pleadings. The person who would lose the case if on completion of pleadings and no evidence is led has the general burden of proof.”
See Murana Elemo & Ors. v. Fasasi Omolade & Ors. (1968) NMLR 359. In Benson Ikoku v. Enoch Oli (1962) All NLR 194 at 199-200, Unsworth F.J., pointed out that:
“…the subsection only applies where there is a specific allegation of a crime in the pleadings so that the commission of a crime can properly be said to be a basis or foundation of the claim or defence as the case may be…”
See also Godwin Nwankere v. Joseph Adewunmi (1966) 1 All NLR 129.
The Respondent testified on 24tn day of February, 2003 as follows:
“On 4/4/1999, the landlord and the other defendants threw out my household properties from the house where I was living; 4/4/1999 was a Good Friday. At the time I was attending a retreat in my church. On my return I met my household properties at the verandah of the house, some at the backyard and some at the parlour of the landlord. On my return from the church I found another person already occupying that my house. Before he removed my properties from the house, the landlord had given notice to quit from the Magistrate’s Court, Eket. He had also given me 7 days notice. I have one of the notices here. I tendered one at the Magistrate Court when the case went there. I have the 7 days notice here. This is the notice.”
Under cross-examination the respondent answered that:
“I had said that I returned from church and saw my things outside. I did not see when my properties were throw outside. I did not see who threw my properties outside. I did not see when the 1st and 2nd defendants actually threw my things outside but when asked they said they packed away my properties. The police charged only one person to Magistrate’s court. That person was 1st defendant Friday Dickson Ekanem who had died. It was while that criminal case was pending at the Magistrate Court that I instituted this action. At the Magistrate Court I mentioned the names of all the defendants.”
No eye witness was called to testify that he saw the 1st and 2nd appellants and their late father committing the acts of trespass into the Respondent’s room to cause damages to his chattels. In that wise it cannot be said that the respondent proved the allegations of trespass or wrongful acts to his chattels with their late father beyond reasonable doubt. The learned trial Judge erred to have held thus:
“I have weighed the evidence of the parties on an imaginary scale as I am entitled to do. The defendants’ counsel seriously stressed the fact that the plaintiff as PW1 said he did not see when his properties were thrown out. He did not need to see or be present before instituting the action against the defendants. The present surviving defendants have not denied that the plaintiff’s roof was removed and his properties thrown out of the house and damaged. Their defence is that all these were done by the deceased 1st defendant, their late father. The plaintiff instituted the suit against the three of them jointly and severally. The law is that where a claim is brought jointly and severally against defendants, it means that each party is responsible jointly with each other and also severally for the whole amount of damage caused by the tort irrespective of the extent of participation. Therefore a person injured may sue any one of them separately for the full amount of the loss, or he may sue all of them jointly in the same action, and in this latter case, the judgment so obtained against all of them may be executed in full against any of them. See the case: Ifeanyi Chukwu (Osondu) Co. Ltd. v. Soleh Boneh (Nig) Ltd. (2000) 5 NWLR (Part 656) p.322 held 14 (SC).”
There was no evidence to prove that the appellants were joint or several tortfeasors with their deceased father. “A tortfeasor is one who commits a tort, a wrongdoer. When two or more tortfeasors who contributed to the claimants’ injury and may be joined as a defendant in the same law suit, they are called joint tortfeasors.”
See Black’s Law Dictionary, 9th edition, p.1627. The fact that the appellants’ late father admitted entry into the room and he removed the said properties in question and was subsequently convicted in a Chief Magistrate Court does not per se translate the 1st and 2nd appellants into joint tortfeasors. In Egger v. Viscount Chelmsford (1964) 3 All E.R. 406 Mrs. Egger brought an action against ten members of Kernel Club for a letter the secretary wrote to her which the jury found to constitute libel. The defendants pleaded that the occasion was privileged. The plaintiff replied, alleging express malice. The jury found that five of the defendants were actuated by malice but that three of the members were not. The judge however gave judgment in favour of the plaintiff against all the ten members of the club, relying on the authority of Smith v. Streatfeild (1913) 3 K.B. 764 and Gatley On Libel and Slander, 5th edition, (1960) at page 587 where the general rule was stated to be that, “Where two or more persons are sued in respect of a joint libel, proof that one of the defendants was actuated by malice will defeat any plea of privilege on the part of the other or others.”
In overturning the judgment in the English Court of Appeal, Lord Denning M.R., held that:
“I cannot help thinking that the root of all the trouble is the tacit assumption that if one of the person concerned in a joint publication is a tortfeasor, then all are joint tortfeasors. They must therefore stand or fall together. So much so that the defence of one is the defence of all: and the malice of one is the malice of all. I think this assumption rests on a fallacy. In point of law, no tortfeasors can truly be described solely as joint tortfeasors. They are always several tortfeasors as well. In any joint tort, the party injured has his choice of whom to sue. He can sue all of them together or any one or more of them separately. This has been the law for centuries. It is well stated in Serjeant Williams’ celebrated notes to Saunders’ Reports (1845 ed.) of Cabell v. Vaughan (1969) 1 Saund.291 f-g; 85 E.R. 399: “If several persons jointly commit a tort, the plaintiff has his election to sue all or any number of the parties; because a tort is in its nature the separate act of each individual.”
Therein lies the gist of the matter. Even in a joint tort, the tort is the separate act of each individual. Each is severally answerable for it: and, being severally answerable, each is severally entitled to his own defence. If he is himself innocent of malice, he is entitled to the benefit of it. He is not to be dragged down with the guilty. No one is by our English law to be pronounced a wrongdoer, or be made liable to be made to pay damages for a wrong, unless he himself has done wrong; or his agent or servant has done wrong and he is vicariously responsible for it. Save in the cases where the principle respondent superior applies, the law does not impute wrongdoing to a man who is in fact innocent.
My conclusion is that Smith v. Streatfeild was wrongly decided and should be overruled: that the obiter dicta on this point of their Lordships in Adam v. Ward were erroneous: and that the general rule stated by Gatley does not exist. It is a mistake to suppose that, on a joint publication, the malice of one defendant infects his co-defendant. Each defendant is answerable severally as well as jointly, for the joint publication: and each is entitled to his several defence, whether he be sued jointly or separately from the others. If the plaintiff seeks to rely on malice to aggravate damages, or to rebut a defence of qualified privilege, or to cause a comment, otherwise fair to become unfair, then he must prove malice against each person whom he charges with it. A defendant is only affected by express malice if he himself was actuated by it: or if his servant or agent concerned in the publication was actuated by malice in the course of his employment. We have come after several years to find that the law is as Lord Porter’s Committee recommended it should be. Cmd.7538 (1948).”
A joint and several liabilities is one that may be apportioned either among two or more parties or to only one or a few select members of the tortfeasors. The respondent did not adduce evidence to prove that the appellant were to be held liable jointly or severally in the absence of proof that they were joint tortfeasors.
Having failed to prove beyond reasonable doubt that the appellants were “joint tortfeasors” or that they acted “jointly and severally” the respondent was not entitled to any aggravated damages.
In McGregor On Damages, 14th edition paragraph 49 page 56 appears the following statement of the law:
“Where the plaintiff’s goods have been damaged, the basic pecuniary loss is the diminution in their value which is normally measured by the reasonable cost of repair, and generally without making any deduction from the damages on account of the fact that after repair the goods are in better condition than they were before the tort. On the other hand, the basic pecuniary loss is the market value of the goods where they have been destroyed or misappropriated.”
The Respondent founded his claim in aggravated damages. The oppressive conduct of the appellants, if proved at the trial, is what entitles a claimant to an award of aggravated damages. See Williams v. Daily Times of Nigeria (1990) 1 SCNJ 1 at 22 – 23 and Odiba v. Muemue (1999) 6 SCNJ 245 at 260. Aggravated damages are in modern days known as “Punitive Damages” which term the learned authors of Black’s Law Dictionary, 9th edition page 448 define as:
“Damages awarded in addition to actual damages when the defendant acted with recklessness, malice, or deceit; specific, damages by way of penalizing the wrongdoer or making an example to others.”
I do not find any misconduct of the appellants to warrant the learned trial Judge’s holding at page 175 lines 7-13 of the printed record that:
“In the final result, I hold that the plaintiff has proved his case and is entitled to the judgment of the court. Judgment is hereby entered in favour of the plaintiff against the defendants. It is ordered that the defendants shall jointly and severally pay to the plaintiff as aggravated general damages the sum of N3,500,000.00 (three million, five hundred thousand Naira). They shall also jointly and severally pay to the plaintiff costs of N7,500.00 (seven thousand, five hundred Naira) only. The clerk of Court shall keep in her safe custody the Exhibits pending appeal if any.”
I am not aware there is any head of damage known in law as “aggravated general damages” which was the basis for the learned trial Judge awarding to the Respondent such a whooping sum of money as N3.5m when the wrongful or criminal allegations have not been proved beyond reasonable doubt. I also allow the appeal and abide by the orders of my Lord.
ONYEKACHI A. OTISI, J.C.A.: I have had opportunity to read the lead Judgment of my Learned Brother, Mohammed Lawal Garba, JCA, and I am in complete agreement with the Judgment.
I also abide by the Order affirming the decision of the lower Court, convicting the appellant of the offences of conspiracy and assault causing harm.
Appearances
Kelechi OluigboFor Appellant
AND
C. O. Ezeibe & Chinwe UmecheFor Respondent
