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ADI & ANOR v. GAADI & ORS (2022)

ADI & ANOR v. GAADI & ORS

(2022)LCN/16059(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Tuesday, February 22, 2022

CA/MK/121/2015

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

1. CHIEF JULIUS UOR ADI 2. IGBA AZENDA APPELANT(S)

And

1. DISCIPLE DAVIEN GAADI 2. GAADI INTERNATIONAL PROMOTIONS 3. COMMISSIONER OF POLICE, BENUE STATE 4. SUPOL CHIA 5. W. INSP. JUDITH ORTESE RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON DAMAGES

However, before proceeding to determine whether the general damages awarded the Appellants is extremely high or not, let me draw our attention to the essence of award of damages. In the celebrated case of Anthony M. Soetan & Anor. Vs. Z. Ade Ogunwo (1975) 6 S.C. 67 at 72 following the dictum of Lord Blackburn in Livingstone Vs. Rawyards Coal Co. (1880) 5 A.C. 25 at page 39; our Supreme Court of yore posited that it is said that damages are compensation in monetary terms or sums of money given to successful Plaintiff(s) to compensate him/them for loss or harm of any kind suffered by them (him) as a result of the act of a Defendant(s). According to their Lordships, once a Party has been fully compensated for loss or harm suffered by him, it should not be open to the Court to proceed to award him any other kind of additional damages that may look like a bonus.
In the said case of Livingstone Vs. Rawyards Coal Co. (1880) 5 A.C. 25 at page 39 Lord Blackburn was quoted as stating that:
“Where any injury is to be compensated by damages…you should as nearly as possible get at that sum of money which will put the person who has been injured in the same position as he would have been if he had not sustained the wrong.”
PER AGUBE, J.C.A.

DISTINCTION BETWEEN PROOF OF GENERAL DAMAGES AND SPECIAL DAMAGE

Turning to the crux of this matter which is whether the award of general damages of N300,000.00 (Three Hundred Thousand Naira) by ​the learned trial Judge to the 1st and 2nd Respondents out of the N381,000.00 claimed by them is extremely high, in the celebrated case of E.K. Odulaja vs. A.F. Haddad (1973) 11 S.C. 357 at pp. 361-362; the Supreme Court while distinguishing general damages from special damages held as follows:-
“We are in no doubt that the distinction between proof of general damage as opposed to special damage is a matter of law. This distinction is manifest from the following two English decisions:- (a) Stroms Bruks Aktie Bolag vs. Hutchison (1905) A.C. p. 515 and (b) British Transport Commission vs. Gourley (1956) A.c. p. 185.
In Stroms Bruks Aktie Bolag vs. Hutchinson, Lord Macnaghten, at pages 525-526, after stating that he thought the division into general and special damages was more appropriate to tort than to contract, said:
“General damages ….. are such as the law will presume to be the direct natural or probable consequence of the act complained of. Special damages on the other hand, are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and, therefore, they must be claimed specially and proved strictly.”
PER AGUBE, J.C.A.

WHETHER OR NOT GENERAL DAMAGES MUST BE SPECIFICALLY PLEADED

What emerges from the dicta of the above cited cases is that general damages emanate/flow naturally or consequentially from the act(s) of the Defendant which is the cause of the action of the Plaintiff and that to succeed in a claim for such damages, the Plaintiff need not specifically plead or strictly prove same unlike in a claim for special damages. The rationale being that general damages are such that the law would imply or presume to accrue from the wrongful act complained of or as the immediate, direct, or proximate outcome of same and it is awarded at the discretion of the Trial Judge who in the exercise of such discretion must be judicial and judicious by calculating the amount in monetary terms based on the standard of a reasonable man that would assuage the Plaintiff for the damage suffered or incurre​d from the act of the Defendant. See S.P.D.C (NIG) LTD v. Tiebo VII (2005) 9 NWLR (pt. 931) 439; Garba v. Kur (2003) 11 NWLR (pt. 831) 280; Mobil Oil (Nig) Ltd. V. Akinfosile (1969) 2 SCNLR 322; Beecham Group v. Essdee Food Products (Nig) Ltd. (1985) 3 NWLR (pt. 11) 112; A-G., Oyo State v. Fairlakes Hotel Ltd. (No. 2)(1989) 5 NWLR (pt. 121) 255; Bello v. A.G., Oyo State (1986) 5 NWLR (PT. 45) 828. See also ONYIORAH v. ONYIORAH (2019) 15 NWLR (pt. 1695) 247-258 paras. H-B; ably cited by the respective Learned Counsel to the Appellants and Respondents. PER AGUBE, J.C.A.

CIRCUMSTANCES UNDER WHICH AN APPELLATE COURT CAN INTERFERE WITH THE AWARD OF DAMAGES BY A TRIAL COURT

The circumstances under which an Appellate Court like this Court can interfere with the award of damages by a Trial Court have been clearly stated in the authorities of GTB PLC Vs. OBOSI MICROFINANCE BANK LTD (2018) LPELR – 44518, ASTRA INDUSTRIES (NIG) LTD. Vs. N.B.C.I (1998) 4 NWLR (pt. 546) 357 and EDOSA Vs. FIRST BANK (2011) LPELR – 8785 (CA); DIAMOND BANK PLC Vs. WELLCARE ALLIANCE LTD (2015) LPELR – 40762 at 27 – 28; G.T.B. Vs. OGBOJI (2019) 13 NWLR (pt.1688) pp. 91 – 92 paras. G-B; ACB LTD Vs. APUGO (2001) 5NWLR (707) 653; B. B. APUGO & SONS LTD. Vs. OHMB (2016) LPELR – 40598 1 at 61 – 62; all cited by the respective Learned Counsel to the parties in this appeal.
For the avoidance of doubt this Court in the case of GTB PLC Vs. OGBOJI (2019) LPELR – 47642, ably cited and relied upon by Learned Counsel to the Appellants (also reported in (2019) 13 NWLR (pt. 1688) 67 at pp. 91-92 paras G-B) per Yahaya, JCA following the Supreme Court decisions in Adekunle vs. Rockview Hotel Ltd. (2004) 1 NWLR (pt. 853) 161; MTN (Nig.) Comm. Ltd. Vs. C.C. Investment Ltd. (2015) 91-92 paras G-B rightly held that;
“An Appellate Court will not interfere with the award of damages made by Trial Court except in following cases:
a. A Trial Court has acted under a mistake of law;
b. The Trial Court has acted in disregard of known principles, or acted on no principles at all;
c. The Trial Court has acted under a misapprehension of facts;
d. The Trial Court has taken into accounts irrelevant matters or failed to take account of relevant matters;
e. Injustice would result if the Appeal Court does not interfere; or
f. The amount awarded by the Trial Court is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of damages.”
PER AGUBE, J.C.A.

THE POSITION OF LAW ON THE DUTY OF THE TRIAL COURT

Now, the law is trite on authorities too numerous to mention that evaluation of evidence of Parties and their witnesses and ascription of probative value there to are within the exclusive purview of the Trial Court that was seised of the opportunity and rare advantage of hearing and watching the demeanour of the witnesses while testifying at the Trial Court. Accordingly, it is also settled that an Appellate Court like ours that has no such opportunity and the advantage of the Trial Court, as above mentioned is always loathe to interfere with findings of facts of a Trial Court; except such findings are perverse and in the case of award of damages as in the scenario we have found ourselves, the circumstances as enumerated in the above cited cases must exist before we can intervene. See Mogaji Vs. Odofin (1987) 4 S.E. 91; Whyte Vs. Jack (1996) 2 NWLR (Pt.431) 407; Borishade Vs. F.R.N. (2012) N.W.L.R. (Pt.1332) 347; Obueke Vs. Nnamchi (2012) 12 N.W.L.R. Page 327 (S.C.); Ukeje Vs. Ukeje (2014) 11 N.W.L.R. (Pt.1418) 384 and GTB Vs. Ogboji (supra) and the Supreme Court cases cited therein. PER AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Benue State Holden at the Makurdi Judicial Division and delivered by the Honourable Justice T.A. IGOCHE, on the 11th day of May, 2015 whereof he granted the following Reliefs to the 1st and 2nd Plaintiffs/Respondents having found that they had proved that at the time the cause of action arose, the 1st Plaintiff’s Permit over the disputed land between the Plaintiffs and Defendants superceded that of the 1st and 2nd Defendants (now Appellants) thus:
“1. He is therefore entitled to the reliefs he claims in Paragraph 25(a), (b), (c) and (d) of the Statement of Claim.
​2. On the claim of general damages, it is my view that, having held earlier that the 1st Plaintiff has proved his entitlement to reliefs 25(a), (b), (c) and (d) it is only proper that he goes home with something to compensate him for the loss he suffered as a result of his inability to operate the sites due to the 1st and 2nd Defendants’ intervention. The Plaintiffs claim the sum of N381,000.00 but I award them the sum of N300,000.00 (Three Hundred Thousand Naira) to them against the 1st and 2nd Defendants only. It is unfortunate that the 1st Plaintiff was not allowed to utilize the period granted in the permit. I observe that the permit is not for an indefinite period. It is a renewable permit. It is therefore my view and I so order that the 1st Plaintiff has to renew the permit before he can effectively operate at the sites any further.”

Piqued by the above decision, the 1st and 2nd Defendants/Appellants through their Learned Counsel Iorwase Ahile, Esq, appealed by their Notice of Appeal dated and filed on the 4th of June, 2015 predicated originally on 4 (Four) Grounds which Notice was subsequently amended with the leave of this Honourable Court granted them on the 22nd day of October, 2018 with the Grounds reduced to 2 (two) only. For purposes of emphasis the extant Grounds of Appeal are reproduced verbatim hereunder with their respective Particulars to wit:
“GROUND ONE
The Trial Court erred in law by awarding excessive general damages against the Appellants and this error occasioned a miscarriage of justice.
PARTICULARS OF ERROR:
a) From the available facts, both the Appellants and Respondents have portions of land for spinning and molding burnt bricks and the conflicting issue is the description of same which the Court was able to resolve and does not call for award of excessive general damages.
b) The land in dispute has also been awarded to the Plaintiffs/Respondents which is a plus in the Judgment with an option to the Plaintiffs to renew the said land and operate on same, as such, the award of the sum of N300,000.00 for a claim of N381,000.00 General damages is ordinarily on the high side.
GROUND TWO
The Judgment of the Trial Court is against the weight of evidence before it.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
(a) An order allowing the Appeal, setting aside or varying the judgment and orders of the Trial Court based on the award of general damages.
(b) In the alternative, an order reducing the amount awarded as General Damages.
(c) And such further order (s) this Honourable Court may deem fit to make in the circumstances.”

Upon transmission of the Record of Appeal and entry of same here in this Honourable Court, Briefs of Argument were filed and exchanged by the respective Learned Counsel to the Parties. For the Appellants whose Amended Brief of Argument dated and filed on the 18th of May, 2018 but deemed properly filed on the 22nd day of October, 2018, was settled by Humphrey Usha, Esq; a sole Issue was distilled from the two Grounds of Appeal which is hereunder reproduced as couched thus:
“ISSUES FOR DETERMINATION:
1. WHETHER THE AWARD of N300,000.00 (THREE HUNDRED THOUSAND NAIRA ONLY) AS GENERAL DAMAGES TO THE 1st – 2nd RESPONDENTS AGAINST THE APPELLANTS WAS EXTREMELY HIGH? (GROUNDS 1 and 2 of THE APPEAL).”

On the part of 1st and 2nd Respondents, N. Evelyn Du, Esq. who settled their Brief dated 26th January, 2021 and filed 27th January, 2021 but deemed properly filed and served on the 9th day of February, 2021 with the leave of this Honourable Court; adopted the sole Issue nominated by the Learned Counsel to the Appellants as to:
“WHETHER THE AWARD OF THREE HUNDRED THOUSAND NAIRA (N300,000.00) ONLY AS GENERAL DAMAGES TO THE PLAINTIFFS/RESPONDENTS AGAINST THE 1ST–2ND DEFENDANTS/APPELLANTS WAS EXTREMELY HIGH?”

Before delving into the arguments of the respective Learned Counsel on the Sole Issue distilled for determination vis-a-viz their resolution, it is apt at this juncture to have a resume of the facts of the case as fought in the Lower Court thus necessitating this Appeal. As can be gleaned from the Record of Appeal, the Judgment of the Learned Trial Judge and indeed the respective Briefs of Argument of the Learned Counsel to the Parties, the Plaintiffs/Respondents initiated their suit initially before the Federal High Court, Makurdi Division as No: FHC/MKD/45/2006 which was subsequently transferred to the Benue State High Court still in the Makurdi Judicial Division pursuant to Section 22 of the Federal High Court Act on the 14th of July, 2008 and was assigned Suit No: MHC/257/2008.

It would be recalled that the Respondents as Plaintiffs in their undated Statement of Claim filed on 27th of April 2006, in Paragraph 25 thereof sought for the following reliefs against the Defendants (now Appellants):-
“25. WHEREFORE the Plaintiffs claim jointly and severally against the Defendants, the following reliefs:
a. An Order restraining the Defendants henceforth from harassing or assaulting the Plaintiffs on account of their possession of the portions of land with the Right -of-Way of River Benue granted them by NIWA.
b. An Order of eviction/ejection of the 1st-3rd Defendants from portions of land granted the Plaintiffs.
c. An Order of Court restraining 4th to 6th Defendants from further arrest, torture and detention of the Plaintiffs in connection with operations at the sites.
d. A declaration that the usage and management of the portions of land for the benefits of the 1st – 3rd Defendants to the exclusion of the Plaintiffs is illegal, unconstitutional and void.
e. An Order for special damages against the 1st–3rd Defendant in the sum of N619,00.00.
f. An Order for general damages against the Defendants in the sum of N381,000.00.” See pages 1-58 of the Records.

Having been served with Respondents’ (then Plaintiffs’) Originating Processes and the accompanying documents sought to be relied upon at the trial, the Defendants also joined issues by filing their respective processes. The 1st-3rd Defendants as they then were, through their Learned Counsel R. B. Ayilla, Esq. filed a Memorandum of Conditional Appearance on the 21st November, 2006 which was followed by a Notice of Preliminary Objection same date praying for the Trial Court to strike out the Plaintiffs’ Suit for being incompetent and for want of jurisdiction in that the proper Court to entertain the Suit was the State High Court (see pages 59-66 of the Records).

As for the 4th – 6th Defendants (as they then were), C.M. Chaha, Esq. (Principal State Counsel Ministry of Justice, Makurdi) also filed a Memorandum of Conditional Appearance on the 28th day of February, 2007 (see pages 67-70 of the Records). By a motion on Notice dated and filed on the 28th of November, 2007, B.C. Hia, Esq, sought the leave of the Court for extension of time to file the 1st-3rd Defendant’s (as they then were) Statement of Defence and for a deeming Order. The Motion and the Statement of Defence can be found at pages 71-77 while the accompanying documents sought to be relied upon at the trial as annexed to the Motion Paper can be found at pages 78-87.

Apart from the above processes, the Learned Counsel to the 1st – 3rd Defendants filed a Written Address in support of their Preliminary Objection to which the Learned Counsel to the Plaintiffs filed their Written Address in opposition. See pages 88-91 and 92-95 of the Records. As can be gleaned in pages 96-117 of the Records, the Plaintiffs also filed a Motion for interlocutory injunction which documents marked Exhibits 1 to 10 were annexed to the Affidavit in Support as well as a Written Address. At pages 118 to 133 of the Records, the Plaintiffs front-loaded the List of Witnesses and Documents sought be relied upon at the trial in the High Court of Benue State, Makurdi Judicial Division following the transfer of the Plaintiffs’ Suit thereto.

Upon being served with the Motion for injunction and the accompanying Exhibits and Written Address in support, the Learned Counsel to the 1st–3rd Defendants through the 1st Defendant deposed to a Counter-Affidavit and annexed thereto Exhibits 1-8 which were documents relating to the disputed land and the conflict arising therefrom. (See Pages 134 to 152 of the Records). At Pages 153 to 154 of the Records, the Plaintiffs’ Answers to Questions in the Pre-Trial Information Sheet can be found and the Further Affidavit filed in reaction to the 1st-3rd Defendants’ Counter-Affidavit to the Motion for Interlocutory Injunction is to be located at Pages 151 to 158 of the Records.

At Pages 159 to 179 of the Records, the 1st -3rd Defendants’ Lists of Documents and Witnesses sought be relied on and the Witnesses’ Statements On Oath of the 1st-3rd Defendants can be seen. The Ruling of the Learned Honourable Justice (Dr.) M.A. Edet of the Federal High Court, Makurdi delivered in respect of a Preliminary Objection raised according to the Learned Trial Judge by way of Brief of Argument filled on 20th July, 2006; can be found at Pages 180-183.
Also as can be found at Pages 186-189, the 1st – 3rd Defendants through their Counsel J.S. Ioryina Esq; filed their Written Answers To Questions in the Pre-Trial Information Sheet which included Issues For Determination.

​Subsequently, J.O. Idikwu, Esq. (Principal State Counsel 1) for the 4th – 6th Defendants filed a Motion for the discharge/striking out of the names of the 4th – 6th Defendants. The Motion which was filed on 12th February, 2009 in the High Court of Justice, Benue State Holden at Makurdi was supported by an affidavit of ten (ten) paragraphs deposed to by one I.M.O. Ekele, the Principal Litigation Registrar in the Directorate of Civil Litigation, Benue State Ministry of Justice, Makurdi, and a Written Address (see Pages 190-197).

In reaction to the Motion, the Plaintiffs through the 1st Plaintiff deposed to a Counter-affidavit to which a Written Address and some documents were annexed (see pages 198-206). Upon receipt of the Counter-affidavit, the 4th – 6th Respondents filed a Further Affidavit to the Motion. See Pages 207-208. Apart from the above Motion, Obande Idikwu, Esq, on the 16th of April, 2009 filed another Motion for extension of time for the 4th–6th Defendants to file their Statement of Defence and to deem the 4th – 6th Defendants’ Joint Statement of Defence and Brief annexed to the Affidavit in Support as properly filed and served. The Statement of Defence was accompanied by the Statement On Oath of Inspector Judith Lisah, while the Statement On Oath of the 5th Respondent was filed later and subsequently, the 4th–6th Defendants’ Joint Amended Statement of Defence which was accompanied by the List of Documents sought to be relied upon at the trial. See Pages 209-245 of the Records.

It would be recalled that the case was initially before Hon. Justice J.S. Ikyegh and upon his elevation to the Court of Appeal, same was re-assigned to the Honourable Justice T.A. Igoche. There were several other motions filed by the Parties and eventually after they had been heard and cleared by the Trial Court, the hearing of the substantive matter commenced on the 13th of February, 2012 with the 1st Plaintiff testifying as the PW1 by adopting his Witness Statement On Oath made on the 28th of October, 2008 and identifying the Documents he referred to in his Statement which Documents were tendered, admitted and marked Exhibits 1-10 respectively.

The 1st Plaintiff was cross-examined by the Learned Counsel to the 1st and 2nd Defendants John Ioryina Esq. and Obande Idikwu Esq. for the 3rd to 5th Defendants at the end of which the Plaintiffs closed their case on the 19th day of March, 2012.

On the 3rd day of July, 2012, the Defendants opened their case by calling Igba Azenda (the 2nd Defendant) who testified as DW1 by adopting his Witness Statement On Oath made on 25th November, 2008. He was not cross-examined by T.T. Ihua, Esq for the Plaintiffs but by Obande Idikwu Esq. for the 3rd-5th Defendants after which the case was adjourned to the 30th day of July, 2012 for continuation of Defence on which date the case was adjourned again to 28/5/2013 and subsequently to 9th July, 2013 and 26th September, 2013 on which date the learned trial Judge was minded to close the case of the 1st and 2nd Defendants pursuant to Order 30 Rule 11(2) of the Rules of the High Court of Benue State. It was not unit the 5th day of November, 2013 that the 5th Defendant ASP JUdidth Lisah (Judith Ortese as appeared(s) on the processes filed by the Parties), testified as DW2 and was cross-examined by S.E. Irabor, Esq; for the Plaintiff and Idikwu Esq, closed the case of the 3rd – 5th Defendants after which the case was again adjourned to the 16th of January, 2014 but it was not until the 13th of March, 2014, that DW3 one Chief Julius Adi adopted his Statement On Oath and some documents were tendered through him by John Ioryina, Esq. for the 1st and 2nd Defendants.

The Witness was then cross-examined by S.E. Irabor, Esq. for the Plaintiffs and Obande Idikwu Esq; for the 3rd – 5th Defendants after which the Learned Counsel for the 1st and 2nd Defendants closed their case and the case was again adjourned for the respective Learned Counsel to the Parties to file their Written Addresses which they did and the said Written Addresses were adopted on the 11th of November, 2014. Judgment was reserved for 19/12/2014 but it was not until the 11th day of May, 2015 that the Judgment culminating in this Appeal was delivered.

ARGUMENTS/SUBMISSIONS OF LEARNED COUNSEL TO THE APPELLANTS ON THE SOLE ISSUE DISTILLED FOR DETERMINATION:
“WHETHER THE AWARD OF N300,000(THREE HUNDRED THOUSAND NAIRA ONLY) AS GENERAL DAMAGES TO THE PLAINTIFFS/RESPONDENTS AGAINST THE 1ST AND 2ND DEFENDANTS/APPELLANTS WAS EXTREMELY HIGH?”

Arguing this Sole Issue, the Learned Counsel for the Appellants referred us to Page 324 of the Record of Appeal where the Learned Trial Judge held that he awarded N300,000.00 out of N381,000.00 claimed by the Respondents to the said Plaintiffs/Respondents as general damages and that the trial judge went ahead to order for the renewal of the permit for the exclusive use/possession of the disputed land by the Plaintiffs (now Respondents).

We were urged to resolve the Sole Issue in the affirmative on the principles of law enunciated by the cited authorities of MR. FELIX NWOYE ADIM v. NIGERIAN BOTTLING COMPANY LTD & ANOR (2010) ALL FWLR (pt. 527 690 at 703 -704 (paras. F-C) and HARUNA v. ISAH (2016) ALL FWLR (pt. 818) 918 at 952 (PARA. H) and 953 Paras. A-F; that an Appellate Court can interfere with an award of general damages where the award is manifestly too high or too low or based on wrong principles of law.
It was contended by the learned Counsel to the Appellants that as the 1st and 2nd Appellant’s Permit on the said land was discountenanced by the trial Court, it will be excessive and offensive to them (Appellants) to pay N300,000.00 out of N381,000.00 only, claimed by the Respondents (Plaintiffs in the High Court) who had been held to have become the exclusive beneficiaries of the claimed portions of land.

The learned counsel to the Appellants further contended that the Learned Trial Judge arrived at the award of general damages on wrong principles of law because the reasons relied upon for such award were special in nature that would have required specific pleadings and strict evidence at the trial. Referring us to the excerpt of the Learned Trial Judge’s Judgment at page 324 of the Records which I had earlier reproduced in this Judgment, the Learned Counsel for the Appellants was of the view that the learned trial judge descended into the arena to make a case for the Respondents when the latter could not successfully plead nor lead evidence to show the loss he suffered as a result of his inability to operate the sites due to the 1st and 2nd Defendants/Appellants’ intervention.

He further submitted that since the 1st and 2nd Respondents by the learned Trial Judge’s Judgment also have ample opportunity to acquire/renew NIWA Permits on the said Sites and continue to operate on same to the exclusion of the Appellants whose permits are/were discountenanced, the award of general damages on the same issue to the Respondents by the Trial Judge amounted to double compensation which the law frowns at. For the above submission, the Learned Counsel to the Appellant placed reliance on the case of  BRITISH AIRWAYS Vs. ATOYEBI (2015) ALL FWLR (pt. 766) 442 at 469 (paras. E-F); to urge us to resolve the Sole Issue in favour of the Appellants by setting aside the general damages awarded against them or in the alternative order a drastic reduction of same.

In the summary and conclusion of his Arguments, the Learned Counsel insisted that this Honourable Court should allow the Appeal, set aside the Trial Court’s Judgment or vary same and grant the Appellants’ reliefs as prayed in the Notice of Appeal for the following reasons:
(a) That having regard to the circumstances of the case as contained in the Record of Appeal, the Trial Court ought not to have awarded general damages in favour of the 1st and 2nd Respondents as the said award of damages has occasioned injustice to the Appellants and has brought out exceptional circumstances for this Court to re-evaluate the said evidence and set aside the earlier decision of the lower Court;
(b) That since the Trial Court accorded superiority to the NIWA Permit of the Plaintiffs/Respondents above that of the 1st and 2nd Appellants’ and equally ordered that the former’s Permit be further renewed, it is perverse and oppressive for the Court below to have gone ahead to award excessive general damages against the Appellants. Furthermore, according to the learned Counsel to the Appellants, the Trial Court in awarding the said general damages; raised suo motu the issue of loss suffered by the 1st and 2nd Respondents as a result of intervention by the Appellants, the fact which was special in nature and was not specially pleaded nor in evidence. According to the learned Counsel to the Appellants, the foundation for arriving at the award of general damages by the trial Court in favour of the 1st Respondent was based on a wrong principle of law and such award of general damages by the Trial Court ought to be set aside or drastically reduced by this Honourable Court.

ARGUMENTS OF THE LEARNED COUNSEL TO THE 1ST AND 2ND RESPONDENTS ON THE SOLE ISSSUE AS ADOPTED FROM THE APPELLANTS’ ISSUE AS DISTILLED FOR DETERMINATION:
Reacting to the above Arguments of the learned Counsel to the Appellants, the learned Counsel to the 1st and 2nd Respondents on his part submitted that the N300,000.00 (Three Hundred Thousand Naira only) awarded the 1st and 2nd Respondents by the lower Court as general damages is not excessive for according to him general damages are such as the law presumes to be the direct natural or probable consequence of the act complained of. Citing the case of ONYIORAH v. ONYIORAH (2019) 15 NWLR (pt. 1695) 247-258 paras. H-B; he submitted further that a claim in general damages means that the claimant cannot prove particular items, but can prove that he has suffered pecuniary loss.

He maintained per contra to the submissions of the learned Counsel to the Appellants in paragraph 3.04 of the Appellants’ Brief of Argument, that 1st and 2nd Plaintiffs (now Respondents) in their writ of summons prayed the Court for “An order of general damages against the 1st and 2nd Defendants in the sum of N381,000.00” (page 8 of the Record of Appeal refers) and the Learned Trial Judge in his wisdom considered the amount awarded as adequate for the Respondents’ loss. In the light of the foregoing the Learned Counsel to the 1st -2nd Respondents contended that the award made by the Court below was general damages that needs not be specifically pleaded or proved by evidence as it was awarded for the loss suffered which flows naturally from the Defendants/Appellants’ act.

For the above submission the learned Counsel cited and relied on the authorities of GTB PLC Vs. OBOSI MICROFINANCE BANK LTD (2018) LPELR – 44518, ASTRA INDUSTRIES) (NIG) LTD. Vs. N.B.C.I (1998) 4 NWLR (pt. 546) 357 and EDOSA Vs. FIRST BANK (2011) LPELR – 8785 (CA); on the position of the law that the Respondents needed not plead specifically and prove general damages before same can be awarded. Relying further on the dictum of Abba Aji, JCA (as he then was) in DIAMOND BANK PLC Vs. WELLCARE ALLIANCE LTD (2015) LPELR – 40762 at 27 – 28; on the role of the Trial Judge where general damages is claimed and liability is established and the circumstances under which on Appellate Court can alter or vary the award of such general damages, he urged us to discountenance the submissions of the Learned Counsel to the Appellants.
The learned Counsel then asserted that the general damages awarded the 1st and 2nd Respondents by the lower Court as well as granting them the other Reliefs sought, does not amount to double compensation and the case of British Airways vs. Atoyebi (supra) cited by the learned Counsel to the 1st and 2nd Appellants in paragraph 3.05 of their Brief of Argument does not apply in the circumstances of this case. He enumerated the circumstances under which an Appellate Court can interfere with the award of damages by a Trial Court as were variously decided in G.T.B. Vs. OGBOJI (2019) 13 NWLR (pt.1688) pp. 91 – 92 paras. G-B; ACB LTD Vs. APUGO (2001) 5NWLR (707) 653; B. B. APUGO & SONS LTD. Vs. OHMB (2016) LPELR – 40598 1 at 61 – 62; which authorities he cited and relied upon in urging/re-asserting that the lower Court’s award of general damages to the Respondents in the instant case was in accordance with what the Court considered adequate and the Appellants have not shown that the decision falls within the exceptional circumstances enumerated in paragraph 3.04 of the Respondents’ Brief of Argument to warrant this Court’s intervention in the award of the general damages by the Trial Court.

In conclusion, the learned Counsel to the Respondents, urged us to so hold and dismiss the Appellants’ Appeal and affirm the Judgment of the High Court.

The 3rd – 5th Respondents did not file Briefs of Argument neither did they proffer any viva voce argument for or against the Appeal at the hearing.

RESOLUTION OF THE SOLE ISSUE DISTILLED FOR DETERMINATION:

“WHETHER THE AWARD OF N300,000 (THREE HUNDRED THOUSAND NAIRA ONLY) AS GENERAL DAMAGES TO THE PLAINTIFFS/RESPONDENTS AGAINST THE 1ST AND 2ND DEFENDANTS/APPELLANTS, WAS EXTREMELY HIGH? (GROUNDS 1 AND 2 OF THE NOTICE OF APPEAL)”
I have carefully considered the brilliant arguments of the Learned Counsel to the respective parties on their disparate positions as to whether the general damages awarded the Plaintiffs who are now Respondents is/was extremely high. The law has long been settled on the principles guiding award of general damages by a trial Court and the circumstances under which an Appellate Court can interfere with such an award. There are authorities galore both from English Jurists and indeed Nigerian decisions from our Legal Gurus of yore as well as in recent times some of which have been cited and relied upon by the Learned Counsel for the parties on this vexed Issue.

However, before proceeding to determine whether the general damages awarded the Appellants is extremely high or not, let me draw our attention to the essence of award of damages. In the celebrated case of Anthony M. Soetan & Anor. Vs. Z. Ade Ogunwo (1975) 6 S.C. 67 at 72 following the dictum of Lord Blackburn in Livingstone Vs. Rawyards Coal Co. (1880) 5 A.C. 25 at page 39; our Supreme Court of yore posited that it is said that damages are compensation in monetary terms or sums of money given to successful Plaintiff(s) to compensate him/them for loss or harm of any kind suffered by them (him) as a result of the act of a Defendant(s). According to their Lordships, once a Party has been fully compensated for loss or harm suffered by him, it should not be open to the Court to proceed to award him any other kind of additional damages that may look like a bonus.
In the said case of Livingstone Vs. Rawyards Coal Co. (1880) 5 A.C. 25 at page 39 Lord Blackburn was quoted as stating that:
“Where any injury is to be compensated by damages…you should as nearly as possible get at that sum of money which will put the person who has been injured in the same position as he would have been if he had not sustained the wrong.”
Their Lordships of our erstwhile Apex Court also cited the cases of Admiralty Commissioners Vs. S.S. Valeria (1922) 2 A.C. 242 at 248 and Liesboach Dredger Vs. Edison (1933) A.C. 449 at 459; where Viscount Dunedin and Lord Wright had characteristically and succinctly stated the principles guiding the assessment of damages to be awarded to a party who like the 1st Respondent herein had established his claim in the Lower Court, that the true method of expression, is that in calculating damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as money can do so, the loss which he has suffered as the natural result of the wrong done to him.
Furthermore, by the above enunciated principle an injured person or whose right had been breached as in this case, is said to be entitled to what is called ‘restitutio in integrum’, which means that the Plaintiffs/Respondents were/are entitled to recover such sum of money as will replace the loss they had suffered or restore them in the same position as if the loss had not been inflicted on them subject to the rules of law as to remoteness of damage.
In so holding, their Lordships of the Apex Court in the Soetan & Anor. Vs. Ogunwo (supra) case, were not oblivious of the fact that in several cases of claims for personal injuries, or damage done to property which is unique and irreplaceable, it may be impossible to restore the party so injured to the original position he was before the act complained of occurred.

Turning to the crux of this matter which is whether the award of general damages of N300,000.00 (Three Hundred Thousand Naira) by ​the learned trial Judge to the 1st and 2nd Respondents out of the N381,000.00 claimed by them is extremely high, in the celebrated case of E.K. Odulaja vs. A.F. Haddad (1973) 11 S.C. 357 at pp. 361-362; the Supreme Court while distinguishing general damages from special damages held as follows:-
“We are in no doubt that the distinction between proof of general damage as opposed to special damage is a matter of law. This distinction is manifest from the following two English decisions:- (a) Stroms Bruks Aktie Bolag vs. Hutchison (1905) A.C. p. 515 and (b) British Transport Commission vs. Gourley (1956) A.c. p. 185.
In Stroms Bruks Aktie Bolag vs. Hutchinson, Lord Macnaghten, at pages 525-526, after stating that he thought the division into general and special damages was more appropriate to tort than to contract, said:
“General damages ….. are such as the law will presume to be the direct natural or probable consequence of the act complained of. Special damages on the other hand, are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and, therefore, they must be claimed specially and proved strictly.”
In British Transport Commission vs. Gourley, Lord Goddard had this to say at page 206 –
“In an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future.”
We are of the view that strict proof in the above context can mean no more than such proof as would readily lend itself to quantification or assessment.”
Again, the Apex Court also carried out the classification of General damages in the case of Anthony M. Soetan & anor. V. Z. Ade Ogunwo (supra) at pp. 75-76 inter alia:
“From the point of view of proof (evidence), general damages are classified into two categories –
a. that in which they (damages) may either be inferred (e.g. in cases of defamation or of personal injury to plaintiff when pain and suffering may be presumed); and
b. that in which they will not be inferred but must be proved (for instance, damages arising by way of general loss of business following an injury).
Even in regard to this later category, evidence will not be allowed to be given by a plaintiff of loss of a particular transaction or customer (following the injury) with a view to showing specific loss for that is a matter which falls in the realm of special damage.” See Chief J.K. Odumosu v. African Continental Bank Ltd. (1976) 11 S.C. 55 at pp. 68-69.”
Also in enunciating the principles guiding the quantification of General damages, the Supreme Court once more posited in Wilfred Omonuwa vs. B.A. Wahabi (Trading as B.A. Wahabi & Sons) (1976) 4 S.C. 37 at pp. 49 & 50, thus:
“As we have already stated, we take the view that the award of general damages is improper where the quantum of loss is certain. The view which we have just expressed was also taken by this Court in the case of Thomas Kerewe v. Bisiriyu Odegbesan (1967) N.M.L.R. 89 at page 91 where in delivering the judgment of the Court Onyeama, J.S.C., (as he then was) stated the law as follows:-
“In the present case there is no difficulty in measuring the loss suffered by the Respondent; it was either the value of the car, if it was a total loss, or loss of earning during repairs and the cost of the repairs if it was not.”
The Respondent put his case on the footing of loss of earning for about two months this was accepted and damages awarded. The further award of £100 “general” damages looks like a second compensation to respondent for the one loss and cannot be justified on any ground. It has been well said that the figure of justice carries a pair of scales and not cornucopis.
The quantification of general damages in terms of money is, however, a matter for the Court (i.e. the jury) under proper direction from the judge, or by the judge acting as a jury where the trial is without a jury and in a majority of cases no precise measure can be indicated although the award necessarily includes compensation for damage incapable of exact proof in terms of money. But as stated by Martin, B in an old case, general damages are “such as the jury may give when the Judge cannot point out any measure by which they are to be assessed except the opinion and judgment of a reasonable man” (see Prehn vs. Royal Bank of Liverpool (1870) LR. 5 Ezch. 92 at 99 100).”
What emerges from the dicta of the above cited cases is that general damages emanate/flow naturally or consequentially from the act(s) of the Defendant which is the cause of the action of the Plaintiff and that to succeed in a claim for such damages, the Plaintiff need not specifically plead or strictly prove same unlike in a claim for special damages. The rationale being that general damages are such that the law would imply or presume to accrue from the wrongful act complained of or as the immediate, direct, or proximate outcome of same and it is awarded at the discretion of the Trial Judge who in the exercise of such discretion must be judicial and judicious by calculating the amount in monetary terms based on the standard of a reasonable man that would assuage the Plaintiff for the damage suffered or incurre​d from the act of the Defendant. See S.P.D.C (NIG) LTD v. Tiebo VII (2005) 9 NWLR (pt. 931) 439; Garba v. Kur (2003) 11 NWLR (pt. 831) 280; Mobil Oil (Nig) Ltd. V. Akinfosile (1969) 2 SCNLR 322; Beecham Group v. Essdee Food Products (Nig) Ltd. (1985) 3 NWLR (pt. 11) 112; A-G., Oyo State v. Fairlakes Hotel Ltd. (No. 2)(1989) 5 NWLR (pt. 121) 255; Bello v. A.G., Oyo State (1986) 5 NWLR (PT. 45) 828. See also ONYIORAH v. ONYIORAH (2019) 15 NWLR (pt. 1695) 247-258 paras. H-B; ably cited by the respective Learned Counsel to the Appellants and Respondents.

The complaint of the Appellant in this Appeal is that the Learned Trial Judge ought not to have awarded general damages against the Appellants in favour of 1st and 2nd Respondents in that the Court below had accorded superiority to the NIWA permit of the Plaintiffs/Respondents above that of the 1st and 2nd Appellants and equally ordered that the former’s permit be further renewed. In his view, the Court below having regard to the circumstances of the case as can be gleaned from the Record of Appeal has occasioned injustice to the Appellant, by the award the sum of N300,000.00 in general damages thus creating an exceptional circumstance for this Court to re-evaluate the evidence of parties and set aside the decision of the lower Court.

Furthermore, according to the learned Counsel to the Appellants, the Trial Court in awarding the said general damages; raised suo motu the issue of loss suffered by the 1st and 2nd Respondents as a result of intervention by the Appellants, the fact which was special in nature and was not specially pleaded nor in evidence. According to the learned Counsel to the Appellants, the foundation for arriving at the award of general damages by the trial Court in favour of the 1st Respondent was based on a wrong principle of law and such award of general damages by the Trial Court ought to be set aside or drastically reduced by this Honourable Court.

The circumstances under which an Appellate Court like this Court can interfere with the award of damages by a Trial Court have been clearly stated in the authorities of GTB PLC Vs. OBOSI MICROFINANCE BANK LTD (2018) LPELR – 44518, ASTRA INDUSTRIES (NIG) LTD. Vs. N.B.C.I (1998) 4 NWLR (pt. 546) 357 and EDOSA Vs. FIRST BANK (2011) LPELR – 8785 (CA); DIAMOND BANK PLC Vs. WELLCARE ALLIANCE LTD (2015) LPELR – 40762 at 27 – 28; G.T.B. Vs. OGBOJI (2019) 13 NWLR (pt.1688) pp. 91 – 92 paras. G-B; ACB LTD Vs. APUGO (2001) 5NWLR (707) 653; B. B. APUGO & SONS LTD. Vs. OHMB (2016) LPELR – 40598 1 at 61 – 62; all cited by the respective Learned Counsel to the parties in this appeal.
For the avoidance of doubt this Court in the case of GTB PLC Vs. OGBOJI (2019) LPELR – 47642, ably cited and relied upon by Learned Counsel to the Appellants (also reported in (2019) 13 NWLR (pt. 1688) 67 at pp. 91-92 paras G-B) per Yahaya, JCA following the Supreme Court decisions in Adekunle vs. Rockview Hotel Ltd. (2004) 1 NWLR (pt. 853) 161; MTN (Nig.) Comm. Ltd. Vs. C.C. Investment Ltd. (2015) 91-92 paras G-B rightly held that;
“An Appellate Court will not interfere with the award of damages made by Trial Court except in following cases:
a. A Trial Court has acted under a mistake of law;
b. The Trial Court has acted in disregard of known principles, or acted on no principles at all;
c. The Trial Court has acted under a misapprehension of facts;
d. The Trial Court has taken into accounts irrelevant matters or failed to take account of relevant matters;
e. Injustice would result if the Appeal Court does not interfere; or
f. The amount awarded by the Trial Court is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of damages.”
Going by the above authority, unless any of the circumstances or conditions exist in this Appeal, this Court ought not interfere with the award of damages by the Trial Court. The Learned Counsel to the Appellant has called on us to re-evaluate the evidence and set aside the award by the Trial Judge because according to him, the award is not only oppressive but ridiculously high or excessively high thereby occasioning the Appellants miscarriage of justice to warrant our setting aside the award.

Now, the law is trite on authorities too numerous to mention that evaluation of evidence of Parties and their witnesses and ascription of probative value there to are within the exclusive purview of the Trial Court that was seised of the opportunity and rare advantage of hearing and watching the demeanour of the witnesses while testifying at the Trial Court. Accordingly, it is also settled that an Appellate Court like ours that has no such opportunity and the advantage of the Trial Court, as above mentioned is always loathe to interfere with findings of facts of a Trial Court; except such findings are perverse and in the case of award of damages as in the scenario we have found ourselves, the circumstances as enumerated in the above cited cases must exist before we can intervene. See Mogaji Vs. Odofin (1987) 4 S.E. 91; Whyte Vs. Jack (1996) 2 NWLR (Pt.431) 407; Borishade Vs. F.R.N. (2012) N.W.L.R. (Pt.1332) 347; Obueke Vs. Nnamchi (2012) 12 N.W.L.R. Page 327 (S.C.); Ukeje Vs. Ukeje (2014) 11 N.W.L.R. (Pt.1418) 384 and GTB Vs. Ogboji (supra) and the Supreme Court cases cited therein.

Be that as it may, to determine whether the award of general damages by the Lower Court was right or excessive it is only necessary or apt at this juncture to have a recourse to the pleadings and evidence led by the 1st and 2nd Respondents who were Plaintiffs in the Lower Court and who were beneficiaries of the said award. At Pages 6-8 and 119–121 of the Records, the 1st Plaintiff pleaded and deposed in Paragraphs 9–24 of their Statement of Claim and 1st Plaintiff’s Witness Statement On Oath as follows:
“9. Sometimes on 10th August 2001, 1st Plaintiff registered a portion of land which he used for farm with his late father Gaadi Amogo with the National Inland Water Ways Authority in accordance with Decree No. 13 of 1997 Laws of the Federal Republic of Nigeria on payment of N500.00. The receipt is hereby pleaded and annexed. The piece of land according to the Plaintiffs was later inspected and surveyed for burnt bricks at the expense of the Plaintiffs at the cost of N25,000.00 and permit fees of N5,000.00 paid to NIWA. The survey plans of 28th February 2003/28th February 2005 in respect of this site and the permit ref No. NIWA/MKD/ROW/042/1/24 of 4th October 2004 are hereby pleaded and annexed.
10. The Plaintiffs further avers that another inspection and survey for the sand winning site was done at their expense costing N15,000.00 and payment of permit fees of N5,500. The receipts, survey plan of 20/2/2004 and permit Ref No. NIWA/MKD/E/S&G/028/1/14 of 24th November 2004 are hereby pleaded and annexed.
11. The Plaintiffs avers that they constructed the 500 meters access road including excavation of the river bank at the sum of N225,200.00 only.
12. 1st Plaintiff avers that he had been winning sand and burnt bricks together with his late father Chief Gaadi Amogo and had been enjoying quiet and peaceful possession of the said sites after the demise of his father sometimes in August 1990 until 22nd November 2004.
13. Plaintiffs avers that sometimes on 22nd November 2004 they went to carry out their lawful business at the allotted areas to them at the beach, front of river Benue off airport junction kilometer 6 – 8 along Makurdi Gboko Road. 1st defendant informed 2nd and 3rd defendants in company of their cohorts and brigands armed with cutlasses, sticks and sword etc got them beaten by heating heavy blows on their chest consequent upon which the 1st Plaintiff sustained an injury on the back of his body causing great loss and damage to him.
14. Plaintiffs aver that they were also held captive by 1st – 3rd defendants together with their cohort and brigands preventing them from carrying out their usual work of burnt bricks and sand winning which is purely for the use of the right of way of federal navigable Inland “Waterways in accordance with Part II, III and second Decree No. 13 of 1997 Laws of the Federal Republic of Nigeria.
15. The Plaintiffs avers that they reported the actions of the 1st – 3rd defendants to the 4th defendant. The report made to the Police is hereby pleaded and annexed. It is Plaintiffs averment that instead of the 4th defendant to investigate the matter and resolve it in their favour, the 5th and 6th defendants arrested, tortured and detained the 1st Plaintiff at the instance and instigation of 1st – 3rd defendants in the C.I.D. Police cell Makurdi. Firstly on 16th to 20th December 2004 and secondly on 15th – 20th December 2005.
16. 1st Plaintiff avers that he was taken to a native doctor for treatment as a result of his detention at the state C.I.D cell and he spend N80,000.00 before he got partial relieve of the internal injury he sustained at the back of his body.
17. The 1st Plaintiff avers that he only secured Police conditional bail on each of the detentions by the 5th and 6th defendants on grounds that he should not return to the same piece of land covered by his permits to win sand and burnt bricks.
18. Plaintiffs aver that further to the foregoing, the 1st – 3rd defendants threatened to beat them to death if they dare return to the portion of land they had been working on for over two decades at the beach front of river Benue Off Airport junction on KM 6 – 8 along Makurdi – Gboko Road Makurdi, Benue State.
19. Plaintiffs aver that till date 1st – 3rd defendants have taken over the operations and are in occupation of the sites enjoying the benefits that accrue only to themselves in high disregard to the rules of natural justice, equity and fair play.
20. The Plaintiffs avers that 1st – 3rd defendants have made N220,000.00 from the sale of sharp sand to the public from the plaintiffs sand winning site in the 2004/2005 and 2005/2006 operating seasons.
21. The Plaintiffs further avers that the 1st, 2nd, 3rd defendants have made N117,000.00 from the sub lessees on the Plaintiffs burnt bricks site in the 2004/2005 and 2005/2006 operating seasons.
22. Plaintiffs further states that they reported the foregoing incidence to the Benue State Government. The report is hereby pleaded and annexed. The Benue State instead of intervening into the matter referred the report to the Ministry for Lands and Survey or Makurdi Local Government Council for authentication as to who owns the land. The letter ref No. MLGCA/S/TC/2/VOL1/168 dated 7th July 2005 is hereby pleaded and annexed. The Plaintiffs shall at the trial of the case contend that the two bodies have no jurisdiction over these portions of land since Inland Water Ways falls within the exclusive jurisdiction of the Federal Government.
23. Plaintiffs avers that they reported through their solicitors to the 4th defendant the actions of officers and men under his command which are detrimental to the peaceful co-existence within the community and the Nigerian nation but 4th defendant has not reacted to the plaintiffs solicitors report till date. The Plaintiffs solicitors letter dated 23rd December 2005 is hereby pleaded and annexed.
24. Plaintiffs also avers that they through their solicitor has served the 1st and 2nd defendant notice of intention to sue them should they fail to vacate the said respective sites. The Plaintiffs solicitor letter dated 30th/11/2005 is hereby pleaded and annexed.”

On their parts, the 1st and 2nd Defendants in their Joint Statement of Defence and Statements on Oaths of the 1st and 2nd Defendants as can be found in pages 74 – 76 and 162 – 167 of the Records pleaded and deposed to the following facts:
“4. In direct answer to paragraph 9, the defendants aver that sometimes between February 9th 2005 they applied through Sam-Mbaakpe Agricultural Cooperative Society Fiidi Makurdi, which is a registered cooperative society and has been carrying out farming activities on the land covering the area behind Benue Brewery Ltd Makurdi up to the area called Tyo Mu and was granted a permit for sand winning by the National Inland Water Ways Authority (NIWA) Makurdi Office for 2004/2005 season only.
5. The defendants shall rely on the following cash receipts and permits issued by NIWA and tender them in evidence and they are pleaded.
i. Application fee for sand winning receipt No. 37103 dated 04/02/05.
ii. Three applications forms for sand winning for 2005/2006 receipt No. 37271 dated 04/02/05.
iii. Full payment for permits/sand winning for 2005/2006 receipt No. 37272 dated 20/9/05.
iv. Permit issued by NIWA with ref No. NIWA/MKD/E/S&G/064/01/03 dated 9/02/05.
v. Payment advice issued by NIWA with ref. No. NIWA/MKD/E/S&G/064/01/01 dated 4/2/05.
6. The defendants denies paragraph 10, 11, 12, 13 and 14 of the claim and shall require the strictest proof thereof.
​7. In direct answer to paragraph 10 of the claim the defendants denies any knowledge of inspection and survey of another winning site by NIWA at the expenses of the Plaintiffs as they did not have any thing to do with it.
8. In further answer to paragraph 11 of the claim, the defendants contend that the access road has been constructed by the Benue Brewery Ltd. And the Benue State Government and not the Plaintiffs.
9. In response to paragraph 12 of the claim, the defendants contends that they have been winning sand, molding bricks, fishing and farming in the land in question from time immemorial through the Sam-Mbaakpe Agricultural Cooperative Society Fiidi Makurdi to the exclusion of the Plaintiffs who are not members of the co-operative society.
10. In direct answer to paragraph 13 and 14 of the claim the defendants denies neither harbouring any cohort and armed brigands nor holding the Plaintiff captive. Rather it was the plaintiff that brought thugs to beat up and chase the 2nd defendant from the sand winning site and even reported the matter to Police who investigated it and cleared the defendants of all the plaintiffs’ allegations.
11. In direct answer to Paragraph 15 of the claim, the defendants contend that when they commenced work of winning sand on the site behind Benue Brewery Ltd, Makurdi in accordance with the terms of grant by NIWA, the plaintiffs resorted to the use of force by employing thugs and reported the 2nd defendant to the Police.
12. In further answer to paragraph 15, when the plaintiffs were dissatisfied with the decision of NIWA they resorted to making series of complaints to the Commissioner of Police and other government agencies by writing several letters dated 25th November 2004, to the Commissioner of Police, a report to the Commissioner of Local Government and Chieftaincy Affairs, dated 9th June 2005, letters from Orshi, Gbehe & Co dated 30th November, 200 letters from A.P.Y. Awuhe & Company dated 23rd December 2005 and against the defendants.
13. The defendants further contends that all the allegations to the Police Ministry of Local Government & Chieftaincy Affairs were investigated by the appropriable authorities who exonerated the defendants and referred them to NIWA who is the Federal Government agency responsible for issuing permits for settlement.
14. The defendants denies paragraphs 16, 17, 18, 19, 20 and 21 of the claim and shall require strictest proof thereof.
15. In direct answers to paragraphs 22, 23 and 24 the defendants avers that they were duly issued with permits by the NIWA, the Federal Government agency responsible for same and had no reason whatsoever to have any dealings with the plaintiffs solicitors and other government agencies.
16. WHEREOF the defendants shall urge the Court at the hearing to dismiss the plaintiff’s suit for being frivolous, vexatious and lacking in merit.”

It would be recalled that the 1st Plaintiff/PW1 (Davien Gaadi) testified on the 13th day of February, 2012 by adopting his Witness Statement On Oath made on the 28th October, 2008 and documents marked as Exhibits 1 – 10 were tendered and admitted. Under cross examination by Learned Counsel to the Defendant (now Appellant), he stated as follows:
“In 2001 when NIWA established office in Benue State one must obtain permit from her before carrying out any business along River Benue. On 10/8/2001 I did not have that permit before I extracted sand from the River. The payment of permit fees of N5,000.00 gives me the right to carry out the business. It was on 4/10/2001 that I got the permit to carry out the work I exactly the size of the land I was permitted to carry out the excavation on but it was about 200 x 400. I need to look at the document relating to the land. I can see Exhibit 5. It contains 30.5 x 120 metres. I am not the only person that was given permit to extract sand along the River Benue. The 1st and 2nd Defendants also have the permit to extract sand along the water-way. NIWA granted all of us permit when there was conflict between us, I sought NIWA’s clearance. I did not sue NIWA in this case. NIWA decided in my favour. It is not the Ministry of Lands and Survey that has the power to draw the site plan as the ones tendered. It is the NIWA Surveyors. They retain the originals and gave us the photocopies.
In Exhibit 8, I said I constructed the access road for N100,000.00 while in my paragraph 8 of my Statement On Oath, I said it was N225,200.00 I prefer the Court takes that of N225,200.00. It is possible for someone to be hit with a block (sic) at the star and the scare appears at the back. I was not given any receipt by the native doctor who treated me. I arrived at the figure of N220,000.00 in my paragraph 14 through excavation of sand. I do not excavate sand in that area anymore. The 1st and 2nd Defendants are still there since 22/11/2004 I have not gone to the site. I know of the money through the person who counts the number of tippers that load sand out of the place. I employed the person to do it. It is not true that the Defendants reported me to the Police over the issue the 3rd Defendant (deceased) was arrested and detained at the Police Headquarters for a day over the matter.”

​On further cross-examination by Obande Idikwu Es q; he further replied thus:
“I claim that the 3rd – 5th Defendants detained me illegally I reported the acts of the 1st – 3rd Defendants to the Police but I don’t know if the 1st – 3rd Defendants reported me to the Police. I was (sic) and tortured. I was forced to sign undertaking by the Police and did I know Michael Eneke.
The 6th Defendant and Supol Chia were in a team of Police investigators. I wrote a statement at the Police station that time but I was tortured. It was an undertaking by me.”
See pages 295 – 296 of the Record of the Appeal.

At pages 297 – 298, when hearing resumed on the 19th of March, 2012, Obande Idikwu Esq. continued his cross examination of the PW1 and the witness stated as follows:
“On 20/12/2005 I wrote a letter before the Police undertaking that I would not commit any offence or cause trouble. This is the letter.”
The said letter which was PW1’s extra-judicial statement to the Police/undertaking not to cause any trouble at the Kilometre 8 Gboko Road Beach dated 20/12/2005 was tendered through him by Obande Idikwu Esq. and same was admitted and marked Exhibit 11. Still on further cross- examination the PW1 finally stated that:
“Even though I have no medical report I still want the Court to believe me that I was injured and treated. I made a complaint to the Police but it was not investigated. I did not take the allegation of torture against me and the Police to the Court.”
With the above answers to the cross-examinations of the respective Learned Counsel for the 1st and 2nd Defendants/Appellants, the Plaintiffs/Respondents closed their case.

On the 3rd day of July, 2012 when the Defendant opened their defence, the 2nd Defendant Igba Azenda testified as DW1 by adopting his Witness Statement On Oath made on the 25th November, 2008 but was not cross-examined by T.T. Ahua Esq. the Learned Counsel for the Plaintiffs/Respondents. When cross-examined by Obande Idikwu Esq., the Witness/DW1 stated as follows:
“When the incident happened I was arrested by the Police on allegation of attempt to kill the Plaintiff. I was taken to the Police station and was detained for three days. The Plaintiff came to the Police station. The Police did not do anything to him. I wouldn’t know it the Plaintiff was tortured by the Police. It has taken time so I cannot remember Michael Enokela. The 5th Defendant was among those who arrested me. The 4th Defendant was also among those who arrested me and put me in the cell. They did not do anything to the Plaintiff.” See pages 301 and 302 of the Records.

On the 26th September, 2013 following the several adjournments at the instance of the 1st and 2nd Defendants (now Appellants), the Learned Trial Judge was minded to close the case of the 1st and 2nd Defendants pursuant to Order 30 Rule 11 (2) of Benue State High Court Rules and adjourned the case for the 3rd – 5th Defendants to open their defence but it was not until the 5th of November, 2013 that hearing resumed and Judith Ortese/5th Defendant who stated on Oath that she was ASP Judith Lisah testified as DW2 by adopting her Witness Statement On Oath made on the 1st of June, 2009. Under cross-examination by S.E. Irabor Esq. for the Plaintiff/Respondents she averred as follows:
“I was in the team that investigated the case. During the interview mentioned in my statement the Head of Engineering Unit of Nigerian Inland Water Ways Authority (NIWA), A.A. Musa was present. Both parties presented their letters of authorization from NIWA to the interview. In the course of our investigation, the officer from NIWA informed us that both of them were granted authorization at that point the parties asked to be allowed to go and settle the matter.” See page 308 of the Records.

The 3rd to 5th Defendants closed their case at the end of cross examination of the DW2 and the case was further adjourned to 16th January, 2014 for motion but it was not until the 13th day of March, 2014 that hearing again resumed and the motion by the Learned Counsel for the 1st and 2nd Defendants for them to re-open their case that was closed by the Court, was granted. Subsequently, on the 8th day of May, 2014; Chief Julius Adi testified through an interpreter by also adopting his Witness Statement On Oath made on the 15th day of May, 2008 and documents marked Exhibits 12, 13, 14, 15, 16, 17, 19, and 21 were tendered by John Ioryina Esq. through the Witness.

Under cross examination by S.E. Irabor Esq. for the Plaintiff he Witness stated as follows:
“Part of the land in dispute is opposite Air Force Base Junction. We have a site plan of the area of land but it is not before the Court. When a permit is issued it specifies the site covered.”

When cross-examined by Obande Idikwu Esq. the Witness further stated as follows:
“The Plaintiff attacked my children not myself. That’s why we reported to the Police. The Plaintiff did not make a complaint against me. I now say that he reported me that I attacked him but it was found to be false. I was at the Police Station with the 2nd Defendant. The Police Officers were detailed to investigate the case. The Police investigated the case and found the Plaintiff to be at fault. That is why the Plaintiff sued us. The Police did not harass the Plaintiff in any way.” See pages 310 -312 of the Records.

With the above answers to cross-examination of the DW3 the 1st and 2nd Defendants (now Appellants) then closed their case and the case was adjourned to 19th June 2014 for adoption of Written Addresses by the respective Learned Counsel to the Parties.

In his Judgment, the Learned Trial Judge carried out copious evaluation of both the oral and documentary evidence adduced and tendered by the parties and their witnesses in support of their respective cases and upon his consideration of the three (3) Issues distilled for resolution he was of the view that from the facts pleaded and evidence adduced by the parties in proof thereof the Issues for determination as posed by the Learned Counsel to all the parties would be considered along with the reliefs sought by the parties. See pages 317 – 322/2-7 of the Records/Judgment of the Court below.

On Issue No 1 which was whether the Plaintiffs had proved exclusive use of portions of land alleged to be granted to him by NIWA, the Learned Trial Judge held thus:
“This Issue relates to reliefs 25(a) (b) and (d). I have examined the permits tendered by all the parties and I find that the Plaintiff’s permit, Exhibits 5 and 6 describe the area of operation in a more precise way than those relied upon by the 1st and 2nd Defendants. Exhibits 15 and 16 were tendered by the 1st and 2nd Defendants. Exhibits 15 and 16 do not contain the description of which the permits were granted to the cooperative society through which the 1st and 2nd Defendants claim to be permitted. Exhibit 5 tendered by the Plaintiffs describes the area by beacons Nos. ND1, ND2, ND3, ND4 and puts the area of coverage as 30.5 x 120m at Beach front of River Benue, Airport, Makurdi and Exhibit 16 puts the area of coverage as 320 x 168m at opposite Airport junction km, 8, Gboko Road Beach, Makurdi. Looking at the permits of the parties, it is clear that the Plaintiffs’ permits are more descriptive than the Defendants. I therefore agree with the Plaintiffs that they have proved their exclusive use of the portions of land granted to 1st Plaintiff by NIWA. For ease of reference, the portions, as described in Exhibits 5 and 6 are; the beach front of River Benue, Airport, Makurdi, bounded by beacons Nos. ND1, ND2, ND3, ND4 covering an area of 30.5 x 120m and the right of way of River Benue opposite Airport junction, km 8, Gboko Road Beach covering an area of 320 x 168m respectively. Exhibits 15 and 16 granted to SAM MBAAKPE Agric Cooperative Society on which the 1st and 2nd Defendants rely do not refer to any portion of land. They are therefore, not superior to the 1st Plaintiff’s permits. At the time this cause of action arose, the 1st Plaintiff had permit over the land in dispute. He is therefore entitled to the reliefs he claims in paragraph 25(a) (b) (c) and (d) of the Statement of Claim.” See page 7/323 of the Judgment/Records lines 15 – 44.

The grouse of the Appellants in this Appeal is as had earlier been stated, the award of N300,000.00 (Three Hundred Thousand Naira only) general damages out of the sum of N381,000.00 (Three Hundred and Eighty-One Thousand Naira only) claimed by the Respondents, which their Learned Counsel has urged us to interfere with on the grounds that the Learned Trial Judge had ordered for the renewal of the permit issued them by NIWA for the exclusive use of the land by the Plaintiffs/Respondents and that the Court below having discountenanced the Defendants/Appellants’ permit; it would be excessive and oppressive to the Appellants.

It is also the contention of the Learned Counsel to the Appellant that the Learned Trial Judge awarded the damages on wrong principles of law because the reasons advanced for the award were special in nature which required specific pleading and strict proof at the trial. The Learned Counsel also alleged that the Learned Trial Judge descended into the arena to make a case for the Plaintiffs/Respondents when they could not successfully plead or specifically lead evidence to show the loss they suffered as a result of their (Respondents’) inability to operate the sites owing to the intervention of the 1st and 2nd Defendants/Appellants.

Nothing can be further from the truth as the Learned Trial Judge rightly held in my view at pages 9/324 of the Judgment/Records that :
“On the claim of general damages, it is my view that, having held earlier that the 1st Plaintiff has proved his entitlement to reliefs 25(a) (b) (c) and (d) it is only proper that he goes home with something to compensate him for the loss he suffered as a result of his inability to operate the sites due to the 1st and 2nd Defendants intervention. The Plaintiffs claim the sum of N381,000.00 but I award the sum of N300,000 (Three Hundred Thousand Naira) to them against the 1st and 2nd Defendants only. It is unfortunate that the 1st Plaintiff was not allowed to utilize the period granted in the permit. I observe that the permit is not for an indefinite period. It is a renewable permit. It is therefore my view and I so order that the 1st Plaintiff has to renew the permit before he can effectively operate at the sites any further.”

I am of the considered view that even though the Respondents claimed a sum of N381,000.00 that sum was in general damages that needed not to be strictly proved once the Court below after a careful evaluation of the evidence had held and rightly so, that the Plaintiffs/Respondents had proved their entitlement to reliefs 25(a) (b) (c) and (d) of their Statement of Claim. I am also in total agreement with the reasoning and finding of the Learned Trial Judge that it is only proper that they go home with something to compensate them for the loss they suffered as a result of their inability to operate the sites due to the 1st and 2nd Defendants intervention.
I take umbrage in the earlier cited authorities of Anthony M. Soetan & Anor. Vs. Z. Ade Ogunwo (1975) 6 S.C. 67 at 72 following the dictum of Lord Blackburn in Livingstone Vs. Rawyards Coal Co. (1880) 5 A.C. 25 at page 39; Admiralty Commissioners Vs. S.S. Valeria (1922) 2 A.C. 242 at 248 and Liesboach Dredger Vs. Edison (1933) A.C. 449 at 459; E.K. Odulaja vs. A.F. Haddad (1973) 11 S.C. 357 at pp. 361-362; (a) Stroms Bruks Aktie Bolag vs. Hutchison (1905) A.C. p. 515 and (b) British Transport Commission vs. Gourley (1956) A.c. p. 185; In British Transport Commission vs. Gourley, per Lord Goddard (supra) and hold that the Learned Trial Judge whose duty it was to evaluate the evidence, had discharged his duty dispassionately and creditably and properly directed himself on the quantification of the general damages awarded to the 1st and 2nd Respondents which has been held in Wilfred Omonuwa vs. Wahabi (Trading as B.A. Wahabi & Sons) 1976 4 SC 37 at pages 49 – 50; that no precise measure can be indicated and the award of N300,000 include compensation for damage incapable of exact proof in monetary terms. I therefore hold that I and indeed this Court, have no business interfering with the un-assailable reasoning and conclusion of the Learned Trial Judge on the award of general damages.

It is pertinent to note that the erudite Augie JSC with whom Rhodes-Vivour, Ariwoola, Nweze and Galumje, JJSC concurred in the case of Onyiorah vs. Onyiorah & Anor (2019) LPELR-49096 (SC), ably cited by the Learned Counsel for the parties herein on the distinction between general and special damages; had posited and restated the settled position of the law when he quoted from the dictum of the Legal Sage Elias, CJN in the locus classicus of Shodipo & Co. Ltd vs. Daily Times (1972) ALL NLR 842; that:
“General Damages” are such as the law will presume to be the direct natural or probable consequence of the act complained of.

………………………………………………………………
Whereas a claim for general damages means this: We cannot prove particular items, but we can prove beyond all possible doubts that there has been pecuniary loss.”

Finally, I shall adopt the decision of our Learned colleague Abba Aji, JCA (as he then was) in the oft-cited case of Diamond Bank PLC vs. Wellcare Alliance Ltd. (supra); where he succinctly held on this vexed issue of award of general damages thus:
“The law is trite that where general damages are claimed if the issue of liability is established as in the present case, the trial Judge is entitled to make his own assessment of the quantum of such general damages and on appeal, such damages will only be altered or varied if they were shown to be either so manifestly too low or that they were awarded on a entirely erroneous estimate of the damages to which Plaintiff is entitled.”

Going by the above authorities, I am of the considered view that the Learned Trial Judge did not descend into the arena of conflict nor was the award of general damages of N300,000.00 (Three Hundred Thousand Naira only) to the 1st and 2nd Respondents excessive, oppressive or against established principles of law as variously decided on the authorities of GTB v. OGBOJI (supra); ACB LTD vs. APUGO (supra); BB APUGO & SONS LTD vs. OHMB (supra) all cited by the Learned Counsel to the Respondents.

Accordingly, the Court below did not act in misapprehension of facts, did not consider irrelevant factors nor did he disregard relevant matters while considering the award. Again, contrary to the view of the Learned Counsel to the Appellants, no injustice has been occasioned the Appellants who deliberately trespassed upon the portions of land allocated to the Respondents by NIWA for excavation of sand and bricks winning activities since 2004 until 2015 when the Judgment of the Court culminating in this Appeal was delivered. Definitely, the Respondents must have lost substantial sum of money from the frustration of their business by the Appellants and to me, the Respondents deserved an equally substantial sum of money in general damages since they were not awarded special damages. Therefore, in my humble view, and not minding that the Trial Court granted the reliefs sought in paragraph 25 (a) – (d) of the Respondents’ claim which was the natural, probable and direct consequences of the Appellants acts, or breach of the Respondents’ rights, it did not amount to double compensation because the Respondents by the conduct or acts of the Appellants, were deprived of the proceeds from their business from 2004 to 2015.

On the whole, I am in complete agreement with the Learned Counsel to the Respondents that the learned Trial Judge awarded the general damages to the Respondents in accordance with what he (the Learned Trial Judge), in his undoubted discretion which he exercised judicially and judiciously, considered adequate and the Appellants even conceded that this Court in the alternative should order drastic reduction of the said sum which prayer I refuse to grant. I therefore resolve the sole issue distilled for determination against the Appellants and in favour of the 1st and 2nd Respondents.

Finally, I hold that this Appeal is unmeritorious and same is therefore dismissed. The Judgment of Hon. Justice T.A. Igoche of the High Court of Justice, Benue State, Holden at Makurdi and delivered on 11th day of May, 2015 in Suit No. MHC/257/2008, is hereby affirmed. Parties shall bear their respective costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother HON JUSTICE IGNATIUS IGWE AGUBE, JCA. He has exhaustively and meticulously addressed the issues in contention. I agree with the reasoning and conclusion that the appeal lacks merit and is accordingly dismissed.

The judgment of the trial Court, delivered by HON. JUSTICE T. A. IGOCHE on the 11th day of May 2015 in suit NO MHC/257/2008 is hereby affirmed.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA and I am in complete agreement with his reasoning and conclusion in the lead judgment. To add my voice, the Appellants called on the Court to re-evaluate the evidence and set aside the award of N300,000.00 made by the trial Judge because, as contended by the Appellants, the award is not only oppressive but ridiculously high or excessive thereby occasioning a miscarriage of justice such as to warrant the setting aside the award. However, the law is trite that where a party who has by evidence established that a defendant is liable, he is entitled without more to general damages for the liability. See the case of OKUNRINMETA V. AGITAN (2002) 6 WLR (PT. 100) 1377 and NBC PLC V. UBANI (2013) LPELR-21902{SC)
From the records of Court, the trial Court held that the issue that created the liability was established, therefore, the trial Judge is entitled to make his own assessment of the quantum of such general damages and the Appellate Court can only interfere where such damages is shown to be either so manifestly too low or that they were awarded on a entirely erroneous estimate of the damages to which Plaintiff is entitled. See the case of AGU V. GENERAL OIL LTD (2015) LPELR-24613(SC) where the apex Court held thusly:
“It is settled law that where damages have been awarded by a trial Court, an alteration of the award will be made by an appellate Court only where it is shown that the award is either manifestly too law or too high or was made on wrong principles – See the case of U.B.A. v. Achoru (1990) 6 NWLR (Pt. 156) 254: Ijebu-ode Local Govt. u. Adedeji Balogun & co. (1991) 1 NWLR (Pt. 166) 136: Onaga v Micho & Co. (1961) 2 NSCC 189 at 192.” Per ONNOGHEN, JSC.
Flowing from above, I too find that the Appeal is unmeritorious and be dismissed. Therefore, I adopt the lead judgment in affirming the judgment of the lower Court and abide by the other orders made therein.

Appearances:

H. Usha Esq. with Tomter Nyiakura Esq. For Appellant(s)

P.N. Jooji Esq. for the 1st & 2nd Respondents

I.R. Jiabu Esq./Chief State Counsel, Ministry of Justice Benue State for the 3rd – 5th Respondents. For Respondent(s)