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AL-ADAM v. UMAR & ORS (2022)

AL-ADAM v. UMAR & ORS

(2022)LCN/16171(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Wednesday, March 30, 2022

CA/K/221/2016

Before Our Lordships:

Amina Audi Wambai Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

BELLO AL-ADAM APPELANT(S)

And

1. SADEEQ USMAN UMAR 2. ATTORNEY GENERAL AND COMMISSIONER OF JUSTICE, KADUNA STATE 3. THE MINISTRY OF LANDS, SURVEY & COUNTRY PLANNING, KADUNA STATE 4. THE EXECUTIVE GOVERNOR OF KADUNA STATE RESPONDENT(S)

 

RATIO

THE MEANING OF THE LEGAL MAXIM OF “UBI JUS UBI REMEDIUM”

It is settled law that where there is a wrong, there must be a remedy. This is the basic and elementary principle of law expressed in Latin Maxim as “ubi jus ubi remedium” which simply means that where ever there is a wrong there ought to be a remedy to redress the wrong. This principle transcends beyond the common law or statutory law. It is a principle rooted in equity, for equality will not allow a wrong to be without a remedy even where none is provided by the law. Every Court as a Court of law and equity is enjoined to create a remedy where none exists in common law or in statute provided there is an established wrong. In ORIANZI V. ATTORNEY GENERAL RIVERS STATE (2017) 6 NWLR (Pt. 1561) 224, the Supreme Court speaking on the fundamental nature of the legal maxim to the administration of justice stated thus:
“The Maxim “Ubi jus, Ubi remediun” is simply the latin rendition of the above principle. The maxim is so fundamental to the administration of justice that where there is no remedy provided by common law or Statute, the Courts have been urged to create one. The Courts cannot therefore be deterred by the novelty of an action.
In other words, the law is an equal dispenser of justice, and leaves none without a remedy for his right. Wherever there is a wrong, there must be a remedy to redress that wrong. Justice, must not only be done, it must be seen to have been done.”
See also OPIA V. INEC & ORS (2014) 2 SCNJ (Pt. 11) 516 at 537.
This is why the Court is enjoined to make its motto “ubi jus ubi remedium” so that no wronged person comes before it but is granted a remedy. It will therefore be naive on the part of the Court to be deterred by the Novelty of the action not to create a remedy where there is an established wrong.
The principle as postulated in ASHBY V. WHITE (1703) and adopted by the Supreme Court in BELLO V. ATTORNEY GENERAL OYO STATE (1986) 5 NWLR (Pt. 45) 828 is that where from the available facts the Court it is satisfied:
(i) that the defendant was under a duty to the plaintiff;
(ii) that there was a breach of that duty;
(iii) that the defendant suffered legal injury;
(iv) that the injury was not too remote.
It will surely provide a remedy i.e., create one irrespective of the fact that no remedy is provided either at common law or by Statute.
The Court is to look at the substance of the case rather than the form. Once it is established that the defendant has a duty to the plaintiff which was breached by unwarranted abrogation of their contract; that the injury suffered by the plaintiff is not too remoter, the wrong must be addressed and redressed by the Court. The plaintiff cannot be made to go away empty-handed without a remedy. This is the purport of the decision in BELLO V. ATTORNEY GENERAL OYO STATE (SUPRA).
Oputa, JSC, aptly observed as follows
“Holt. CJ in the now famous case of Ashby V. White (1703) postulated the principle that “if a plaintiff has a right he must of necessity have the means to vindicate it and a remedy, if he is injured in the enjoyment or exercise of it and indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal”. PER WAMBAI, J.C.A.

THE POSITION OF THE LAW WHERE THE LAW DOES NOT PROVIDE A REMEDY
Will the law and the Court of equity send the Appellant home empty-handed without any relief? Methinks not.
In a scenario like this even where the law does not provide a remedy, the facts of this case presents a very suitable situation for this Court to create a remedy for the Appellant who has suffered injury by the act of the 2nd–4th Respondents. In CIL RISK AND ASSET MANAGEMENT LTD V. EKITI STATE GOVERNMENT (2020) LPELR–49565 (SC) M.PETER ODILI JSC quoting Tabai JSC in SALEH V. MONGUNO & ORS. (2006) LPELR 2992 (SC) at p. 27 D–F stated inter alia.
“it (the maxim) enjoins the Courts to provide a remedy whenever the plaintiff has established a right. The Court cannot do otherwise. It is enjoined to eschew reliance on technicalities in the determination of disputes”.
That is why Augie JSC in ORIANZI V. ATTORNEY GENERAL RIVERS STATE (SUPRA) reiterated the law that:
“if the plaintiff has a right, he must of necessity have the means to vindicate it and the remedy if he is injured in the enjoyment or exercise of it. There cannot be a right without a remedy for want of right and want of remedy are reciprocal.”
PER WAMBAI, J.C.A.

THE POSITION OF LAW ON THE PRIMARY DUTY OF THE TRIAL COURT

The primary duty of the Court is to do substantial justice to all parties in accordance with the law. This includes equity. It cannot allow itself to be bugged down by technicalities or to construe provisions of statutes in a manner to defeat the purpose of the lawmaker or in a manner that will result in injustice to one of the parties. The daunting duty of Courts is to aim at and do substantial justice between parties before it and not to defeat justice by clinging to the endless whirl of technicalities. Afolabi v. Adekunle (1983) 2 SCNLR 141: Obi v. Ozor (1991) 9 NWLR (Pt. 213) 94. Salisu Vs Mobolaji (2016) 15 NWLR (Pt. 1535) 242 at 258. ” PER WAMBAI, J.C.A.

THE PRINCIPLE OF INTERPRETATION OF STATUTES

Moreover, by the rule of interpretation, the Court is enjoined not to give a statute a construction that would defeat the very intention and purpose of the lawmaker. In General Mohammed Buhari & Anor V. Alhaji M. Dikko & Anor 14 NSCQR (Pt. 11) 1114 at 1161 the Apex Court held per Niki Tobi JSC, as follows: –
“It is settled principle of interpretation of statutes that the Court would ascertain the intention and purpose of the lawmakers and give effect to same.

The Court should not give a statute a construction that would defeat the very purpose of the law maker. “
After all, the expected result of adjudication is the attainment of substantial justice. In navigating the path of justice, the Court must not allow itself to be entangled in the web of technicalities to defeat the very essence of its primary duty.

In the instant case, clearly the Appellant had a right; he was deprived of enjoying same; and there must be a remedy -”
PER WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of the Kaduna State High Court sitting in Kaduna in consolidated suits No. KDH/KAD/598/2011 and KDH/KDA/421 delivered on 19/12/2014 by Honourable Justice D.H. Khobo, (herein after simply referred to as the lower Court and learned trial Judge respectively) which entered judgment in favour of the 1st Respondent as the Plaintiff in suit KDH/KDA/598/2011 and dismissed the Appellant’s claims in suit KDH/KDA/421/2013.

As a necessary prelude, it is important to state on the outset that in the course of proceedings of suit No. KAD/KAD/598/2011, the Appellant as first defendant sought to amend his statement of defence to incorporate his counter-claim vide a motion on Notice of 16th November, 2012 pursuant to Order 25 Rule I of the Rules of the lower Court. The said application was refused. It was the refusal of the application that led the learned Appellant’s Counsel to institute a new action, suit No. KDH/KAD/421/2013, giving rise to this appeal.

​The Appellant was aggrieved and filed two separate Notices of appeal to challenge the two decisions. Now, the dispute between the 1st Respondent and the Appellant is over the ownership of a piece of land situated and lying at plot No.8 Road VII TPO 486 Unguwan Dosa Layout Kaduna (now simply referred to as the land in dispute or the disputed land). Both parties claim the rightful ownership of the disputed land. The intractable running battle led the 1st Respondent as plaintiff to institute suit No. KDH/KAD/598/2011 before the lower Court against the Appellant and 2nd–5th Respondents as defendants claiming the following:-
a. A declaration that the title of the Plaintiff’s predecessor in title -Dauda Chawai in relation to the property situate and lying at plot No. 8 Road, VII TPO 486 Unguwan Dosa Layout, Kaduna as evidenced by the Certificate of Occupancy No. 10895 is valid and subsisting.
b. A declaration that the Plaintiff is the title holder/beneficial owner of the property situate at plot No. 8 Road, VII TPO 486 Unguwan Dosa Layout, Kaduna as evidenced by the Certificate of Occupancy No. 10895 registered as No. 39 in volume 50 of the Land Registry, Kaduna State in the name of Dauda Chawai having acquired same through purchase.
c. A declaration that the purported letter of offer in relation to the property situate at plot No. 8 Road, VII TPO 486 Unguwan Dosa Layout, Kaduna granted to the 1st Defendant by the 2nd & 3rd Defendants in the face of prior allocation of same to the Plaintiff’s predecessor in title – Dauda Chawai is null and void, and incapable of vesting any right, title and interest on the 1st Defendant on the basis of the Nemo Dat Quad non Habet Principles.
d. An order setting aside the purported letter of offer granted in favour of the 1st Defendant by the 2nd and 3rd Defendants based on the purported issuance of the letter of offer of plot No. 8 Road, VII TPO 486 Unguwan Dosa Layout, Kaduna.
e. A declaration that the conduct of the 1st Defendant in forcibly gaining entry into the property situate at plot No. 8 Road, VII TPO 486 Unguwan Dosa Layout, Kaduna by destroying/demolishing the structures and/or wall fence erected by the Plaintiff amounts to trespass and unlawful interference with the Plaintiff’s right and interest over plot No. 8 Road, VII TPO 486 Unguwan Dosa Layout, Kaduna.

​It is in reaction to the above claims of the 1st Respondent that the Appellant not being permitted to file a counter-claim, sought in suit KDH/KDA/421/2013 the subject of this appeal, the following reliefs:
a. A declaration that by virtue of the offer of the disputed land No. 8 Road, VII Angwan Dosa Layout, Kaduna, in 1995 by the 3rd Defendant after the revocation of the title of the 1st Defendant’s predecessor in title which the 3rd Defendant says is irregular, the Plaintiff is entitled to an alternative plot of land as recommended and accepted by the 3rd Defendant within a reasonable time.
b. An order directing the 3rd and 4th Defendants to, as a matter of urgency, offer to the Plaintiff (within a reasonable time as may be specified by this Hon. Court as a replacement) a satisfactory and acceptable alternative plot as contained in the 3rd Defendant’s recommendations which must be situated in a prime and low density area of similar value or character.
c. Sum of N10,000,000.00 (Ten Million Naira) being general and exemplary damages against the 3rd Defendant in favour of the Plaintiff for breach of contract; causing prolonged pain and agony by reason of refusal to make available an alternative plot within a reasonable time, traumatic experience, avoidable expenses which includes commissioning a firm of Architect (Arciv consult Ltd) to produce an architectural design.
d. Sum of N500,000.00 (Five Hundred Thousand Naira) against the 1st Defendant being general damages for resorting to self-help by forcefully removing the Plaintiff’s properties on the disputed land without an order from a Court of law.

​The case for the Appellant is that the plot of land issued to Dauda Chawai by Certificate of Occupancy No. 10895 (Exhibit 2) was revoked in 1995 for failure to fulfil the covenant of developing the plot within 2 years. Appellant who was unaware of the previous allocation and revocation to Dauda Chawai applied and was allotted the same plot resulting in a prolonged struggle between himself and the 1st Respondent over the land which necessitated the 3rd Respondent in a letter (Exhibit 17) advising the Appellant to take over possession of the property. That notwithstanding, the struggle continued and the 3rd Respondent offered an alternative plot to the Appellant but without the intention of making good the recommendation.

On the part of the 2nd–5th Respondents, the Certificate of Occupancy issued to Dauda Chawai though sought to be revoked; the revocation notice was not served on the said Dauda Chawai thus Exhibit 2 was not revoked.

After the full trial in which the Appellant testified as the sole witness and tendered several Exhibits, the 1st Respondent as DW1, and DW2 on behalf of the 2nd to the 5th Respondents, the learned trial Judge dismissed the Appellant’s case in its entirety and in doing so held inter alia:
“it is my considered view that in the absence of the 4th defendant’s approval to the 3rd defendant’s recommendation for the plaintiff to be allocated an alternative plot the said recommendation in Exhibit 20 & 21 relied upon by the plaintiff remains a mere recommendation without any binding force on anybody and therefore unenforceable”.

​Aggrieved, the Appellant filed this notice of appeal on the 4th June 2015 pursuant to the order of Court made on 25/5/2015 predicated on two grounds of appeal from which the learned Appellants counsel, M.T. MOHAMMED distilled two issues for determination, namely: –
a. Whether the learned trial Judge was correct to have treated the recommendation for alternative plot as unenforceable in view of the facts and circumstances of this case. (Ground 1).
b. Whether the learned trial Judge was right and did not misconceive the Appellant’s case when he held that the 3rd Defendant cannot be made to pay damages in the circumstances of this case? (Ground 2).

​The learned counsel for 1st Respondent, A. Bashar, as well as the learned counsel for the 2nd to 5th Respondents, A.A. Ambisa Esq, though announced appearance for their respective clients, did not file any brief of argument and indicated that they did not intend to file any. Thus, this appeal was argued only on the brief of argument of the Appellant. That notwithstanding, the law is settled that the failure of the Respondent to file brief of argument in opposition to an appeal does not translate to automatic success of the appeal. The Appellant must succeed on the strength of his case. See UNITY BANK PLC V BOUARI (2008)7 NWLR (PT 1086) 372. The Respondents are however deemed to have conceded or accepted the correctness of the issues argued in the Appellant’s brief and that they do not contest any of the issues or argument proffered by the Appellant’s Counsel.

I am of the view that a sole issue culled from the two issues nominated by the Appellant is sufficient to determine this appeal. The issue is:
Whether the learned trial Judge was right when he declined to enforce the 3rd respondent’s recommendation for an alternative plot to the Appellant and to award damages to the Appellant in the circumstances of this case.

APPELLANT’S SUBMISSION
It is the contention of the learned counsel that the learned trial Judge fell into grave error in treating the 3rd Respondent’s recommendation as a mere unenforceable recommendation without having proper or due regard to the circumstances of this case. He argued that assuming the officers of the 2nd and 3rd Respondents truly and sincerely made mistake in: (a) not serving Dauda Chawai with revocation order; (b) in allocating the same plot to the Appellant under the impression that the earlier title had been validly revoked and (c) if they genuinely seek the resolution of the dispute/crises negligently precipitated by their action and inaction; then the recommendation for alternative plot under this circumstance cannot be said to be unenforceable. More so that a special contractual relationship had been created between the Appellant and 2nd & 3rd Respondents by the offer of the plot to the Appellant which offer the Appellant had accepted by completing the necessary forms and making the required payments to Kaduna State Government as evidenced by Exhibits 14A, 14B, 14C, 15 & 16.

He submitted that since the Appellant was allotted the plot in 1995 in addition to incurring expenses he has developed some emotional and psychological attachment to the land but for their negligence, error mistake or incompetence, the 2nd & 3rd Respondents who recommended that the land be given back to Dauda Chawai are now putting up a defence that the 3rd Respondent did not accept the recommendation, labelling that submission of the 2nd–5th Respondents’ at the lower Court as reprehensible and drawing our attention to the maxim Ubi jus ubi remedium – where there is a wrong there is a right. He pointed out that it does not lie in the mouth of the 2nd–5th Respondents whose officers committed the suspicious act and who are in cohorts with the 1st Respondent to benefit from their wrong, citing the case of – EJIGINI Vs. EZENWA (2003) FWLR (Pt. 174) Pg. 226 at PP. 239 – 240, Paras G – D.

The 2nd–5th Respondents, he argued, are estopped from arguing that the recommendation was not approved and the learned trial Judge ought to have awarded heavy damages in favour of the Appellant instead of allowing the Respondents to get away with their wrongs and avoid paying damages.

Learned counsel accused the learned trial Judge of not understanding the purport of the appellant’s prayer for general damages when he held at page 581 of the record thus;
“I should state that the contract as relates to exhibit 19 was made between the Plaintiff and the architect, and the 3rd Defendant was not a privy to that contract and cannot therefore be made to pay damages in respect of a contract that they are not privy to”.
“In the instant case therefore, the Plaintiff main claim above having failed, I then find and hold that his claim for damages naturally also fails” 

He submitted that contrary to the view held by the learned trial Judge, the general damages prayed for was for the breach of the special contractual relationship created by the offer and acceptance of the plot in dispute the Respondents having admitted that:
a. The Appellant was allocated the disputed plot. (b) That Dauda’s title was revoked. (c) That Dauda was not served with revocation order and (d) That they do not know the reason why Dauda was not served with the revocation notice reiterating that this fundamental negligent act of the 2nd–4th Respondents which made the Appellant to incur expenses in addition to his attachment to the plot for over 15 years are enough reason to award general damages by the maxim Ubi jus ubi remedium.

Furthermore, it was submitted that even for the contract in Exhibit 19 the learned trial Judge erred and against all the basic principles relating to the award of damages to have held that the 3rd Respondent needs to be a party before they can be liable for their gross negligence and loss caused to the Appellant. He cited the cases of: W.P.C. LTD. Vs. FAYEMI (2016) All FWLR (Pt. 821) 1400.; OFFOBOCHE Vs. OGOJA L.G. (2001) FWLR (Pt. 68) 1051.; ODUWOLE Vs. DAVID – WEST (2010) All FWLR (PT. 532) 1643.

The lower, Counsel also argued, was wrong when it held that damages will automatically fail upon the failure of the main claim the law being that a party who fails in the main claim of title can still maintain and succeed in his claim for trespass. AKINYEMI Vs. OJO (2011) All FWLR (Pt. 588) Pg. 984 at 995, Paras D – E.

On the holding that the Appellant ought to have called the 1st Respondent’s wife and the Youths, counsel submitted that the learned trial Judge was demanding for the impossible and that at any rate, a party needs not call a particular witness if he can prove his case by other means or through other witnesses citing AWOSIKA Vs. STATE (2011) All FWLR (Pt. 560), Pg. 1237.

​Learned Counsel finds it strange in law that the Court identified and recognized the wrong done against the Appellant but still held that the Appellant is without any remedy. That the Court agreed that the 3rd Respondent was wrong in revoking Dauda’s title without service; that the subsequent allocation to the Appellant cannot stand and still held that the Appellant cannot be compensated even in general damages. This to him is strange. Though allocation is a privilege, certain rights, obligations and status arise after allocation.

He contended in summary that: (a) If the revocation is improper, the Appellant is entitled to a remedy in form of general damages since the 3rd Respondent cannot, or more appropriately, does not want to implement its recommendation for alternative plot. (b) the act of the 3rd Respondent and its argument that the recommendation is unenforceable are evidence of mala fide for which the Respondents should pay as the consequences in law for subjecting a party to avoidable expenses and traumatic experience. (c) The trial Court failed to discover and do justice to the Appellant in this case which is its fundamental role as stated clearly in NGERE Vs. ENEYO (2010) All FWLR (Pt. 550) 1375 at 1400 Paras C–D Per Saulawa, JCA.

RESOLUTION OF APPEAL
The issue in this appeal is whether in view of the circumstances leading to the nullification of the Appellant’s grant of right of Occupancy (Exhibit 16) and the recommendation by the 3rd Respondent for an alternative plot, the Appellant is not entitled to the enforcement of that recommendation and to an award of Exemplary and general damages.

The Appellant was on 22nd July, 1992 allocated plot No. 8 Road VII TPO 486 at Unguwan Dosa Layout, Kaduna. He completed all the necessary forms and payments as evidenced by Exhibits 14A, 14B, 14C, 15 & 16. Unknown to him and as it turned out the same plot had earlier been granted to Dauda Chawai and irregularly revoked before the same was re-allocated to him.

The Appellant’s complaint to the 3rd Respondent of trespass on the land by the 1st Respondent claiming ownership of the land led to the investigation conducted by 2nd–4th Respondents. At the end of the investigation, the 2nd–4th Respondents stated that the re-allocation of the plot to the Appellant was done on the mistaken believes that the earlier grant to Dauda Chawai had been properly revoked. (See the sister Appeal No. CA/K/222/2016).

The 3rd Respondent however in Exhibit 21 written to the Executive Governor (the 4th Respondent) at paragraph 4 made the following recommendation:
In view of the foregoing and the fact that Hon. Dauda Chawai is in full possession of the plot, your Excellency may wish to approve the re-instatement of plot No. 8 Road VII TPO.486 Unguwan Dosa Kaduna in favour of Hon. Dauda chawai. While Al-Adam Mohammed Bello be considered for an alternative plot elsewhere within an approved layout in Kaduna, please.

It is this recommendation which the lower Court held is a mere recommendation and not enforceable that the Appellant vehemently picks hole with.

It is settled law that where there is a wrong, there must be a remedy. This is the basic and elementary principle of law expressed in Latin Maxim as “ubi jus ubi remedium” which simply means that where ever there is a wrong there ought to be a remedy to redress the wrong. This principle transcends beyond the common law or statutory law. It is a principle rooted in equity, for equality will not allow a wrong to be without a remedy even where none is provided by the law. Every Court as a Court of law and equity is enjoined to create a remedy where none exists in common law or in statute provided there is an established wrong. In ORIANZI V. ATTORNEY GENERAL RIVERS STATE (2017) 6 NWLR (Pt. 1561) 224, the Supreme Court speaking on the fundamental nature of the legal maxim to the administration of justice stated thus:
“The Maxim “Ubi jus, Ubi remediun” is simply the latin rendition of the above principle. The maxim is so fundamental to the administration of justice that where there is no remedy provided by common law or Statute, the Courts have been urged to create one. The Courts cannot therefore be deterred by the novelty of an action.
In other words, the law is an equal dispenser of justice, and leaves none without a remedy for his right. Wherever there is a wrong, there must be a remedy to redress that wrong. Justice, must not only be done, it must be seen to have been done.”
See also OPIA V. INEC & ORS (2014) 2 SCNJ (Pt. 11) 516 at 537.
This is why the Court is enjoined to make its motto “ubi jus ubi remedium” so that no wronged person comes before it but is granted a remedy. It will therefore be naive on the part of the Court to be deterred by the Novelty of the action not to create a remedy where there is an established wrong.
The principle as postulated in ASHBY V. WHITE (1703) and adopted by the Supreme Court in BELLO V. ATTORNEY GENERAL OYO STATE (1986) 5 NWLR (Pt. 45) 828 is that where from the available facts the Court it is satisfied:
(i) that the defendant was under a duty to the plaintiff;
(ii) that there was a breach of that duty;
(iii) that the defendant suffered legal injury;
(iv) that the injury was not too remote.
It will surely provide a remedy i.e., create one irrespective of the fact that no remedy is provided either at common law or by Statute.
The Court is to look at the substance of the case rather than the form. Once it is established that the defendant has a duty to the plaintiff which was breached by unwarranted abrogation of their contract; that the injury suffered by the plaintiff is not too remoter, the wrong must be addressed and redressed by the Court. The plaintiff cannot be made to go away empty-handed without a remedy. This is the purport of the decision in BELLO V. ATTORNEY GENERAL OYO STATE (SUPRA).
Oputa, JSC, aptly observed as follows
“Holt. CJ in the now famous case of Ashby V. White (1703) postulated the principle that “if a plaintiff has a right he must of necessity have the means to vindicate it and a remedy, if he is injured in the enjoyment or exercise of it and indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal”.
See also ORIANZI V. ATTORNEY GENERAL RIVERS STATE (2017)6NWLR (PT 1561) 224 at 295 the apex Court restated the law:-
In the instant case, it cannot be denied that the Appellant had been wronged by the action of the 3rd–4th Respondents who made an empty grant to the Appellant. Believing that he had a good title, the Appellant accepted the offer and made the necessary payments and in addition, caused an architectural design to be produced for developing the plot only to meet the 1st Respondent on the land. For no fault of the Appellant who had done all that was required of him, the grant was later discovered to have been made to him by the 3rd Respondent when an earlier grant to Dauda Chawai had not been properly revoked. The Appellant’s right of occupancy was rendered worthless by the error, negligence or antics of the 2nd–4th Respondents, the remedy of which he could not claim in suit KAH/KAD/598/2011 which warranted the institution of suit KAH/KDA/421/2013 leading to this appeal seeking judicial redress for the injury suffered.
Will the law and the Court of equity send the Appellant home empty-handed without any relief? Methinks not.
In a scenario like this even where the law does not provide a remedy, the facts of this case presents a very suitable situation for this Court to create a remedy for the Appellant who has suffered injury by the act of the 2nd–4th Respondents. In CIL RISK AND ASSET MANAGEMENT LTD V. EKITI STATE GOVERNMENT (2020) LPELR–49565 (SC) M.PETER ODILI JSC quoting Tabai JSC in SALEH V. MONGUNO & ORS. (2006) LPELR 2992 (SC) at p. 27 D–F stated inter alia.
“it (the maxim) enjoins the Courts to provide a remedy whenever the plaintiff has established a right. The Court cannot do otherwise. It is enjoined to eschew reliance on technicalities in the determination of disputes”.
That is why Augie JSC in ORIANZI V. ATTORNEY GENERAL RIVERS STATE (SUPRA) reiterated the law that:
“if the plaintiff has a right, he must of necessity have the means to vindicate it and the remedy if he is injured in the enjoyment or exercise of it. There cannot be a right without a remedy for want of right and want of remedy are reciprocal.”

Looking into the substance of this case and not the technicalities with which the learned trial Judge viewed the 3rd Respondent’s recommendation which he construed as merely unenforceable, it is clear to me that the 3rd Respondent made the recommendation to the 4th Respondent in realization of the fact that the Appellant was entitled to a remedy his right of Occupancy having been made ineffectual by their own mistake and not by any fault of the Appellant.

To construe that recommendation as not binding or unenforceable is to allow the 2nd–4th Respondents benefit from their own wrongdoing which the law prohibits. See EJIGINI V. EZENWA (SUPRA) at 239–240 G–D. In TONIMAS NIG. LTD. V. CHIGBU (2020) LPELR–50633 (SC) the Supreme Court made the point when Abba Aji JSC stated inter alia.
“He who comes to equity must come with clean hands … much as the Respondent needs the principles of equity to aid him, so too the Appellant. Can a landlord who has frustrated his tenant from paying rent to him as at when due benefit from his wrong or default to pay…?

Similarly in the case at hand much as the 2nd–4th Respondents relied on a situation they created to interpret the law to void the subsequent grant of right of occupancy to the Appellant on ground that the earlier one had not been validly revoked, can they be heard to say or be said on their behalf as the lower Court did, that the recommendation for an alternative plot for the Appellant was a mere recommendation not intended to be binding? Can they be allowed to benefit from their wrong or default? Again, methinks not.

​It therefore does not lie in their mouth nor is it a proper interpretation of the document (Exhibit 21) by the lower Court to posit that the recommendation made to the 4th Respondent to allocate another plot to the Appellant is not enforceable.

Learned Counsel for the Appellant is therefore right that the learned trial Judge having given effect to the recommendation that the subsequent grant to the Appellant was not valid ought to have given equal effect to the 2nd arm of the recommendation that the Appellant be offered an alternative plot.

The primary duty of the Court is to do substantial justice to all parties in accordance with the law. This includes equity. It cannot allow itself to be bugged down by technicalities or to construe provisions of statutes in a manner to defeat the purpose of the lawmaker or in a manner that will result in injustice to one of the parties. The daunting duty of Courts is to aim at and do substantial justice between parties before it and not to defeat justice by clinging to the endless whirl of technicalities. Afolabi v. Adekunle (1983) 2 SCNLR 141: Obi v. Ozor (1991) 9 NWLR (Pt. 213) 94. Salisu Vs Mobolaji (2016) 15 NWLR (Pt. 1535) 242 at 258.

Moreover, by the rule of interpretation, the Court is enjoined not to give a statute a construction that would defeat the very intention and purpose of the lawmaker. In General Mohammed Buhari & Anor V. Alhaji M. Dikko & Anor 14 NSCQR (Pt. 11) 1114 at 1161 the Apex Court held per Niki Tobi JSC, as follows: –
“It is settled principle of interpretation of statutes that the Court would ascertain the intention and purpose of the lawmakers and give effect to same.

The Court should not give a statute a construction that would defeat the very purpose of the law maker. “
After all, the expected result of adjudication is the attainment of substantial justice. In navigating the path of justice, the Court must not allow itself to be entangled in the web of technicalities to defeat the very essence of its primary duty.

In the instant case, clearly the Appellant had a right; he was deprived of enjoying same; and there must be a remedy –

This Court will not be satisfied that it has done justice if it allows the Appellant go away empty handed without a remedy having established a right which has been breached. The Court will not have lived up to its Moto “ubi jus ubi remedium” if the Appellant is denied the enforcement of the recommendation made by the 2nd–4th Respondents to allocate to him an alternative plot having taken away, for no fault of his, the one allocated to him (Exhibit 16). It will amount to double jeopardy for the Appellant to lose his land officially allocated to him by the 3rd–4th Respondents and to lose the judicial enforcement of the recommendation for an alternative plot. That will not be allowed to happen. It is little wonder that the Respondents did not oppose the appeal.

On the question of general damages, the law is that once there is a breach of contract as in the instant case, award of damages will follow and such damages unlike special damages, need not be specifically pleaded. In determining the quantum of damages, the Court has a discretion to exercise putting to bear the facts of each case. GBEMISOLA V. BOLARINWA (2014) LPELR–22463 (SC).

In the instant case, as correctly submitted by the Appellant’s Counsel, aside from the Appellant’s contract with the Architectural consultant, a contractual relationship exists between the Appellant and the Respondents which the Respondents breached and in turn entitled the Appellant to general damages.

Furthermore, even the expenses incurred for the architectural design cannot be said to be too remote, because if the Respondents had not made the grant to the Appellant he would have had no need for the design. In any case, the Appellant is entitled to general damages against the 2nd–4th Respondents.

​On the whole, the appeal is meritorious and it succeeds. The sole issue is resolved in favour of the Appellant. Consequently, the judgment of the lower Court is set aside. In its place, the Appellant is granted in part the reliefs prayed at paragraph 14 of the Statement of Claim in the following terms:
(1) Relief (a) as prayed,
(2) In respect of relief (b), the 3rd and 4 Respondents are hereby directed to offer the Appellant an alternative plot in any available prime and low-density area of similar value within six months.
(1) The sum of (Two Million Naira) is awarded as general damages against the 3rd Respondent in favour of the Appellant for breach of contract causing prolonged pain and agony by reason of refusal to allocate an alternative plot to the Appellant within a reasonable time.
These shall be the orders of this Court.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading in draft form, the judgment just read by my learned brother A. A. Wambai, JCA. I have carefully considered the finding and conclusion reached by my learned brother in the lead judgment that this appeal has merit because the Appellant must be given an alternative plot of land as promised by the 3rd Respondent pursuant to the well-known latin maxim; ubi jus ibi remedium which means; where there is a right there is always a remedy. I agree with and adopt his decision and hereby allow this appeal, set aside the judgment of the lower Court in Suit No. KDH/KAD/421/2013 and abide by the Orders issued in the lead judgment including orders as to costs.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the opportunity of reading in draft, the lead judgment of my learned brother, AMINA AUDI WAMBAI, JCA and I entirely agree with the reasoning and conclusion that the appeal is meritorious and it succeeds.
I abide by the consequential Order(s) in the lead judgment.

Appearances:

M.T. MOHAMMED, Esq, For Appellant(s)

A. Bashar, Esq, – for 1st Respondent

A. A. Ambisa, Esq. – for 2nd – 5th Respondents For Respondent(s)