ALH. YAHAYA UMAR & ORS v. HUDU ABDULLAHI
(2018)LCN/12294(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 18th day of December, 2018
CA/K/173/2016
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“It is very clear from the way and manner the learned Judge arrived at the decision in upholding the claim of general damages by the respondent, after proper evaluation of the evidence of both sides to the dispute as enunciated in the case of Mogaji v. Odofin (1978) 4 SC 91 @ 93, wherein the Apex Court adumbrated thus: ‘In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight. Therefore in deciding whether a certain set of facts given in evidence by a party in a civil case before a Court which both parties appear is preferable to another set of facts given by the other party, the trial Judge, after summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then, decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the appropriate law to it’.” PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
1. ALH. YAHAYA UMAR
2. TAHIR YAHAYA
3. ALH. USMAN DIMAWA
4. ALH. IDRIS KAFINTA
(Miyetti Allah)
5. KABIRU NAME SULE
6. MALL. BELLO LIMAN – Appellant(s)
AND
HUDU ABDULLAHI – Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Kaduna State High Court of Justice (the lower Court) in suit No. KDH/KAD/216/2012, delivered on the 18th day of March, 2016, by HANNATU A. L. BALOGUN, J. The respondent as the plaintiff, commenced suit No. KDH/KAD/216/2012, at the lower Court against the appellants, as the defendants, seeking for the following reliefs:
1. A declaration that he is the owner of plot No. 12 Basa Road Rigasa, Kaduna.
2. AN ORDER for perpetual injunction restraining the defendants, heirs e.t.c from laying claim to the plot as a grave yard.
3. Damages in the sum of N3,000,000.00K.
4. The cost of this suit.
The parties filed pleadings, except the 8th and 9th defendants who did not file statement of defence. Hearing of the suit commenced whereat evidence was taken by the learned Judge of the lower Court. A visit to the Locus was made by the registrar of the Court at the instance of the learned Judge. After the consideration of the evidence adduced and written addresses of learned counsel to the parties, the learned Judge delivered judgment dismissing the claim for declaration of title to the disputed land and the Order for perpetual injunction. The claim for damages was granted in the sum of N2,000,000.00 (Two Million Naira) in favour of the respondent against the 1st, 2nd, 4th, 5th, 6th and 7th appellants. Aggrieved by the judgment of the lower Court, they filed a Notice and grounds of appeal on 30th day of March, 2016, which was amended and filed on the 22nd day of December 2017, but deemed properly filed on the 17th day of January, 2018 challenging the judgment on four (4) grounds of appeal, which are as follows:
GROUND ONE
The learned trial Judge erred in law by awarding damages in the sum of N2,000,000.00k (Two Million Naira) against the 1st, 2nd, 4th, 5th, 6th and 7th appellants without proof by the 1st respondent that they are liable to him against the 2nd, 3rd and 4th respondents.
PARTICULARS
a. The learned trial Judge in awarding damages in the sum of N2,000,000.00k (Two Million Naira) against the 1st, 2nd, 4th, 5th, 6th and 7th appellants without taking into consideration the community?s decision to demolish any illegal structure i.e. exhibit D.
b. The community whose land was trespassed upon and which decided to act on illegal structures erected were never joined and no pronouncement against them yet the Court visited the sins of other parties on the 1st, 2nd, 4th, 5th, 6th and 7th appellants who put up a strong defence.
c. That the Court never gave due consideration to the positions of the 2nd, 3rd and 4th respondents (3rd, 8th and 9th defendants) whom allegations were also made against.
d. The damages awarded by the learned trial Judge was without any bases and would result to injustice.
e. The damages awarded by the learned trial Judge was punitive.
GROUND TWO
That the Hon. Trial Judge erred in law when it came to a wrong decision as the evaluation of the evidence is against the weight of evidence led before the Court.
PARTICULARS
a. The learned Trial Judge in awarding damages in the sum of N2,000,000.00k (Two Million Naira) against the 1st, 2nd, 4th, 5th, 6th and 7th appellants without taking into consideration the relevant principles of law.
b. That having failed to prove title it is therefore wrong to award damages in the sum of N2,000,000.00k (Two Million Naira).
c. That the damages are erroneously estimated and awarded under a mistake of law as the visit to locus was not conducted personally by the trial Judge as such there was no first-hand information.
d. That the evidence led cannot sustain the decision of the trial Court.
GROUND THREE
That the Hon. Trial Judge erred in law when it entertained the 1st Respondent?s suit without a valid writ of summons before the Court.
PARTICULARS
a. The writ of summons fell short of a valid writ before the lower Court.
b. The 1st respondent did not take proper steps to amend the invalid writ before the lower Court.
c. There was no proper service of the 1st respondent?s writ on the appellants before the lower Court.
d. The time allowed by the Kaduna State High Court Rules for entering appearance to a writ of summons was not afforded the appellants. Learned trial Judge in awarding damages in the sum of N2,000,000.00k (Two Million Naira) against the 1st, 2nd, 4th, 5th, 6th and 7th appellants without taking into consideration the relevant principles.
GROUND FOUR
That the Hon. Trial Judge erred in law when it refused to entertain the appellants preliminary objection on grounds of want of defence.
PARTICULARS
a. The preliminary objection touches on jurisdiction and can be entertained with or without filing a defence.
b. The appellants’ objection was on the incompetent originating process filed by the 1st respondent before the lower Court.
c. That an oral amendment of the originating process of the 1st respondent was allowed despite the existence of the appellants’ preliminary objection.
d. The lower Court denied the appellants their fundamental rights of fair hearing by its refusal to entertain the preliminary objection?
The appellants sought for the following reliefs in the event of allowing the appeal.
a. An Order allowing the appeal.
b. An Order setting aside the judgment of the lower Court awarding damages in the sum of N2,000,000.00k (Two Million Naira) against the 1st, 2nd, 4th, 5th, 6th and 7th appellants?.
The appellants filed an Amended brief of argument on the 22nd day of December, 2017, out of time, which was duly deemed filed and served on the 17th day of January, 2018. The appellants? brief of argument was served on the respondent. He did not file a respondent?s brief of argument within the prescribed durational period. The appeal was heard on the 12th day of November, 2018, whereat the learned counsel to the appellants adopted the brief of argument, and urged the Court to allow the appeal, and set aside the judgment of the lower Court. Four (4) Issues for determination have been culled out of the 4 grounds of the Amended Notice of appeal on page 4 of the Amended appellants’ brief of argument which are thus:
1. Whether having regards to the respondent’s (then the plaintiff at the lower Court) statement of claim and evidence adduced, the proper and necessary persons or parties were presented before the lower Trial Court for proper determination of the appellants liability.
2. Whether the evidence proffered were properly evaluated to merit the award of damages in the sum of N2,000,000.00k (Two Million Naira) vis a vis the failure of the respondent’s (then the plaintiff at the lower Court) to prove title.
3. Whether the judgment is against the weight of evidence.
4. Whether the judgment of the lower Court was delivered in breach of Mall. Dauda Zage Zage and Alh. Sani Zage Zage, then 8th and 9th defendants’ rights to fair hearing as guaranteed under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended).
RESOLUTION OF ISSUES
The Issues for determination in the appeal are hereunder taken and resolved serially which would ultimately determine the appeal.
ISSUE 1
On this Issue, Abu Usman Abdulsalam Esq., who settled the appellant’s brief of argument, submitted that the Zage Zage Community of Rigasa owned the disputed land but was not made a party to suit No. KDH/KAD/216/2012. That by the decision in the case of Nnorodim v. Ezeani (2001) 2 SCNJ P.1, the Zage Zage Community who claimed ownership of the parcel of land in dispute ought to have been made a party to the suit before the lower Court. Learned counsel further submitted that where it appears to a Court that a person who has an interest in the matter before it has not been made a party, such a person should be made party for the just determination of the dispute by the Court.
It is learned counsel’s further contention that the non-joinder of the Zage-Zage Community cannot be treated as a mere irregularity because without it the Court cannot justly and fairly adjudicate on the dispute before it. That where a person having an interest in the dispute has not been made a party, any decision taken may occasion a miscarriage of justice, which could be a ground to set aside the entire proceedings on appeal. The principle of law propounded in the case of Ayorinde v. Oni (2000) 2 SC P. 33 @ 42 was cited and relied on to reinforce the submissions supra. As to who is a necessary party who ought to be joined to a pending suit before a Court of law, the cases of Union Beverages Ltd v. Pepsi Cola International Ltd & Ors (1994) 2 SCNJ P. 157 @ 174 and Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) P. 116 were cited and relied on to buttress the submission supra.
What is in contention in Issue (1) is whether the Zage Zage Community, Rigasa was a necessary party who ought to have been joined as a defendant in the suit before the lower Court. The Apex Court has laid down the principles of law that are to guide the Courts in determining who is a necessary party and ought to be joined in a suit, which are as follows:
(i). That his presence is necessary for the effectual adjudication of the matter.
(ii). That the plaintiff’s claims against the existing defendant also affects him and/or
(iii) That his interest is the same as or identical with the existing defendant. See Carrena v. Akinlase v. Arowolo (2008) 162 LRCN 85 @ 90; Okafor & Ors v. Nnaife & Ors (1973) 11 NMLR 245; Oyedeji Akanbi Mogaji & Anor v. Okunlola Ishola Fabunmi & Anor, in Re: Yesufu Faleke (1986) 2 SC 431 @ 480-481.
In LSBPC v. Purification Tech (Nig.) Ltd (2013) 7 NWLR (Pt. 1339) P. 83 @ 113, a necessary party has been defined thus:
“A necessary party is someone whose presence is essential for the effectual and complete determination of the Issues before the Court. It is a party, in the absence of whom the whole claim cannot be effectually and completely determined.”
In PDP v. Abubakar (2004) 16 NWLR (Pt. 900) P. 455 @467, necessary party has been defined thus:
What makes a person a necessary party? It is not of course merely that he has relevant evidence to give on some of the questions involve, that will only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involve and has thought of some relevant arguments to advance and is afraid that the existing parties may not advance them adequately. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and question to be settled unless he is a party. There must be a question in the action which cannot be effectually and completely settled unless he is a party?. (Underlining for emphasis).
In answering the question whether to join a person as a party in a suit, the Court is to be guided by the following questions, which are:
(a) Is it possible for the Court to adjudicate upon the cause of action set up by the plaintiff unless the person is added as a defendant?;
(b) Is the person someone who ought to have been joined as a defendant in the first instance?
Alternatively,
Is the person someone whose presence before the Court as defendant will be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause?
The averments contained in the statement of claim or in the depositions in an affidavit, (as the case may be), determines who are to be parties to the dispute before the Court. The appellants (as plaintiffs) filed statement of claim which is contained on pages 3-8 of the printed record of appeal. Paragraphs 3-11 thereof are germane to the determination, whether the Zage-Zage Community of Rigasa, ought to have been joined as a party to the suit at the lower Court. The averments contained in the aforesaid paragraphs are reproduced hereunder:
3. Sometime in the year 2008 the plaintiff bought a plot of land No. 12 Basa Road, Rigasa, Kaduna from one Ibrahim Isuhu in the sum of N200,000.00.
4. The said Ibrahim Isuhu wrote sales agreement to which witnesses signed including the Mai Unguwa. Copy of the agreement is hereby pleaded and will be relied upon during trial.
5. The plaintiff having got the means of developing the land started building on it since 2009 up to the completion of the building last year (2011).
6. The plaintiff built 3 bedroom flat on the land and all that is needed to complete a house has been done including a gate at the entrance of the house and was about to pack to the house.
7. Sometimes on the 10th of March 2012, the defendants went to the said plot No. 12 Basa Road, Rigasa, Kaduna and demolished all that was on the land and went away.
8. During the defendants demolishing of the building on the Plot No. 12 Basa Road, Rigasa, Kaduna the plaintiff’s son was at the scene watching the defendants and when he confronted the defendants they told him that the plot is a grave yard.
9. The plaintiff’s son immediately called the plaintiff who came after the building on the Plot No. 12 Basa Road, Rigasa, Kaduna was demolished.
10. The plaintiff confronted the defendants who told him to go and do his worst because the plot is a grave yard.
11. The plaintiff went to the Mai-Unguwa of the area and told him what the defendants did to his building at plot No.
12 Basa Road, Rigasa, Kaduna who told him to go to Court in order to avoid any fracas?
The reliefs sought by the respondent at the lower Court are germane in the event of judgment being delivered in his favour. They are as follows:
A declaration that the plaintiff is the owner of the plot No. 12 Basa Road, Rigasa, Kaduna State.
AN ORDER OF PERPETUAL INJUCTION restraining the defendants, their heirs, privies e.t.c from claiming that the Plot No. 12 Basa Road, Rigasa, Kaduna is a grave yard.
Damages in the sum of N3,000,000.00.
The cost of this suit.
Having due regard to the averments contained in paragraphs in 3-11 of the statement of claim and the reliefs sought, the lower Court could have determined the suit before it, effectually and effectively, without Zage-Zage Community being a party thereto, having regard to the averments in the pleadings of the parties, and the reliefs sought by the respondent. The lower Court was therefore seised of the jurisdiction in adjudicating upon the suit in the absence of Zage-Zage Community, not being a necessary party whose presence was necessary for the effectual and effective determination of the dispute in the suit at the lower Court. I resolve Issue 1, against the appellants.
ISSUES 2 AND 3
Issues 2 and 3 are taken together:
On these Issues, Abu Usman Abdulsalam, Esq., who settled the appellants’ brief of argument, did submit that if the learned Judge of the lower Court had properly evaluated the evidence adduced by the parties, it would have realized that there was no justification in awarding the sum of N2,000,000.00 as general damages to the respondent, since he did not prove title to the land in dispute. As to what is meant by a complainant that the judgment of a Court is against the weight of evidence, learned counsel cited and relied on the principle of law propounded in Nwokidu v. Okanu (2010) 1 SCNJ P. 169 @ 194, and urged that same be applied by this Court to the instant case and hold that the evidence before the lower Court do not support the decision of the Court in awarding the sum of N2,000,000.00 as general damages to the respondent. That in determining the weight of evidence, a Court of law is to give due regard to the principle of law outlined in the case of Nwokidu v. Okanu supra. On questioning the findings of facts by a trial Court, learned counsel referred to page 194 of the judgment in the case of Nwokidu v. Okanu supra and did urge that this Court be guided by it and to arrive at a just decision in the determination of the Issue whether the lower Court was right in awarding the sum of N2,000,000.00, to the respondent in view of the evidence before it.
It is also learned counsel’s contention that the respondent, as plaintiff, at the lower Court, gave contradictory and misleading evidence regarding the alleged trespass to the land and the destruction of the property thereon, which had occasioned a miscarriage of justice to the appellants. Learned counsel referred to the findings and conclusion arrived at by the learned Judge as contained on pages 137-138 of the printed record of appeal to buttress the assertions supra. As to the contradictions in the evidence of the respondent, learned counsel referred to the averments contained in the statement of claim vis–vis the depositions in the witness statement on oath as contained on pages 4 and 9 of the record of proceedings as to who caused the destruction of the property, whether it was all the respondents, except the 3rd respondent or the 1st, 2nd 4th, 5th, 6th and 7th respondents.
It was further contended that the contradiction in the evidence of the respondent, especially paragraphs 8,9 and 10 of the Amended witness statement on oath contained on page 9 of the record of appeal and his evidence under-cross-examination which has been recorded on page 125 of the record of proceedings of the lower Court, if the learned Judge had evaluated same, he would not have found that the appellant proved his claim to be entitled to the award of N2,000,000.00 as general damages.
On what must be proved for a claimant to be entitled to the award of general damages, learned counsel did submit that where reliance is placed on trespass, it must be further established that the claimant was in absolute possession of the land at the material time as enunciated in the cases of Morenikeji v. Adegbosin (2003) 3 SCNJ P. 105 @ 117; Adelele v. Atoyebi (2004) All FWLR P. 76 @ 86, Ezeokonkwo v. Okeke (2002) 5 SCNJ P.1; Owhonda v. Ekpechi (2003) 9 SCNJ P.1, to buttress the submission that action in trespass can succeed only where the claimant has been in exclusive possession as further held in Ajukwara v. Izuoji (2002) 6 SCNJ P. 230. The case of Ogbechie v. Onochie (1988) NWLR (Pt.7) P. 370. The case of Odusanya v. Osinowo (2000) 2 NWLR (Pt. 646) P. 574 were also cited and relied on to reinforce the submissions that a claim in trespass to land is predicated on exclusive possession, and a party relying on same has the onus of proof that he was in exclusive possession of the land at the material time he complained of.
In conclusion, learned counsel did urge that the decision arrived at by the lower Court in awarding general damages of N2,000,000.00 to the respondent be set aside for not having been proved as required in law. That an appellate Court can review, vary or set aside the award of general damages by a trial Court, has the support of the law as espoused in the case of Momodu v. University of Benin (1997) 7 NWLR (Pt. 512) P. 325 @ 350-351, wherein the conditionalities that must be satisfied before an appellate Court can interfere with the award of damages by a trial Court have been enunciated. Counsel did urge that Issues 2 & 3 be resolved in favour of the appellants.
The main complaint or grouse of the appellants against the award of N2,000,000.00 to the respondent by the lower Court is that there was no proper evaluation of the evidence carried out by the lower Court in arriving at its decision. What then is meant or what entails evaluation of evidence by a trial Court. The well-established procedure for the evaluation of evidence, and ascription of probative value thereto had been enunciated in a plethora of judicial decisions by the Apex Court and this Court. For instance, in Tippi v. Notani (2011) 8 NWLR (Pt. 1249) P. 285 @ 300, Yahaya J.C.A, propounded the principles guiding evaluation of evidence by a trial Court thus:
“Now, both counsel have made submissions on the importance of reviewing the evaluation of evidence by a trial Court. It bears repeating, that the primary responsibility of a trial Court, is to hear the parties, watch and observe the demeanor of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision. This is not a hit and run affair, but is regulated by time-honoured procedure designed to mete out justice to both parties before the Court. The procedure is well-known, simple but crucial in its observance. The procedure is for the Court to place the totality of the testimonies led by both parties on an imaginary scale. One side of the scale will harbor the plaintiff’s evidence. The other side of the scale will contain the evidence led by the defendant. The Court must then weigh them together to see which side is heavier than the other. This is in terms of quality, not quantity. To help the Court in this regard, it should consider whether the evidence led in its totality, is:
(a) relevant
(b) admissible
(c) credible
(d) conclusive and
(e) more probable than that adduced by the other party.
Once the above considerations fall into line, the Court will then apply the relevant laws to the facts or evidence adduced, in order to reach a decision. Mogaji v. Odofin (1978) 4 SC 91; N.T.A. v. Anigbo (1972) 1 All NLR (Pt. 2) 74; Okino v. Obanebira (1999) 13 NWLR (Pt. 636) 535 at 558”.
The judgment of the lower Court are contained and found on pages 132 – 143 of the printed record of appeal. The learned Judge summarised the evidence adduced by the respondent (as claimant) and the appellants (as defendants) as can be found on pages 133 to 141 of the printed record of appeal. In resolving the Issue, which dealt with proving the respondent’s claim of general damages, the learned Judge found and held as follows on page 141 of the printed record of appeal:
“There is no doubt that the defendants admit that the plaintiff has some equitable claim to the land in dispute as show in exhibit D1. The exhibit D1 show that the plaintiff actually bought the place in dispute from the ward head who however sold land to the plaintiff that he should not have. The exhibit also shows that the land sold to the plaintiff was Community land in custody of the said ward head. Exhibit D1 further shows that the Community decided that the land be left for the plaintiff on equitable grounds since he had built on same. To that extent, the plaintiff has a right to sue for trespass anyone who interferes with his enjoyment of the land except the true owner. The defendants admitted they are not owners of the land”.
Again, the learned Judge of the lower Court went on to further hold as follows as recorded on page 143 of the printed record of appeal thus:
On a balance of probability, the evidence adduced by the plaintiff outweighs that of the defendants in this regard.
The defendants are therefore liable to pay general damages to the plaintiff for the destruction of his property.
Learned counsel to the defendants submitted that the plaintiff did not have building permit from KASUPDA and so KASUPDA may have demolished the plaintiff?s house. This submission is not borne out by any evidence before the Court.
On the whole having held that the plaintiff is entitled to damages against the 1st, 2nd, 4th, 5th, 6th and 7th defendants, I award damages of N2M in favour of the plaintiff against the said defendants.
The case against the 3rd defendant is dismissed in its entirety.
Where the complaint against the judgment of the trial Court is that it is against the weight of evidence, it means that the totality of the evidence, if believed and accepted, cannot warrant or justify the judgment of the Court. In such a situation, an appellate Court has a duty to review the evidence adduced in order to ascertain if there are cogent evidence to justify the judgment of the Court or not, taking into consideration what the Apex Court enunciated in the case of Nwokidu v. Okanu (2010) 1 SCNJ P. 167 @ 194, that:
In Civil trials where the findings or non-finding of fact by a trial Court is questioned on appeal, the appellate Court will seek to know the followings:
a. The evidence before the Court
b. Whether the trial Court accepted or rejected any evidence, upon the correct perception
c. Whether the trial Court correctly approached the assessment of the evidence before it and placed the right probative value on it.
d. Whether the trial Court used the imaginary scale to weigh the evidence on either side.
e. Whether the trial Court appreciated upon the preponderance of evidence which side the scale weighted having regards to the burden of proof?.
On page 139 of the printed record of appeal, the learned Judge of the lower Court found and held thus:
“From the above, I do not believe the evidence of DW1 and DW2 when they denied knowledge of the contents of exhibit D1 which they tendered simply because it did not favour them. They are not credible witnesses.
The plaintiff’s evidence that the defendants save the 3rd defendants demolished his building is thus more credible. I accept same and I believe it.”
There is no appeal against the finding and decision arrived at, supra, by the learned Judge of the lower Court. The law is settled, findings of facts and or any decision reached by a trial Court which has not been challenged on appeal, is deemed to have been accepted by the opposing party, against whom such findings or decision had been taken. See Idiok v. State (2006) 12 NWLR (Pt. 993) P. 1 @ 23 and Akinbade v. Babatunde (2018) 7 NWLR (Pt. 1618) P. 366.
As could be seen on pages 133 to 143 of the printed record of appeal, the learned Judge of the lower Court, in arriving at the decision that the respondent as (claimant) proved his claim for general damages on the evidence adduced, properly evaluated the evidence adduced by the parties in the manner prescribed by the Apex Court and this Court in the cases of Tippi v. Notani (2011) 8 NWLR (Pt. 1249) P. 285 @ 350; Mogaji v. Odofin (1978) 4 SC 91 @ 93; Oka v. Nigerian Army (2018) 6 NWLR (Pt. 1614) P. 176 @ 188; Akinbade v. Babatunde (2018) 7 NWLR (Pt. 1618) P. 366 @ 387, and 395. It is very clear from the way and manner the learned Judge arrived at the decision in upholding the claim of general damages by the respondent, after proper evaluation of the evidence of both sides to the dispute as enunciated in the case of Mogaji v. Odofin (1978) 4 SC 91 @ 93, wherein the Apex Court adumbrated thus:
‘In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight. Therefore in deciding whether a certain set of facts given in evidence by a party in a civil case before a Court which both parties appear is preferable to another set of facts given by the other party, the trial Judge, after summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then, decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the appropriate law to it’.
This Court, in Tippi v. Notani (2011) 8 NWLR (Pt. 1249) P. 285 @ 300 re-emphasized the need to consider and evaluate the evidence of both parties to the dispute in arriving at a decision. Yahaya, J. C. A, espoused that:
The procedure is for the Court to place the totality of the testimonies led by both parties on an imaginary scale. One side of the scale will harbor the plaintiff’s evidence. The other side of the scale will contain the evidence led by the defendant. The Court must then weigh them together to see which side is heavier than the other
The other grouse or complaint of the appellants in this appeal is on the exercise of discretion by the lower Court in awarding the general damages of N2,000,000.00 against the appellants. The Issue of award of general damages in any given case is a matter based on the discretion of the trial Court. See per ADEKEYE, J.S.C in Hamza v. Kure (2010) LPELR-1351 (SC). An award of damages is within the discretionary powers of the Court. See per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C in British Airways v. Atoyebi (2014) LPELR-23120 (SC). For the discretion not to be exercised injudiciously and capriciously, the appellate Court has the power of checks and balances, and to interfere where it is otherwise. Accordingly, an appellate Court will not usually interfere with a previous award of damages unless satisfied (a) that the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard to some principle of law; or (c) where it acted under a misapprehension of facts; or (d) where it has taken into account irrelevant matters or failed to take into account relevant matters; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damage. See per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C In British Airways v. Atoyebi (2014) LPELR-23120 (SC).
The lower Court, after evaluating the evidence adduced before it in respect of the claim of general damages found and held as recorded on pages 142-143 of the printed record of appeal thus:
On the prayer for damages I have already found that the plaintiff is in lawful possession of the property in Issue having been permitted by the Community i.e the owners to remain on the land as shown in exhibit D1.
I have also found that the defendants save the 3rd defendant demolished his building put upon the said land without lawful authorisation.
Learned counsel to the 1st – 7th defendants save the 3rd has submitted that the evidence of the plaintiff that he saw the defendants on the property when they had just finished destroying same and challenged them was not pleaded.
First of all, it is facts that ought to be pleaded. Secondly, learned counsel only quoted paragraphs 7 – 8 of the statement of claim and not paragraphs 9 and 10 of the said statement of claim.
I shall for the sake of clarity quote the said four paragraphs:
Sometimes on the 10th of March 2012, the defendants went to the said plot No. 12 Basa Road, Rigasa, Kaduna and demolished all that was on the land and went away.
During the defendants demolishing of the building on the plot No. 12 Basa Road, Rigasa, Kaduna the plaintiff?s son was at the scene watching the defendants and when he confronted the defendants they told him that the plot is a grave yard.
The plaintiff’s son immediately called the plaintiff who came after the building on the plot No. 12 Basa Road, Rigasa, Kaduna was demolished.
The plaintiff confronted the defendants who told him to go and do his worst because the plot is a grave yard.
From the above, it is clear that the pleading did say that the plaintiff confronted the defendants and they did not deny that they demolished this property but rather told him to do his worst.
This aspect was not specifically denied. There was only a broad indirect denial which was no denial. There was also evasiveness and lack of credibility in the evidence of DW1 as I have found earlier.
I cannot fault the findings and conclusion arrived at by the learned Judge of the lower Court. The learned Judge of the lower Court has exercised his discretion in the award of the general damages of N2,000,000.00 Million and I must warn myself not to interfere since I have not spotted any error in the principle or rationale or misapplication of the facts in what he did. The 2 Issues are therefore resolved against the appellants.
ISSUE 4
On this Issue, learned counsel to the appellants submitted that there were 9 defendants when the suit No. KDH/KAD/216/2012 was initiated at the lower Court, and it remained so up to the date of the delivery of the judgment on the 18th of March 2016. However, it has been further submitted, that the 8th and 9th defendants never attended the proceedings of the lower Court on most of the days the Court sat and proceeded with the hearing of the case. It has also been contended that the 8th and 9th defendants were not served with hearing notices on most of the dates the proceedings were conducted by the lower Court. That the failure to serve the 8th and 9th defendants with hearing notice for the hearing of the case on the days indicated in the appellants’ brief of argument breached their right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution (Amended). The principle of law espoused in the cases of UBN v. Astra Builders (2010) 2 SCNJ P. 314; Mark v. Eke (2004) 1 SCNJ P. 245; Olorunyolemi v. Akhagbe (2010) 2 SCNJ P. 318 and Saidu v. Mahmood (1998) 2 NWLR (Pt. 536) P. 132 @ 139, amongst others, were cited and relied on to reinforce the submissions supra.
Learned counsel further submitted that, where there is breach of fair hearing in the conduct of the proceedings in hearing a matter or cause before a Court of law, such proceedings, judgment or any order made thereby, is void and a nullity. The case of Credit Alliance Fun Service Ltd v. Mallah (1998) 10 NWLR (Pt. 569) P. 341 @ 349 was cited and relied on to buttress the submissions supra. That in view of the foregoing adumbration, this Court is to hold that the entire proceedings conducted by the lower Court in the adjudication of the case is a nullity, which is to be set aside, including the judgment delivered on the 18th day of March, 2016.
It is correct as contended by learned counsel to the appellants that there were 9 defendants when suit No. KDH/KAD/216/2012, was initiated at the lower Court. The defendants at that time as contained in the writ of summons and the statement of claim which can be found on pages 1 and 3, respectively, of the printed record of appeal who are as follows:
1. Alh. Yahaya Umar
2. Tahir Yahaya
3. Abubakar Bello
4. Alh. Usman Dimawa
5. Alh. Idris Kafinta (Miyetti Allah)
6. Kabir Name Sule
7. Mal. Bello Liman
8. Mal. Dauda Zage-Zage
9. Alh. Sani Zage-Zage?
On page 143 of the printed record of appeal, the learned Judge of the lower Court concluded the judgment of the Court as follows:
‘On the whole having held that the plaintiff is entitled to damages against the 1st, 2nd, 4th, 5th, 6th and 7th defendants, I award damages of N2M in favour of the plaintiff against the said defendants’.
In the judgment of the lower Court as reproduced supra, the 8th and 9th defendants were not found liable. This is why they did not appeal against the judgment of the lower Court as could be seen in the Notice of appeal filed by the 1st – 7th appellants as per page 144 of the printed record of appeal, which was Amended and filed on the 22nd day of December, 2017, but deemed properly filed on the 17th day of January, 2018. Learned counsel’s submission is that the 8th and 9th defendants? right to fair hearing was breached by the lower Court in the conduct of the proceedings from its commencement to the date of the delivery of the judgment. The right of fair hearing in the conduct of the proceedings of a cause or matter before a Court of law is personal to the person who alleged the denial of fair hearing in the proceedings of the Court, and because of this, may decide to appeal to seek for a remedy. The 8th and 9th defendants have not appealed against the judgment of the lower Court delivered on the 18th day of March, 2016.
By the judgment of the lower Court, they are not liable in damages to the respondent, in whose favour judgment was entered by the lower Court. I think, the appellants’ counsel by his contention that the 8th and 9th defendants’ right to fair hearing was breached in the conduct of the proceedings in suit No. KDH/KAD/216/2012, is ‘crying more than the bereaved’ or put it differently ‘being more catholic than the Pope’ in the Vatican. The 8th and 9th defendants did not complain that their right to fair hearing was violated by the lower Court in the conduct of the proceedings of the lower Court. I cannot see how the Issue of the breach of fair hearing can be sustained, when there has been no complaint by those affected; if at all there was such violation of the right to fair hearing. I therefore, hold that the Issue of lack of fair hearing in the conduct of the proceedings of the lower Court cannot be resolved in favour of the appellants, for the simple reason that the persons who ought to complain has not done so.
On the whole, having resolved all the 4 Issues for determination in the appeal against the appellants, the appeal fails. The judgment of the lower Court delivered in Suit No. KDH/KAD/216/2012, on the 18th day of March, 2016, is hereby affirmed. The respondent is entitled to costs assessed at N50,000.00. Same is awarded in favour of the respondent against the appellants jointly and or severally.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read in advance the lead judgment just delivered by my learned brother, Hon. Justice Ibrahim Shata Bdliya, J.C.A., and I am in full agreement with the reasoning and conclusion reached therein. My noble Lord in his admirable, characteristic and invigorating manner, has stated the correct position of the law in an emphatic, clear and unambiguous terms. The issues adopted for resolution and due determination of the appeal were well considered and properly determined in the lead judgment of my learned brother, Bdliya, J.C.A. I completely adopt the reasoning that gave rise to the resolution of the issues as mine and also resolved all the four issues against the appellants and in favour of the respondent. Thus, this appeal is also found by me to be devoid of merit and it is accordingly dismissed. I also abide by the consequential orders made in the lead judgment, including the order made with regard to costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read the lead Judgment of my learned brother, Ibrahim Shata Bdliya J.C.A. and I am in agreement that the appeal lacks merit. I also dismiss it and affirm the Judgment of the lower Court delivered by Hanatu A. K. Balogun, J.
I subscribe to the costs awarded by my learned brother.
Appearances:
Salisu Muhammed, Esq.For Appellant(s)
M. Y. Abubakar, Esq.For Respondent(s)
