ALHAJI ALIYU A.A v. ALHAJI ISA SHEHU KAMBA
(2019)LCN/12755(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of February, 2019
CA/S/102/2017
RATIO
DAMAGES: AWARD OF SPECIAL DAMAGES
“On the other hand, Special damages consist in all items of loss, which must be specified; specifically pleaded by a claimant before they may be proved and recovery granted. See NEW NIGERIAN BANK PLC vs. ALHAJI MUSA ABUBAKAR & SONS (2004)17 NWLR (PT. 901) 66 AT 82. An example of Special damages in the con of the instant Appeal would have occurred if in couching his claims for the damaged fence, the Respondent had claimed for monetary compensation for the damaged fence and had in the process specifically pleaded and strictly proved the pre-damaged value of the fence or had made a monetary claim for sums used in effecting repairs to the damaged fence before institution of the case. See the cases of HEALTH CARE PRODUCTS (NIG.) LTD vs. BAZZA (2003) FWLR (PT.162) 1937; IFEANYI CHUKWU OSUNDU vs. AKHIGBE (1999) 11 NWLR (PT. 625) 1. Here is a case in which the Respondent as Plaintiff in his relief (d) had merely claimed thus: ‘An award of the sum of ?1,000,000.00 (One Million Naira) being general damages for the building of the plaintiff which was twice demolished by the defendant.'” PER FREDERICK OZIAKPONO OHO, J.C.A.
DAMAGES: GENERAL DAMAGES
“General damages, as settled by case law simply mean damages, which the law presumes to flow naturally from the wrong complained of. Usually, it is the type presumed by law to be the direct and possible consequence of the act complained of. See CO-OPERATIVE DEV. BANK PLC vs. JOE GOLDAY CO. LTD (2000) 14 NWLR (PT. 688) 506 AT 555-556, citing on MYERS vs. STEPHENS 43 CAL REPTR 420, 433. In addition, it is the type, which the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate results or such as did in fact result from the wrong directly or proximately and without reference to the special character of the Plaintiff. See the cases of FIRST BANK OF NIG. PLC vs. MOSES IGUMBOR (2000) 6 NWLR (PT.662) 631 AT 637; YA?U vs. DIKWA (2001) 8 NWLR (PT. 714) 127 AT 146.” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
ALHAJI ALIYU A.A. Appellant(s)
AND
ALHAJI ISA SHEHU KAMBA Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling and judgment of the High Court of Justice, Sokoto State sitting in Sokoto in suit No: SS/32/2014 between the Respondent as Claimant and the Appellant as Defendant, whereat on the 24-3-2014, the Court below entered judgment for the Respondent in default of appearance of the Appellant.
By a writ of summons and a statement of claim, the Respondent as Claimant claimed against the Appellant as Defendant the following;
a. A declaration that the plaintiff is the owner/entitled to all the parcel of land subject of statutory Right of Occupancy No. SOK/1939 with Plan No. G. 685 situated at Abdullahi Fodio Road except the 7 shops on an area measuring about 27.0m width and 28.5m length at Abdullahi Fodio Road, Sokoto which the Plaintiff sold to the defendant.
b. A declaration that the plaintiff is the owner/entitled to all the disputed parcel of land measuring about 34.3m length and 2m width which is adjacent to plot of land of the plaintiff and part of Certificate of Occupancy No. SOK/1939 with Plan No. G. 685.
c.A perpetual injunction restraining the defendant his servants, agents, privies, whosoever or however called from laying claim, construction or further construction, selling, mortgaging, leasing or any other act of trespass or dealing with the plot of land forming part of the Certificate of Occupancy No. SOK/1939 with plan No: G.685 situated at Abdullahi Fodio Road measuring about 34.3m length and 2m width.
d. An award of the sum of ?1,000,000.00 (One Million Naira) being general damages for the building of the plaintiff which was twice demolished by the defendant.
e. 10% Court interest on the judgment sums.
f. Cost of this action.
g. Such further and other orders as the Court may deem fit to make in the circumstances.
The Appellant claimed that he was never served personally or otherwise with the processes of the Court below, while the Respondent claimed that processes of the Court below were served by substituted means on House No. 36 Kalgo Road, Runjim Samba Area and a place at Western Bye-pass area, Sokoto. See pages 12-20 of the record. The Appellant further claimed that although the originating processes of the Court indicated that the Appellant is a member of the House of Representatives, Abuja, but that no steps were taken to serve him with the processes in Abuja. In addition, that the Respondent’s affidavit in support of the application for substituted service indicated that the Appellant, being a politician was/is staying at an unknown place at Abuja which proved very difficult to trace and serve and that the bailiff had at one time stayed by the Appellant’s gate for one day without seeing him and has been to his house and office for about 10-15 times without seeing him.
The contention of the Appellant, is that the Court below despite the fact that the affidavit in support of the application for substituted service and the statement of claim indicated that the Appellant resides in Abuja and is a Member of the House of Representatives, ordered that the Appellant be served by substituted means at No. 36 Kalgo road, at Western bye-pass all in Sokoto; that the Court below proceeded to hear the Respondent and delivered its judgment in default of appearance on the 24th March, 2014 against the Appellant.
The claim of the Appellant is that he got to know about the suit at the point when the Respondent has commenced the processes of executing the judgment and that that was when the Appellant immediately filed an application to set-aside the default judgment, which was refused. The application for setting aside the default judgment is contained at pages 2 – 8 of the additional record of appeal and the ruling is contained at pages 30 – 35 of the additional record.
The Judgment of the Court below is contained at pages 36-44 of the record of appeal while the Notice of Appeal is contained at pages 45-49 of the record of appeal. The Appellant has appealed to this Court vide a Notice of Appeal filed on the 9th June, 2017.
ISSUES FOR DETERMINATION;
The Appellant nominated a total of five (5) issues for determination as follows;
1. Whether the trial judge was right in granting prayer 4 as contained in the Respondent?s statement of claim, which is a claim for general damages, which need not to be specifically pleaded and proved? (Ground 2).
2. Whether the Court below exercised its discretion judicially and judiciously in granting the application for substituted service on the Appellant? (Ground 3).
3. Whether the Court below was right when it admitted exhibit B in evidence which was made by a surveyor engaged by the Respondent when proceedings are pending or anticipated? (Ground 5).
4.Whether the trial Court is bound by the evidence and pleadings of the parties before it? (Ground 4).
5.Whether there is any admissible direct evidence before the trial Court in support of the claim for damages? (Ground 1).
On the part of the Respondent, four (4) issues were nominated for the determination of this Court thus;
1.Whether the trial judge exercised its discretion judicially and judiciously in granting relief (d) in the Plaintiff/Respondent’s statement of claim? (i.e., prayer 4 as referred to by the Appellant in his first issue for determination as well as Brief of Argument). (Ground 2).
2.Whether the trial Court exercised its discretion judicially and judiciously by granting an order for substituted service on the 30th August, 2013? (Ground 3).
3.Whether exhibit B is relevant and admissible evidence? (Ground 5).
4.Whether the trial Court is bound by the evidence and pleadings of the parties before it? (Grounds 4 & 1).
In addition to nominating these issues, the Respondent also raised a Preliminary Objection to the hearing of this Appeal on the 14th November, 2017 challenging the competency of the Appeal. The Objection is premised on the following Grounds:
a. That this Appeal is an abuse of Court process, because the Appellant made an Application to the Court below to set aside the Judgment (subject of this Appeal) in a Motion No. SS/M.90/2016 but was refused on the 7th November, 2016 and no Appeal was filed against such order.
b. That leave of this Hon. Court was not sought and obtained before the Appellant filed this Appeal against a default Judgment.
In arguing the Notice of Preliminary Objection seriatim, learned Counsel for the Respondent drew attention to the Additional Record transmitted by the Appellant and particularly attention was drawn to an application filed at the Court below by the Appellant who sought to set aside the judgment of the Court below delivered in default of appearance which was refused. The submission of Counsel thereafter is that rather than Appeal against the refusal order of the Court below, that the Appellant abandoned same and had thought it right to file an Appeal instead.
The submission of Counsel in this regard, is that this Appeal is a clear case of abuse of Court process. Counsel cited the of SARAKI vs. KOTOYE (1992) NWLR (PT. 264) 156, where the Supreme Court catalogued a number of situations or circumstances which give rise to abuse of Court process, one of which is to institute different actions between the same parties in different Courts even though on different grounds. Counsel cited the case of ARUBO vs. AIYELERU (1993) 3 NWLR (PT. 280) 125, where the Supreme Court held that the power to punish a party who is in abuse of the process of Court is exercised by a dismissal of the action. Counsel argued that the law is settled that a Default Judgment or in other words Judgment obtained in default of appearance is not appealable except with the leave of the Court. See the case of LASACO ASS PLC vs. DESERVE SAVING & LOANS LTD. (2012) 2 NWLR (1283) P. 95. Counsel submitted that the Appellant’s failure to seek and obtained leave of this Court before filing this Appeal robbed this Court of its Jurisdiction.
In his response learned Appellant?s Counsel was of the view that the Respondent’s Counsel submissions are strange in law and that the options usually open to a party who decides to appeal against a default judgment has long been settled in a number of cases. According to Counsel, a party can either appeal against the order for refusal to set aside a default judgment or elect to appeal against the default judgment, but that the party must choose one, as he cannot pursue the two at the same. See LINUS N. NWAIGWE & ORS vs. SIDNEY ANYANWU (2016) LPELR- 40613(CA) and EHIGHIBE vs. EHIGHIBE (2016) LPELR-40047 (CA); MOHAMMED vs. HUSSEINI (1998) 14 NWLR Part 584, p. 108; FEDERAL HOUSING AUTHORITY vs. EJIOGU (2016) LPELR-4021S (CA). Counsel urged the Court to dismiss this ground of objection by the Respondent.
In respect of the 2nd ground of objection dealing with the question of failure to apply for and the obtaining of leave to appeal against the default judgment, Counsel submitted that this ground can easily be dismissed with a wave of the hand because the records of this Court shows facts contrary to the Respondent’s assertion. Counsel further submitted that from the record of this Court, the decision appealed against was delivered on 24th March, 2014 and that the Notice of Appeal was filed on 9th June, 2017. According to Counsel, this clearly proves the fact that the instant appeal was filed after the period allowed by law. But that it is on record that the Appellant first approached this Court by way of an application in MOTION NO. CA/S/17M/2017 seeking extension of time to seek leave to appeal, leave to appeal and extension of time to appeal which application was granted on 8th June, 2017. See pages 50 – 51 of the records of appeal.
In his further argument on the issue, Counsel submitted that the judgment of the trial Court though a judgment in default of appearance is a final judgment so long as it finally decided the rights of the parties. See the case ofBALOGUN & ORS vs. ODE & ORS (2007) LPELR-719(SC) where the apex Court defined a ‘final decision’ as a “decision of a Court that would finally determine (subject to any possible appeal or detailed assessment of costs) the entire proceedings whichever way the Court decided the issues before it.” See also VINET ESTATE LIMITED vs. HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY & ANOR (2018) LPELR-44797(CA).
The judgment/decision of the Court below being one which is a final decision, Counsel contended that no leave is required to file this appeal. He urged this Court to discountenance the argument of the Respondent’s Counsel as misplaced and to dismiss his preliminary objection.
DETERMINATION OF THE NOTICE OF PRELIMINARY OBJECTION;
The first ground of objection taken by learned Respondent’s Counsel, deals with the question of abuse of process. Counsel had contended that the Appeal is an abuse of Court process, because the Appellant made an application to the Court below to set aside the Judgment (subject of this Appeal) in a Motion No. SS/M.90/2016 but was refused on the 7th November, 2016 and that no Appeal was filed against the lower Court’s order. The settled position of the law backed by several decided cases on the issue is that upon the delivery of a judgment obtained by default of appearance and or/defence, the party appealing or seeking to set aside the said judgment has two options open to him. One is that he either applies to have the said judgment set aside within the time allowed to do so under the relevant rules of Court or appeal out rightly against the said judgment. It is important to state here, however, that the issue of abuse of process of Court becomes inevitable where both options are exercised at the same time. In the instant appeal where the Appellant had at first exercised his option to set aside under the relevant rules of Court and was denied, nothing practically stops him from appealing against the Judgment obtained by default of appearance/defence. It would have been a different thing if the Appellant had exercised his rights to set aside and appeal all at the same time. It is therefore not an abuse of process for the Appellant to have decided to pursue his appeal having failed to persuade the Court below to set aside its judgment delivered in default of a defence. See IDIATA vs. EJEKO (2005) 11 NWLR (PT. 936) 517 AT 539; EHIGHIBE vs. EHIGHIBE (Supra)
In respect of the second leg of the preliminary objection, it is rather clear that the said judgment being a final judgment of Court between the parties and not an interlocutory judgment, no leave of Court is required to file the Appellant’s Notice of Appeal.
The clear import here is that an Appeal on the lower Court’s judgment of 24-3-2014, is as of right under Section 241(1) (a) of the 1999 Constitution of Nigeria as Amended. To this end, the Respondent’s Notice of Preliminary Objection is therefore lacking in merit and it is hereby dismissed.
DETERMINATION OF SUBSTANTIVE APPEAL:
Although the Appellant nominated a total of five (5) issues for the determination of this Appeal, a careful perusal of the issues nominated by the Respondent are in terms of con not far too different from the four (4) issues nominated by the Respondent. For the sake of comprehensiveness, however, this Appeal shall be determined based on the issues nominated by the Appellant. The Amended Appellant’s Brief of argument, settled by M. NUHU ESQ., was filed on the 28-11-2018 and deemed filed on the 29-11-2018, while the Respondent?s Brief dated 19-10-2018 was settled by M. U. UWAIS ESQ., and filed on the 19-10-2018, but deemed filed on the 28-11-2018. At the hearing of this Appeal on the 15-1-2019, learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.
SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Whether the trial judge was right in granting prayer (d) as contained in the Respondent’s statement of claim (a claim for general damages) which need not to be specifically pleaded and proved?
This Court is informed by learned Appellant?s Counsel that relief (d) of the Respondent’s statement of claim was a claim for the award of the sum of ?1,000,000.00 (One Million) Naira being general damages for the perimeter fence of the plaintiff, which was twice demolished by the defendant. See page 11 of the record. According to learned Counsel, this prayer/relief was granted by the Court below at page 44 of the record.
In his arguments against the grant of this relief Counsel drew attention to the nature of the relief sought and the pleadings in general, and contended that the claim is that of special damages not that of general damages, since it is:
“for the building of the plaintiff fence which was twice demolished by the defendant”.
He further contended that it is damages for the destruction of the building and which damages is quantifiable. Counsel also argued that general damages are not damages that could be quantifiable or assessed with exact precision. He cited the case of JULIUS BERGER (NIG) PLC vs. OGUNDEHIN DOLAPO (2013) ALL FWLR (PT.676) 497.
Arising from the foregoing, Counsel therefore submitted that where damages claimed are quantifiable and suffered in a particular wrong then such damage are special damages irrespective of the name used. He also cited the case of UBN PLC vs. CHIMAEZE (2014) 33 WRN 1@ 7 RATIO 5. According to Counsel, a careful look at the evidence of the parties during trial shows that the wrong complained off is quantifiable and an attempt was made to particularize them; the Respondent evidence and his prayer clearly complained of a particular wrong, which is quantifiable.
The contention of Counsel therefore, is that the law is trite that for the plaintiff to succeed in his claim for special damages, the particulars must be specifically pleaded and proved. See the case of AHMED vs. CBN (2013) 47 WRN SC 51 @ 59. It was further contended that the Respondent having failed to specifically plead the particulars of special damages in his pleadings and equally failed to prove same, that the Court below erred in awarding the Respondent the sum of 700,000 (Seven Hundred Thousand Naira) for general damages when what the Respondent actually claimed was special damages, which particulars has not been pleaded and proved. Counsel urged this Court to resolve this issue in favour of the Appellant.
ISSUE TWO:
Whether the trial Court was right in granting the application for substituted service while other means of effecting personal service on the Appellant has not been exhausted?
In arguing this issue, Counsel conceded that the trial Court, no doubt has power to make orders for substituted service upon an application made by the plaintiff stating all the grounds upon which the application was made. He referred to Order 12 Rule 5 of the High Court Civil Procedure Rules of Sokoto State, 1996. According to learned Counsel, in stating such grounds the applicant must show to the Court that all other means of serving the defendant personally have been exhausted or that the defendant is evading service. But that in the instant Appeal, Counsel also argued that the plaintiff in his statement of claimed stated that the defendant is a member of the House of Representatives and that it is common knowledge that the House of Representatives of Nigeria is in Abuja, thus showing the Appellant is obviously resident in Abuja.
The further contention of learned Counsel is that no attempt was made by the Respondent to serve the Appellant with the processes of the trial Court at the National Assembly, House of Representatives wing or the Appellant’s personal residence in Abuja. He drew attention to the affidavit in support of the application, which did not disclose where the attempt was made at personal service on the Appellant and failed. See pages 14-15 of the record of appeal. The further argument of Counsel is that while the affidavit in support did not mention the address of the house where the bailiff went and attempted to effect service on the Appellant, it is clear that attempts were made in an unknown place in Abuja, whereas the order for substituted service was made in respect of two places in Sokoto, Sokoto State.
All said and done, Counsel submitted that the trial Court did not exercise its discretion judicial and judiciously in granting the order for substituted service on the Appellant at No. 36 Kalgo Road, Runjin Sambo area, Sokoto and on an unspecified address at Western Bye-Pass Sokoto and that same has adversely affected the right of the Appellant to be heard. He further submitted that the failure to serve the Appellant at his last known place of work or residence in Abuja is a total denial of the Appellant’s right of fair hearing, which renders the whole proceedings of the Court liable to be set aside. Counsel urged this Court to resolve this issue in favour of the Appellant and against the Respondent.
ISSUE THREE:
Whether the Court below was right when it admitted exhibit B in evidence which was made by a surveyor engaged by the Respondent when proceeding are pending or anticipated? (Ground 5)
In arguing this issue, the attention of Court is first drawn to Exhibit B, which Counsel said is a survey plan purportedly drawn up by one Dantoro to show the parcel of land in dispute, where the Respondent alleged to have constructed a perimeter fence, which was twice demolished by the Appellant. Counsel told Court that the exhibit was tendered through the Respondent as PW1. See page 24 of the record of appeal. The grouse of Counsel on this issue is that the surveyor who prepared exhibit B was not called to testify/tender the said exhibit B and that his where about was not explained to the Court. The further grouse of Counsel is that the Respondent is not the maker of the document and that no foundation was laid as to the whereabouts of the maker and that for this reason, the document is inadmissible by virtue of Section 83(1) of the Evidence Act, 2011 and the following cases; 7UP BOTTLING COMPANY PLC vs. EMMANUEL (2013) LPELR-21104(CA); STATOIL NIG. LTD vs. INDUCON (NIG) LTD & ANOR (2012) LPELR-7955(CA); WUYAH vs. JAMA’A LOCAL GOVT., KAFANCHAN (2011) LPELR-9078(CA).
Against the backdrop of the foregoing, Counsel submitted that the PW1 through whom exhibit B was tendered did not lay foundation to satisfy the proviso to Section 83 (1) (b) of the Evidence Act, 2011. For this reason, Counsel urged this Court not to attach any probative value to exhibits B and B1 and to reject same. According to Counsel Exhibit B could have been prepared by any person (maybe a surveyor or not) engaged by the Respondent and handed over to the Respondent who tendered it in Court.
In addition, Counsel argued that the Respondent while tendering exhibit B told the Court below that the diagram shows that the Appellant encroached on his land. See page 24 lines 14-16 of the record of appeal. According to Counsel, this statement clearly indicates that Exhibit B was made when proceedings are either pending or anticipated and that it is the law of evidence that statements made in documents by a person interested at a time when proceedings are pending or anticipated are inadmissible in evidence under Section 83(3) of the Evidence Act, 2011. He cited the case of ABDULLAHI vs. HASHIDU & ORS (1999)4 NWLR (Pt. 638) at 645 – 647; OGIDI & ORS vs. DANIEL EGBA & ORS (1999) 10 NWLR (Pt. 621).
In urging this Court to expunge Exhibit B, Counsel argued that if the said exhibit is expunged from the records the case of the Respondent have no other evidence in support as it would collapse like a pack of cards. In conclusion, he urged this Court to resolve this issue in favour of the Appellant and against the Respondent.
ISSUES FOUR AND FIVE;
Whether the trial Court is bound by the evidence and pleadings of the parties before it?
Whether there is any admissible direct evidence before the trial Court in support of the claim for damages? (Grounds 4 and 1 respectively)
In arguing these issues, Counsel contended that for a plaintiff to secure judgment in his favour he must prove by credible evidence all the material averments in his pleadings. He cited the case of WALTER vs. SKYLL (NIG.) LTD (2000) FWLR (PT. 13) 2270 AT 2248 in support and contended that the judgment of the trial Court conferred title on a parcel of land situate at Abdullahi Fodio Road, Sokoto. See pages 43 and 44 of the record of appeal; whereas in all the evidence of the Respondent at the trial Court he mentioned that the parcel of land in dispute is situate at Ahmadu Bello Way, Sokoto near the flyover. See the page 24 line 3-4 of the record of appeal.
The further contention of Counsel is that from the record, it is clear that the judgment of the trial Court is not based on the evidence before it as the evidence before the Court is in respect of a plot situated at Ahmadu Bello Way, while the judgment is in respect of a plot situated at Abdullahi Fodio road. See METAL CONSTRUCTION (WA) LTD vs. D. A. MIGLIORE (1990) 1 NWLR (PT. 126) 299 and OBULOR vs. OBORO (2001) 8 NWLR (PT. 714) 25 where this Court per OREDOLA, JCA (As he then was) (P.28, Paras E-F) has this to say;
“It is patently elementary point of law, that a decision or judgment of a trial Court or tribunal must be supported by evidence, properly admitted and adduced before it.”
On account of the forgoing, Counsel submitted that the judgment of the trial Court in this case is not supported by the evidence before the Court and urged this Court to so hold.
It was further argued by Counsel that the reliefs sought by the respondent before the trial Court are declaratory and that where declaratory reliefs are sought, the Court cannot give judgment based on admission but must hear oral credible evidence in support of the declaratory relief. He cited the case of OGOLO vs. OGOLO (2006) 5 NWLR (PT.972) 173 and further submitted that there is no evidence before the trial Court to support the learned judge’s decision in granting prayers 1 and 3 in respect of the location of the land in dispute. See lines 3-4 at pages 24 and pages 43-44 of the record of appeal.
In respect of prayer 4 of the Respondent’s claim before the Court, Counsel argued that there is no oral, credible and direct evidence before the Court in support of the claim as the Respondent’s claim in his statement of claim and his testimony before the Court that it was the Appellant who demolished his wall-fence twice as follows; “It was the defendant who demolished my wall fence twice”. The argument of Counsel is that while this can be good enough as pleadings, as oral evidence, it is indeed vague. He said that since demolition is an act which could be seen, then the evidence must state the date and time when the Appellant demolished his fence, what types of tools he used, and whether it was carried out by him or instructed other people and how many are they? Their names or description, and at what time of the day did they carried out the demolition?
The contention of Counsel is that the testimony of the Respondent does not satisfy any of the questions above and does not in any way indicate that it was a direct evidence of what he saw. Counsel added that the Respondent did not by his testimony pin the Appellant or himself at the scene during the incident. He therefore submitted that the evidence of the Respondent as PW1 before the trial Court fell short of satisfying the requirement of oral evidence of the person who saw the act. He cited the case of AHMED IBRAHIM SHANONO INVESTMENT LTD vs. FCMB PLC (2014) LPELR-22918(CA) where it was held;
“By virtue of Section 126 of the Evidence Act 2011 (formerly Section 77 of the Evidence Act Cap E14, Laws of the Federation 1990) for oral evidence of facts to be credible and reliable, it must be unequivocally direct, i.e. it must be rendered by a witness who could have, and did have, direct knowledge of the facts. Jolayemi vs. Olaoye (2004) 12 NWLR (Pt 887) 322 at 341, Ajadi vs. Ajibola (2004) 16 NWLR (pt. 898) 91, at 163 F-G, Ezeazodosiako vs. Okeke (2005) 16 NWLR (Pt.952) 612. There is nothing on the records of proceedings to show that the oral evidence of the first plaintiff witness on Exhibit 20 was direct evidence of facts known to the witness and it cannot thus be regarded as credible or reliable evidence.”
It was also contended that the evidence of the PW1 is not a direct evidence in prove of the facts of demolition as the PW1 just repeated his pleadings without more and did not claim to have seen the Appellant demolishing his block works or saw/heard the Appellant ordering the demolition of his work. According to Counsel the position of the law on proof of facts by direct evidence is that if it something that could be seen, then it must be the evidence of the person who saw it, if it is something that could be heard or perceived, it must be the evidence of the person who heard it or perceived it. For this reason, Counsel argued that the evidence of the PW1 is vague and urged this Court to so hold and to reject same.
RESPONDENT;
ISSUE ONE;
Whether the trial judge exercises his discretion judicially and judiciously in granting relief d (relief 4 as referred by the Appellant in his Brief of Argument) as contained in the Plaintiff/Respondent’s statement of claim. (Ground 2)
The argument of learned Counsel is that the award of General Damages is a matter which is entirely at the discretion of the trial Court and that the Court of Appeal will not interfere with such an award, unless where the Court while assessing damages applies wrong principles of law such as taking into account irrelevant factors or that the amount awarded is either ridiculously low or so ridiculously high. Counsel cited the cases of UMOETUK vs. UNION BANK PLC (2001) FWLR (PT. 81) 1849 RATIO 9; U.B.N LTD vs. ODUSOTE (1995) 9 NWLR (PT. 421) 558 and NWOBODO vs. A.C.B LTD (1998) 6 NWLR (PT. 464) 658. He urged this Court to overrule the Appellant on these principles of law.
In responding to the assertion of the Appellant that the damages awarded (which was one of the reliefs sought at the trial Court by the Plaintiff/Respondent) ought to have been special damages rather than general damages, merely because (in his opinion) it is quantifiable, Counsel submitted that this case falls in the same pit with the case before this Court in GANIYU BADMUS & ANOR vs. A. O. ABEGUNDE (1999) 71 LRCN P. 2912 @ P. 2925 RATIO 1 SC in which the apex Court stated that general damages cannot stem from the mere fact of the very loss occasioned by the destruction of the house and store, which by their nature readily lend themselves to quantification or assessment going by the evidence of the cost of repairs or replacement as the case may be. Counsel also cited the case of SHELL B-P PETROLEUM DEV. CO OF NIG vs. HIS HIGHNESS PERE-COLE (1978) 3 SC 183 @ 192 in support. It was also submitted by Counsel that the trial Court has the unfettered powers to award general damages and equally has the duty to calculate what sum of money will be reasonably awarded in the circumstances of the case. See TAYLOR vs. OGHENEOVO (2012) 13 NWLR (PT. 1316) P. 46.
ISSUE TWO:
Whether the trial Court exercised its discretion judicially and judiciously by granting an order for substituted service on the 30th August, 2013? (Ground 3)
The position of learned Counsel on this issue is that contrary to the argument of the Appellant, the High Court (Civil Procedure) Rules particularly Order 12 Rule of the High Court (Civil Procedure) Rules, 1996 of Sokoto State, the trial Court has unfettered discretionary powers to make orders for the substituted service if it is convinced, either after or without an attempt at personal service that for any reason personal service cannot conveniently be effected. He cited the case of HALID PHARM. LTD vs. SOLOMON (2015) 5 NWLR (PT. 1453) 565 CA in support.
Apart from this, Counsel argued that the Appellant is not denying that he was served with the (trial) Court processes as he even admitted in his argument in support of this Appeal that he was served and that the place where the Court processes were pasted was at his last known address (which is his only dwelling House within the Jurisdiction of the trial Court) and his business place as well. According to Counsel, it is for the Appellant (as a member of the National Assembly representing some local government areas in Sokoto) to leave a forwarding address(s) had he wished that his last known address be no longer used to reach him.
It was argued in addition, that the method (substituted service) that was used to serve the Appellant with Motion for the Execution of the (monetary) part of the Judgment, which he claim to have only known about during the execution, was the same method used when the originating process subject of this Appeal was served on the Appellant. Counsel told Court that the trial Court, in its Judgment at page 37 of the Record of Appeal restated its position that it was convinced that its order was duly carried out by the bailiff. Counsel referred to the Affidavit of service by the Court’s bailiff at page 16 of the Record of Appeal. See J & J TECHNO (NIG.) LTD vs. Y.H.Q.S LTD (2015) 8 NWLR (PT. 1460) 1 CA. Counsel urged this Court to resolve this issue in favour of the Respondent and against the Appellant.
ISSUE THREE:
Whether exhibit “B” is relevant and admissible evidence? (Ground 5)
The argument of Counsel is that what determines admissibility of a document is its relevance to the fact in issue and that when once it is established that the document is relevant and admissible in evidence, the Court has the duty to act on it. He stated that contrary to the misleading argument of the Learned Counsel to the Appellant that Exhibit “B” was made during the pendency or in anticipation of the suit, there is nowhere in the Record of Appeal it has been shown that the document was made during the pendency or in anticipation of the suit, therefore that this issue was never raised or argued at the trial Court and has, therefore not been covered by the Record of Appeal. His submission, however, is that the document is admissible in law and he referred Court to Sections 83(1) (3) & 91(1) (3) of the Evidence Act, 2011.
The contention of Counsel going forward is that an Appellate Court is bound by the Record of Appeal and cannot go outside the Record and draw a conclusion which is not supported by the Record of Appeal. Counsel cited the case of PROFESSOR B. J. OLUFEAGBA & O PROFESSOR SHU’AIBU v. OBA ABDUL-RAHEEM & ORS (2009) 12 SCNJ 349. Counsel urged this Court to overrule the Appellant on this issue.
In a more related matter of Exhibit “B” (which is a diagram in respect of the land in dispute drawn by one Muhammad Dantoro, Deputy Surveyor General of Sokoto State in his official capacity) tendered by the Respondent and admitted by the trial Court is a relevant document and admissible in law.
Counsel urged this Court to so hold and overruled the Appellant on this.
ISSUE FOUR:
Whether the trial Court is bound by the evidence and pleadings of the parties before it? (Ground 4 & 1)
The contention of Counsel in arguing this issue is that it is only the trial Court that has the primary function of fully considering the totality of evidence placed before it, ascribe probative value to it, put same on imaginary scale of justice to determine the party in whose favour the balance of justice tilts, makes the necessary findings of fact, and come to a logical conclusion. Accordingly, Counsel submitted that evaluation of evidence remains the exclusive preservation of the trial Court because of its singular opportunity of hearing and watching the demeanour of the witnesses as they testify, and thus it is the Court best suited to assess their credibility. It is only where it has been shown that the trial Court failed to evaluate such evidence properly or at all that an Appellate Court intervenes and re-evaluates such evidence. See the case of MIL GOV. LAGOS STATE vs. ADEYIGA (2012) 5 NWLR P. 29.
In order to clear what Counsel referred to as the ‘misleading argument’ of the Appellant and for the avoidance of doubt, he stated that the parcel of land in dispute, (being a filling station) and subject of this appeal has 2 (two) main faces or gate (in and out), one of which is directly facing Abdullahi Fodio Road close to Ahmadu Bello Way Flyover while the other is directly facing Ahmadu Bello Way close to the Flyover. He further stated that it is the same parcel of land covered by Certificate of Occupancy No. SK/1939, tendered as Exhibit ‘A’. According to Counsel, by his submissions made of the evidence adduced before the Court below, the Appellant’s Counsel only tried to mislead this Court. He therefore urged this Court to discountenance the argument for being misleading and lacking in substance.
On account of this issue, Counsel cited the case of FALEYE vs. DADA (2016) 15 NWLR (PT. 1534) 80 SC where the Supreme Court stated that identity of a parcel of Land in dispute has nothing to do with what the parties call it. See also ASSAM vs. OKPOSIN (2000) 10 NWLR (PT. 676) 659. Learned Counsel finally submitted that the Appellant has failed to show from the Record of Appeal, failure on the part of the trial Court to perform its primary function and to warrant the interference of this Court. Counsel urged this Court to hold and to resolve all issues in favour of the Respondent by dismissing this Appeal.
RESOLUTION OF APPEAL
At the Court below, the Respondent claimed to be the beneficial owner of the plot of land covered by a Certificate of Occupancy no: SOK/1939 with attached plan No: G. 685. His claim included the fact that he built a filling station thereon and seven (7) shops on the plot of land. He also claimed to have leased out the filling station to IMAD Petroleum and has sold out the seven (7) shops to the Appellant.
According to the Respondent the seven (7) shops covers an area measuring about 27.0m in width on one side and 28.5m in width on the other side and 12.0m length. He also claimed to have constructed a fence (six blocks of cement in height) and that same was twice demolished by the Appellant.
In his claims before the Court below, the Respondent asked for a number of declarative reliefs, one of which is a declaration that he is owner/entitled to the parcel of land in dispute except the seven (7) shops at Abdullahi Fodio Road, Sokoto which the Respondent as Plaintiff sold to the Defendant who is Appellant herein. The Plaintiff also asked for a perpetual injunction restraining the Appellant, his servants, agents, privies, whosoever or however called from laying claim, construction or further construction, selling, mortgaging, leasing or any other act of trespass or dealing with the plot of land forming part of the Certificate of Occupancy No. SOK/1939 with plan no: G.685 situated at Abdullahi Fodio Road measuring about 34.3m length and 2m width. On the 24-3-2014, the Court below delivered its well considered judgment in favour of the Respondent, hence this Appeal.
In arguing issue one, learned Appellant’s Counsel contended that the Respondent’s relief (d) of the statement of claim was indeed a claim for the award of the sum of ‘1,000,000.00 (One Million Naira) as general damages for the building of the plaintiff, which he claimed was twice demolished by the defendant. It was further contended by Appellant’s Counsel, that the nature of the relief sought and the pleadings in general of the Respondent is a claim for special damages and not a claim for general damages, since it is: “for the building of the plaintiff, which was twice demolished by the defendant”.
The argument of Counsel is that as damages for the destruction of the building of the Respondent and which damages is quantifiable, it is nothing short of special damages; that ought to have been specially pleaded and strictly proved with exact precision as it ought to have been done. He contended that a careful look at the evidence of the parties during trial shows that the wrong complained of by the Plaintiff is quantifiable and that an attempt was made to particularize them but was not made.
General damages, as settled by case law simply mean damages, which the law presumes to flow naturally from the wrong complained of. Usually, it is the type presumed by law to be the direct and possible consequence of the act complained of. See CO-OPERATIVE DEV. BANK PLC vs. JOE GOLDAY CO. LTD (2000) 14 NWLR (PT. 688) 506 AT 555-556, citing on MYERS vs. STEPHENS 43 CAL REPTR 420, 433. In addition, it is the type, which the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate results or such as did in fact result from the wrong directly or proximately and without reference to the special character of the Plaintiff. See the cases of FIRST BANK OF NIG. PLC vs. MOSES IGUMBOR (2000) 6 NWLR (PT.662) 631 AT 637; YA?U vs. DIKWA (2001) 8 NWLR (PT. 714) 127 AT 146.
The position of the law as far as General damages are concerned are the kinds which the law implies in every breach of legal rights or in every wrong complained of and its quantification being a matter for the discretion of the Court. It is usually for this reason that General damages are not specifically pleaded but which the law implies. See the case of UBN LTD vs. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT. 421) 558 AT 599 and a host of other decisions of Court on the subject.
On the other hand, Special damages consist in all items of loss, which must be specified; specifically pleaded by a claimant before they may be proved and recovery granted. See NEW NIGERIAN BANK PLC vs. ALHAJI MUSA ABUBAKAR & SONS (2004)17 NWLR (PT. 901) 66 AT 82. An example of Special damages in the con of the instant Appeal would have occurred if in couching his claims for the damaged fence, the Respondent had claimed for monetary compensation for the damaged fence and had in the process specifically pleaded and strictly proved the pre-damaged value of the fence or had made a monetary claim for sums used in effecting repairs to the damaged fence before institution of the case. See the cases of HEALTH CARE PRODUCTS (NIG.) LTD vs. BAZZA (2003) FWLR (PT.162) 1937; IFEANYI CHUKWU OSUNDU vs. AKHIGBE (1999) 11 NWLR (PT. 625) 1. Here is a case in which the Respondent as Plaintiff in his relief (d) had merely claimed thus:
‘An award of the sum of #1,000,000.00 (One Million Naira) being general damages for the building of the plaintiff which was twice demolished by the defendant.’
It would be recalled that in granting the Respondent’s claim for monetary compensation at page 44 of the printed records, the Court below had merely stated thus:
‘The defendant is to pay to the Plaintiff the sum of N700,000. (Seven Hundred Thousand Naira only) being general damages for the building of the Plaintiff which was twice demolished by the defendant.’
‘In making an award of the sum of #700,000 (Seven Hundred Thousand) Naira only out of a claim made for the sum of 1,000,000.00 (One Million) Naira as general damages for the building of the Plaintiff twice demolished by the defendant, it is rather glaring, that what the Court below indeed granted was an award of the sum of #700,000 (Seven Hundred Thousand Naira) only, which quantification was entirely based on the discretion of the Court below. It would of course have been an entirely different thing altogether, if the Respondent as Plaintiff in making his claims for general damages had made any attempts, whatsoever in specifically pleading and strictly proving the pre-damaged value of the fence or had in fact made any monetary claims for sums used in effecting repairs to the damaged fence before institution of the case. From the foregoing, I cannot therefore help but resolve the Appellant?s issue one against the Appellant and in favour of the Respondent.
In the second issue dealing with the question of whether the trial Court was right in granting the application for substituted service while other means of effecting personal service on the Appellant has not been exhausted? The position of the law on the subject is as stated by this Court in the case of ONONYE vs. CHUKWUMA (2005) ALL FWLR (PT.287) 951 AT 974 per AUGIE, JCA (as He then was) which restated the proposition in the case of MARK vs. EKE (2004) FWLR (PT. 200) 1455 AT 1478-1479 wherein the Court held the views that the material averments in an Applicant’s affidavit in support for the grant of an order for substituted service must include the following;
a.The form of substituted service being asked for,
b.The date of issue of the writ or process sought to be served,
c.How long it has remained without being served,
d.Whether the defendant is normally within jurisdiction and was within it at the date of issue; and
e.If the defendant is outside jurisdiction, when he left it and why, if known.
The supporting affidavit of the Respondent?s motion exparte seeking the grant of an Order of substituted service on the Appellant as defendant is pasted at pages 14 and 15 of the printed records. There is no gainsaying the fact that virtually every single requirement contained in the decision of the apex Court in the case of MARK vs. EKE (Supra) are reflected in the Respondent?s Supporting Affidavit. What perhaps, the Appellant should be made to understand in this case is that once it is established that a defendant is evading service as the Appellant successfully did in the Court below, and an order of Court is obtained, the defendant cannot be heard later to complain of fair hearing. See the decision of this Court in DICKSON vs. OKOI (2003) 16 NWLR (PT. 846) 397. See also SHAHIMI vs. AKINOLA (1993) 5 NWLR (PT. 294) 434.
The reason for this, is that because once leave is obtained and such service complies with the order of Court, the service is unimpeachable as it does not matter whether or not the defendant becomes aware of the proceedings as the Applicant is not duty bound to prove this. See the DICKSON vs. OKOI (Supra). It is instructive to note that at page 37 of the printed records in the lower Court?s judgment, the Court made it quite clear that it was convinced that its order made for the substituted service of processes on the Appellant as defendant was duly carried out by the bailiff of Court who swore to an Affidavit of service at page 16 of the Record of Appeal. The most important thing, therefore and as far as this Court is concerned, is that the Appellant was eventually served and that any other complaints thereafter made in connection with the mode of service is merely secondary.
It is important, perhaps, to note that the High Court (Civil Procedure) Rules of Sokoto, 2015 particularly Order 5 Rule 1 is instructive on the fact that the trial Court has unfettered discretionary powers to make orders for the substituted service of processes, if it is convinced after attempts at personal service that for any reason personal service cannot conveniently be effected. Against the backdrop of this position, I am simply unable to agree with the Appellant on this issue as it is accordingly resolved in favour of the Respondent.
In respect of the third issue, dealing with the question of whether the Court below was right when it admitted exhibit B in evidence, whose maker was not called as a witness and by so doing drew the ire of the Appellant. The settled position of the law is that documents are to be tendered through their maker so they could be cross examined. For this reason, Exhibit B is inadmissible in law. See Sections 83(1) (3) & 91(1) (3) of the Evidence Act, 2011. See also OPOLO vs. THE STATE (1977) 4 SC 53; OMEGA BANK NIG. LTD vs. OBC LTD (2005) 8 NWLR (PT.928) 541 AT 582. This issue is resolved in favour of the Appellant.
In respect of issues four and five, dealing with the questions of admissible evidence and all that and in which the Appellant contended that the judgment of the trial Court conferred title on a parcel of land situate at Abdullahi Fodio Road, Sokoto whereas in all the evidence of the Respondent at the trial Court he kept on mentioning that the parcel of land in dispute is situate at Ahmadu Bello Way, Sokoto near the flyover. The understanding of this Court, through a careful and painstaking perusal of the printed records is that the parcel of land in dispute, which houses a Petrol filling Station has two (2) approaches or ‘in’ and ‘out’ gates, one of which is directly facing Abdullahi Fodio Road close to Ahmadu Bello Way Flyover while the other is directly facing Ahmadu Bello Way close to the Flyover. Appellant did not show in his submissions that the parcel of land is not one and the same parcel covered by Certificate of Occupancy No: SK/1939, which was tendered as Exhibit ?A?.
In the final analysis and notwithstanding the fact that this Court resolved issue three (3) in favour of the Appellant, the Appeal fails and it is accordingly dismissed. Cost of ?50,000.00 is awarded in favour of the Respondent against the Appellant.
HUSSEIN MUKHTAR, J.C.A.: I am in full agreement with my learned brother Frederick O. Oho, J.C.A, that this appeal has no merit and should be dismissed. For the same reasons contained in the judgment, I also dismiss this appeal.
I subscribe to the consequential orders made in the judgment.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in draft the Judgment delivered by my learned Brother Oho JCA. I agree that the Appeal fails and is accordingly dismissed. I abide by the order as to costs.
Appearances:
M. Nuhu, Esq.For Appellant(s)
M.U. Uwais, Esq.For Respondent(s)
