ALPHA PLUS ASSOCIATION LTD & ANOR v. MBEGBU (2021)

ALPHA PLUS ASSOCIATION LTD & ANOR v. MBEGBU

(2021)LCN/14975(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, January 04, 2021

CA/A/186/2019

RATIO

JUDGMENT: DUTY OF AN APPELLANT COMPLAINING THAT THE DECISION OF LOWER COURT IS PERVERSE FOR PROPER EVALUATION OF ORAL AND DOCUMENTARY EVIDENCE

It is trite law that an Appellant who complains that the decision of lower Court is perverse for lack of adequate or proper evaluation of oral and documentary evidence must establish that the lower Court made improper use of opportunity of its having seen the witnesses testified.

He must establish or prove that the learned trial Judge failed to ascribe probative value to the evidence led or, that wrong inferences were drawn by the learned trial Court thereby leading to wrong conclusion or miscarriage of justice making it imperative for the Appellate Court to interfere and re- evaluate the evidence in order to obviate injustice. See:
1. CHIEF D. B. AJIBULU VS MAJOR GENERAL D. AJAYI (RTD) (2014) 2 NWLR (PART 1392) 483 D-H to 503 A per OGUNBIYI, JSC.
2. DR SOGA OGUNDALU VS CHIEF A. E. O. MACJOB (2015) 3 SCM 113 AT 124 per RHODES-VIVOUR, JSC.
3. O.A. AKINBADE & ANOR VS AYOADE BABATUNDE & ORS (2018) 7 NWLR (PART 1618) 366 AT 387H TO 388 A-D per M. D. MUHAMMED, JSC who said:
“Counsel have alluded to a number of legal principles in urging that they are necessary guide in the determination of the appeal. In this wise one agrees more particularly with learned respondents counsel that the task of evaluation of evidence and the ascription of value to the evidence led in a matter is the primary duty of the trial Court that had the opportunity of seeing hearing and assessing the witnesses who testified in proof or context of the matter, see Adeniji v. Adeniji (1972) 4 SC 10; Woluchem v. Gudi (1981) 5 SC 291 and Congress for Progressive Change & Ors v. INEC (2011) LPELR 8257 (SC) (2011) 18 NWLR (Pt. 1279) 493.
It is trite as well that for the evidence proved in a case to be worthy of being evaluated, parties must have joined issues on the facts sought to be established by such evidence in their pleadings. Evidence in respect of un-pleaded facts, facts on which parties had not joined issues on in their pleadings must, having gone to no issue, be ignored. See Morohunfola v. Kwara Tech (1990) 4 NWLR (Pt. 145) 506 and Ademeso v. Okoro (2005) 14 NWLR (Pt. 945) 308. PER PETER OLABISI IGE, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERING WITH EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT

The law is settled, it must be further conceded, that where the trial Court that had the advantage of seeing, hearing, and assessing the witnesses failed and or refused to draw the benefit of the advantage and wrongly evaluated and/or entirely declined to evaluate the evidence, the appellate Court must intervene to correctly evaluate the evidence and arrive at the just decision; the evidence as properly evaluated warrants.

Thus in its primary role of reviewing a judgment on appeal in a civil case, where the trial Court’s finding or non-finding of facts is questioned; such as is done in the case at hand, the appellate Court must avail itself the evidence before the trial Court; know whether the evidence was accepted or rejected legally, know whether the evidence of each side was properly assessed and given its appropriate value and put on an imaginary scale side by side with the evidence of the other side before preferring on the basis of its weight, the evidence of the particular side. See Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 at 339 and Mogaji v. Odofin (1978) 4 SC 1. PER PETER OLABISI IGE, J.C.A.

DAMAGES: NATURE OF DAMAGES

Damages by whatever name it is described is designed to compensate the Plaintiff or person who is injured by the Defendant to assuage his loss economically, the injury or unnecessary deprivation or pains the Defendant action had caused the plaintiff. They are all compensatory awards which is always at the discretion of the trial Court. The Court must however act at all times judicially and judiciously take into conscious account the circumstances of each case. See:

C.B.N & ORS V. AITE OKOJIE (2015) LPELR- 25740 SC 1 AT 42 D-G per RHODES-VIVOUR JSC who said:
“This is what the Court of Appeal has to say on exemplary damages.
“…the 3rd to 7th Appellants’ main argument is that exemplary damages was not expressly pleaded. This is preposterous argument. The age of technical pleading has been put behind. A party cannot be denied his entitlement merely because his pleadings were not couched in technical terms. It is now settled principle of law that to be entitled, a claim for exemplary damages need not be pleaded expressly. It is enough if the facts in the pleading support the award of exemplary damages to avoid being taken by surprise. See CES. v. Ikot 1999 12 SC (pt. ii) p. 133. agree with both Courts below. Exemplary damages are awarded with the object of punishing the Defendant for his conduct in inflicting injury on the Plaintiff. They can be made in addition to normal compensatory damages and should be made only;
(a) in a case of oppressive, arbitrary or unconstitutional acts by Government servants.
(b) where the Defendant’s conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the Plaintiff.

(c) where expressly authorized by statute. See Gov. of Lagos State v. Ojukwu (1986) 1 NWLR (pt 18) p. 621; Alele Williams v. Sagay (1995) 5 NWLR (pt. 396) p. 441″
2. MISS PROMISE MEKWUNYE VS EMIRATES AIRLINE (2019) 9 NWLR (PART 1677) 191 at 224 F-H to 225 A-E per PETER-ODILI JSC who said:
“Indeed, Compensatory Damages is the same as General Damages which is damages recovered in payment for actual injury or economic loss, which does not include punitive damages. A sum of money awarded in a civil action by a Court to indemnify a person for the particular loss, detriment, or injury suffered as a result of the unlawful conduct of another. Compensatory damages provide a plaintiff with the monetary amount necessary to replace what was lost, and nothing more. Indeed, this Honourable Court has held in the British Airways v Atoyebi (supra) that general damages are compensatory damages. See also UBN Plc v Ajabule & Anor (2011) LPELR-8239 (supra).
In Artra Ind. Nig. Ltd v N.B.C.I. (1998) LPELR-565, P.48, Paras. F-G SC, it was held that “the award of general damages is another way of compensating the plaintiff for the loss of expected profit and the freight on the goods”. Per Onu JSC
Also, in Wahabi v Omonuwa, (1976) LPFLR-3469) at page 17, paras. C-D, the Supreme Court held that:-
“General damages are those which the law implies in every breach of contract (see also Marzetti v Williams (1830) 1 BFA d.415), and where no real damage has been suffered may be a trifling amount”. Per Idigbe, JSC
See in Cameroon Airlines v Otutuizu, (2011) LPELR-827 SC, the Apex Court held at page 31. PER PETER OLABISI IGE, J.C.A.
DAMAGES: DISTINCTION BETWEEN GENERAL DAMAGES AND PUNITIVE DAMAGES

I am not stating anything new in saying that general damages are different from punitive damages, as while general damages or compensatory damages provide the claimant with the monetary amount necessary to replace what was lost, punitive damage punishes a defending party for his or her conduct as a deterrent to the future commission of such acts. PER PETER OLABISI IGE, J.C.A.

DAMAGES: REQUIREMENT FOR A PLAINTIFF TO QUALIFY FOR THE AWARD OF COMPENSATORY DAMAGES

What is required of the claimant or plaintiff to qualify for the award of compensatory damages is to prove that he or she has suffered a legally recognisable harm that is compensable by a known amount of money that would be objectively determined by a judge and this was the stand the learned trial judge took.

That position has long been recognised by this Court and my learned brother, Rhodes-Vivour in the case of Cameroon Airlines v Otutuizu (2011) LPELR-827 SC stated as follows at page 31 thus:-
“Once breach of contract is established, damages follow. General damages are thus losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved. See UBN Ltd v Odusote Bookstores Ltd (1995) 9 NWLR (Pt.421) P558, general damage is awarded by the trial Court to assuage a loss caused by an act of the adversary”.
On what amounts to punitive or exemplary damages, this was dealt with by the Court in the case of Odiba v Azege (1998) LPELR-2215 (SC) at Page 25, thus:
“Exemplary damages, in particular, also known as punitive or vindictive damages can apply only where the conduct of the defendant merits punishment, and this may be considered to be so where such conduct is wanton, as where it discloses fraud, malice, cruelty, insolence or the like, or where he acts in contumelious disregard of the plaintiff’s rights. But exemplary damages, to some extent, are distinct from aggravated damages whereby the motives and conduct of the defendant aggravating the injury to the plaintiff would be taken into consideration in the assessment of compensatory damages”. Per Iguh JSC “
The onus is on the Appellants to show that the damages awarded against him is excessive and how. See NCC VS MOTOPHONE LTD & ANOR (2019) 14 NWLR (PART 1691) 1 at 33H to 34A per ABBA AJI, JSC. PER PETER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

1. ALPHA PLUS ASSOCIATION LIMITED 2. GODWIN IJEOMA APPELANT(S)

And

UGOCHUKWU MBEGBU RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal stems out of the decision of the Federal Capital Territory High Court in suit No: FCT/HC/CV/1605/2016 contained in the judgment delivered by Hon. Justice Peter O. Affen on 21st day of February 2019.

The respondent herein was the Plaintiff in the said suit wherein he claimed in his Further Amended Statement of claim dated and filed 5th of October, 2018 the following reliefs against the Appellants/Respondent jointly and severally as follows:
1. A DECLARATION that the sealing of plot No. 63 Parakou Crescent Wuse 11 Abuja by welding together the gate and the parking of a 20- ton truck No. Abuja XL 429 ABC belonging to the 1st Defendant, by the defendants without recourse to due process of law amounts to forceful ejection of the plaintiff which is reprehensive, high handed and an abuse of the rule of law.
2. The sum of N20,000,000 (Twenty Million Naira) as damages for trespass.
3. The sum of N150,000,000 (One Hundred and Fifty Million Naira) as exemplary/punitive damages for forceful ejection of the plaintiff and for the emotional and psychological depression and anxiety

suffered by the plaintiff as a result of the act of the defendants in forcefully ejecting him and his family from plot 63 Parakou Crescent Wuse II Abuja.
4. The sum of N1,880,000 (One Million Eight Hundred and Eighty Thousand Naira) as special damages incurred by plaintiff in hiring vehicles for his daily commuting and activities.
5. 10% interest on the judgment sum from the date of judgment till the judgment is finally liquidated.

The matter proceeded to trial at the end of which the learned trial Judge gave a considered judgment and held as follows:-
“In the ultimate analysis and for the avoidance of doubt, judgment is entered in the following terms:
1. It will be and is hereby declared that the sealing off the Plot 63 Parakou Crescent Wuse II, Abuja by welding the main entrance gate and parking of the 1st Defendant’s 20-ton truck with Registration No. Abuja XL 429 ABC directly behind the welded gate recourse to due process of law, which is reprehensible, high-handed and affront to the rule of law.
2. The Defendants shall pay to the Plaintiff the sum of N5,000,000.00 (Five Million Naira) as damages for trespass.

The Defendants shall pay to the plaintiff a further sum of N10,000,000.00 (Ten Million Naira) on the footing of exemplary/punitive damages for deploying unorthodox means to evict the Plaintiff from 63 Parakou Crescent Wuse II, Abuja and the attendant emotional and psychological trauma, depression, pain, and anxiety suffered by the Plaintiff by reason thereof.
4. Special damages in the sum of N1,880,000.00 (One Million, Eight Hundred and Eighty Thousand Naira) are also awarded against the Defendants in favour of the Plaintiff for expenses incurred in hiring vehicle for daily commuting and other activities from 1/5/15 to 2/9/15.
5. The sums awarded in favour the Plaintiff in (2), (3) and (4) above (which is Judgment sum) shall attract post-judgment interest at the rate of 10% per annum with effect from today until the entire judgment sum is liquidated.
6. The counterclaim succeeds in part and the Plaintiff shall pay to the Defendants/Counterclaimants the sum of N66.666.66 being the balance of outstanding rent for the 3-Bedroom flat and 1-Room boy’s Quarter occupied by the Plaintiff at No. 63 Parakou Crescent, Wuse II, Abuja from September 2013 to

May 2015, This sum shall attract post-judgment interest at the rate of 10% per annum with effect from today until the entire sum liquidated.
7. The residue for the counterclaim fails and it will be and is hereby dismissed.
8. There shall be no order as to costs.

The Appellants were aggrieved by the decision and have their Notice of Appeal dated and filed on 28th February, 2019, appealed to this Court of Nine (9) grounds which without their particulars are as follows:
GROUND 1
The Honourable Court below Court erred in law when the Honourable Court held:
“In the light of the Plaintiff’s insistence that the truck was sparked behind the entrance gate from 25/5/15 until 3/9/15, the Defendant’s failure or neglect to indicate when they eventually removed the truck from its alleged broken-down position seems to me quite curious if not an attempt at cover up. PW1, PW2, PW5 who were not discredited under cross-examination gave direct evidence of what they saw namely: that the main entrance gate to the premises was welded together and a truck parked inside the demised premises directly behind the welded gate. Thus, notwithstanding that

the Plaintiff’s wife… was not fielded as a witness it seems to me that there is sufficient available circumstantial evidence to fix the Defendants with liability. I accept and believe the evidence the testimonial evidence of PW1 as credible account of what transpired on 25/5/15. It is also quite instructive that the Defendants did not deem it necessary to cross examine the Plaintiff (PW5) on his testimony that the demised premises were not unsealed until 3/9/15. It seems to be therefore, that the welding of the main entrance gate/and/or allowing the 20- ton truck to remain in the position showing the photographs (Exhibits PA – D) which constrained the Plaintiff’s family to hurriedly vacate the premises whilst the Plaintiff was out of town are actions calculated by the Defendants to wrest possession from the Plaintiff by means other than due process of law… the facts in the instant case show that the Defendants deployed unorthodox means to wrest possession from the Plaintiff… I reckon therefore that eminently entitled to the declaration sought”.
GROUND 2
The Honourable Court below Court misdirected facts in issue when the Honourable Court held:

“The Defendants orchestrated the Plaintiff’s eviction without regards for his right to peaceable enjoyment and possession of the demised premises and the rule of law which enjoin them to recover possession from a tenant only be due process of law. DW1 stated under cross examination that, he was not pleased that the other tenants vacated the premises but the Plaintiff refused to do so and that the Plaintiff’s presence in the premises prevented him from renovating the entire premises and decided to teach him a lesson by welding the main gate and blocking it with their 20-ton truck in order to force him to vacate the premises and they succeeded in doing just that, “…consider the conduct of the Defendants sufficiently outrageous… to warrant the award of exemplary damages… they shall pay to the Plaintiff further N10,000,000 on the footing of exemplary/punitive damages”
GROUND 3
The Honourable Court below erred in law when the Honourable Court awarded the sum of … held that trespass in actionable per se without need to prove damages, found the Appellants liable, and thereafter awarded general damages of N5,000,000 against the Appellants.

GROUND 4
The Honourable Court below erred in law when the Honourable Court held:
“It seems to me therefore, that the Plaintiff has discharged the evidential burden of proving special damages claimed by him on a balance of probabilities” and in the course of the Judgment awarded the sum of N1,880,000 as special damages in favour of the Respondent in addition to the general damages awarded in favour of the Respondent”.
Ground 5
The Honourable Court below erred in law when the Honourable Court held:
“I consider the conduct of the Defendants sufficiently outrageous, cruel, and vindictive to warrant the award of exemplary damages” and thereafter stated “the Defendants shall” pay to the Plaintiff a further sum of on the footing of exemplary/punitive damages”
GROUND 6
The Honourable Court below erred in law when the Honourable Court held that the Respondent gave evidence of payment to the 1st Appellant amounting to N6,050,000.00 including vide Exhibits P2A – P21 and that same was sufficient proof of payment by the Respondent, which sum the Honourable Court set-off against the sum of debt owed by the Respondent leaving a balance of N66,666.66k.

GROUND 7
The Honourable Court below erred in law when the Honourable Court held the Defendants/counterclaimants also claimed N805,599.16 as service charge as of February, 2014, and N878,969.03 as service charge excluding generator but failed to demonstrate how they arrived at these figures.
GROUND 8
The Honourable Court erred in law when the Honourable Court held the 2nd Appellants liable for interference with the peaceable enjoyment and possession of Plot 63 Parakou Crescent Wuse Abuja by the Respondent and precipitated his unlawful eviction on 25/5/15 without recourse to due process of law and therefore, eminently entitled to the declaration sought, and also awarded damages against the 2nd Appellants in respect of the wrong found by the Honourable Court.
GROUND 9
The Judgment of the Honourable Court below is against the weight of any stated admissions/evidence adduced before the same Honourable Court and also the Record of the Honourable Court.

The Appellants’ Brief of Argument dated the 27th day of May, 2019, was filed on 13th June, 2019. It was deemed filed on the 11th March, 2020.

The Respondent’s Brief of Argument dated 11th March, 2020 was filed same day.
The appeal was heard on the 5th October, 2020 when the learned counsel to the Appellants and the Respondent adopted their briefs of argument. The learned counsel to the Appellants; Peter O. Abang, Esq. who settled the Appellants’ Brief of Argument distilled three issues for determination as follows:
ISSUE 1:
“Whether the learned Trial Judge rightly held the Appellants liable for interference with the Respondent’s peaceable enjoyment and possession of a single unit of fully serviced three Bedroom apartment of Plot 63, Parakou Crescent Wuse II, Abuja when in fact the Appellants have possession and peaceable enjoyment of six units of fully serviced three- bedroom apartment thereby occasioned a miscarriage of justice.”
(This issue is culled from ground 1 and 2 of the Appeal.)
ISSUE 2:
Whether the learned Trial Judge was right in holding the Appellants liable and awarded excessive damages for trespass as general damages together with the award of special damages as well as punitive or exemplary damages in the light of the fact and circumstances of the suit of

seven units of the three-bedroom flat and also enjoy equal right to use, occupation and possession of same when there was no foreseeable or reasonable consequence in the award of damages in favour of the Respondents’ thereby occasioned a miscarriage of justice.
(This issue is culled from grounds 3, 4 and 5 of the Appeal.)
ISSUE 3:
Whether the learned Trial Judge properly evaluated the evidence placed before him before the Counterclaim of the Appellants was dismissed in its entirety and thereby occasioned a miscarriage of justice.
(This issue is culled from grounds 6,7 and 9 of the Appeal)

The learned counsel to the Respondent also distilled three issues for the determination which are similar to that of the Appellants and they are as follows:
1. Was the learned Trial Judge right in holding the Appellants liable for interference with the Respondents peaceable enjoyment and possession of a single unit of fully serviced three-bedroom apartment of plot 63 Parakou Crescent Wuse II Abuja?
2. Whether the Trial Court was not right having found and declared the conduct of the Appellants as constituting forceful ejection of the

Respondent without recourse to due process of law which conduct is reprehensive, high handed and an affront to the rule of law to have awarded in addition exemplary and punitive damages against the Appellants?
3. Whether the learned trial Judge properly evaluated the evidence placed before him in dismissing the counterclaim of the appellants?

The appeal will be determined on the issues raised by the Appellants.
ISSUE ONE:
Was the learned Trial Judge right in holding the Appellants liable for interference with the Respondents peaceable enjoyment and possession of a single unit of fully serviced three-bedroom apartment of plot 63 Parakou Crescent Wuse II Abuja.”

The learned counsel to the Appellants contended that it is settled law that this Honourable Court is not entitled to interfere with the finding of the lower Court except in cases where it is clear that such findings are perverse and has occasioned a miscarriage of justice. He relied on the cases of ADEBAYO VS T.S.G (NIGERIA) LIMITED (2011) 4 NWLR (PART 1238) 493 AT 511 and ORJISI ANOR VS AMARA (2016) 14 NWLR (PART 1531) 21 AT 67 A-B.

That it is the prerogative of a trial Judge who sees, watches, and listens to a witness to harness and determine his demeanour and the appellate Court will interfere where the findings of the trial Court are perverse and not borne out from the evidence before the Court.

That it is the evidence of the Appellants who called a sole witness-the 2nd Appellant that No. 63 Parakou Crescent Wuse II, Abuja comprises of seven (7) units of three (3) bedrooms flat each occupied at a time by different tenants. That some tenants had vacated and handed over possession to the Appellants who as a result had custody of six out of the seven units of the said three-bedroom flats. That the Respondent continued to occupy his own flat and enjoyed peaceable possession of the property without any form of interference.

That sometime in May, 2015, whilst the Respondent was the sole occupier of the premises, there was a serious fire incidence as a result of the premium moto spirit that the Respondent kept at the premises. That the Respondent did nothing to abate the further damage of the property.

That the Appellants pleaded and led evidence in support of the fact that they were in possession of other six out of seven units of the three-bedroom flat, and it presupposes that they have the right of entry, that it was the intention of the Appellants to carry out repairs as a result of the fire incident and for other sundry structural repairs of the premises.

That these repairs made it necessary for the appellants to bring more materials in a commercial truck belonging to the 1st Appellant. That the commercial truck developed mechanical fault and broke down in front of the property. That these facts were uncontroverted under cross examination.

That it is settled law that unchallenged and uncontradicted evidence ought to be accepted by the Court as establishing the facts contained therein. He relied on the following cases:
1. OGUNYADE V OSHUNKEYE (2007) 15 NWLR (PART 1057) 218.
2. NZERIBE V DAVE ENG. CO. LTD (1994) 8 NWLR 124
3. EBEINWE V THE STATE (2011) 7 NWLR 402
4. OKIKE V L.P.D.C (2005) 15 NWLR (PT.949) 471
5. ABDULLAHI HARUNA ESQ & ORS V KOGI STATE HOUSE OF ASSEMBLY (2010) 7 NWLR (PT.1194) 604 AT PG 646-647 E-D

That the Appellants led evidence to state that they did not in any form or manner interfere with the quiet and peaceable enjoyment of possession and occupation of the Respondent’s premises, save for repairs of the other six units of three-bedroom flats.

That the Appellants also led evidence to show that they did not weld the gate of the property. That PW1 in his cross-examination stated that he did not see any person welding the gate. That no eyewitness was called to testify seeing any of the Appellants or their privies welding the gate.

That it is trite law that oral evidence must be direct. He relied on the case of M.S.C. EZEMBA V. S.O. IBENEME & ANOR (2004) 14 NWLR (PART 894) 617 AT 660 D-E.

That a Court cannot act upon mere speculations, conjectures, or suspicion. He relied on the case of ACB PLC V. WTS (NIG) LTD (2007) 1 NWLR (PT. 1016) 596 AT 609 RATIO 23 AND AMGBARE V. SYLVA (2009) 1 NWLR (PT. 1121) PAGE 1 AT 19 RATIO 16

That it was the evidence of PW1 that he was called upon by the Respondent to go to his rented apartment and take away the family of the Respondent because the Respondent’s wife called him to say that she saw some men were welding the gate of the premises.

That the learned trial Judge did not properly evaluate the evidence of PW1 before concluding that the Appellants interfered with the Respondent’s peaceful stay in the premises. That, the evidence of PW1 was hearsay and the position of the law is that hearsay evidence is inadmissible. He relied on the case of LADOJA V. AJIMOBI (2016) 10 NWLR (PART 1519) 87 AT PAGE 159 D-E.

That it can be inferred that the only person who saw the Appellants welding the gate was the Respondent’s wife and she was not called to testify in Court.

That the evidence of PW1 who was called by the Respondent is at variance with the Respondent’s statement of claim. That the position of the law is that evidence and pleading of a party must be consistent. That where a party leads evidence inconsistent with his other evidence or pleadings, the Court cannot pick and choose from the inconsistent evidence adduced by such a party. He relied on the following cases:
1. AZUBUIKE V DIAMOND BANK (2014) 3 NWLR (PART 1393)166 AT PAGE 127 H.
2. ALAHASSAN V ISHAKU (2016) 10 NWLR (PART 1520) 230 AT 260 C-D.
3. INTERNATIONAL BEER AND BEVERAGES INDUSTRIES LIMITED V MUTUNCI COMPANY (NIG) LIMITED (2012) 6 NWLR (PART 12970 487 at 525 A-B).

That despite the evidence of PW1 that the gate was welded before he got to the property and that he did not see any henchmen nor was anyone harassed and molested, yet it was the evidence of PW1 that he managed to whisk away the family of the Respondent before the gate was welded together by Appellants’ henchmen. That this was the basis upon which the lower Court made a perverse evaluation of evidence which occasioned a miscarriage of justice.

That the trial Court ought not to have accorded any credibility to the evidence of PW1 who has proven not to be a witness of truth. He relied on the case of NNAJIOFOR V. UKONU (1986) 4 NWLR (PART 36) 505 AT 521 G.

That failure to adduce evidence of the allegations by calling the only alleged eyewitness (Respondent’s wife) and the Respondent’s source of information pertaining the alleged actions of the Appellants is wrongful, withholding of evidence of the allegations made by the Respondent, that the trial Court ought to have held that such failure on the part of the Respondent to produce the evidence amounts to a failure to discharge the burden of proof.

That the position of the law by virtue of Section 167(d) of the Evidence Act 2011 is that, the wrongful withholding of evidence raises the presumption that the evidence withheld would have been against the person who failed to adduce them. He relied on the case of JOHN HOLT LIMITED V. OWONIBOYS TECHNICAL SERVICES LIMITED (1995) 4 NWLR (PART 391) 534 AT 547 H.

That it is also the position of the law that a plaintiff who asserts the existence of a given set of fact must prove that those fact exist. It is not for the defendant to prove otherwise. That the trial Court was speculative which has occasioned a miscarriage of justice.

He urged this Court to hold that the Appellants did not interfere with the Respondent’s enjoyment and possession of a single unit of fully serviced three-bedroom apartment at plot 63, Parakou Crescent Wuse II Abuja.

In response to this issue, learned counsel to the Respondent submitted that, the resolution of this issue will involve the invocation of the legal principles adopted in resolving civil cases in our Courts which is on balance of probabilities and preponderance of evidence. He cited the case of ODOFIN V. MOGAJI (1978) 3 S C-91.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That the Respondent led credible evidence, which was accepted by the Court, whose primary duty is to evaluate and ascribe probative value to admissible evidence, oral or documentary, particularly having seen and heard the witness first-hand. He cited the case of IGBEKE V. EMORDI (2010) 11 NWLR (PART 1204) 1.

That the Respondent led credible evidence through PW1, PW2 and PW4. That PW1 was asked by the Respondent who was away from Abuja to go and rescue his family as per a call from his wife. That the Appellants and their agents were welding together the entrance gate to the premises. That, he saw a welded gate and a truck parked directly after the welded gate, that he gained access into the premises through the pedestrian gate and that he removed the Respondent’s family with a few of their belongings.

That PW2 is a photographer who took pictures of the premises on the 28th day of May, 2015. That the photographs were admitted as exhibit P1 A-D and he gave uncontradicted oral evidence that he saw the whole place was sealed.

That the Plaintiff, PW5 testified that he was out of Abuja when he received a distress call from his wife that the Appellants

and their agents were welding the entrance gate to the premises where they lived. That, he cut short his trip and came back to Abuja, went to the premises, and saw for himself that the entrance gate had been welded together and a 20-ton truck belonging to the Appellants with registration number: XL 429 ABC parked directly after the welded gate, thereby preventing any person from gaining access into the premises.

That at the time of the incident, he and his family were the only persons occupying the premises, and his vehicle a land rover LR3 made was parked in the premises and locked in by the Appellants.

That it is trite law that a party need not call a plethora of witnesses or any particular witness if he can establish his claim through one credible witness or by documentary evidence. He cited the case of NEWSPAPER CORPORATION V ONI (1995) 1 SCNJ 218 AT 239.

That the fact that the plaintiff’s wife was not called is not fatal to the case of the plaintiff when the oral and documentary evidence called by the Respondent is evaluated as done by the trial Court.

That Exhibit P1 A-D fortifies the evidence of PW1, PW2 & PW5 and the law is that when there is oral evidence as well as documentary evidence which he said is hanger from which to assess the oral testimony. He cited the cases of FASHANU V ADEKOYA (1974) 6 SC 83 AND KIMDEY V. MILITARY GOVERNOR GONGOLA STATE (1988) 2 NWLR (PT. 77) 445.

That the law is settled that a document when duly pleaded, tendered and admitted in evidence becomes the best evidence of its content and therefore speaks for itself. He cited the case of EMEJE V POSITIVE (2016) 1 NWLR (PT. 1174) 49. That exhibits P1 A-D, apart from the oral evidence of PW1, PW2 & PW5 clearly shows that the entrance gate of the premises was welded together and a truck belonging to the appellants was parked immediately after the welded gate by the appellants.

That it was under cross examination that the DW1 admitted that the 20- ton truck with registration No: XL. 429 ABC belonged to him as against evidence that they used a commercial truck to bring in materials to expand their scope of renovation. That Exhibits P1 A-D showed an empty truck and did not show any material(s) in the compound except for the Respondents vehicle parked in the premises.

That DW1 had in examination in chief stated that the Respondent denied him the opportunity of renovating the building and putting up same for rent and under cross examination stated that the appellants’ presence in the premises was an hindrance to his bringing in materials for the renovation.

That there is a contradiction in his evidence, where he stated that after the fire incident, the 1st defendant needed to urgently bring in more materials, expand the scope of the renovation, renovate the burnt security house and he brought some of the materials for the renovation of the premises in a commercial truck. That this contradiction and material inconsistency does not lend credence to the evidence of DW1, thus, making him an untruthful witness. He cited the case of AJOSE V FRN (2011) 6 NWLR (PT. 1244) 465 AT 468.

That the holding of the Court is that there is sufficient available circumstantial evidence to fix the appellants with liability is most proper and accords with Sections 5, 6 (1) and 11 (1) of the Evidence Act.

That the Appellants reluctantly opened the gate and removed his truck on 3/9/15 following the intervention of the office of the Inspector General of

Police which accords with Sections 34(1) and 167 of the Evidence Act. He cited cases of NITEL V. IKPI (2007) 8 NWLR (PT. 1035) AND GAJI V. PAYE (2003) 8 NWLR (PT. 825) 583

That it is trite law that it is the entire statement of claim of the Plaintiff that constitutes the pleadings of the Plaintiff including the reliefs being sought. He cited the case of M.M.A. INA V. N.M.A (2012) 18 NWLR (PT. 1333) 506 AT 538. That the whole pleadings of the Plaintiff taken and read together, shows that the complaint of the Plaintiff is the welding together of the entrance gate of the property and parking a 20-ton truck directly behind the welded gate in order that no person including the Respondent gain entrance to the premises thereby ejecting the Respondent from the premises. That it is wrong to assert that the evidence of PW1 is at variance with the pleading to vitiate the judgment.

That it is settled law that the Appellate Court will not interfere with the finding of the lower Court and substitute same with its own, particularly when the Trial Court properly evaluated the evidence placed before it. He relied on the case of ONIAH V. ONYIA (1989) 1 NWLR (PT. 99) 514.

ISSUE TWO:
Whether the Trial Court was not right having found and declared the conduct of the Appellants as constituting forceful ejection of the Respondent without recourse to due process of law which conduct is reprehensive, high handed and an affront to the rule of law to have awarded in addition exemplary and punitive damages against the Appellants?
This issue deals with whether the Learned Trial Judge was right in holding the Appellants liable and in awarding excessive damages for trespass as general damages together with the award of special damages as well as punitive or exemplary damages in the light of the fact and circumstances of the suit when the Appellants were in possession of six out of seven units of the three bedroom flat and also enjoy equal right to use, occupation and possession of same when there was no foreseeable or reasonable consequence in the award of damages in favour of the Respondent, thereby occasioned a miscarriage of justice. Learned Counsel to the Appellants relied on the case of CHIA V. FIRST BANK OF NIGERIA & ANOR (2018) LPELR — 44140 (CA) to state the circumstances under which an Appellate

Court can interfere with the award of general damages by a trial Court. He also cited the following cases:
1. U.B.N PLC V. AJABULE (2011) LPELR – 8239 (SC)
2. CAMEROON AIRLINES V. OTUTUIZU (2011) LPELR – 827 (SC)
3. USONG V. HANSEATIC INTERNATIONAL LTD (2009) LPELR – 3434 (SC).

That damages are not awarded based on speculation. He relied on the case of NICON HOTELS LIMITED V. NENE DENTAL CLINICS LIMITED (2007) 13 NWLR (PART 1031) 237 AT 270 E to state that the measure of damages is founded upon the principle of restitution.

That the lower Court did not consider the evidence of the Appellants upon a proper evaluation before the lower Court found for the Respondent and awarded several damages in favour of the Respondent.

That the Respondent alleged in paragraph 5 of his statement of claim that a Land Rover LR3 model belonging to him was parked in the premises and when the gate was welded, which prevented him from having access to the car and using same. But that PW1 under cross-examination testified that he only saw a Japanese car whose model he did not state and not Land Rover LR3 or any other car. However, it was the pleading

of the Respondent that his wife’s Hyundai car was also parked in. That the Plaintiff did not lead or tender any evidence in proof that the said car belonged to him by producing the evidence of ownership and its particulars and that it was roadworthy.

Learned Counsel submitted that the lower Court ought not to have acted on the basis of speculation in the award of damages be it general, special, or punitive damages. That the Courts of law are Courts of facts and law and must avoid any form of speculation. He relied on the following cases:
1. AGIP NIGERIA LIMITED V. AGIP PETROL INTERNATIONAL & ORS (2010)
44 NSCQR 457 AT 513 AND
2. KAYDEE VENTURES LTD. V. MINISTER OF FCT (2010) NSCQR 830.

That in order for a Court to award special damages, facts leading thereto must be specifically pleaded and strictly proved. That a person who claims ownership of a thing must prove it by providing evidence of ownership to be so entitled. He relied on the case of ENEH V. OZOR & ANOR (2016) 16 NWLR (PT. 1538) 219 AT 235 F-G.

That the awards of general, special, and exemplary damages granted to the Respondent for the perceived forceful eviction from the premises is excessive in the circumstances and amounts to double compensation. That a party who has been fully compensated under one head of damage for an injury cannot be awarded damages in respect of the same injury under another head. That the awards of general damages for trespass, punitive damages for deploying unorthodox means to evict the Plaintiff from the premises, as well as special damages, all as a result of the interference and subsequent unlawful eviction of the Respondent from the premises as held by the lower Court, amounts to double compensation for the same injury and had occasioned a miscarriage of justice. He cited the case of GENERAL OIL LIMITED V. AGU (2005) ALL FWLR (PART 247) 1407 AT 1422-1423 H-A.

In response, Learned Counsel to the Respondent submitted that the Respondent claimed special and general damages including exemplary and punitive damages for the act of forceful eviction by the Appellants. That it is trite law that special damages will be awarded if strictly proved. He relied on the following cases:
1. ELIOCHIN (NIG) LTD V. MBADIWE (1986) 1 NWLR (PT. 14) 47
2. ODIBA V. AZEGE (1998) 7 SC (PT.1)
3. N.B.C. PLC V. UBANI (2013) 10-12 SC 96

That it is settled law that special damages must be claimed specifically and strictly proved by credible evidence of the particulars of loss. He cited the case of IMANA V. ROBINSON (1979) 3-4 SC 1 AT 23 AND X. S. (NIG) LTD. V. TAISEI (W. A.) LTD (2006) 15 NWLR (PT. 1003) 552.

That the Respondent pleaded and gave particulars of special damages and adduced credible evidence by way of Exhibits P4A-P4N. That, the Applicants did not object to the admissibility of the exhibits. That, the said exhibits remain uncontradicted evidence which the Court was bound to act upon. He cited the following cases:
1. NIG. TELECOMMUNICATIONS LTD. VS. OKEKE (2017) 1-2 SC (PT. 1) 39
2. ODIBA VS. AZEGE (SUPRA)
3. OMOREGBE V. LAWANI (1980) 3-4 SC 108
4. IMANA V. ROBINSON (SUPRA)
5. C.E.C. V. IKOT (1999) 12 SC 133

Learned Counsel submitted that PW1 in his examination in chief categorically stated that, he noticed that the Respondent’s Land Rover jeep was parked inside that compound. That the Respondent never pleaded that his wife had a Hyundai car.

That the Plaintiff/Respondent averred in paragraph 5 of his statement of claim that he parked his vehicle, a land rover, LR3 model with registration number Abuja GWA 573 AA in the premises and it was also welded inside the premises.

That the Appellants merely denied the said averments without putting the ownership and roadworthiness of the vehicle in their pleading. That it is settled law that, parties, as well as the Court are bound by the pleadings filed and exchanged by the parties. He cited the following cases:
1. GEORGE VS. DOMINION FLOUR MILLS LTD. (1963) NLR 74
2. SALAMI VS. OKE (1987) 1 NWLR (PT. 63)
3. OLALE VS. EKWELENDU (1989) 1 NWLR (PT.115) 326

On the argument of the award of double compensation, Learned Counsel relied on the case of ODIBA V. AZEGE (SUPRA) to state that the law is firmly established that where in a trespass action, general damages are claimed and established, it is the duty of the Trial Court to proceed to access quantity and award the appropriate amount, it considers reasonable having regard to all circumstances of the case. And where additional special damages are pleaded, claimed, and strictly proved, they will also be awarded to the Plaintiff by the Court.

That it is settled law that trespass is actionable per se, without proof of any injury or damages and the Courts have held that a Plaintiff who has by evidence established that a defendant is a trespasser, is entitled without more to general damages for trespass. He relied on the cases of NBC PLC v. Ubani (Supra) and A. Okurinmeta v. Agitan (2002) 6WLR (Pt. 110) 1377.

That the trial Court found the actions of the Appellants against the Respondent to be reprehensible, high-handed and an affront to the rule of law and in addition awarded exemplary damages against the Appellants. That the Appellate Court does not upset an award merely because it might itself have awarded a different figure; the Appellants must show that the Trial Judge proceeded on in some wrong principle. He cited the case of ODIBA V. AZEGE (SUPRA).

On issue 3 as to whether the Learned Trial Judge properly evaluated the evidence placed before him before the counterclaim of the Appellants was dismissed in its entirety and thereby occasioned a miscarriage of justice, learned Counsel to the Appellants submitted that a counterclaim is a separate action. He relied on the following cases:

OGBONNA V. THE AG OF IMO STATE & ORS (1992) LPELR – 2287 (SC) OR (1992) 1 NWLR (PT. 220) 647
2. DIGITAL SECURITY TECHNOLOGY LTD. & ANOR V. ANDI (2017) LPELR – 43446 (CA).

That the Appellants at the trial Court counterclaimed against the Respondent as being indebted to the 1st Appellants in excess of the sum N7,801,235.29k (Seven Million, Eight Hundred and One Thousand, Two Hundred and Thirty- Five naira; Twenty-Nine kobo) only as claim for unpaid rent and service charge and led evidence in proof of same at the proceedings of 11th June, 2018. That the Respondent is still indebted to the Appellants from September, 2013 to May, 2015 when the Respondent finally delivered up his occupation of the apartment. That the lower Court did not properly evaluate the evidence of the Appellants in their counterclaim, even after showing with credible evidence that the Respondent was indebted to the Appellant. That the Respondents tendered in evidence exhibits P2A — P21 but lower Court failed to reckon with the fact that the exhibits were short of credibility.

That there was no evidence of receipt of payment issued by the Appellants as proof of payment of the indebtedness by Respondent. That the Respondent caused a subpoena to be issued on the 1st Appellants’ Banker, Ecobank but did not conclude with the said witness because of the perceived indication that the evidence of the subpoenaed witness was not going to be favourable to him. That Respondent sought for the evidence of the witness to be expunged from the record and was granted.

That, it is the evidence of the subpoenaed witness from Ecobank that would have been compelling in determining whether the said sum which Respondent alleged to have been paid into Ecobank account was credited. That Exhibits P2A- P21 speak for themselves and that a person cannot by oral evidence vary the contents of any documentary evidence as provided for by Section 128 Evidence Act, 2011.

That, assuming but not conceding, the Respondent paid to the Appellants the sum of N6,050,000.00 a deduction of same from N7,801,235.29k would amount to the sum of N1,751,235,29. That the Appellants ought to have been entitled to the payment of the said amount as judgment upon admitted fact.

That the trial Court entered judgment upon a wrong and perverse evaluation of evidence, which has occasioned a miscarriage of justice. That Exhibit P2F admitted in evidence is at variance with the pleadings and the trial Court cannot speculate over the purport of that document.

That exhibit P2F dated 9/9/14 was issued for the alleged payment of N600,000.00 (Six Hundred Thousand Naira) to the Appellants. That the said exhibit goes to no issue as it does not state that it was payment from the Respondent to the Appellants. He relied on the case of AGIP NIGERIA LIMITED V. AGIP PETROL INTERNATIONAL & ORS (SUPRA).

He urged this Court to set aside the judgment of the lower Court and resolve all the issues in favour of the Appellants with substantial costs. In response to this issue, learned counsel to the Respondent submitted that it is settled law that the defendant must prove his counter claim as much as burden of proof is upon him and where he fails to prove his counterclaim, his action must fail and be dismissed. He cited the case of USMAN V. GARKE (2003) 7 SC 33.

That the appellants as counter claimants did not file a reply to the defence of the respondents to their counterclaim to deny

payments, neither did they deny that said account into which the money was averred to have been paid into does not belong to the first Appellant to even require proof of them by the Respondent. That it is trite law that where new issues are raised in statement of defence, the plaintiff is required to rebut same by way of a reply, as a fact not denied is deemed admitted. He cited the case of OGOLO V. FABURA (2003) 5 SC 141 AT 163-164.

That the Respondents proved by Exhibit P2A-P21 that he indeed paid the sum of N6,050,000.00 to the 1st Appellants. That the Appellants cannot turn around by way of appeal to state or contend that Exhibits P2A-P21 was short of credibility and does not admit to payment of such indebtedness. That the Appellants did not object to the admissibility of Exhibits P2A-P21, rather they cross examined PW4 on the exhibits.

That the law is settled that, where a document is tendered without objection at a trial, it can be relied upon by the trial Court. He cited the cases of EKPE V. FAGBEMI (1978) 3 SC. 209 and ORLU V. ONYEKA (2017) 4-5 SC (PT 1) 84. That failure to cross examine a witness upon a particular fact is a tacit acceptance

of the truth of the evidence of the witness. He cited the cases of GAJI V. PAYE (2003) 18 NWLR (PT. 825) 583 AND ADESULE V. MAYOWA (2011) 13 NWLR (PT 1263) 135.

That the respondent need not be issued receipt by the Appellants in proof of payment. That the proof of payment of money into an account may be proved by oral evidence of the person who actually made the payment personally to the bank by the production of the bank tellers or acknowledgments showing on the face of it that the bank had received the money. He relied on the case of F.B.N. V. MAINASARA (2004) 42 NRN 29. That the trial Court rightly held that Exhibits P2A-P21 constitute sufficient proof that the plaintiffs made payment to the defendants.

That the Appellants failed to demonstrate how they arrived at the sum of N805,599.16 as of 28th February, 2014 and the sum of N878,969.13K from March, 2014 to May, 2015 as service charge payable by the Respondent. That the claim for service charge as at 28th February, 2018 is bad pleadings as it does not state from what time to 28th of February, 2014 that constituted charge.

That a claim for service charge tendered is not a claim in general damages but in special damages and therefore must be specifically pleaded and strictly proved. That no particulars were given on how the sums were arrived at, the items or services rendered; the cost of each item or service. He relied on the following cases:
1. UMOETUK V. UBN (2002) 3 WRN 63
2. AG OYO V. FAIRLAKES HOTEL (NO.2) (1989) NWLR (PT. 121) 255.
3. OBASUYI & ANOR V. B.V.L (2000) 5 NWLR (PT. 658) 668.

That the 2nd Appellant who alleged that the respondent was owing him all those sums of money as rent and for services rendered admitted during cross examination that the provision of service charge was subject to the payment for the service charge by Appellants.

That the claim for N308,600.00 as expenses allegedly incurred in effecting repairs is equally caught up by lack of evidence. That the Respondent categorically denied that no such terminal repairs was carried out by the appellants thereby requiring strict proof of it.

That there was no invoices, receipts or job orders tendered in proof or to substantiate the claim of the said sum. He relied on the following cases:
1. UTB V. OZOEMENA (2007) 3 NWLR (PT. 1022) 444.
2. ZENITH BANK PLC V. EKEREUWEM (2012) 4 NWLR (PT. 1290) 2017.

On the claim of the N24,500,000.00 as anticipated profit/rent upon renovating and letting out the six dwelling units of the premises, if the plaintiff had not frustrated the renovation, that the trial Court rightly found that there was no evidence on how the plaintiff/respondent frustrated the purported renovation, neither was there any evidence of rent increment upon which the sum was claimed.

That a claim for loss of income arising from anticipated rentals are claims in special damages which must be specifically pleaded and strictly proved. He cited the case of UMOETUK V. UBN (SUPRA). That the respondent joined issues with the appellants on this claim, but they failed to strictly prove the claim for the N241,500,000.00k. He cited the case of ODUMOSU V. ACB LTD (1978)11 SC 53.

He concluded by relying on the case of ONIAH V. ONYIA (1989)1 NWLR (PT 99) 514 to submit that the evidence of the respondent at the lower Court is more probable in the circumstances of this case, it is also more probable in the circumstances of this case, it is also more relevant, more credible, and more conclusive than that of the Appellants. He urged this Court to dismiss this appeal.

RESOLUTION OF ISSUES:
Now under issue 1, the contention of the Appellants is that the lower Court was wrong in holding that the Appellants interfered with the peaceable enjoyment of Respondent the demised premises in that, the wife of the Respondent who claimed that Appellants and their workers were welding the gate of the house and that a truck parked directly behind the gate making it impossible for easy access to the compound was not called to give evidence in line with the pleaded case of the Respondent.

The Learned Counsel to the Respondent relied on the pieces of evidence given by five witnesses called by the Respondent and Exhibits P1-A-D tendered by PW2 showing that the gate was actually welded together to contend that the learned trial Judge is supported by evidence by the Respondent.

the witnesses who testified in proof or context of the matter, see Adeniji v. Adeniji (1972) 4 SC 10; Woluchem v. Gudi (1981) 5 SC 291 and Congress for Progressive Change & Ors v. INEC (2011) LPELR 8257 (SC) (2011) 18 NWLR (Pt. 1279) 493.
It is trite as well that for the evidence proved in a case to be worthy of being evaluated, parties must have joined issues on the facts sought to be established by such evidence in their pleadings. Evidence in respect of un-pleaded facts, facts on which parties had not joined issues on in their pleadings must, having gone to no issue, be ignored. See Morohunfola v. Kwara Tech (1990) 4 NWLR (Pt. 145) 506 and Ademeso v. Okoro (2005) 14 NWLR (Pt. 945) 308. The law is settled, it must be further conceded, that where the trial Court that had the advantage of seeing, hearing, and assessing the witnesses failed and or refused to draw the benefit of the advantage and wrongly evaluated and/or entirely declined to evaluate the evidence, the appellate Court must intervene to correctly evaluate the evidence and arrive at the just decision; the evidence as properly evaluated warrants.

I have read the record of appeal and the pieces of evidence given by Respondent’s witnesses. It is true the wife of the Respondent who according to the pleading informed her husband of the fact that Appellants brought people to weld up the entrance gate to the premises comprising the flat the Respondent and his family were occupying was not called, but as rightly submitted by the learned Counsel to the Respondent and as found by the Learned trial Judge, there was no serious cross examination of

PW2 who testified that he was the photographer that took the picture of the welded gate. Exhibits P1A-P1D was tendered without any objection from the Appellants’ Learned Counsel.

The manner of cross examination and answers show that PW2 went to the premises and took the photographs of the welded gate and he stated that the whole place was sealed.
It is also important to note that, though, the Appellants confirmed that it brought the truck, that broke down while offloading building materials at the demised premises, the Appellants sole witness never told the Court the exact time or date the truck was removed from the premises. It was the learned trial Judge who saw and listened to the witnesses that could accurately assess the pieces of evidence given by the witnesses watching their demeanour.

The Learned trial Judge carried out extensive assessment of oral and documentary evidence of parties from pages 452-457 of the record. There is no credible evidence on record to deny the fact that the gate of the premises was welded, and that Appellants’ truck blocked the entrance into the premises. Failure to call the wife of the Respondent is not fatal to

Respondent’s case as his other pieces of evidence given by PW2 and PW5 show that the gate to the premises was welded and Appellants truck blocked the gate.
Issue 1 is resolved against the Appellants.

On issue 2, as to whether the lower Court was right in awarding excessive damages for trespass as well as general damages together with award of special damages as well as punitive damages against the Appellants was justified and did not occasion a miscarriage of justice?

The Respondent’s learned Counsel opined that the lower Court was right in awarding general damages for trespass, exemplary damages, and special damages. Damages by whatever name it is described is designed to compensate the Plaintiff or person who is injured by the Defendant to assuage his loss economically, the injury or unnecessary deprivation or pains the Defendant action had caused the plaintiff. They are all compensatory awards which is always at the discretion of the trial Court. The Court must however act at all times judicially and judiciously take into conscious account the circumstances of each case. See:

C.B.N & ORS V. AITE OKOJIE (2015) LPELR- 25740 SC 1 AT 42 D-G per RHODES-VIVOUR JSC who said:
“This is what the Court of Appeal has to say on exemplary damages.
“…the 3rd to 7th Appellants’ main argument is that exemplary damages was not expressly pleaded. This is preposterous argument. The age of technical pleading has been put behind. A party cannot be denied his entitlement merely because his pleadings were not couched in technical terms. It is now settled principle of law that to be entitled, a claim for exemplary damages need not be pleaded expressly. It is enough if the facts in the pleading support the award of exemplary damages to avoid being taken by surprise. See CES. v. Ikot 1999 12 SC (pt. ii) p. 133. agree with both Courts below. Exemplary damages are awarded with the object of punishing the Defendant for his conduct in inflicting injury on the Plaintiff. They can be made in addition to normal compensatory damages and should be made only;
(a) in a case of oppressive, arbitrary or unconstitutional acts by Government servants.
(b) where the Defendant’s conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the Plaintiff.

expected profit and the freight on the goods”. Per Onu JSC
Also, in Wahabi v Omonuwa, (1976) LPFLR-3469) at page 17, paras. C-D, the Supreme Court held that:-
“General damages are those which the law implies in every breach of contract (see also Marzetti v Williams (1830) 1 BFA d.415), and where no real damage has been suffered may be a trifling amount”. Per Idigbe, JSC
See in Cameroon Airlines v Otutuizu, (2011) LPELR-827 SC, the Apex Court held at page 31.
I am not stating anything new in saying that general damages are different from punitive damages, as while general damages or compensatory damages provide the claimant with the monetary amount necessary to replace what was lost, punitive damage punishes a defending party for his or her conduct as a deterrent to the future commission of such acts. What is required of the claimant or plaintiff to qualify for the award of compensatory damages is to prove that he or she has suffered a legally recognisable harm that is compensable by a known amount of money that would be objectively determined by a judge and this was the stand the learned trial judge took.

defendant aggravating the injury to the plaintiff would be taken into consideration in the assessment of compensatory damages”. Per Iguh JSC ”
The onus is on the Appellants to show that the damages awarded against him is excessive and how. See NCC VS MOTOPHONE LTD & ANOR (2019) 14 NWLR (PART 1691) 1 at 33H to 34A per ABBA AJI, JSC.
I have gone through the pieces of evidence led by the 1st Respondent and I am of the firm view that the various heads of damages awarded in Respondent’s favour are exceedingly higher than what his evidence disclosed he suffered. It must be noted that the Respondent moved out the premises almost immediately upon the welding of the gate and blockade of entrance gate to the demised premises. Even though, it is true that the actions of the Appellants tantamount to unwarranted interference with the possession of the Respondent, there is no evidence by the Respondent to the effect that he found it difficult to get alternative accommodation for himself and members of his family. He sued as the sole Plaintiff and he testified he was not around when the incident occurred. I am of the firm view that the award of N5,000,000 (Five Million Naira) damages for trespass is on the high side and excessive

It is hereby reduced to the sum of N2,000,000 (Two Million Naira) as damages for trespass. I am also of the solemn opinion that the sum of N10,000,000 (Ten Million Naira) as exemplary punitive damages for unorthodox approach of evicting Respondent by Appellants is also excessive. The award of N10,000,000 (Ten Million Naira) as exemplary and punitive damages is hereby reduced to the sum of N2.5 Million (Two Million Five Hundred Thousand Naira Only).

I uphold the award of N1,880,000.00 (One Million Eight Hundred and Eighty Thousand Naira special damages made by lower Court in favour of the Respondent.

On Issue three, as to whether the learned trial Judge properly evaluated the evidence placed before him before the counterclaim of the Appellants was dismissed. I am of the opinion that having read the Appellants’ pleadings, the witness statement on oath vis-a-vis, the cross examination of DW1 by Learned Counsel to the Respondent, coupled with the oral and documentary evidence in support thereof, I cannot fault the findings of the learned trial Judge on the Counter Claim and the monetary award made in favour of the Appellants.
Issue 3 is resolved against the Appellants.

The Appellants’ appeal succeeds in part. For avoidance of doubt, the award of N5,000,000 (Five Million) made in favour of Respondent for trespass is hereby set aside. In its place, I award the sum of N2,000,000 (Two Million Naira) in favour of Respondent as damages for trespass.

I also set aside the award of N10,000,000 (Ten Million Naira) awarded in favour of Respondent as exemplary/Punitive damages against the Appellants for deploying unorthodox means to evict the Respondent from the demised premises. In its place, I hereby award as exemplary/punitive damages the sum of N2,500,00 (Two Million Five Hundred Naira) in favour of the Respondent.

I uphold the award of N1,880.000 (One Million Eight Hundred and Eighty Thousand Naira) awarded as special damages in favour of the Respondent. The lower Court’s Judgment on the Counterclaim stands. There will be no order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the opportunity of reading before now the judgment delivered by my learned brother, PETER OLABISI IGE, JCA and I am in complete

agreement with the reasoning and conclusion arrived at in the lead judgment.
I have nothing more to add. I abide by all the orders made in the lead judgment.

MOHAMMED MUSTAPHA, J.C.A.: I have had the opportunity of reading in advance, the judgment of my learned brother PETER OLABISI IGE JCA, just delivered.
I am in complete agreement with his Lordship.

Appearances:

PETER O. ABANG, ESQ. For Appellant(s)

CHIDOZIE O. NWAKOR, ESQ. For Respondent(s)