AYENI v. C.C.E.C.C NIG
(2022)LCN/16325(CA)
In the Court of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, January 28, 2022
CA/K/232/2019
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
PASTOR LOLA AYENI APPELANT(S)
And
C.C.E.C.C NIG. RESPONDENT(S)
RATIO
THE BURDEN OF PROOF IN CIVIL MATTERS
The burden of proof is a matter of law as provided for in Section 134 of the Evidence Act, 2011. See Samuel Ayo Omoju v. The Federal Republic of Nigeria (2008) 2 SCNJ 197. The burden of proof shall be discharged on the preponderance of evidence or balance of probabilities in all civil proceedings. See Cement Co. of Northern Nig. Plc v. Giwa (supra) and Mohammed v. Wammako (supra) and Helios Tower Ltd v. Bello (2017) 3 NWLR (Pt. 1551) 93. The burden of proof merely requires the party alleging or asserting a fact to prove the fact. Such a party can do so by calling witness or witnesses to prove his allegation or assertion. See Section 131(1) of the Evidence Act 2011 and the case of Miss Chinye M. Ezeanah v. Mahmoud I. A. Atta (2004) 2 SCM 137. The burden of proof in a case cannot be determined in vacuo but in relation to the issues raised in the pleadings. Where a fact is pleaded and no evidence is adduced to prove the fact pleaded no onus is cast on the other side to disprove the fact not proved. Mrs Ethel Onyemaechi David Orji v. Dorji Textiles Mills (Nig.) Ltd & 2 Ors (2009) 12 SC (Pt. 111) 73. PER TALBA, J.C.A.
FACTORS TO BE ESTABLISHED BY A PLAINTIFF TO SUCCEED IN AN ACTION IN PRIVATE NUSIANCE
For a Plaintiff to succeed in an action in private nuisance, he must establish the following facts:
1. That the Plaintiff owns the land or has a right to possess it.
2. That the Defendant actually acted in a way that interferes with the Plaintiffs enjoyment and use of his or her property and
3. That the Defendants interference was substantial and unreasonable. The law is settled that for a person to sue in nuisance he must have an interest in the land either as an owner, occupier or lessee. See Shell Petroleum Dev. Coy v. Farah (supra) and Oluwaniyi v. Adewumi(supra). PER TALBA, J.C.A.
WHETHER OR NOT SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED
It is also settled law that special damages need to be particularized. In this instant case, the Appellant has to state how much he paid to the solicitor, the Surveyor, the Estate Valuer and how much he paid as filing fees. Failure to so state the specific amounts paid to the professionals will mean that the claim has not been proved. In others words, special damages must be specifically pleaded and strictly proved. See Oladiti v. Sungas Co., Ltd (1994) 1 NWLR (Pt. 321) 433; Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623; Eliochin Nig Ltd v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47.
The conservative sum of N3 Million claimed by the Appellant is a mere speculation. The learned trial judge captioned it as another evidence of gold digging by the Plaintiff that cannot be taken seriously. In the case of Oceanic Bank International Ltd v. Chitex Ind. Ltd (2000) FWLR (Pt. 4) 696, Fabiyi JCA (as he then was) stated thus;
“Gold diggers” should keep off from Courts of law as well as that of equity. And the Courts should always be wary of gold diggers and not to allow the institution to be used unwittingly as instrument for attaining their nefarious and Mudane desires.” PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of High Court of Justice Kaduna State delivered on the 29th day of March, 2018 in suit no: KDH/KAD/776/2015. It is at pages 93 – 103 of volume 2 of the records, which was deemed on the 12th of October, 2020.
The Appellant instituted an action against the Respondent at the lower Court wherein he claims the following reliefs:
A (i) AN ORDER of Court that the Defendant should re-channel and re-direct the water channel completely away from the Plaintiffs’ farmland and
(ii) Ten Million Naira (N10,000,000:00) compensation for the damage already done to the farm land.
ALTERNATIVELY
B (iii) AN ORDER that the Defendant pays to the Plaintiff Twenty Million Naira (N20,000,000.00) compensation for the part or portion of the land destroyed and under threat of being washed or completely damaged by the erosion and flooding resulting from the Defendants channelization. This portion measures 27, 774,212 m2 (2.774ha) which is about one third of the Plaintiffs entire farmland as shown on the survey dated 11/6/2015.
C. AN ORDER of Court compelling the Defendant to open or create an access road or create an access road or fly-over for the Plaintiff through which the Plaintiff (and other users) can access his farm with land clearing and farming trucks, bulldozers and equipment.
D. The cost of this suit, which includes professional fees to his counsel, the surveyor and to the Estate Valuer, cost of filing the suit and incidental expenses which is conservatively put at Three Million Naria (N3,000,000.00)
E. General damages in the sum of Two Million Naira (N2,000,000.00) for the inconvenience and hardships suffered by the Plaintiff resulting from the Defendants channelization activities on his farmland.
The Appellant testified as PW1 and he called one other witness as PW2 who is an Estate Valuer. The Respondent did not defend the suit at the lower Court. No process was filed by the Respondent and no evidence was led. From the pleadings and the witness depositions the case of the Appellant is that himself and his wife are owners of a large parcel of farmland measuring 7.943247 hectares, situate at off km 31 Kaduna –Abuja Express road, Sabon Gari Kasarami in Chukun Local Government Area of Kaduna State. The Appellant and his wife purchased the farmland from Sabon Gari Karasami community represented by the Dakachi i.e village head, by name Sarki Habila Zarmai sometime in 2012. The farmland was purchased for commercial farming. The Respondent is the construction company that is responsible for the construction of fast train rail from Kaduna to Abuja, which runs beside or rather parallel to the Appellants farmland. After laying the rail track the Respondent constructed two huge water channels beside each other, under the track to serve as drainage for rainwater. The channels were constructed to release water directly into the Appellant’s farmland, which caused the destruction of the farmland by eroding and flooding the land. It has destroyed a portion of the farmland which measures 27,774.21 M2 (2.774ha) hectares. The Appellant commissioned a firm of Estate Valuers to value the damage being done to the farmland. The access road to the Appellants farmland on the other side of the rail line has been blocked by the Respondent in the process of constructing the rail line. After a protest, the Respondent opened a narrow tunnel as access to the farms. But the tunnel cannot be used by heavy vehicles like lorries, trucks, trailers, bulldozers and land clearing equipments. They cannot access the Appellants farmland. The Appellant was incapacitated in his legitimate farming business by the activities of the Respondent, which has caused the Appellant loss of anticipated profit.
The Appellant tendered in evidence the following Exhibits:
1. Exhibits 1 and 2, survey plans
2. Exhibit 3, a letter written by the Appellants solicitors addressed to the Managing Director of the Respondent.
3. Exhibit 4, a valuation report.
After close of evidence, the learned trial Judge in a considered judgment dismissed the Appellants case for lacking in merit. Upon being aggrieved by the decision of the trial Court, the Appellant appealed to this Court vide a notice of appeal filed on the 20th of June, 2018. The notice of appeal contain four (4) Grounds of Appeal. At the hearing of the appeal on the 2nd day of November, 2021 D. A. Isaac of counsel adopted the Appellants brief of argument filed on the 30th of October, 2020. And the reply brief filed on the 1st of February, 2021 but deemed on the 1st of March, 2021. He urged the Court to allow the appeal and to set aside the judgment of the lower Court. A. A. Lanlege of counsel adopted the Respondent’s brief of argument filed on the 16th of November, 2020. He urged the Court to dismiss the appeal and to affirm the judgment of the lower Court.
From the four (4) grounds of appeal, the Appellant distilled two issues for the determination of this appeal, thus:
(1) Whether the learned trial Judge properly evaluated the evidence placed before him by dismissing the action of the Appellant due to the failure of the Appellant to show documentary evidence of ownership of the farmland (Ground 1, 2 and 4).
(2) Whether the learned trial Judge was right in refusing the claim of the Appellant for professional fee of his counsel, his surveyors, Estate Valuer, cost of filing the suit and incidental expenses despite leading evidence on same (Ground 3).
On its part the Respondent equally raised two issues for the determination of this appeal, thus:
1. Whether the Plaintiff/Appellant proved his case on the statutory standard of proof, to warrant judgment being given in his favour.
2. Whether the Plaintiff/Appellant established any entitlement to being awarded professional fees and cost of the action.
The issues formulated by both counsel are the same except the manner in which they are couched. However, I adopt the two issues distilled by the Appellant as issues for the determination of this appeal.
The Appellant’s counsel began his submission with reference to Section 131 (1) and 134 of the Evidence Act, 2011, on the burden of proof. He also cited the case of Ughelli S. L. G. C v. Edojakwa (2018) 38 WRN 172 AT 175; Cement Co. of Northern Nig. Plc v. Giwa (2018) 46 WRN 169 AT 172 – 173 and Mohammed v. Wammako (2018) 8 SRN 20 AT 23. The learned counsel also referred to Blacks’ law dictionary, 11th edition on the definition of private nuisance. And volume 28 of Halsbury’s of England 3rd edition. The learned counsel submitted that private nuisance may consist of an interference with physical condition of land itself as by vibration or blasting which damages a house the destruction of crops, flooding, raising the water table or the pollution of a stream or of any underground water supply. Private nuisance is an interference with the right of ownership or occupation of land or of some easement of profit or other right used or enjoyed in connection with land. See Adediran v. Interland Transport Ltd (1991) 9 NWLR (Pt. 214) 155 AT 162 and U.T.B (Nig.) v. Ozoemena (2007) 3 NWLR (Pt. 1022) 488 (SC); Eholor v. Idahosa (1992) 2 NWLR (Pt. 223) 323.
He submitted further that to maintain an action in private nuisance the Plaintiff needs to prove the following:
(a) That the Plaintiff owns the land or has a right to possess it.
(b) That the Defendant actually acted in a way that interferes with the Plaintiff’s enjoyment and use of his or her property and
(c) That the Defendant’s interference was substantial and unreasonable.
The law of private nuisance is designed to protect individual owner or occupier of the land from substantial interference with his enjoyment thereof. To succeed in private nuisance the Plaintiff must have an interest in the land. See Oluwaniyi v. Adewumi (2008) 13 NWLR (Pt. 1104) 387. Only a person who has an interest in land affected is entitled to bring an action i.e an owner, a lessee, or a person having right of occupancy. See Oluwaniyi v. Adewumi (supra).
The learned counsel submitted that there is ample evidence before the trial Court on how the Plaintiff became the owner of the farmland. The claim before the trial Court is that on private nuisance which must be proved on balance of probabilities. The Defendant did not lead evidence to contradict the evidence of the Plaintiff. The Plaintiff gave ample evidence as to the ownership of the farmland. See para 4 and 5 of PW1 deposition on oath at page 7 in volume 1 of the record. The learned counsel submitted further that the evidence of the Plaintiff is presumed to be true and correct unless the contrary is proved. In the case of Consolidated Resources Limited & Anor v. Abofar Ventures Nig. Ltd (2007) LPELR – 8331, the Court held thus:
“When a Plaintiff leads evidence and the Defendant does not, the onus of proof lying with the Plaintiff to establish facts pleaded would be established on a minimum proof.” See Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 353; Newbreed Organisation Ltd v. Erhomosele (2006 2 SC (Pt.1) 136.”
The learned counsel submitted further that the Appellant gave evidence of ownership, acts of long possession and enjoyment of the farmland and there is no evidence in rebuttal of the claim of ownership. See Adesina v. Sunmonu (2008) 17 WRN 129 AT 136. And the trial Court did not properly evaluate the evidence before him in dismissing the suit of the Appellant. See Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 47 AT 48. Learned counsel urged the Court to hold that the Appellant had established before the trial Court that he and his wife are owners of the farmland and are entitled to the reliefs claimed. He contended that this Court have the power to interfere with the findings of fact made by the trial Court as the trial Courts finding is perverse and are unsupported by evidence on record. See Ughelli S.L.G.C v. Edojakwa (supra) and Ukatta v. Ndinaeze (1997) 4 SC 117.
On its part, the Respondent submitted that the Appellant correctly summed up the law relating to private nuisance thus: the law of private nuisance is designed to protect individual owner or occupier of land from substantial interference with enjoyment thereof. See Registered Trustees of TLBCC v. Olubobokun (2017) 3 NWLR (Pt. 1545) 42. So, for a person to be entitled to sue, he must be either an owner or occupier. These are the persons regarded in law as “person interested in land” for the purpose of this tort. The choice of the Appellant as Plaintiff was made clear early in the proceedings before the trial Court. In his statement of claim, the Appellant averred in para 4 that “…himself and his wife (sic) are the joint owners of the large parcel of farmland – situated off km 31 Kaduna – Abuja Express road…“. See page 3 of the records. And in para 5 of his witness statement on oath he stated “myself and my wife purchased the land from the Sabongari Kasarami Community”, represented by the Dakachi, clearly the Appellant’s claim to being a person interested is founded on ownership as opposed to mere occupational. The law requires him to prove that assertion for him to be entitled to the reliefs sought. See Section 131 (1) of the Evidence Act 2011 and Registered Trustees of TLBCC v. Olubobokun (supra). But the Appellant offered no proof except the commissioning of an Estate Surveyor to survey the land. The Appellant informed the Surveyor that the land is a “leasehold interest”. And the Appellant tendered the Surveyor report. The Respondents submitted that Section 4(1) of the Kaduna State Contract Law, Cap 36 Laws of Kaduna State 1991 provides:
“No action may be brought upon any contract for the disposition of land or any interest in land unless the agreement upon which such action is brought or some memorandum or note thereof, is in writing.”
The Respondent submitted that if the Appellants interest is indeed a leasehold estate, then he cannot claim that he has no document to evidence it. The learned trial Judge found that: “the Plaintiff neither tendered any receipt nor sales agreement showing that any parcel of land was sold to him and his wife, no member of any community called Sabongeri Kasarami or any community at all testified that such community sold any farmland to the Plaintiff and his wife. There is no document showing the extent or size, location or measurement of any land said to have been sold to the Plaintiff and his wife”. See pages 100-101 of the records volume 2. The Respondent submitted that the Plaintiff/Appellant did not prove his claim to ownership with credible evidence to warrant the Court finding in his favour.
The Respondent submitted that the Appellant never gave evidence of ownership by way of acts of long possession and enjoyment, thus contrary to the submission of the Appellant’s counsel that the Appellant was in exclusive possession.
The duty of the trial Court is to determine the case presented by the Plaintiff on the basis of the evidence presented before the Court. See Nwopara Ogbogu & Ors. v. Egbuchiri Ugwuegbu & Ors. (2003) 6 SCM 72. Every Court has a duty to do its best to arrive at a proper and just decision. See D. A. Olubode v. Mrs Comfort Oyesina & 6 Ors (1977) 5 SC 47.
The burden of proof is a matter of law as provided for in Section 134 of the Evidence Act, 2011. See Samuel Ayo Omoju v. The Federal Republic of Nigeria (2008) 2 SCNJ 197. The burden of proof shall be discharged on the preponderance of evidence or balance of probabilities in all civil proceedings. See Cement Co. of Northern Nig. Plc v. Giwa (supra) and Mohammed v. Wammako (supra) and Helios Tower Ltd v. Bello (2017) 3 NWLR (Pt. 1551) 93. The burden of proof merely requires the party alleging or asserting a fact to prove the fact. Such a party can do so by calling witness or witnesses to prove his allegation or assertion. See Section 131(1) of the Evidence Act 2011 and the case of Miss Chinye M. Ezeanah v. Mahmoud I. A. Atta (2004) 2 SCM 137. The burden of proof in a case cannot be determined in vacuo but in relation to the issues raised in the pleadings. Where a fact is pleaded and no evidence is adduced to prove the fact pleaded no onus is cast on the other side to disprove the fact not proved. Mrs Ethel Onyemaechi David Orji v. Dorji Textiles Mills (Nig.) Ltd & 2 Ors (2009) 12 SC (Pt. 111) 73.
The case of the Appellant at the trial Court relates to damages and compensation in private nuisance as a result of injury suffered by the Appellant from the acts of the Respondent. The essence of the tort of nuisance is interference with the use and enjoyment of land. It may be by water, fire, smoke, smell fumes, gas, heat electricity or any other like thing which may cause such an inconvenience. In other words, in nuisance the law is concerned with invasions of interests in the enjoyment of land. But whether an action of nuisance lies for that invasion depends on the circumstance of each case especially a consideration of the conduct of the Defendant. That interest may be invaded either by intentional or negligent activity, and, in a few cases even by non-negligent activity. The law in judging what constitutes a nuisance takes into consideration the main object of the Defendants activity.
For a Plaintiff to succeed in an action in private nuisance, he must establish the following facts:
1. That the Plaintiff owns the land or has a right to possess it.
2. That the Defendant actually acted in a way that interferes with the Plaintiffs enjoyment and use of his or her property and
3. That the Defendants interference was substantial and unreasonable. The law is settled that for a person to sue in nuisance he must have an interest in the land either as an owner, occupier or lessee. See Shell Petroleum Dev. Coy v. Farah (supra) and Oluwaniyi v. Adewumi(supra).
In this instant case, the Appellants claim before the trial Court is that himself and his wife are owners of the farmland, having purchased same from Sabongari, Karasami Community represented by the Dakachi i.e Village head, Sarki Habila Zarmai, sometime in 2012. It is settled law that in civil case whoever assert must offer proof to succeed in his claim. Section 131 of the Evidence Act, 2011 provides:
“(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which her asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
Section 132 provides:
“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”
And Section 133(1) provides:
“In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings”. See Aiyetoro Comm. Trading Co. Ltd. v. N.A.C.B Ltd (2003) 12 NWLR (Pt. 834) 346; Alhaji Otaru & Sons Ltd v. Idris (1999) 6 NWLR (Pt. 606) 330; Chiroma v. Suwa (1986) 1 NWLR (Pt.19) 751.
At pages 100-101 of the records, volume 2, the learned trial Judge held thus:
“… the Plaintiff neither tendered any receipt nor sales agreement showing that any parcel of land was sold to him and his wife by the Sabongari – Kasarami community represented by the village head Habila Zarmai on behalf of his community as claimed by the Plaintiff. No member of any community called Sabongari – Kasarami or any Community at all, testified that such community sold any farmland to the Plaintiff and his wife. The alleged village Head called Sarki Habila Zarmai never testified that he sold any piece of land or farmland belonging to the community to the Plaintiff and his wife on behalf of his community. There is no document showing the extent or size, location or measurement of any land said to have been sold to the Plaintiff and his wife as claimed by the Plaintiff. Exhibit 1 to 4D are not evidence of sale of any land to the Plaintiff by anybody. They could only have been of any weight if the Plaintiff had adduced credible evidence that he in fact purchased any farmland as he claimed. To simply commission the PW2 to produce Exhibits 4, 4A – 4D without credible evidence that the Plaintiff actually purchased the land to which the Exhibits relate, is simply gold digging and an attempt to reap where the Plaintiff did no sow. There is therefore no credible evidence by the Plaintiff establishing his claim that he and his wife purchased any piece of land or farmland which he now claims that the Defendant has damaged. It is very incredible that anybody or any community could have sold a farmland or piece of land measuring 27,774.21m2 (2.774 hectares) x three making 83,322.62m2 (that is 8.322 hectares) without any document evidencing such transaction. I disbelieve the Plaintiff that he and his wife purchased any land from sabongari kasamari community which was represented by the “Dekedu” i.e village head, Sarki Habila Zarmai. The Plaintiff is therefore not entitled to any order or damages resulting from the acts of the Defendant on a farmland that has not been shown by credible evidence to belong to him.”
The above findings of the learned trial judge are unassailable. The trial Court cannot simply rely on the assertion made by the Appellant to believe that the Appellant and his wife purchased the farmland from the sabongari community represented by the Dakachi. i.e village head, Habila Zarmai without any credible evidence to support the assertion, either by documentary evidence or oral evidence from the village head or any member of the community. Curiously the Appellant failed to call even his wife as witness, whom he claimed that they purchased the farmland together. The Appellants counsel submitted that assuming but not conceding that the Appellant did not prove ownership of the farmland in question. It is trite that action in private nuisance like trespass can be brought by a person in occupation or possession of the land. There is ample evidence before the trial Court which shows that the Appellant is in exclusive possession of the land and can therefore maintain an action on same.
The Appellant’s counsel further submitted that the Appellant gave evidence of ownership, acts of long possession and enjoyment of the farmland and there is no evidence in rebuttal of the claim of ownership. Let me observe that it is settled law that submission of counsel no matter how beautiful it is, it cannot take the place of evidence. From the totality of the evidence before the trial Court, there is no evidence to show the Appellant’s acts of long possession and enjoyment of the farmland. The mere fact that the Appellant commissioned a surveyor to survey the land does not translate to acts of long possession or enjoyment of the land. As a matter of fact there is no any clear date as to when the Appellant and his wife purchased the farmland. At page 3 & 7 of the record, para’s 5 of the statement of claim, and para 5 of the witness deposition of the Appellant its stated that the Plaintiff and his wife purchased the land from the Sabongari-Kasarami Community represented by the Dakachi i.e village Head, Sarki Habila Zarmai sometime in 2012 for commercial farming purpose. There is no specific date or month in 2012. The Survey plan of the whole land Exhibit P1 is dated 17/07/2013, that means there was nothing to show the size or measurement of the farmland that was purchased in 2012. A survey of the affected area claimed by the Appellant is dated 11/06/2015, that is Exhibit P2. While the valuation report Exhibit P4 is dated 18/05/2015.
The trial Court must rely on facts and not assumptions.
There was no any iota of evidence before the trial Court to establish ownership of the farmland or to establish acts of long possession and enjoyment of the farmland. The case of the Appellant before the trial Court was dead on arrival but the Appellant believed that on appeal his counsel could, with a forensic magic, breathe life into the dead case. The learned trial judge did not mince words when he stated that “… To simply commission the PW2 to produce Exhibits 4, 4A-4D without credible evidence that the Plaintiff actually purchased the land to which the Exhibits relate, is simply gold digging and an attempt to reap where the Plaintiff did not sow.” No Court of law should lend its hands to a person or body that is trying to defeat the efforts of Government in providing social services to its citizens, therefore the Court must leave speculations behind and face the facts squarely. In the case of Thomas & Ors v. Olufosoye (1986) 1 NSCC 342 Oputa JSC (OBM) stated that, “Facts are obstinate things. They either exist or they do not. One cannot manufacture them.” The Appellants case is completely starved of evidence. Trial Courts cannot perform miracles in the handling of civil claims and least of all manufacture evidence for the purpose of assisting a Plaintiff to win his case. The Appellant claimed that there was a contract for the disposition of land or interest in land sometime in 2012 between himself, his wife and sabongeri kasarami community represented by the village head Habila Zarmai on behalf of the community. But the Appellant failed to produce any agreement or memorandum or note evidencing the transaction, in compliance with Section 4(1) of the Kaduna State contract law, Cap 36 Laws of Kaduna State 1991. On the strength of this requirement of the law, the case of the Appellant at the lower Court is bound to fail. Consequently, issue one is resolved against the Appellant.
Issue two is whether the learned trial judge was right in refusing the claim of the Appellant for professional fee of his counsel, his surveyors, estate valuer, cost of filing the suit and incidental expenses despite leading evidence on same. The Appellant’s counsel submitted that. At page 102 volume 2 of the record of appeal, the trial Court held that the Plaintiff neither pleaded or led evidence as to the amount he paid his counsel, the surveyor estate valuer, cost of filing the suit and incidental expenses, therefore the Plaintiff is not entitled to the sum of N3 Million as cost of professional fee paid to his solicitors, surveyors, estate valuers etc. Learned counsel submitted further that by paragraph 6, 7 and 9 of the Plaintiff statement of claim at page 4 of volume 1 of the record of appeal as well as paragraphs 6, 7 and 9 of page 8 volume 1 of the record of appeal, the Plaintiff pleaded and gave credible evidence which is not controverted as to engaging the services of surveyor, estate valuer and solicitors.
The Respondent’s counsel submitted that the Appellant’s claim for solicitor, estate surveyor and cost of filing the suit/fees are subsidiary to and dependent on the success of the main claim. In other words, the Appellant will only be entitled to the claim if the main claim succeeds. The Respondent has no obligation to pay any cost, if the cost ought not to have been incurred in the first place. Learned counsel submitted further that those claims are supposedly out of pocket expenses and are in the nature of special damages which require strict proof, by producing receipts of payment or by calling the professionals to testify on the amount paid to them. The Appellant failed to prove any entitlement to the claims. Learned counsel relied on the case of Prime Merchant Bank Ltd v. MAN Mountain Company (2006) 6 NWLR (Pt. 661) 525, the Court held that:
“The strict proof required is a credible evidence that will readily lend itself to the quantification or assessment of the monetary value… there must be receipts or cheque signifying that payment had been made.”
In his judgment at page 102 of the record volume 2, the learned trial Judge stated thus:
“The Plaintiff claims N3 Million as the cost of this suit, which includes professional fees to his counsel, the surveyor and to the Estate Valuer, cost of filing the suit and incidental expenses which is conservatively put at N3 Million. The Plaintiff did not plead nor did he give credible evidence of how much he paid his counsel as professional fees, how much he paid the Surveyor and Estate Valuer and how much he paid as filing fees. The Plaintiff tendered no receipt evidencing any payment of fees to any such professional persons. The amount is simply conservatively put. I hold that this is yet another evidence of gold digging by the Plaintiff that cannot be taken seriously. It is now settled law that a lawyer’s fee is not something to be proved by mere ipse dixit because everybody knows that lawyers (and I venture to add that professionals) issue receipts for any money paid to them. Thus an averment of payment of fees to a lawyer (and again, I add that any professional), can only be proved either by tendering the receipt of payment or by calling the lawyer (or professional) paid to testify as a witness in Court that he was paid the amount. See First Bank Of Nig. Ltd & Anor v. Anthony Owie (1997) 1 NWLR (Pt. 484) 744 AT 755.
The Plaintiff did not tender any receipt of payment of fees to any solicitor and he did not call the lawyer to testify that he was paid any amount as professional fee by the Plaintiff. Similarly, PW2 who said he is a registered surveyor and valuer and he prepared Exhibits 4 to 4D did not testify that he was paid any amount as his professional fee and nobody else testified to this effect…”
I have perused the records of appeal and particularly pages 3-5 which contain the statement of claim. I am unable to see where the Appellant has pleaded any professional fees paid to a solicitor, Surveyor, Estate Valuer, or cost of filing the suit. Except however at page 5 paragraph D in the alternative claim, its stated thus:
“D. the cost of this suit, which includes professional fees to his counsel, the surveyor and to the Estate Valuer, cost of filing the suit and incidental expenses which is conservatively put at Three Million Naira (N3,000,000:00).”
It is an age long principle of law that parties are bound by their pleadings.
It is also settled law that special damages need to be particularized. In this instant case, the Appellant has to state how much he paid to the solicitor, the Surveyor, the Estate Valuer and how much he paid as filing fees. Failure to so state the specific amounts paid to the professionals will mean that the claim has not been proved. In others words, special damages must be specifically pleaded and strictly proved. See Oladiti v. Sungas Co., Ltd (1994) 1 NWLR (Pt. 321) 433; Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623; Eliochin Nig Ltd v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47.
The conservative sum of N3 Million claimed by the Appellant is a mere speculation. The learned trial judge captioned it as another evidence of gold digging by the Plaintiff that cannot be taken seriously. In the case of Oceanic Bank International Ltd v. Chitex Ind. Ltd (2000) FWLR (Pt. 4) 696, Fabiyi JCA (as he then was) stated thus;
“Gold diggers” should keep off from Courts of law as well as that of equity. And the Courts should always be wary of gold diggers and not to allow the institution to be used unwittingly as instrument for attaining their nefarious and Mudane desires.”
The learned trial judge was right in his finding that:
“… In any event, the Plaintiff having failed to prove that he purchased any farmland which the Defendant could have damaged, he is not entitled to any damages or any amount as damages or cost of filing or payment of solicitors fees…”
Consequent to the above findings the second issue is resolved against the Appellant. And having resolved the two issues against the Appellant, the appeal is worthless in the extreme. It is bereft of any substance or merit and it is liable to be dismissed. Accordingly, the appeal is dismissed. The judgment of High Court of Justice Kaduna State delivered on the 29th day of March, 2018 in suit no: KDH/KAD/776/2015 is hereby affirmed.
No order as to cost.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I had the advantage of reading in draft, the leading judgment just delivered by my Learned Brother, ABUBAKAR MAHMUD TALBA, JCA.
I adopt as mine the reasoning and conclusion reached in the leading judgment and hereby record an order dismissing this appeal for being devoid of merit. The judgment of the High Court of Kaduna State in Suit No. KDH/KAD/776/2015 is accordingly affirmed. I equally abide by the consequential order as to costs.
Appearances:
D.A. Isaac, Esq. For Appellant(s)
A.A. Lanlege, Esq. For Respondent(s)
