CASMIR OBOK & ORS v. CHIEF CHRISTOPHER AGBOR & ORS (2016)

CASMIR OBOK & ORS v. CHIEF CHRISTOPHER AGBOR & ORS

(2016)LCN/8468(CA)

In The Court of Appeal of Nigeria

On Thursday, the 14th day of April, 2016

CA/C/27/2012

RATIO

APPEAL: PURPOSE OF A NOTICE OF APPEAL AND A CROSS-APPEAL
A party who is aggrieved by a decision of the trial Court files a notice of appeal. If the respondent is also aggrieved by the decision or portions of it, he files a cross-appeal. A respondent files a cross-appeal where he desires to have a crucial finding in the judgment set aside. A respondent’s notice is filed when the respondent desires to retain the judgment appealed against but desires that it should be varied or affirmed on grounds other than those relied upon by the trial Court; Ogunbadejo v. Owoyemi (1993) 1 SCNJ 148; Arisons Trading & Eng. Co. Ltd v. Mil. Governor Ogun State (2009) 5-6 SC (Pt. 1) 131. Thus a respondent, who contends that by the same reasoning of the trial Judge he ought to have been awarded more, seeks to have the decision varied. He files a respondent’s notice. A respondent who is dissatisfied with a judgment that completely refused his claims or portions of it, files a cross appeal. A cross appeal cannot co-exist with a respondent’s notice; Emeka v. Okadigbo (2012) LPELR-9338(SC). PER ONYEKACHI AJA OTISI, J.C.A.
DAMAGES: HOW SHOULD SPECIAL DAMAGES BE PROVEN
It is trite law that special damages must be strictly proved; Inland Containers (Nig.) Ltd v. Roger Colman Trading Co. (1997) 8 NWLR (Pt. 517) 505; Moghalu v. Ude (2001) 1 NWLR (Pt. 693) 1 at 14. By the rules of pleadings, a claimant, who is claiming special damages, is required to first plead the special damages and give particulars thereof before he would be allowed to lead evidence in proof. Strict proof in this con does not necessarily mean proof beyond reasonable doubt. It simply implies that a claimant who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible. Strict proof within the con of special damages can mean no more than such proof as would readily lend itself to qualification or assessment; Orient Bank Plc. v. Bilante International Ltd (1997) 8 NWLR (Pt. 515) 37. PER ONYEKACHI AJA OTISI, J.C.A.
DAMAGES: WHERE WILL AGGRAVATED DAMAGES BE AWARDED
Aggravated damages are usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment; such as where it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law. The motive and conduct of the defendant are taken into account; G.K.F. Investment Nigeria Ltd v. Nigerian Telecommunications Plc. (2009) LPELR-1294 (SC); Marine Management Associates Inc. v. National Maritime Authority (2012) LPELR-20619(SC); Udofel Ltd v. Skye Bank Plc. (2014) LPELR-22742(CA). PER ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

1. CASMIR OBOK
2. ATTORNEY-GENERAL, RIVER STATE
3. COMMISSIONER OF POLICE CROSS RIVER STATE Appellant(s)

AND

1. CHIEF CHRISTOPHER AGBOR
2. ELIAS OJONG
3. OGAR ARMSTRONG
4. AGBOR FRANK Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of cross River State, Obubra Division in suit Nos. HB/3/2009, HB/4/2009, HB/5/2009 and HB/6/2009 (consolidated), presided over by Hon. Justice Adie Onyebueke, delivered on March 28, 2011 in which the trial Court granted declaratory reliefs, aggravated damages and the sum of N20,000.00 daily as demurrage from January 13, 2009 to May 26, 2009 to the Respondents.

The facts leading to this appeal as discernable from the Record of Appeal disclose as follows: by virtue of the Forest Law, Cap F5, Laws of Cross River State, 2004, the logging and exploitation of forest produce in Cross River State is controlled. A task force was created to monitor and enforce compliance of the said Law with the 1st Appellant appointed the Special Adviser, Special Duties and the Chairman Task force on Anti-Deforestation to oversee the activities of the task force. The Respondents who are timber dealers, sought for and obtained clearance on January 12, 2009 from the 1st Appellant to evacuate their woods which had been lying in the forest before the

ban on exploitation of forest produce came into effect. The clearances were valid for January 13 and 14, 2009. The Appellants alleged that instead of evacuating the already sawn logs of wood allowed by the clearance, the Respondents harvested and loaded freshly sawn logs of wood. The Respondents were arrested and their vehicles, as well as the loaded freshly sawn logs of wood, were impounded. The vehicles were subsequently released to the Respondents. In reaction to the arrest and impounded items, the Respondents brought separate actions against the Appellants jointly and severally seeking the following orders:
(I) A declaration that the Claimant as a citizen of Nigeria has a right to engage in timber business in accordance with relevant laws and regulations governing the trade.
(II) A declaration that the Defendants have no right or colour of right to stop the claimant from conveying his wood to destinations within Cross River State and other states in Nigeria after meeting all the conditions stipulated by the Defendants.
(III) A declaration that the arrest and detention of the Claimant’s wood and lorry is capricious, whimsical, unlawful,

unconstitutional rights of the Claimant.
(IV) An order for the immediate and unconditional release of the Claimant’s wood and vehicle.
(V) The sum of N50,000.00 (Fifty Thousand Naira) as demurrage for each day the vehicle is detained.
(VI) N10,000,000.00 (Ten Million Naira) being aggravated damages.
(VIII) N100,000,000.00 (One Hundred Million Naira) general damages.

Upon order of the trial Court, all the four suits were consolidated and hearing commenced on April 21, 2010. See page 197 of the Record of Appeal.

At the trial, the Respondents testified that prior to the lifting the logs of wood, agents of the 1st Appellant would inspect the logs of wood in order to ensure that they were the same logs of wood cleared to be conveyed that were lifted from the forest floor. They would pass-hammer the logs of wood for transportation out of the State. The Respondents were embarrassed by the arrest and impounding of their four vehicles on January 13, 2009 at Iyamoyong Junction, Obubra Local Government Area. The vehicles and logs of wood were parked at the Obubra Police Station. The seized logs of wood were later sold off by the 1st

Appellant while the empty Lorries were only released to the Respondents on May 26, 2009. The Respondents alleged that the owners of the Lorries demanded and collected N50,000.00 from each of them for each day their vehicles remained detained by the Appellants as demurrage. At the end of the trial, judgment was entered in favour of the Respondents, upon which the Appellants lodged the instant appeal. The Notice and Grounds of Appeal was filed on 11/5/2011 upon two grounds of appeal. The Respondents also filed a Respondents’ Notice against the said judgment on 18/5/2015 but deemed on 14/10/2015, praying this Court to vary some aspects of the judgment in their favour.

The parties exchanged Briefs of Argument, including the Appellant’s Reply Brief, which were respectively adopted on 28/1/2016 by Anthony Effiom, Esq., Assistant Director, Civil Litigation, Ministry of Justice, Cross River State, for the Appellant; and by J. K. Omang, Esq. of counsel for the Respondents.

Out of the two grounds of appeal, learned counsel for the Appellants, distilled two issues for determination, as follows
?1) Whether the learned trial judge was right to award

N20,000 per day as demurrage as against N50,000 claimed by the Respondents which was in the form of special damage requiring strict and specific proof which claim was not proved (From Ground 2 of the Grounds of Appeal).
2) Whether the learned trial judge was right when she held that the burden of proof was on the Appellants to prove that the logs of wood impounded were freshly sawn contrary to the clear provisions of Section 37 of the Forest Law, Cap. F5, Laws of Cross River State 2004, (From Ground 1 of the Grounds of Appeal).

For the Respondents, the following issues were raised:
1. Whether the evidence before the lower Court was sufficient to support the award of special damages in favour of the Respondent, and if answered in the affirmative, whether the award of N20,000.00 daily as demurrage to the Respondents as against the N50,000.00 claimed was not proper? (Ground 2 of appeal & ground 1 of the Respondent’s Notice).
2. Whether the learned trial judge was not right when she held that the burden of proof was on the Appellants to show that the Respondents’ wood impounded by the Appellants was freshly sawn wood? (Ground 1 of

appeal).
3. Whether the learned trial Judge was not in error when she refused and/or failed to award general damages to the Respondents having found that they proved their claim against the Appellants? (Ground 2 of the Respondents’ Notice).

The Respondents’ Notice sought that the judgment on appeal be varied as follows:
1. Awarding to the Respondents the sum of N50,000.00 (Fifty Thousand Naira) being demurrage for each day the Respondents vehicles remained detained by the Appellants as claimed and proved by the Respondents at the lower Court as against the N20,000 (Twenty Thousand Naira) awarded.
2. Awarding to the Respondents the sum of N100,000,000.00 (One Hundred Million Naira) as general damages against the Appellants for the unlawful seizure and impoundment of the Respondents’ logs of wood and Lorries that the lower Court refused and/or failed to award.

The Appellants in their Reply Brief had attacked the third issue formulated by the Respondents based on the Respondents’ Notice on the ground that there was no appeal against the trial Court’s refusal to award the sum of N100,000,000.00 or any general damages. It was

submitted that a decision of a Court not appealed against is taken as accepted by the parties and is binding on them. A respondent’s notice is not used to challenge a decision of the trial Court. The Court wars urged to discountenance the said issue as being incompetent.

A party who is aggrieved by a decision of the trial Court files a notice of appeal. If the respondent is also aggrieved by the decision or portions of it, he files a cross-appeal. A respondent files a cross-appeal where he desires to have a crucial finding in the judgment set aside. A respondent’s notice is filed when the respondent desires to retain the judgment appealed against but desires that it should be varied or affirmed on grounds other than those relied upon by the trial Court; Ogunbadejo v. Owoyemi (1993) 1 SCNJ 148; Arisons Trading & Eng. Co. Ltd v. Mil. Governor Ogun State (2009) 5-6 SC (Pt. 1) 131. Thus a respondent, who contends that by the same reasoning of the trial Judge he ought to have been awarded more, seeks to have the decision varied. He files a respondent’s notice. A respondent who is dissatisfied with a judgment that completely refused his claims or portions

of it, files a cross appeal. A cross appeal cannot co-exist with a respondent’s notice; Emeka v. Okadigbo (2012) LPELR-9338(SC).

The learned trial Judge refused the claim for general damages of the sum of N100,000,000.00. A respondent’s notice cannot lie to address any dissatisfaction with this conclusion. The Appellants have rightly contended that the Respondents ought to have filed a cross appeal on this complaint. A respondent’s notice cannot address this complaint. Ground No. 2 of the Respondents’ Notice, as well as Issue No. 3 formulated by the Respondents on this ground are therefore both incompetent and are hereby struck out.

The issues distilled by the Appellants for determination are the same in content with the Issue Nos. 1 and 2 distilled by the Respondents. These Issues shall now be considered.

The Respondents had sought the sum of N50,000.00 as demurrage for each day their Lorries were detained until date of release. This claim was in the nature of special damages. It is trite law that special damages must be strictly proved; Inland Containers (Nig.) Ltd v. Roger Colman Trading Co. (1997) 8 NWLR (Pt. 517) 505; Moghalu v.

Ude (2001) 1 NWLR (Pt. 693) 1 at 14. By the rules of pleadings, a claimant, who is claiming special damages, is required to first plead the special damages and give particulars thereof before he would be allowed to lead evidence in proof. Strict proof in this con does not necessarily mean proof beyond reasonable doubt. It simply implies that a claimant who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible. Strict proof within the con of special damages can mean no more than such proof as would readily lend itself to qualification or assessment; Orient Bank Plc. v. Bilante International Ltd (1997) 8 NWLR (Pt. 515) 37.

Where the oral evidence of special damage is unchallenged, non-production of receipts may not be fatal to the claimant’s claim. But where the claim for special damage has been challenged, there must be concrete proof. However, even where there has been no production of receipts to sustain unchallenged evidence of special damages, the claimant must submit such proof that would readily lend itself to qualification or

assessment; Illiya Audu v. Samuel Okeke (1995) 3 NWLR (Pt. 542) 373, Moghalu v. Ude (supra). It is therefore not in all circumstances enough to prove special damage by mere ipse dixit, even if it is not challenged. The claimant who asserts must prove; Consolidated Breweries Plc. v. Aisowieren (2001) 15 NWLR (Pt. 736) 424 at 458-459; Vodokanal Project (Nig.) Ltd v. Oladele (2004) ALL FWLR (Pt. 239) 883 at 909. Therefore, where a claimant pleads special damages, giving necessary particulars and adduces evidence of it without the defendant challenging or contradicting the evidence, he has discharged the onus of proof placed on him; U.B.N. Plc. v. Chimaeze (2014) LPELR-22699(SC); Onwuka v. Omogui (1992) 3 SCNJ 98; Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (Pt. 658) 668.

In paragraph 11 of the Statement of Oath of the 4th Respondent who testified as CW1 at page 144 of the Record of Appeal, he stated:
‘… The owner of the vehicle is demanding demurrage of N50,000.00 for each extra day the vehicle remains with me beyond 14th January, 2009.’

In paragraph 5 of his Additional statement of oath at pages 173-174 of the Record of Appeal, the

witness stated:
I state further that as a result of the long detention of the vehicle, the vehicle owner is demanding demurrage of N50,000.00 per day from 14th January, 2009 to 26th May, 2009, representing the period that the vehicle remained with me.

Under cross examination of CW1 at page 206 of the Record of Appeal, he further said:
“I was not issued with a receipt when I paid for the lorry that loaded the wood. I did not do agreement with the driver of the lorry. We had verbal agreement. I have not paid for the demurrage.” Emphasis mine.

The Appellant’s witness in paragraph 12 of his deposition at page 169 of the Record of Appeal had denied the claim that any demurrage was incurred.

Contrary to the reference made by the Appellants to the judgment, on the claim for demurrage, the learned trial Judge held:
“There is evidence that the vehicles were impounded on the 13/1/09 and released on the 26/5/09. The defendant never controverted such evidence and there is nothing from the defendants to counter the evidence on payment of demurrage.
It is my view that the above unchallenged evidence is credible and by

the authority of UZOR v. BONIFACE ANYIKA & CO. LTD (2002) FWLR (Pt. 107) P. 1155 AT 1161.
Where it was held “unchallenged evidence to ground liability of a defendant, such evidence must possess the character needed to show that the defendant had indeed committed the wrong ascribed to him? I award the of N20,000.00 as demurrage from 13/1/2009 to 26/5/09.”

The evidence before the trial Court as reproduced above however was to the effect that the claim on payment of demurrage was challenged. The Respondents admitted they had not paid any demurrage. In other words, there was no evidence of payment of any demurrage.

Furthermore, the claim for demurrage was for N50,000.00 and not N20,000.00. Therefore if there was in reality unchallenged evidence of payment of demurrage as was found by the trial Judge, then the appropriate and just award ought to have been the claimed sum of N50,000.00 not an unexplained reduction of the sum claimed to N20,000.00. There was no justification for the said award of N20,000.00. It cannot stand in the circumstance. I would therefore resolve Issue No. 1 in favour of the Appellants and against the

Respondents.

Section 35(1) of the Forest Law Cap F5 Laws of Cross River State, 2004 empowers the seizure of:
… any forest produce reasonably suspected of having been unlawfully obtained or being unlawfully removed and any instrument or thing reasonably suspected of having been used in the commission of any offence under this Law.
Section 37 thereof further provides:
The onus of proof that any forest produce has not been taken in contravention of this Law shall lie upon the person in whose possession the forest produce is found.
By these provisions, the burden of proving that the forest produce has not been unlawfully obtained or unlawfully removed lies on the person in whose possession the forest produce is found.
The Forest Regulations made pursuant to the Forest Law provides for the grant of licenses and permits. The Respondents had tendered as Exhibits A1-A8, which were relevant permits and receipts. The clearance read in part:
(name) is hereby cleared to carry one Lorry load wood …having fulfilled all the requirements as stipulated in the Laws of the State. Valid for 13/14 Jan. 09.

?At page

217 of the Record of Appeal, DW1 admitted thus:
Yes by the clearances, it is correct that the claimants fulfilled all the requirements by law.
There was therefore evidence of compliance with the Law provided by the Respondents and due affirmation of same by the Appellants.
The trial Court found and held at page 226 of the Record of Appeal:
“Therefore I hold that on this issue of payment and issuance of clearance there is no dispute between the parties.
On the allegation that the claimant evacuated freshly sown wood contrary to the clearance as to old wood.
The claimants in their statement on oath and under cross examination maintained that they evacuated old wood and not fresh wood. This allegation came from the defendants and in law it is the duty of the defendants to prove assertion. See the case of UNION BANK PLC & ANOR v. ISHOLA (2001) FWLR (Pt. 81) PAGE 1868 AT 1887.
Where it was held that a case collapses where there is failure to prove by he who asserts and there is nothing to shift to his opponent as burden of proof has not been discharged.”
The learned trial Judge further held, at

page 227 of the Record of Appeal:
“It is my view that the production of Exhibit A1 to A8 clears any form of suspicion.
In respect of S.37 of the Forestry Law which places the burden on the claimants to prove that the woods were illegally acquired, it is obvious that the claimants discharged the burden by producing Exhibit A1 to A8 which the defendants never denied.
Apart from that, the claimants maintained that their woods were hammered by the agents of the defendants and the same wood that defendants impounded.
The above evidence was not controverted and it amounts to an admission and that this Court is bound to act on it.”
As rightly stated by the learned trial Judge, the time bound principle of law remains that he who asserts must prove; Consolidated Breweries Plc. v. Aisowieren (supra); Vodokanal Project (Nig.) Ltd v. Oladele (supra). In contending that the burden of proving that they had not contravened the law lay on the Respondents, the Appellants relied on Section 37 of the Cross River State Forest Law, which provides:
The onus of proof that any forest produce has not been taken in contravention of this

law shall lie upon the person in whose possession the forest pro duce is found.
Aside from Exhibits A1-A8, the evidence that was also not contradicted was that the logs of wood which were inspected by agents of the Appellants and hammered for identification, and for which permits were issued, were the same logs of wood in issue, which were subsequently impounded and sold off under the watch of the Appellants. In my firm view, the learned trial Judge was right in the conclusion that the Respondents, by Exhibits A1-A8 and their uncontroverted evidence that the same logs of wood for which permits were obtained were impounded, had proved that the forest produce in their possession was not obtained in contravention of the Law. Since the Appellants asserted otherwise, the burden of proof lay on them. This burden was not discharged.

Aggravated damages are usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment; such as where it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law. The motive and conduct of the defendant are taken into account; G.K.F. Investment Nigeria Ltd v. Nigerian

Telecommunications Plc. (2009) LPELR-1294 (SC); Marine Management Associates Inc. v. National Maritime Authority (2012) LPELR-20619(SC); Udofel Ltd v. Skye Bank Plc. (2014) LPELR-22742(CA).

The conduct of the Appellants was reprehensible. It was extremely unfair and evidently worked great hardship on the Respondents. There was no justification for the action of the Appellants. I therefore see no reason to disturb the award of N1,000,000.00 aggravated damages by the learned trial Judge to each of the Respondents.

This appeal therefore succeeds in part. The judgment of High Court of Cross River State, Obubra Division in Suit Nos. HB/3/2009, HB/4/2009, HB/5/2009 and HB/6/2009 (consolidated), presided over by Hon. Justice Adie Onyebueke and delivered on March 28, 2011 is hereby affirmed in part. It is hereby ordered as follows:
1. The award of N20,000.00 (Twenty Thousand Naira) as demurrage from 13/1/2009 to 26/5/2009 is hereby set aside.
2. The award of aggravated damages of N1,000,000.00 (One Million Naira) to each of the Respondents is hereby affirmed.
Parties shall bear their costs.

CHIOMA NWOSU-IHEME, J.C.A.: I had the opportunity of reading in draft the judgment read by my Learned brother, O. A. OTISI, JCA. I agree with his reasoning and conclusion. I agree that the appeal succeeds in part. The judgment of the High Court of Cross River State, Obubra Division in Suit Nos. HB/3/2009, HB/4/2009, HB/5/2009 and HB/6/2009 (Consolidated) delivered on March 28, 2011 by Adie-Onyebueke, J is hereby affirmed in part.
(1) The award of N20,000 (Twenty Thousand Naira) as demurrage from 13/1/2009 to 26/5/2009 is hereby set aside.
(2) The award of aggravated damages of N1,000,000 (One Million Naira) to each of the Respondents is hereby affirmed.

I also make no order as to costs.

PAUL OBI ELECHI, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my Learned brother Onyekachi Aja Otisi, JCA. I agree with the reasoning and conclusion arrived thereat and I do not have anything extra to add.

On the whole, I join my Learned brother in holding that the appeal succeeds in part.

?Also, I abide by the consequential Orders made inclusive of the Order as to

costs.

Appearances

Anthony Effiom, Esq. (Assistant Director, Civil Litigation) with him, Glory Nyekigbe Ms. and Emma Assam, Esq. (Ministry of Justice, Cross River State)For Appellant

AND

J. K. Omang, Esq.For Respondent