CHIEF APPOLOS N. AMADI V. FELIX CHINDA & ORS
In the Supreme Court of Nigeria
Friday, April 3, 2009
Case Number: SC.388/2002
ALOYSIUS IYORGYERKATSINA-ALU, JUSTICE, SUPREME COURT
ALOMA MARIAM MUKHTAR, JSC (Lead Judgment), JUSTICE, SUPREME COURT
WALTER SAMUEL NKANU ONNOGHEN, JUSTICE, SUPREME COURT
PIUS OLAYIWOLA ADEREMI , JUSTICE, SUPREME COURT V
CHRISTOPHER MITCHEL CHUKWUMA-ENEH, JUSTICE, SUPREME COURT
CHIEF APPOLOS N. AMADI
FELIX CHINDA & ORS
- M. MUKHTAR, JSC (Lead Judgment): The plaintiff, who is now the appellant based his claim for the land in dispute in this appeal on a deed of conveyance registered as No. 140 at page 140 in Vol. 5 of the Deeds Register kept at Port Harcourt, on which the plaintiff was issued with a Certificate of Occupancy. The appellant bought the land, which he developed, from the Ahorlu family of Rumuokokwu, Nkpolu Oroworukwo, and went into physical occupation, constructed some buildings thereon and farmed on the undeveloped parts. In 1983, one Ebikabena Tantua instituted an action against the appellant, in respect of the land but it was struck out. In 1989, the Chinda-Nwoke family, of which the defendants in this suit belong, sued Anebo Ahorlu, original owners of the land in dispute in the Obio
Customary Court. On hearing this, the appellant instructed his lawyer to inform the Customary Court of the plaintiff’s interest in the land, but it nevertheless proceeded to give the plaintiffs in that case judgment. The respondents thereafter trespassed on the land and went on a wanton destruction of the property, to wit the appellant reported the matter to the police, who came to his aid. The appellant instituted an action against the respondents jointly and severally claiming the following reliefs:-
“(a) A DECLARATION that the plaintiff is the holder of a statutory Right of Occupancy over the piece of land variously known as “Ekwuodor or 59 Webo/49 National Street, Mile III, Diobu, Port Harcourt within the Jurisdiction of the Honourable court and more particularly described in certificate of Occupancy No. 69 at Page 69 in Volume 116.
(b) Special Damage :-
… … … … … N424,200.00
… … … … … N472,500.00
General Damages N500.000.00
(c) Perpetual Injunction restraining the Defendants by themselves, servants or agents from further trespass to the said property.”
After filing the statement of claim and the defendants/respondents/appellant refused/neglected to file their statement of defence, the plaintiff filed a motion on notice for an order entering judgment in his favour in default of the defendants filing a Statement
of Defence within the time limited by law. Thereafter the defendants/respondents filed and moved a motion on notice for an order of extension of time to file the statement of defence. They were granted the order as prayed. In their statement of defence, the defendants/respondents denied most of the plaintiffs/appellant’s claims to the effect that the land purchased by the plaintiff does not belong to the Ahorlu family as they are not members of the Chinda-Nweke family, but have boundary with it. According to the respondents the Certificate of Occupancy issued to the appellant was not in respect of the land in dispute, so the plaintiff has never been in possession of the land. The respondents averred that the plaintiff visited the defendants family in company of some persons with a view to buying the land in dispute, and they offered to sell for the sum of N250,000.00, but the appellant offered only N25,000.00.
Parties adduced evidence which were appraised by the learned trial judge, who in the final analysis found the plaintiff/appellant’s case proved and gave judgment in his favour. The respondents were not satisfied with the judgment, hence they appealed to the Court of Appeal. The judgment of the trial court was set aside, and judgment was given in favour of the defendants, who are now the respondents in this appeal, which the plaintiff as appellant has filed in this court. In compliance with the rules of this court the appellant filed his brief of argument which was adopted by his learned counsel at the hearing of the appeal, the respondents having refused/neglected to file their brief of argument. The appellant obtained an order to hear the appeal on the appellant’s brief of argument only; hence this judgment will be based on the appellant’s brief only. The issues raised for determination in the appellant’s brief of argument are as follows:-
“1. Whether the learned Justices of the Court of Appeal were justified when they, suo motu, raised very vital issues on which they based their judgment in favour of the Defendants/Appellants/Respondents……….
- Whether the learned Justices of the Court of Appeal were wrong in subtly nullifying the Plaintiff/Respondent/Appellant’s Certificate of Occupancy in respect of this property when the Defendants/Appellants/Respondents did not make such a claim.”
The argument of the learned counsel for the appellant under issue (1) supra revolves around pleadings of the parties and the principles of law that govern them, particularly the decision of the lower court that the plaintiff/appellant did not plead special damage, and therefore no evidence ought to be led on that, and so the evidence goes to no issue. I will reproduce the relevant averments in the original statement of claim to determine whether the special damage was pleaded. These averments are:-
“16. On the 4/2/91 at about 8.30 am the plaintiff went to the land in dispute with one Anebo Ahorlu and Emmanuel Amadi to find all the Defendants including the 3rd Defendant who was not there on the 2/2/91 completing the destruction of the entire fence. They also destroyed 2 pairs of steel hinges, 2 steel bolts, 1500 capacity water tank, 4 wooden windows, 2 wooden doors and 2 standard security iron sale.
- After the acts of trespass committed against the plaintiffs property as herein before pleaded, the resultant damage was so extensive that the plaintiff could not cost it himself. The plaintiff did on the 11/2/91 commission a firm of valuers Webondah and Associates, to value and cost the damage caused by the Defendants. The said firm did value the said damage and produced a report dated the 22/2/91. The said expert report is hereby pleaded and will be founded upon.
- Wherefore the plaintiff claims against the Defendants jointly and severally as follows:-
(b) Special damage……………………………………”
The appellant claimed that the statement of claim was amended, but the said amended statement of claim became controversial because the court below raised the issue suo motu, that the appellant did not comply with the order to file the proposed amended statement of claim. It is on record that on 13/7/95, the following was recorded by the trial judge, as what transpired on that day in respect of the amendment:-
“Court: Counsel for the plaintiff who was out of time in filing his amended statement of claim has brought a now (sic) motion for extension of time to file and serve the statement of claim as amended which is (sic) present now not being objected to is taken as moved and granted.”
There was nothing like an order for deeming sought or granted as can be seen above. The contention of the learned counsel that the proposed amended statement of claim was deemed as properly filed and served is erroneous, because there is nothing in the record of proceedings to that effect. It is in my view, for all intent and purposes, that the original statement of claim remained the only statement of claim for the purpose of the case, the proposed amendment vide the content of the memorandum of Amendment on page 37 of the printed record of proceeding, not having been filed. Indeed, if it was filed, it should have been in the form of a proper document bearing the title of ‘amended statement of claim’, shown to have been properly dated, stamped and addressed for service on the defendants, not just a memorandum. There is definitely no such document in the record of proceedings, and surely the appellant did not expect the court to use the memorandum of amendment as the amended statement of claim. If these documents i.e the motion for extension of time to
file amended statement of claim, and deeming order, and the amended statement of claim were inadvertently omitted in the record of proceedings, then it behoves on learned counsel for the appellant to apply and obtain a supplementary record of proceedings containing these important documents, to be placed before this court. There are definitely some omissions on the part of the appellant’s learned counsel, most especially since he was making the decision of the lower court on this amendment an issue. I will come back to this point later in the judgment.
It is the contention of the learned counsel for the appellant that the plaintiff/appellant adequately pleaded his claims and reliefs in paragraphs 15, 16, 17, 18, 19 and 20. He referred to the case of Ashiru Noibi v. J. F. Ikolati & ors (1987) 3 SC 105, and Order 25 rale 4(1) of the High Court Civil procedure Rules of Rivers State, 1987 which states the following: –
“4.(1) Every pleading shall contain, and only, a statement in a summary form of the material facts on which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively.”
The learned counsel has argued that the respondents acknowledged the encounter pleaded by the appellant in his statement of claim, in their statement of defence. In this wise, the appellant supplied sufficient facts to acquaint the respondents in advance, that at the trial he would seek redress for those acts which caused the destruction of his properties. I will reproduce the relevant paragraphs of the statement of defence hereunder.
“(21) The Defendants deny paragraph 18 of the statement of claim and aver that plaintiff was in fact advised by the police to vacate the land after investigation. The plaintiff had on
several adjourned dates pleaded with the court for an adjournment to enable him settle with the parties in the High Court application for certiori proceedings. The Defendants shall /and found on the said records of proceedings at the trial.
(23) The Defendants deny paragraph 19 of the statement of claim and puts the plaintiff to the strictest proof thereof.
(24) Paragraph 20 of the statement of claim is not true. The land belongs to the Defendant’s family.
(25) The Defendants vehemently deny paragraph 21 (a), (b) and (c) of the statement of claim and shall contend at the trial that the plaintiff is not entitled to the reliefs sought as he is not the owner of the property in dispute, nor were his items damaged.”
Looking carefully at the above averments in the statement of claim, along side those of the defendants reproduced above, one is in no doubt that the plaintiff adequately put the defendants on notice of what they will face at the trial of the case, as is expected and required of him by the principles of law on pleadings. The cardinal principle of pleadings is that a party claiming must not spring surprises on the opponent at the trial, but must endeavour to acquaint him of what to meet at the trial and the challenges against him, for by not doing so, he will take the said opponent unaware, and that will not meet the cause of justice. Parties and the court must be conversant with the case before the court, and this will be possible only if there is proper joinder of issues. See George v. Dominion Flour Mills (1963) All NLR page 71, Emegokwue v. Okadigbo (1973) 4 S.C. 113, and Eke v. Okwaranyia (2001) 12 NWLR (Pt. 726) page 181, (2001) 6 SCM, 27.
The learned counsel has submitted that by Exhibit ‘G’, the appellant had adduced evidence to show the particularity necessary to the pleadings. As such with the appellant’s evidence supporting his claim on special damages, and exhibit ‘G’, the appellant discharged the onus placed on him in the matter of this special damages. He placed reliance on the case of Obasuyi v. Business Ventures Ltd. (2005) 5 NWLR (Pt. 658) page 668. The position of the law is that a claim for special damages requires strict proof by credible evidence that is in line with the same particularity that is required for the appellant’s pleading. The evidence must prove that damages claimed is related to the injury suffered as a result of the wrongful act. See Shell Petroleum Development Company v. Tiebo VII (1996) 4 NWLR (Pt. 445) page 657, and Chindo Worldwide Ltd. v. Total (Nig) Plc (2001) 16 NWLR (Pt. 739) page 291.
According to learned counsel the respondents did not deny the destruction of the plaintiffs properties at the trial court but mostly insisted that the land in dispute was theirs. But then the appellant proved vide exhibits’ A’ and ‘B’, that the land was fallow at the time the appellant bought it. Indeed the survey plans indicate that the land was fallow as at the time they were made (the date they bear i.e 1977 and 1985), a long period before the date of the alleged trespass. I agree that the evidence was not challenged, and so it was a credible and reliable evidence, See Lagos City Counsel Caretaker Committee v. Unachukwu (1978) All NLR 92 relied upon by the learned counsel. I will not delve into argument of the learned counsel on the impropriety of the lower court raising the issue of non-pleading of the special damages suo motu. This is because the averments in the pleadings which I have already reproduced supra contain the pleadings on wrongful act/and the circumstances that led to the claim of special damages, and so I am satisfied that there was proper pleading of the claim and reliefs before the trial court. The need to consider the propriety or impropriety of the learned Justice of the Court of Appeal that wrote the lead judgment suo motu making that aspect of the pleading an issue is therefore obviated.
That brings me back to the issue of the proposed amended statement of claim. In the circumstance that I have found that the original statement of claim contain averments on special damages, the question of whether the amendment was done or not is of no moment or consequence whatsoever, in view of the content of the original statement of claim and its efficacy to the issue at stake. That is taking into account, my conviction that inspite of the non-filing of the amended statement of claim, the original pleading is unassailable as far as the special damages is concerned. We should not allow technicalities to becloud our sense of judgment. See General Oil v. Oduntan (1990) 7 NWLR part 163 page 423 relied on by the learned counsel. See also Ogoiyi v. Umagba 1995 9 NWLR part 419 page 283.
However, I will quickly point out that I don’t endorse the argument of learned counsel, that the amended pleading was filed, for it was not. Having observed that the original statement of claim suffices for the purpose of this argument, I would say the learned justice of the Court of Appeal was in error when he held as follows in his judgment:-
“I advert to the learned authors of Bulle Leake And Jocob’s Precedent of Pleadings 12th Edition at page 379 subnomen: “DAMAGES”. It was stated:-
“A claim for special damage must be explicitly claimed in the pleading with full particulars of how it is made. Hayword v. Pullunger & Partners Ltd (1950) 1 All E.R. 581; Anglo – Cypria Trade Agencies Ltd v. Paphos Wine Industries Ltd (1951) 1 All E.R. 873”.
(The underlining is supplied)
Guided by and armed with the above I am very clear in my mind that the statement of claim did not plead “special Damage.” Put in other Words, paragraph 21 (b) of the statement of
claim (supra) cannot constitute a pleading of “a claim for special damage……explicitly claimed in the pleading with full particulars of how it is made”. The legal effect therefore, is obvious. No evidence ought to be led in that direction.”
In the light of the above reasoning I resolve the above issue in favour of the appellant in part. In this wise, I allow ground (1) of appeal, but dismiss ground (2) of appeal.
In arguing issue (2) supra, the learned counsel set out the claim of the appellant in the court of first instance and the documentary evidence of the deed of conveyance and the certificate of occupancy vide which he claimed title to the parcel of land in dispute. He relied on the case of Dabup v. Kolo (1993) 9 NWLR (Pt. 317) page 254, on the purport of the certificate of occupancy. The learned counsel submitted that in view of section 5(2) of the Land Use Act, 1978, the moment the appellant was granted the certificate of occupancy the appellant’s title over the land superseded every other purportedly subsisting one at the time. According to the said Section 5(2):-
“Upon the grant of a statutory right of occupancy under the provision of subsection (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”
I agree that the above provision is very clear. The learned counsel however conceded that the grantee of a certificate of occupancy has actually to justify the grant by way of a valid title or interest prior to the right of occupancy. The case of Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) page 745 cited by learned counsel is relevant to this discussion. Learned counsel further submitted that where a rival claimant is aggrieved by the grant of a certificate of occupancy to a third party in respect of the same land, the onus is on the rival claimant to sue in an appropriate court to set aside the disputed right of occupancy. In a further submission, the learned counsel contended that a court can only set aside a
certificate of occupancy implicitly or explicitly where a party so aggrieved has asked for that relief in his claim or counter claim as the case may be, as a court has the duty to restrict itself to the case made out by the parties before it and should not grant any relief not claimed by a party. He referred to the case of Ekwealor v. Obasi (1990) 2 NWLR, (Pt. 131) page 231.
A careful perusal of the statement of claim reveals exactly the reliefs sought by the plaintiff/appellant, as can be seen on pages 12 – 13 of the printed record of proceedings, and nothing else. Again, in the joint statement of defence of the defendants/respondents nowhere did the defendants counterclaimed. As a matter of fact the learned trial judge in her judgment rightly confined herself to the reliefs sought and based her orders on them. The cardinal principle of law is that a judge is bound by the claims of parties and must restrict himself within the ambit of the claims, and grant the reliefs claimed and not go beyond or outside them, for doing so will be granting reliefs not claimed. See the cases of Attorney-General of the Federation v. A.I.C. Ltd. (2000) 10 NWLR (Pt. 675) page 293 and U.T.C. French Airlines v. Williams (2000) 14 NWLR (Pt. 687) page 271.
In the instant case, however what the court below did was to set aside the judgment of the trial court which in my view was merely tantamount to dismissing the appellant’s claims. I suppose one could say the judgment may have the effect of saying the appellant is not the holder of a statutory right of occupancy over the piece of land described in the certificate of occupancy. Yes, it set aside the judgment of the trial court, but I am hereby setting aside its own judgment as being in error, and substituting it with the judgment of the trial court. I therefore find the appellant’s case proved in the trial court, and grant the reliefs sought by the appellant and granted by the trial court. For the foregoing reasoning I resolve this issue in favour of the appellant, and allow the grounds of appeal covering it. Even though the
appeal succeeds in part, that aspect in which it fails is not of material consequence to affect the merit of the appeal and its outcome in favour of the appellant.
The end result is that the appellant’s claim succeeds and the orders made by the trial court are upheld and affirmed. I assess costs at N50,000.00 in favour of the appellant against the respondents in this court and N10,000.00 in the court below.
- I. KASTINA-ALU, JSC: I have had the advantage of reading in draft the judgment of my learned brother Mukhtar JSC in this appeal. I agree with it and, for the reasons she has given I would also allow the appeal. I abide by the consequential orders made in the said judgment including the order as to costs.
W.S.N. ONNOGHEN, JSC: I have had the benefit of reading in draft, the lead judgment of my learned brother, MUKHTAR, JSC, just delivered. I agree with the reasoning and conclusion that the appeal is meritorious and ought to be allowed.
It is very clear from the pleadings of the parties, particularly that of the appellant who was the plaintiff at the trial court, (particularly paragraphs 12,16 and 19 of the statement of claim) that special damages was specifically pleaded and strictly proved at the trial. The lower court was therefore in error when it held that the issue of special damages was not pleaded. The appellant tendered in evidence an expert report on the damages caused by the respondents on the property in proof of the special damages as exhibit “G”.
That apart, I have gone through the record of appeal including the briefs of argument before the lower court and I agree with the learned counsel for the appellant that the
issue of non pleading of special damages was raised by the lower court suo motu and without calling on the parties counsel to address it on same and consequently erroneous as the decision the court eventually reached on the appeal was based on that issue which was against the appellant and resulted in a miscarriage of justice since the appellant specifically pleaded special damages and tendered a valuation report exhibit “G” to prove same.
In conclusion, I too allow the appeal for being meritorious and abide by the consequential orders made in the said lead judgment including the order as to costs
P.O. ADEREMI, JSC: This appeal is against the judgment of the Court of Appeal Port Harcourt Division (hereinafter referred to as the court below) delivered on the 29th November 2001 in Appeal No. CA/PH/381/98: Felix Chinda & Ors v. Chief Appolos N. Amadi. The lower court had entertained an appeal aginst the judgment of the High Court of Justice, Rivers State sitting at Port Harcourt, delivered in Suit No. PHC/528/92: Chief Appolos N. Amadi vs. Felix Chinda & Ors delivered on 28th May 1998. The appellant, who was plaintiff, had won at the trial court. But, by an unanimous decision, the court below set aside the judgment of the trial court. The appellant, as plaintiff before the trial court, had claimed against the respondents, as defendants before the court, jointly and severally as follows: –
“(a) A declaration that the plaintiff is the holder of a Statutory Right of Occupancy over the piece of land variously known as “Ekwuodor” as 59 Wobo/49 National Street, Mile III,
Diobu, Port Harcourt within the jurisdiction of the Honourable Court and more particularly described in Certificate of Occupancy No. 69 at page 69 in Volume 116.
(b) Special Damages –
(i) Damage to 150 mm hollow blocks
security fence wall with reinforced
concrete pillars – N424,200.00
(ii) 2 Standard Security iron sale – N20,000.00
2 sets of steel lock set – N500.00
2 steel hinges – N110.00
2 steel belts – N40.00
1150 capacity water tank – N5,150.00
Carpentry works damaged – N5,000.00
4 wooden doors – N2,000.00
2 wooden doors – N500.00
Contingencies – N5,000.00
Attendance – N10,000.00
GENERAL DAMAGES – N500,000.00
TOTAL – N972,500.00
(c) Perpetual Injunction restraining the defendants by themselves, servants or agents from further trespass to the said property.”
Before I begin the consideration of this appeal, I wish to say that I have had the privilege of a preview of the judgment of my learned brother, Mukhtar JSC. I agree with the reasoning and conclusion reached therein. However, I wish to make my own little contribution. Pleadings, in terms of statement of claim filed on 13th August 1992 and statement of defence filed on 11th March 1993 were filed and exchanged between the parties. Both parties led evidence in proof of the averments in their respective pleadings at the end of which and sequel to the final written addresses of their counsel, the trial court, in a reserved judgment delivered on the 28th May 1998, granted all the reliefs claimed by the plaintiff/appellant. Being dissatisfied with the judgment of the trial court, the defendants, now the respondents, appealed against it to the court below which allowed the appeal. In so doing, the court below held inter alia: –
“The above notwithstanding, the plaintiff or his solicitor did not comply with the order to file an amended statement of claim. No amended statement of claim was filed. And no amended statement of claim is copied in the Record of Appeal. From my close study of the
Record of Appeal, the case of the plaintiff was conducted and fought based on the statement of claim originally filed on the 13.8/92 …………………………………………….
In my view a Certificate of Statutory Right of Occupancy is not in itself or by itself alone proof that the land is within an urban area. No. Whether a piece of land is within an urban area or not is a matter of fact.
This case was fought and contested on the pleadings. The question arising becomes this. Was it an issue or pleadings whether the land in dispute was within an urban area? And was the identity of the land an issue on the pleadings? In my view of the pleadings my certain answer to each of the above posers is a quick and an unhesitating capital NO…………………………………………………….
At page 116 of the Record, the learned trial judge found and awarded to the respondent the total of N500,000.00 as special and general damages for the trespass committed on the land in dispute on the 2/2/91 and on 4/2/91. The finding or, the award was not supported by evidence. It is perverse. From all I have been saying above, it is clear to me that the judgment in favour of the respondent cannot be allowed to stand ………………………………. the appeal succeeds accordingly.”
Being dissatisfied with the said judgment, the plaintiff at the lower court (now appellant) has appealed from the judgment of the court below to this court. He has raised two issues from the three grounds of appeal therein contained in his Notice of Appeal. And set out in his brief of argument filed on 27th September 2006, they are as follows: –
“(1) Whether the learned Justices of the Court of Appeal were justified when they, suo motu, raised very vital issues on which they based their judgment in favour of the defendants/appellants/respondents.
(2) Whether the learned Justices of the Court of Appeal were wrong in subtly nullifying the plaintiff/respondent/appellant’s Certificate of Occupancy in respect of this property when the defendants/appellants/ respondents did not make such a claim.”
When this appeal came before us for argument on the 20th of January 2009 neither the respondents nor their counsel were present in court, but the records of the court showed that they were served. Mr. Adele, learned counsel for the appellant, who was present, adopted his client’s brief filed on the 27th of September 2006 and urged that the appeal be allowed after successfully moving the application before us on that day to hear and determine I shall start with Issue No. 2 which strikes at the foundation of the plaintiff/appellant’s case. A quick look at the pleadings leaves me in no doubt that the plaintiff/appellant relied on title deeds i.e. Certificate of Occupancy No. 69 at page 69 in volume 116 and a Deed of Conveyance No. 140 at page 140 in volume 5 of the Deeds of Register on the piece of land which he called “EKWUODOR” a name agreeable to the defendants/respondents as expressed in the statement of defence and which according to the plaintiff/appellant was called 59 Wobo Street or 49 National Street, Mile III, Diobu Port Harcourt – the two names were denied by the defendants in their pleadings. Substantially, from the pleadings of the two parties, the identity of the land is not in dispute. They are both familiar with it. Evidence was called by both parties to substantiate the averments in their respective pleadings. At the conclusion of the evidence and sequel to the taking of the addresses of their respective counsel, the learned trial judge in a reserved judgment delivered on the 28th of May 1998 found, for the plaintiff. In so doing, the trial judge held inter alia:-
“He (plaintiff) tendered Deed of Conveyance, showed his root of title through credible evidence and tender a Certificate of Occupancy all consistent. There was no doubt as to the
identity of the land as changes in name of street are common place in Port Harcourt, a fact which has attained notoriety and the court taken judicial notice of……………………………………..
I am satisfied the plaintiff has proved his case in the preponderance of evidence on the balance of probability ………………………………
The visit to the locus was interesting as the court after hearing from the parties f