CHIEF LEO DEGREAT MGBENWELU & ANOR v. AUGUSTINE N. OLUMBA & ANOR.
(2011)LCN/4401(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2011
CA/PH/108/06
RATIO
INTERFERENCE WITH THE FINDINGS OF FACTS: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF FACT
There is a rebuttable presumption that the findings of fact made by the trial court is correct. Where a trial court unequivocally evaluates evidence and appraises the facts, it is not the business of the Court of Appeal to substitute its own views. See ISA ONU v. IBRAHIM IDU (2006) 6 SCNJ 23; AWOYOOLU v. YUSUF ARO (2006) 2 SCNJ 44. The trial court who saw the witnesses chose to believe the oath of the 2nd Respondent against the 1st Appellant that the former did not bring thugs who pushed the latter around. We cannot interfere when it has to do with the credibility of witnesses. See OWIE v. IGHIWI (2005) 1 SCNJ 181. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CONTRADICTORY EVIDENCE: WHETHER A COURT HAS THE DUTY TO REJECT CONTRADICTORY EVIDENCE
It is the duty of the court to reject contradictory evidence. See USIOBAIFO v. USIOBAIFO (2005) 1 SCNJ 226; CHIEF OKOKO v. MARK DAKOLO (2006) 7 SCNJ 284. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF SECTION 41 OF THE SHERIFFS AND CIVIL PROCESS ACT AS TO WHETHER A PLAINTIFF MUST PROVE SPECIAL DAMAGES FOR HIM TO BE ENTITLED TO WHAT HE CLAIMED HE SUFFERED DURING THE EXECUTION OF AN ILLEGAL PROCESS
S.41 of the Sheriffs and Civil Process Act gives the 1st Appellant a right to sue where he suffers special damage during the execution of an illegal process. The section provides as follows: “No sheriff or other officer in executing any process of a court, and no person at whose instance any such process is executed, shall be deemed a trespasser by reason of any irregularity or informality – (a) In any proceedings on the validity of which the process depends; or (b) In the form of the process or in the mode of executing it, but any person aggrieved may bring an action for any special damage sustained by him by reason of the irregularity or informality against the person guilty thereof: Provided that no cost shall be recovered in such an action unless the damage awarded exceed four naira.” (Underlining mine) Thus, the 1st Appellant must prove special damage which he suffered from the unlawful execution. The 1st Appellant in this case brought no proof of special damage but only gave evidence that the process embarrassed him. I am of the humble view that S.41 set out above envisages that he must have suffered special damages in order to have a cause of action. The special damage must also have been specifically pleaded and proved to entitle him to them. It is clear from the claim that it is one for general damages. S.41 of the Sheriffs and Civil Process Act provides only for special damages. Special damages relate to all items of loss which must be specified by the Plaintiff before they may be proved and recovery granted. See PROF. AKINKUGBE v. EWULUM HOLDINGS (2008) 4 SCNJ 404; R. O. IYERE v. BENDEL FEED (2008) 12 SCNJ 412. See A.G. OYO v. FAIRLAKES HOTELS (No. 2) (1989) 5 NWLR pt. 121 pg. 255 at 278-279. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
STATUTORY PROVISION: PROVISION OF SECTION 41 OF THE SHERIFFS AND CIVIL PROCESS ACT AS TO WHETHER A SHERIFF OR ANY OTHER OFFICER AT WHOSE INSTANCE THE PROCESS IS EXECUTED CAN BE DEEMED A TRESPASSER BY REASON OF THE IRREGULARITY OR INFORMALITY OF THE PROCESS
We have to revisit S.41 of the Sheriffs and Civil Process Act. It provides that neither the Sheriff or other officer or any person at whose instance the process is executed shall be deemed a trespasser by reason of the irregularity or informality of the process. In the circumstances, the Respondents cannot be trespassers and no such claim can lie against them. The Appellants cannot recover damages from them by reason of the irregular execution except where they can prove special damage. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF LEO DEGREAT MGBENWELU
2. DEGREAT ENTERPR. NIG. LTD. Appellant(s)
AND
1. AUGUSTINE N. OLUMBA
2. CHIEF WILLIAM C. OKORIE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State presided over by Hon. Justice P. O. Nnadi delivered on 14/7/04. The facts that led to this appeal are as follows:
The 1st Appellant was a tenant of the 1st Respondent on the premises known as No. 4 Wetheral Road Owerri from 1995. The 2nd Respondent was the caretaker and attorney to the 1st Respondent in respect of the premises. The 1st appellant being a businessman used the premises to run the business of some companies including the 2nd Appellant of which he was the Chief Executive Officer.
In the year 2000 the 1st Respondent sued the 1st Appellant through the 2nd Respondent as his attorney in suit No. HOU/358/2001 and judgment in default of pleadings was entered in favour of the Respondents. Thereafter the 1st Appellant appealed and sought a stay of execution of the judgment. Meanwhile on 20/6/02, the Respondents had proceeded to levy execution by obtaining a writ of possession of the premises and attachment of the property of the Appellants. When the court officials were shown the motion papers, they immediately desisted from levying execution and they returned the 1st Appellant’s vehicle already attached and later served the 2nd Respondent with the motion papers.
The Appellants thereafter sued the Respondents claiming N=20,000,000.00 (Twenty million Naira) as general damages for trespass on his person and chattels and for unlawful execution of a Court Order. At the end of trial, the learned trial judge dismissed the Appellants’ case. The Appellants have now appealed against that judgment.
The Appellants’ brief is dated 17/4/06 filed on 18/4/06. The Respondents’ brief is dated 30/6/06 and filed the same day.
The Appellants’ counsel identified three issues for determination set out as follows:
1. Whether the learned trial judge was right when he held that the 1st Respondent was not liable for the acts of trespass and unlawful eviction cum unlawful execution of Court Order against the Appellant on the ground that the 1st Respondent was not present at the scene of the illegal conduct complained.
2. Whether the Appellants proved their case to be entitled to damages as claimed.
3. Whether the 1st Appellant proved his allegation of trespass to his person by the Respondents and their agents.
The Respondents donated only one issue to wit:
Whether the learned trial judge rightly dismissed the Appellant’s claim.
I am inclined to adopt the Respondents’ sole issue as it seems to me that the three issues identified by the Appellants’ counsel can be addressed within that issue and breaking the issue into three is an unnecessary repetition and proliferation of the facts and issues in controversy.
Learned Appellants’ counsel argued that the 1st Appellant’s evidence at the trial court was clear and to the effect that when he protested against the unlawful execution, he was pushed around by the thugs hired by the Respondents. He argued that the learned trial judge was wrong to hold that the Respondents were not present during the execution as PW2 categorically swore on page 29 and page 30 of the record that both Respondents were present when execution was being levied. He submitted that assuming without conceding that the 1st Respondent was not present, his agent 2nd Respondent was present and he is liable as principal for the actions of his agents. He cited the following cases QUA STEEL PRODUCTS v. BASSEY (1992) 5 NWLR Pt. 239 Pg. 62, 74 and 76; NIGER PROGRESS LTD. v. NORTH EAST LINE CORPORATION (1989) 3 NWLR Pt. 107 Pg. 68 at 83-84; LEVENTIS TECHNICAL LTD. v. PETRO JESSICA ENTERPRISES LTD. (1992) 2 NWLR Pt. 224 Pg. 459 at 469.
Counsel argued that Exh. K is a writ of fifa, and not a writ of possession and the Respondents were wrong in trying to recover possession of the premises. The act of execution exceeded the mandate. He cited OJEME v. MOMODU (1995) 6 NWLR Pt. 403 Pg. 583; AKILU v. ODUNTA (1991) 2 NWLR Pt. 171 Pg. 1 at 11; NIGERIA ARMY v. MOWARIN (1992) 3 NWLR Pt. 235 Pg. 345 at 359. He argued that no valid writ of execution can be issued during the pendency of Exh. G which is the motion for stay of execution. He cited NIGERITE LTD. v. DULARI NIG. LTD. (1992) 7 NWLR Pt. 253 Pg. 288 at 292-293, 298; UBN v. FAJEGBE FOODS (1994) 5 NWLR Pt. 344 Pg. 325 at 345-346; DIN v. ADIBUA (2002) FWLR Pt. 107 Pg. 1271 at 1285; ARGOS NIG. LTD. v. UMAR (2003) FWLR Pt. 155 Pg. 753; IBWA LTD. v. PAREP NIG. LTD. (2000) 7 NWLR Pt. 663 Pg. 69.
Learned Appellants’ counsel submitted that the 1st Appellant led unchallenged evidence to the effect that when the execution was levied, it gave him bad publicity and it affected his business. He argued that when there is a right, there must be a remedy. He cited ALIU BELLO v. A.G. FEDERATION (1986) 2 SC 1 or (1986) 3 NWLR Pt. 40. He posited that the learned trial judge was wrong in relying on the evidence of PW2 while Exh. H showed that the Respondents were served with the motion papers on 15/2/2002. He submitted that the law is that even if oral evidence is called in proof of a matter, the existence of documentary evidence in the same proceedings would serve as yardstick or hanger with which to access the oral testimony. In UMORU v. ODUOGBO (1993) 6 NWLR Pt. 296 Pg. 217 at 228; EYO v. IYANG (2001) 8 NWLR Pt. 715 Pg. 305 at 325.
Learned Appellants’ counsel submitted that even though the 1st Appellant pleaded that he was held and pushed by agents of the Respondents, the Respondents in their defence never denied the allegation and it is deemed admitted as requiring no further proof. He cited JIKANTARO v. DANTORO (2004) FWLR Pt. 216 Pg. 390 at 394.
In reply, learned Respondents’ counsel submitted the arguments that the evidence before the trial court was that the 1st Respondent lives in the USA and that court processes were served on the 2nd Respondent as attorney of the 1st Respondent. The only witness called by the Appellants was PW2 one Nze Eddison Alanwe Obi the Bailiff of the High Court who swore that on seeing the copies of the motion for stay, the Bailiffs stopped execution and released the vehicle attached. Counsel argued that at the time the 1st Appellant’s car was attached, the Respondents had not been served with the motion for stay. Counsel argued that the 1st Appellant did not give any credible evidence to prove that his goods and chattels apart from the Mercedes Benz were tampered with. Counsel argued that the evidence of PW1 contradicted that of PW2 on the particulars of the chattels attached by execution or the number of people who came to levy execution. Learned Respondents’ counsel argued that the 1st Appellant both in his pleadings and in his evidence alleged the case of trespass on his person and on his goods and chattels. The Respondents both in their pleadings and in their evidence given by the 2nd Respondent denied all the allegations of the 1st Appellant. Therefore the onus of proof by S.136 of the Evidence Act was on the 1st Appellant to adduce reliable evidence acceptable to the learned trial judge to get judgment of the court in his favour. He cited OGBUANYINYA v. OKUDO (1990) 4 NWLR Pt. 146 Pg. 551 at 752. He argued that this court cannot substitute its own findings for that of the learned trial judge who saw the witnesses. He cited AKINLOYE v. EYIYOLA (1986) NWLR Pt. 92 at Pg. 95; EBBA v. OGODO (1984) 4 SC 84 at Pg. 89-90.
In this case, the 1st Appellant alleged trespass to:
(a) His person.
(b) His business premises in his possession.
(c) Trespass on his property by way of unlawful execution by the Respondents. I shall take the claims seriatim.
At page 25 of the Record the Appellant said on oath from lines 18-20:
“……I protested that the matter was at the Court of Appeal and that the Defendants had been served but some of the thugs pushed me around.”
The learned trial judge found as follows on pages 46 and 47 of the record in respect of the issue of whether or not any of the Respondents pushed around the 1st Appellant to sustain his claim for trespass to his person.
“There is nothing to show that the 1st Plaintiff was in Nigeria and in Owerri and was present on 20/6/2002 to have participated in the acts alleged……”
“…….. I find that the 1st Defendant was not present on 20/6/2002 at the premises occupied by the 1st Plaintiff and could not have committed the trespass alleged.”
“…..On the part of the 2nd Defendant, the evidence of the PW2 knocks the bottom off the assertion that the Defendants pushed the 1st Plaintiff around as that witness said that he went to the premises occupied by the 1st Plaintiff with some other – Bailiffs and Policemen and that as they were inquiring about the 1st Plaintiff from his workers, the 1st Plaintiff arrived in a Mercedes Benz car and he attached same and brought it down to the High Court. There is no mention by any witness that the PW1 was pushed around by any of the Bailiffs, Policemen or any other persons present. There is also nothing adverse extracted from the 2nd Defendant under cross-examination by the counsel for the Plaintiffs. I therefore hold that the Plaintiffs have not proved any trespass to the persons of the 1st Plaintiff…..”
I agree with the learned Respondents’ counsel that there was no proof at all that the 1st Respondent was present during the whole episode. PW2 said on page 29 that “The Defendant and the landlord in the matter took us to premises for execution.” On page 30, he said “As we were leaving the premises, I saw the judgment creditor with some of his relations.” If the 1st Respondent was in the country at all, he came to the scene after the whole episode and was not there during the execution. Also the evidence of PW2 was to the effect that he went to levy execution with policemen. He did not mention that the 2nd Respondent brought along thugs to aid in the execution and he swore that nothing was attached apart from the Mercedes Benz. I have to agree with the learned Respondents’ counsel that the 1st Appellant did not discharge the onus of proof that he was pushed around by thugs of the Respondents or any of the Respondents during execution. He could have called any of his own staff present to prove this assertion.
There is a rebuttable presumption that the findings of fact made by the trial court is correct.
Where a trial court unequivocally evaluates evidence and appraises the facts, it is not the business of the Court of Appeal to substitute its own views. See ISA ONU v. IBRAHIM IDU (2006) 6 SCNJ 23; AWOYOOLU v. YUSUF ARO (2006) 2 SCNJ 44. The trial court who saw the witnesses chose to believe the oath of the 2nd Respondent against the 1st Appellant that the former did not bring thugs who pushed the latter around. We cannot interfere when it has to do with the credibility of witnesses. See OWIE v. IGHIWI (2005) 1 SCNJ 181.
There was no evidence on a balance of probabilities that indeed the Respondents caused their thugs to push the 1st Appellant around. I am of the view that the learned trial judge made the correct finding of fact and I have no reason to change it.
The 1st Appellant also made a case that there was unlawful trespass on his sundry goods. PW2 conceded that only the Mercedes Benz was attached. The learned trial judge found as follows:
“……..On the issue of trespass to goods and chattels, there is no reliable evidence that the goods and chattels of the Plaintiffs were tampered with as the Bailiffs that carried out the execution said: “I did not attached any other property apart from the Mercedes Benz.” This is at variance with the 1st Plaintiff’s testimony that the Defendants came with the Bailiffs, armed policemen and thugs had collected his computers, printers, television sets and typewriters, The court cannot pick and choose which of the evidence of the Plaintiff and his witness to believe but to reject all as unreliable and will not attach any weight to same. I therefore hold that the Defendants did not remove or tamper with the goods and chattels of the 1st Plaintiff except the Mercedes Benz.”
I agree with the learned trial judge that indeed his Lordship cannot pick and choose whose evidence to believe since the 1st Appellant swore at page 25 lines 12-18 of the Record that his computers, printers, T.V. sets and typewriters were attached while PW2 said only his Mercedes Benz was attached. He turned around at page 26 line 1 to say only his car was removed. This contradiction is material because one of the reasons for the claim for damages is the fact that the Respondents caused execution to be levied on the 2nd Appellant’s office equipment which in turn caused him embarrassment. See page 25 of the record. It is the duty of the court to reject contradictory evidence. See USIOBAIFO v. USIOBAIFO (2005) 1 SCNJ 226; CHIEF OKOKO v. MARK DAKOLO (2006) 7 SCNJ 284.
On the issue of unlawful execution, the learned trial judge held that there was a material contradiction in the evidence of PW2 who swore in Exh.H that he served the 2nd Respondent’s counsel on 15/2/02 with the motion but turned around while giving evidence on oath that he served the 2nd Respondent’s counsel on 20/6/02. The learned trial judge then found that the attachment of the vehicle of the Appellant on 20/6/2002 in execution of the judgment delivered in HOU/358/02 was carried out while a motion for stay of execution of that judgment was pending before the Court of Appeal. His Lordship however made a distinction between the cases of FABUNMI v. OYENUSI (1992) 1 NWLR Pt. 215 Pg. 35; ARGOS NIG. LTD. v. UMAR (2003) FWLR Pt. 155 Pg. 753; UBN v. FAYEGBE FOODS (1994) 5 NWLR Pt. 344 Pg. 325; DIM v. ADEBUA (2002) FWLR Pt. 107 Pg. 1271 and NIGERITE LTD. v. DAIAMI NIG. LTD. (1992) 7 NWLR Pt. 253 Pg. 288, and the circumstances of this case. His Lordship’s view was that while the reliefs sought in these cases was a nullification of the unlawful execution, the reliefs sought herein were for damages for trespass for irregular execution during the pendency of an appeal.
I agree with the reasoning of the learned trial judge and indeed with the arguments of the learned Respondents’ counsel that the trial court cannot make a finding that the Respondents as opposed to their counsel knew that there was a pending motion for stay moreso because at a point the motion had been struck out by the trial court. More importantly the conflicting evidence of PW2 regarding when the Respondents’ counsel was served with the motion did not help matters. Indeed the learned trial judge could not have found otherwise.
Be that as it may, I agree with learned Appellants’ counsel that where there is a right, there must be a remedy. There is no doubt that the 1st Appellant’s vehicle was in fact unlawfully attached.
S.41 of the Sheriffs and Civil Process Act gives the 1st Appellant a right to sue where he suffers special damage during the execution of an illegal process. The section provides as follows:
“No sheriff or other officer in executing any process of a court, and no person at whose instance any such process is executed, shall be deemed a trespasser by reason of any irregularity or informality –
(a) In any proceedings on the validity of which the process depends; or
(b) In the form of the process or in the mode of executing it, but any person aggrieved may bring an action for any special damage sustained by him by reason of the irregularity or informality against the person guilty thereof:
Provided that no cost shall be recovered in such an action unless the damage awarded exceed four naira.” (Underlining mine)
Thus, the 1st Appellant must prove special damage which he suffered from the unlawful execution. The 1st Appellant in this case brought no proof of special damage but only gave evidence that the process embarrassed him. I am of the humble view that S.41 set out above envisages that he must have suffered special damages in order to have a cause of action. The special damage must also have been specifically pleaded and proved to entitle him to them. It is clear from the claim that it is one for general damages. S.41 of the Sheriffs and Civil Process Act provides only for special damages. Special damages relate to all items of loss which must be specified by the Plaintiff before they may be proved and recovery granted. See PROF. AKINKUGBE v. EWULUM HOLDINGS (2008) 4 SCNJ 404; R. O. IYERE v. BENDEL FEED (2008) 12 SCNJ 412. See A.G. OYO v. FAIRLAKES HOTELS (No. 2) (1989) 5 NWLR pt. 121 pg. 255 at 278-279.
I am of the view that the learned trial judge was right in rejecting that head of claim as unproved.
The last head of claim is in respect of the claim for trespass on the premises wherein the Appellant was still in de facto occupation pending the determination of the motion for stay. There is no doubt that as held by the learned trial judge that the execution was unlawful. The question we are faced with is whether the presence of the Respondent on the premises to engage in unlawful execution constitutes a cause of action. We have to revisit S.41 of the Sheriffs and Civil Process Act. It provides that neither the Sheriff or other officer or any person at whose instance the process is executed shall be deemed a trespasser by reason of the irregularity or informality of the process. In the circumstances, the Respondents cannot be trespassers and no such claim can lie against them. The Appellants cannot recover damages from them by reason of the irregular execution except where they can prove special damage. As the learned trial judge rightly opined, they can only have the process set aside. In the circumstances I affirm the judgment of the trial court and dismiss this appeal. Appeal Dismissed. N=30,000.00 costs for the Respondents against the Appellants.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I have had the opportunity of reading in advance the judgment read by my learned brother Ogunwunmiju, J.C.A. I entirely agree with it. For the reasons stated therein I too see no merit in the appeal. In the circumstances, I affirm the judgment of the trial court and dismiss the appeal. I abide by Order as cost.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree
Appearances
Mr. L. M. AlozieFor Appellant
AND
L. C. Alinnor (Jnr) with him D. C. AlinnorFor Respondent
