DIYA FATIMILEHIN & COMPANY. v. OYEWOLE OGUNTADE & ORS
On Thursday, the 25th day of April, 2002
DIYA, FATIMILEHIN & CO. Appellant(s)
- OYEWOLE OGUNTADE
2. CHIEF (MRS.) YEWANDE ADEGBITE
3. MATHEW AJANI
4. J. O. OGUNSOLA Respondent(s)
FRANCIS FEDODE TABAI, J.C.A (Delivering the Leading Judgment): At the Ibadan Judicial Division of the High Court of Oyo State the plaintiff who is respondent herein claimed from the defendants jointly and severally N239,400.00 special and general damages for negligence and trespass on his apartment and premises at No. 38 Dejo Oyelese Street Bodija Estate Ibadan on the 10/5/91 and N250,000.00 general damages for libel and slander in the course of their wrongful and reckless execution of process on his apartment and premises. The 1st Defendant is the owner of the building and premises at No. 25 Dejo Oyesola Street Bodija Ibadan. The 2nd defendant is a
firm of Estate Surveyors and Valuers who manage the 1st Defendant’s said building and premises. The 3rd defendant is a professional debt collector appointed by the 2nd defendant who sued the tenants at No. 25 Dejo Oyelese Street. Mr. & Mrs. Ponle Akande at the Customary Court Grade C Mokola, Ibadan. And the 4th defendant is a bailiff of the said Customary Court and who executed the Court Process on the plaintiff’s apartment and premises. At the trial the plaintiff/respondent and four witnesses gave evidence in support of the plaintiff’s case. The 1st defendant did not file any defence and was absent and unrepresented throughout the trial. The 2nd defendant who filed a defence was represented at the trial but never tendered any evidence. The 3rd defendant attended court only for some time and stopped and his counsel sought and obtained leave to withdraw his appearance. The 4th defendant filed a defence and gave evidence at the trial.
At the end of the trial the learned trial judge T. O. Adeniran, J. entered judgment against the 2nd defendant only for the total sum of N369,400.00. The present appeal is against that judgment. On behalf of the parties their counsel filed and exchanged their Briefs of Argument. The Appellant’s Brief of Argument was prepared by Chief Akin Olujinmi, SAN and it was filed on the 9/3/99. The Respondent’s Brief was settled by Bowofade Aderemi and it was filed on the 11/12/2000.
In his Brief Chief Akin Olujinmi, SAN proposed the following three issues for determination:-
“(i) Whether the award of N369,400.00 against the 2nd Defendant was justified on the pleadings and the evidence before the court.
(ii) Whether having held that the 1st, 3rd and 4th defendants were not liable, the lower court would properly find the 2nd defendant liable.
(iii) Whether the plaintiff’s claim for negligence, trespass and libel and slander could on the facts of this case be maintained.
In the respondent’s Brief of Argument Mr. Aderemi formulated four issues for determination. Issues 2, 3 and 4 are, in substance the same as the Appellant’s issues 1, 2 and 3 respectively. The Respondent’s issue 1 does not arise as there was no ground of appeal which complained about the trial court’s finding of wrongful execution of the processes on the respondent’s apartment and premises. And although the 5th ground of appeal raised the issue of jurisdiction the said ground was abandoned as no issue and argument was based thereon. I would therefore respectfully adopt the three issues proposed in the Appellant’s Brief of Argument.
With respect to the 1st issue it was submitted that the plaintiff failed to plead the special damages distinctly with the relevant particulars as required in law and that the failure was fatal to his case. On the submission he relied on OSUJI V ISIOCHA (1989) (Part 111) 623 at 636 and 638. It was further contended that the plaintiff failed to prove the items of special damages strictly as required in law. It was argued that the failure of the 2nd defendant to give evidence did not relieve the plaintiff of his duty to prove as required. He relied on OSUJI V ISIOCHA (supra) and A-G ANAMBRA STATE V ONUSELOGU ENTERPRISES LTD. (1987) 4NWLR (Part 66) 547 at 561. With regard to the $2,000.00 U.S. Dolars it was argued that there was a variance between the pleading and the evidence and urged an inference that the money if lost could have been lost elsewhere. It was submitted that since the loss of $2000.00 U.S. Dolars was pleaded as a case of negligence the particulars of negligence ought to have been pleaded and that the failure so to plead was fatal to the plaintiff’s case.
He cited UMUOJE V SPDC LTD (1975) 9-11 S.C. 155 at 166-167. It was argued also that since the trial court found the 2nd defendant liable only in trespass and not in negligence the award of $2000.00 was wrong.
Learned Senior Counsel for the appellant further argued that there was no evidence of the rate of conversion from dollars to naira, and that the report in the Business Times newspaper was no proof of the facts recorded therein. He relied on ROYAL NETHERLANDS HABOUR WORKS COMPANY B.V. & ANOR. V SAMA (1991) 2 NWLR (Part 171) 64 at 77.
With respect to paragraphs (i) to (iii) it was contended that there was no proof of the items of claim. It was further argued that there was no evidence of the number, type and costs of doors. He referred to the passage where the learned trial judge said –
“On the general damages in the 1st leg have already awarded a sum of N150,000.00.”
and contended that there was no where such an award was made, saying the judge only erroneously thought he had made the award. It was submitted that since there was, in effect, no award, the award should be set aside.
It was argued that even if there was an award of N150,000.00 there was no material to justify the award.
With respect to the claim under leg 2 it was argued that it was not shown whether the N180,000.00 was for libel or slander. According to the learned Senior Counsel for the appellant since different considerations apply on libel and slander it was not open to the learned trial judge to simply award an amount without specifying whether it was for libel or slander. And in slander not actionable per se, there is no right of action except the plaintiff can plead and prove same. He relied on BULLEN & LEAKE 12th Edition page 633 and GATLEY ON LIBEL AND SLANDER 6th Edition page 102. In the case there was no special damage alleged and proved it was argued. It was argued that in slander the names of those to whom it was published must be pleaded and proved and these were not proved. And in both libel and slander the actual words published or spoken must be proved. These were again not proved. Reliance was placed on EZOMO V OYAKHIRE (1985) 1 NWLR 65 at 70 and GATLEY ON LIBEL AND SLANDER 6th Edition 442 para. 983 and page 444 para. 985. It was argued that the award of N180,000.00 for Libel and slander was unjustified and urged same to be set aside.
With regard to the 2nd issue the substance of the argument for the appellant is that since the 2nd defendant did not do anything personally and its liability was only vicariously through its agents, 3rd and 4th defendants who were found not liable, the 2nd defendant could not be liable. For the argument reliance was place on CHUKWU V SOLEH BONEH (1993) 3 NWLR (part 280) 246 at 251, OBI V BIWATER SHELLABEAR (NIG.) LTD. (1997) 1 NWLR (Part 484) 723 at 736, OGUNSON V IGWUAGWU & LCC (1968) ANLR 525 at 529.
On behalf of the Respondent learned counsel, argued as follows. On the 1st issue he referred to paragraphs 24 of the Statement of Claim and contended that while paragraphs 24(i)(ii)(iii) & (iv) sufficiently pleaded the special damages with particulars paragraph (v) pleaded general damages. He distinguished OSUJI V ISIOCHA (supra) from the instant case. He referred to the fact that the 1st defendant did not file a defence and the 2nd and 3rd, though filed their defences but did not defend and submitted that their action amounted to admission of the evidence of the plaintiff whose duty and degree proof in the circumstances was only minimal. In support of this he referred to FETUGA V WESTERN NIGERIA HOUSING CORPORATION (1968) NMLR 233 at 234-236; OKE V AIYEDUN (1986) 2 NWLR (part 23) 548 at 560-563; BELLO AKANBI v. MAIMUDU ALAO & ANOR. (1989) 3 NWLR (part 108) 118 at 140; ONWUKA V ONOGUI (1992) 3 NWLR (part 230) 393 and OHIAERI V AKABEZE (1992) 2 NWLR (Part 221) 1. It was submitted that the evidence of the plaintiff supported by that of the 4th defendant under cross-examination was in the absence of any defence sufficient proof of the damages claimed and awarded.
With respect to the 3rd issue it was submitted that the learned trial judge throughly espoused the law on libel and slander before awarding the damage. In his view the slander was not of spoken words but visual and since the process executed in the presence of the police attracted a crowd to which there was the impression of the plaintiff having committed a crime, it was actionable without proof of damage.
He relied on PROF. N.O. ADENIYI & ANOR. V PROF. R.S.A. FETUGA (1990) 5 NWLR (Part 50) 375; EGBE V ADEFARASIN (1987) 1 NWLR (Part 47) 1 at 25 and LEWIS V DAILY TELEGRAPH LTD. (1963) 1 KB 340.
On the 2nd issue it was the contention of learned counsel for the respondent that the relationship between the 2nd defendant/appellant and the 3rd defendant is that of principal and agent and that liability of the appellant was premised on his being the principal to the 3rd defendant and not on grounds of vicarious liability. According to counsel the maxim oni facit per allium facit per se – He who acts by another acts by himself” is relevant in this case. He argued that the 1st defendant was not liable because she never gave the appellant instructions on plaintiff’s No. 38 Dejo Oyelese Street Bodija Estate. It was his further contention that the 4th defendant who merely carried out his official instructions cannot be liable. Learned counsel for the respondent argued that between the principal and agent the test of liability in tort is authority, actual or ostensible and not employers contending that a person will be liable for torts committed not only by himself but also those committed by persons acting or purporting to act on his behalf. He relied on PAN BROTHERS LTD. V LANDED PROPERTIES LTD. & ANOR (1962) 2 ANLR (Part 1) 22.
I shall now briefly consider the issues. On the 1st issue the 1st question is whether the pleadings and evidence at the court below were sufficient to justify the learned trial judge’s award of special and general damages. Special damages are such as the law will infer from the nature of the act complained of and do not follow in the ordinary course of things. They are exceptional in character denoting those pecuniary loses which have been crystalised in terms of monetary value before trial. See IJEBU-ODE LOCAL GOVT. V ADEDEJI BALOGUN & CO. (1991) 1 NWLR (Part 166) 136 at 158; IMANA V ROBINSON (1979) 3-4 S.C. 1; CALABAR EAST CO-OPERATIVE THRIFT AND CREDIT SOCIETY LTD. & ORS. V ETIM EMMANUEL IKOT (1993) 3 NWLR (Part 311) 324 at 334. It is settled principle of law that special damages must be specifically pleaded and strictly prove. The requirement of strict proof does not however mean proof beyond reasonable doubt or proof through a special category of evidence. All that “the principle requires is proof through credible evidence of such character as would readily lead itself to quantification or assessment. See ODULAJA V HADOAT (1973) 11 S.C. 357 at 382 and CROSS LINES LTD. V THOMPSON (1993) 2 NWLR (Part 273) 74 at 84.
It is also settled principle of law that a defendant who fails to plead in defence or who pleads but fails to lead evidence in support of his pleading or in challenge of the pleading and for evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff notwithstanding his general traverse. See IMANA V ROBINSON (supra); U.D.C. V FEDERAL CAPITAL DEV. AUTHORITY V ALH. MUSA NAIBI (1990) 3 NWLR (Part 138) 270 at 281.
In the instant case the 1st defendant did not plead and did not adduce evidence. The 2nd and 3rd defendants pleaded but did not lead evidence in support of their pleadings. They are, therefore, in law deemed to have abandoned their pleadings and accepted the evidence of the plaintiff/respondent. While the plaintiff was not relieved of his duty to prove his case the standard and degree of proof is minimal. The pleadings in paragraph 24(1) and (i)(ii)(iii) and (iv) is in my view sufficient pleading of the items of special damages. There was also in my view sufficient evidence in support of those pleadings. The reasoning of the learned trial judge at pages 159 – 161 showed he appreciated the position of the law. And he accepted the evidence of the plaintiff and his witnesses and the evidence of the 4th defendant under cross-examination. I do not find any reason to disturb the conclusion of the learned trial judge on special damages in the first claim. With respect to the general damages awarded the learned trial judge considered the facts about negligence and trespass of the appellant, the attitude of the appellant after the damage and up to the time evidence was adduced in the case and in particular the appellant’s nonchalant attitude and awarded some amount. On the award of N150,000.00 general damages. I agree that before the statement of the learned trial judge at page 166 to the effect that he had already awarded the sum, he had not in actual fact done so, that was clearly a slip. At page 166 lines 2 – 6 he said – “On the general damages in the 1st leg I have already awarded a sum of N150,000.00. On the other uncontradicted claims in items (i) (ii) (iii) and (iv) I award the amounts claimed i.e.. N39,400.00.”
And in the concluding paragraph at page 168 lines 11-14 he said –
“For the avoidance of doubt therefore Plaintiff succeeds in all his claims. I award for the 1st claim a total sum of N189,400.00.”
These two s show clearly that he meant to and actually awarded N150,000.00 as general damages in the 1st leg of the claim. I also agree with learned trial judge’s views on the liability of the 1st, 3rd and 4th defendants. For the foregoing reasons I have no reason to interfere with the conclusion of the learned trial judge on the 1st leg of the claim. The result, is that I resolve issues 1 and 2 in favour of the respondent.
The 3rd issue for determination is whether the plaintiff’s claims for negligence, trespass and libel and slander could on the facts of this case be maintained. The submission of the learned Senior Counsel for the appellant is that no proper claim was made out between (i) there was no pleading of the names of the persons to whom the defamatory matter was published (ii) there was no pleading of the actual words of the offending publication in the case of libel or (iii) the actual defamatory words spoken in the case of slander. Learned counsel for the respondent on the other hand contended that in the circumstances of this case it was impracticable to give names of persons to whom the defamatory matter was published and that evidence of the unlawful execution of the Court process was sufficient.
This aspect of the claim for libel and slander is a unique one.
I am inclined to the view that in view of the peculiar circumstances of the case it is impracticable to reproduce in court the defamatory substance. The case, in my consideration falls into the class of cases where defamatory imputations of the plaintiff can be conveyed by some physical representations of the defendant. See GATLEY ON LIBEL AND SLANDER 7th Edition para. 84 page 42. There is evidence of the impression which the unlawful execution of the court process conveyed to those who sent it. There is no doubt that the execution in the present of a police man would have conveyed the impression to those present that the plaintiff was involved in some criminal or civil wrong.
I do not therefore think that lack of evidence of publication is the basis for faulting the award by the learned trial judge. Rather an aspect of the case which agitates my mind is the propriety of awarding two items of general damages for the same wrong committed by the defendant. In relief one in para. 24 of the Statement of Claim, the plaintiff claimed N200, 000.00 general ‘damages’ for negligence and trespass. And in relief two he claimed N250,000.00 general damages for libel and slander. Under the first relief the learned trial judge awarded N150,000.00 general damages. And under the 2nd relief he awarded N180,000.00 general damages for libel and slander. In my view it looks like a case where the plaintiff has been compensated twice for the same injury and this ought not to be the situation. See LEWIS V DAILY TELEGRAPH LTD. (1964) AC. 234 at 261; GATLEY ON LIBEL & SLANDER 7th Edition paragraph 1364 page 561 and CLERK AND LINDSELL ON TORT 15th Edition 20.183 page 1014. The claim and award also looked like a case of double compensation. There is no doubt that the respondent was entitled to special and general damages for the wrongful act of unlawful execution of the court process on his premises. It is my view however that having been awarded N150,000.00 general damages for negligence and trespass, arising from the unlawful execution the respondent cannot again be awarded N180,000.00 for libel and slander for the self-same unlawful execution without violating the rule against double compensation. See ARTRA INDUSTRIES (NIG.) LTD. V N.B.C.I. (1998) 4 NWLR (Part 546) 357 at 387; ONAGA V MICHO & CO. (1961) 2 SCNLR 101; EZEANI V EJIDIKE (1964) 1 ANLR 402; CALABAR EAST CO-OPERATIVE THRIFT AND CREDIT SOCIETY LTD. & ORS. V ETIM EMMANUEL IKOR (1993) 8 NWLR (Part 311) 324 at 335.
For the foregoing reasons I hold that the claim and award of N180,000.00 general damages ought not to be allowed and it is accordingly set aside.
On the whole while I affirm the award of N189,400.00 special and general damages under the 1st claim, the award for N180,000.00 general damages under the 2nd claim is set aside. The appeal therefore partly succeeds. In these circumstances I make no order as to costs.
MORONKEJI OMOTAYO ONALAJA, J.C.A.: I was honoured to have had preview of the lead judgment just handed down by my learned brother TABAI, JCA which appeal was a wrongful execution of a customary court judgment with the consequential embarrassment on the respondent who was never a judgment debtor.
The lead judgment considered the issues germane in this appeal and after due consideration the reasonnings and conclusions are in accord with my thoughts about the appeal thereby giving me no option than to accept the reasonongs and conclusions as my own.
With regard to awards of general damages in leg one based on negligence the sum of N150,000.00 was awarded whilst the sum of N180,000.00 was for libel or slander. As the action originated from the wrongful execution, the awards in legs 1 and 2 in my view is double compensation to which no court is favourably disposed as stated and decided in the case of THOMAS v. KEREWI (substituted for JOHN RIEMU) v. BISIRIYU A. ODUGBESAN 1965 1 ALL NLR 95 SC.
I am in agreement that the award for determination libel or slander was based on wrong principle of law for award for libel or slander more also as principle for award of damages in libel differ from that of slander MR. EMMANUEL AGBANELO (Trading in the name and style of EPACO NIGERIA MARKETING COMPANY) v. UNION BANK OF NIGERIA LTD. (Warri Branch) 2000 7 NWLR Pt. 666 page 534 at 551 paras F-G and 561 para F.). I also disallow the award of N180,000.00 general damages under the 2nd claim or leg.
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.: I have read in draft the judgment just delivered by my learned brother F. F. Tabai JCA. I agree with his reasoning and conclusion that this appeal succeeds in part. The award of N189,400 special and general damages under the 1st claim made by the lower court is affirmed. I also make no order as to costs.
- O. SANUSI, ESQ. (with him ABDUL AZEEZ),For Appellant
BOWOFADE ADEREMI, ESQ.,For Respondent