ENGR. FEMI SONUGA & ANOR V. THE MINISTER, FEDERAL CAPITAL TERRITORY, ABUJA & ANOR
(2010)LCN/4111(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of December, 2010
CA/A/204/08
RATIO
IRREGULAR PROCEDURE: INSTANCES WHERE AN IRREGULAR PROCEDURE CANNOT BE A GROUND OF APPEAL
When an irregular procedure is adopted with the acquiescence of a party to a civil action, such irregular procedure cannot be a ground of Appeal. Also where a wrong procedure has been followed in filing a process and no objection was raised by the party who should have objected, the Court is entitled to proceed with the hearing despite the wrong procedure followed. In the case of – Shekse V. Plankshark (Supra) at 118 the Supreme Court held among others that:- “The complaint of the learned Counsel for the Appellant regarding the interpretation of the witness who gave evidence in Hausa to English is of no consequence because both sides were represented by Counsel who did not make any issue of it before the trial Court. It was the duty of Counsel to bring to the attention of the trial Court any wrong procedure which might affect his client’s interest. Infact, since the issue of interpretation was never raised in the trial Court; it should not have been raised in the Court of Appeal without leave of the Court as fresh issue. The same applied to this Court. See also the following cases:- – A.G. (Bendel) V. A.G. Federation (1981) 10 SC. Page 1: – Obafunmi V. A.G. Western Nigeria (1967) ALL NLR Page 31: – Sonuga V. Anadein (1967) 1 All NLR Page 91. PER JIMI OLUKAYODE BADA, J.C.A
FAIR HEARING: WHAT FAIR HEARING ENTAILS
Fair hearing is fair hearing when it is fair to both parties. Fair hearing is not a one-way traffic in the sense that it must satisfy a double carriage way, in the con of both the Appellants and Respondents. The Court will not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. The fair hearing provision under section 36 of the 1999 Constitution is the machinery of Justice and not a spare part to propel the case of the user. PER JIMI OLUKAYODE BADA, J.C.A
POSITION OF THE LAW WHERE A DEFENDANT FAILS TO FILE A DEFENCE OR WHEN THE STATEMENT OF DEFENCE HAS BEEN STRUCK OUT
Where a Defendant fails to file a defence or when the statement of Defence has been struck out as in this case, the Defendant will be deemed to have admitted the claim or relief in the statement of claim. And under that situation the Plaintiff/Appellant’s Claim would become an undefended Claim. But it is not in all cases where a Defendant does not defend an action that the Plaintiff will be entitled to Judgment. It depends on the peculiar facts of the case. PER JIMI OLUKAYODE BADA, J.C.A
BURDEN OF PROOF ON A PERSON WHO SEEKS FOR A DECLARATION
In a situation where the Plaintiff relies heavily on documents and he fails to tender them in court, he will not be entitled to Judgment. In Okoli V. Udeh (Supra) it was held by this Court that:-
“A person who seeks for a declaration has the burden to prove all relevant facts by presenting cogent materials to establish his entitlement of the declaration. He must succeed on the strength of his own case and not the weakness of the defence.” PER JIMI OLUKAYODE BADA, J.C.A
CLAIM FOR UNLIQUIDATED DAMAGES: WHAT THE COURT MUST DO BEFORE ENTERING SUMMARY OR DEFAULT JUDGMENT ON A CLAIM FOR UNLIQUIDATED DAMAGES
A Court should not enter summary or default Judgment on a claim for unliquidated damages without taking evidence for the assessment of the amount of damages that may be proved as such claim must be established by credible evidence. My view above is fortified by the decision of the Supreme Court in the case of:- – Oke V. Aiyedun (1986) 2 NWLR Part 23 Page 548 where it was held among others that:- “It is a principle of pleading that that which is not denied is deemed to have been admitted and if a Plaintiff filed a Statement of Claim and the Defendant failed or refused to file a Statement of Defence in answer thereto, he clearly, will be deemed to have admitted the Statement of Claim, leaving the trial Court with the authority to peremptorily enter Judgment for the Plaintiff without hearing evidence. An exception for that would obviously be in respect of a claim for damages, for damages are always said to be in issue requiring the Plaintiff to prove them.” (Underlining mine). PER JIMI OLUKAYODE BADA, J.C.A
NATURE OF THE ONUS ON THE PLAINTIFF TO PROVE FOR HIM TO BE ENTITLED TO AN AWARD OF SPECIAL DAMAGES
The law on the award of special damages is that the onus is on the Plaintiff to prove special damages strictly. In order to discharge this burden the Plaintiff must show by credible evidence that he is indeed entitled to the award of special damages. That is, the evidence adduced by the Plaintiff must show the same particulars as is necessary in its pleadings. See:- – Imana V. Robinson (1979) 3 – 4 S.C. Page 1: – Umana V. Okwuraiwe (1978) 6 – 7 S. C. Page 1: – Olurotimi V. Felicia Ige (1993) 8 NWLR Part 311 Page 257 at 266. PER JIMI OLUKAYODE BADA, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
(1) ENGR. FEMI SONUGA
(2) ENPLAN GROUP (A firm of Partnership) Appellant(s)
AND
(1) THE MINISTER, FEDERAL CAPITAL TERRITORY, ABUJA
(2) FEDERAL CAPITAL DEVELOPMENT AUTHORITY, (FCDA) Respondent(s)
JIMI OLUKAYODE BADA, J.C.A (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. – FCT/HC/CV/129/06 delivered on the 17th day of December 2007.
The Appellants as Plaintiffs by an action commenced at the lower Court claimed against the Respondents jointly and severally the following reliefs:-
“(1) A declaration that the Plaintiffs are the beneficial owners of Plot 530, Cadastral Zone B4, Jabi District, Jabi, Abuja and covered by Certificate of Occupancy issued on the 31st day of August 2005 and registered as No. 9182 at page 9182 in Volume 16 in the Land Registry Office, Abuja.
(2) A declaration that the demolition of the Plaintiffs property on Plot 530 Cadastral Zone B4, Jabi District Abuja by the Defendants is malicious, illegal and constitutes an unlawful trespass on the Plaintiff’s property.
(3) A perpetual injunction restraining the Defendants, their servants, agents, privies, officers or howsoever called from trespassing or further trespassing on the Plaintiffs’ property situate and known as Plot 530, Cadastral Zone B4, Jabi District Abuja and/or in any way in interfering with Plaintiffs’ right of ownership of the said plot and peaceful enjoyment thereof.
(4) N50 Million (Fifty Million Naira) Exemplary, Special and General Damages for the tort of trespass and destruction of Plaintiffs’ property.
(5) N1.5 Million Naira cost of legal representation.
(6) Cost of this Suit.
In a considered Judgment, the learned trial Judge held that the demolition of the Plaintiffs’ property on Plot 530 Cadastral Zone B4, Jabi District, Abuja by the Defendants is illegal and unlawful and does constitute a trespass.
The Court awarded the sum of One Million Naira in favour of the Plaintiffs, being exemplary, special and general damages for the tort of trespass and destruction of the Plaintiffs’ property by the Defendants.
The Appellants being dissatisfied with the Judgment of the lower Court now appealed to this Court.
The learned Counsel for the Appellants formulated four issues for determination set out as follows:-
“(1) Whether the Defendants/Respondents procedure of filing their Statement of Defence after the Plaintiffs/Appellants have closed their case is not alien and unknown to procedural rules of Justice. (Distilled from Grounds 1 & 2).
(2) Whether the trial Judge did not grant the Defendants/Respondents absolute hearing contrary to fair hearing provision enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria (1999) (Distilled from Ground 3).
(3) Whether the Statement of Defence filed by the Defendants/Respondents on the 5th day of February 2007 exist in law and if answered in the negative whether the Plaintiffs/Appellants Suit/Claims is not undefended thereby. (Distilled from Grounds 4 & 6).
(4) Whether the award of N1, 000,000.00 (One Million Naira) as exemplary, special and general damages against the Defendants/Respondents is adequate compensation for the tort of trespass and demolition of the Plaintiffs’/Appellants’ property. (Distilled from Ground 5).
The learned Counsel for the Respondents did not formulate any new issue; they adopted the issues formulated on behalf of the Appellants.
At the hearing, learned Counsel for the Appellants adopted and relied on the Appellants’ Brief of Argument in urging the Court to allow the Appeal.
The learned Counsel for the Respondents also adopted and relied on the Respondents’ Brief of Argument in urging the Court to dismiss the Appeal.
ISSUES 1 AND 2 TAKEN TOGETHER
Whether the Defendants/Respondents procedure of filing their Statement of Defence after the Plaintiffs/Appellants have closed their case is not alien and unknown to procedural rules of Justice. (Distilled from Grounds 1 & 2).
Whether the trial Judge did not grant the Defendants/Respondents absolute hearing contrary to fair hearing provision enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria (1999) (Distilled from Ground 3).
The learned Counsel for the Appellants submitted that it is the law that when a Defendant is served with a Statement of Claim and desires to contest the claim he must file a Statement of Defence and same must be served on the Plaintiff.
He relied on:-
– Order 23 Rule 2(2) of the High Court (Civil Procedure) Rules of the Federal Capital Territory, Abuja:
He also relied on the following cases:-
– George V. Others V. Dominion Flour Mills Ltd (1963) 1 All NLR Page 71 at 72:
– Kayode V. Odutola (2001) NWLR Part 725 Page 659 at 674.
He went further in his submission that both the Plaintiff and the Defendant must know the respective case of each party before the Court and issues joined accordingly thereon. He also stated that there is right of reply for the Plaintiff on issues contained in the Statement of Defence. He relied on Order 3(1) of the High Court (Civil Procedure) Rules 2004 (Supra).
He went further that any procedure outside those enumerated above is unknown to rules of Court and will amount to trial by ambush and therefore null and void. He relied on the following cases:-
– Mobil Prod. Nig. Unlimited & Anor. V. Monokpo (2003) 18 NWLR Part 852 Page 346;
– Bakare V. Apena (1986) 2 NWLR Part 33 Page 1 at 20.
The learned Counsel for the Appellants stated that the Defendants/Respondents were served with the Plaintiffs/Appellants’ Statement of Claim on 5th of April 2006 and instead of the Respondents filing their Defence within 14 days as allowed by the rules they filed it on 5th day of February 2007 i.e. (about 10 months after service of Statement of Claim). He relied on the following cases of:-
– Sanusi V. Ayoola (1992) 11/12 SCNJ Page 142:
– Mobil Prod. (Nig.) Unlimited V. Monokpo (Supra):
– Mosheshe General Merchant Ltd V. Nigerian Steel Products Ltd (1987) 1 NWLR Part 55 Page 110;
– Federal Capital Development Authority V. Naibi (1990) 3 NWLR Part 138:
– Ogunleye V. Oni (1990) 2 NWLR Part 135 Page 745 at 761.
He also contended that the subsequent filing by the Defendants/Respondents their Statement of Defence on the 5th of February 2007 i.e. (5 months after the Plaintiffs have closed their case) infringes on the fair hearing of the Plaintiffs/Respondents to know the defence of the Defendants/Respondents and react thereto.
The learned Counsel for the Respondents on the other hand submitted that although the rules of the trial Court provided for the filing of the Statement of Defence within 14 days after the receipt of the Statement of Claim, Order 20 of the same Rules of Court empowered the Court to extend the time required by the Rules for any person to do any act provided in the Rules.
It was also submitted on behalf of the Respondents that the Appellants cannot complain about the procedure adopted by the lower Court in respect of the time and filing of the Statement of Defence and non filing of a reply because they consented to the procedure, as no objection was raised to same at trial.
He relied on the following cases:-
– Saliba V. Lababedi (1972) 12 SC Page 197;
– Shekse V. Plankshark (2008) 15 NWLR Part 1109 Page 105 at 118;
– A.N.P.P. V. Usman (2008) 12 NWLR Part 110 at 1 Page 64.
It has been contended on behalf of the Appellants that the Respondents’ procedure of filing their Statement of Defence after the Plaintiffs have closed their case is unknown to the rules of Court.
The normal procedure under our procedural law is that a Defendant who is served with a Statement of Claim and desires to contest or dispute the claim, must file a Statement of Defence and same served on the Plaintiff.
Under Order 23 Rule 2 of the High Court (Civil Procedure) Rules of the Federal Capital Territory, Abuja a Defendant must file his Statement of Defence within 14 days from the date of service of the Plaintiff’s Statement of Claim.
Furthermore, both the Plaintiff and the Defendant must know the respective case of each party before the Court and issues joined accordingly before the trial begins. Under our Rules of Court the Plaintiff is entitled to file a reply to new issues contained in the Statement of Defence. See:-
-Order 23 rule 3(1) of the High Court (Civil Procedure) Rules of the F.C.T. Abuja:
-George & Others V. Dominion Flour Mills Ltd (Supra):
-Mobil Prod. (Nig.) Unlimited V. Monokpo (Supra):
-Bakare V. Apena (Supra)
In the instant case, the learned Counsel for the Plaintiffs/Appellants stated that the Statement of Defence was not filed within 14 days allowed by the rules of Court and there was no application extending the time within which to file same. It was also stated that as at the time the Appellants closed their case before the lower Court no Statement of Defence was before the Court therefore, there was no way the Appellants as Plaintiffs in the lower Court could react to it.
It is true that the Rules of the lower Court provides for the filing of the Statement of Defence within 14 days after the receipt of the Statement of Claim. But Order 20 of the same Rules of Court empowered the Court to extend time required for any person to do any act provided in the Rules. Also Order 2 Rules 1, 2(b) of the High Court (Civil Procedure) Rules authorized the Court to treat any such non-compliance as a mere irregularity. This is because the Courts now lean more towards doing substantial Justice than technicalities and the Court will not sacrifice substantial Justice to form.
It is my view that the Appellants cannot be heard to complain about the procedure adopted by the trial Court as regards time and manner of filing of the Statement of Defence and non-filing of a reply because they consented to the procedure as they did not raise any objection to same at the time of trial.
When an irregular procedure is adopted with the acquiescence of a party to a civil action, such irregular procedure cannot be a ground of Appeal. Also where a wrong procedure has been followed in filing a process and no objection was raised by the party who should have objected, the Court is entitled to proceed with the hearing despite the wrong procedure followed.
In the case of – Shekse V. Plankshark (Supra) at 118 the Supreme Court held among others that:-
“The complaint of the learned Counsel for the Appellant regarding the interpretation of the witness who gave evidence in Hausa to English is of no consequence because both sides were represented by Counsel who did not make any issue of it before the trial Court. It was the duty of Counsel to bring to the attention of the trial Court any wrong procedure which might affect his client’s interest. Infact, since the issue of interpretation was never raised in the trial Court; it should not have been raised in the Court of Appeal without leave of the Court as fresh issue. The same applied to this Court.
See also the following cases:-
– A.G. (Bendel) V. A.G. Federation (1981) 10 SC. Page 1:
– Obafunmi V. A.G. Western Nigeria (1967) ALL NLR Page 31:
– Sonuga V. Anadein (1967) 1 All NLR Page 91.
The learned Counsel for the Appellants submitted that what is envisaged in Section 36(1) of the 1999 Constitution is fair hearing and not absolute hearing. He went further that once a party is served with Court process, he must thereafter comply with the rules of Court; if he fails to comply he cannot thereafter be heard. It was further submitted on behalf of the Appellants that what the learned trial Judge did in this case amount to compulsory hearing of the defence of the Respondents with resultant injustice to the Appellants.
The submission of learned Counsel for the Appellants on this issue does not hold water and it lacks any substance because it was the duty of the Appellants’ Counsel to draw the attention of the learned trial Judge to the fact that wrong procedure was followed by the Respondents in the filing of their Statement of Defence but since learned Counsel did not make any issue out of it before the lower Court, he cannot now complain of lack of fair hearing.
Fair hearing is fair hearing when it is fair to both parties. Fair hearing is not a one-way traffic in the sense that it must satisfy a double carriage way, in the con of both the Appellants and Respondents. The Court will not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. The fair hearing provision under section 36 of the 1999 Constitution is the machinery of Justice and not a spare part to propel the case of the user.
In view of the foregoing issues 1 and 2 are hereby resolved in favour of the Respondents against the Appellants.
ISSUE 3
Whether the Statement of Defence filed by the Defendants/Respondents on the 5th day of February 2007 exist in law and if answered in the negative whether the Plaintiffs/Appellants Suit/claims is not undefended thereby. (Distilled from Grounds 4 & 6).
Learned Counsel for the Appellant referred to Section 91(4) of the Evidence Act.
He submitted that a maker of a document like the Statement of Defence must be a legal person known to law. He referred to pages 53A-53C of the Record of Appeal which contained the Statement of Defence filed on behalf of the Defendants/Respondents. The author of the said Statement of Defence is “Legal Unit”. He submitted that Legal Unit is not a legal person known to law, therefore that there is no Statement of Defence in this Suit. He stated that the said Statement of Defence ought to have been struck out.
He relied on the following cases:-
– Obike Int’l Ltd V. Ayi Teletronics Ltd (2005) 15 NWLR Part 948 Page 362:
– Okoebor V. Police Council (2003) 13 NWLR Part 834 Page 444.
He finally urged this Court to hold that the Respondents did not file any Statement of Defence in the lower Court and therefore that the Appellant’s Claim was undefended in the circumstance.
The learned Counsel for the Respondent submitted that assuming the Statement of Defence is flawed and ought not to be relied upon by the trial Court, that the Appellants have not shown how that resulted to any injustice.
He relied of the following cases:-
– M. M. Ali Co. Ltd V. Goni (2006) 10 NWLR Part 987 at Page 88;
– Unity Bank Plc. V. Bouari (2008) 7 NWLR Part 1086 Page 372 at 409.
He went further in his submission that even if the Respondents filed no Defence to the Suit, the Appellants must strictly prove their case to be entitled to their claims therein.
He relied on the following cases:-
– National Assembly V. The President (2003) 9 NWLR Part 824 Page 132:
– Okoli V. Udeh (2008) 10 NWLR Part 1095 Page 213 at 264.
In the instant case, the Record of Appeal showed that on pages 53A-53C the learned Counsel for the Respondent filed a Statement of Defence which has a signature without the name of the signatory and now put the address of service as – Legal Unit Abuja Metropolitan Management Agency. A signature without the name of the signatory has no meaning in law under this circumstance. And it is not the same as the name of a Registered Legal Practitioner.
It is my view that the said statement of Defence was not issued by a Legal Practitioner known to law.
Consequent upon the foregoing it is my view that the said statement of Defence is incompetent and it is hereby struck out.
See:-
– Okoli V. Udeh (Supra):
– Okafor v. Nweke (2007) 10 NWLR part 1043 page 521 at 532 Paragraphs B-C.
Where a Defendant fails to file a defence or when the statement of Defence has been struck out as in this case, the Defendant will be deemed to have admitted the claim or relief in the statement of claim. And under that situation the Plaintiff/Appellant’s Claim would become an undefended Claim. But it is not in all cases where a Defendant does not defend an action that the Plaintiff will be entitled to Judgment. It depends on the peculiar facts of the case. In a situation where the Plaintiff relies heavily on documents and he fails to tender them in court, he will not be entitled to Judgment.
In Okoli V. Udeh (Supra) it was held by this Court that:-
“A person who seeks for a declaration has the burden to prove all relevant facts by presenting cogent materials to establish his entitlement of the declaration. He must succeed on the strength of his own case and not the weakness of the defence.”
It is on record that the Plaintiffs/Appellants claimed among others at the lower Court the sum of (N50,000,000.00) Fifty Million Naira exemplary, special and general damages for the tort of trespass and destruction of Plaintiffs’ property.
A Court should not enter summary or default Judgment on a claim for unliquidated damages without taking evidence for the assessment of the amount of damages that may be proved as such claim must be established by credible evidence.
My view above is fortified by the decision of the Supreme Court in the case of:-
– Oke V. Aiyedun (1986) 2 NWLR Part 23 Page 548 where it was held among others that:-
“It is a principle of pleading that that which is not denied is deemed to have been admitted and if a Plaintiff filed a Statement of Claim and the Defendant failed or refused to file a Statement of Defence in answer thereto, he clearly, will be deemed to have admitted the Statement of Claim, leaving the trial Court with the authority to peremptorily enter Judgment for the Plaintiff without hearing evidence. An exception for that would obviously be in respect of a claim for damages, for damages are always said to be in issue requiring the Plaintiff to prove them.” (Underlining mine).
In the instant case, the leaned trial Judge heard evidence before he arrived at his Judgment.
As I have stated earlier, the claim of the Plaintiffs/Appellants was among others for N50 Million exemplary, special and general damages.
The law on the award of special damages is that the onus is on the Plaintiff to prove special damages strictly. In order to discharge this burden the Plaintiff must show by credible evidence that he is indeed entitled to the award of special damages. That is, the evidence adduced by the Plaintiff must show the same particulars as is necessary in its pleadings. See:-
– Imana V. Robinson (1979) 3 – 4 S.C. Page 1:
– Umana V. Okwuraiwe (1978) 6 – 7 S. C. Page 1:
– Olurotimi V. Felicia Ige (1993) 8 NWLR Part 311 Page 257 at 266.
In view of the foregoing, this issue No. 3 is partially resolved in favour of the Appellants.
ISSUE NO.4
Whether the award of N1, 000,000.00 (One Million Naira) as exemplary, special and general damages is adequate compensation for the tort of trespass and demolition of the Plaintiffs’/Appellants’ property.
The learned Counsel referred to Exemplary damages which he stated is awarded in law where the conduct of the Defendant is outrageous to merit punishment.
He relied on the cases of:-
– Eliochin Nig. Ltd V. Mbadiwe (1986) 1 NWLR Part 14 page 47 at 65;
– Onagoruwa V. I.G.P. (1991) 5 NWLR Part 193 Page 593.
He also stated that an Exemplary damages is also awarded against the oppressive, arbitrary and unconstitutional action by servants of Government.
He relied on the case of:-
– Odiba V. Azege (1998) 9 NWLR Part 566 Page 370.
Special damage according to him is the precise or exact damages incurred by the Applicant and same must be strictly proved. He relied on the case of:-
– S.P.D.C. Nig. Ltd V. Tiebo VII (2005) 9 NWLR Part 931 Page 439.
General Damages granted by the lower Court according to learned Counsel is the damages the law will presume to have resulted or flowed from the Defendants’ tortuous conduct under consideration. He relied on the case of: – S.P.D.C. Nig. Ltd V. Tiebo VII (Supra).
The learned Counsel posed a question that from the evidence led by the Plaintiffs/Appellants and finding of fact by the trial Court, is an award of N1 Million Naira adequate and complementary to the Plaintiffs/Appellants loss?
He stated that the answer is No.
He relied on the following cases:-
– Prof. Sagay (1995) 5 NWLR Part 396 Page 441:
– Odiba V. Azege (Supra).
Learned Counsel stated that the acts and conduct which the Supreme Court adjudged to be oppressive, reckless vindictive and high handed was what the Respondents displayed or meted out to the Appellant because they are servants of government.
On the issue of special damages, learned Counsel stated that both from the findings of fact of the trial Court and the evidence placed before the Court an award of N1 Million Naira only was insensitive.
He submitted that what constitutes special damage is not only the cost of the built-up fence and the 5 rooms boys quarters but also the cost of office and building materials destroyed in the demolition.
On this issue of special damages, he stated that it is difficult to produce receipts for bags of cement, water, labour, time, transport, consultancy etc used in the construction or building of the Appellants’ property.
He relied on the case of:-
– Usman V. Abubakar (2002) 12 NWLR Part 728 Page 685.
He submitted that the Appellants are entitled to N50, 000,000.00 (Fifty Million Naira, Exemplary Special and general damages for the tort of trespass and unlawful destruction of Appellants’ property.
The learned Counsel for the Respondent in his submission stated that the Appellants claimed for exemplary, special and general damages together under one head not minding that each arm of damages requires proof different from the other.
He submitted that the quantum of damages to be awarded by a trial Judge depends on the Courts evaluation of the evidence led in support of the claim by the Plaintiff. He relied on the cases of:-
– Unity Bank V. Bouari (Supra):
– S.P.D.G. Nig. V. Okonedo (2008) 9 NWLR Part 1091 page 85 at 125.
He went further in his submission that the trial Judge’s award of (One Million Naira) N1000,000.00 damages under a consolidated head as was done in the Appellants’ claim cannot in the circumstance of this case be said to be too high or that the Judge acted on a wrong principle of law.
It was also contended on behalf of the Respondents that an Appellate court will not set aside the decision of a trial court simply because the trial Court failed to make a pronouncement on a specific issue.
He finally urged this Court to affirm the Judgment of the lower Court and dismiss the appeal.
In a Claim for Exemplary damages the party to the suit must show or establish by evidence that the injury or loss he suffered was due to the malicious act of the party against whom he is claiming the exemplary damages. The conduct of the Defendant must be high handed, insolvent, vindictive or malicious showing contempt of the Plaintiff’s right or disregard of every principle which actuated the conduct of a gentleman.
In this case under consideration, the evidence led by the Appellants did not show malice as to entitle them to the award of Exemplary damages. The witness statement of PW1 Femi Sonuga which he adopted and his testimony along with that of PW2 one Abdulrahman cannot qualify the Appellants for the award of Exemplary damages.
Concerning the issue of special damage, it is my view that every item contained in the Claim of Special damage must be specifically proved and such a proof must be characterized by testimony that ties each item with the proof proffered i.e. the evidence led.
See the following cases:-
– A.G. Leventis (Nig) Plc V. Akpu (2002) NWLR Part 747 Page 182;
– Blackwood Hodge Nig. Ltd V. Omum Const. Co. (2002) 12 NWLR Part 782 Page 523;
In the instant case, the Appellants were unable to produce the receipts of bags of cement, gallons of water used, labour, transportation, consultancy services etc used in the construction of the Appellants’ property.
(See Page 73 of the Record of Appeal).
The learned Counsel for the Appellants contended that the Appellants are entitled to N50, 000,000.00 (Fifty Million Naira) Exemplary Special and general damages for the tort of trespass and unlawful destruction of the Appellants’ property.
It must be noted that the Appellants made claim for damages under consolidated head and they have failed to prove Exemplary and Special Damages. We are left with General Damages which is usually awarded to assuage loss suffered by a Plaintiff from the acts of a Defendant, and it is a matter of inference based on the trial Court’s discretion.
See the following cases:-
– U.B.N V. Odusote Bookstore Ltd (1995) 9 NWLR Part 421 Page 558;
– Obere V. Board of Management, Eku Baptist Hospital (1978) 6 – 7 S. C. Page 15.
In this case under consideration the lower Court came to the conclusion that an award of One Million Naira (N1,000,000.00) Damages is adequate compensation for the tort of trespass and demolition of the Plaintiffs/Appellants’ property.
The learned Counsel for the Appellants contended that the award of One Million Naira (N1, 000,000.00) damages to the Appellants is inadequate, and he asked for the upward review of the amount. He is claiming Fifty Million Naira (N50, 000,000.00). The learned Counsel for the Respondents contended that One Million Naira damages awarded is adequate.
An Appellate Court will not interfere with an award of general damages by a trial Court unless:-
(a) where the trial Court acted under a mistake at law; or
(b) where the trial Court acted in disregard of principles; or
(c) where the trial Court took into account irrelevant matters or failed to take into account relevant matters: or
(d) where the trial Court acted under a misapprehension of facts; or
(e) where injustice would result if the Appellate Court does not interfere; or
(f) where the amount awarded is either ridiculously low or ridiculously high that it must have been erroneous estimate of the damage.
See the case of:-
– Dumez (Nig) Ltd V. Ogboli (1972) 3 S.C. Page 196.
In the instant case, there is evidence on record that the Defendants/Respondents destroyed in the demolition the following:-
– Built up fence.
– 5 rooms boys quarters.
– Office and building materials.
In my humble view, since general damages is awarded to assuage the loss suffered by a Plaintiff from the acts of a Defendant, the award of One Million Naira (N1,000,000.00) is too low and it would be an injustice to the Appellants if this Court as an Appellate Court does not interfere.
In the circumstance, this Court would intervene in the award of One Million Naira (N1, 000,000.00) damages which is accordingly set aside. In its place the Plaintiff is hereby awarded the sum of Seven Million, Five Hundred Thousand Naira (N7, 500,000.00) as general damages for the tort of trespass and demolition of their property by the Defendants/Respondents.
This issue No. 4 is resolved in favour of the Appellants.
In the final analysis, with the resolution of two out of the four issues submitted for determination by the Appellants in their favour, this appeal therefore succeeded in part.
There shall be no order as to costs.
MOHAMMED LAWAL GARBA, J.C.A: I have read the draft of the lead judgment delivered by my learned brother BADA, JCA and I agree with the views expressed on the issues that require determination in the appeal. Just for emphasis and support, I wish to state that since the Appellant had lumped the claims for special, exemplary and general damages under one head of claim, before he would be entitled to succeed on such merged claims, hook, line and sinker, he had to adduce evidence that would enable the Court to quantify the amount of special damages and one that would show the facts and circumstances that would justify the claim for exemplary damages.
The law is now common knowledge that claims for special damages must be specifically pleaded and proved by a claimant before he can succeed on them because they are assumed to be facts which are within his private knowledge. Such claims cannot be granted merely because the defendant against whom they were made did not file a defence. See: A.G. OYO STATE v. FAIRLAKES HOTEL (NO. 2) (1989) 5 NWLR (121) 255;
EHOLOR v. IDAHOSA (1992) 2 NWLR (223) 323;
AGUNWA v. ONWUKWE (1962) 2 SCLR 275;
LION OF AFRICA INSURANCE v. FISAYO (1986) 4 NWLR (37) 674;
IMANA v. ROBINSON (1979) 3-4 SC 1.
This position is clearly an exception to the general position of the law that what is admitted required no further proof as demonstrated in the case of OKE v. AIYEDUN (1986) 2 NWLR (23) 548 cited in the lead judgment.I am further strengthened in this view by the provisions of Section 26 of the Evidence Act which say that admissions are not conclusive proof of the matters admitted.
The provisions are in the following words:-
“26. Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions of Part VIII of this Act”
The above provisions were interpreted and applied by this Court in the case of NIGER PAPER MILL v. PITHAWALLA ENG. LTD. (1989) 1 NWLR (99) 622 at 632 where it was held as follows:-
“Admissions are not conclusive proof of the matters admitted; they may however operate as estoppels under Section 26 of the Evidence Act”
In this appeal, I have noted the peculiar circumstances and the fact that the Respondent did not expressly or by any compelling implication, admit the claim for exemplary and special damages in particular made by the Appellants in the High Court.
The Respondents had filed a statement of defence which by arcane and rancid operation of the principle of law, determined to be incompetent and therefore deemed not to be in existence in the case. However the duty for the Appellants to succeed on the claim for special damages against the Respondent was not taken away or even lessened by the absence of a defence thereto because the facts and evidence of the special damages allegedly suffered by them are matters within their private knowledge which the law does not or better still, cannot presume.
In addition, the Appellants had also asked or sought for declarations and injunctions in their action which by the established position of the law, cannot and ought not be granted on mere absence of a defence from the Respondents which was deemed to be an admission on their part. Judicial authorities are legion on the law that declaratory reliefs are not granted on mere admission even in pleadings, but a claimant has the duty to satisfy the Court that he is in law entitled to such declarations. In the case of KWAJAFFA v. BON (1999) 1 NWLR (586) 423 at 434, it was held thus:-
“The Court does not grant a declaration of right either in default of defence or on admission without hearing evidence and being satisfied by such evidence.”
See also OGUNJUMO v. ADEMOLA (1995) 4 NWLR (389) 254 at 265 and OGBONNA v. A.G. IMO STATE (1992) 1 NWLR 647 at 698.
All that I have been struggling to show or demonstrate is that cases where special damages and declarations were claimed by the Plaintiff/s against the Defendant/s are exceptions to the application of the general position of the law that what is admitted requires no further proof. Such claims cannot be granted on mere absence of a defence, supposed or presumed admission by the Defendants.
In the present appeal, the Appellants did not provide the requisite evidence which the Lower Court could have evaluated and satisfied itself as to the exact or specific amount of damages they suffered as a result of the alleged wrong of the Respondents. It would have amounted to a conjuncture for the Lower Court to have awarded any particular sum to the Appellants as special damages suffered by them in the absence of evidence from them of the exact amount of such damages.
The Appellants have adduced sufficient evidence, though in proof of the claims for declarations which would warrant the grant of such claims and as a result, the general damages which the law presumes to flow from the acts of the Respondent found by the Lower Court to be wrongful.
The Lower Court awarded the sum of One Million Naira (N1, 000,000) to the Appellants being exemplary, special and general damages for the tortuous acts of trespass and destruction of the Appellant’s properly. I am however unable to find from the record of appeal, the judgment in particular, how the assessment of the damages was done by the Lower Court before it eventually awarded that sum.
Because I have earlier found that there is no specific evidence to prove the claim for special damages and so no basis for the grant or award of same in the circumstances, only exemplary and general damages remained to be assessed on the evidence placed before the Lower Court.
Exemplary damages are damages on an increased scale over general damages that will barely compensate a Plaintiff for the loss that he suffered where the wrong done to him was aggravated by circumstances of acts such as violence, oppression, malice, fraud or wanton or wicked conduct of the Defendant. Exemplary damages are such that they are usually awarded whenever the Defendant’s conduct in the wrongful act committed against the Plaintiff, is sufficiently outrageous to merit punishment, such as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law etc. In this con therefore, before exemplary damages can properly be awarded by a trial Court, there must be evidence in proof of the facts and circumstances which on the balance of probabilities, satisfy it that there is prima facie justification for such an award.
In other words, the claim for exemplary damages must be pleaded and proved before it can be awarded. In the case of ODOGU v. A.G. FEDERATION (1996) 6 NWLR (456) 508 at 519-20. the Supreme Court had held thus:-
“Before aggravated and exemplary damages can be awarded, it must be specifically claimed and proved”
See also ELIOCHIN v. MBADIWE (1986) 1 NWLR (14) 47 cited in that decision and ONAGORUWA v. I.G.P. (1991) 5 NWLR (193) at 647.
The principles guiding the award of exemplary damages are that they should be awarded when there is proof that:-
(i) the acts of the Defendant was oppressive, arbitrary and willful disregard of the law,
(ii) the Defendant’s conduct had been calculated by him to make a profit or benefit himself which might exceed the compensation payable to the Plaintiff, and
(iii) the award would serve to assuage or as solace to the Plaintiff for the aggravated wrong done to him. See:
EZEANI v. EJIDIKE (1964) 1 ALL NLR, 402
ONAGORUWA v. I.G.P. (1991) 5 NWLR (193) 647 (supra);
FBN PLC. V. IBENNAH (1996) 5 NWLR (451) 725 at 742-3.
For the foregoing reasons, exemplary damages fall within the class of special damages that calls for specific pleading and proof by evidence before they can be granted or awarded. In the premise, they also fall within the exception to the general principle of law that what is admitted needs no further proof as explained earlier in this contribution.
I am in agreement with the lead judgment that the Appellant did not adduce evidence before the Lower Court which would have supported the award of exemplary damages which cannot properly be awarded on ground of absence of a defence from the Respondents.
Whether or not there was a defence, the Appellant was to succeed on the strength of the case he made out at the trial and not on the presumed admission by the Respondents.
General damages are those damages which the law presumes or implies in every breach and every violation of a legal right. They are the loss/es which flow naturally from the Defendants wrongful acts and the quantum needs not be pleaded or proved by the Plaintiff as they are generally presumed by law. The manner in which general damages are quantified is by relying on what would be the opinion and judgment of a reasonable man in the peculiar facts and circumstances of each case.
See: ODUMOSU v. ACB (1976) 11 SC 55;
LAR v. STIRLING ASSTADI LTD. (1977) 11-12 SC. 53;
OSUJI V. ISIOCHA (1989) 3 NWLR (111) 623,
ACME BUILDERS v. KADUNA STATE WATER BOARD (1999) 2 NWLR (590) 288 at 305.
The attitude of the appellate Courts has been that they do not make a practice of interring with the award of damages by trial Courts simply because they would award different amount if they had tried the case.
Before an appellate Court would be justified in interfering with such an award, it must be satisfied:-
(a) that the trial Court applied wrong principles of law such as taking into account some irrelevant factors or leaving relevant factors;
(b) that the amount awarded was manifestly unwarranted for being unreasonably excessive or ridiculously low in comparison with the loss that would reasonably flow from the wrongful acts complained of, In any of the above situations, an appellate Court would not allow the award by the trial Court to stand.
See: UWA PRINTERS V. INVESTMENT TRUST LTD.
(1988) 5 NWLR (92) 160 at 171-2:
OKONGWU v. NNPC (1989) 4 NWLR (15) 296:
ACME BUILDERS v. KADUNA STATE WATER BOARD (supra):
NIKO ENG. V. AKINSINA (2005) ALL FWLR (284) 292.
From the record of the appeal before us, I cannot decipher clearly, the principles of law used by the Lower Court to assess the quantum of the award of One Million Naira to the Appellants as damages. Because as I have said before now, there was no evidence for the award of exemplary and special damages as claimed by the Appellants, I would assume that the award was for general damages resulting from the declarations made by that Court that the acts of Respondents amounted to trespass on the Appellants’ property. From the evidence given of the facts constituting the acts of unlawful trespass by the Respondents, the assessment of general damages arising therefrom at N1, 000,000 is unreasonably and ridiculously low such that it is an erroneous award which should not be allowed to stand in line with the authorities cited supra on the point. I accordingly join the lead judgment in setting the said award of N1, 000,000 by the Lower Court aside and adopt the sum awarded in the lead judgment for the acts of unlawful trespass on the Appellants’ property by the Respondents.
In the final result, for the above and the more detailed reasons in the lead judgment which I adopt, I allow the appeal in part as contained in the lead judgment. I also order that the parties are to bear their respective costs of the appeal.
PAUL ADAMU GALINJE, J.C.A: I have had the privilege of reading the judgment just delivered by my learned brother, Bada, JCA and I agree with the reasoning and conclusion arrived thereat.
The appeal is allowed in part by me.
Appearances
N. A. OBINNAFor Appellant
AND
P. I. OFFOR (Miss) with her is UJU DESHI (Miss)For Respondent
