HAJIYA SADIYA SHITTU ADAMU v. LEEDO PRESIDENTIAL MOTEL LTD & ANOR (2015)

HAJIYA SADIYA SHITTU ADAMU v. LEEDO PRESIDENTIAL MOTEL LTD & ANOR

(2015)LCN/7899(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of June, 2015

CA/K/171/2007

RATIO

PRACTICE AND PROCEDURE: INTERPRETATION OF DOCUMENT; WHETHER THE COURT MUST GIVE THE OPERATIVE WORDS IN A DOCUMENT THEIR SIMPLE, ORDINARY AND ACTUAL GRAMMATICAL MEANING WHERE THE LANGUAGE USED BY PARTIES IN COUNCHING THE TERM OF A DOCUMENT ARE CLEAR AND UNAMBIGUOUS

It is a settled principle of interpretation of documents that where the language used by parties in couching the terms or provisions of a document are clear and unambiguous, the Court must give the operative words in the document their simple, ordinary and actual grammatical meaning – Union Bank of Nigeria Plc v. Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd v. Jackson (2005) 11 NWLR (Pt 937) 631, Egwunewu v. Egeagwu (2007) 6 NWLR (Pt 1031) 431. It is not the duty of the Court and neither is it right for a party to ascribe meaning to the clear, plain and unambiguous provisions of a statute or contents of a document in order to give them a slant which accords with a perceived view – Izedonmwen v. Union Bank of Nigeria Plc (2012) 6 NWLR (Pt 1295)1 A read through the writ of summons shows clearly that it was properly issued by the Registrar of High Court of Kano State and that it was duly signed and the name of the legal practitioner who took out the writ of summons was clearly stated thereon as Kayode Olatunji Esq of Kayode Olatunji & Co. The complaint of the Counsel to the Appellant, in the instant case, was not that the writ of summons was not signed and/or that the person who took out the writ of summons was not a legal practitioner duly registered to practice law in Nigeria. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUDICIAL SYSTEM: THE DUTIES OF A GOOD ADVOCATE

One of the hallmarks of good advocacy is that a Counsel must maintain consistency on legal issues in the presentation of his cases. A good advocate must stand for and be known for something and not be an “all weather” person. The Courts have constantly condemned such shifty attitude on the part of a Counsel as a pollutant of the pure streams of justice – Pacers Multi-Dynamics Ltd Vs The M.V. Dancing Sisters (2012) 1 SCNJ 1, Lawal Vs Zago (2014) LPELR-CA/A/378/2009.
Such an attitude smacks of desperation and it seeks to turn litigation into a “win at all cost” engagement. It portends a grave danger to the trustworthiness and confidence that members of public are enjoined to repose in the “learned members of the Bar” when seeking legal guidance from them. This Court in the judgment it delivered in Khalid v. Al-Nassim Travel & Tours Ltd & Anor (2014) LPELR-22331 (CA) reminded Counsel of their duties to the administration of justice system in the following words: “Lawyers as operators of the administration of justice system owe a duty, to the society that nurtured them and made them what they are, to ensure that they conduct their activities in a manner that edifies and brings honor, respect and belief to the justice system. They should not allow themselves to be used by litigants to bring the justice system into disrepute. It is pertinent that this Court reminds Counsel of the eternal words of a great jurist J Wesley McWilliams who writing in an American Bar Association Journal in January 1955 (41 ABA 18) wrote in an article he titled “The Law as a Dynamic Profession” thus:
‘We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbors whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with our fellow Lawyers with whom we have cemented warm friendships and enjoyed happy companionships. For these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly satisfying repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the welfare of the profession.'”
In Williams v. Akintunde (1995) 3 NWLR (Pt 381) 101 at 115 B-C, Pats- Acholonu, JCA (as he then was) added thus:
‘We all agree that the Attorney whose professional thoughts begin and end with his own private client is a pitiable mockery of what a great Lawyer really is and that only by taking part in the movements for the betterment of the Law of the profession can he practice Law in the grand manner, the only way it is worth Practicing.'” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

TORT: TORT OF TRESPASS; WHETHER THE ENTRY OF A PERSON INTO POSSESSION OF A PROPERTY UNDER A TRANSACTION WHICH HAS BEEN DECLARED VOID OR FOUND TO BE VOID AB INITIO IS VOID AB INITO AND AMOUNT TO TRESPASS

It settled law that where a person enters into possession of a property under a transaction which has been declared void or found to be void ab initio, the entry itself is void ab initio and its lawful character loses its lawfulness and acquires an illegal character or unlawful character from the very moment entry was made and the person automatically becomes a trespasser ab initio and he is liable in trespass Solomon v. Mogaji (1982) 11 SC 1, Ojoh v. Kamalu (2005) 18 NWLR (Pt 958) 523. This point was elaborated on by Oguntade, JCA (as he then was) in Ojomo v. Ibrahim (1999) 12 NWLR (Pt 631) 475 at page 423 F-H thus:
“In this case, it was common ground that the properties at 42/44 Doherty Street, Lagos belonged to the estate of late M.E. Ojomo. Three persons were the personal representatives of the said estate. The defendant needed the concurrence of the three to be able to enter the premises. But he had the authority of only two. The authority of those two was as good as nothing. It is therefore correct to say that the defendant had no valid authority to enter to demolish the premises. The defendant contended that the premises were vacant at the time. There was no evidence that the plaintiffs were physically in possession. But as successors to the personal representatives to the estate, the plaintiffs would be deemed to be in possession. These were buildings owned by the deceased. The plaintiffs had constructive possession. As the only authority relied upon by the defendant to support his entry was Exhibit D11 which has turned out to be useless, the defendant ought to have been found liable in trespass.” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

TORT: TORT OF TRESPASS; WHAT IS TRESPASS

Now, trespass is a violation of possessory rights; trespass to land is interference with exclusive possession. The slightest disturbance to the possession of land by a person who cannot show a better right to possession constitutes trespass in law –Eze v. Obiefuna (1995) 6 NWLR (Pt 404) 639, Omoyinmi v. Olaniyan (2000) 4 NWLR (Pt 651) 38, Fagunwa v. Adibi (2004) 17 NWLR (Pt 903) 544, Echere v. Ezirike (2006) 12 NWLR (Pt 994) 386, Ogbeide v. Osifo (2007) 3 NWLR (Pt.1022) 423, Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt 1159) 445. It is defined as an unauthorized and direct breach of the boundaries of another’s land. No intent to commit trespass is required so long as the act resulting in the trespass is violational and the resulting trespass is direct and immediate. It does not depend on the intention of trespasser, nor can he plead ignorance as to the true owner or that he thought the land belonged to him. It is enough that the right of the owner or person in exclusive possession was invaded Dantsoho v. Mohammed (2003) 6 NWLR (Pt 817) 457, Fagunwa v. Adibi (2004) 17 NWLR (Pt 903) 544, Yusuff v. Keinsi (2005) 13 NWLR (Pt 943) 554. By the law of Nigeria, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot on the ground of another without being liable to an action in trespass England v. Palmer (1955) 14 WACA 659, Amata v. Omofuma (1997) 2 NWLR (Pt 485) 93, Ajibulu v. Ajayi (2004) 11 NWLR (Pt 885) 458. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

PRACTICE AND PROCEDURE: THIRD PARTY NOTICE; WHEN IS A THIRD PARTY NOTICE SERVED

By law, a third party notice is served where a defendant claims against a party not already a party to the action that he is entitled to contribution or indemnity; or that he is entitled to any relief or remedy relating to, or connected with the original subject matter of the action and substantially the same as one relief or remedy claimed by the plaintiff; or that any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and defendant but as between the plaintiff and the defendant and the third party or between any or either of them – Peter Tiwell (Nig) Ltd v. Inland Bank (Nig) Ltd (1997) 3 NWLR (Pt 494) 408, Labode v. Otubu (2001) 7 NWLR (Pt.712) 256. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RIGHT OF INDEMNITY: CIRCUMSTANCES WHERE A RIGHT OF INDEMNITY MAY ARISE

It is trite that a right of indemnity may arise (i) from express contract; (ii) from some statute; or (iii) it may be implied from some principles of law. A right of indemnity is an incident of certain legal relationships. Such common legal relationships are in the area of agency of master/servant relationships, where an act is done by one person at the request of another and in consequence of such act the person doing it suffers loss. In fact an indemnity contract arises where the indemnifier promises to meet any legal liability which the indemnified is held to be under – Igbokwe v. Kehinde (2008) 2 NWLR (Pt 1072) 441, Oyebanji v. Fowowe (2008) All FWLR (Pt 410) 786. Rights of indemnity may also spring up from the principles of equity, for example where the obligation arises from the relationship between the parties, as between a trustee and cestui que trust or between co-trustees – Attorney General of Lagos State Vs Purification Techniques (Nig) Ltd (2003) 16 NWLR (Pt 845)1. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

ACTION: PLEADINGS: WHAT ARE PLEADINGS

Now, it is settled law that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo v. Molokwu (2014) 6 NWLR (Pt.1403) 377 at 418A-C, Corporate Ideal Insurance Ltd v. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt.1405) 165 at 188 A-B, Anyafulu v. Meka (2014) 7 NWLR (Pt 1406) 396 at 424G. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

DAMAGES: DOUBLE COMPENSATION; WHEN IS DOUBLE COMPENSATION SAID TO ARISE

Double compensation is said to arise where a, party receives compensation twice on one item of damage or on a single species of damages. In other words, where a party has been fully compensated under one head of injury for a particular injury, he cannot be awarded in respect of the same injury under another head – Artra Industries Nigeria Ltd v. The Nigerian Bank for Commerce and Industries (1998) 4 NWLR (Pt 546) 357, Tsokwa Motors (Nig) Ltd Vs United Bank for Africa Plc (2008) All FWLR (pt 403) 1240. The duty of proving double compensation is on the party alleging it and this he must be able to do by the evidence already adduced in the Court “K” Line Inc Vs K.R. International (Nig) Ltd (1993) 5 NWLR (Pt 292).
Where a party is awarded damages twice under two different heads for two distinct and proven injuries, it does not amount to double compensation and this is particularly more so in a case of trespass – Ezeani v. Ejidike (1964) All NLR 402, Eliochin (Nig) Ltd v. Mbadiwe (1986) 1 NWLR (Pt 14) 47, Universal Trust Bank (Nig) Ltd v. Aiagbule (2006) 2 NWLR (Pt 965) 447, Shell Petroleum Development Corp v. Okonedo (2007) All FWLR (Pt 368) 1104. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES:

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

HAJIYA SADBA SHITTU ADAMU (REPRESENTING THE ESTATE OF THE DECEASED ALHAJI SHITTU ADAMU) – Appellant(s)

AND

LEEDO PRESIDENTIAL MOTEL LTD

UNITY BANK PLC- THIRD PARTY – Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kano State High Court in Suit No K/450/1998 delivered by Honorable Justice P. A. Mahmoud on the 3th of March, 2004. This case is an off-shoot of another case with a chequered history. The Respondent was the owner of premises consisting of land and buildings situate at Plot 472, Hassan Katsina Street, Hotoro GRA, Kano. The Respondent borrowed money from the Third Party and it created an equitable mortgage over the said land and buildings in favour of the Third Party as security for the loan. The Respondent defaulted in repaying the loan and whereupon the Third Party commenced an action and obtained Judgment for the indebtedness against the Respondent. The Third Party thereafter filed a motion ex parte in the High Court of Kano State for the attachment and sale of the immovable property of the Respondent, i.e. the said land and buildings, in satisfaction of the judgment debt and the motion was granted by the Court.

Thereafter the land and buildings were attached by the Deputy Sheriff of the High Court of Kano State and sequel to a

Public Auction Notice issued by the said Deputy Sheriff, the land and buildings were sold at a public auction to the Appellant and a purchase receipt and Deed of Assignment were issued in favour of the Appellant.
Pursuant to the sale, the Appellant took out a motion ex parte before the High Court of Kano State praying for an order of possession of the land and buildings and the order was granted by the Court. In execution of the order, the Appellant, in the company of the bailiffs of the High Court of Kano State, ejected the Respondent from the land and buildings on the 6th of December, 1991 and the Appellant took over possession of the properties.

The Respondent appealed to the Court of Appeal against the order of attachment and sale of its land and buildings obtained on the basis of a motion ex parte and also against the order of possession also obtained on the basis of a motion ex parte and the Court of Appeal dismissed the appeal. On a further appeal, the Supreme Court upheld the contention of the Respondent and allowed the appeal. The Supreme Court declared the order of attachment and sale of the land buildings of the Respondent as null and void

and it also declared the order of possession made in favour of the Appellant by the High Court of Kano State a nullity and it ordered the immediate restoration of the Respondent into the said land and buildings. The Appellant vacated the land and buildings and the Respondent re-took possession of his property sometime in 1998.

???The Respondent then commenced the present action in the lower Court against the Appellant and its claims by an amended statement of claim were for the sum of N153 Million as mesne profits/damages for use and occupation of the its property consisting of land and buildings situate at Plot 472, Hassan Katsina Street, Hotoro GRA, Kano from 5th of December, 1991, till date as well as the sum of N5 Million as general damages for trespass committed on the property by the Appellant and for illegal ejection. The Respondent pleaded the particulars of the mesne profits and it also claimed for interest on the sums from the date of judgment until liquidation at the rate of 10% per annum. The case of the Respondent before the lower Court was that the action of the Appellant in ejecting him from the property amounted to a trespass and that the

possession of the property by the Appellant was improper and that it was denied the possession, use and enjoyment of the property from the 5th of December, 1991 until date and was thus entitled to be paid mesne profit/damages for use and occupation.
???
The Appellant filed an amended statement of defence and it also, with the leave of the lower Court, issued an amended third party notice against the Third Party. The Appellant narrated how he came to purchase the property in question at a public auction conducted by the Deputy Sheriff of the High Court of Kano State at the instance of the Third Party and was issued the necessary sale documents of the property by the Third Party and was advised by the Solicitor to the Third Party that he would require a Court order to obtain vacant possession of the property and that he went into the transaction not knowing that Third Party obtained the order of attachment and sale of the property by means of irregular proceedings. The Appellant stated that he was an innocent purchaser for value without notice and that he was given possession of the property by the Deputy Sheriff of the Kano State High Court in the execution of

the judgment of the Court of Appeal confirming the order of attachment and sale and order of possession made by the High Court of Kano State and he denied trespassing or taking forceful possession of the property.

The Appellant sought to be indemnified by the Third Party and his claims against the Third Party on the Third Putty notice were for:
i. A declaration that in all the circumstances of this case he is entitled to be indemnified by the Third Party to the extent of any sum or sums of money for which he is adjudged liable as rents due to the Respondent from the Appellant for the use and occupation of the premises known as No 472 Hassan Usman Katsina Road, Hotoro GRA and any award of cost thereof.
ii. Judgment for any amount that may be found due from the Appellant to the Respondent by this Honorable Court as rents, mesne profits or damages in respect of the premises.
iii. Judgment for the amount of any costs or award he may be adjudged to pay to the Appellant and for the amount of his own costs for defending this action and of the proceedings against the Third Party.

The Third Party contested the claims of the Appellant against

it saying that the Appellant knew and was aware before the sale of the property by auction that the leave granted for the attachment and sale of the property was obtained by a motion ex parte and that the Appellant believed and agreed the that grant of the order of attachment and sale by a motion ex parte was proper as this was the argument canvassed by the Counsel to the Appellant at the Court of Appeal and at the Supreme Court. It was its case that the Appellant was aware that his purchase of the property was being challenged by the Respondent at the Court of Appeal and at the Supreme Court when he illegally forced himself into possession of the property through the use of an order of possession obtained by a motion ex parte and ejected the Respondent there from and that it was this illegal possession that led to the present suit.

???The matter went to trial and at the conclusion of which the lower Court entered judgment in favour of the Respondent against the Appellant and awarded the sum of N1,137,500.00 as mesne profits for the use and occupation of the property and the sum of N15 Million as general damages for trespass and illegal ejection. The lower Court

dismissed the claims of the Appellant against the Third Party. The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal dated the 31st of May, 2004 and containing nine grounds of appeal against it. The Appellant subsequently amended his notice of appeal with the leave of this Court and his Counsel filed an amended notice of appeal dated the 4th of December, 2014 and it contained thirteen grounds of appeal.
???
In ventilating the grievances of the Appellant on this appeal, his Counsel filed a further amended brief of arguments dated the 27th of February, 2015 and it was deemed properly filed on the 24th of March, 2015. Counsel to the Respondent filed a brief of arguments dated the 19s of January, 2014 on the 28th of January, 2015. The brief of arguments of the Third Party is dated the 12th of December, 2014 and was filed same day. The Appellant filed a reply brief to the briefs of arguments of the Respondent and of the Third Party and it was dated and filed on the 27th of February, 2015. At the hearing of the appeal, Counsel to the parties adopted the arguments in their respective briefs of arguments as their oral

submissions in the appeal.

Counsel to the Appellant formulated four issues for determination in this appeal and these were:
i. Whether the trial Court was right in granting the claims of the Respondent against the Appellant and dismissing the Third Party action.
ii. Whether the claims did not abate upon the death of Alhaji Shittu Adamu, the predecessor in tide of the Appellant.
iii. Whether the originating process initiating the suit in the lower Court, and leading to this appeal, was competent.
iv. Whether the trial Judge’s award of both mesne profits and general damages against the Appellant did not amount to double compensation.

Counsel to the Respondent adopted the four issues for determination as formulated by Counsel to the Appellant. Counsel to the Third Party adopted only the first issue as concerning it in this appeal. The four issues for determination formulated by the Counsel to the Appellant adequately cover the matters arising in this appeal and they shall form the basis for the resolution of the appeal. This Court will resolve the issues separately, but it will start with the third issue formulated for determination

and then proceed to the first issue formulated for determination, before coming to the fourth issue formulated for determination and then concluding with the second issue formulated for determination.

On the third issue for determination, whether the originating process by which the action in the lower Court was commenced was competent, Counsel to the Appellant stated that there was a difference between issuance of a writ of summons and signing of a writ of summons and that issuance of a writ is not done by a claimant or his Counsel, but by the Court, after payment of filing fees and that a writ is issued when it is signed by the Registrar or other authorized officer of Court and he referred to the case of Idris v. Archibong (2001) 9 NWLR (Pt 718) 447, amongst others. Counsel stated that to sign a document is to identify it and that the act of putting one’s name at the end of an instrument attests to it validity and that the name defines the signature and he referred to the case of Mohammed Vs Martins Electronics Co. Ltd (2009) LPELR-3708(CA) amongst others. Counsel stated that the purpose of affixing a name to a signature on a writ of summons is to

prevent the presentation of writ by an anonymous or unauthorized person and to ensure that the person who signed the writ is identifiable and he referred to the case Sarai v. Haruna (2008) LPELR-4933(CA). Counsel stated that no name was affixed to the signature on the writ of summons taken out by the Respondent before the lower Court and that as such the writ was not properly signed and that this robbed the lower Court of the requisite jurisdiction to entertain the matter as it meant that the action was not validly initiated and that this was an issue that could be raised at any stage in a matter and he referred to the cases of Odejayi v. Henley Industries Ltd (2013) LPELR-20368(CA) and Okarika v. Samuel (2013) 2 SCNJ 491, amongst others.

In response, Counsel to the Respondent urged this Court to discountenance the issue for determination as incompetent on the ground that it was not distilled from any of the grounds of appeal of the Appellant. Further, Counsel urged this Court to scrutinize the writ of summons in question and that it would see on page 1 that it was properly issued by the Registrar of the High Court of Kano State on 30th of July,

1988 at the instance of the Respondent and that on page 2 it is obvious, under the endorsement, that the writ of summons was duly signed by Kayode Olatunji of Kayode Olatunji & Co and the name was entered immediately after the signature.
Counsel stated that the writ of summons was signed by a disclosed legal practitioner and not by a law firm and that this was in compliance with the provisions of the Laws governing signing of originating processes.

This issue for determination was distilled from Ground Ten of the notice of appeal.
The issue was not raised or canvassed before the lower Court and neither did the lower Court rule on. The records of this Court show that the Appellant obtained the leave of this Court to raise the issue as a fresh issue in this appeal on the 3rd of December, 2014. The issue for determination was thus properly raised. The writ of summons by which the present action was commenced in the lower Court is on pages 1-2 of the records of appeal. It is a settled principle of interpretation of documents that where the language used by parties in couching the terms or provisions of a document are clear and unambiguous, the

Court must give the operative words in the document their simple, ordinary and actual grammatical meaning – Union Bank of Nigeria Plc v. Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd v. Jackson (2005) 11 NWLR (Pt 937) 631, Egwunewu v. Egeagwu (2007) 6 NWLR (Pt 1031) 431. It is not the duty of the Court and neither is it right for a party to ascribe meaning to the clear, plain and unambiguous provisions of a statute or contents of a document in order to give them a slant which accords with a perceived view – Izedonmwen v. Union Bank of Nigeria Plc (2012) 6 NWLR (Pt 1295)1

A read through the writ of summons shows clearly that it was properly issued by the Registrar of High Court of Kano State and that it was duly signed and the name of the legal practitioner who took out the writ of summons was clearly stated thereon as Kayode Olatunji Esq of Kayode Olatunji & Co. The complaint of the Counsel to the Appellant, in the instant case, was not that the writ of summons was not signed and/or that the person who took out the writ of summons was not a legal practitioner duly registered to practice law in Nigeria. The complaint was that the name of the

legal practitioner should have been affixed immediately after his signature on the writ of summons and not somewhere after the signature on the writ of summons. This really is a matter of preference and one of form, and not of substance, and once it is clear from a holistic reading of the process that the signature shared a connection with the name of the legal practitioner entered thereon, as in the instant case, it is properly done.

This very same issue was raised and dealt with by this Court in its unreported judgment in Appeal No CA/K/490/2013 – Sam Rogers Ltd Vs Ihunde delivered on the 22nd of May, 2015 and this was what this Court said in the matter:
“Learned Respondent’s Counsel invited us to look at the endorsement on the writ of summons contained on Page 41 of the record. The endorsement on the writ of summons thereat shows a signature and below the signature the following
????’This writ was issued by Kayode Olatunji Esq of Kayode Olatunji & Co …”
This endorsement of the writ of summons for all intents and purposes satisfies the requirement of the law. Contrary to the Appellant’s contention that the writ was signed by Kayode Olatunji

& co, the writ was in fact signed by ‘Kayode Olatunji Esq of Kayode Olatunji & Co which makes a world of difference from Kayode Olatunji & Co. While Kayode Olatunji Esq. is a legal practitioner licensed to practice law and to file and sign processes, Kayode Olatunji & co is not a legal practitioner and is unknown to law.
This writ which was signed by Kayode Olatunji Esq. was therefore properly signed and satisfies the requirement of the law. Thus, the Appellant’s complaint on which heavy weather was made with respect to the writ of summons … is unfounded and baseless…”

Ironically, counsel to the Appellant in the instant case, Mr. Nureini Jimoh of Nureini Jimoh Chambers, who tried vigorously to fault the manner in which the signature and name of Counsel were endorsed on the writ of summons, was the same Counsel to the Respondent in the above mentioned and he canvassed vigorously in that matter and the signature and endorsement of the name of the legal practitioner on the writ of summons, which are exactly the same as in the present case, were validly and properly done. The two appeals were argued barely one month of each other.

With respect to Counsel to the Appellant, it is not good professional conduct for a Counsel to engage in the practice of speaking with both sides of the mouth in the presentation legal arguments, most particularly where the facts of matters are exactly the same. One of the hallmarks of good advocacy is that a Counsel must maintain consistency on legal issues in the presentation of his cases. A good advocate must stand for and be known for something and not be an “all weather” person. The Courts have constantly condemned such shifty attitude on the part of a Counsel as a pollutant of the pure streams of justice – Pacers Multi-Dynamics Ltd Vs The M.V. Dancing Sisters (2012) 1 SCNJ 1, Lawal Vs Zago (2014) LPELR-CA/A/378/2009.
Such an attitude smacks of desperation and it seeks to turn litigation into a “win at all cost” engagement. It portends a grave danger to the trustworthiness and confidence that members of public are enjoined to repose in the “learned members of the Bar” when seeking legal guidance from them.
This Court in the judgment it delivered in Khalid v. Al-Nassim Travel & Tours Ltd & Anor (2014) LPELR-22331 (CA) reminded Counsel

of their duties to the administration of justice system in the following words:
“Lawyers as operators of the administration of justice system owe a duty, to the society that nurtured them and made them what they are, to ensure that they conduct their activities in a manner that edifies and brings honor, respect and belief to the justice system. They should not allow themselves to be used by litigants to bring the justice system into disrepute. It is pertinent that this Court reminds Counsel of the eternal words of a great jurist J Wesley McWilliams who writing in an American Bar Association Journal in January 1955 (41 ABA 18) wrote in an article he titled “The Law as a Dynamic Profession” thus:
‘We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbors whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with our fellow Lawyers

with whom we have cemented warm friendships and enjoyed happy companionships. For these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly satisfying repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the welfare of the profession.'”
In Williams v. Akintunde (1995) 3 NWLR (Pt 381) 101 at 115 B-C, Pats- Acholonu, JCA (as he then was) added thus:
‘We all agree that the Attorney whose professional thoughts begin and end with his own private client is a pitiable mockery of what a great Lawyer really is and that only by taking part in the movements for the betterment of the Law of the profession can he practice Law in the grand manner, the only way it is worth Practicing.'”

It is hoped that Counsel to the Appellant will refrain from such attitudes in his future engagements. The writ of summons used to commence the action in the lower Court was valid and proper. The third issue formulated for determination is resolved against the Appellant.

This takes us to the first issue for determination, whether the lower Court was right in

granting the claims of the Respondent and in dismissing the Third Party action. In arguing the issue, Counsel to the Appellant stated that the Respondent did not lead credible evidence of the rental value of the property in the state in which it was in December 1991 and he thereafter retraced the process by which the Appellant purchased the property in question at a public auction conducted by the Deputy Sheriff of the High Court of Kano State in satisfaction of the judgment obtained by the Third Party, as judgment creditor, against the Respondent. Counsel thereafter traversed through the provisions of the Sheriffs and Civil Process Act and stated that a Sheriff is the agent of a judgment creditor for the purposes of levying execution of a judgment of Court and that the judgment creditor is vicariously liable for any damage arising from illegal or irregular proceeding taken at his instance by the Sheriff or bailiff of Court in the execution of the judgment and he referred to the cases of Fabunmi v. Oyewusi (1992) 1 NWLR (Pt 215) 35 and Far East Mercantile Vs Phillips (197 4) 11 SC 225.

Counsel stated that a Sheriff or any officer executing a process of

the Court or the person at whose instance the process is executed shall not be deemed a trespasser by reason of any irregularity in any proceedings on which the validity of the process depends, but that anybody aggrieved may bring an action for any special damages sustained by reason of the irregularity against the person guilty thereof. Counsel stated that where goods seized from a judgment debtor by a Sheriff or other officer of Court in the course of execution of a judgment are sold by the Sheriff or other authorized officer, the purchaser of the goods sold shall acquire a good tide to those goods and such goods are to delivered to the purchaser as soon as they are sold and paid for at the auction. Counsel stated that if after the sale and grant of the certificate of tide the property still remains in the possession of the judgment debtor or some person on his behalf, the purchaser may apply to the Court for an order of delivery of the land or to order the removal of the person in possession.

Counsel stated that dovetailing from the foregoing are the following facts (i) that the Respondent failed to prove the rental value of the property taken from

him,
(ii) that the Deputy Sheriff was the agent of the Third Party,
(iii) that the Third Party being the judgment creditor is liable in damages and is vicariously liable for any illegal sale,
(iv) that the Appellant acquired good title to the property and the property was rightly delivered to him and is not liable at all, and
(v) that the Respondent is not entitled to general damages. Counsel stated that based on these facts the Third Patty was liable to indemnify the Appellant for any adverse claim, losses or damages arising from the sale and/or possession of the property by the Appellant.

In response, Counsel to the Respondent stated that Counsel to the Appellant did not, throughout his arguments, establish any material error in the findings of the lower Court which saw and heard the witnesses’ testimonies and also ascribed probative value thereto and that Counsel did not show that the lower Court did not properly evaluate the evidence presented by the parties. Counsel stated that the burden of proof on the Third Party claim was on the Appellant and that the onus was not discharged as the lower Court found that it was the Appellant that solely engaged

in the illegal process and adventure of ejecting the Respondent from its property without serving a notice to quit and that the testimony of the witness of the Third Party that they had nothing to do with the order of possession secured by the Appellant via a motion ex parte was not challenged and was admitted by the Appellant in his testimony. Counsel stated that the Appellant has not shown any reason for this Court to interfere with the findings of the lower Court on the evidence led and he referred to the cases of Saleh v. BON (2006) All FWLR (Pt 310) 1600 and Bunge v. Governor of Rivers State (2006) 12 NWLR (Pt. 995) 573.

Counsel stated that the Appellant did not appeal against the finding of the lower Court that by refusing to cross-examine the first plaintiff witness on the rental value report prepared by the witness as an expert and/or challenge its correctness by producing or suggesting another figure, the Appellant accepted the testimony of the witness as correct and that the Appellant cannot thus in this appeal ask this Court to reject this finding of the lower Court. Counsel stated that a finding of Court on an issue not appealed against

remained valid and subsisting and settles the issue as between the parties and he referred to the case of Koya v. United Bank for Africa (1997) 1 NWLR (Pt 481) 251. Counsel urged this Court to resolve the issue against the Appellant.

In his own reaction, Counsel to the Third Party reiterated that the onus of proving the Third Party claim was on the Appellant and particularly more so as the Appellant sought for a declaratory relief in the claims and the Third Party completely denied the claims of the Appellant and he referred to the case of Johnson v. Osaye (2001) 9 NWLR (Pt 719) 746. Counsel stated that it was not in dispute in this matter that it was the Third Party that sought for and obtained the ex parte order of sale of the property of the Respondent and that it was the Appellant that sought for and obtained the ex parte order of possession of the property and on the strength of which the Appellant ejected the Respondent from the property and that it was also not in dispute that the Third Party played no part in the ejection of the Respondent from the property.
Counsel stated that it was the action of the Appellant in ejecting the Respondent

from the property that formed the genesis of the present action and that instead of waiting for the Third Party to put him in possession of the property, the Appellant chose to take over possession of the property by himself barely twenty-four hours after the judgment of the Court of Appeal.

Counsel stated that the claims of the Respondent in the substantive suit were for mesne profit for wrongful occupation of the property and damages for trespass and that a claim for mesne profit was stated by the Supreme Court in the case of Abeke v. Odunsi (2013) 13 NWLR (Pt 1370) 1 to be rooted in trespass by a defendant in occupation and that there was no evidence led showing that the Third Party took any part in the illegal occupation of the property in question by the Appellant. Counsel stared that the tenure of the evidence before the lower Court was that it was the Appellant that perpetuated the ejection of the Respondent from the property and he was the person who went into and remained in occupation of the property and that as such he should be liable for the mesne profits and damages for trespass and Counsel referred to the case of Ogbiri v. NAOC Ltd (2010)

14 NWLR (Pt 1213) 208.
Counsel stated that it was the ex parte order of possession obtained by the Appellant that was executed by the Deputy Sheriff and bailiffs of the High Court in wresting possession from the Respondent and that the Deputy Sheriff and bailiff were the agents of the Appellant for the purpose of that execution, and not agents of the Third Party, and that as such it is the Appellant that should be responsible for any wrong committed by the Court officials in carrying out the execution and that there is no legal basis for the Third Party sharing in the liability. Counsel concluded that the lower Court was thus correct in dismissing the Third Party claim.

Reading through the brief of arguments of the Appellant, Counsel to the Appellant in a very haphazard way raised three questions for resolution under this issue for determination, namely
(i) whether as a bona fide purchaser for value, the Appellant was liable in trespass to the Respondent;
??????(ii) in case the first is answered in the affirmative, whether he was entitled to be indemnified by the Third Party for any award made against him in favour of the Respondent; and
??????(iii) whether the

Respondent led cogent evidence of the rental value of the property.

In the judgment, the lower Court answered the first question in the affirmative thus:
“The 1st issue submitted by Mr. Olatunji for determination is whether the plaintiff is entitled to his claim for both mesne profits and general damages for trespass and illegal ejection by the defendant… For this issue, it suffices it to say that it is trite that in consideration of trespass, possession is what is important. From the totality of the testimony led in these proceedings there is no dispute even from the defence that prior to the time the defendant had the plaintiff ejected and took possession of the property in question pursuant to Exhibit 2 on the 6th of December, 1991, it was the plaintiff that was the owner and in occupation of the said house. By Exhibit 5, the judgment of the Supreme Court … Exhibit 2 was declared a nullity… It follows therefore that there was no writ of possession upon which the defendant purportedly ejected the plaintiff from possession on the 6th of December, 1991….. The evidence before the Court is that the deceased defendant was in occupation of this

property from 6th December, 1991, when he caused the illegal ejection of the plaintiff until 1998 when he was ejected pursuant to the order of the Supreme Court. The effect of the judgment of the Supreme Court on the occupation of the house by the defendant and the ejection of the plaintiff from the house is that both acts are illegal. This being the case I find that the plaintiff is entitled to his claim for both the mesne profit and general damages for trespass and illegal ejection.” (see pages 17l to 172 of the records)

The lower Court continued thus:
“On who took possession of the property as between the defendant and third party for purposes of liability to the plaintiff, I have soberly reflected on all relevant exhibits. By Exhibit 4, hand written by the bailiff of the High Court of Kano, it is clear therefrom that the bailiffs took the properties of the plaintiff to the premises of the High Court and handed the house over to the to the defendant. The bailiffs acted pursuant to Exhibit 2, an order of Court. Exhibit 2 is headed ‘Order to put Purchaser/Assignee/Applicant in possession’… Exhibit 3b is the affidavit in support of the application.

It is sworn to by the defendant. There is nothing therein or on the face of the application to show that the 3rd party herein was part of this process of getting an order for possession or that the defendant acted as its agent in the whole transaction… I find … from the foregoing that it was the defendant that took possession of the property from the plaintiff. Since the Supreme Court has found the manner of possession was taken away as null and void, it is the defendant who has to be liable to the plaintiff.” (see pages 172 to 173 of the records).

Counsel to the Appellant contended that he purchased the property in question from a public auction conducted by the Deputy Sheriff of the High Court of Kano State on behalf of the Third Party, who was the judgment creditor in an action commenced against the Respondent for failure to pay its debts, and that the public auction was conducted pursuant to an ex parte order for attachment and sale of the property in satisfaction of the judgment debt. Counsel contended that the Appellant, upon the purchase, applied for and obtained an ex parte order of possession of the property from the High Court of Kano State as he

was empowered to do under Section 51 of the Sheriffs and Civil Process Act. Counsel contended that as at the 6th of December, 1991 when the Appellant went into possession of the property, the Court processes were valid and proper and they remained so until 1998 when the Supreme Court pronounced them otherwise and that he vacated the property thereafter. Counsel stated that the Appellant thus acquired good tide to the property and that the property was rightly delivered to him and that he was thus not liable at all.

With respect to Counsel to the Appellant, he obviously did not appreciate the effect of the pronouncement made by the Supreme Court in its judgment, that both the ex parte order of attachment and sale of the property in question and the ex parte order of possession were null and void, on the entry of the Appellant into possession of the property in question in December, 1991, and on his continued occupation of same until 1998. It settled law that where a person enters into possession of a property under a transaction which has been declared void or found to be void ab initio, the entry itself is void ab initio and its lawful character loses

its lawfulness and acquires an illegal character or unlawful character from the very moment entry was made and the person automatically becomes a trespasser ab initio and he is liable in trespass ??????
Solomon v. Mogaji (1982) 11 SC 1, Ojoh v. Kamalu (2005) 18 NWLR (Pt 958) 523. This point was elaborated on by Oguntade, JCA (as he then was) in Ojomo v. Ibrahim (1999) 12 NWLR (Pt 631) 475 at page 423 F-H thus:
“In this case, it was common ground that the properties at 42/44 Doherty Street, Lagos belonged to the estate of late M.E. Ojomo. Three persons were the personal representatives of the said estate. The defendant needed the concurrence of the three to be able to enter the premises. But he had the authority of only two. The authority of those two was as good as nothing. It is therefore correct to say that the defendant had no valid authority to enter to demolish the premises. The defendant contended that the premises were vacant at the time. There was no evidence that the plaintiffs were physically in possession. But as successors to the personal representatives to the estate, the plaintiffs would be deemed to be in possession. These were

buildings owned by the deceased. The plaintiffs had constructive possession. As the only authority relied upon by the defendant to support his entry was Exhibit D11 which has turned out to be useless, the defendant ought to have been found liable in trespass.”

Thus, by the judgment of the Supreme Court, the entry of the Appellant unto the property in question became an act of trespass from the date he set foot on the property till the date he vacated same. Now, trespass is a violation of possessory rights; trespass to land is interference with exclusive possession. The slightest disturbance to the possession of land by a person who cannot show a better right to possession constitutes trespass in law –Eze v. Obiefuna (1995) 6 NWLR (Pt 404) 639, Omoyinmi v. Olaniyan (2000) 4 NWLR (Pt 651) 38, Fagunwa v. Adibi (2004) 17 NWLR (Pt 903) 544, Echere v. Ezirike (2006) 12 NWLR (Pt 994) 386, Ogbeide v. Osifo (2007) 3 NWLR (Pt.1022) 423, Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt 1159) 445. It is defined as an unauthorized and direct breach of the boundaries of another’s land. No intent to commit trespass is required so long as the act resulting in the trespass is

violational and the resulting trespass is direct and immediate. It does not depend on the intention of trespasser, nor can he plead ignorance as to the true owner or that he thought the land belonged to him. It is enough that the right of the owner or person in exclusive possession was invaded
Dantsoho v. Mohammed (2003) 6 NWLR (Pt 817) 457, Fagunwa v. Adibi (2004) 17 NWLR (Pt 903) 544, Yusuff v. Keinsi (2005) 13 NWLR (Pt 943) 554. By the law of Nigeria, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot on the ground of another without being liable to an action in trespass England v. Palmer (1955) 14 WACA 659, Amata v. Omofuma (1997) 2 NWLR (Pt 485) 93, Ajibulu v. Ajayi (2004) 11 NWLR (Pt 885) 458.

It was not in dispute in this case that it was the Appellant that applied for and obtained the ex parte of possession of the property and neither was it in dispute that it was pursuant to and in execution of the said order that the Deputy Sheriff of the High Court of Kano State ejected the Respondent from the property in question and handed possession of same to the Appellant. It was also not

contested that it was the Appellant that went into possession of the property in December, 1991 and remained in occupation and possession thereof until 1998 and which entry and occupation was held to be unlawful. It is trite that the wrong of trespass to land consists of (a) entering upon the land in the possession of the claimant, or (b) remaining upon such land, or (c) placing or projecting any material object upon it – in each case without lawful justification – Bamgbade v. Balogun (1994) 1 NWLR (Pt 323) 718. The lower Court was thus on very firm ground when it found and held that the ejection of the Respondent from the property in question and the detention of the property from the Respondent from December 1991 to 1998 amounted to trespass and that the Appellant was liable for the trespass.

With regards to the second question raised by Counsel to the Appellant under this issue, whether the Appellant was entitled to be indemnified by the Third Party, the lower Court dealt with it in the judgment thus:
“It is perhaps appropriate at this point to determine the third party notice/claim by the defendant. The defendant’s contention is that the 3rd

party sold and assigned the property to him. That it is pursuant to that sale and assignment he took possession of the property. That the 3rd party is therefore liable to indemnify him, the defendant. I find that the defendant is misconceived in this contention. To succeed, the defendant has to show that the relief or remedy he claims from the third party is connected with the original subject matter of the action and is substantially the same as the relief claimed by the plaintiff against him… The plaintiffs claim against the defendant herein is damages for trespass and illegal ejection arising from the order of possession which was obtained ex-parte. If the defendant had ejected the plaintiff properly pursuant to a valid order of possession the Supreme Court would not have declared the order a nullity and the plaintiff would not have brought this action against him.
There is nothing on the evidence before the Court to show that the 3rd party had anything to do with the process that led to the ejection of the plaintiff and the putting of the defendant into possession of the property, as I have already found in this judgment. I find therefore that the

claim of the defendant against the 3rd party in these proceedings cannot be sustained by either the evidence adduced or the law in respect of third party notices. Same accordingly fails.”

The Appellant predicated his Third Party claims on the assertion that he is entitled to be indemnified by the Third Party to the

extent of any sum or sums of money for which he is adjudged liable to the Respondent. It is trite that a right of indemnity may arise (i) from express contract; (ii) from some statute; or (iii) it may be implied from some principles of law. A right of indemnity is an incident of certain legal relationships. Such common legal relationships are in the area of agency of master/servant relationships, where an act is done by one person at the request of another and in consequence of such act the person doing it suffers loss. In fact an indemnity contract arises where the indemnifier promises to meet any legal liability which the indemnified is held to be under – Igbokwe v. Kehinde (2008) 2 NWLR (Pt 1072) 441, Oyebanji v. Fowowe (2008) All FWLR (Pt 410) 786. Rights of indemnity may also spring up from the principles of equity, for example where the obligation arises from the relationship between the parties, as between a trustee and cestui que trust or between co-trustees – Attorney General of Lagos State Vs Purification Techniques (Nig) Ltd (2003) 16 NWLR (Pt 845)1.

Now, it is settled law that in an action fought on pleadings, the very foundation of the action is

the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo v. Molokwu (2014) 6 NWLR (Pt.1403) 377 at 418A-C, Corporate Ideal Insurance Ltd v. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt.1405) 165 at 188 A-B, Anyafulu v. Meka (2014) 7 NWLR (Pt 1406) 396 at 424G.

Reading the amended statement of defence and the amended third party notice filed before the lower Court, the Appellant did not plead or rely on an express contract to indemnify entered into by the Third Party as the basis for his claim for indemnity and neither did he rely on the provisions of any statute as the foundation of the claim.

Counsel to the Appellant did not also canvass any such express contract to indemnity or statutory provision as the basis of the Third Party claim in his final address before the lower Court. It is elementary law that party to an appeal cannot raise and canvass arguments on points or issues that were not raised and/or canvassed before the lower Court – Idufeko v. Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96. Parties are not allowed to maintain on appeal a different case from that pursued at the trial Court; they must be consistent in stating their cases – Ologun v. Fatayo (2013) 1 NWLR (Pt 1335) 303, Iliyasu v. State (2014) 15 NWLR (Pt 1430) 245, Aiyeola v. Pedro (2014) 13 NWLR (Pt 1424) 409. Therefore the attempt by the Counsel to the Appellant in his brief of arguments to rely in this appeal on a purported covenant contained a deed of assignment as the basis for the claim for indemnity was ill-fated from inception and cannot be allowed by this Court.

The basis of the claim for indemnity canvassed by the Appellant in the lower Court was there was a legal relationship between him and the Third Party from which such right to indemnity should be

inferred. The legal relationship was that he purchased the property in question from the Third Party through the Deputy Sheriff of the High Court of Kano State and which sale was declared null and void by the Supreme Court and that by law the Third Party as the judgment creditor was to be liable for any damage arising from the null sale and that the incident of his taking possession of the property was a necessary consequence of the sale, therefore the Third Party should be responsible for any damage arising from his taking possession of the property. This Court has confirmed the finding of the lower Court that it was the act of the Appellant in taking and retaining possession of the property that amounted to trespass. Thus, the above postulation of the Counsel to the Appellant as to the basis of claim for indemnity would only be plausible if the nullification of the Appellant’s entry into possession by the Supreme Court in the earlier case was predicated on the nullity of the sale of the property in question to the Appellant by the Third Party or if it was shown that the Third Party played a role in the entry of the Appellant into possession of the property,

in furtherance of the said sale.

Reading through the judgment in Appeal No SC.41/1992 – Leedo Presidential Motel Ltd Vs Bank of the North & Anor delivered on the 17th of July 1998, a certified true copy of which is on pages 66 to 92 of the records of appeal, it is obvious that the Supreme Court did not nullify the order of possession obtained by the Appellant, and on the strength of which he took possession from the Respondent, simply because it arose out of the null order of attachment and sale obtained by the Third Party. The Supreme Court nullified the order of possession because it was itself irregular and wrongfully. The Appellant herein was the second respondent in that suit and the Supreme Court stated thus:
“As stated earlier in this judgment, the 2nd Respondent who bought the property of the Appellant at an auction sale applied ex parte to the High Court for an order of possession and the learned trial Chief Judge made an order …
Neither the judgment debtor (Appellant) nor any of those then living in the house was put on notice. I cannot fathom under what law or rule of Court the learned Chief Judge proceeded in this matter. One

would think that the proper course would be for the purchaser to sue for possession and join all those in possession as defendants.
The order for possession made by the learned Chief Judge on 4/2/91 was clearly a nullity. What was done was not a mere irregularity but a fundamental defect which went to the root of the competence of the Court. It is strange indeed that the Court below found nothing wrong in the order for possession made on an application ex parte and in the circumstance that an application to set aside the sale was, at the time of the order, pending. I think the whole procedure was riddled with irregularities and nullities that it would amount to a travesty of justice to uphold the order made in such circumstance.”

The Supreme Court did not predicate it declaration that the order of possession obtained by the Appellant was a nullity on the fact that it had found that the order for attachment and sale of the property obtained by the Third Party was a nullity. The Supreme Court declared the order of possession a nullity because of the inherent incompetence of the application and procedure upon which it was based. Thus, it was not the

legal relationship between the Appellant and the Third Party that led to the order of possession being declared null and void. It was not the case of the Appellant that it obtained the order for possession as agent of the Third Party or at the instance of the Third Party and neither was it his case that the Third Putty played any part or role in the execution of the order of possession. The Appellant did not establish any ground upon which the lower Court could have found the Third Putty liable to indemnify him from the losses arising from his entry into possession of the property in question. This Court cannot thus fault the decision of the lower Court dismissing the Third Party claims.
???
This takes us to the third question raised by Counsel to the Appellant on this issue for determination, whether the Respondent led cogent evidence of the rental value of the property. In dealing with this issue, the lower Court stated thus:
“… The plaintiffs claim for mesne profit is N1,530,000 from the 6th of December 1991 when the plaintiff was ejected up to sometime in 1998. It is not clear from either the pleadings of the parties nor the evidence before the

Court exactly when in 1998 the defendant was made to give up possession of the property. However at the back of Exhibit 5 is an endorsement by the then Ag Chief Judge, Hon. Justice Saka Yusuf to the bailiff directing him to suspend execution of the judgment of the Supreme Court, Exhibit 5, pending receipt of an enrolled order from the Court. The minutes is dated 22/07 /98. It is safe therefore to assume that the ejection took place before the end of 1998. To support its claim for mesne profit the plaintiff tendered exhibit 1 through PW1. The last page of exhibit 1 shows a breakdown of the rental value claimed for the period totaling N1,280,000 as against the N1,530,000 in the pleading. The defence did not cross examine PW2 (sic) in respect of this rental value. It is trite that the Court ought to believe the uncontroverted and uncontradicted evidence of a witness before it. There is no rental value submitted by the defence to contradict Exhibit 1…”

The lower Court proceeded to use the exhibit to compute the rental value due on the property for the period of entitlement of the Respondent and it arrived at the sum of N1,137,500.00. This Court has read the

brief of arguments of the Appellant and is unable to see any meaningful challenge mounted against this evaluation of evidence and findings made there from. It is settled that an Appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Ajibulu Vs Ajayi (2014) 2 NWLR (Pt 1392) 483, Ikumonihan v. State (2014) 2 NWLR (Pt.1392) 564. The Appellant has not given this Court any reason to tamper with the evaluation of evidence carried out by the lower Court and/or with the findings made there from. This Court holds that there was credible evidence before the lower Court on the rental value of the property for the period concerned.

All in all, this Court resolves the first issue for determination formulated by the parties against the Appellant.

The fourth issue for determination is whether the award of both mesne profit and general damages by the lower Court did not amount to double compensation. In arguing the issue, Counsel to the Appellant stated that in the first place, both awards were

inappropriate in the circumstances of this case and that it was indisputable that there never a relationship of landlord and tenant between the Respondent and the Appellant and that a claim for mesne profit does not lie unless a landlord has recovered possession or possession has come to an end or his claim is joined with a claim for possession and he referred to the cases of Debs Vs Cenico Nig Ltd (1986) 3 NWLR (Pt 32) 846 and AP Ltd Vs Owodunni (1991) 8 NWLR (Pt 210) 391, amongst others. Counsel stated that since there was no tenancy relationship, the award of mesne profits was inappropriate and wrong. With regards to damages for trespass and illegal ejection, Counsel traced the history of how the Appellant entered possession of the property and stated that the Appellant was granted possession by the Deputy Sheriff of the High Court pursuant to the execution of a valid order of Court and that since the writ of execution has not been set aside as invalid, he cannot be liable in trespass.

Counsel stated further that mesne profits and damages for trespass mean one and the same thing and that the Courts have stated in several cases that mesne profits is a

species of damages for trespass and he referred to the cases of AG, Bendel State v Aideyan (1989) 4 NWLR (Pt 118) 646, Osawaru v. Ezeruka (1978) 6-7 SC 135, Debs v. Cenico Nig Ltd (1986) 3 NWLR (Pt32) 846, Agbamu Vs Odili (2004) 5 NWLR (Pt 867) 540, amongst others. Counsel stated that the lower Court was thus in error when it awarded both of them in the instant case.

In response, Counsel to the Respondent stated that the claims for mesne profits and damages for trespass were two distinct heads of claim and that the claim for damages for trespass was for illegal ejection of the Respondent from its property by the Appellant who had not right or interest thereto with the attendant pains, suffering, indignity, embarrassment, disgrace and humiliation while the claim for mesne profits was for the period the Appellant remained in occupation of the property. Counsel stated that the Respondent proved entitlement to both heads of claim and that the award of both of them cannot thus amount to double compensation in the circumstances of this case.

The claims of the Respondent before the lower Court were for the sum of N1.53 Million as mesne profits/damages for

use and occupation of the its property consisting of land and buildings situate at Plot 472, Hassan Katsina Street, Hotoro GRA, Kano from 5th of December, 1991, till date as well as the sum of N5 Million as general damages from trespass committed on the property by the Appellant and for illegal ejection. It is correct that mesne profits and damages for trespass were two distinct claims for two distinct injuries that the Respondent said it suffered by the actions of the Appellant. Reading through the judgment, the lower Court treated and awarded the two claims under separate heads. After dealing with the claim for mesne profits, the lower Court stated thus:
“The other leg of the plaintiff’s claims is damages for trespass and illegal ejection.
This is clearly different from mesne profit which is for use and occupation of the property by the defendant for the period in question. It would therefore not amount to double compensation to make an award for mesne profit and damages for trespass and illegal ejection. Trespass is actionable per se and the plaintiff does not need to prove actual damage. In respect of the illegal ejection … I agree that they

way the family was thrown out without any notice from their family house was most undignifying. The Court can therefore presume the trauma, pain and suffering that is attached to this kind of experience in awarding damages. The defendant as DW1 under cross-examination admitted that no notice was given to the plaintiff before they were ejected. Exhibit 4, the report of the bailiff(s) who ejected the plaintiff states that they went to the house, took the properties of the plaintiff to the High Court and handed the house over to the defendant. To be rendered homeless in one day, without notice and not from natural causes or disasters is a high act of indignity and indeed inhumanity. Where such is found to be illegal or wrongful the claimant deserves appropriate compensation.”

Industries (1998) 4 NWLR (Pt 546) 357, Tsokwa Motors (Nig) Ltd Vs United Bank for Africa Plc (2008) All FWLR (pt 403) 1240. The duty of proving double compensation is on the party alleging it and this he must be able to do by the evidence already adduced in the Court “K” Line Inc Vs K.R. International (Nig) Ltd (1993) 5 NWLR (Pt 292).
Where a party is awarded damages twice under two different heads for two distinct and proven injuries, it does not amount to double compensation and this is particularly more so in a case of trespass – Ezeani v. Ejidike (1964) All NLR 402, Eliochin (Nig) Ltd v. Mbadiwe (1986) 1 NWLR (Pt 14) 47, Universal Trust Bank (Nig) Ltd v. Aiagbule (2006) 2 NWLR (Pt 965) 447, Shell Petroleum Development Corp v. Okonedo (2007) All FWLR (Pt 368) 1104.

In the instant case, the fact that mesne profits and damages for trespass mean the same thing, as harped upon by the Counsel to the Appellant in his submissions, is completely irrelevant in determining the question of double compensation if they were not shown to have been awarded for the same injury suffered by the Respondent. Counsel to the Appellant made no attempt throughout

his arguments to show that the two awards were made in respect of the same injury. It is obvious from the judgment that the lower Court made the two awards for two different injuries that it found the Respondent to have suffered by the actions of the Appellant. It was not the case of the Appellant in this appeal that the finding of the lower Court that the Respondent suffered two different injuries was erroneous. The Appellant thus failed to show that the awards of mesne profits and of damages for trespass by the lower Court in the circumstances of this case amounted to double compensation.

Further, the submission of the Counsel to the Appellant that a claim for mesne profits must necessarily arise from a landlord and tenant relationship is a misrepresentation of the law. Mesne profits is the rents and profits which a trespasser has or might have received during his occupation of land or premises and which he is liable to pay as compensation to the person entitled to possession of such land or premises. It is applicable to a tenant not when he is in lawful occupation, but only when his tenancy has expired or has been lawfully determined because from that

point on, the tenant is considered a trespasser – Ayinke v. Lawal (1994) 7 NWLR (Pt 356) 263, Odutola v. Papersack Nigeria Ltd (2007) 1 MJSC 129, Abeke v. Odunsi (2013) 13 NWLR (Pt 1370) 1 This point was explicitly made by the Supreme Court in Attorney General, Bendel state Vs Aideyan (1989) 4 NWLR (Pt 118) 646 thus:
“… mesne profit is a special type of monetary award i.e. damages which a land owner may recover for his being forced out of or deprived of possession of his land. So mesne profit is a special form of damages… In other words, mesne profits is a species of damages for trespass or wrongful taking or keeping occupation or possession of land otherwise rightfully in the possession of another. It is the value or compensation (call it damages) for wrongful use and occupation of another’s land which would have been otherwise rightly in the owner’s possession and which is sometimes measured in terms of loss of rents by the landlord. It is technically a form of damages for trespass in a relationship that could have been that of landlord and tenant, save that there is either no agreement for a tenancy or that the formerly subsisting agreement had

expired.”

This issue for determination is thus also resolved against the Appellant.

The last issue for determination in this appeal is the second issue formulated by the parties and it is whether the claims of the Respondent did not abate on the death of Alhaji Shittu Adamu. The original defendant in the matter before the lower Court was Alhaji Shittu Adamu and he died in the course of the proceedings in the lower Court and was substituted with the present Appellant. In arguing the issue, Counsel to the Appellant referred to several cases including NPA v. Panalpina World Transport (1973) All NLR 408, GMBH v. Rivway Lines Ltd (1998) 5 NWLR (Pt 549) 265 in drawing a distinction between an action in rem and an action in personam and stated that the present action was for a sum of money claimed as mesne profits and damages for trespass and this was a claim for damages for an action in tort, and not one to declare a status, and it was thus an action in personam. Counsel stated that where an action is a personal action, as in the instant case against late Alhaji Shittu Adamu, the effect of the death of the party is that the cause of action is gone forever

and the action should abate and he referred to the case of Abdullahi Ahman v. Abubakar Tanko Mai-Gen (2008) LPELR-3659(CA). Counsel stated that the cause of action of the Respondent abated on the death of the erstwhile defendant and that the lower Court was wrong when it held that the action did not abate.
In response, Counsel to the Respondent stated that claims of the Respondent before the lower Court were predicated on trespass to property and it was an action relating to the interference with and infringement of possessory right and peaceful occupation of property and is thus an action in rem and not one in personam and it survived the death of Alhaji Shittu Adamu. Counsel referred to the cases of Mbadinuju v. Ezuka (1994) 8 NWLR (Pt 364) 535 and Eyesan v. Sanusi (1982) NSCC 271 which he said held that an action in trespass does not terminate on the death of either the plaintiff or of the defendant and it is one that survives their death and can be continued by or against their estates.
In his reply brief, Counsel to the Appellant sought to draw a distinction between this case and the cases of Mbadinuju v. Ezuka supra and Eyesan v. Sanusi supra

saying that in those cases the Supreme Court did not clearly and exhaustively define the yardstick for knowing when or not to apply the principle of “actio personalis moitur cum persona” and that the Supreme Court simply stated that an action will not abate on the death of a party ‘if the process or value of or the property belonging to another person would have been appropriated by the deceased person and added to his own estate or moneys for the benefit of his estate’ then the property or the proceeds or value which, in the lifetime of the wrongdoer could have been recovered from him, can be traced after his death to his assets, and recaptured by the rightful owner there.
Counsel stated that in the instant case, the mesne profits and damages for trespass and illegal ejection are not traceable to the assets of the late Alhaji Shittu Adamu and as such the action abated on his death.

This issue of abatement of the action on the death of Alhaji Shittu Adamu was considered by the lower Court and it resolved it thus:
“… This is whether the plaintiff’s claim survived or died with the deceased defendant. I have considered the submissions of both

counsel on this issue. In determining the effect of death of a party on an action, I am guided by the Court of Appeal in the case of CRBRDA v Sule … The Court held that apart from the legal rights of administrators, executors or personal representatives of a deceased person, a dead person ceased to have any legal from the moment of death and in such a case can neither sue nor be sued either personally or in a representative capacity. Where, however, the cause of action survives the death of a party, such action is not terminated by death. In determining what action die with a party the Court went further to hold in the same case that it is an action ‘based on the personal rights of the deceased and not an action like for debt.’ In Re Adeosun . . . From these authorities cited I hold that the claim of the plaintiff against the defendant is one arising from the possessory rights of the plaintiff to property. It is therefore strictly speaking an action in rem. The claim is for mesne profit and damages for trespass for the period 06/12/91 to 1998. The defendant gave evidence in these proceedings on 19/11/2001. The claim is akin to a debt being arrears of rent

for occupation. Since the claim touches on some interest or right in property, it is a claim that survives a dead person. I find therefore that the objection of the learned counsel to the defendant that this is a claim in personam which died with the defendant fails.” (see pages 174 to 175 of the records)

The reasoning of the lower Court in the resolution of this issue is astute and very sound and the issue could not have been better resolved by this Court. The complaint of the Respondent in his case before the lower Court was predicated on the interference by the late Alhaji Shittu Adamu with its property rights in the land and buildings situate at Plot 472, Hassan Katsina Street, Hotoro GRA, Kano and it sought damages for the interference. This case of the Respondent was strictly speaking for damages for trespass to landed property. It is settled law that an action in trespass is not a personal action because it attaches to or enures to the estate of a deceased claimant or defendant as the case may be. The cause of action therefore survives the death of either party – Eyesan v. Sanusi (1984) NSCC 271, Mbadinuju v. Ezuka (1994) 8 NWLR (Pt 364) 535,

Erinfolabi Vs Oke (1995) 5 NWLR (Pt 395) 296, Adebisi v. Saka (1995) 8 NWLR (Pt 414) 475, Ifejika v. Oputa (2001) 11 NWLR (Pt 725) 583, Atuegbu v. Awka South Local Government (2002) 15 NWLR (Pt.791) 635. The distinction that the Counsel to the Appellant sought to draw between this case and the decisions of the Supreme Court in Eyesan v. Sanusi supra, Mbadinuju v. Ezuka supra was mere hair-splitting without any substance.
It must be conceded that in Dosunmu Vs Dada (2002) 13 NWLR (Pt 783) 1, the Court of Appeal was of the view that where the dead party is the defendant, the cause of action against him in trespass to land dies with him and abates. The Court stated that a claim for trespass was a claim in personam and that it died with the defendants based on the maxim actio personalis noitur cun persona; that is, a personal right of action dies with the person. It is, however, a principle in our jurisprudence that a decision of Court which goes against prior decisions on the same point, without reference to them or making any distinction there from, does not constitute a just decision. This point was made by Oputa, JSC in Onuoha v. State (1989) 1 NSCC 411,

at 421 thus:
“…. ‘a just decision of the case’ will be a decision in accord with the many, many authorities and previous decisions of our Courts as well as English decisions which our Courts have followed and adopted. A decision that throws all our existing authorities to the wind, will no doubt be an alarming decision, but hardly a just decision.”
The decision in Dada Vs Dosunmu supra on this point could thus hardly be a just decision and cannot supersede the earlier decisions, more particularly as the decisions in Eyesan Vs Sanusi supra, Mbadinuju Vs Ezuka supra are Supreme Court decisions. This Court finds that the decision of the lower Court on this issue cannot be faulted. The second issue for determination is resolved against the Appellant.

In conclusion, this Court finds no merit in this appeal and it is hereby dismissed. The judgment of the Kano State High Court in Suit No K/450/1998 delivered by Honorable Justice P. A. Mahmoud on the 30th of March, 2004 is hereby affirmed. The Respondent is awarded the costs of this appeal assessed at N50,000.00. These shall be the orders of this Court.

ABDU ABOKI, J.C.A.: I had the

advantage of reading the leading judgment delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, and I agree with the reasoning and conclusions that this appeal has no merit and ought to be dismissed. I accordingly dismiss same.

I abide by the orders as to in the leading judgment.

ISAIAH OLUFEMIÂ AKEJU, J.C.A.: My learned brother, Habeeb Adewale Olumuyiwa Abiru JCA gave me the privilege of reading the draft of the judgment just delivered. I agree with the reasoning of my learned brother as well as the conclusion that the appeal lacks merit. I dismiss the appeal and abide by the consequential orders.

Appearances:

Nureini Jimoh with him, A. B. AbdulWahab For Appellant(s)

Kayode Olatunji for the 1st Respondent

Mohammed Sanni for 3rd Party
For Respondent(s)

Appearances

Nureini Jimoh with him, A. B. AbdulWahab For Appellant

AND

Kayode Olatunji for the 1st Respondent

Mohammed Sanni for 3rd Party For Respondent

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