HON. JUSTICE EMMANUEL D. AUDU & ORS v. MR. EZEKIEL SULE GIMBA & ANOR
(2019)LCN/13216(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of May, 2019
CA/YL/196/2017
RATIO
WHAT CONSTITUTES SPECIAL DAMAGES
As to the issue of N5 Million special damages awarded by the trial Court as reflected at Pages 235 to 236 of the Record of Appeal, it is trite that what constitutes special damages is not a matter of conjecture, assessment or estimation by the Court and can therefore not be considered in the con of nominal award. PER BAYERO, J.C.A.
On the first issue whether having regards to the mandatory provision of Order 31 of the Taraba State High Court (Civil Procedure) Rules, 2011 the proceedings and Judgment of the trial Court is a nullity and liable to be set aside by this honourable Court; Appellant?s counsel referred to Order 31 Rules 1, 2, 3, and 6 of the Taraba State High Court (Civil Procedure) Rules, 2011 and submitted that a community reading of the above provisions of the Rules of the Taraba State High Court shows that settlement of issues and pre-trial conference is mandatory and cannot be waived by the parties and the Judge. That the use of the word ?SHALL? makes the provision mandatory. He referred to NWANKWO & ORS V. YAR’ADUA & ORS (2010) LPELR 2109 (SC) 78 Paragraphs C-F. That the only jurisdiction a trial Court has where there is no application for pre-trial conference after close of pleadings and issues joined is limited to:
1) Dismissing the case of the Plaintiff on the application of the Defendant Order 31 Rule 2(3)
2)Strike out the case of the Plaintiff Order 31 Rule 7(1)(b)
3)Enter final judgment against the Defendant Order 31 Rule 7 (1) (b).
According to counsel the trial Court is mandated to with or without application to invoke the provision of Rule 7 (1) to strike out the case of the Plaintiff when he fails to apply for pre-trial conference.
In his response, learned counsel to the Respondent submitted that by Order 31 Rule 1 and 2 of Taraba State High Court (Civil Procedure) Rules 2011 it is only where parties have filed their issues of facts in dispute and they differ on the issues that the pre-trial judge may settle the issues and thereafter proceed to issue pre-trial notice as in form 23 upon application by the plaintiff. That in the present case the trial Court was right to have proceeded to hearing because the Appellants did not file issues of facts in dispute that will prompt the lower Court to proceed to pre-trial.
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The issue for determination now is what is the effect of not conducting the pre-trial by the lower Court? For clarity purposes Order 3 Rule 2 of the Taraba State (Civil Procedure) Rules 2011 provides:-
?Where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner or form the failure shall be treated as an irregularity. The judge may give direction as he thinks fit to regularize such step?.
In the present case therefore failure of the trial Court to conduct the pre-trial conference will not vitiate the proceedings conducted before the lower Court. See U.T.C.(NIG) LTD v. PAMOTEI (1989) 2 NWLR (Part 103) 244 it is an irregularity which counsel ought to have drawn the attention of the trial Court to. Learned counsel to the Appellants stated at Page 12 of the Appellants Brief that he raised an objection that the proper thing to be done was to have set down the matter for pre-trial conference but later withdrew his objection and the parties agreed to waive the pre-trial conference. The first
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issue is therefore resolved against the Appellants and in favour of the Respondents.
As to the second issue of whether considering the state of pleadings, evidence on record and the position of the law, the judgment of the trial Court is perverse and ought to be set aside by this Honourable Court; I have reproduced the arguments of both counsel on this issue earlier in this Judgment. At paragraphs (i) and (ii) of the statement of claim contained at Page 8 of the Record of Appeal the 1st Respondent who was the Plaintiff at the lower Court claims against the1st Appellant who was the Defendant before the lower Court as follows:-
?A declaration of title to a parcel of land lying and situate at Sabon Gida Takura Kurmi Local Government and is bounded as follows:-
a)To the North the land is bounded by Mararraba to Baisa.
b)To the East the land is bounded by the land of Jonathan Aboki Sabo.
c)To the West the land is bounded by the land of Danladi Musa Tukura.
d)To the South the land is bounded by the land of late Joseph Samba, now been used by his son Ahijo Joseph.
(ii) A declaration that the purported acquisition of the land
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by the Defendant is unconstitutional, illegal, null and void and of no effect.
At paragraphs 3 and 8 of the 1st Respondent?s witness statement on oath contained at Pages 10 to 16 of the Record of Appeal, the 1st Respondent led evidence to his title to the disputed land. At paragraphs 3 and 8 of the statement on oath the 1st Respondent stated:-
Paragraph 3:-
?That I brought the defendant to Court because he trespassed into my land which I inherited from my father Adamu Gimba who is now late? Paragraph 8 ?That sometimes in December 2009, the defendant approached me and asked me whether the land now in dispute is mine. I agreed that the land is mine. The defendant then requested me that I should give the land in dispute to build his residential house in the village. I told the defendant that I will not be able to give him the land.? Paragraph 5 ?That the land in dispute is lying and situate at Sabon Gida Takura village in Kurmi Local Government. The boundaries of the land in dispute are as follows: To the North the land shares boundary with a road from Mararraba to
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Baissa, to the East the land shares boundary with the land of Jonathan Aboki Sabo, to the West the land shares boundary with the land of Danladi Musa Takura and to the South the land shares boundary with the land of late Joseph Samba now been used by his Son Ahidjo Joseph.
During cross examination of the witness as shown at Page 132 of the Record, his evidence that he owns the disputed land remains unshaken. The statement of Defence of the 1st Appellant as contained at Pages 25 to 28 of the Record of Appeal reads:-
3 (g) ?That when the elders of the community called the Plaintiff and told him of the taking over of his land and its environs for the building of the second primary school, and was also informed of the decision of the community of compensation by giving him alternative land and pay him for the few palm trees, the Defendant was not there.?
3 (k) ?That when the elders met and told the Plaintiff of the taking over of his land by the community for the secondary school and the Plaintiff told the elders that he will go and consult with his family members, the defendant was not there.?
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3 (l) That the Plaintiff did not go back to the elders nor send words to the elders thereby delaying the contractor from working that prompted the elders to ask the contractor to go on with his work of building the Primary School structure which is ongoing.?
This Court from the Statement of Claim of the 1st Respondent (the Plaintiff before the lower Court) and the evidence in support of his pleadings as contained in his written statement on oath on one hand; and the statement of Defence of the 1st Appellant on the other, it is crystal clear that it is not in dispute that the 1st Respondent is the rightful owner of the land in dispute which the Appellants admitted at paragraphs 3 (g), (k) and (l) of the statement of defence as reproduced above and which the community acquired compulsorily (Paragraph 3 (l) above). The trial Court was therefore right when it held at Page 233 of the Record of Appeal thus:-
?The question now is, was due process followed in acquiring the land of the Plaintiff? From the pleadings and evidence before the Court it was the elders council of Sabon Gida Takura who acting through the 1st, 2nd, 5th to 8th defendants that took over the
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plaintiff?s land forcefully. From the evidence before me I hold that the act of forcefully acquiring the land of the Plaintiff by the 1st, 2nd, 5th, 6th and 7th defendants are illegal, null and void. I therefore declare title in respect of the land in dispute to the plaintiff?.
The second issue is therefore resolved in favour of the 1st Respondent and against the Appellant.
As to the issue of N5 Million special damages awarded by the trial Court as reflected at Pages 235 to 236 of the Record of Appeal, it is trite that what constitutes special damages is not a matter of conjecture, assessment or estimation by the Court and can therefore not be considered in the con of nominal award. Where the Respondent failed to allocate costs to the items claimed in special damages, after he had duly documented and pleaded the damaged items he should at least lead evidence at the trial to prove the value of the damaged items, to be able to win the discretion of the Court in his favour.
In the instant case, from the pleadings of the 1st Respondent (the Plaintiff at the lower Court) contained at Page 8 of the Record and his evidence contained in
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his written statement on oath at Page 12 of the Record of Appeal, the 1st Respondent has pleaded and gave detailed particulars of what was destroyed on the disputed land. At paragraphs 17, 18 and 19 of the 1st Respondent?s witness statement on oath at Page 12 of the Record it was stated thus:-
Paragraph 17:-
?That the cassava cleared on the land will be up to seventy bags valued N5,000.00 each bringing the total to N350,000.00, 50 stands of palm trees were destroyed by the activities of the labourers and each is valued at N50,000.00 bring the total to N2.5 million. The 25 stands of the orange that was destroyed on the land each valued at N50,000.00 bring the total to N1.250,000.00. The twenty (20) stands of guava destroyed on the land each stand is valued N10,000.00 bringing the total to N200,000.00. Two dead palm tree cut down on the land is valued at N50,000.00 bringing to N100,000.00. Two mangoes tree valued at N50,000.00 bringing the total to N100,000.00. One stand of locust bean tree valued at N50,000.00 and 50 stands of banana at N1,000.00 each bringing the total to N50,000.00.?
Paragraphs 18:-
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?That I also laid a foundation of four bedrooms and a parlour on the land in dispute which the defendant has prevented me from using again and the building the defendant now constructing on the land has completely blocked my foundation. I spent the sum of N400,000.00 in building the foundation?
Paragraph 19: –
?That I paid N100,000.00 for buying ten trips of sand. Each trip cost N10,000.00. Two Hundred Thousand naira in buying 100 bags of cement at the cost of two thousand naira (N2,000) and N100,000.00 in paying the person who moulded the block, the mason, buying of water and payment of labourers. That is all my claim against the defendant.?
After a thorough appraisal of the Appellant?s and 1st Respondent?s Briefs of argument, I find no merit in this Appeal. It is accordingly dismissed. Parties to bear their costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment of my learned brother Abdullahi Mahmud Bayero, JCA. My learned brother has comprehensively dealt with the issues that arose in this appeal. I adopt his reasoning and conclusion arrived at as mine in holding that the appeal
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lacks merit. I also dismiss same for the same reasons.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother, Abdullahi M. Bayero JCA. He has dealt extensively with the issues for determination. I have nothing more to add. I find no merit in the appeal and accordingly dismiss it.
I abide by all other orders contained in the lead judgment.
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Appearances:
Martin Milkman with him, J.S. Agber
For Appellant(s)
Adamu NasirFor Respondent(s)
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
1. HON. JUSTICE EMMANUEL D. AUDU
2. ISHAKU UMARU TUKURA
3. DAN AZUMI MAI WUYA
4. ABOKI SABO
5. DANJUMA TUKURA
6. HON. JERRY DOGON YARO
(For themselves and on behalf of Sabon-Gida Tukura Community) Appellant(s)
AND
1. MR. EZEKIEL SULE GIMBA
2. YOHANNA MUSA Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A.(Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Taraba State delivered on 5th November, 2014 by E. A. Garba J. The Appellants and the 2nd Respondent were the Defendants at the lower Court. The 1st Respondent who was the Plaintiff before the lower Court filed a writ of summons seeking for a declaration of title over a parcel of land lying and situate at Sabon Gida Takura, Kurmi Local Government Area of Taraba State and for a declaration that the forceful acquisition of his land was unconstitutional. He also sought for the sum of Five Million Naira as general damages; and another Five Million Naira as special damages. The lower Court granted all the reliefs of the 1st Respondent excluding the general damages and perpetual injunction.
?Dissatisfied, the Appellants sought and obtained leave of this Court on 10/10/2017 to Appeal against the Judgment of the lower Court. The Notice of Appeal was filed on 11/10/2017 containing five grounds of Appeal. The Record of Appeal was compiled and transmitted on 23/11/2017. Additional Record was transmitted on 5/07/2018 and deemed
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compiled and transmitted on 4/10/2018. The Appellant Brief of Argument was filed on 23/11/2017 and his reply Brief was filed on 5/12/2018 but deemed filed and served on 17/01/2019. The 1st Respondent?s Brief of Argument was filed on 20/03/2018. The amended 1st Respondent?s Brief was filed with leave on 9/11/2018 but deemed filed and served on 17/01/2019 contain