ISHAKU ZI v. KELVIN CHUWAK
(2019)LCN/13577(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of June, 2019
CA/J/315/2017
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
ISHAKU ZI – Appellant(s)
AND
KELVIN CHUWAK – Respondent(s)
RATIO
WHETHER OR NOT THE ISSUE OF WHETHER OR NOT AN ACTION IS STATUTE BARRED IS A JURISDICTIONAL ISSUE
The issue of whether or not an action is statute barred is a jurisdictional issue. When action is said to be statute barred, the Plaintiff though may still have cause of action, his right of action, that is, the right to prosecute the right of action has been taken away by statute. The consequence of which no Court will have the jurisdiction or vires to entertain the action same having being filed in contravention of a Limitation law. See the following cases MILITARY ADMINISTRATOR EKITI STATE V. ALADEYELU (2007) 14 NWLR (PT.1053) 619., OWNERS OF THE M/V ?ARABELLA? V. NAIC(2008) 10 NWLR (PT.1097) 82, NASIR V. C.S.C., KANO STATE (2010) 5 NWLR (PT.1190) 253, AJAYI V. MILITARY ADMINISTRATOR OF ONDO STATE (1997) 5 NWLR (PT. 504) at 254. AJAYI V. ADEBIYI (2012) 11 NWLR (pt. 1310) 137, ALH.ADO IBRAHIM V. ALH. MAGIDA U. LAWAL & OR. (2015) LPELR SC. 99/2009 of 5/6/2015. PER ONIYANGI, J.C.A.
WHETHER OR NOT A WRIT OF SUMMONS AND THE STATEMENT OF CLAIM OF THE PLAINTIFF DETERMINES WHETHER OR NOT AN ACTION IS STATUTE BARRED
Having said this, another question is what is the determinant factor of an action that is said to be statute barred. Being a jurisdictional issue, it is the writ of summons and the statement of claim of the Plaintiff that has to be looked into. See the case of NASIR V. CIVIL SERVICE COMMISSION (2010) 1-2 SC Pg. 65, Pg. 82, GEORGE ABI V. CENTRAL BANK OF NIGERIA AND ORS. (2011) LPELR ? 4192, INDEPENDENT NATIONAL ELECTORAL COMMISSION V. OGBADIBO LOCAL GOVERNMENT & ORS (2015) LPELR ? 24839. PER ONIYANGI, J.C.A.
In addition to the foregoing is the case of ADIMORA V. AJUFO (1988) 3 NWLR (PT. 80) at 17 where Oputa JSC of blessed memory said thus: In dealing with limitation action, one of the most fundamental questions to answered is when did the cause of action accrue? This crucial question is also the most difficult as the answer will depend on the surrounding circumstances of each particular case. But may be a collateral cause of Action. In its best definition it consist of every fact which it would be necessary for the Plaintiff to prove, if traversed in order to support his right to judgment ..when these facts have occurred and provided there are in existence a competent plaintiff and a competent Defendant, a cause of action is said to accrue to the Plaintiff because he can then prosecute an action effectively. This accrual of a cause of action in the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his action. PER ONIYANGI, J.C.A.
DEFINITION OF “GENERAL” AND “SPECIAL” DAMAGES
General damages are such which the law will presume to be direct, natural or probable consequence of the act of the defendant complained of. Whereas special damages are those which the law will not infer because they do not flow in ordinary course. In character they are exceptional hence they must be specially pleaded and strictly proved. See GONZEE (NIG) LTD V. NERDC ? (2005) 13 NWLR (PT. 943) 643, ADECENTRO (NIG) LTD V.C. OAU (2005) 15 NWLR (PT.948) 290, S. P. D. C. (NIG) LTD V. TIEBO VII (2005) 9 NWLR. (PT.931) 439. Where the Apex Court said thus: The rule that special damages unlike general damages must be strictly proved is well founded in law. What this rule requires is that anyone making a claim in special damages must prove strictly that he did suffer such special damages claimed. All that the rule requires is that the person making a claim in special damages should establish his entitlement by credible evidence of such character as would satisfy the Court that he is in deed entitled to an award under the head. See also X.S.(NIG) LTD V. TAISEI (W.A.) LTD (2006) 15 NWLR (PT.1003) 533 where the supreme Court per Ogbuagu JSC Observed as follows ?It need be stressed that in a claim for damages for breach of contract, the Court is concerned only with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract?..But where a Plaintiff decides or goes further to claim special damages, such must be specifically pleaded and proved?… Special damages must be strictly proved. However, strick prove of special damages is no more than such proof as would lead itself to quantification and assessment…See also INTERNATIONAL MESSENGERS NIG. LTD V. ENGNR.DAVID NWACHUKWU (2004) 6-7 SC P.99, A.G. LEVENTIS (NIG) PLC V. AKPU (2007) 17. NWLR (PT.1063)416, ENEH V. OZOR & ANOR. (2016) LPELR ? 40830. PER ONIYANGI, J.C.A.
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Justice Plateau State holding at Bukuru in Suit No. PLD/J40/2011 delivered on the 7th day of December 2015 in which the trial Court entered Judgment in favour of the present Respondent as Plaintiff and against the Appellant as Defendant.
By a writ of summons filed on 9th February, 2011, the Respondent as Plaintiff claimed in paragraph 16 of his statement of claim against the Appellant as Defendant the following reliefs.
Paragraph 16:
?WHEREUPON the Plaintiff claim against the Defendant as follows:
a) A declaration that the piece of farm land situate at Dong Village, Jos, Plateau State and all economic crops on the land are the properties of the Plaintiff to the exclusion of the Defendant or anyone else.
b) Exclusive Possession of the land lying and situate at Dong Village, Jos Plateau State.
c) An Order Perpetual Injunction restricting the Defendant, his agents, privies, assigns, representatives howsoever described from encroaching or trespassing or claiming the portion of the land
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in dispute, situate at Dong village, Jos, Plateau State, including all crops and plants and anything there on the land in any form whatsoever.
d) Five million naira as general damages for trespass to land.
e) One million three hundred thousand naira as loss of earnings from fruits of economic trees.
The brief fact leading to the suit of the Respondent before the trial Court as can be garnered from the processes filed by the Plaintiff/Respondent is that he inherited the land in dispute from his late father who bought the said land in 1981 from one Stephen Tok, also known and called BoyiTok. (Both the father of the Respondent and Stephen Tok are late). It is the case of the Respondent that his father and the family were enjoying the peaceful possession of the land till 1986 when the Appellant/Defendant trespassed into the land. The Plaintiffs father complained to his vendor Stephen Tok who challenged the Appellant and filed suit number CV/137/86 against the Appellant. The case was decided in favour of Stephen Tok. The Appellant was ordered to vacate the land. The Defendant Appellant pleaded with the Respondent Plaintiff?s father to allow
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him occupy a portion of the land for farming. He was granted a portion of the land. After, the Respondent noticed that the Appellant was laying claim to the economic trees on the portion granted to him to farm. While farming on the said portion the Respondent posited that the Appellant used to give proceed of his harvest on the land to his father.
?
It was this act of laying claim to the economic trees on the portion granted to the Appellant to farm that caused the filing of the suit number JUACI/CV/6/06 at the Upper Area Court, Kabong Jos. In order not to run fowl of jurisdiction, the Respondent withdrew and discontinued the suit and hence it was struck out. After the Respondent filed the suit number PLD/J/40/2011 at High Court of justice Plateau State. Jos. At that Court, judgment was entered in favour of the Respondent. Miffed by the outcome of the said suit hence this Appeal by the Appellant.
The grounds of Appeal minus the particulars are:
1) The learned trial Judge erred in law when he proceeded to hear this matter for where he had no jurisdiction, the action having become statute barred.
2) The learned trial judge erred in law when he
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held as follows:
?With respect to the claim of One Million Three Hundred Thousand Naira (N1,300,000.00) only as loss of earnings from fruits of economic trees, I see that the Plaintiff pleaded in paragraph 13 of the statements claim that the fruits on that land were worth over N100,000.00 (One Hundred Thousand Naira) annually, and that for the last thirteen years, the Defendant had made him to lose this amount which accumulated to N1.3 million. And in paragraph 13 of his witness statement on Oath he states the same fact, this backing up the statement of claim with evidence as required by law. And since there is nothing challenging this evidence which is on Oath, the Court has little or no options to belief it.”
3) The learned Trial Judge erred in law when he held as follows:
?I therefore, hereby award the sum of One Million, Three Hundred Thousand Naira (N1,300,000.00) only in favour of the Plaintiff and against the Defendant. With respect to general damages which is at the discretion of the Court, I consider how long the case has taken from 2006 when the Plaintiff sued the defendant at the Upper Area Court Kasuwan Nama, which
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case was subsequently transferred to Upper Area Court Kabong before it was discontinued to pursue the claim at the High Court in 2011 and to the date in 2015, a period of ten (10) years.
I hereby award general damages of two million (N2,000,000.00) only.
4) The learned trial Judge erred in law when he gave judgment in favour of the Respondent/Plaintiff by relying on Exhibit ?P2? which allegedly was pleaded as Judgment in favour of the Respondent predecessor in tille and thereby occasioned a miscarriage of justice.
5) The learned Trial judge erred in law when he held thus:
?with respect to the claim of One Million Three Hundred Thousand Naira(N1,300,000.00) only as loss of earning from fruits of economic trees, I see that the Plaintiff pleaded in paragraph 13 of the statement of claim that the fruits on the land were worth over N100,000.00 (One hundred thousand naira) annually, and that for the last thirteen (13) years, the Defendant had made him lose this amount which accumulated to the N1.3 Million and in his paragraph 13 of his witness statement on Oath he stated the same fact, this backing up the statement of claim
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with evidence as required by law. And since there is nothing challenging this evidence, which is on Oath, the Court has little or no option than to believed it.?
6) The learned Trial judge erred in law when he held as follows:
?since the Defendant failed/rejected to come to Court (sic) to defend this suit, the statement of defence and counter claims are considered abandoned.”
7) The learned Trial judge erred in law when he gave judgment for the Plaintiff on the economic trees on the land in dispute when the issue of economic trees in the land in dispute was res judicata.
RELIEF SOUGHT
An order allowing the Appeal by setting aside the judgment of the Plateau State High Court.
The record of Appeal having being transmitted on 19th September, 2017 hence the filing and exchange of brief of argument by parties.
The Appellant?s brief of argument dated and filed on the 13th February, 2018 was deemed as properly filed and served on the 28th day of June 2018. There in the Appellant distilled the following issues for the determination of this Appeal:
1) Whether the action as constituted is not statute barred
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and therefore robs the Court of jurisdiction to entertain same.
2) Whether the learned Trial judge was right when he awarded special damages in favour of the Respondent in the absences of any evidence led in support.
3) Whether the learned Trial judge was right in awarding general damages after awarding N1,300,000.00 as special damages against the Defendant.
4) Whether the learned Trial judge was right when he admitted in evidence ?Exhibit P 2? (a writ of possession which was not pleaded) as the purported judgment of the lower Court i.e Area Court.
5) Whether the learned Trial judge was right by refusing to read Exhibit ?P2? because the Oral evidence of the plaintiff was not challenged.
6) Whether the dismissal of the Defendant/Appellant?s counter claim without setting same down for hearing did not deny him fair hearing.
7) Whether the learned trial judge had jurisdiction to have entered judgment for the Respondent when the matter was res judicata.
?
In the Respondent?s brief of argument filed on the 11th day of December, 2018 and deemed as properly filed and served on the 18th March 2019,
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the following three issues were presented for the determination of this Appeal. They are:
1) Whether the Honourable trial Court lacked jurisdiction to entertain and hear the suit No. PLD/J/40/2011 in all the circumstances of the suit at the lower Court. (Distilled from Grounds 1 and 7 of the Notice of Appeal which covers Appellant?s issue 1 and 7 of his brief of argument).
2) Whether the Respondent as Plaintiff before the lower Court proved his case to entitle him to the relief sought, in the suit No.PLD/J40/2011 where indeed the Appellant was not before the Court and had no pleadings before the lower Court (Distilled from Grounds 2, 3, 4, 5, 6 and 7 of the Notice of Appeal and Appellant?s issue 2, 3, 4, 5 and 6 in the Appellant?s brief of Argument).
3) Whether the Appellant can be heard to complain against the judgment in the suit No. PLD/J40/2011, having not appeared before the Court or filed pleadings before the lower Court despite hearing notices issued and served on the Appellant. (Distilled from Grounds 6 of the Notice of Appeal and issue 6 in the Appellant?s brief Argument.)
I have carefully read and compared
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the foregoing issues by respective Counsel. It is my view having regard to the grounds of Appeal to adopt the issue formulated by the Appellant. By that token, I will treat issued 1 and 7 together, issues 2 and 3 will be taken together and issue 4 and 5 will be taken together while issue 6 will be treated separately. However issues 1 and 7, 2 and 3 and 4 and 5 will be redrafted to now read:
1) Whether the action by the Respondent before the trial Court is statute barred and constitutes Res judicata having regard to Suit No. CV/137/1986.
2) Whether having regard to the evidence before the trial Court, the learned trial judge was right to award the Plaintiff Respondent both general and special damages.
3) Whether the admission of Exhibit P2 was proper in law and whether it was properly considered by the trial Court.
4) Whether the dismissal of the counter claim of the Defendant without setting same down for hearing does not infringe on the fundamental right of the Appellant to fair hearing.
From here, I will proceed to consider the issues as herein before redrafted and arranged.
ISSUE ONE
Whether the action by the Respondent
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before the trial Court is statute barred and also offend against the principles of Res Judicata.
The contention of the Appellant is that the suit by the Respondent is statute barred. He submitted that where a statute has prescribed a period within which an action should be brought, such action cannot be properly or validly instituted after the expiration of the prescribed period and that an action instituted after the expiration of the prescribed period would be statute barred. He relied on the following cases: OGUNKO V. SHELLE (2004) 6 NWLR (PT. 868) PG. 17 at 42 PARA F-H, OSUN STATE GOVERNMENT VS. DALAMI NIGERIA LTD (2007) ALL F WLR (PT. 365) PG. 438 at 450.PARA G-H. It is his case that time begins to run for the purpose of the limitation law from the date the course of action accrues. He relied on the case of BRITISH AIRWAYS PLC V. AKINYOSOYE (1995) 1 NWLR (PT. 374) PG. 722 @ 730 PARA H. Referring to paragraphs 12 and 13 of the Respondent?s witness statement on Oath at page 9 of the record of proceedings, he argued that the Respondent Plaintiff by his showing as per his statement of claim has gladly admitted the assailable fact that his course of
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action arose over 13 years ago. He submitted that a period of limitation is determined in a case by looking at the writ of summons and the statement of claim, witness statement on Oath which alleges when the wrong suffered by the Plaintiff was committed and place it side by side with the date on which the writ was issued. If the writ was issued beyond the time allowed by the applicable law, the action is statute barred. He added that apart from the foregoing, by pages 1-10 of the Record, where the witness statement on Oath and the writ of summons can be found, it can be seen that the course of action actually arose 25 years ago after the judgment in suit No: CV/137/86 delivered on 11th of March 1987. Whether Appellant/Defendant started laying claims to the economic trees on the land in dispute but the Respondent did not take action till 2011. He submitted that the Respondent cannot bring this action after 10 years when the cause of action accrued which is against the provisions of the limitation on Edict 1988 of laws of Plateau State, Section 3. He argued that in determining whether or not an action is statute barred the Plaintiff?s writ and statement of
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claim alleging when the cause of action was committed which gives the party complaining a cause of action has to be looked into. He cited in aid the following cases OYETOKI V. NIGERIA POSTAL SERVICES (2010) ALL FWLR (PT. 504) PG. 1585 ? 1589 (PARA G-A), NDUKA VS. OGBONNA (2011) NWLR PT. 1227 P. 168 PARA (A), ADEKOYA V. F.H.A.(2008) 11 NWLR. PT. 1099 (PG.556-557) PARA H ?A. By the foregoing, he submitted that the Respondent?s suit was not initiated by due process of law having being initiated 25 years after the cause of Action arose. By Section 3 of the limitation Law of Plateau State 1998, the Respondent Plaintiff cannot institute an action to recover the land or economic trees in dispute having initiated the Suit outside the statutory period and hence the Respondent is forever stopped from claiming the land as his action is in law statute barred. He added that the complaint of statute bar is an issue of jurisdiction and can be raised at any stage of the proceedings by the Defendant/Respondent or by the Court suomotu. He submitted that the trial Court lacked the jurisdiction to entertain the matter not withstanding that it was not
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challenged. He referred to the case of OBI V. ONYEMELUKWE (2011) 1 NWLR PT. 1228 PAGE 427-428 PARA G-A. He argued that the learned trial judge was wrong to have entertained this suit and awarded damages against the Appellant Defendant when the matter before him was statute barred and by that deprived the trial Court of jurisdiction to entertain same. He added that even though the defendant did not defend the suit, the learned trial judge ought to have looked at the claims of the Respondent to decide whether the claim was justiciable. He cited the case of OGUNYADE V. OSHUNKEYE (2007) ALL FWLR PT. 389 PG. 1197 AT PARA D ? E. He urged the Court to resolve this issue against the Respondent.
On the second leg of the issue dealing on whether the suit of the Respondent offends against the principle of Res Judicata. His contention is that the suit of the Respondent is caught in the webs of Res judicata. Referring to Exhibit ?P 2? (Writ of possession) of 1986 relied upon by the Respondent is in respect of the same land which is relitigated upon in 2011 and between the same parties. He added that Exhibit ?P2? is the writ of possession
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by the Area Court in Suit No. CV/137/86 on the judgment delivered on 11th March, 187 and that suit PLD /J/40/2011 reveals that the land is one and the same, the parties, the Appellant was the Defendant in suit No.CV/137/86 and still the Defendant in suit No PLD/J/40/2011 which is the subject of this Appeal. He added that the claim of the Respondent/Plaintiff against the Appellant is same with his successor in title?s claims against the Appellant/Defendant in Suit No CV/137/86. He poses the question, whether the judgment in Suit No. CV/137/86 was final judgment. He answered in the affirmative. He argued that the Plaintiff in suit No CV/137/86 are the privies, heirs, and successor in title of the Respondent/Plaintiff in suit No PLD/J/40/2011. The Defendant in Suit No. CV/137/86 is one and the same person in Suit No PLD/J/40/2011. It is his case that from Exhibit ?P2? that the Judgment therein was final with regard to the issue raised therein which i.e same as those raised in Suit PLD/J/40/2011. The Respondent is therefore, estopped from reopening same. He referred to the case of DAUDA VS. A. G. LAGOS STATE (2011) 13 NWLR (PT.1265) 427 at 477 Para
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C- G., SUARA YUSUF V. ADEGOKE & ODETUNDE (2007) VOL. 30 (PT. 1) NSCQR 269 at 299. He contended further that the Respondent/Plaintiff successors in title brought the action in suit No.CV/137/86 against the Appellant/Defendant over the land in dispute and judgment was delivered in it. There is a strict rule of law that the Respondent/Plaintiff cannot bring another action against the same party for the same cause. Any bid by a party to litigate the same issue in more than a single fora between the same parties and for same or identical reliefs being abuse of Court process should not be allowed. It is also his case that in order to sustain a plea of res judicata, the party raising same must satisfy the following conditions;
a) There must be a judicial decision.
b) The Court that rendered the decision must have had jurisdiction over the parties and the subject matter.
c) The decision must be final and on the merits.
d) The decision must determine the same question as that raised in the later litigation.
e) The parties to the later litigation were either parties to the either litigation or their privies on the earlier decision was in
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them.
He cited the case of BALOGUN V.ODE (2007) 4 NWLR (PT. 1023) PG. 1 at 20-21 Para (F-D). He contended that the Appellant has met all the foregoing precondition to make applicable the plea of Estoppel per rem judicatam.
He submitted that there must be an end to litigation in respect of the same subject by the same parties and that the Respondent should not be allowed to have a second bite at the cherry to the detriment of the Appellant. He relied on the case of ORODOEGBULAM V. ORODOEGBULAM (2014) 1 NWLR (PT. 1387) PG. 80 at 97 Para B-C. He urged the Court to hold that the learned trial judge erred in law and that the Judgment constitutes a miscarriage of justice to have relitigated an existing judgment in rem.
In response, the learned Counsel representing the Respondent submitted that it is trite that a party must succeed on the strength of his case and on the balance of probability. He relied on the case of ONWUBUARIRI V. IGBOASOIYI (2011) 2 SCNJ 72 at 88 ? 89. He argued that the weakness of the defence can help to strengthen the case of the Plaintiff. He referred to the case of AGBOOLA V. UBA (2011) 3 SCNJ 208 at 226 and the case of
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IDUNDUN V. OKUMAGBA (1976) 9 ? 1 SC 277. Where the apex Court laid down the five ways of proving ownership to a land.
He argued that from the state of pleadings, it is clear that the appellant did not file a valid statement of defence and counter claim within the required time prescribed under the Plateau State High Court (Civil procedure) Rules, 1987. He relied on Order 13 Rule 1 (1) (2) and (3) Order 14, Rule 3 (1) and order 24 Rule 1,2, and 3. It is his argument that by a writ of summons in the suit issued on the 11th of February, 2011, the defendant (Appellant) is commanded to enter appearance to the suit within 8 days of service on him. (pages 1 to 3 of the Record). The Appellant alleged to have entered appearance on 24th February, 2011. (See page 18 of the Record). But contrary to the Rules of Court, the Respondent was not served with the said memorandum of appearance. He added that the statement of defence was filed on 23rd of June, 2011, a period of over three (3) month?s (i.e. about 120 days) after appearance had been entered. It is his case that the statement of claim was served along with the writ of Summons, to which the Appellant
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entered appearance on the 24th of February, 2011. He argued that the said process was not served on the Respondent in compliance with the rules of the trial Court. He submitted that the foundation of the Appellant?s statement of defence before the Lower Court was the Memorandum of Appearances which must be served on the Respondent as required by the Rules.
Court processes must be served on the adversary in all cases. He cited the case of IHEDIOHA V. OKOROCHA (2016) 1 NWLR (PT. 1492) 147 at 179 & 183. Regardless of the foregoing, the Respondent called evidence, tendered documents and proved his case for abundance of caution. He relied on Order 27 Rule 4 of the Rules of the trial Court. Having not filed a valid statement of Defence the Appellant cannot raise Objection to the jurisdiction of the trial Court. The statement of defence files on 23rd day of June, 2011 was filed out of time and without leave of the trial Court and hence the Appellant cannot raise or argue that the lower Court had no jurisdiction or that the suit is res judicata. He relied on Order 24 Rule 1 which is against any form of demurer and that any point of law should be
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raised in the pleading. On what is meant by demurer, he relied on the case of PEMU V. NDIC (2016) 6 NWLR (PT. 1507) 175 at 205 PARA A-C. He argued that the Appellant has not complied with Order 24 Rule 1 of the rules which prohibit demurer proceedings. He cited the following cases: OBARO V. HASSAN (2013) 8 NWLR (PT. 1357) page 425 at 454 Para C ? D, MIDLAND GALVANISING PRODUCT LTD V. O. S. I. R. S. (2015) 8 NWLR (PT. 1460) 29at 44, IHEDIOHA V. OKOROCHA (SUPRA), PEMU V. NDIC (SUPRA), MADU V. ONONUJU (1986) 3 NWLR (PT. 26) 23, FADARE V.A.G. OYO STATE (1982) 4 SC. 1, PROVISIONAL COUNCIL, O. S. U. V. MAKINDE (1991) 2 NWLR (PT. 175) 613, DADA V. OGUNSANYA (1992) 3 NWLR (PT. 232) 754, PAN ATLANTIC SHIPPING. AND TRANSPORT AGENCIES LTD. V. GMBH (1997) 3 NWLR (PT. 493) 248, MOYOSORE V. GOV. KWARA STATE (2012) 15 NWLR (PT. 1293) 242. In the light of the fore going, he submitted that the Appellant?s case is on quick sand, and the Respondent?s case is very well established, therefore, the Appellants Appeal herein must fail. Where a statement of defence was filed out of time, it is trite that it would amount to nothing and cannot be reckoned with. He relied
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on the case of OLADIPUPO V. M.I.G.A. (2010) 5 NWLR. (PT. 1186) PG 117 at 178 Para C-E.
On the issue of statute bar, he submitted in the negative and argued that suit No PLD/J40/2011 is not caught by the Limitation law of Plateau State 1988. He added that the issue of Res judicata, (Jurisdiction) he argued are not magic wand in the hands of a Defendant. It is not a shield for a Defendant to continue acts of trespass. He contended that the sets of facts which have risen in Suit No. CV/137/86 are different from those which gave rise to suit No.UACI/CV/6/06 and suit NO. PLD/J40/2011. The Appellant?s act of trespass in the previous suits being different from the present one cannot in any way bar the Respondent from asserting a right over land. They being separate acts are therefore, justifiable in the circumstance. The parties are different exfacie. He referred to paragraphs 3 ? 15 of the testimony on Oath of PW4 Sworn to on 9th February, 2011. He added that it is clear from the averment in paragraphs 3 ? 15 of the Respondents statement on Oath that the acts of trespass are not the same even though the subject matter is the same. Yet the
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Plaintiff in Suit No. CA/137/86 was BOYI TOK and not the Respondent or his father Micheal Chuwak. Exhibit P2 was tendered at the lower Court to show the antecedents and the rights of the Respondent. The plea of Res judicata cannot stand in favour of the Appellant in this case. He urged the Court to resolve the issues in favour of the Respondent.
In my humble view which is informed by the foregoing, the pertinent question is whether or not the action of the Respondent as Plaintiff is statute barred and or caught by the plea of Res Judicata?.
?
I will like to commence my resolution of the issue with the complaint premised on statute of limitation. On this, the question is when will a suit be said to be statute barred?. The issue of whether or not an action is statute barred is a jurisdictional issue. When action is said to be statute barred, the Plaintiff though may still have cause of action, his right of action, that is, the right to prosecute the right of action has been taken away by statute. The consequence of which no Court will have the jurisdiction or vires to entertain the action same having being filed in contravention of a Limitation law. See
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the following cases MILITARY ADMINISTRATOR EKITI STATE V. ALADEYELU (2007) 14 NWLR (PT.1053) 619., OWNERS OF THE M/V ?ARABELLA? V. NAIC(2008) 10 NWLR (PT.1097) 82, NASIR V. C.S.C., KANO STATE (2010) 5 NWLR (PT.1190) 253, AJAYI V. MILITARY ADMINISTRATOR OF ONDO STATE (1997) 5 NWLR (PT. 504) at 254. AJAYI V. ADEBIYI (2012) 11 NWLR (pt. 1310) 137, ALH.ADO IBRAHIM V. ALH. MAGIDA U. LAWAL & OR. (2015) LPELR SC. 99/2009 of 5/6/2015.
Having said this, another question is what is the determinant factor of an action that is said to be statute barred. Being a jurisdictional issue, it is the writ of summons and the statement of claim of the Plaintiff that has to be looked into. See the case of NASIR V. CIVIL SERVICE COMMISSION (2010) 1-2 SC Pg. 65, Pg. 82, GEORGE ABI V. CENTRAL BANK OF NIGERIA AND ORS. (2011) LPELR ? 4192, INDEPENDENT NATIONAL ELECTORAL COMMISSION V. OGBADIBO LOCAL GOVERNMENT & ORS (2015) LPELR ? 24839. In particular, I seek refuge in the case of BELLO V. ATTORNEY GENERAL OF OYO STATE (1986) 5 NWLR (PT. 45) 828 at 876. Where his lordship Kabiri White JSC said thus:
?I think a consent action is constituted by the
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bundle of aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy sought. Thus the factual situation on which the Plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant.
In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim?..concisely stated, an Act on the part of the Defendant which gives to the Plaintiff his cause of complaint is a cause action?A cause of action is defined in Stroud?s judicial Dictionary as the entire set of circumstances giving rise to an enforcement claim. To our mind, it is, in effect, the fact or combination of facts which give rise to a right to sue and it consist of two elements: the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and the consequent damages. .the law is indeed well settled that a cause of action is constituted by the bundle or aggregate of fact which the
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law will recognize as giving a Plaintiff a substantive right to make the claim against the relief or remedy being sought. In other words, the factual situation on which the plaintiff relies to support his claims, must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. That is to say that the factual situation relied upon must constitute the essential ingredients of an enforceable rightIt is therefore, settled that a cause of action constitutes a giving rise to the Plaintiff?s enforcement claims against the Defendant. The fact and circumstance have to be as pleaded in the statement of claim. ?And so, it has to be ascertained by having recourse to the statement of claim. As can be seem from the definition, the proposition resolves into two crucial factors thus the Defendant?s wrongful act and the consequential damage to the Plaintiff. These two factors must co-exist to constitute a cause of action before the Court. It does not take account of whether the cause of action will succeed or fail. A cause of action is valid irrespective of the
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strength or weakness of the Plaintiff?s case.”
In addition to the foregoing is the case of ADIMORA V. AJUFO (1988) 3 NWLR (PT. 80) at 17 where Oputa JSC of blessed memory said thus:
?In dealing with limitation action, one of the most fundamental questions to answered is when did the cause of action accrue? This crucial question is also the most difficult as the answer will depend on the surrounding circumstances of each particular case. But may be a collateral cause of Action. In its best definition it consist of every fact which it would be necessary for the Plaintiff to prove, if traversed in order to support his right to judgment ..when these facts have occurred and provided there are in existence a competent plaintiff and a competent Defendant, a cause of action is said to accrue to the Plaintiff because he can then prosecute an action effectively. This accrual of a cause of action in the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his action.?
From the foregoing, an action would be statute barred when filed in contravention or outside the time
25
prescribed by a limitation law. To determine that, the time the cause of action accrued becomes very important and fundamental. It is from the time the cause of action accrued to the time the action was filed that would be calculated and compared with the time prescribed by the limitation law in issue to determine whether or not the action is statute barred. In the case at hand the complaint of the Appellant is that the action of the Respondent was filed in contravention and outside the time limited by Section 3 of the limitation edict of Plateau State 1988.
The simple fact in support of this, according to the Appellant is that the cause of action arose over 13 years ago. He referred to the statement of claim and the witness statement on Oath of the Respondent. He argued that by those two processes, the cause of action actually arose 25 years ago after the judgment in Suit No. CV/137/86 delivered on the 11th day of March 1987 when the Appellant started laying claim to the economic trees on the land in dispute but the Respondent did not take any action till 2011. He submitted that the Respondent?s action was not initiated by due process of law
26
having been instituted 25 years after the cause of action arose. Going by the provision of Section 3 of the Limitation Law, 1988 of Plateau State, the Respondent cannot institute an action to recover the land or economic trees in dispute having initiated the Suit outsider the statutory period hence the Respondent?s action is statute barred. The trial Court by that lacked jurisdiction over the matter.
The Respondent?s argument is that his action is not statute barred and that it is wrong for the Appellant to compute time from 2011 when Suit No. PLD /J40/2011 was filed. He added that a litigant who has taken step to file an action in Court against a wrong he is complaining of, cannot be said to have slept on his right.
It is his case that the computation made by the Appellant is palpably having regard to paragraph 9 of the statement of claim. He said his suit number PLD/J40/2011 is not caught by the limitation law of Plateau State, 1988.
?
The issue of statute barred action is a statutory defence. It is trite that where a statute of limitation prescribes a period within which an action must be commenced no valid legal action can be
27
instituted outside the time limit prescribed by such law. Where therefore, an action is statute barred a Plaintiff who hitherto had a cause of action loses the right to enforce the cause of action by judicial process because the time to institute such action has lapsed. See SHELL PETROLEUM DEVELOPMENT CORPORATION V. FARAH (1995) 3 NWLR (PT. 382) 148, MUHAMMED V. MILITARY ADMINISTRATOR, PLATEAU STATE (2001) 16 NWLR (PT. 740) 524; YUSUF V. CO-OPERATIVE BANK LTD (1994) 7 NWLR (PT. 359) 676.
In the issue at hand, the limitation law in contention is Section 3, Plateau State limitation edict 1988. For purposes of better understanding, I reproduce herein under the provision under reference:
?No action shall be brought by any person to recover any land after the expiration of ten (10) years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims, to that person.”
A quick look at the writ of summons and the statement of claim of the Respondent as Plaintiff before the High Court of Plateau State Jos revealed that suit number PLD/J/40/2011 was filed on the 9th day of February, 2011.
28
Consequent upon a careful reading of the statement of claim and the witness statement on Oath of the Respondent as Plaintiff the following facts are ascertained.
That the Respondent derived his title from his late father MichealChuwak and that the said MichealChuwak purchased the land from Stephen Tok (A.K.A BoyiTok). Both of them deceased. The Respondent derived his title from his late father MichealChuwak. Before the demise of MichealChuwak, the Appellant was said to have trespassed into the land owned by Chuwak the father of the Respondent. Chuwak reported to his vendor Stephen Tok (A. K. A BoyiTok) who then instituted an action in 1986 against the Appellant. The Suit number is CV/137/86. Judgment was entered against the Appellant on 11th March, 1987. Ownership of the land was given to the Respondent?s father, the Appellant having being declared a trespasser. He was asked to vacate the land. The Appellant pleaded with the Respondent father to be allowed to farm on a portion of the land. He was granted. It is in the Pleadings of the Respondent that the Appellant used to give proceed of the harvest from the land to the Respondent?s father.
29
(See paragraphs 7 & 8 of the statement of claim on pages 4 ? 6 of the Record of Appeal). When the Respondent noticed that the Appellant was laying claim to ownership of the economic tree on the portion of land he was granted permission to occupy and farm hence the suit No. PLD/J/40/2011. Which is the subject of this Appeal and which the Appellant is contending to be statute barred. The foregoing, fact are not indispute by parties. The pertinent question is whether the suit filed in 2011 is statute barred.
From the fact of this case, the fact leading to the suit against the Appellant by Stephen Tok (A. K. A BoyiTok) in suit number CV/137/86 is different from that by the Respondent against the Appellant in Suit No. PLD/J/40/2011. The cause of action in suit No CV/137/84 was successfully prosecuted and judgment delivered on 11th March, 1987. Looking at the date the suit was instituted in 1986 and when judgment was delivered in 1987, the Plateau State limitation Edict of 1988 was not in existence. It is trite that laws are not made to have retroactive effect. That is to say that no act will constitute an offence without an existing written law. The
30
latin maxim is ?NullumCrimensine lege? meaning that where there is no law there is no crime. That being as it may, the question now is whether or not the suit by the Respondent No. PLD/J/40/2011 is statute barred. My answer to this is in the negative. This is because, the action so filed being for trespass and ownership is still alife and potent when the action was filed. The issue of trespass complained of by Stephen Tok (A.K.A BoyiTok) was different from when the Respondent now had the vires as owner of the land having inherited same from his deceased father Micheal Chuwak. Since the appellant was still occupying the adjudged land of the Respondent and now laying claim to Ownership of the land and the economic trees therein constitute a fresh cause of action accruing to the Respondent. It will be recalled as can be garnered from the statement of claim (See paragraph 9 of the statement of claim on page 5 of the Record of Appeal) that the Respondent notice of the claim of the Appellant to the economic trees was in 2006. That was when he look the first step to judicially remove the Appellant from the land. See Suit No.JUAC1/CV/6/06. Instituted at the
31
Upper Area Court KasuwaNama Jos. The said suit was transferred to Upper Area Court Kabong, Jos, where the Respondent filed a notice of discontinuance and the matter was struck out. In 2011 the Respondent relitigated the action at the High Court of Plateau State Jos in suit number PLD/J/40/2011. If the Responded as new owner of the land noticed the claim of the Appellant in 2006 and filed an action that year and which was discontinued and subsequently initiated another action in 2011 against the same party (the Appellant) which gave a period of 6 year from the year 2006 to 2011, the action of the Respondent cannot be said to be statute barred. It does not contravene the limitation Edit of Plateau State of 1988. I accordingly so hold.
Next is the complaint whether or not the plea of Res judicata can avail the Appellant having regard to the fact of this case. From the foregoing facts it is not disputed by the Appellant, that the judgment delivered on the 11th day of March 1987 sent him out of the land. By paragraph 8 and 9 of the statement of claim which to me has also not been denied, he was brought back to the premises to farm by virtue of the permission
32
so granted by the Respondent?s father who was then the owner and in possession having regard to the judgment of 11th March, 1987. These are not in dispute. Having being brought back and ownership of the land now vest in the respondent who now alleged a fresh act of trespass and claim by the Appellant to the economic trees on the portion occupied by the appellant, the fresh suit of the Respondent on that fresh complaint by the new owner of the land cannot constitute res judicata. It is trite that the principle of Res judicata is aimed at avoiding multiplicity of action between the same parties privies and subject matter and where there is an existing valid judgment given by a competent Court. See MR. EZEKIEL ALABA AJAYI V. MR. OLAWALE OLOWU (2010) LPELR ? 3674, WILLIAM LADEGA V. SHITTU DUROSIMI & ORS (1978) 3 SC, 91 at IDI, EKAETE BASSEY OKPOSIN & ORS V. FLORENCE ASSAM & ORS (2005) 7 SCNJ 442, SALAMI ADESINA V. COMMISSIONER IFON ILOBU BOUNDARY COMMISSION (1996) 4 SCNJ PG. 112 at 199, TIAMIYU SHITTU & ORS V. JIMOH AREMU OLAEGBE (2009) LPELR ? 8918. DANIEL TAYAR TRANS. ENT.NIG.CO. LTD V. BUSARI (2011) 8 NWLR 387. Agree the subject
33
matter is same, but the parties now are not the same. I therefore have no hesitation in any mind that the plea of Res judicata does not apply in the circumstance of the matter before the trial High Court. Accordingly I resolved this issue against the Appellant.
ISSUE 2
?Whether in the circumstance of the evidence before the Court the learned trial Judge was right to award to the Respondent both general and special damages?.
The argument of the learned Counsel representing the Appellant in respect of this issue is that the learned trial judge was wrong in making a finding as to special damages in favour of the Respondent and awarding same. He added that Courts have long settled the principle that special damages (in Tort) are based on measurable Naira amounts of actual loss and it is for this reason that they are expected to be specifically pleaded and strictly proved. He said that special damages are those that are reduced to a ?sum certain? He contended that there was no assessment of the yearly earning of the economic trees neither was any evidence led in that regard. He relied on the case of ORJI V. ANYASO (2000) 2 NWLR
34
(PT.643) PG 1 at 32 -33. Para H ? A. He added that apart from the requirement of pleading special damages, it must also be strictly proved with relevant particulars and credible evidence. He cited the case of GARI V. SEIRAFINA (NIG) LTD (2008) 2 NWLR (PT. 1071) PG. 1 at 27 -28 PARA F-G and Order 25 Rule 5 (1) of the Plateau State High Court (Civil Procedure) Rules 1987. It is his contention that paragraph 13 of the statement of claim and paragraph 13 of the witness statement of claim, are mere assertions lacking in any credible evidence as well as an assessment in support of the purported annual earning. In the absence of credible evidence in support of a claim for special damages the Court would be left with no option than to dismiss the claim. He relied on the case of Hon. (NZE) HYGINUS JC. OGBIRI & ANOR V. NIGERIA AGIP OIL COMPANY LTD (2010) LPELR ? 4686, WO 2 OBAFEMI ABIODUN ANTHONY V. BAKO GIWA & ANOR (2011) LPELR ? 5103. He urged the Court to find that the learned trial judge conclusion on the award of special damages is wrong. He cited the case of HELIOS TOWER LTD V. BELLO & ANOR (2015) LPELR -25206.
35
?On the award of general damages of N1,300,000.00 against the Appellant he submitted that the award of N1,300,000.00 plus the award of N2,000,000.00 as special damages amount to double compensation. He referred to the case of MTN V. MUNDRA VENTURES (NIG) LTD (2016) LPELR ? 40343, TSOKWA MOTORS (NIG) V. UBA PLC (2008) 2 NWLR (PT. 1071) 347 at 366 PARA B., EMIRATE AIRLINE V. NGONADI (2014) 9 NWLR (PT. 1413) PG. 506 at 545-546, S. P. D. C. (NIG) LTD V. KATAD (NIG) LTD. (2004)LPELR ? 7430, KEREWI V. ODEGBESAN (1965) ANLR 95, ADEKUNLE V. ROCKVIEW HOTEL LTD. (2003) LPELR-5414 (PP.16-17) PARA G-P. He urged the Court to find that the award of general damages is wrong and to reverse it and allow the Appeal.
The Respondent relied on his submission on issue one as it relates to jurisdiction and urged the Court to adopt same for issue 2. He urged the Court further to refer to the provisions of the rules relating to pleadings and the fact that the Appellant filed his statement of defence before the lower Court outside 120 days of service on him of the writ of summons and statement of claim. He referred to pages 8 ? 10, 53 to 56 of the Record of Appeal. He submitted
36
that the Appellant had no defence to the suit. He cited the case of L. S. W. C. V. SAKAMORI CONST. (NIG) LTD (2011) 12 NWLR (PT. 1262) 569 at 600 Para F-H, F.R.N.V. ABACHA (2008) 5 NWLR (PT. 1081) 634. He argued that the fact the Appellant did not serve a memorandum of appearance on the Plaintiff and that the statement of defence was filed out of time without leave of Court, leads to the irresistible conclusion that the Appellant did not intend to defend the suit, was lackadaisical about the suit and had no defence /counter claim before the lower Court. He said where a Defendant has filed a defence and does not lead evidence on it, the defence would be deemed abandoned. He referred to the case of THE ADMINISTRATORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) V. SAMUEL DAVID EKE ? SPIFF & ORS (2009) 2 SCNJ 199 at 150. That when evidence before a Court is not challenged,the Court can safely act on it. He referred to IEKA V. TYO (2007) 11 NWLR (PT. 1045) 385 at 404, ADAWON V. ASOGBA (2008) ALL FWLR (PT. 420,747) at 757, AWOYOOLU V. ARO (2006) NWLR (PT.971) 481. It is his argument that the contention of the Appellant that the trial Court only relied on
37
Exhibit P2 in giving its judgment in favour of the Respondent is wrong because there are other documentary evidence duly tendered and coupled with cogent oral testimonies. The Respondent called three (3) witnesses and also testified and tendered documents proving his title. He cannot therefore, be faulted. He referred to the testimonies of PW 1 at pages 13 ? 14 and 62 -63 of the record of Appeal, PW2 at pages 11 to 12 and 64 to 65, PW3 at pages 15 to 16 and 65 ? 66,and PW4 at pages 8 ? 10, 53 to 56 and 87 to 89 and coupled with Exhibit P1 to P6 tendered by PW4. He argued that the Appellant is a trespasser and hence the Appellant will be liable in damages and hence the rationale for the grand of N2.0 Million general damages for trespass. He relied on the case of ALH. ALI NA BABA ? IYA V. MUSTAPHA MAI SIKELI (2005) ALL FWLR (PART 289) 1230 at 1251, O.M.T. CO. LTD V. IMAFIDON (2012) 4 NWLR (PT.1290) 332 at 346 Para B-D. He urges the Court to hold that the argument of the Appellant?s Counsel that the Court relied on Exhibit P2 is of no moment. He added that Exhibit P2 is a writ of possession in suit No. CV/137/2006 in favour of the
38
Respondent and that the said writ states that the Respondent is the owner of the land. On the grant of the special damages, he argued that the Appellant did not take cognisance of the testimony of PW4 in his two witness statement on Oath when he testified as to the proceed from the farm. Since issues were not joined on this, and in the absence of any valid defence, the evidence of PW4 is sufficient. He relied on the following cases. OLADIPO V. M.I.G.A. (SUPRA) and MUBO V. ALABI (2008) ALL FWLR (PART. 404) 1473 at 1511. Citing Order 27 Rule 4, he argued that the trial Court is bound to belief and accept the evidence presented before it in that there was no evidence to the contrary before it. He added that the cases relied upon by the Appellant in his brief are different from the instant case in that, in those cases there were valid defences filed and the parties gave evidence. That position is not the case here and therefore, the trial Court had no reason to disbelieve the testimony before it.
?
On the issue of granting general and special damages, he argued that the learned counsel to the Appellant seems to be confused. He said further that the claim for
39
general damages in this case was for trespass to land and not for the economic trees and the fruit there on and hence the trial Court was right. He submitted that the law is trite that trespass is actionable per se. Where a party is found to be in trespass, the successful party will be entitled to damages as in this case. He added that both general and special damages can he granted together and where granted would not amount to double compensation. Further he said that the award of special damages has nothing to do with Exhibit P2 and that the trial Court relied on the testimonies and documents presented before it in giving its judgment.
Considering the foregoing argument on issue of award of special and general damages, I consider it apt to bring to bear what is general and special damages.
General damages are such which the law will presume to be direct, natural or probable consequence of the act of the defendant complained of. Whereas special damages are those which the law will not infer because they do not flow in ordinary course. In character they are exceptional hence they must be specially pleaded and strictly proved. See GONZEE (NIG) LTD V. NERDC ?
40
(2005) 13 NWLR (PT. 943) 643, ADECENTRO (NIG) LTD V.C. OAU (2005) 15 NWLR (PT.948) 290, S. P. D. C. (NIG) LTD V. TIEBO VII (2005) 9 NWLR. (PT.931) 439. Where the Apex Court said thus:
The rule that special damages unlike general damages must be strictly proved is well founded in law. What this rule requires is that anyone making a claim in special damages must prove strictly that he did suffer such special damages claimed. All that the rule requires is that the person making a claim in special damages should establish his entitlement by credible evidence of such character as would satisfy the Court that he is in deed entitled to an award under the head. See also X.S.(NIG) LTD V. TAISEI (W.A.) LTD (2006) 15 NWLR (PT.1003) 533 where the supreme Court per Ogbuagu JSC Observed as follows ?It need be stressed that in a claim for damages for breach of contract, the Court is concerned only with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract?..But where a Plaintiff decides or goes further to claim special damages, such must be specifically pleaded and
41
proved?… Special damages must be strictly proved. However, strick prove of special damages is no more than such proof as would lead itself to quantification and assessment…?
See also INTERNATIONAL MESSENGERS NIG. LTD V. ENGNR.DAVID NWACHUKWU (2004) 6-7 SC P.99, A.G. LEVENTIS (NIG) PLC V. AKPU (2007) 17. NWLR (PT.1063)416, ENEH V. OZOR & ANOR. (2016) LPELR ? 40830.
Bearing the foregoing in mind I will examine each of the awards so as to determine whether or not they are appropriate in the circumstance of fact of this case. First is the special damages which is predicated on loss of hearing predicated on the claim of the economic trees and fruits on the land by the Appellant. It is obvious from Exhibit P2, that in the judgment in suit No. CV/137/86 delivered on 11th March 1987, the Respondent?s Father through his vendor Stephen Tok (A.K.A BoyiTok) was granted the ownership and possession of the land in dispute. The averment of the Respondent in paragraphs 6, 7, and 8 are not in dispute. The Appellant did not offer any evidence to dispute the averments and deposition. My careful perusal
42
of the statement of defence by the Appellant did not specifically deny, refute nor contradict the averment of the Respondent and the evidence of PW4, (the Respondent). The law is trite that facts not disputed are taken as established and need not be further proved. See DIN V. AFRICAN NEWSPAPERS OF NIG LTD (1990) 3 NWLR (PT. 139), IGWE V. ACB PLC (1999) 6 NWLR (PT.605) 1 at 11, SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED V. CHIEF TRUELOVE ORUAMBO & ORS (2011) LPELR ? 4954. It is also trite that where a party does not accept the entire testimony or some part of the testimony of an adverse party?s witness, but failed to adduce evidence in rebuttal or failed to cross examine the witness, the Court is entitled to hold as in this case that the testimony is not disputed. See ATTORNEY GENERAL OYO STATE V. FAIRLAKE HOTEL LTD (NO 2) (1989) 5 NWLR (PT.121) 255, AMADI V. NWOSU (1992) 5 NWLR (PT.241) 273, HON. SAUDATU A. SANI & ORS V. ENGR. SULEIMAN ALIYU LERE & ORS (2009) 1 LPELR ? 4930.
?
The learned trial judge in his wisdom concluded as follows on this issue under consideration (see pages 93 -94 of the record of Appeal).
43
?I have perused the written witness statement on Oath of PW1, PW2, PW3 and PW4 and find the story consistent and believable, in the absence of defence that contradicts or controverts the Plaintiff?s evidence and that of his witnesses.
Since the Defendant failed/neglected to come to Court to defend the suit the statement of defence and counter claim are considered abandoned. And this being so, the case for the Plaintiff is unchallenged, uncontradicted and uncontroverted. The Court has no option but to believe the evidence of PW1, PW2, PW3, and PW4.
I therefore, hereby hold that the plaintiff has proved his case on the balance of probability or by preponderance of evidence. I hereby enter judgment in favour of the Plaintiff, with the order of perpetual injunction against the Defendant being granted.
With respect to the claim of one Million three hundred thousand naira (N1,300,00.00) (sic) only as loss of earning from fruits of economic trees, I see that the Plaintiffs pleaded in paragraph 13 of the statement of claim that the fruits on that land were worth over N100,000.00 (One hundred thousand naira only) annually, and that for
44
the last thirteen (13) years, the defendant had made him toloose this amount, which accumulated to the N1.3 Million. And in his paragraph 13 of his witness statement on Oath he started the same fact, thus backing up the statement of claim with evidence by law. And since where is nothing challenging this evidence which is on Oath, the Court has little or no option to believe it.
I therefore, hereby award the sum of one Million, three hundred naira (sic) (N1,300,00.00) (sic) only in favour of the Plaintiff and against the Defendant..?
The foregoing is clear and unambiguous. The Appellant who did not tender any evidence to rebut, contradict nor challenge the averments by the Plaintiff and his witness cannot through his brief of argument make spirited efforts to deny the facts and evidence. It is not only late but such must not be allowed at this stage. Since there is nothing before the trial Court placed by the Appellant to contend the evidence and deposition of the Respondent. It will be most unjustifiable in the circumstance to fault the finding of the trial Court on the award of special damages. I found the
45
claim adequately and specifically pleaded and credible evidence was placed before the Court to justify the award.
On the award of N2,000,000.00 (Two million Naira) as general damages, the learned trial judge concluded as follows: (See page 94 of the record of Appeal).
?With respect to general damages, which is at the discretion of the Court I consider how long the case has taken from 2006 when the Plaintiff sued the Defendant at the Upper Area Court, KasuwanNama, which case was subsequently transferred to Upper Area Court Kabong before it was discontinued to pursue the claim at the High Court in 2011, and to this date in 2015, a period of (10) years.
I hereby award general damages of two million (N2,000,000.00) only.”
A sober reading of the foregoing clearly shows that the Court in awarding the sum of N2,000,000.00 (Two Million Naira) as general damages jettisoned the ground upon which the Respondent predicated his claim which is for trespass. Rather the Court based the award on the duration of the case of the Respondent from Upper area Court, KasuwanNama to Upper Area Court Kobong where it was discontinued and when it was
46
instituted at the trial Court i.e. 2006 till when Judgment was delivered in 2015. The learned trial judge put the total number of years to 10 years. For this he awarded a general damage of N2,000,000.00. Based on the pleading and fact of the case and coupled with the claim of the Respondent as specified in paragraph 16 (D) of the statement of claim contained on page 6 of the record of Appeal and paragraph 16 (d) of the witness statement on Oath of the Respondent as PW4 where in the Respondent claimed as follows:
?Five Million Naira as general damages for trespass to land.”
To me what the Court granted and awarded is in the nature of cost and not the general damages sought.
?
I am not unmindful of the fact that this Court is always reluctant to interfere with the exercise of discretionary power by a trial Court where the discretion is exercised judicially and judiciously and on sufficient materials. But where the contrary is done, the Court will not hesitate to step into the shoes of the trial Court and do what is judicial and judicious in the circumstance. See JVC PROFESSIONAL PRODUCT (UK) LTD V. FAMUYIDE (2010) LPELR ? 4363.
47
Where this Court per Adzira Gana Mshelia JCA and the presiding Justice Court of Appeal Jos Division said thus:
?The law is clear that a discretion properly exercised by a trial judge or lower Court will not be lightly interfered with by an appellate Court even if the appellate Court was of the view that it might have exercise the discretion differently It is only when a trial judge or a lower Court exercised discretion upon a wrong principle or mistake of law or under a misapprehension of fact or took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice that the appellate Court will not abdicate its duty to interfere with the exercise of that discretion in order to correct or prevent the injustice.”
See the cases of BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED V. THE ATTORNEY GENERAL OF LAGOS STATE & ORS (2014) LPELR ? 23200, MR RICHARD OGUNSANYA V. PRINCE JAMIU OLALEKAN SULE ONOSIPE (2016) LPELR ? 40560, ANYAH V. AFRICAN NEWSPAPERS OF NIGERIA LTD (1992) 7 SCNJ 47. ALHAJI MUJAHID DOKUBO ? ASARI V. FEDERAL REPUBLIC OF NIGERIA
48
(2007) LPELR ? 958 AND CHIEF NICHOLAS BANNA V. TELEPOWER (NIG)LTD (2006) 15 NWLR (PT.1001) 198.
In my humble view the learned trial Judge did not consider the issue on the alleged trespass upon which the Respondent based his claim of N5,000,000.00 as general damages but on the duration of the case by the Respondent at the Upper Area Court to the High Court (the trial Court).i. e. Ten years.
The exercise of the discretion by the trial Court is erroneous and not judicially nor judiciously done. I am left with no other Option than to interfere with the exercise of the discretionary power of the Court in the award of the general damages of N2,000,000.00.
This issue is resolved in part in favour of the Appellant as it relates to the award damages of N2,000,000.00 (Two Million Naira) and in the other part in favour of the Respondent as it relates to the special damages of N1,300,000.00 (One Million, three hundred thousand Naira). Accordingly I set aside the award of N2,000,000.00 awarded in favour of the Respondent as general damages.
In order to put this issue to rest, I have decided to step into the shoes of the trial Court pursuant to
49
Section 15 of the Court of Appeal Act 2004 and Order 20 Rule 11 (1) and (2) of the Court of Appeal Rules 2016 and consider the issue of general damages claimed by the Respondent. From the available evidence and pleading contained in the record of Appeal, it is the evidence of the Respondent that after the judgment of the Court below in suit No CV/137/86 delivered on 11th March 1987, the Appellant was sent out of the portion of land he was occupying in the Respondent?s father land which the Respondent has now become owner by inheritance. The Appellant pleaded with the Respondent father for a portion of land to farm and he was granted and hence the reoccupation of a portion of the land by the Appellant. It was when the Respondent noticed that the Appellant started laying claim to the economic trees and fruits that the Respondent commenced another action in 2006 against the Appellant to eject him from the premises and which led to the judgment the subject matter of this Appeal. My concern is the averment in paragraphs 6, 7, 8, 9 and 10 of the statement of claim (See pages 4 and 6 of the Record of Appeal and paragraph 5, 6, 7, 9 and 10 of the witness
50
statement on Oath by the Respondent. (See pages 8-9 of the Record of Appeal). The community reading of the foregoing paragraphs under reference is that the Appellant was granted or and allowed to re enter the land and farm. The word trespass is generally a civil wrong recognized in the law of tort where there is an allegation of unauthorized interference with the possession of land or any fixtures thereon by a person who cannot show or does not have better right or title to the land in dispute. Put in another way, trespass is the slightest unauthorized disturbance or interference with the exclusive possession of land by a person who has the right to retain it and to disturb his enjoyment of it by another person who has no right or better right to possession or title of the land. See DAVID OYE OLAGBEMIRO V OBA ALADUNNI AJAGUNGBADE III & ANORS. (1990) NWLR (PT.136) 37, PAULINUS CHUKWU & ORS V. MATHEW AKPELU (2013) LPELR ? 21864, AND DICKSON FRIDAY DICKSON & ANOR V. NATHANIEL MOSES ASSAMUDO (2013) LPELR ? 20416. In the light of the foregoing averments, it is clear as crystal that the Appellant was authorized by the Respondents father to
51
re-enter the land and farm.
If that is so, then the Appellant cannot be said to have trespassed into the land. He was granted permission to enter, occupy and farm. Therefore, the issue of any award of general damages for trespass will also not arise. Again I resolve the issue against the Respondent and decline to make any award as general damages for trespass. By this therefore, this issue is put to rest.
ISSUE 3
Whether the admission of Exhibit 2 was proper in law and whether it is properly considered by the trial Court.
The contention of the Appellant is that the decision of the trial Court was unsupported by law and that the error has occasioned a miscarriage of Justice. His contention in summary is that Exhibit P2 was not pleaded and that evidence not backed up by pleadings goes to no issue. He referred to the case of BUHARI & ORS V INEC (2008)12 SCNJ (PT.1) PG.1 AT 102, P.E LTD V LEVENTIS TRADING CO. LTD (1992)5 NWLR (PT.244) PG. 675 AT 696 PARA E. He submitted that the learned trial Judge erred in law when he admitted in evidence Exhibit P2 (A Writ of possession) which emanated from the Area Court Grade 1 Jos. He argued that
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the factual matrix of the point in issue is neither complex nor convoluted. He went further to say that PW4 pleaded in paragraph 6 of his statement of claim a copy of the Judgment delivered on 11th day of March, 1987 but what was tendered and admitted as Exhibit p2 was not Judgment pleaded but a writ of possession which was not pleaded. He also referred to paragraph 6 and 7 of the witness statement on oath of PW4 contained on page 8 of the record of Appeal and coupled with the viva voci evidence of PW4 contained on pages 4, 5 and 6 and precisely page 4 lines 22 and on pages 87, 88 and 89 of the Record of Appeal. He submitted further that it is an established principle of law and the law is trite that pleadings are not synonymous with evidence and so cannot be construed as such in the determination of the merit or otherwise of a case. Evidence on fact not pleaded goes to no issue. He relied on the case of THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) V SAMUEL DAVID EKE-SPIFF & ORS (2009)2 SCNJ PAGE 119 AT 149. He argued that it is a laid down elementary but fundamental rule of pleading that parties are bound by their
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pleadings. A party is estopped from introducing at the trial what is not contained in his pleadings. He cited the case of AKANDE V ALAGA (1988)7 S.C (PT.11) PG.10 AT 22, LINES 20-30.
He urged the Court to resolve in favour of the Appellant that the act of the trial judge in relying on Exhibit P2, which was neither pleaded nor led in evidence at the trial and in awarding the sum of N1,300,000.00 (One Million, Three Hundred Thousand Naira) in favour of the plaintiff against the Defendant as loss of earning from fruits of economic trees is misplaced, unfounded, perverse and it occasioned a gross miscarriage of justice.
The respondent?s reaction to the foregoing is that the, issue is of no moment and that the substance and purpose of Exhibit p2 is what the Appellant should be concerned with. He relied on the case of OGBIMI V NIGER CONSTRUCTION (2006) SCNJ 140 AT 151.
I have carefully read the pleading of the Respondent as it relates to Exhibit P2 admitted by the trial Court and to which the Appellant are now asking this Court to discountenance and expunge from the record. The relevant part of the Respondent Statement of Claim on this issue is
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paragraph 6 and also paragraph 6 of the witness statement on oath of the Respondent. The said averment in paragraph 6 of the statement of claim runs thus:
?The Plaintiff aver that as a result of the complaint made by the plaintiff?s father the said BOYI TOK intervened and sued the Defendant in the Suit No. CV/137/86 which Suit was decided in favour of the said predecessor in-title to the plaintiff (by extension the plaintiff) as the owner of the land. And the said Stephen BoyiTok gave the plaintiff?s father the copy. A copy of the Judgment delivered on the 11th March 1987 in the Suit No. CV/137/86 is hereby pleaded.?
The contention of the Appellant is that what was tendered instead of the Judgment pleaded in paragraph 6 of the Statement of Claim it was the Writ of possession on the Judgment of the Area Court that was tendered and admitted as Exhibit P2. A quick look at the said Exhibit shows that Exhibit P2 is not the Judgment but a writ of possession which contained the decision of the trial Court. The law is settled that when a document or matter has been improperly received in evidence both the trial Court and the Appeal
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Court have the power to expunge it from their record. See AJAYI V FISHER (1956) SCNLR 279; CHIGBU V TONIMAS (NIG.) LTD (1999)3 NWLR (PT.593) 115, AGBAJE V ADIGUN (1993)1 NWLR (PT.269) 261; ETIM OKOKON ITA & ANOR V NKOYO EKPENYONG & ANOR (2001)1 NWLR (PT.695) 582. The issue of expunging already admitted Exhibit has been clarified in the case of NWOSU V UDEAJA (1990)1 NWLR (PT.125) 188 AT 210-211, Agbaje JSC has this to say:
?I must comment on the decision of the learned trial Judge to review his earlier decision on certain documents already tendered and admitted in evidence. It must be pointed out that the rulings of the learned trial Judge admitting the Exhibits in evidence are decisions or orders of that Court. And it has been said in OBIMONURE V ERINOSHO (1966)1 ALL N.L.R 250 that the inherent jurisdiction of a Court to set aside its Judgment or order is limited to Judgment or orders which are nullities. See OGBU V URUM (1981)4 SC1. There is no question of the ruling of the learned trial Judge admitting all the various Exhibits in evidence being a nullity. So the question of the learned trial Judge setting aside that decision or ruling for
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that reason does not arise. So the learned trial Judge could not set aside that decision or ruling. So all the Exhibits which the learned trial Judge had previously admitted in evidence in the case should have been considered by him in coming to a decision in this case. In other words the weight to be attached to each of the Exhibits ought to have been considered by him. So in my Judgment, Exhibit ?G? and ?H? which has been admitted in evidence should have been considered along with the other documentary evidence in the case. However the weight to be attached to the document is another matter.?
On the same issue Nnaemeka-Agu JSC at page 219-211 said thus:
?I very much doubt the propriety of the procedure whereby a Judge admits some documents as Exhibit and latter turn round to reject them as inadmissible. This procedure has not the support of decided cases, unless, of course the original decision to admit them was null and void…?
From the foregoing, it is clear that though Court can expunge an Exhibit already admitted in evidence but only when the admission of such an Exhibit is a nullity in law.
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Agree the Respondent pleaded Judgment in Suit number CV/137/86 to buttress his claim of ownership of the land in dispute but tendered the writ of possession of the same land in the same suit enforcing the same Judgment. In my humble view the admission of Exhibit P2 without any objection is not and does not constitute a nullity. Rather I consider it relevant to the general circumstance and fact of this case.
Under Sections 4 and 5 of the Evidence Act the admission of Exhibit P2 can be accommodated. I herein under reproduce the said Sections 4 and 5 of the Evidence Act 2011 as amended;
Section 4. ?Facts which though not in issue are so connected with a fact in issue as to form part of the same transaction are relevant whether they occurred at the same time and place or at different time and places.?
Section 5. ?Facts which are the occasions, cause or effect, immediate or otherwise, of relevant fact, or but in issue, or which constitute the state of thing under which they happened or which afforded an opportunity for their occurrence or transaction are relevant.?
On this note, I considered Exhibit P2 relevant to the
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fact in issue in the circumstance of the fact of this case and that it is neither a nullity nor its admission constitutes any form of miscarriage of justice on the part of the Appellant.
I therefore resolve this issue against the Appellant.
ISSUE 4
?Whether the dismissal of the defendant/Appellant?s counter claim without setting same down for hearing does not infringe on the right of the appellant to fair hearing.?
Having read the contention of either side on this issue. Which is predicated on the decision of the trial Court dismissing the appellants counter claim for not attending Court despite service of hearing notice on the Appellant. The Appellant?s contention is that his right to fair hearing has being infringed and violated. The Respondents argument is that the Appellant was given opportunity to ventilate his complaint before the trial Court but choose to absent himself from Court without any reason despite hearing notices served on him. It is on record that many adjournments were granted at the instance of Appellant.
?
From the Record of Appeal, at pages 89-90, the case was set down for defence and address
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against 9th November, 2015. On that date neither the Appellant nor his counsel was in Court. The matter was then adjourned to 20/11/2015 for definite defence and or address. See page 89 of the Record. On the 20th day of November, 2015. Both the Appellant and his counsel were also absent. Upon the application by the learned Counsel representing the respondent that the defence of the Appellant be closed, the Court ordered the closure of the Appellant defence and instantly proceeded to address. The learned Counsel representing the Respondent address the Court and the case was adjourned to 7th December 2015 for Judgment. The question is whether or not fair hearing was accorded the appellant in the circumstance.
Fair hearing is embodied in the natural justice principle of ?Audi Alteram Partem? meaning? hear the other side? that is to say that all parties to a suit must be given the reasonable and equal opportunity to ventilate their grievance on the issue before the Court. This right is constitutionally guaranteed and protected under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. I herein under reproduce the said
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provision;
Section 36 reads:
?In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.?
See the case of DEMSA LOCAL GOVERNMENT V JOKEMS NIGERIA LIMITED (2012) LPELR ? 20864. In defining, what is fair hearing, ADEMOLA CJN of blessed memory in ISIYAKU MOHAMMED V KANO N.A (1968) ALL NLR 42 said thus:
?It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case must consist of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case.?
See PAUL IYORPUU UNONGO V APER AKU & ORS (1983) LPELR -3422, ALHAJI AMINU JUBRILLAH ABDULLAHI & ORS V MRS. CHRISTIANA IYABO ADETUTU
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(2012) LPELR -7973, UKWUYOK V OGBYLU (2010)5 NWLR (PT.1187) 316 at 338 Para A-B.
Looking at the scenario posed on pages 89-90 of the record, it can be seen that the Court did not only close the defence of the Appellant but also dispensed with the counter claim of the Appellant which on its own is a separate action and distinct from the action by the Respondent against the Appellant. Under normal circumstance the trial Court ought to have set the stage for the hearing of the counter claim by fixing a date for its hearing. In a trial of this nature where there is a counter claim, the Court must set down the counter claim for hearing after the conclusion of hearing of the main suit. The argument of the Respondent that the counter claim was incompetent would then be tested and contested at that stage and determined. Rather than the Court proceeding to address, it would have adjourned for hearing of the counter claim by the Appellant and properly notify the Appellant. If after that the Appellant is still absent then the hearing of the counter claim also will be brought to an end and the case would be set down for address by counsel representing the respective
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parties on the two matters i.e the main action and the counter claim. Thereafter the matter would be adjourned for judgment at a date to be communicated to both parties.
Having not followed these processes, it becomes obvious that the Appellant has not been granted a fair hearing as it relates to his counter claim. The consequence of absence of fair hearing in a trial is to set aside or declare invalid the consequential order or orders made by the trial Court. That is to say that the effect will vitiate the proceeding as it relates to the counter claim in this circumstance and render it null and void. See NDUKABA V KOLOMO (2005)4 NWLR (PT.915) 411, A.G RIVERS STATE V UDE (2006)17 NWLR (PT.1008) 436, CEEKAY TRADERS LTD V GENERAL MOTORS CO. LTD (1992)2 NWLR (PT.222) 132. OJENGBEDE V ESAN (2001)18 NWLR (PT.746) 771, ADEBAYO OGUNDOYIN & ORS V DAVID ADEYEMI (2001)13 NWLR (PT.730) 403. The failure of the trial Court to set the counter claim of the Appellant down for hearing constitutes a breach of right to fair hearing of the claim of the appellant and violate. Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. Accordingly this issue
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is resolved in favour of the Appellant.
In the light of all the foregoing, it is my conclusion that the appeal is allowed in part and dismissed in part.
On that part of issue 2 resolved in favour of the Appellant on the award of N2,000,000.00 (Two Million) as special damages against the Appellant and in favour of the Respondent and which order is set aside, and also the order foreclosing the hearing of the counter claim by the Appellant, vacated and set aside, the appeal is allowed.
On the finding and conclusion of the trial Court as it relates to issue one (1) part of issue two (2) dealing on the award of N1,300,000.00 (One Million, Three Hundred Thousand Naira) as special damages and issue 3, the appeal is dismissed.
Order is hereby made remitting the counter claim of the Appellant to the Hon. Chief Judge of Plateau State for re-assignment to another Judge other than Hon. Justice D.D. Longji for expeditious hearing and determination.
?
The finding and conclusion of the learned trial Judge as it relates to other heads of claims by the Respondent contained in the Judgment of the High Court of Plateau State delivered on 7th day of
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December, 2015 in Suit number PLD/J40/2011 be and are hereby affirmed.
Parties to bear their costs.
UCHECHUKWU ONYEMENAM, J.C.A.: My learned brother MUDASHIRU NASIRU ONIYANGI, JCA had obliged me a preview of his lead judgment just delivered. I agree with the conclusion reached thereat.
I abide by the consequential orders made in the lead judgment.
No order as to cost.
TANI YUSUF HASSAN, J.C.A.: I agree with the lead judgment just delivered by my learned brother, MUDASHIRU NASIRU ONIYANGI JCA. I abide by the order made.
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Appearances:
Ifeoma Okeke, Esq. with him, K.M. Olaoye, Esq.For Appellant(s)
C. U. Oten-Imu, Esq. with him, A. E. AlbrakaFor Respondent(s)
Appearances
Ifeoma Okeke, Esq. with him, K.M. Olaoye, Esq.For Appellant
AND
C. U. Oten-Imu, Esq. with him, A. E. AlbrakaFor Respondent