JANKADA v. OLORUNTOBA
(2022)LCN/16932(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, March 18, 2022
CA/A/82/2016
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
AUDU GAMBO JANKADA APPELANT(S)
And
JOSHUA DADA OLORUNTOBA RESPONDENT(S)
RATIO
THE PRINCIPLE OF SUBLATO PRINCIPALI TOLLITUR ADJUNCTUM
The legal principle being sublato principali tollitur adjunctum [co. Litt 389] – (the principal being taken away, its adjunct is also taken away): ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 269, SIMEON vs. COLLEGE of EDUCATION, EKIADOLOR (2014) LPELR (23320) 1 at 39 and OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 32. PER OGAKWU, J.CA.
WHETHER OR NOT THE COURT CAN GRANT RELIEF OUTSIDE WHAT HAS BEEN CLAIMED BY PARTIES
It is limpid from the reliefs claimed that the paregoric of damages desired by the Respondent is in respect of breach of contract. The Respondent, having so formulated and claimed the desired paregoric as the relief from the Court, the Respondent and all the parties became bound by the relief as framed as it is not the duty of the Court to grant any relief outside what had been claimed. In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40:
“It is elementary law that a Court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…”
See also DUMEZ NIGERIA LTD vs. NWAKHOBA (2008) LPELR (965) 1 at 26 and AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 or (2000) 6 NWLR (PT 659) 92. PER OGAKWU, J.CA.
THE POSITION OF LAW ON “COST”
The position of the law is that costs follow event and a successful party should not be deprived of his costs unless for good reasons. See SAEBY vs. OLAOGUN (1999) 10-12 SC 45 at 59. In AKINBOBOLA vs. PLISSON FISKO NIGERIA LTD (1991) 1 NWLR (PT 167) 270, Kawu, JSC stated:
“The award of costs is of course, always at the discretion of the Court, which discretion must be exercised both judicially and judiciously… It is also a well-established principle that costs follow events and that a successful party is entitled to cost unless there are special reasons for depriving him of his entitlement…”
The essence of costs is to compensate the successful party for part of the loss incurred in the litigation. Costs cannot cure all the financial loss sustained in the litigation. It is also not meant to be a bonus to the successful party, and not to be awarded on sentiments. The award of costs being a matter within the discretion of the trial Court, an appellate Court will not normally interfere in the exercise of discretion by the trial Court in awarding costs except where it is shown not to have been exercised judicially and judiciously. The aim of the award of costs is to indemnify or compensate the successful party for expenses incurred in the course of the litigation. Costs are however not meant to punish the unsuccessful party. See OYEDEJI vs. AKINYELE (2001) FWLR (PT 77) 970 at 1001 and ERO vs. TINUBU (2012) LPELR (7869) 1.
In GABARI vs. ILORI (2002) 14 NWLR (PT 786) 78 at 103-104, Mohammed, JCA held as follows: “I shall however comment briefly on the complaint of the appellant on the N5000.00 costs awarded against him by the trial Court which the learned Counsel to the appellant described as improper and not supported by evidence or submission of Counsel relating to out of pocket expenses. PER OGAKWU, J.CA.
WHETHER OR NOT SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED
It is rudimentary law that special damages has to be specifically pleaded and particularized and proved by the evidence. See DANIEL HOLDINGS LTD vs. UBA PLC (2005) 13 NWLR (PT. 943) 533 at 547 and 552, RCC (NIG) LTD vs. ROCKONOH PROPERTIES CO. LTD (2005) 10 NWLR (PT 934) 615 at 637 and ADECENTRO (NIG) LTD vs. COUNCIL OF OAU (2005) 15 NWLR (PT 948) 290 at 316. PER OGAKWU, J.CA.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Respondent herein, was the occupant of a Federal Government Quarters situate at and known as JSQ Flat 5, Block 50, Phase II, Gwagwalada, Abuja. By virtue of being the occupant of the said property, the Adhoc Committee on the Sale of Federal Government Houses in Abuja made an offer for the sale of the said property to the Respondent under the policy on Sale of Federal Government Houses in Abuja. The Respondent paid the non-refundable deposit but was unable to meet the terms of the offer on payment of the purchase price.
The time for the Respondent to comply with the terms of the offer having expired, the Adhoc Committee on the Sale of Federal Government Houses in Abuja sold the said property to the Appellant herein. As the overtures made by the Respondent to the Adhoc Committee for him to comply with the terms of the offer made to him yielded no results, the Respondent commenced proceedings before the High Court of the Federal Capital Territory, Abuja on 24th August, 2009 in SUIT NO. FCT/HC/CV/2037/2009: JOSHUA DADA OLORUNTOBA vs. THE HONOURABLE MINISTER OF THE FEDERAL CAPITAL TERRITORY & 2 ORS. The other Defendants sued were the Federal Capital Development Authority and the Adhoc Committee on the Sale of Federal Government Houses. The Appellant herein was initially not a party to the action. The Respondent as Plaintiff before the lower Court claimed the following reliefs:
“1. An order directing the defendants to give the plaintiff clearance to pay the offer price of the flat JSQ Flat 5 Block 50 Phase 11 Gwagwalada which was dully [sic] offered to the plaintiff.
2. An order directing the defendants and their agents to accept the plaintiff’s payment for the said flat.
3. An order barring the defendants and or their agents from doing anything that deprive the plaintiff of the possession of the said flat.
4. An order nullifying any and all transactions made by the defendants (jointly or individually) with any person that is inconsistent with the right and possession of the plaintiff in the said flat, and or
5. N5,000,000.00 (Five Million Naira) damages for breach of contract, rights and privileges of the plaintiff to purchase the said flat as a civil servant in possession and with a valid, unrevoked offer letter.
6. And the sum of N200,000.00 (Two Hundred Thousand Naira) as the cost of this suit.”
Upon the application of the Respondent by an ex parte application which was filed with the originating processes on 24th August, 2009, the lower Court, on 25th August, 2009, made an interim order of injunction restraining the original Defendants on record, their agents, privies, servants or whosoever from ejecting the Respondent from the said JSQ Flat 5, Block 50, Phase II, Gwagwalada, Abuja, pending the determination of the motion on notice.
Notwithstanding this order of injunction, the Respondent was evicted from the said property two days later, precisely on 27th August, 2009. It seems that the Respondent upon being evicted became aware that the property had been sold to the Appellant, who as at that date was not a party in the action. The Respondent then entered into agreement with the Appellant for him to be allowed to remain in the said property for a period of 44 days with effect from 27th August, 2009. The said Agreement which is headed Deed of Assignment was admitted in evidence at the trial (page 435 of the Records) and is reproduced at page 91 of the records. So the Respondent was restored to possession of the property on the same 27th August, 2009 that he was evicted.
Subsequently, by an application filed on 18th September, 2009, the Respondent applied for the Appellant to be joined as a party to the action. The said application was granted by the lower Court and the Appellant was joined as the 4th Defendant to the action on 11th February, 2010. The Appellant, as 4th Defendant at the lower Court filed his processes and set up a counter-claim wherein he claimed the following reliefs against the Respondent:
“a. A DECLARATION that the 4th Defendant is the rightful holder of title to JSQ Block 5 Flat 50, Phase II, Gwagwalada, 2 Bedroom Bungalow.
b. AN ORDER ejecting the plaintiff from occupation of JSQ Block 5 Flat 50, Phase II, Gwagwalada, 2 Bedroom Bungalow.
c. AN ORDER vesting vacant possession of JSQ Block 5 Flat 50, Phase II, Gwagwalada, 2 Bedroom Bungalow on the 4th Defendant.
d. A sum of N1,000,000.00 being general and special damages.
e. AND FOR SUCH FURTHER ORDERS as this Honourable Court may deem fit to make in the circumstance.”
The matter was thereafter subjected to a full dressed plenary trial based on the pleadings filed and exchanged by the parties. Testimonial and documentary evidence was adduced at the trial and in its judgment which was delivered on 8th July, 2015, the lower Court conclusively held and ordered as follows at pages 562-563 of the Records:
“The Honourable Court now hold that it is in agreement with the Defendants that the Plaintiff has failed to establish that any contract exist between the Plaintiff and the 1st – 3rd Defendants having failed to establish any title in relation to the house the subject matter of this suit and that his relief fail and ought to be dismissed and that the 4th defendant relief claimed in its counter-claim vest possession of the house subject matter of the suit in favour of the 4th defendant, which is not in dispute and the Honourable Court so hold, but the Honourable Court is of the view that the Defendants cannot eject the Defendants [sic] cannot eject the Plaintiff from the house without due process and the defendants are liable in damages for unlawful eviction of the Plaintiff from the property in issue which the Honourable Court holds as follows that reliefs 1, 2, 3 and 4 set out on the face of the Plaintiff’s writ/statement of claim are hereby refused but grant reliefs 5 & 6 in favour of the Plaintiff which stands at the N1,000,000.00 for relief 5 and the sum of N200,000.00 as cost of the said suit filed before the Honourable Court and the Plaintiff should not be ejected from the said property until the sum of N1,000,000.00 and the sum of N200,000.00 is paid.”
The Appellant was dissatisfied with the part of the decision of the lower Court awarding damages for unlawful eviction and costs of the suit in favour of the Respondent. He appealed against the said part of the decision by Notice of Appeal filed on 23rd September, 2015. The scarified judgment of the lower Court is at pages 494-563 of the Records, while the Notice of Appeal is at pages 564-573 of the Records. The Records of Appeal having been compiled and transmitted the parties filed and exchanged briefs of argument. The Appellant filed a Reply Brief on 5th January 2022. In the said reply brief the Appellant formulated an additional issue and the reply brief was entirely dedicated to argument of the said additional issue. However, at the hearing of the appeal, the learned counsel for the Appellant withdraw the said additional issue and the same was struck out. In consequence, there remained no live submission in the said reply brief and there remains nothing to review therein for the purposes of this appeal.
In the Appellant’s Brief of Argument which was filed on 6th September, 2021 and which learned counsel adopted and relied upon at the hearing, four issues were distilled for determination, namely:
“1. Whether the learned trial Judge erred in law by suo motu granting the Respondent relief not sought to wit: awarding N1,000,000.00 as damages for eviction in favour of the Respondent after rejecting all the claims of the Respondent.
2. Whether the learned trial Judge erred in law and miscarried justice when he awarded relief of N200,000.00 as cost of litigation against the Appellant in favour of the Respondent after refusing all the reliefs sought by the Respondent.
3. Whether the learned trial Judge misapplied the law and miscarried justice when he refused to make pronouncements awarding special or general damages to the appellant despite holding that the Appellant succeeded in all reliefs in appellant’s counter-claim.
4. Whether the learned trial Court misapplied the law by perpetually putting the Respondent in possession of JSQ Block 5 flat 50, Phase II, Gwagwalada. Abuja subject to liquidation of total sum of N1,200,000 (judgment sum) despite holding that the appellant is the rightful legal owner of same.”
On his part, the learned counsel for the Respondent equally adopted and relied on the submissions in the Respondent’s Brief of Argument filed on 16th September. 2021. Two issues were therein crafted for determination in the appeal as follows:
“1. Whether considering all the facts and circumstances of this case the trial Court was right to have awarded damages to the respondent for wrongful, illegal and forceful eviction from house JSQ flat 5 Block 50 Phase 11 Gwagwalada, Abuja, FCT by the appellant without following due process of law but by using self-help and force of arm.
2. Whether the trial Court was right to have awarded the cost of N200, 000.00 against the appellant.” The issues distilled by the parties are rooted in the grounds of appeal. Accordingly, I will now proceed to review the submissions of learned counsel on the respective issues as nominated by them and thereafter resolve the appeal ensemble.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that it is not for the Court to make or substitute a case for the parties, neither is it to do cloistered justice by inquiring into a case outside the evidence demonstrated and argued in Court vide NIGERIA DYNAMIC LTD vs. IBRAHIM (2002) 8 NWLR (PT. 768) 63 at 102 and SAVANNAH BANK OF NIG. PLC vs. CBN (2009) 6 NWLR (PT. 1139) 237 at 298. It was posited that the Respondent’s case is not based on wrongful eviction and so the lower Court erred in law when it created and awarded a relief based on eviction which was not sought by the Respondent. It was asserted that facts which are not pleaded go to no issue, and the evidence in support of such facts must be expunged. The cases of MOTOH vs. MOTOH (2011) 16 NWLR (PT 1274) 474 at 518-519, OYEDIRAN vs. ADEGBITE (2014) ALL FWLR (PT 733) 1967 at 1991 and GBADAMOSI vs. KABO TRAVELS LTD (2000) 8 NWLR (PT 668) 243 at 284 were referred to. It was maintained that the Respondent’s case was to enforce a contractual right to buy a house under the sale of Federal Government Houses policy and that no facts were pleaded or evidence led on eviction.
It was further submitted, but without conceding, that the Respondent did not tender any evidence proving that he was evicted and that the lower Court stated in its judgment that the Respondent was served quit notices after which he executed Exhibit A2, stating that he would vacate the house after forty-four (44) days. It was opined that Courts are to decide cases on real facts and not on hypothetical facts, speculation or conjecture. The case of UNITY BANK PLC vs. OLATUNJI (2013) 15 NWLR (PT 1378) 503 was relied upon. It was stated that the award by the lower Court of the sum of N1million as damages was not a proper exercise of judicial discretion. The Court was urged to set aside the said award since the Court is not a Father Christmas to award a relief not claimed. The case of NIDOCCO LTD vs. GBAJABIAMILA (2014) ALL FWLR (PT 724) 1 at 38 was called in aid.
The Appellant’s contention on his second issue is that the lower Court erred in law when it awarded the sum of N200,000.00 in favour of the Respondent as cost of litigation. It was stated that costs are awarded in favour of a successful party and that an appellate Court would interfere when, as in this case, the lower Court awarded costs in favour of the Respondent, who was unsuccessful in his claims. The cases of ACB LTD vs. AJUGWO (2012) ALL FWLR (PT 607) 697 at 720, 721 and 723-724 and NNPC vs. CLIFCO NIG LTD (2011) 10 NWLR (PT 1255) 209 at 234-235 were cited in support. The Court was therefore urged to set aside the costs awarded in favour of the Respondent and to award costs in favour of the Appellant who was the successful party at the lower Court.
Arguing his third issue, the Appellant submitted that the lower Court made pronouncements on his counter-claim which were in his favour, but refused to specifically mention the amount to be awarded in his favour as general and special damages. The cases of KC & ALLIED PRODUCTS vs. UBA PLC (2014) ALL FWLR (PT 718) 980 at 994, JULIUS BERGER (NIG) PLC vs. OGUNDEHIN (2014) 2 NWLR (PT 1391) 346 at 427 and NBC PLC vs. UBANI (2014) ALL FWLR (PT 718) 803 at 827 were referred to on the meaning of general and special damages and when they are to be awarded; it was then opined that the testimonial and documentary evidence adduced by the Appellant established his entitlement to the award of general and special damages.
Still in argument, the Appellant in his fourth issue submits that it is perverse for a trial Court to make an order which defeats its judgment, or make an order in furtherance of continued trespass or to perpetuate trespass or illegality. It was stated that a person with legal title has legal/constructive possession of the property while a person in actual possession without title is a trespasser vide CARRENA vs. AKINLASE (2008) 14 NWLR (PT 1107) 22. It was posited that it was curious for the lower Court, after holding that the Respondent had no title and that Appellant had proved his title, to proceed to retain the Respondent in adverse possession and continued trespass until the Appellant pays the Respondent the sum of N1.2 million and thereby arrived at a perverse decision. The case of HENSHAW vs. EFFIONG (2009) 11 NWLR (PT 1151) 65 at 89 was relied upon. The Court was conclusively urged to set aside the perverse decision of the lower Court.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent’s contention on his issue number one is that the award of general and exemplary damages is at the discretion of the Court and that an appellate Court will not ordinarily or lightly interfere with such an award vide PETERS vs. ASST. INSP. GEN OF POLICE (2001) FWLR (PT 49) 1449. It was stated that damages are pecuniary compensation awarded for loss or injury suffered due to the unlawful act or omission of another person based on the principle of ubi jus ibi remedium and guided by the principle of restitutio in integrum. The case of NICON HOTELS LTD vs. N.D.C. LTD (2007) 13 NWLR (PT 1051) 237 at 268 was referred to.
The facts of the wrongful and forceful eviction of the Respondent without due process of law and contrary to the order of Court were said to have been pleaded in the reply to the Appellant’s Statement of Defence and that the same, not having been traversed or challenged were deemed admitted and required no further proof. The cases of WAZIRI vs. ALI (2009) 4 NWLR (PT 1130) 178 at 216 and 217, TATAMA vs. JALOMI (2003) FWLR (PT 181) 1682, Z. P. IND. LTD vs. SAMOTECH LTD (2007) 16 NWLR (PT 1060) 315 at 339 and OLUFOSOYE vs. OLORUNFEMI (1989) 1 NWLR (PT 95) at 25 were relied upon. It was stated that the Respondent had led evidence in proof of the wrongful eviction as well as the evidence extracted from the DW1 in that regard. The case of DAGGASH vs. BULAMA (2004) ALL FWLR (PT 212) 1666 at 1747 was called in aid. It was maintained that the lower Court did not raise the issue of damages suo motu as the Respondent had addressed the Court on it.
Without conceding that the wrongful and illegal eviction was not pleaded, it was opined that the lower Court has the jurisdiction to award damages based on Order 52 Rule 13 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2018 and also Order 46 Rule 1 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004, which empowers the Court to make such orders necessary for doing substantial justice, whether expressly asked for or not. The case of DIAMOND BANK LTD vs. P. I. C. LTD (2009) 18 NWLR (PT 1172) 67 at 97 was cited in support. The Court, it was posited, frowns at the disobedience of its orders, resort to self-help, executive lawlessness and any action that would prejudice the hearing or adjudication of the matter before the Court. The cases of EZEGBU vs. FATB LTD (1992) 1 NWLR (PT 220) 668 at 728, NWOSU vs. ISESA (1990) 2 NWLR (PT 135) 668, FAWEHINMI vs. AKILU (1989) 3 NWLR (PT 112) 543, CALABAR EAST CO-OP vs. IKOT (1999) 73 LRCN 3546 at 3596, OJUKWU vs. MIL. GOV. LAGOS STATE (1986) 3 NWLR (PT 26) 39 among other cases were referred to.
It was asserted that there was no legal basis for the damages awarded to be varied since the Appellant had not shown that the lower Court applied a wrong principle of law in making the award vide ODOGU vs. A-G FEDERATION (1996) 6 NWLR (PT 450) 508 and UMOETUK vs. UNION BANK PLC (2001) FWLR (PT 81) 1849. It was further submitted that the Appellant’s contentions are based on technicalities which the Courts have jettisoned in pursuit of substantial justice. The case of KUMALIA vs. SHERIFF (2009) 9 NWLR (PT 1146) 420 at 431 was relied upon.
The Respondent’s submission on the second issue he distilled is that costs are assessed and awarded at the discretion of the Court based on the circumstance of the case vide MOBIL PRODUCING UNLTD vs. MONOKPO (NO. 2) (2001) FWLR (PT 78) 1210, OZIGBU ENG. CO. LTD vs. IWUAMADI [no year stated] 16 NWLR (PT. 1166) 44 at 73, TRUSTEES OF IFELOJU vs. KUKU (1991) 5 NWLR (PT 189) 65, WORNU vs. U.A.C. LTD (1956) 1 FSC 33 at 34 and UBN LTD vs. NWAOKOLO (1988) 11 NWLR (PT 574) 505 at 522. The lower Court, it was maintained, exercised its discretion judicially and judiciously when it awarded costs against the Appellant.
It was further contended that by Section 241 (2) (c) of the 1999 Constitution (as amended), a party can only appeal on costs with leave of Court. it was stated that the Appellant neither sought nor obtained leave before appealing on costs, which is fatal. The case of KASHADADI vs. NOMA (2007) 13 NWLR (PT 1052) 510 at 252-253 was relied upon. It was opined that in any event, the proper complaint ought to be that the amount awarded as costs is too excessive or too low, and not an outright contention for the setting aside of the costs awarded. The case of MOBIL PRODUCING UNLTD vs. MONOKPO (supra) ratio 11 was referred to.
In replication to the Appellant’s issue number three, the Respondent asserts that the lower Court duly evaluated Exhibit D, on the strength of which it held that the property was sold to the Appellant. The Respondent’s submission on the Appellant’s issue number four is that it was misleading for the Appellant to argue that the award of damages in favour of the Respondent robbed the Appellant of his right to the property since the law is that the person in possession or who is entitled to possession is not necessarily the owner of the property. The case of DAKOLO vs. DAKOLO (2012) 4 NRELR 1 at 16 was called in aid. It was asserted that the Respondent was in possession of the house before he was evicted without due process and the order of the Court for the damages and the cost to be paid before the Respondent can be evicted is to avoid the Appellant holding the Court in contempt again by refusing to pay the damages and cost.
RESOLUTION
The complaint in this appeal is simple and straight forward. The crux of the disceptation is not convoluted, not in the least bit. I have already set out the reliefs claimed by the Respondent and the reliefs claimed by the Appellant in his counter-claim. The simple and straightforward complaint of the Appellant is that the Respondent did not succeed in the reliefs he claimed, but that the lower Court entered judgment for him on a relief which he did not claim and on which the parties did not contest the action. It is the further complaint of the Appellant that even though the Respondent did not succeed in the reliefs he claimed, the lower Court still awarded the costs of the action in favour of the Respondent. Conclusively, the Appellant complains that even though he succeeded in the reliefs he claimed, the lower Court refused to make any pronouncement on his relief for special and general damages; just as in the same way it made an order which would have the effect of keeping the Respondent in possession of the property in perpetuity.
Let me iterate the reliefs claimed by the Respondent. The principal reliefs claimed by the Respondent which I have already set out in this judgment are for the enforcement and specific performance of the contract for the sale of the property known as JSQ Flat 5 Block 50, Phase II, Gwagwalada, Abuja, and nullifying any transaction with any other person in respect of the said property. Predicated on these principal reliefs, the Respondent claimed damages for breach of contract and costs of the action. The lower Court in the pericope from its judgment which I have already reproduced herein, emphatically held that the Respondent had failed to establish the existence of any contract for the sale of the property to him. The lower Court consequently dismissed the four principal reliefs claimed by the Respondent. The said four reliefs having been dismissed, the reliefs for damages for breach of contract and costs of the action which are like leeches, the success of which depend on the success of the principal reliefs ought to have equally failed. The legal principle being sublato principali tollitur adjunctum [co. Litt 389] – (the principal being taken away, its adjunct is also taken away): ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 269, SIMEON vs. COLLEGE of EDUCATION, EKIADOLOR (2014) LPELR (23320) 1 at 39 and OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 32.
However, the lower Court granted the said reliefs. In place of the relief claimed for damages for breach of contract, the lower Court made an order awarding the sum of N1million as damages in favour of the Respondent for his unlawful eviction from the said property and then awarded the sum of N200,000.00 as costs of the action in favour of the Respondent. It is important to emphasise that there was no relief claimed for damages for unlawful eviction which the lower Court awarded in favour of the Respondent.
It is limpid from the reliefs claimed that the paregoric of damages desired by the Respondent is in respect of breach of contract. The Respondent, having so formulated and claimed the desired paregoric as the relief from the Court, the Respondent and all the parties became bound by the relief as framed as it is not the duty of the Court to grant any relief outside what had been claimed. In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40:
“It is elementary law that a Court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…”
See also DUMEZ NIGERIA LTD vs. NWAKHOBA (2008) LPELR (965) 1 at 26 and AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 or (2000) 6 NWLR (PT 659) 92.
The Respondent who wore the shoes identified precisely where it pinched and consequently framed the relief in that regard. As circumscribed by the parameters of the relief as framed and claimed, it was strictly in respect of damages for breach of contract. In defining the meaning of “claim” in OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 81 or (2009) LPELR (2816) 1 at 55, Tobi, JSC stated thus:
“A claim, in our adjectival law, originates an action. It is the pivot or the cynosure of the case. It sets out the relief or reliefs sought by the plaintiff. A plaintiff is bound by his claim and must not deviate from it willy-nilly. A plaintiff cannot in law present a case different from his claim as the law regards such an unsolicited procedure completely outside the law.”
Just as it is elementary that the claimant cannot present a case different from his claim, so also can a Court not adjudicate between parties on the basis of a claim not formulated by them. In OSUJI vs. EKEOCHA (supra) at page 44, Adekeye, JSC stated:
“The position of the law is clear that a Court of law can only grant reliefs claimed by a party and not more. It is trite that a Court is duty bound to adjudicate between the parties on the basis of the claim formulated by them.”
Not only did the lower Court grant a relief not claimed by the Respondent, the lower Court by so doing adjudicated between the parties on a claim not formulated by them. Without a doubt, the Respondent obtained an ex parte order of interim injunction restraining the officials of the Federal Capital Territory Administration and the Adhoc Committee on the Sale of Federal Government Houses from ejecting him from the property subject of the litigation. In defiance of the said order of Court, the Respondent was evicted, even though the agreement he entered into with the Appellant, who was not a party to the action at the material time, he was reinstated into possession the same day he was evicted. However, the Respondent did not at any time thereafter amend the reliefs he claimed to seek any salve for the consequences of the eviction. Any damages or losses occasioned by the eviction was therefore not a live issue before the lower Court on the basis of which it could adjudicate between the parties. Indubitably, issue number one must be resolved against the Respondent. The lower Court erred in law when it awarded the Respondent a relief which was not claimed. The award of the sum of N1, 000,000.00 in favour of the Respondent as damages for unlawful eviction is consequently set aside.
The Appellant’s second issue interrogates the costs awarded by the lower Court in favour of the Respondent, even when, as contended, the Respondent did not succeed in the reliefs he claimed. The Respondent has, inter alia, contended that the Appellant requires leave to appeal on costs and that the Appellant having failed to obtain leave, cannot raise the challenge on the costs awarded by the lower Court. Section 241 (2) (c) of the 1999 Constitution (as amended) stipulates as follows:
“(2) Nothing in this section shall confer any right of appeal –
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
Equally, Section 14 (1) of the Court of Appeal Act provides as follows:
“Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter; an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.”
Much ink has been spilt on the question of whether leave of Court is required when a ground of appeal on costs is one of several grounds of appeal raised against the decision of a High Court or the Federal High Court. In aliis verbis, whether leave of Court is necessary where the appeal is not as to costs only, id est, where costs is only one of the several grounds of appeal raised against a decision. The decisions of this Court straddle both sides of the spectrum. For instance, and to mention only a few, it has been held in OMAME vs. NIGERIA POLICE FORCE (2021) LPELR (54747) 1 at 9-10, GTB vs. ALEOGENA (2019) LPELR (46922) 1 at 13-15 and UNION BANK vs. TOYINBO (2008) LPELR (5056) 1 at 41-43 that where the ground of appeal on costs is only one of several other grounds of appeal, then leave of Court is not required for a ground of appeal on costs. Contrariwise, in some other decisions, again to mention a few, it has been held by this Court that irrespective of the number of grounds of appeal raised against a decision, so long as a ground on costs is involved, leave of Court will be required for the said ground of appeal on costs. See for instance: NICON INSURANCE CORPORATION vs. OLOWOOFOYEKU (2005) LPELR (5946) 1 at 15-16, SPDC vs. MILLER (2013) LPELR (22872) 1 at 7 and SIDUS TELECOMMUNICATIONS ENGINEERING CORPORATION LTD vs. STANBIC IBTC (2020) LPELR (51629) 1 at 17-22.
The Appellant appealed on four grounds of appeal. It is only ground two that is in respect of costs. Grounds one, three and four are not in respect of costs. So the appeal is not in respect of costs only. In the circumstance, does the Appellant require leave to appeal on the said ground as to costs in line with the stipulations of Section 241 (2) (c) of the 1999 Constitution (as amended) and Section 14 of the Court of Appeal, Act This Court has not spoken with one voice in this regard. Happily, the apex Court has been consistent in its position and based on the doctrine of stare decisis or binding precedent, I am obligated to kowtow and follow the decision of the apex Court. In MEKWUNYE vs. EMIRATES AIRLINES (2019) LPELR (46553) 1 at 8-9, Eko, JSC stated:
“I am the least convinced that the very persuasive decision of the Court of Appeal in A.C.B. v. OKONKWO (1997) 1 NWLR (Pt. 480) 194 which applied the provisions of Section 220 (2) (c) of the 1979 Constitution, in pari materia with Section 241 (2) (c) of the extant 1999 Constitution, is not apposite. Section 241 (2) (c) of the Constitution does not intend to confer right of appeal, as of right, on the Appellant complaining about costs in an appeal from the High Court to the Court of Appeal. I completely endorse the statement of law on this by Ejiwunmi, JCA (as he then was) in A.C.B. v. OKONKWO (supra), to wit – A party cannot appeal on failure of the High Court to award costs without first obtaining the leave of either the Court of Appeal or of the High Court. This is the requirement of Section 220 (2) (c) of the 1979 Constitution. In this case, since the 1st Respondent did not obtain leave, the ground of appeal in the cross-appeal complaining against costs ought to be struck out and the issue formulated from it becomes a non-issue. Accordingly, I agree with the Appellant that the Respondent’s complaint in ground 4 of the Grounds of Appeal at the lower Court, from which the Respondent as the appellant at the lower Court formulated its issue 4, is incompetent having been raised without leave either of the trial High Court or the lower Court. This Court has been consistent on this point as can be seen from GOVERNOR, EASTERN NIGERIA V. ONYELU (1965) ALL NLR 690. The Court of Appeal followed the decisions in UNIFAM IND. LTD. v. OCEANIC BANK (supra); ASIM NIG. LTD. v. LBRDA (supra); ONUIGBO v. NWEKESON (1993) 3 NWLR (Pt. 283) 533 at 546. I will not depart from these precedents, at least on the doctrine of stare decisis.”
In contributing to the issue, Odili, JSC stated as follows at pages 74-76:
“The question herein raised has brought into focus Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria and Sub-section (2) (c) thereof provides thus: – ‘Nothing in this section shall confer any right of appeal – (c) without the leave of the Federal High Court or High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only’… On this issue of cost, the Court of Appeal and the Apex Court have set the record straight thereof to the effect that an appeal complaining on the issue of cost is not as of right. I shall cite a few of those cases for effect. See Governor, Eastern Nigeria v Onyelu (1965) All NLR 197 at 198 … Adeyemi v Awobokun 1968 All NLR 690 where the position in the Onyelu case was adopted intoto. The Court of Appeal lately in Asims Nig. Ltd v LBRBDA (2002) 8 NWLR (Pt. 769) 349, held that ‘at any rate, Section 241 (2) (c) of the 1999 Constitution which corresponds with Section 220 (2) (c) of the 1979 … Constitution does not confer right of appeal on a party on issue of costs’ per Muhammad, JCA (as he then was) at page 366, Para. D. The Court of Appeal reiterated the same legal position in Unifam Ind. Ltd v Ocean [sic] Bank Intl (Nig.) Ltd (2005) NWLR (Pt. 911) 83 when it held that: – ‘a successful party is generally entitled to the cost of the litigation. However, if a party is aggrieved by the order of a Court of law as it relates to cost, he does not appeal as of right. He must first seek and obtain the leave of Court before an appeal can be lodged against an order relating to cost’ per Aderemi, JCA (as he then was) at page 102… Recently in Oketade v Adewunmi (2010) 3 (Pt. II) MJSC 31 where the appellant filed three (3) grounds of appeal (see page 39, paragraphs D-F thereof) the Supreme Court confirmed the above decisions of the Court of Appeal on the issue of costs when it held at page 42, paras. F-G and page 45, paras. C-E that: – ‘It is trite that appeal does not lie as of right against an award of costs by a Court. The cases of Unifam Ind. Ltd v Oceanic Bank Intl (Nig.) Ltd (2005) 3 NWLR (Pt. 911) 83 at 102 and Asims (Nig.) Ltd v Lower Benue River Basin Dev. Authority (2002) 8 NWLR (Pt. 769) 349 cited by learned counsel for the respondents are in point. I endorse the views ably expressed in both cases, per Fabiyi, JSC at page 45. The issue herein has been rested as the cases above cited show and so the Court of Appeal had no jurisdiction sequel to Section 241 CFRN to entertain the appeal on ground of legal costs without leave of either the trial Court or of itself, the Court of Appeal. See Onuigbo v Nwekeson (1993) 3 NWLR (Pt. 283) 533 at 546 (CA), A.C.B. v Okonkwo (1997) 1 NWLR (Pt. 480) 194 at 207 (CA).”
In keeping with the settled state of the law as laid down by the apex Court, since the Appellant did not obtain leave to appeal on costs, ground two of the grounds of appeal is hereby struck out and the issue number two formulated therefrom is equally struck out since it has become a non-issue, not having been distilled from a competent ground of appeal.
This is an intermediate appellate Court, so I would, in the unlikely event that I have misapprehended the Supreme Court decision, proceed to resolve the Appellant’s complaint on the said issue number two on the merits. The summation of the Appellant’s contention is that the Respondent was not the successful party in the litigation and that costs should not have been awarded in his favour, but rather costs ought to be awarded in Appellant’s favour as the Appellant succeeded in all the reliefs he claimed at the lower Court. By all odds, it is evident that the principal reliefs claimed by the Respondent with respect to the property subject of the litigation were dismissed. On the other hand, the lower Court held that the Appellant succeeded in his counter-claim and was vested with possession of the “house subject matter of the suit”. See pages 562-563 of the Records. The concomitance is that the Appellant was the successful party in the litigation.
The position of the law is that costs follow event and a successful party should not be deprived of his costs unless for good reasons. See SAEBY vs. OLAOGUN (1999) 10-12 SC 45 at 59. In AKINBOBOLA vs. PLISSON FISKO NIGERIA LTD (1991) 1 NWLR (PT 167) 270, Kawu, JSC stated:
“The award of costs is of course, always at the discretion of the Court, which discretion must be exercised both judicially and judiciously… It is also a well-established principle that costs follow events and that a successful party is entitled to cost unless there are special reasons for depriving him of his entitlement…”
The essence of costs is to compensate the successful party for part of the loss incurred in the litigation. Costs cannot cure all the financial loss sustained in the litigation. It is also not meant to be a bonus to the successful party, and not to be awarded on sentiments. The award of costs being a matter within the discretion of the trial Court, an appellate Court will not normally interfere in the exercise of discretion by the trial Court in awarding costs except where it is shown not to have been exercised judicially and judiciously. The aim of the award of costs is to indemnify or compensate the successful party for expenses incurred in the course of the litigation. Costs are however not meant to punish the unsuccessful party. See OYEDEJI vs. AKINYELE (2001) FWLR (PT 77) 970 at 1001 and ERO vs. TINUBU (2012) LPELR (7869) 1.
In GABARI vs. ILORI (2002) 14 NWLR (PT 786) 78 at 103-104, Mohammed, JCA held as follows: “I shall however comment briefly on the complaint of the appellant on the N5000.00 costs awarded against him by the trial Court which the learned Counsel to the appellant described as improper and not supported by evidence or submission of Counsel relating to out of pocket expenses.
Unquestionably, the award of costs by the Court to the successful party falls squarely within the discretionary domain of the Court, which discretion as the law requires, must be exercised judicially and judiciously particularly in the absence of any guidance in the various civil procedure rules of the High Courts as contained in the Supreme Court Rules and the Court of Appeal Rules. While it is true that a successful litigant should not be denied costs, it is firmly established that costs must follow the event but many a time circumstances and for good reasons, the defeated party may not be damnified in costs… As a general principle therefore, it may be said that costs are in the discretion of the Court and for that reason, where the Court exercised its discretion judicially and judiciously as opposed to doing so capriciously or upon any wrong principle, an appellate Court is without power to interfere with such honest exercise of the Court’s discretion.”
See also GABEE INVESTMENT LTD vs. CHINBELL INDUSTRIES LTD 2017 LPELR 45259 1 at 43-45.
There are no special reasons for depriving the Appellant, the successful party in the litigation, of his entitlement to costs. The lower Court did not proffer any reasons and was in error to mulct the Appellant in costs. Therefore, on the merits, I would have resolved this issue number two in favour of the Appellant, however, since the said issue is afflicted by the incompetence of the ground of appeal from which it was distilled, the said ground having been raised without leave of Court, the said ground two of the grounds of appeal and this issue number two distilled therefrom remain struck out.
The Appellant in his counter-claim, inter alia, claimed a declaration that he is the rightful holder of title to the property subject of the litigation and for an order vesting vacant possession in him and N1million general and special damages. The Appellant’s grouch in his issue number three is that the lower Court did not make any pronouncement on the damages he claimed. It is trite law that a Court is duty bound to pronounce on all the issues before it. See MARINE MANAGEMENT ASSOCIATES INC. vs. NMA (2012) LPELR (20618) 1 at 27, ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 14 and NKUMA vs. ODILI (2006) LPELR (2047) 1 at 17.
The lower Court was therefore under the bounden duty to pronounce on the Appellant’s claim for general and special damages. This it failed to do. However, in the diacritical circumstances of this case, I do not think that the failure to pronounce on the issue of damages is fatal.
It is rudimentary law that special damages has to be specifically pleaded and particularized and proved by the evidence. See DANIEL HOLDINGS LTD vs. UBA PLC (2005) 13 NWLR (PT. 943) 533 at 547 and 552, RCC (NIG) LTD vs. ROCKONOH PROPERTIES CO. LTD (2005) 10 NWLR (PT 934) 615 at 637 and ADECENTRO (NIG) LTD vs. COUNCIL OF OAU (2005) 15 NWLR (PT 948) 290 at 316.
The Appellant did not give any particulars of the special damages claimed in his Statement of Defence which embodied his counter-claim.
Furthermore, the Appellant’s claim for general damages seems to be predicated on the fact that the Respondent’s continued possession of the property, subject of the litigation, occasioned damage to him. Now, it has to be remembered that the lower Court had made an order restraining the Respondent from being evicted from the property. Even after the Respondent had been unlawfully evicted, the Appellant entered into an agreement, by which he allowed the Respondent to remain in occupation of the property for 44 days. If after those 44 days the Respondent did not vacate, it was open to the Appellant to take steps to recover possession, if he could have lawfully done so during the pendency of the litigation but he took no such steps and so he cannot be heard to complain that he was not awarded general damages for the Respondent being in occupation and possession of the property subject of the litigation, when the said occupation and possession was with his leave and licence. Doubtless, the lower Court was wrong not to have made a definite pronouncement on the award of damages claimed by the Appellant.
However, it is generally accepted that it is not every mistake or error of the Court that would result in the setting aside of the decision appealed against: AKOMOLAFE vs. GUARDIAN PRESS LTD (2010) LPELR (366) 1 at 10, UKAEGBU vs. UGOJI (1991) LPELR (3338) 1 at 21 and ODUWOLE vs. WEST (2010) LPELR (2263) 1 at 35. No miscarriage of justice was occasioned by the lower Court not having made an explicit pronouncement on the special and general damages claimed by the Appellant, so it is not an error that would vitiate the decision of the lower Court. See OWHONDA vs. EKPECHI (2003) 9-10 SC 1 at 21, JUMBO vs. R.S.H.P.A.D.A. (2005) 5 SC (PT II) 102 at 112 and KWARA STATE JUDICIAL SERVICE COMMISSION vs. TOLANI ( 2019) LPELR (47539) 1 at 19-20. The issue number three is consequently resolved against the Appellant.
It remains to consider whether the lower Court was correct in its order that the Respondent should not be ejected from the property subject of the litigation until the monetary awards of N1,000,000.00 and N200,000.00 costs have been paid. I have held in the course of this judgment that the award of N1,000,000.00 as damages for unlawful eviction, which was not one of the reliefs claimed by the Respondent, cannot be allowed to stand. I have further held that costs are awarded to the successful party in litigation and that the Respondent is evidently not the successful party in this litigation.
Undoubtedly, it is correct that a Court of law is imbued with the inherent jurisdiction to make consequential orders in the interest of justice even though the order was not specifically asked for: AKAPO vs. HAKEEM-HABEEB (1992) 7 SCNJ 119, LAYINKA vs. GEGELE (1993) LPELR (1769) 1 at 11 and EYIGEBE vs. IYAJI (2013) LPELR (20522) 1 at 24-25.
A consequential order is an order whose need arises naturally as a direct result of a substantive relief, to give effect to the substantive relief. A consequential order is an order which follows as a result of the main order. A consequential order is appurtenant to the main or principal order. See AKINBOBOLA vs. PLISSON FISKO (NIG) LTD (1991) LPELR (343) 1 at 21, EZE vs. GOVERNOR OF ABIA STATE (2014) 7 SCNJ 30 at 57-58 and 60 and NOEKOER vs. EXECUTIVE GOVERNOR OF PLATEAU STATE (2018) LPELR (44350) 1 at 41-42.
The Respondent failed in the substantive reliefs he claimed. The lower Court held that the Respondent had no title and no right to possession of the property subject of the litigation, it was therefore not open to the lower Court to make any orders that will keep the Respondent, who it had adjudged had no right to title or possession, in continued adverse occupation and possession of the property subject of the litigation. This is the effect of the order made by the lower Court that the Respondent should not be ejected until the monetary awards made in the judgment were paid. The lower Court was in error so to do as the order was not to give effect to any substantive relief in respect of the property made in favour of the Respondent. The issue number four is therefore resolved in favour of the Appellant.
As I begin to put a wrap on this judgment, the conflating of the foregoing is that the appeal succeeds in part. The award by the lower Court of the sum of N1,000,000.00 as damages in favour of the Respondent for unlawful eviction and the order of the lower Court that the Respondent is not to be ejected until the monetary award made in its judgment has been paid are hereby set aside. The Appellant is entitled to the costs of this appeal which I assess and fix at N300,000.00.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance the draft judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I agree with his reasoning and conclusion that the appeal succeeds in part.
I abide by the consequential orders contained in the lead judgment of my learned brother.
DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA just delivered and I agree with the reasoning, findings and conclusion to the effect that this appeal succeeds in part.
Accordingly the judgment of the lower Court in suit no. FCT/HC/CV/2037/2009 delivered on 8th July, 2015 awarding the sum of N1,000,000.00 as damages in favour of the Respondent for unlawful eviction and an order not to be evicted until the monetary award is paid is hereby set aside.
I abide by the order as to cost in the lead judgment as mine.
Appearances:
Promise Mbani, Esq. For Appellant(s)
E. N. Chioke, Esq. For Respondent(s)
