MAKINDE & ORS v. REGD TRUSTEES OF ASSOCIATION OF TIPPER OWNERS AND DRIVERS, EKITI STATE CHAPTER (2020)

MAKINDE & ORS v. REGD TRUSTEES OF ASSOCIATION OF TIPPER OWNERS AND DRIVERS, EKITI STATE CHAPTER

(2020)LCN/14832(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/EK/89/2020

RATIO

JURISDICTION: HOW IS JURISDICTION DETERMINED

It is trite that jurisdiction is determined by the plaintiff’s claim, it is also trite that the main source of any Court’s jurisdiction is the Constitution; this position of the law was aptly put in Bewaji v. Obasanjo (2008) 9 NWLR (pt 540) at 572 where it was held that; the extent of the jurisdiction of Courts is expressly defined by the Constitution and the States must not conflict but be in tune with the Constitution, the supreme law. PER OBI ELECHI, J.C.A.

COURT: JURISDICTION OF THE FEDERAL HIGH COURT

The jurisdiction of the Federal High Court is as provided for in Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) and Section 251(1) (N) made issues relating to mines and minerals within the exclusive jurisdiction of the Federal High Court to the exclusion of any other Court.
“(251) not withstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters.
(n) Mines and minerals (including oil fields, oil mining, geographical surveys and natural gas.”
The Mining Act 2007 defines mineral resources in Section 162 of the Constitution thus:
“… any substance whether in solid, liquid and or on earth, formed by or subjected to geological process or deposits of rocks, coal, coal bed, gases, bituminous sheets tars, sand, any substance that may be extracted from coal, shale or tar sands, mineral water and mineral components in tailings and waste pile, but with the exclusion of petroleum and waters without mineral content.” PER OBI ELECHI, J.C.A.
COURT: WHICH COURT HAS JURISDICTION IN CLAIMS WITHIN THE AMBITS OF MINES AND MINERALS

As a result, it places the claimant’s claim within the ambits of mines and minerals pursuant to Section 251 (1)(n) of the Constitution of the Federal Republic of Nigeria 1999 as amended and thus, establishes that the High Court of Ekiti State has no jurisdiction to hear and determine this case in the first instance.
In the case of Onuorah V KRPC (2005) 6 NWLR (pt 921) 393, the Supreme Court held

“… however, for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its agencies. The matter must arise from the operation and interpretation of the Constitution. And finally, the matter must arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government of any of its agencies.”
A close examination of Section 251 (1)(n) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) does not show anywhere that jurisdiction to entertain a claim to run a private business of transporting sands, gravels, granites, hard core and other building materials is vested on the Federal High Court. That argument does not support the case of the Appellants. I am afraid that Section 251 of the Constitution has nothing to do with conferring jurisdiction on the Federal High Court for that matter.
The facts of this case does not fall within the definition of matters connected with or pertaining to mines and minerals including oil fields, oil mining, geological surveys and natural gas as shown in Section 251 (1)(n) of the Nigeria Constitution 1999 (as amended).
This suit I dare say is within the jurisdiction of the lower Court as it is merely a transaction between two individuals dealing in the business of transporting building materials like sand, gravel, granites and hard core.
In the case of Onuorah v. K.R.P.C (2005) 6 NWLR (pt 921) 393, the Supreme Court held:
“… however, for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its agencies. The matter must arise from the operation and interpretation of the Constitution. And, finally, the matter must arise from any action or proceedings for a declaration of injunction affecting the validity of any executive or administrative action or decision by the Federal Government, or any of its agencies”. PER OBI ELECHI, J.C.A.
EVIDENCE: DEFINITION OF EVALUATION OF EVIDENCE

The Supreme Court defined evaluation of evidence in Buhari V INEC (2008) LPELR – 814 (SC) per Tobi JSC (of blessed memory) at page 146 – 147 paragraphs F – A as follows:
“Evaluation of evidence for our purpose is the appraisal of oral evidence and the ascription of probative value to the evidence in the finding of facts.” PER OBI ELECHI, J.C.A.
EVIDENCE: FORMS OF EVALUATION OF EVIDENCE

Also in Chief Samusideen Afolabi Ayorinde & ORS V Chief Hassan Sogunro & ORS (2012) LPELR – 7808 (SC) hold per Rhodes – Vivour JSC at pages 22 – 23 paragraphs E – B as follows:
“Evaluation of evidence comes in two forms
a. Finding of fact based on the credibility of witnesses
b. Findings based on evaluation of evidence.
An appeal Court should be slow to differ from the trial judge. After all it was he that saw and heard the witnesses. In both (a) & (b), the conclusion of the trial judge should be accorded much right except found to be perverse.” PER OBI ELECHI, J.C.A.

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

1. MR. TOPE MAKINDE 2. MR. GBENGA KOLADE 3. MR. GBENGA OLADIPUPO 4. MR. ABIODUN OLAREWAJU 5. MR. LAMIDI JIMOH 6. REGISTERED TRUSTEES OF THE EKITI STATE TIPPER DRIVERS ASSOCIATION APPELANT(S)

And

REGISTERED TRUSTEES OF ASSOCIATION OF TIPPER OWNERS AND DRIVERS EKITI STATE CHAPTER RESPONDENT(S)

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ekiti State sitting at Ado-Ekiti, coram A. A. Adeleye, delivered on the 25th day of June, 2020.

BRIEF STATEMENT(S) OF FACT
The reliefs sought by the Respondent against the Appellants at the lower Court are thus:
a. A DECLARATION that the claimant has a constitutional and legitimate right to run a Private Business of Transporting sands, Gravels, granites, hard core and other building materials without any disturbance of whatsoever nature from the defendants.
b. A DECLARATION that the invasion and attack of the members of the claimant on the 19th, 20th and 21st day of November, 2018 by the defendants is barbaric, illegal, unlawful and an infringement on the claimant constitutional right to run a legitimate business.
c. AN ORDER for the payment of general damages of Fifty Million Naira (N50,000,000.00) by the defendants to the claimant consequence upon the barbaric attack on members of the claimant by the defendants on the 19th, 20th, and 21st day of November, 2018 which has since resulted in the total paralysis of business of members of

the claimant.
d. AN ORDER of perpetual injunction restraining the Defendants, their agents, servants, privies, workmen, appointees, consultants or howsoever called from attacking, disturbing, harassing, or doing anything whatsoever against the claimant and her members in a way to frustrate their legitimate business.
e. The sum of N2,000,000.00 (Two Million Naira) cost of litigation against the defendants.

Judgment of the lower Court was delivered on the 25th day of June, 2020. Not satisfied with the said judgment, the Appellant has now approached this Court.

To argue the appeal, the Appellant formulated two issues for determination thus:
(I) WHETHER HAVING REGARD TO THE PROVISIONS OF THE MINING ACT 2007 AND THE REGULATIONS MADE PURSUANT THERETO AND S. 251(1)(N) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED) THE LOWER COURT HAD THE JURISDICTION TO ENTERTAIN THE MAIN CLAIM RELATING TO DISPUTE ARISING FROM TRANSPORTATION AND DEALING IN SAND, GRAVEL, GRANITE E.T.C WHICH ARE ISSUES PERTAINING TO MINERAL RESOURCES AND ARE WITHIN THE EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT. (Distilled from Grounds 1 & 2).

(II) WHETHER THE LEARNED TRIAL JUDGE PROPERLY AND RIGHTLY EVALUATED THE EVIDENCE PLACED BEFORE HIM AND RIGHTLY CAME TO THE DECISION THAT THE ATTACK ON THE RESPONDENT BY THE APPELLANTS WAS PROVED AND AWARDED GENERAL DAMAGES OF ONE HUNDRED THOUSAND NAIRA (N100,000.00). (Distilled from Grounds 3 and 4).

ARGUMENT:
ISSUE 1
WHETHER HAVING REGARD TO THE PROVISIONS OF THE MINING ACT 2007 AND THE REGULATIONS MADE PURSUANT THERETO AND S. 251(1) (N) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED), THE LOWER COURT HAD THE JURISDICTION TO ENTERTAIN THE MAIN CLAIM RELATING TO DISPUTE ARISING FROM TRANSPORTATION AND DEALING IN SAND, GRAVEL, GRANITE E.T.C WHICH ARE ISSUES PERTAINING TO MINERAL RESOURCES AND ARE WITHIN THE EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT. (Distilled from Grounds 1 & 2).

It is submitted that jurisdiction is the life blood of adjudication and a threshold issue, and once it is found or established that a Court lacks jurisdiction to entertain a matter, the entire proceedings become a nullity in law no matter how well such proceedings were conducted. See: OLABA V AKEREJA (1988) 3 NWLR (PT 84)

508, DREXEL ENERGY & NATURAL RESOURCES v T.I.B (2008) 12 SC (PT 4) 240.

It is submitted that the jurisdiction of the Court is as conferred on it by the Constitution as well as such jurisdiction conferred upon it by specific statues, as in this instance, the Mining Act 2007.ABUNG V EKABOKON GLOBAL SERVICES LTD (2018) LPELR-44791 CA, JULIUS BERGER NIG PLC V ENG PROJECT LTD (2013) LPELR-20694 CA, KOREA NAT OIL CORP V OPS (NIG) LTD (2018) 2 NWLR (PT 1604) 394 @ 474 DH.

Also, that the jurisdiction of the Court is decided by the subject of the claim and not determined by ancillary claims and reliefs such as those relating to injunction etc. See WESTERN STEEL V WORKERS UNION (1987) 2 SCNJ 9, ATUNKA V ABOKI (2016) LPELR 41199 CA.

And that a holistic evaluation of the principal/main relief herein will reveal that the cause of action is predicated upon the right to undertake the business of transporting sand, gravel, granites etc.

In view of the above, Learned Appellant Counsel submitted that in any action relating to the operation of mineral resources pursuant to a Small Scale Mining Lease, jurisdiction is exclusively conferred on the Federal

High Court under Section 251(1)(n) made issues relating to mines and minerals to the exclusion of any other Court.

As further confirmation that sand being transported by the claimant as pleaded is a mineral resource within the contemplation of the Mining Act, he referred the Court to Exhibit C1, a Mining Lease issued to the claimant by the Federal Government, tendered by the Claimant through CW1, which gives the Claimant the authority to move sand, allegedly.

The point being made by Learned Counsel is that the substratum of the action relates to the right associated with the mineral license granted to the Respondent to transport sand, gravel e.t.c, pursuant to a small scale mining lease. This places the Claimant’s case within the ambits of Mines and Minerals pursuant to S. 251(1)(n) of the Constitution of the Federal Republic of Nigeria and thus, establishes that the High Court of Ekiti State has no jurisdiction to hear and determine this case in the first instance.
See Abung V Ekabokan Global Service Ltd (2018) LPELR-44791 (CA), Wema Securities and Finance V NAIC…

Learned Appellant Counsel argued that as for the principal claim of the

Respondent, the lower Court lacks the jurisdiction to entertain. As a result therefore, the lower Court is also bereft of jurisdiction to hear the ancillary reliefs contained in the said suit. See PDP V SYLVA (2012) ALL FWLR (PT 637) 606 AT 644, TUKUR V GOVT OF GONGOLA (1989) 4 NWLR (PT 117) 517, ADEYEMI BERO V LSDDC (2012) LPELR-20615 (SC).

It is therefore submitted that a dispassionate appraisal of reliefs b, c and d which are ancillary reliefs will involve a decision on the right to undertake the business of the transportation of sand and gravel and to deal in them which is the main claim, a subject matter not within the competence and jurisdiction of Ekiti State High Court. See Nkemdilim V Madukolu (1962) LPELR-24023, Abung V Ekabokan Global Services Ltd & Ors (Supra).

The Court is urged to resolve this issue in favour of the Appellant, set aside the judgment of the lower Court and strike out the action.

ISSUE 2
WHETHER THE LEARNED TRIAL JUDGE, PROPERLY AND RIGHTLY EVALUATED THE EVIDENCE PLACED BEFORE HIM AND RIGHTLY CAME TO THE DECISION THAT THE ATTACK ON THE RESPONDENT BY THE APPELLANTS WAS PROVED AND AWARDED GENERAL DAMAGES OF ONE

HUNDRED THOUSAND NAIRA (N100,000.00). (Distilled from Ground 3 and 4).

It is submitted that matters relating to evaluation of facts, assessment of evidence and consideration of veracity of the testimony of witnesses are essentially and intrinsically matters for the Court of trial. See AJAO V ALAO (1986) 3 NWLR (PT 45) 802, FATOYINBO V WILLIAMS (1956) IFSC 37.

Also that where a trial Court has erred in evaluating the facts placed before it, an appellate Court can re-examine the whole facts and come to an independent conclusion as the trial Court. See EBENEHI V THE STATE (2009) LPELR, EZEAFULUKWE V JOHN HOLT LTD (1996) LPELR-1196 SC.

In the context of the claim submitted to this Court for adjudication, it is contended that the trial Court failed to properly evaluate the pleadings and evidence placed before it and came to a wrong decision, thereby occasioning a miscarriage of justice.

It is argued that the fulcrum of the Respondent’s case is the alleged interference in its activities of dealing in mineral resources which resulted in the attack on it and its members. See THE WRIT TO SUMMONS AND STATEMENT OF CLAIM CONTAINED AT PAGES 1-45 OF THE RECORD.

It is further argued that the attack described by the Respondents is in the species of assault and battery, which in everyday use of the word means to attack, hit or beat somebody.

G.F Padfielid in his book Law made Simple 5th Edition at p. 211 defined battery as “applying force however slight to the person of another hostilely or against his will.”
Gilbert Kodinliye in his book Nigeria Law of Torts 2nd Edition at page 12 defined battery as “the intentional application of force to another person”.
Also that deducible from the above is that the person to be assaulted must be capable of apprehension and sustain physical injuries, in essence a natural person.

Learned Counsel argued that what can be deduced from the pleading is that the Claimant/Respondent is an artificial person, which in law has a distinct Legal personality from its members who were allegedly attacked by the 1-5th Appellants as well as its members namely Chief Oluwatayo Ojo and Oluwole Company and Allied Matter Acts 2004. See INC’D TRUSTEES OF HOLY APOSTLES CHURCH, AYETORO & ORS V INC’D TRUSTEES OF ONENESS FAITH OF CHRIST MINISTRY, AYETORO & ORS (2016) LPELR-41368 (CA).

As a result, what pervades the totality of the pleadings of the Claimant was that Mr. Oluwole Sajowa (CW2) and Chief Oluwatayo Ojo were specifically assaulted by the 1st – 5th Appellants and others and they sustained various injuries on the 18th, 19th and 20th November, 2019.

Chief Oluwatayo Ojo was not called as a witness even though his evidence was frontloaded at pages 28-30 of the record. Having failed to adopt same, it is of no moment in the determination of the dispute.

Also, a cursory look at the statement of claim will further reveal that nowhere was it pleaded where the assault on the claimant and its members took place; GBENGA OJO CW2, in his evidence was silent on where the assault took place. See BATURE V YERO (2019) LPELR-48263.
CW3, Oluwole Sajowa at paragraph 4 in his witness statement on oath said the attack took place at Ago Corner, in Ado-Ekiti.
CW1, Abiodun Falomo’s witness statement on oath was also silent as to where the assault took place.

The point Learned Counsel is making is that, having not established where the attack or assault or

howsoever of its member took place, there can be no assault and this cast doubt on the case of assault as described. The averments of the place the assault took place relayed by CW3 at Ago corner Ado-Ekiti is of no moment because evidence is at variance with the pleadings. See Akaninwo V Nsirim (2008) LPELR-321 (SC), Vanderpuye V Gbadebo (1998) LPELR-3459 SC.

The Claimant pleaded that its members were attacked by the Appellants with dangerous weapons and obviously injury inflicting weapons such as sticks, shovel, broken bottles and other dangerous weapons, and that its members who attempted to stop them sustained various degree of injuries. See paragraph 15 of the Statement of Claim.

It is submitted that the Claimant/Respondent herein cannot in law seek any remedy for alleged personal attack on its named members as in this case. It follows therefrom that the Claimant/Respondent lacked the locus standi to institute any action for personal injuries, battery, assault or howsoever described inflicted on its members.

If the Learned Trial Judge had taken the above into consideration which he failed to do, he ought to have been clear enough

to him that evidence in support of the assault is not credible and unworthy of ascribing any probative value thereto.
The standard of proof in an action of this nature (assault of this nature with criminality) even though a Tort, is proof beyond reasonable doubt.

It is argued that it behooves on the claimant (assuming it can be assaulted being an artificial person and suffer various degree of injury and or maintain any action in relation thereto on behalf of its members) to establish beyond doubt reasonable by stating further where the alleged assaulted persons went for treatment for injuries presumably sustained as a result thereof, and who administered treatment on those wounded members. See AGBONAVBARE V OGBEBOR (2007) 8 NWLR (PT 1037) 605 AT 620.

The Court is referred to Section 135(1) and 138 of the Evidence Act 2011 provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt. See EMMANUEL V UMANA (REPORTED IN LAW PAVILLION AS SC/1/2016, WOMILOJU V KIKI (2009) LPELR 8860, AGBASI V UBA PLC (2019) LPELR 47193.

It is stated that even though the trial Court opined that because the evidence of the claimant was not challenged, same is deemed accepted as establishing the assault, but on the contrary it is trite that the burden of proof for criminal allegations in civil proceedings rest squarely on the person making the allegation. Thus, even if the Defendant proffers no explanation or Defence to the allegations, he is still duty bound to properly evaluate such evidence in the absence of a denial (which is not the case here).

It is submitted that the law is that in cases of this nature, even if the Defendants/Appellants did not deny the allegation(s) that does not lessen or diminish the burden on the Claimant to establish assault, which he failed to do in this instance. See Uwaje V Maduemezia (2015) LPELR-24543. Also submitted is that the process adopted in arriving at its decision on the basis that the evidence proffered by the Claimant was unchallenged and contradicted is, not only flawed and baseless but has occasioned a miscarriage of justice. A party must succeed on the strength of his own case and not the weakness, if at all, in the case of the Defendant or conduct of same, a

Court is still duty bound to properly ascertain if the “uncontradicted evidence” is credible enough to sustain the claim. See OLOOKAN V. FRSC & ORS (2019) LPELR-47871 (CA).

Learned Appellant Counsel contended that another flaw in the judgment of the lower Court is that, contrary to the finding of the Learned Trial Judge that the fact of the assault was not denied, a holistic evaluation of the Statement of Defence and the evidence proffered by the Appellants witnesses otherwise, as could be observed in the statement of the Defence paragraphs 4, 5, 11, 13 and 14 and also paragraphs 4 and 15 of the witness statement on oath of all the defendants witness and the claimant filed no reply to that effect. As a result, it is submitted that the finding of the Learned Trial Judge that the claimant was assaulted is perverse and the Court is urged to hold that the case of the Respondent is replete with doubts which ought to be resolved in favour of the Appellants. See ATOLAGBE V SHORUN (1985) LPELR SC.

On the award of N100,000.00 general damages payable to the claimant by the 1-6th Defendants, Learned Counsel submitted that it is not only perverse

but that there was no basis in law and on the evidence before him for the award of damages. He stated that award of damages is only made only when the claimant has established a wrongful act against a defendant. See UMUDJE V SPDC (1975) 9 – 11 SC 95, NUC V ALLI (2013) LPELR-21444 (CA), Compaigne General De Geophysique (Nig) Ltd V Ariemughre (2016) – 40786 (CA).

However, in this case, it is submitted that the pausity of credible and cogent evidence which pervaded the case of the claimant ought not to have merited any award of damages but a dismissal as the Court is not a Father Christmas. The award he contended is improper. See MTN (NIG) COMMUNICATIONS LTD V ESUOLA (2018) LPELR-439252 (CA).

The Court is therefore called upon to invoke its appellate jurisdiction under Section 16 of the Court of Appeal Act and make such proper orders as the lower Court ought to have made. See Akeredolu V Akinremi & ORS (1989) 328 SC.

Finally, the Court is urged to re-evaluate the totality of the evidence placed before the Lower Court and hold that the assault of the Claimant having not been established, the award of damages for same is baseless and

perverse and to so hold. The Court is urged to resolve this issue in favour of the Appellants.

In conclusion, the Court is urged to allow the appeal and set aside the entire judgment of the lower Court with costs.

On their own part, the Respondent adopted two issues for determination by the Appellant.
a. Whether having regards to the provisions of the Mining Act 2007 and the regulations made pursuant thereto and S. 251 (1) (n) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the lower Court had the jurisdiction to entertain the main claim relating to dispute arising from transportation and dealing in sand, gravel, granite etc. which are issues pertaining to mineral resources and are within the Exclusive jurisdiction of the Federal High Court.
b. Whether the Learned Trial Judge properly and rightly evaluated the evidence placed before him and rightly came to the decision that the attack on the respondent by the appellants was proved and awarded general damages of one Hundred Thousand naira (N100, 000.00).

ARGUMENT ON THE ISSUES
ISSUE ONE
Whether having regards to the provisions of the Mining Act

2007 and the regulations made pursuant thereto and S. 251 (1) (n) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the lower Court had the jurisdiction to entertain the main claim relating to dispute arising from transportation and dealing in sand, gravel, granite etc. which are issues pertaining to mineral resources and are within the Exclusive Jurisdiction of the Federal High Court.

The main claim of the Respondent against the Appellants at the lower Court is as follows:
a. “A DECLARATION that the claimant has a constitutional and legitimate right to run a Private Business of Transporting sands, Gravels, granites, hard core and other building materials without any disturbance of whatsoever nature from the defendants”.

Learned Respondent Counsel stated that, the main claim of the Respondent at the lower Court is for Court to declare her as eligible to run a private business of transporting sands, gravel, granites, hard core and other building materials. The key words therein are “… private business of transporting…” The questions to be answered here is whether transporting sands,

gravels, granites, hardcore and other building materials fall within the definition of matters connected with or pertaining to mines and minerals, including oil feeds, oil mining, geographical surveys and natural gas?

He submitted that Section 251 (1) (n) of the Constitution of the Federal Republic of Nigeria 1999 does not envisage transporting of sands, gravels, granites, hard core and building materials. Any attempt to bring the claim of Respondent under this law would amount to over stretching the definition of the Section of the law that says:
“(n) Mines and Minerals (including oil fields, oil mining, geological surveys and naturals gas)”.

The case of the Respondent at the Lower Court has nothing to do with the mining or exploration of mineral resources. The name of the Respondent and that of the 6th Appellant are very clear and not vague, the two of them are strictly transporters. The interpretation of the Learned Counsel to the Appellant to Section 251 (1) (n) is a bit reckless and completely out of point as he had extended the language of the section of the law beyond its onerous meaning. He referred the Court to the authority

of Ehikhamwen V Iluobe (2002) 2 NWLR (pt 750) 151.

Based on the above, it is submitted by Learned Counsel that the lower Court is clothed with jurisdiction to entertain the suit of the Respondent. The dispute as per the claim is simply between two private individuals dealing in the business of transporting building materials like sands, gravel, granites and hard core. See the case of Onuorah V KRPC (2005) 6 NWLR (pt 921) 393 (SC).

Premised on the above, the Court is urged to reaffirm the decision of the lower Court and resolve this issue in favour of the Respondent and dismiss the appeal with substantial cost.

Issue No. 2
“Whether the Learned Trial Judge properly and rightly evaluated the evidence placed before him and rightly came to the decision that the attack on the respondent by the appellants was proved and awarded general damages of one Hundred Thousand Naira (N100, 000.00).”
To argue this issue, it is submitted that the trial Court evaluated the pleadings and evidence placed beyond it properly before at its decision. According to Learned Counsel, the question to be answered is whether the members of the

Respondent were attacked by the Appellants on the 19th, 20th and 21st day of November 2018. However, the answers to this question he stated are provided in paragraphs 11 – 19 of the statement of claim on pages 7 – 9 of the record. Also, Falonio Abiodun led evidence to this fact as contained in his written statement on oath at pages 14 – 20 of the record also.

CW3, Mr. Oluwole Sajowa gave a vivid picture of how the Appellants attacked him as shown on page 31 – 33 of the records.

Even the evidence of CW3 remains unchallenged even under cross-examination. From all the above, it is submitted that the evidence proffered by the Respondent is enough to sustain the judgment given in her favour.

The Respondent he submitted has successfully discharged the duty imposed on her by Section 135(1) of the Evidence Act 2011; proof beyond reasonable doubt which does not imply proof beyond every shadow of doubt.

On the award of damages, the Learned Respondent Counsel submitted that the Respondent is entitled to the award of damages to assuage the loss of earnings for a period of three days caused by the acts of the Appellant. Worthy

of note is the award of damages is at the discretion of the trial Court and such discretion must be exercised both judicially and judiciously which was properly exercised in this suit.

The Respondent having proved and established her claim, the Court is urged to affirm and uphold the decision of the lower Court and dismiss the appeal in its entirety with substantial cost against the Appellant and in favour of the Respondent.

The Appellant filed what he termed “Reply on points of law to the Respondents brief” dated 17/11/2020 and filed same date. No new issue was raised in the argument. But rather, the brief was being reargued, contrary to the rules of this Court. The said point of law is hereby discontinued.

RESOLUTION OF ISSUES
Issues for determination in this appeal will be considered and determined as formulated and adopted by the parties thus:
I. Whether having regard to the provisions of the Mining Act 2007 and the Regulations made pursuant thereto and Section 251(1) (n) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), the lower Court had the jurisdiction to entertain the main claim relating to dispute

arising from transportation and dealing in sand, gravel, granite etc which are issues pertaining to mineral resources and are within the exclusive jurisdiction of the Federal High Court (Distilled from Grounds, 1 & 2)
II. Whether the Learned Trial Judge properly and rightly evaluated the evidence placed before him and rightly came to the decision that the attack on the Respondent by the Appellants was proved and awarded general damages of One Hundred Thousand Naira (N100,000.00) Distilled from Grounds 3 & 4.

I shall commence the resolution of the issues from Issues one ”whether having regard to the provisions of the Mining Act 2007 and the reputations made pursuant there to and Section 251(1) (N) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended), the lower Court had the jurisdiction to entertain the main chain relating to dispute arising from transportation and dealing in sand, gravel, granite etc which are issues pertaining to mineral resources and are within the exclusive jurisdiction of the Federal High Court (distilled from grounds 1 & 2).

It is trite that jurisdiction is determined by the

plaintiff’s claim, it is also trite that the main source of any Court’s jurisdiction is the Constitution; this position of the law was aptly put in Bewaji v. Obasanjo (2008) 9 NWLR (pt 540) at 572 where it was held that; the extent of the jurisdiction of Courts is expressly defined by the Constitution and the States must not conflict but be in tune with the Constitution, the supreme law.

The simple issue arising for determination is whether having regard to the provision of Section 251(1)(N) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended), the lower Court was right when it held that the High Court of Ekiti State is vested with jurisdiction to hear and determine the respondents claim as herein before stated. The law is indeed well settled as correctly argued by the parties in their briefs of argument that jurisdiction of a trial Court is determined by the plaintiffs claim as endorsed in the writ of summons and the statement of claim. See Adeyemi V Opeyori (1976) 9-10 SC 31, Mustapha Vs Governor of Lagos State (1987) 2 NWLR (pt 58) 539, Tukur v Govt of Gongola State (1989) 4 NWLR (pt.117) 592 and O.H.M.B. v. Garba

(2002) 14 NWLR (pt 788) 538.
Thus in the present case, the claim of the respondent as earlier stated in the judgment relates to a declaration that the claimant has a constitutional and legitimate right to run a private business of transporting sands, gravels, granite, hard, core and other building materials without any disturbance of whatsoever nature from the defendants.
The jurisdiction of the Federal High Court is as provided for in Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) and Section 251(1) (N) made issues relating to mines and minerals within the exclusive jurisdiction of the Federal High Court to the exclusion of any other Court.
“(251) not withstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters.
(n) Mines and minerals (including oil fields, oil mining, geographical surveys and natural gas.”
The Mining Act 2007 defines mineral

resources in Section 162 of the Constitution thus:
“… any substance whether in solid, liquid and or on earth, formed by or subjected to geological process or deposits of rocks, coal, coal bed, gases, bituminous sheets tars, sand, any substance that may be extracted from coal, shale or tar sands, mineral water and mineral components in tailings and waste pile, but with the exclusion of petroleum and waters without mineral content.”
It is in view of the above provisions of the law that the Appellant submitted that the substratum of the Respondent’s action at the lower Court relates to the right associated with the mineral license granted to the Respondent to transport sand, gravel etc pursuant to small scale mining lease. As a result, it places the claimant’s claim within the ambits of mines and minerals pursuant to Section 251 (1)(n) of the Constitution of the Federal Republic of Nigeria 1999 as amended and thus, establishes that the High Court of Ekiti State has no jurisdiction to hear and determine this case in the first instance.
In the case of Onuorah V KRPC (2005) 6 NWLR (pt 921) 393, the Supreme Court held -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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and minerals including oil fields, oil mining, geological surveys and natural gas as shown in Section 251 (1)(n) of the Nigeria Constitution 1999 (as amended).
This suit I dare say is within the jurisdiction of the lower Court as it is merely a transaction between two individuals dealing in the business of transporting building materials like sand, gravel, granites and hard core.
In the case of Onuorah v. K.R.P.C (2005) 6 NWLR (pt 921) 393, the Supreme Court held:
“… however, for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its agencies. The matter must arise from the operation and interpretation of the Constitution. And, finally, the matter must arise from any action or proceedings for a declaration of injunction affecting the validity of any executive or administrative action or decision by the Federal Government, or any of its agencies”.
This issue is resolved in favour of the Respondent.

ISSUE TWO
“Whether the Learned Trial Judge properly and rightly evaluated the

evidence before him and rightly came to the decision that the attack on the Respondent by the Appellants was proved and awarded general damages of One Hundred Thousand Naira only (N100,000.00).

Learned Appellant Counsel submitted that matters relating to evaluation of evidence of its assessment and consideration of the testimony of witnesses are essentially and intrinsically matters for the Court of trial. See EBENEHI V STATE (2009) LPELR, EZEAFULUKWE V JOHN HOLT LTD (1996) LPELR 1196 (SC).

Appellant’s contention under this issues is that in the context of the claim before the Court that the trial Court failed to properly evaluate the pleadings and the evidence and thereby arrived at a wrong decision. This has therefore led to a miscarriage of justice.

However, a look at the judgment of the lower Court may assist or not on whether the evidence in Court was properly evaluated. At page 12 – 13 of the records, the Court held thus “it is pleaded and led in evidence by the claimants witnesses, CW1 – CW3 that the 1st – 5th defendants who are officers and members of the 6th defendant to attack members of the claimant

association on the 19th, 20th and 21st days of November, 2018. Members of the claimant association that attempted to prevent them from destroying properties were assaulted, while Chief Oluwatoyo Ojo and Mr. Oluwole Sajowa were assaulted. Lorries belonging to the claimant members were prevented from operating their trade during the period of attack. This led to loss of business on their part.
The defendants failed to cross examine the claimant’s witnesses CW1 – CW3, on the allegation by the claimants that members of the 6th defendants led by the 1st – 5th defendants attacked members of the claimants on the 19th, 20th and 21st days of November, 2018 that their Lorries were prevented from operating their business, and this led to loss of earnings. The defendant also failed to cross examine the claimant’s witnesses on the allegation that Chief Oluwatayo Ojo and Mr. Oluwole Sajowa were assaulted and that they sustained injuries.
Such a failure on the part of the defendants to cross-examine the claimant’s witnesses on such material issue has been held to be tacit acceptance of the truth of the evidence of the claimants’

witnesses. See CBN & ORS V OKOJIE (2015) LPELR – 24740 (SC)
I accept the evidence of CW1 – CW3 on the fact of attack on the claimants by the defendants on the 19th, 20th and 21st days of November, 2018 as unchallenged to establish the facts of the claimant’s case.”

The above does not support the submission of the Appellant that the trial Court failed to evaluate the pleadings and the evidence before the Court. The judgment of the lower Court is not perverse and the authority of Atolagbe V Shorun (1986) LPELR SC does not fall in all four walls with this case.

The Supreme Court defined evaluation of evidence in Buhari V INEC (2008) LPELR – 814 (SC) per Tobi JSC (of blessed memory) at page 146 – 147 paragraphs F – A as follows:
“Evaluation of evidence for our purpose is the appraisal of oral evidence and the ascription of probative value to the evidence in the finding of facts.”
I have read the judgment of the lower Court and particularly pages 149 – 150 of the records particularly where the trial judge held thus:
“I hold that the attack by the defendants on the

claimants on the 19th, 20th and 21st days of November, 2018 is unlawful.”
Also in Chief Samusideen Afolabi Ayorinde & ORS V Chief Hassan Sogunro & ORS (2012) LPELR – 7808 (SC) hold per Rhodes – Vivour JSC at pages 22 – 23 paragraphs E – B as follows:
“Evaluation of evidence comes in two forms
a. Finding of fact based on the credibility of witnesses
b. Findings based on evaluation of evidence.
An appeal Court should be slow to differ from the trial judge. After all it was he that saw and heard the witnesses. In both (a) & (b), the conclusion of the trial judge should be accorded much right except found to be perverse.”
I have read and considered the judgment of the trial judge and do not see same as perverse. The trial Court undertook evidence adduced by the defendants witnesses and even placed them on the imaginary scale of justice as laid down in the Supreme Court case of Magaji V Odofin (1978) 4 SC 91 – 94.

On the award of general damages, it is contended that there was no basis in law and on the evidence on the defendant for the award of N100,000.00 to the 1st

– 6th defendants as general damages. Also that the awards of damages as such can only be granted only when the claimant has established a wrongful act against the defendant and not by intuition as in this case.

It must be noted that general damages cover all losses which are not capable of exact qualification. It includes all non-financial loses (past and future). Items of general damages need not and should not be specially pleaded, but some evidence of such damages is required. The Courts have held that there is no fixed rule by which to assess general damages. The matter is therefore, at the discretion of the Court to award a fair and reasonable compensation having regard to the circumstances of the particular loss. See Okuneye V Lagos City Council (1973) 2 CCHCJ page 38, Mobil Oil Nig Ltd V Akinfosile (1969) NWLR (pt 11) 112, A.G Oyo State V Fairlakes Hotels Ltd (No. 2) (1989) 5 NWLR (pt 121) 355.
In awarding general damages, the trial judge took into consideration the loss of earnings for the period of days of attack by members of the claimant association. In awarding same, the trial judge exercised his discretion both judicially and

judiciously. The award of damages in this suit is not on the high side. Where a discretion of the Court is properly and validly exercised as herein, an appellate Court must not lightly interfere with it. See CBN V Okojie (2015) LPELR – 24740 (SC).
The lower Court was therefore right in awarding the said general damages under the guiding principle of restitution integrum.
This issue is resolved in favour of the Respondent.

The two issues canvassed in this appeal are hereby resolved in favour of the Respondents. The appeal therefore fails as being unmeritorious. Accordingly it is hereby dismissed. I also affirm the decision of the lower Court in suit No: HAD/110/2018 delivered on the 25/6/2020 by His Lordship Hon. Justice A. A. Adeleye.
Appeal dismissed.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

FATIMA OMORO AKINBAMI, J.C.A.: I agree

Appearances:

O. Olatawura Esq. with him, I. A. Omolade Esq., O. T. Basanwo Esq. and O. S. Ajayi For Appellant(s)

O. Adedeji Esq. with him, B. A. Enikanolaye Esq. For Respondent(s)