MR. MIKE AMAKEZE v. MR. CHIEF ABEL ONWUDIWE & ORS
(2013)LCN/6049(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of March, 2013
CA/E/159/2008
RATIO
ACADEMIC QUESTIONS: ATTITUDE OF THE COURT TOWARDS ACADEMIC QUESTIONS
This court like all courts does not entertain academic questions. See GLOBAL TRANSPORT OCEANICO S. A. & ANOR VS. FREE ENTERPRISE NIGERIA LTD (2001) 5 NWLR (Pt.706) 426 or (2001) LPELR 1324. In YUSUF & ORS VS. TOLUHI (2008)14 NWLR (pt.1107) 237 or (2008) LPELR 3 533 the Supreme Court per Ogebe JSC held that it is trite law that a Court should not engage itself in an academic exercise.” Per. EMMANUEL AKOMAYE AGIM, J.C.A.
ISSUE FOR DETERMINATION: WHETHER AN ISSUE THAT DOES NOT ARISE FROM A GROUND OF APPEAL CAN BE STRUCK OUT.
It is trite law that any issue for determination in an appeal must be based on and derive from a ground of appeal. Any issue or any argument in the appeal that does not arise from at least one of the grounds of appeal is incompetent and must be struck out. See OJE & ANOR VS. BABALOLA & ORS (1991) 4 NWLR (pt.185) 267 and AYISA VS. AKAUJI & ORS (1999) 7 NWLR (pt.406). In UTUK VS. THE OFFICIAL LIQUIDATOR (UTUKS CONSTRUCTION AND MARKETING CO. LTD & ANOR (2008) LPELR 4323, this court sitting in Calabar held 4 that “a respondent must frame or formulate his issue for determination from the ground or grounds of appeal filed by the appellant. He cannot frame issues not based on any ground or grounds of appeal unless he has filed a cross-appeal or a respondents notice from which such issues derive their source.” Per. EMMANUEL AKOMAYE AGIM, J.C.A.
THE POSITION OF THE LAW WHERE A COMPLAINT IS AGAINST THE WEIGHT OF EVIDENCE
In OSOLU VS. OSULU (supra), the Supreme Court per Musdapher JSC (as he then was) held that “It is noteworthy that when a complaint is against the weight of evidence, the complaint must be against the totality of the evidence adduced before the trial court not against any specific issue, the evaluation of all the evidence and not the weight to be attached to any particular piece of evidence.” Per. EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
MR. MIKE MAKEZE Appellant(s)
AND
1. MR. CHIEF ABEL ONWUDIWE
2. MR. JOSEPH NGINI
3. MR. OBIENU Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 14th of September, 2006, the appellant herein as plaintiff filed a writ of summons commencing Suit No.HID/193/2006 in the High Court of Anambra State, Idemili Judicial Division at Ogidi against the respondents herein, as defendants claiming for :-
(a) A declaration that the plaintiff is a yearly tenant of the 1st defendant, at the 1st defendant’s property situate at and being No. 18 Endwell Street Nkpor, and is accordingly entitled to six months notice, before he could be ejected from the premises.
(b) A declaration that the statutory notices (One month, & 7 days) purportedly issued and served on the plaintiff through posting by the 2nd defendant on the 29th April 2005, is void and of no effect whatsoever.
(c) A declaration that suit No.MID/953/2005 Chief Abel Onwudiwe thru attn. B.C. UZUEGBU & ANOR VS. MIKE Amakaeze, together with the judgment and orders made therein, are illegal, void & of no effect whatsoever, by reason of lack of jurisdiction by the learned Chief Magistrate to entertain the suit.
(d) A declaration that the payment by the plaintiff of his 2005 annual rents to the 1st defendant’s attorney, which was accepted by the said attorney, nullifies completely the statutory notices purportedly issued and served on the plaintiff in April 2005.
(e) A declaration that ejection proceedings cannot be commenced against the plaintiff by the 1st defendant’s attorney in the absence of valid statutory notices.
(f) An order setting aside the judgment and orders made by the learned chief Magistrate against the plaintiff in suit No.MID/953/2005.
(g) An order commanding the defendants to restore all the plaintiff s properties as listed in paragraph 16 above, which they carted away on the 9th day of June 2006, in perfect condition.
OR THE ALTERNATIVE
The sum of N791,500.00 & 500,000.00 cfa (Cameroonian currency) being the total value of the aforesaid plaintiff’s properties carted away by the defendants.
(h) The sum of N2,000.000.00 being general damages against the 1st defendant for breach of contract of tenancy.
All parties filed and exchanged their respective pleadings accompanied by their witness statements on oath and other documents. On the basis of all these, viva voce evidence was given by all parties and their witnesses. At the conclusion of trial, the said High Court per J. I. NWEZE. J. on the 12th of September 2007″ rendered judgment, declaring the Judgment and orders of the Chief Magistrate Court Ogidi in Suit NO.MID/953/2005, (CHIEF ABEL ONWUDIWE VS. MIKE AMAKEZE) null and void and setting same aside, dismissing the claim for damages for having failed for lack of proof, dismissing the entire claim against the 3rd respondent with cost of N14,000 in his favour, and awarding cost of N14, 000 in favour of the appellant against the 1st respondent.
The appellant on the 6th of December, 2007 filed a notice of appeal dated 30th November, 2007 commencing this appeal No.CA/E/159/2008 against:-
“(a) That part of the judgment of the lower court where the learned trial judge failed to award special damages and general damages in favour of the appellant for the loss he sustained by virtue of the execution levied in his residential flat by the respondents.
(b) That part of the judgment where the learned trial judge failed to make an award in general damages to the appellant, for the breach of his tenancy agreement by the 1st respondent.
(c) The order of cost of N14,000.00 made against the appellant, in favour of the 3rd respondent.”
The notice contained six grounds of appeal.
On the 14th October, 2010, the 1st respondent obtained the leave of this Court to file his cross – appeal out of time. The cross appeal was filed on 13th October, 2010. The 2nd and 3rd respondent did not cross-appeal.
All parties to this appeal have filed and adopted their briefs as their respective arguments in this appeal. The appellant in his brief raised the following issues for determination in this appeal:
1. “whether the learned trial judge did not misdirect himself in law when after making findings of fact that the judgment of the Chief Magistrate Court Ogidi in MID/953/2005, (by which the appellant lost his entire household properties), is a nullity, he proceeded to attach high probative value to an exhibit (inventory) which forms part of the discredited judgment of the Magistrate court, and used it as a basis for dismissing the appellant’s claim for special damages?
2. Whether the appellant has not made out a case entitling him to an award of Special Damages and General Damages in this matter over the loss of his entire household properties as well as cash of N75,000.00 and CFA 500,000.00 in Cameroonian currency?
3. Whether from the nature of this case, the appellant’s Ipse dixit alone which was unchallenged by the 1st respondent, is not enough for the learned trial judge to rely on and award special damages to the appellant?
4. Whether the learned trial judge properly evaluated the evidence in this matter particularly with respect to the appellant status as a tenant in view of the exhibits tendered in evidence particularly exhibit P4 (which is a letter from the Attorney to the 1st respondent showing that the appellant had cleared his rents for the year 2005?)
5. Whether in all the circumstances of this case, the appellant is not entitled to at least an award of General Damages for the breach of his Tenancy Agreement with the 1st respondent, by the Attorneys/Agents to the 1st respondent?
The 1st respondent in his brief raised the following issues for determination
1. “Whether the Appellant can complain about completed and irreversible acts occasioned to his items of attached property by the Bailiffs when admittedly, the Appellant and his lawyer had knowledge of the default judgment but allowed execution to be carried out before advancing to Court of Appeal.
2. Whether the official acts of the 2nd and 3rd Respondents as Bailiffs of court and public officers carrying out functions assigned to them by the court are not protected by law.
3. Whether the court below was right in setting aside the judgment in suit No. MID/953/2005 for want of service of the originating process when it is obvious that Appellant was duly served.
4. Whether the 1st Respondent can be condemned to pay cost when he did no wrong.”
The 2nd respondent in his brief raised the following issues for determination
(i) “Whether the suit or claim in suit No. HID/193/06 against the 2nd Respondent is competent in view of the provisions of section 11(2) of the State Proceedings Law Cap.134 Revised Laws of Anambra State of Nigeria.
(ii) Whether the Appellant proved his case on the balance of probability against the 2nd Respondent’
(iii) Whether the 2nd Respondent is not entitled to cost against the Appellant for unnecessarily bringing the said 2nd Respondent to court.
The 3rd respondent in his brief raised the following issues for determination
1. “Whether the appeal is maintainable in view of the failure of the appellant to comply with the provisions of section 11 (2) of the State proceedings Law Cap.134 Revised Laws of Anambra State of Nigeria before instituting suit HID/193/2006 in the High court.
OR
Whether the Appellate court rightly entertained the Appellant’s appeal or grant the reliefs sought by the appellant in the face of apparent and total lack of proof of service of pre-action notice on the 3rd respondent before the commencement of the suit at the trial court.
2. Whether the trial court was right in awarding N14,000.00 cost in favour of the 3’d respondent who was unjustly sued merely for carrying out his official legitimate lawful duty.”
The appellant in addition to the appellant’s brief also filed a cross-respondent’s brief. The 1st respondent in addition to the 1st respondent/cross-appellant’s brief also filed a cross appellant’s reply brief. A total of six briefs were filed in this appeal. Let me make some preliminary clarifications concerning the briefs of the 1st, 2nd and 3rd respondents in this appeal.
With respect to the 3rd respondent, I wonder if the issues raised by him for determination and the arguments in the brief based on those issues are competent since the trial Court dismissed the claim against him after holding that it was not proved and he filed no cross-appeal against the award of the cost of N14,000 in his favour. His issue No.1 appear otiose and academic. Since the appellants claims against the 3rd respondent were dismissed, what useful purpose will it serve arguing or determining issue No.1. I do not think that the issue serves any useful purpose except to engage in an academic exercise. This court like all courts does not entertain academic questions. See GLOBAL TRANSPORT OCEANICO S. A. & ANOR VS. FREE ENTERPRISE NIGERIA LTD (2001) 5 NWLR (Pt.706) 426 or (2001) LPELR 1324. In YUSUF & ORS VS. TOLUHI (2008)14 NWLR (pt.1107) 237 or (2008) LPELR 3 533 the Supreme Court per Ogebe JSC held that it is trite law that a Court should not engage itself in an academic exercise.”
Secondly there is no ground of appeal upon which this issue No. 1 is predicated. It is trite law that any issue for determination in an appeal must be based on and derive from a ground of appeal. Any issue or any argument in the appeal that does not arise from at least one of the grounds of appeal is incompetent and must be struck out. See OJE & ANOR VS. BABALOLA & ORS (1991) 4 NWLR (pt.185) 267 and AYISA VS. AKAUJI & ORS (1999) 7 NWLR (pt.406). In UTUK VS. THE OFFICIAL LIQUIDATOR (UTUKS CONSTRUCTION AND MARKETING CO. LTD & ANOR (2008) LPELR 4323, this court sitting in Calabar held 4 that “a respondent must frame or formulate his issue for determination from the ground or grounds of appeal filed by the appellant. He cannot frame issues not based on any ground or grounds of appeal unless he has filed a cross-appeal or a respondents notice from which such issues derive their source.” Issue No.1 is therefore incompetent and is hereby struck out.
Issue No 2 of the 3rd respondent’s brief is equally not based on any ground of this appeal. For this reason it is also incompetent and is hereby struck out.
Since the only two issues raised for determination by the 3rd respondent’s brief are incompetent, I hold that all the arguments based thereon are incompetent. Arguments in an appeal before this court must be based on issues that are validly raised and are competent. Where as in this case the issue is incompetent, no valid or competent argument can be made on the basis of such an issue. See KALA VS. POTISKUM & ANOR (1998) 3 NWLR (pt.540)1 or (1998) LPELR 1648 where the Supreme Court discountenanced arguments based on incompetent issues. For the above reasons the entire brief of the 3rd respondent is hereby struck out for being incompetent. With respect to the 2nd respondent, the three issues raised in his brief for determination and on which the entire argument in his brief is based, do not arise from any ground in this appeal. The said issues are therefore incompetent. For this reason the 2nd respondent’s brief is equally struck out for being incompetent.
As it is, the 2nd and 3rd respondents have not responded to the arguments in the appellants brief. This has, however, not relieved this court of the legal duty to consider the merits of the arguments in the appellants brief to find out if they are sustainable in law. As this court held in CHIEF TITUS ANAMASONYE ONWUGBELU VS. EJIOFOR EZEBUO & ORS (in its Judgment CA/E 156/2009 delivered on 21-2-2013 (unreported) “where one party in a case has argued a point whether of law or fact, he thereby invites the Court to judicially determine the issue so argued. The argument serves to invoke and guide the Court’s judicial inquiry into the issue. The contrary or alternative argument by the other side is to provide an alternative or balanced guide for the Court on the matter. The absence of such reply cannot be taken to mean that the pending argument represents the law and the facts of the case. The appellants argument serves to show that the judgment is wrong in a particular respect having regard to the facts and the law. The arguments remain mere inferences or opinions of law and facts on the basis of the evidence on record. It is the state of the facts on record and the existing relevant law that will determine the validity of such argument and not the absence of an alternative or contrary opinion. It will help the substantial justice of the case if the merit of the pending argument is considered on the basis of the facts before the Court and the existing law relevant to the facts of the case.”
The appellant/cross Respondent in his cross-respondent’s brief attacked the competence of ground 3 of the cross-appeal and issues Nos. 1 and 2 of the Respondents/Cross-appellant brief of argument. I will deal with them before proceeding further in the determination of this appeal.
Learned Counsel for the appellant contended that issues Nos 1 and 2 are incompetent and should be struck out on the following grounds:
(a) “That both issues were not borne out from any of the grounds of appeal of the cross appellant.
(b) That issue No. 2 in particular, is a completely new issue which was not canvassed by the cross appellant at the trial, and accordingly can not be raised in this court, without the leave of this court.
(c) That there was no decision by the lower court on issue No. 2, and no ground of appeal was formulated by the cross appellant on the said issue No. 2.”
In arguing this objection he pointed out that grounds 1 and 2 of the cross-appeal on which they are respectively based have no particulars of error. Although he did not challenge the competence of these grounds for not stating the particulars of error, having highlighted such omission which is fundamental, I cannot ignore it and say nothing. Ground 1 of the Cross-Appeal states that “The Learned Trial Judge erred in law in setting aside the Judgment in suit No MID/953/2005 for want of service of the originating process.” Ground 2 of the cross Appeal states that “The Learned Trial Judge erred in law by awarding cost against the 1st plaintiff /cross-appellant who did no wrong to merit condemnation in costs” It is obvious that these two grounds of appeal alleging errors of law do not contain any particulars of error contrary to Order 6 Rule 2 and 3 of the Court of Appeal Rules 2011. The requirement of particulars of error is in furtherance of the fundamental requirement as provided in Order 6 Rules 2(1) and 3 Court of Appeal Rules, that a notice of appeal must give notice to the respondent or other parties to the appeal and the Court of the case presented in the appeal. The ground of appeal constitutes that notice. It defines the issues in controversy in the appeal so that the respondent is not taken by surprise or ambushed. Order 6 Rule 3 prescribe how that notice is to be given and the minimum requirement for such notice where the ground alleges error or misdirection in law. It requires that the particulars of the alleged error must be clearly stated. It is trite law that it can be stated as part of the main ground of appeal or distinct from it under a heading “particulars of Error of law”. However it is stated, it must be clearly stated. This will help to avoid general and vague allegations of errors of law that will not give notice of why and how the error of law occured or in what respects the court erred in law. Allegation of error of law without particulars clearly is general and vague. The particulars identify and highlight the area of error showing the specific reasoning, findings or observation that is an error. In Global Transport Oceanico SA & Anor vs. Free Enterprises Nig. Ltd, (2001) 2 SC 154, the Supreme Court following its decision in Atuyeye vs. Ashamu (1987) 1 NWLR (pt 49) 267 at 282 held that the purpose of the requirement of particulars of error in law or misdirection is to inform the Court and the respondent of the particulars of error in law or misdirection alleged, to enable the respondent meet the case of the appellant and the Court to properly consider and determine such error or misdirection complained of.
The requirement of grounds of appeal and particulars of error or misdirection is not only one of fair hearing, it is also one of jurisdiction. It defines the scope of the issues the court can competently determine. The appellate Court cannot consider or determine any matter outside the complain brought before it in the appeal. So the jurisdiction of the appellate Court is limited to the issues contained in the grounds and the particulars of error. The character of a ground of appeal as a notice of the issue to the other party and the court and a determination of the scope of jurisdiction of the appellate court in the appeal makes it a fundamental requirement of an appeal. The same applies to the particulars of error or misdirection, where a ground alleges error of law or misdirection. Without specifying clearly the particulars of error, such a ground is worthless. Order 6 Rule 3 permits this Court to strike out any ground of appeal that is general and vague in terms or which discloses no reasonable ground of appeal. See OSASONA VS. AJAYI & ORS (2004) LPELR 2790 held 6 (SC) OSANWANU VS. EZEIRUKA (1978) 1 LRN 307 and MBA VS. AGU (1999) 9 SCNJ 84 at 94.For these reasons I hold that grounds 1 and 2 of the cross-appeal are incompetent and are hereby struck out. As it is, issues Nos 3 and 4 which are based respectively on the said grounds 1 and 2 of the cross appeal cannot stand, because issues for determination in an appeal must derive from the grounds in the appeal before it can be competently and validly raised. I therefore hold that issues No. 3 and 4 in the cross-appellant’s brief are incompetent and are hereby struck out. Arguments in an appeal must be based on competent issues. The arguments under the said issues Nos 3 and 4 are therefore equally struck out for being incompetent.
Ground 3 of the cross-appeal cannot save issue No 3 and the arguments thereunder. The said ground 3 complains “that the judgment is against the weight of evidence as it relates to that part of judgment setting aside the judgment in suit No MID/953/2005.” It is an omnibus ground of appeal. The cross-appellants issue No. 3 questions whether the trial Court “was right in setting the judgment in suit No MID/953/2005 for want of service of the originating process when it is obvious that appellant was duly served.” The specific finding of fact by the trial court that the originating processes in suit No MID/953/2005 at the Chief Magistrates Court were not served on the defendant is not challenged in this appeal. There is no ground of appeal against this finding of fact. A finding of fact or any part of the decision of a court will remain valid and subsisting until it is set aside. Where in an appeal, there is no ground of appeal against a finding of fact, a party cannot rely on the omnibus ground of appeal to attack such a specific finding of fact.The cross-appellant cannot competently argue as he has done under issue No 3 that there was evidence that the originating processes were served on the appellant when there is no ground of appeal against the finding of fact that the originating processes as well as the hearing notice were not served on the appellant before the proceeding and judgment in the Magistrate Court. No argument can validly lie against a finding on a specific issue on the basis of the omnibus ground of appeal without a ground of appeal specifically complaining about the said finding of fact See the decision of the Supreme Court on this point in OSOLU VS. OSOLU & ORS (2003) 11 NWLR (pt.832) 608 or (2003) LPELR 2810, ALLIANCE INTERNATIONAL LIMITED VS. SAAM KOLO INTERNATIONAL ENTERPRISES LTD (2010) LPELR 3749, NDIWE VS. OKOCHA (1992) LPELR 1972 (SC).
Let me now return to the objection of the appellant/cross-Respondent in his cross-Respondent’s brief against issues Nos 1 and 2 of the Cross-Appellants brief and ground 3 of the cross Appeal. The appellant has argued that these issues do not derive from any of the grounds of the cross-appeal and that issue No 2 does not relate to any matter decided in the judgment of the trial court. The 1st respondent/cross-Appellant has argued replicando in his cross-appellant reply brief that the issue need not arise only from the grounds of cross-appeal, they can also derive from the grounds of the principal appeal. He argued further that the said issues Nos 1 and 2 derive from grounds A, B, C, D, and F of the appellants Notice of appeal commencing this appeal. I agree with the submission of Learned Counsel for the 1st respondent/cross-appellant that the respondent/cross-appellant’s issue for determination can derive from the grounds of the main appeal or from the grounds of the cross appeal. See UTUKS VS. OFFICIAL LIQUIDATOR (supra). Having thus stated, I will now proceed to consider if the said issues Nos 1 and 2 derive from grounds A, B, C, D and F of the appellants notice of appeal or from the grounds of the cross-appeal. It is obvious that the two issues do not derive from any of the grounds of the cross-Appeal. I have carefully perused grounds A, B, C, D and F and could not find any relationship between any of them and the said issues. Grounds A, B and C complain about the part of the judgment of the trial court that the claim for special damages was not proved. Ground D complains that the trial court failed to make a specific finding of the fact that the appellants wife was not in appellant’s residence when his properties were removed in execution of the judgment of the Magistrates Court. Ground F complains about the award of cost of N14,000 against the appellant in favour of the 3rd respondent, alleging that there was no basis for the award. Issue No 1 of the cross-appellants brief contend that the appellant and his lawyer had fore knowledge of the existence of the default judgment but allowed the execution to take place and so cannot complain of the completed and irreversible act of the bailiffs in execution of the judgment. Issue No 2 contend that the official acts of the 2nd and 3rd respondents as bailiffs of court and public officers are protected by law. Clearly, these issues do not arise from the above grounds of the main appeal.
I agree with the submissions of Learned Counsel for the appellant that since issues Nos 1 and 2 are not derived from any ground in this appeal, they are incompetent and should be struck out. See the Supreme Court decisions in ADELEKE VS. OGBONDA (2006) NSCQLR vol. 28 631 at 640 and GLOBE FISHING INDUSTRIES LTD. VS. COKER (1990) 7 NWLR (pt.162) 265 cited by Learned Counsel for the appellant. For the foregoing reasons, I hold that issues Nos 1 and 2 of the 1st respondents/Cross-appellants brief and the arguments thereon are incompetent and are hereby struck out.
I do not however agree with the submission of Learned Counsel for the appellant that ground 3 of the cross-appeal was incompetent for being verbose and unnecessarily narrative. Although inelegantly phrased, the ground is still competent. Even though the ground is competent, there is nothing in the 1st respondent /cross-appellant’s brief contending or raising and arguing any issue to the effect that the decision to set aside the judgment of the Magistrate court was against the weight of the evidence. Issue No 3 which contend that the trial court was not right to set aside the said judgment “for want of service of the originating process when it was obvious that the appellant was duly served” is derived from ground 1 of the cross appeal that “the Learned trial judge erred in law setting aside the Judgment in suit No MID/953/2005 for want of service of the originating process.” I have already held that this ground alleging error in law did not state the particulars of error and is therefore incompetent. There is no doubt however that an issue can derive from more than one ground of appeal. But there is nothing in issue No 3 or the arguments there under contending that the said part of the judgment cannot be supported by the weight of evidence, or that the trial court admitted and relied on inadmissible evidence or that the inferences or conclusions cannot be justified by the admitted evidence. So the issue and the argument thereon is not dealing with the omnibus ground of appeal, which ground 3 of the cross appeal is.
In OSOLU VS. OSULU (supra), the Supreme Court per Musdapher JSC (as he then was) held that “It is noteworthy that when a complaint is against the weight of evidence, the complaint must be against the totality of the evidence adduced before the trial court not against any specific issue, the evaluation of all the evidence and not the weight to be attached to any particular piece of evidence.”
What the cross-appellant did under issue No 3 is to reproduce with out more the testimony of the 2nd respondent that he served the said processes and that the evidence of Learned counsel for the 1st respondent/Cross appellant that he and his wife, who work together in the same chambers acted as pointer, has cleared any doubt that may have risen. Apart from referring to the evidence the trial court would have relied on to hold that the process was served on the appellant, there is no complain that the weight of evidence does not support or that there is no evidence to support the decision or specific holding or finding that there is no service of such processes on the appellant. Further, as I have already held the appellant cannot rely only on the omnibus ground of appeal to attack such specific findings of fact in the absence of any ground of appeal specifically attacking such finding. The complain that the judgment is against the weight of evidence is an attack against the totality of the evidence adduced before the court and not on a finding of fact on a specific issue. A complain against a finding of fact on a specific issue must arise from a separate and substantive ground of appeal. In OSOLU VS. OSULU (supra) the Supreme Court held 8 that “It is trite law that an appeal court dealing with such a ground of appeal, the legitimate complaint is limited to the appraisal of the evidence and not on finding or non finding of a specific fact or issue. In the later cases the matter can duly be raised by a substantive ground of appeal.”
As it is, no issue was raised by the cross-appellant from ground 3 of the cross appeal and no argument was advanced in support of the ground. It is trite that a ground of appeal in respect of which no issue is raised and argued is deemed abandoned and liable to be struck out. See LABIYI VS. ANRETIOLA (1992) 8 NWLR (Pt.258) 139 OLAIYA VS. STATE (2010) 2 SCM 763 at 769-770 and MICROSOFT CORPN VS. FRANIKE ASSOCIATES LTD (2011) LPELR 8987. I therefore strike out ground 3 of the cross-appeal since it is abandoned.
The 1st respondent/cross appellant has filed his respondent’s brief and his cross-appellant’s brief together in a single document. His 1st respondent’s brief is contained in paragraphs 4.00 to 6.03 at pages 8-14 of the said document titled “Respondent/Cross Appellant’s brief of argument.” The cross-appellant brief is contained in paragraphs 7.00 to 10.3 at pages 14-18 of the same document. The appellant also joined in one document titled “Cross-Respondent’s brief ‘ his cross respondent’s brief in reply to the cross appellant’s brief of argument and his reply on points of law to the 1st respondent’s brief in reply to the appellant’s brief. The reply on points of law is contained in paragraphs 4.00 to 4.09, wherein he objected to the competence of the 1st respondent’s said brief of argument on the ground that it was filed out of time without leave of court to do so. According to Learned counsel for the appellant, appellant’s brief was filed on 9th June, 2008 and served on the 1st respondent one week thereafter. Appellant and respondent agree in their briefs that the 1st respondent by motion on notice dated and filed on 26th November, 2008 sought for “extension of time to seek leave to cross-appeal, an order to cross appeal and an order for the enlargement of time within which to file the cross appeal.” On 4th of October 2010, he moved the motion and was granted all the above prayers by this court. Whereupon the 1″ respondent filed the “Respondent/Cross Appellant’s brief incorporating his respondent’s brief on the 8th of March, 2011.
I agree with Learned Counsel for the appellant that Order 18 Rule 4(1) Court of Appeal Rules 2011 require that the respondent shall within 30 days of the service of the appellant’s brief on him file the respondent’s brief. So as at 8th March 2011, when the 1st respondent filed his respondent’s brief in the main appeal, he was about 2 years 9 months out of time. The 1st respondent should have sought for an extension of time to file his respondent’s brief out of time. He should have included a prayer for it in the motion on notice under which he sought extension of time to cross appeal. He did not do so. He rather sought for extension of time to cross appeal. This court extended the time to cross-appeal. There was no Order extending the time for the 1st respondent to file his respondent’s brief. As it is, the said 1st respondent’s brief contained in paragraphs 4.00 to 6.03 at pages 14-18 of the “Respondent/Cross Appellant’s brief is incompetent and will not be countenanced or considered in the determination of this appeal. It is hereby struck out. However, I do not agree with the submission of the Learned counsel for the appellant that “judgment be entered for the appellant in the main appeal on the basis of the appellant’s brief which is unchallenged.” I had held herein that in a situation where the argument of a party is not replied to, the court has a duty to consider the argument made to find out if it is sustainable in law. That is exactly what I will do here. It is clear from the Judgment that upon the decision of the trial court setting aside the judgment of the Magistrate Court, it proceeded to hold that it was no longer possible to order a return of the properties of the appellant removed from his house in execution of the nullified Judgment, because the said properties had long been sold. The trial court then decided to consider the claim for their value by way of general and special damages. This decision implicitly determined the wrongfulness of the execution. The appellant did not raise and argue any issues on grounds D and F. The appellant clearly abandoned these grounds. Ground D and F are hereby struck out.
The only valid and subsisting grounds of appeal in this appeal are grounds A, B, C, E of the appellant’s notice of appeal and the only valid and subsisting issues for determination in this appeal, are those in the appellant’s brief of argument.
Before I go further, I think I should make some observation on the need for counsel to be more diligent in the conduct of appeals. Poor and shoddy handling of appeals go a long way to adversely affect the litigants right of access to justice, the overall process of administration of justice and the public perception of the process of getting justice. Courts have continued to be confronted with this problem of lack of diligent prosecution of appeals. This is arguably the main cause of the pervasive inordinate delays in appeal processes resulting in huge backlogs of uncompleted appeal cases. It is of utmost importance to the effective and efficient administration of law and delivery of justice that counsel involved in appeals pay serious attention to the task of preparing the grounds of appeals, distilling the issue for determination of the appeal from the grounds of appeal, preparing the argument of the issues, meeting time schedules and attending to the pre-hearing and hearing processes of the appeal. The grounds of appeal should be drawn, the issues framed and the arguments prepared with the greatest skill, accuracy and expertise in accordance with the highest ethical standards.
Let me return to the issues for determination in this appeal. In my view the issues that arise for determination in this appeal are:-
1. Whether the trial court was right to have dismissed the appellants claim for the sum of N791,500 being the total value of the properties removed from the appellants house.
2. whether the trial court should have considered the appellant’s claim for general damages for breach of tenancy agreement and awarded same.
I will start with the first issue. The appellant claimed for the sum of N791,500.00 representing the total monetary value of the properties removed from his house and sold. This includes cash of N75000 belonging to his wife. He also claimed for N500,000.00 CFA (Cameroonian currency). Although he did not describe this claim for the value of the properties as special damages, the court rightly regarded it so. The particulars of the items and the value of each item were pleaded in paragraph 16 of the amended statement of claim. This satisfied the requirement of specific pleading of a claim for special damages. The 1st respondent in paragraph 16 of his statement of defence denied the above particulars of the appellant’s properties that were sold. The 2nd respondent stated in paragraph 7 of his statement of defence that he is not in a position to admit or deny paragraph 16 of the statement of claim and put the appellant to the strictest proof thereof. The 3rd respondent denied the said particulars in paragraph 10 of his statement of defence. 3rd respondent in his statement defence contended that the properties are old and dilapidated.
The 1st and 3rd respondents relied on the list in the inventory of properties removed from his house in the presence of his wife who signed the inventory. Issues became joined as to the quantity and type of properties removed from the appellant’s house. It was therefore necessary for the appellant to adduce evidence to strictly prove the particulars of the properties and their value stated in paragraph 16 of his statement of claim. The appellant in his testimony in his written deposition gave evidence supporting the averments in paragraph 16 of his statement of claim and thereby confirming the particulars of properties and their exact value therein. He did not tender any document like purchase receipts to show the purchase price of the items and made no explanation for his inability to do so. Be that as it is, the respondents did not cross-examine him concerning his evidence of the quantity, type and value of the properties removed from his house.
On this state of evidence the trial court held that “The plaintiff has contended that the failure of the defendant to cross examine on the value of the items amounts to a tacit acceptance of the truth of the value ascribed to the property by the plaintiff. He referred to the case of GAJI V. PAYE (2003) 8 NWLR (PT.823) 583. I agree that the defendants did not put a single question to the plaintiff to challenge the value of the items not the items themselves. However that is not the end of the matter. The reason is that there is an inventory of the items removed from the plaintiff s house.
The inventory was signed by the appellant’s wife. She admitted that in Court. The items on the inventory which is in evidence as Exhibit D.48 differ from what the plaintiff now claims. Her story as to why she signed it was held by the trial court to be an after thought.
The appellant in this appeal is contending that the trial court should not have relied on exhibit D 48 (the inventory) as it is part of the proceedings and judgment of the Magistrate court that the trial court had nullified.
I do not think that this argument is valid. There is no doubt that the execution of a judgment is meant to enforce the judgment. Execution of a judgment cannot arise if there is no judgment. But the execution of a judgment is not part of the judgment. It is a process that occurs after judgment. Therefore, an inventory of the properties removed from the house of a judgment debtor following the attachment of such properties by a writ of fieri facias to enforce the realization of a judgment to pay money, cannot be regarded as part of the said judgment. I think that the trial court was right when it relied on exhibit D48 (the inventory) to determine the question of the quantity and type of goods removed from the house of the appellant in execution of judgment of the Chief Magistrates court. The Trial Court had found as a fact that the appellant’s wife, PW4 was present in the appellant’s house when the properties were removed and she signed exhibit D48 acknowledging that those were the properties removed from their residence. In an action, such as this one, to set aside the execution and return the seized goods or in the alternative pay the value of the goods, where there is a dispute as to what was actually removed from the house, the inventory of the items removed signed by the judgment debtor or his or her representative would be a more veritable basis for the resolution of the dispute. It should have more weight than the mere ipse dixit of the appellant confirming his assertion in his statement of claim. Since the appellant’s wife signed the inventory, he is bound by it. This is because the evidence show that throughout the course of the tenancy she has been representing her husband, in dealing with the 1st respondent and his agents in any matter connected with the tenancy agreement between her husband and the 1st respondent. She and her children were permanently resident and living in the house while the husband was away in Cameroon. The trial court did not believe the testimony of pw4, appellants wife and pw2 that she did not sign the inventory in the house on the day and at the time the properties were removed and that it was some days after when she went with pw2 to the court to recover the latter’s generator taken along with appellants goods that the court officials insisted she signed the inventory before the generator can be released to them. The trial court as earlier stated herein, described this story as an after thought. The inventory differs from the evidence of the appellant concerning the number, type and condition of the properties removed from his house. The properties on the inventory are lesser in number than those in the testimony of the appellant. What is important however is that the inventory is evidence that the properties listed therein were removed from the appellant’s house. What is now left is to determine their value.
The appellant gave oral evidence of the value of each item listed in paragraph 16 of his statement of claim and in his written deposition. The respondents did not cross-examine him on this point and did not lead evidence to the contrary. So the only evidence of the value of the items remain that of the appellant as contained in his testimony. There is no doubt that such evidence of the value of the goods if not challenged or contradicted by cross-examination or contrary evidence from the defence is enough proof of the value of the goods as listed in the appellants testimony. There is no doubt that purchase receipts of the items would have been better evidence of their value, but the absence of such receipts does not render the oral evidence of their value unreliable unless there is some evidence in the case that renders the oral evidence not credible.
I think that the issue that needs to be resolved here is whether the appellant’s oral evidence of the value of his properties as listed in his testimony proved his claim for special damages having regard to the difference between the list of properties in the inventory and the list of properties in his testimony and the unchallenged averment in paragraph 10 of the 3rd respondent’s statement of defence that the properties were old and dilapidated. A comparison of the two lists show that they differ in quantity and type. The appellant did not file a reply pleading denying the averment in paragraph 10 of the 3rd respondent’s statement of defence that the properties were old and dilapidated. As it is this averment remains admitted. The appellant who did not join issues with the 3rd respondent on the pleadings on the age of the properties, stated in his testimony that some of the properties like the dinning chairs and table are new.
Furthermore, the 3rd respondent testified in his written deposition that the properties removed from the appellant’s house were old and dilapidated. He was not cross-examined on the age of the said properties. This failure to cross-examine the 3rd respondent on the age of the properties in the absence of contrary evidence by the appellant amounts to admission or acceptance of the fact that the properties were old and dilapidated. See GAJI VS. PAYE (2003) 9 NWLR (pt.923) 583 at 605 cited by Learned counsel for the appellant where the Supreme Court held that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness.
In view of these differences between the two list of properties, it is difficult to see how the value of the properties in the list contained in the appellants testimony can represent the exact value of the properties listed in the inventory. The difficulty is shown by the following example. The list in paragraph 16 of the appellant’s statement of claim and his testimony states “A newly built set of dinning table with 6 chairs valued N140,000.00. The inventory list states “1 dinning table and 1 chair.” There is no evidence of the value of 1 dinning and 1 chair. Even if the purchase receipts were available and produced, they will only show the value as at the date of purchase but not their value in their old and dilapidated state. As it is, the actual and exact value of the properties on the inventory is not known. Therefore the claim for special damages representing the value of the properties on the inventory list is not proved. Special damages must be strictly proved. Strict proof requires that the monetary value of the items lost or destroyed can be established with arithmetical exactitude. Such value cannot be assumed. It must be obvious from the evidence that it is capable of exact quantification. The appellant’s oral evidence of the value of the items removed from his house does not establish the value of the properties on the inventory with arithmetical exactitude. I uphold the decision of the trial court dismissing the appellant’s claim for special damages.
The appellant did not prove on a preponderance of evidence that any money was taken from his house along with the properties in the inventory. It is beyond dispute that he was not cross-examined on the part of his written deposition that cash of N75,000 and 500,000 CFA was removed from his house along with his other properties. However the 1st and 3rd respondents joined issues with the appellant on the pleadings as to what was removed from appellants house, and the 3rd respondent in his written deposition and viva voce evidence in Court during cross-examination gave evidence that is contrary to that of the appellant in his written deposition. In his written deposition, the 3rd respondent stated in paragraph 9 that “The claim by the plaintiff that money was removed is totally fabricated. In the presence of witnesses and the police, the wife of the plaintiff went round the flat. She collected all valuables she deemed fit before the execution started. No money was recovered from the flat.” During cross-examination he said that “Before we entered the house I told the wife to remove any money they have in the house. She said that there was no money. I was therefore surprised that she later claim we took money from their house.” In the face of this contrary evidence, the failure to cross-examine the appellant on the point is of no moment.
Learned Counsel for the appellant argued that the trial court ought to have awarded the appellant general damages as compensation “for the loss of his entire household properties as a result of the unlawful actions of the respondents particularly the 1st and 3rd respondents.” The appellant did not claim for general damages for the removal and sale of his properties from his house by the respondents. It is clear from the amended statement of claim that the only claim for general damages was against the 1st respondent for breach of contract of tenancy. Issue No.1 herein which cover issues Nos 1, 2 and 3 of the appellants brief are therefore resolved in favour of the respondents.
Let me now deal with issue No 2 herein. This covers issue Nos. 4 and 5 of the appellant’s brief. In paragraph 28h of the amended statement of claim, the appellant claimed for “the sum of N2000,000 being general damages against the 1″ defendant for breach of contract of tenancy.” The trial court in its judgment did not consider this claim. It remained silent on it. This certainly is wrong in law. A court has a duty to consider and pronounce upon on all the reliefs claimed for by the parties in the case. It will amount to injustice for a court to fail or refuse to consider the case or any part of the case presented by a party. Every relief sought for or any issue raised must be considered and pronounced upon one way or the other. This must be obvious from the record. In this case there is nothing in the record to show that the claim for general damages was considered by the trial court. As it is, this court can in the interest of justice do what the trial court failed to do, by virtue of the power vested on it by S.15 of the Court of Appeal Act 2004.
I will now proceed to consider the merit of the said claim for general damages. The issue of entitlement to general damages for breach of tenancy agreement presupposes that the tenancy agreement was breached. So the proper starting point for the determination of this issue is to find out if the tenancy agreement was breached. A written tenancy agreement was entered into between the appellant and the 1st respondent on 28th November 1989 and commenced on 1st December 1989. The appellant was a yearly tenant of the 1st respondent. On 5th January 2006, Learned Counsel for the 1st respondent, wrote on behalf of the 1st respondent to the appellant a letter in the following terms “NOTICE OF EXPIRY OF RENT IN RESPECT OF BUILDING AND PREMISES SITUATE AT NO.18 ENDWELL STREET, NKPOR
This is to remind you that your rent has expired since 31/12/2005. You are aware of the terms of the agreement executed in favour of your landlord. That is, that if you are interested in renewing your tenancy, you have to indicate so and pay one year rent on or before 25/3/2005. This rent is payable to my office at No. 19B New American Road Onitsha and receipt issued accordingly.
Do comply strictly with this letter, as failure shall be construed to mean that you are no longer interested in occupying the premises.
You have been timely put on NOTICE.”
It is clear from the terms of this letter that the appellant had fulfilled his obligation to pay rent for the demised premises up to the end of 2005. The purpose of this letter is to require him to indicate if he intends to renew his tenancy for the year 2006 and to pay rent for the succeeding year by 25th March 2006. The 1st respondent also wrote the appellant a notice of increase in rent with effect from January 2006. The letter dated 10th January 2006 indicated at the foot that “if you cannot afford the said increase, the lengthy time allowed you is sufficient for you to find alternative accommodation.”
The dispute in the case is about what happened after the notice of increase in rent dated 10th January 2006 and the 30th of June 2006 when the properties of the appellant were removed and his wife and children ejected from the 1st respondent’s house, which he occupied as a tenant under the said tenancy agreement.
The position of the appellant in his pleadings and the evidence in support of his case is that following the notice of increase, the tenants in the entire building through their mandated representatives entreated the 1st respondent to reduce the rents. He refused and rather indulged them more time up to end of August (before September) 2006 to start paying the increased rent for the current year of tenancy (2006). The appellant was taken aback when on 30-6-2006 at the instance of the 1st respondent his properties were removed and his wife and children ejected from the house in execution of a judgment obtained on 7th February 2006. The appellant maintained that he and his wife had no knowledge of any process to eject them from the demised property and were not aware of any case against them at the Magistrate court, as no eviction notice and no court process was served on them before the said execution of the judgment of the Magistrate court on 30th June 2006.
The position of the respondents to the contrary in their pleadings and evidence is as follows. The appellant had not paid his rents for the years 2004 and 2005. The letter dated 5th January 2006 he sent to the appellant was a routine letter he usually sends to tenants at the end of each year of tenancy. The 1st respondent through his Counsel served on the appellant notice to quit dated 27th April 2005 requiring him to quit and deliver up possession on 30th May 2005 and a 7 days notice to quit. The 1st respondent also maintained that when the appellant did not quit, he commenced a suit for arrears of rent and recovery of possession at the Magistrate court at Idemili and that all the originating processes were served on the appellant. That judgment was entered against the appellant who refused to attend Court and the judgment was timeously brought to his knowledge.
It has already been judicially determined by the trial High court in this case that the originating processes of the suit against the appellant at Idemili Magistrate court were not served on him before the proceedings and judgment of the Magistrate court. Therefore I will concern myself here with the issue of whether the appellant was in arrears of rent by the end of 2005. It is obvious from the terms of the letter dated 5th January 2006 (exhibit p4) that the appellant was not owing arrears of rent for 2004 and 2005, and that he had fulfilled his obligation to pay rent for those years. The document speaks for itself. If he was still owing any rent as at the end of December 2005, the document would have stated so. The testimony of DW3 (Learned Counsel to the 1st respondent) under cross-examination that exhibit P4 is a routine letter his office writes to tenants whether thy owe rent or not does not make sense. If his explanation was that the letter was written out of mistake or inadvertence it would have made more sense. Such an explanation cannot stand in the face of that letter and the appellant’s consistent position in his pleading and evidence that he paid his 2005 rents before March 2005. It is noteworthy that in paragraph 11 of the amended statement of claim the appellant specifically relied on exhibit P4 to show that the 1st” respondent had through his solicitor written to acknowledge that he had paid his rent for that year. How did the 1st respondent react to this fact in his statement of defence. In paragraph 13 of his statement of defence the 1st respondent stated thus -“Paragraph 11 is admitted. The Solicitors to the 1st Defendant continued to include the name of the plaintiff in the letters served on other tenants with a view to pressuring him see reasons why he will accept the waiver terms or yield vacant possession of the premises.”
Testifying in his written statement on oath the plaintiff said in paragraphs 5 and 6 therein “That I paid my rents as usual for the years 2004 and 2005 to the 1st Defendant’s Attorney, and was not issued with a receipt for the payment. That most fortunately, the 1st Defendant Attorney had previously issued me with documents dated 10th November 2005 and 5th January 2006, which confirmed that I had paid my rents up to December 31st 2005.”
The DW3 (Learned Counsel for the respondent) testifying in his written statement on oath said “At the end of every year, the firm circulates letters to all tenants to warn them that rent for that year has expired. This is notwithstanding that the person is many years in arrears. The letter pertains only to the outgoing year and has nothing to do with previous years.”
The fact that exhibit P4 was written to the appellant irrespective of the fact that he was owing rent or the fact that such letter is no acknowledgment that the tenant is not owing rent is not pleaded in the 1st respondent’s statement of defence or any of the other statements of defence. Being a new fact that is not in the statement of claim and is the basis of his defence, it ought to have been pleaded in the statement of defence. See NIPC Ltd Vs. Bank of West Africa Ltd (1962) I All NLR 556. The specific reliance of the appellant on the letter at paragraph 11 of the statement of claim demanded or required a clear defence from the 1st respondent. The 1st respondent in responding to paragraph 11 of the statement of claim expressly admitted it and never raised the defence that the letter did not represent what it expressly states and that it was written to the appellant even though he was still owing rent. This defence was only raised by 1st respondent testifying as DW3 in his written statement on oath and under cross-examination. It is at variance with the 1st respondent’s pleading in paragraph 13 of his statement of defence. It is trite law that evidence must be consistent with pleadings. The defendant can only raise a defence or elicit evidence of a defence he or she had set out in the statement of defence. He or she cannot competently elicit evidence of facts of a defence not contained in the statement of defence. Such evidence will be disregarded in line with the settled principle that evidence of fact at variance with the pleadings go to no issue and will not be considered in the determination of the case. Therefore the explanation of DW3 is not only unbelievable it is also inadmissible evidence. I therefore disregard it and hold on the basis of exhibit P4 that the appellant’s rent expired at the end of 2005. He was not owing any rent by the end of 2005.
Since the appellant was not owing any rent, there was no basis for his eviction and claim for arrears of rent. There was no basis for the institution and prosecution of suit No MID/953/2005. As at the time the notice to quit dated 27th April, 2005 was issued the appellant had already paid the 2005 rent. So as at the commencement of suit No MID/953/2005 in 2005, the appellant was not owing any rent. It is clear from the 1st respondent’s statement of defence and the testimony of DW3 (Learned Counsel for the 1st respondent) that the institution and prosecution of suit No MID/953/2005 at Idemili Magistrate Court was on the false basis that the appellant had not paid 2004 and 2005 rents. In the light of the foregoing I hold that the notice to quit and suit No MID/953/05 are malicious and false processes. This is clearly an unmitigated malicious abuse of judicial process. It is unfortunate that the civil process of Court is so maliciously and wrongfully used in the pursuit of an illegal enterprise. Learned Counsel for the appellant, Mr. Agwuna has in the appellant’s brief drawn the attention of this court to the fact that the practice of landlords and their lawyers wrongly and maliciously using the Magistrate Court process to illegally eject tenants in brazen disregard of existing tenancy agreements is now rampant. It does not help the image and the public perception of the legal profession when lawyers orchestrate or aid the mindless and malicious use of the court and its processes by a landlord to unlawfully eject helpless tenants from their homes, subjecting them and their families to humiliation, hardship and inhuman treatment in violation of the sanctity of existing tenancy agreements. It is in the public interest that the sanctity of tenancy agreements like all contracts be protected and the rule of law upheld at all times. It is important that the legal profession continue to, not only play its role, but also be seen to be playing its role as the pivot of law enforcement and promotion of rule of law. If the public or a segment of the public begin to perceive the legal profession or any part of it as being readily available and willing to improperly or wrongly use the judicial process to frustrate the due process of law, or, as in this particular case, destroy the sanctity of a tenancy agreement, they will loose confidence in law, the institutions of administration of law and the idea of the rule of law.
From the facts of this case, on the totality of the pleadings and the evidence, it is obvious that the appellant suffered loss of his household properties and dislocation from his home and inconveniences as a result of this breach of the 1st respondents obligation to give the appellant quiet and peaceable occupation and enjoyment of the demised premises. All sides agree the appellant, his wife and children were evicted from the house and that their properties as listed on the inventory were removed and sold at the instance of the 1st respondent. The processes were taken out by the 1st respondent in bad faith with the ulterior motive of using the instrumentality of the Court to evict the appellant and repossess the demised premises in breach of the tenancy agreement and in avoidance of the due process of law and was not to protect any legitimate interest of the 1st respondent under the tenancy agreement. It was clearly an abuse of the civil process of court. The judgment of the Chief Magistrate Court Idemili delivered on 7th February 2006 in MID/953/05 was obtained on the basis of these processes. The eviction of the appellant and his family and the removal of his properties from the demised property and sale of same at the instance of the 1st respondent when he was not owing any rent violated the clause in the written tenancy agreement guaranteeing the appellant quiet enjoyment of the said premises. It states “THE LANDLORD HEREBY AGREES WITH THE TENANT as follows: That the tenant paying the said rent and observing and performing all his obligations under this agreement shall quietly hold and enjoy the said commercial flat/warehouse and premises without interruption by the landlord or any person rightly claiming through or under or in trust for him.” The 1st respondent clearly breached this agreement. See FASORO VS. ABDALLAH (1987)2 NSCC 857 per Oputa JSC at 864-5, Praying Band of CHERUBIM & SERAPHIM VS. UDOKWU (1991) 3 NWLR (Pt.182) 716 at 735-736, ADOLLO VS. ADEYEMI (1962) 2 All NLR 96 and LAVENDER VS. BETTS (1942) All ER 72.
The appellant is entitled to recover general damages since his peaceable and quiet occupation and enjoyment of the land has been completely disrupted by the 1st respondent. See the English case of JONES vs. LAVINGTON (1903)1 KB 253
The appellant failed to get compensation by way of special damages for the loss of his properties listed on the inventory because the value of the loss was in capable of exact quantification or calculation. Should he remain without remedy for his losses because the value of the loss cannot be calculated with arithmetical exactitude? This loss flows naturally from the breach and is the direct consequence of the breach of the tenancy agreement. Although it is settled by a long line of decisions that it is not normally apt to categorize damages for breach of contract into general and special damages, the law recognizes more than one type of damages for breach of contract. In one, the measure of damages is akin to special damages and another is in the form of general damages. With regards to the former, the Supreme court in WAHABI VS. OMONUWA (1976) LPELR 3469 held 1 said “The damages recoverable are the losses reasonably forseable by the parties and forseen by them at the time of the contract as inevitably arising if one of them broke faith with the other. In the contemplation of such a loss there can be no room for claims which are merely speculative or sentimental unless these are specially provided for by the terms of the contract. It is only in this connection that damages can be properly described as special in the conception of contractual awards and must be borne in mind that damages normally recoverable are based on the normal and presumed consequences of the breach complained of.”
With regard to the second type, the Supreme Court held 4 that “general damages are those which the law implies in every breach of contract.” After holding that “apart from damages naturally resulting from the breach no other form of general damages can be contemplated.”
The importance of this differentiation between types of damages for breach of contract is that it helps to differentiate the damages for losses whose monetary value are capable of exact calculation and damages for losses whose monetary value are incapable of exact calculation. So that in a situation where the damages are for contemplated loss but the value of the loss is incapable of exact calculation, the assessment and award will be guided by the principle for award of general damages. It is my view that whether a loss is contemplated or arises by implication or presumption, an award of damages for breach of contract can be made only if the loss results from the breach of contract. Where it is obvious that a person has suffered loss as a natural and direct result of the breach of his contractual or other legal right it will be unjust not to compensate him for the loss because the value of the loss is incapable of exact quantification. In this situation the justice of the case demands that he be awarded general damages. But he must claim for general damages to be entitled to the award. It does not automatically enure from a failure of the claim for special damages.
In this case it is expressly claimed for. As the Supreme court per Idigbe JSC held in WAHABI VS. OMONUWA supra held 5, the quantification of general damages in terms of money is, however, a matter for the Court and in a majority of cases no precise measure can be indicated although the award necessarily includes compensation for damage incapable of exact proof in terms of money.”
It is trite law that the purpose for the award of damages for breach of contract is to restore the party whose right has been violated to the same position, So far as money can do, as if his right had not been breached. See WAHABI VS. OMONUWA (supra). Considering the precipitate dislocation of the appellant, his wife and children from their matrimonial home that fateful day and the obvious hardship that it would have caused them and the appellants properties that were taken away and sold the appellant is entitled to general damages. In assessing the amount to award as damages I have considered that the properties removed and sold which are contained in the inventory list are admittedly old and dilapidated. I assess and award the appellant general damages in the sum of N500,000.00 for the properties lost, the hardship and embarrassment suffered by the appellant. Considering that the 3rd respondent was not culpable in any respect in initiating the false and malicious processes upto the judgment of the Magistrate court, and that the illegal proceedings as well as the execution arising there from were at the instance of the 1st respondent and on his behalf, the 1st respondent alone shall pay the said sum of N500,000 as general damages to the appellant. The 3rd respondent who acted pursuant to a writ of attachment as a bailiff of the court in the bonafide belief that he was enforcing a judgment of the Magistrate Court on behalf of the 1st respondent as judgment creditor, cannot be held liable to pay the said damages in the absence of any mala fide on his part or any irregular or illegal exercise of his power as bailiff in the enforcement of the writ of attachment. Order 11, Rule 29(2) of the Judgment (Enforcement Rules) made under S. 94 of the Sheriffs and Civil Process Act cap. S. 6 provides that “The party prosecuting the judgment shall be liable for any damages arising from any illegal or irregular proceedings taken at his instance.” The Supreme Court in JACKIE PHILLPS PHOTOS LTD. VS. FAR EAST MERCANTILE CO LTD. (1974) LPELR 1588 (SC) held 1 per Ibekwe JSC that “It is evident that the above mentioned rule is to make the judgment creditor vicariously liable for any illegal or irregular proceeding taken on his behalf by the bailiff or any officer of the court.”
The evidence show that the 2nd respondent played no role in the execution of the said judgment. The only role he played in the whole case is that he claimed to have served the statutory notice to quit by posting same on the door of the appellant’s house. The trial court did not believe this story. Nevertheless he had testified in the proceedings in the Magistrate Court and thereby helped in the malicious use of the false processes to obtain the judgment at the Magistrates court against the appellant. However the trial court made no finding of liability against him. There is no ground of appeal complaining about the failure or refusal of the trial court to find him liable.
In the light of the foregoing, I resolve issue No.2 herein in favour of the appellant. I hold therefore that the appeal is allowed on issue No.2 and ground E of this appeal and I award N500,000.00 as general damages to the appellant to be paid by the 1st respondent. The appeal fails on issue No. 1 and grounds A, B and C of this appeal. All the grounds of the cross-appeal and issues raised and argued therein having been struck out, the cross appeal is hereby equally struck out.
The first respondent shall pay cost of N30,000 to the appellant.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother E. A. AGIM JCA. I agree with the reasoning and conclusion. I also abide by the consequential orders.
OLUFEMI AKEJU, J.C.A.: I read before now the judgment just delivered by my learned brother, EMMANUEL AKOMAYE AGIM JCA. I agree with the reasoning of his Lordship and the conclusion that the appeal succeeds in part. I abide by the Award of damages and costs in favour of the appellant.
Appearances
C. O. I. Agwuna Esq and Chidua Ngene (Miss)For Appellant
AND
B. C. Uzuegbu Esq for the 1st respondent
Ejike Ezenwa Esq with G. Muoneke Esq for the 3rd respondent, with the brief of C.A. Nwokike for the 2nd respondent.For Respondent
