MUSTAPHA v. ABUBAKAR & ORS
(2022)LCN/17072(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, February 04, 2022
CA/K/628/2016
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
ALH. IBRAHIM MUSTAPHA V.I.P. APPELANT(S)
And
1. MALLAM ALKASIM ABUBAKAR 2. ALHAJI GARBA TAFIDA 3. ALHAJI DALHA IBRAHIM ZAREWA 4. MALLAM BASHIR MUAHAMMAD 5. ALHAJI SUNUSI ZAREWA (For And On Behalf Of Madarasatul Ulumuddini Islamiyya Na’ibawa) RESPONDENT(S)
RATIO
WHETHER OR NOT A COUNTER-CLAIM IS AN INDEPENDENT ACTION
It is known that a counter-claim is a separate and independent action. For purposes of convenience however, and to avoid delay, or save cost and waste of judicial time and to fundamentally avoid multiplicity of action, the main claim and the counter-claim are tried together. See JOS ELECTRICITY DISTRIBUTION PLC Vs. MUHAMMED (2015) LPELR – 24461(CA) and OGBONNA Vs AG IMO STATE (1992) 2 SCNJ (Pt. 1) 26 and AG LAGOS STATE Vs. AG FED (2004) 12 SCNJ 1 AT 39. . PER MUSALE, J.C.A
THE POSITION OF LAW ON THE MEASURES FOR DETERMINING WHETHER A COURT HAS JURISDICTION OVER A MATTER IN A SUIT BEFORE IT
It is trite law that the measures for determining whether a Court has jurisdiction over a matter in a suit before it, is the statute that established that Court and the subject matter of the litigation which can be determined by the plaintiff averments in the statement of claim. See NNPC Vs. IBRAHIM & ORS (2014) LPELR – 23999 (CA).
The determinants of jurisdiction are:
1. The statute that established the Court, in this case, Sections 270 – 274 of the Constitution (as amended) that creates State High Courts.
2. The subject matter to be litigated upon which is usually determined by the claim of the plaintiff. KOTOYE Vs. SARAKI (1994) 7 NWLR (Pt. 357) 414 and F.G.N. Vs. OSHIOMHOLE (2004) 3 NWLR (Pt. 860) 305 where the Court inter alia held:
“It is the claim before the Court, particularly the reliefs being sought by the plaintiff that determine the jurisdiction of the Court.”
To get to the root of the issues in this appeal therefore is to review the record of appeal to examine the claim before the lower Court.
For the accordance of doubt, this Court or any Court at all has the right to look at its record and proceedings on any matter before it and to take judicial notice of their contents although they may not be formally brought before the Court by the parties, Per Ba’aba, JCA (of blessed memory) in ADO Vs. MEKARA (2009) 9 NWLR (Pt. 1147) 491. See also FUMUDOH Vs. ABORO (1991) 9 NWLR (Pt. 214) 210 AT 229. PER MUSALE, J.C.A
WHETHER OR NOT IT IS THE CASE OF THE CLAIMANT THAT DETERMINES THE JURISDICTION OF A COURT
It is settled law that it is the case of the claimant as endorsed on the writ of summons and elaborated in the statement of claim or as endorsed on a counter-claim and elaborated in the statement of defence that determines the jurisdiction of the Court – Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt. 1318) 423, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. And in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1, Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt 853) 142. PER ABIRU, J.C.A.
USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This appeal is consequent upon the judgment of the High Court of Kano State delivered by Hon. Justice Ahmad Tijjani Badamasi on the 23rd September, 2016. The judgment of the lower Court was in favour of the plaintiffs.
The plaintiffs/respondents claimed against the defendant/appellant at the Court below as follows:
1. A declaration that both the house as well as the plot of land lying and situated at Na’ibawa Quarters in which Madarasatul Ulumiddini Islamiyya Na’ibawa carried out its school activities belong to the Madaratul Ulumiddini Islamiyya Na’ibawa.
2. A perpetual injunction restraining the defendant, his heirs, agents, privies or any person deriving authority, or power, from the defendant, or any person acting through the defendant for themselves or for the defendant from disturbing/obstructing the quiet and peaceful engagement of the Madaratul Ulumiddini Islamiyya Na’ibawa on the house and plot of land laying and situate at Na’ibawa, Kumbotso Local Government Kano.
3. N500,000.00 (Five Hundred Thousand Naira) damages for police intimidation on the Parent Teacher Association members at their meeting on the 10th of August, 2014.
4. Cost of this action.
The defendant in his amended statement of defence counter-claimed against the plaintiffs in their individual capacity, jointly and severally as follows:-
1. A Declaration that the purported instrument of gift dated 30/5/1996 is concoction and has been forged by the plaintiffs/respondents and therefore invalid and illegal.
2. A Declaration that the purported instrument of sale dated 15/2/1999 is a concoction and has been forged by the plaintiffs/respondents and therefore invalid and illegal.
3. A Declaration that the insinuation and forgery or concoction by the plaintiffs/respondents have succeeded in damaging the reputation image, prestige and philanthropic character of the counter – claimant which he has been building for more than 40 years now.
4. An order against the plaintiffs/respondents for payment of N2,500,000:00 to the counter–claimant as damages.
5. An order against the plaintiff for payment of N250,000:00 as cost of appearing and defending this suit.
Before the lower Court, the plaintiffs called a witness and tendered exhibits. The defendant called 4 witnesses and also tendered exhibits. After hearing and considering the evidence adduced and addresses of counsel, the lower Court gave judgment to the plaintiffs/respondents. The counter–claim was dismissed.
Aggrieved by the decision, the defendant/appellant filed his appeal. The amended Notice of Appeal was filed on the 19th/12/17 and has 6 grounds:
1. The learned trial judge erred in law by refusing to advert the Court’s mind to contents of the instrument of gift/waqf: Exhibit “A” &”A1″ which unambiguously showed and show a competent gift/waqf being created and which is outside the jurisdictional competence of the Court as provided by Section 277 of the Federal Republic of Nigerian Constitution 1999 (As amended).
2. The learned trial judge erred in law by merging all ‘issues raised by the Defendant/Appellant and omits to digest, that and hold on all the sacrosanct issues, backed by facts and evidence of fraud, pleaded and led by the defendant/appellant and thereby arriving at the decision not based on the facts, evidence and issues before the Court.
3. The learned trial judge erred in law when he held that Madarasatul Ulumuddini Islamiyya Na’ibawa is an incorporated trustee and a competent legal personality under the Common Law when no evidence whatsoever was pleaded, led or admitted thereon.
4. The learned trial judge, with respect, erred in law when the Court granted damages of N500,000 to the Plaintiffs/Respondents regarding an alleged fact which was never properly pleaded nor proved.
5. The trial judge erred in law when the Court dismissed all the counter-claim of the defendant/counter-claimant.
6. The lower Court erred in law when it decided the matter which falls within the ambit of Islamic Personal Law as enshrined under Section 277 (2)(c) of Nigerian Constitution 1999 as amended.
All the grounds have particulars of error.
The appellant sought for the following reliefs:
1. AN ORDER allowing the appeal.
2. AN ORDER setting aside the judgment of trial Court.
The appellant’s amended brief of argument was filed on the 21st/10/21 and deemed properly filed on 25/10/21. He filed a reply brief equally on 25/10/21. Both were settled by M.A.Abdullahi Esq. Four (4) issues were distilled for the determination of the appeal from the adopted brief: –
1. Whether or not the lower Court has jurisdictional competence to entertain a matter pertaining gift or waqf made to an Islamiyya school known as Madarasatul Ulumiddini Islamiyya Naibawa, Kano, the matter which rests squarely under Islamic’ personal law as enshrined under the provision of Section 277 of the Constitution Federal Republic of Nigeria 1999 (as amended).
2. Whether or not considering the parties, subject matter, history, pleadings, testimonies, documents exhibited and the circumstances of this case learned trial Judge was right in holding that the plaintiff shave proved their case as per writ and the defendant failed to prove his counter-claim?
3. Whether or not the respondents have proved the necessary prerequisites in law to be entitled for the damages in the sum of N500,000.00.
4. Whether or not the errors complained of in this Appeal constitutes the ground that will warrant this Court to overturn the decision of the lower Court?
The respondent’s learned counsel S. J. Gani Esq., settled the Respondent’s amended brief of argument that was deemed properly filed on 12th/10/21. The respondents also distilled four (4) issues as follows: –
1. Whether considering the circumstances of this case, the lower Court has the jurisdiction to entertain this matter.
2. Whether considering the circumstances of this case the learned trial judge was right in holding that the plaintiffs have proved their case as per the writ and the defendant failed to prove his counter-claim.
3. Whether the learned trial judge was right when he awarded damages against the defendant in favour of the plaintiff.
4. Whether the errors complained of in this appeal constitute the ground which will warrant this Court to interfere with the decision of the lower Court.
In my view, the issues formulated by the learned counsel to the respondent are better couched. Though the issues tally, they are more apt.
Let me from the outset observe that the reply brief contain repetition of issues already discussed in the main brief. The same issues were re-argued and/or re-emphasized. In IDAGU Vs. STATE (2018) LPELR – 44343 (SC), it was inter alia held:
A reply brief is limited to finding answers to the questions raised in the respondent’s brief, which the appellant has not addressed or dealt with in the main brief. It is not the forum for the appellant to strengthen his main brief by repeating and expanding the argument contained therein. In this case, all the arguments in violation of this principle in the reply brief will be discountenanced.
The reply brief is accordingly discountenanced.
Arguing the appeal before us on the 11th/11/21, the learned appellants’ counsel on issue no. 1 submitted that the claim before the lower Court had to do with gift/endowment made by the appellant per paragraphs 3 and 4 of page 40 of the record of appeal. Counsel submitted that Exhibits A and A1 the Hausa and English translated version of the memo of the gift/waqf were tendered in evidence on page 36 of the record (copies on pages 347 and 349). It was submitted that the appellant made clear his intention and that had not been contradicted even during cross-examination. Counsel referred to page 261 – 262, paragraph 8 wherein the appellant made the averment in his statement on oath.
The learned counsel contended that any matter involving Islamic Personal law as provided by S. 277 (2) of the Constitution (as amended), the Sharia Court of Appeal is vested with the jurisdiction to hear and determine the issue. That where the issue involved is land, as in the present circumstance, Sub-section (2) (c) covers issues of waqf or gift of land. He referred to MANDARA Vs. AMIN (2004) ALL FWLR (Pt. 239) 1022 AT 1035 – 1036. Counsel submitted that Section 39 of the Land Use Act has not tempered with the issue of Islamic Personal law regarding land matters. He relied on ZANGINA Vs. COMMISSIONER OF WORKS & HOUSING BORNO STATE (2001) FWLR (Pt. 79) 1368 AT 1391. As regards the appropriate Court to be, the learned counsel relied on USMAN Vs. KAREEM (2006) ALL FWLR (Pt. 314) 363 AT 378.
Counsel urged the Court to hold that the claim before the High Court is pertaining Islamic Personal Law which is outside the jurisdiction of the lower Court.
On issue no. 2, counsel submitted that it was not in dispute that the subject matter before the lower Court, a house and plot originally belonged to the appellant. That the Ulumuddini Islamiyya represented by the plaintiffs is an Islamic Organization for the entire Muslims of the area not subject to personal ownership. That the appellant was in the Upper Sharia Court for proper determination of that purpose when the respondents rushed to the lower Court to restrain the Upper Sharia Court from making a pronouncement in accordance with Islamic Law that governs the transaction.
The learned counsel submitted that the matter/suit had no competent plaintiffs. That in a representative capacity action, the parties must have common interest in both the proceedings and the subject matter, NSIMA Vs. NNAJI & ORS (1961) ALL NLR 441 and AMAJIDIOGU Vs. ONUNAKU (1988) 2 NWLR Pt. … That from the heading of the case, the persons suing the appellant in representative capacity have no capacity to sue and they did not satisfy the condition placed by law to be able to bring representative action. Counsel submitted that the plaintiff cannot represent those having the same interest in the proceedings if he himself has no such instant. See BENSON Vs. ASHIRU (1967) 1 ALL NLR 184.
Counsel made submissions regarding the identity of the land. That the plaintiffs failed to prove the identity of the land, therefore, the claim of the plaintiffs ought to be dismissed, AUTA Vs. IBE (2003) 11 MJSC 128. Counsel raised the issue that the witness of the plaintiffs made contradictory testimonies. That the witness during cross-examination mentioned School Board of Trustees. Counsel submitted that nowhere in the pleadings was School Board of Trustees mentioned. That it was not before the Court that the Islamiyya School was registered under Part C of Company and Allied Matters Act (CAMA). But that in the judgment of the lower Court, the school was said to be represented by its Trustees. Counsel raised issue of contradictions in the evidence of the plaintiffs in his brief but failed to indicate where to locate the contradictions in the record.
On the subject matter of the suit allegedly sold to the school, the learned counsel submitted that the onus is on the party that claims title to certain lands which was originally vested in a rival party to prove how such rival party had divested his title to the portion of the land in dispute in his favour. Counsel submitted that property donated to be used for the sake of Allah is not subject to any purpose except for the sake of Allah. Where deviation occurs, the property reverts to the constituted authority or to the owner. To determine whether there is deviation from the purpose, is an issue for the Sharia Court to determine. That the appellant suspected that deviation and that was why he went to Upper Sharia Court but the respondents went to the lower Court which restrained the Upper Sharia Court from determining the deviation.
He urged the Court to hold that the claim filed by the plaintiffs before this Court (sic) is wholly a matter pertaining to Islamic Personal Law which is outside the competence of the High Court to determine. Counsel urged the Court to look at Exhibits tendered and the signature of the appellant on them to ascertain which belongs to the appellant and which did not. That to ascertain forgery of the documents, the Court shall look at the 2 documents per APC Vs. PDP & ORS (No proper citation provided). That the Court below granted the reliefs of the plaintiffs wrongly.
Counsel now raised issues to do with prove of title to land (declaration of title to land) relying on WACHUKWU Vs. OWUNWANNE (2011) 14 NWLR (Pt. 1266) 1 @ 6. That plaintiff must succeed on the strength of his case per KANO Vs. MAIKAJI (2011) 17 NWLR (Pt. 1275) 139 @ 143. On claim for declaration of title to land, he relied on ADESANYA Vs. ADERONMU (2002) 2 SCNQR 1180.
Now, on issue no. 3, counsel submitted that the respondents failed to prove the necessary requirements to be entitled to the award of damages of N500,000:00 granted to them. That the sole witness of the plaintiffs/respondents did not prove damages as claimed. He continued that claim for damages can only be awarded for a wrong in contract or tort. That even where loss was incurred but without wrong on the defendant, no damages shall be awarded, FAGGE Vs. TUKUR (2007) ALL FWLR (Pt. 387) 876. That no parameter was used for the assessment of the damages was shown by the lower Court. That damages was not proved. He urged the Court to hold that there was no evidence sufficient enough to warrant the award of damages to the respondents.
Learned counsel on issue no. 4, submitted that mere irregularity does not warrant the appellate Court to temper with the lower Courts’ finding except if miscarriage of justice is occasioned. See DAGACI OF DARE Vs. DAGACI OF EBWA (2006) ALL FWLR (Pt. 306) 802, where the Supreme Court held how it will void concurrent findings of the lower Courts. Counsel submitted that the learned trial judge violated principles of law and procedure, that his findings will not stand and he urged the Court to so hold. Counsel urged the Court to set aside the decision of the lower Court because: –
i. The matter which was tried and determined by the lower Court is one pertains to Islamic Personal Law which falls within the jurisdictional competence of Sharia Court.
ii. The decision of the High Court on the subject matter of this appeal is made without jurisdiction.
iii. The award of N500,000 made by the lower Court in favour of the respondents is made without proof of any loss incurred or wrong suffered from the Appellant’s acts to entitle any amount of award of damages.
Learned counsel to the respondents on issue no. 1 started with the jurisdiction of the Courts as conferred by the Constitution or Statute. He referred to A.G LAGOS STATE Vs. A.G FED (2014) 4 SCNJ 374 AT 407:
“It must be stressed that the jurisdiction of all Courts are provided for by the Constitution and/or relevant legislation. Jurisdiction remains a question of law and a necessary requirement in all proceedings.”
That jurisdiction is a creation of statute, per Onnoghen, JSC (as he then was) later CJN in ANPP Vs. GONI (2012) 2 SCNJ 255 AT 281 wherein he held inter alia:
“I am compelled by circumstances beyond my control to state, without fear of contradiction as same has been settled by a long line of authorities, that jurisdiction is a creation of Statute or the Constitution …”
See also JAMES Vs. INEC (2015) 3 SCNJ 170 AT 213.
Counsel continued that Section 270 of the Constitution created the High Court of Kano State. Section 272 provides for its jurisdiction. It says:-
272(1) “Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”
Counsel submitted that the state High Court has unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of rights, power, duties or interest are involved.
That S. 39 (1) Land Use Act, 1978 vests on State High Courts exclusive jurisdiction involving declaration of title to land.
Counsel submitted further that the lower Court is vested with exclusive jurisdiction to entertain declaration of title to land. Counsel contended that in determining the subject matter of any proceedings with respect to the jurisdiction of the Court, the claim of the plaintiff as contained in the statement of claim is to be examined. See SOCIETY BIC Vs. CHARZIR (2014) 2 SCNJ 85 AT 11 6 and JAMES Vs. INEC (2015) 3 SCNJ 170 AT 2233.
Counsel went back to their claim against the appellant and submitted that their main claim before the lower Court is for a declaration that the house and the plot of land in dispute belong to the Madarasatul Ulumiddini Islamiyya Na’ibawa. That Kano State High Court has jurisdiction Per Section 272 of the Constitution and S. 39 (1). Land Use Act, 1978. See also CBN Vs. RAHAMANIYYA GLOBAL RESOURCES LTD (2020) LPELR – 10815 (SC) and AHMED Vs. AHMED (2013) 7 SCNJ 274 AT 321.
Counsel now proceeded to submit that the arguments of the appellant with respect to S. 277 (2) (a) – (c) of the Constitution does not vest on the Sharia Court of Appeal with original jurisdiction. That the cases cited and relied upon do not suggest that Sharia Court of Appeal has original jurisdiction even on proceedings involving questions of Islamic Personal Law let alone declaration of title to land.
Learned counsel clarified the issue of gift referred to in their amended statement of claim at pages 138 – 142 of the record. That the subject matter before the lower Court, the house and plot of land were owned by Madarasatul Ulumuddini Islamiyya Na’ibawa through exchange and outright purchase respectively; paragraph 16 – 22 of the amended statement of claim in pages 140 -141 of the record and Exhibits C and C1, D and D1 in pages 355- 358.
Counsel concluded on this issue that exchange and outright sale are simple contract that falls with the original jurisdiction of State High Court. He urged the Court to so hold.
On issue no. 2, the learned counsel submitted that both the house and the plot of land belonged to the appellant, but that the appellant divested himself of the ownership and transferred the same to Madarasatul Ulumuddini Islamiyya Na’ibawa as required by law, paragraphs 10, 12, 13, 14, 15, 16 and 17 of the amended statement of claim in pages 139 – 140 of the record. Counsel submitted further that having pleaded that the appellant divested himself of ownership and transferred the same to the respondents in their pleadings, the burden is on them to prove their claim per OBAWOLE Vs. COKER (1994) 6 SCNJ (Pt. 1) 20 AT 34, MULIMA Vs. USMAN (2014) 4 SCNJ 592 AT 623. That to further prove their case, they tendered in evidence Exhibits C and C1, D and D1 being memorandum of exchange and sale agreement respectively. That their pieces of evidence were not contradicted and unchallenged and uncontradicted evidence are deemed admitted and the Court in enjoined to use same.
On the competence of the respondents ”suing for and on behalf of Madarasatul Ulumuddini Islamiyya Na’ibawa,” counsel referred to their writ of summons at pages 1 -15 and their amended statement of claim at pages 138 – 139 of the record and submitted that a group of persons that share common interest or purpose can institute an action in representative capacity to defend such interest once they are identifiable per ELF PETROLEUM Vs. UMAH (2018) 1 SCNJ 1 AT 51 and ADEDIRAN Vs. INTERLAND (1991) 12 SCNJ 27 AT 46. He submitted that the appellant dealt with the respondents as representatives and executive council members of the Parent Teachers Association of the school per Exhibits A and A1, B and B1, C and C1, D and D1, pages 347 – 378 of the record. That unregistered body and association may appoint persons as representatives or trustees, ANYAEGBUNAM Vs. OSAKA (2000) 3 SCNJ 1 AT 10. Counsel concluded that the appellant cannot be heard to complain having entered into various agreements with the school through its representatives. That this had not been controverted or contradicted by the appellant. He urged the Court to resolve the issue in favour of the respondents.
As regards the identification of the house and plot, counsel referred to paragraphs 17, 18, 21 and 22 of their amended statement of claim on pages 140 and 141 of the record. That the appellant did not controvert their evidence, DANLADI Vs. DANGIRI (2014) 11 SCNJ 155 AT 197.
On the credibility of a single witness, counsel submitted that they are under no obligation to call prescribed number of witnesses. That what is required is quality of evidence, ONOWHOSA Vs. ODIUZOU (1999) 1 SCNJ 13 AT 23. That evaluation of evidence vests on the trial Court that saw and heard the witnesses, UKEJE Vs. UKEJE (2014) 4 SCNJ 1 AT 24 and SA’ED Vs. YAKOWA (2012) 2 SCNJ 404 AT 434. That the evidence of their lone witness was neither contradicted nor dislodged. He urged the Court to so hold.
On whether the exhibits were legally executed, the learned counsel submitted that the parties have executed the documents tendered and admitted as exhibits. That parties are bound by their agreement and where such agreements are reduced into writing, no extrinsic evidence is admissible to vary or alter the content of written agreement, OGUNDEPO Vs. OLUMESAN (2011) 12 SCNJ 89 AT 99. That the appellant and respondents reduced the agreement into writing and that the documents were tendered and admitted as Exhibits A and A1, B and B1, C and C1, D and D1 that nowhere in those documents did the appellant and the respondents contemplated waqf or Hubusi and none was contemplated in the documents. He urged the Court not to allow the appellant “to add to, vary, subtract from or contradict the terms of” their written agreement. He relied on OGUNDELE Vs. AGIRI (2009) 12 SCNJ 141 AT 153.
On the submission of the appellant that the documents were obtained by fraud without pleading the particulars of fraud and leading evidence to establish the same as required by law, counsel submitted that the appellant affirmed that the documents were genuine and admissible having equally relied on them. See paragraphs 6 and 7 of the amended statement of defence in pages 256 – 257 of the record.
Counsel further submitted that the appellant did not make out any relevant case before the trial Court. He reproduced the reliefs sought by the appellant’s in his counter-claim. He continued that the claim of the appellant bordered on forgery. That forgery being a crime ought to be proved beyond reasonable doubts, UKEJE Vs. PDP (2015) 4 SCNJ AT 51 and Sections 135 (1) and 38 of the Evidence Act 2011. That appellant did not prove forgery, counsel urged the Court to so hold.
On issue no. 3, on award of damages, counsel submitted that award of general damages is within the discretion of the trial Court per OKWEJIMINOR Vs. GBAKEJI (2008) 1 SCNJ 481 AT 499 and KOPOLATI Vs. MTN NIG COMMUNICATIONS LTD (2020) ALL FWLR (Pt. 1040) 882 AT 905. That such discretion are rarely tempered with by the appellate Court being general as opposed to special damages, that needs not be proved. See UNION BANK Vs. CHIMAEZE (2014) 4 SCNJ34 AT 57. He urged the Court not to temper with the award of damages of the sum of N500,000.00 against the appellant.
On issue no. 4, the learned counsel submitted that ordinarily, an appellate Court does not interfere with the finding of facts by a trial Court except where the conclusion reached was perverse, ODOM Vs. PDP (2015) 2 SCNJ 58 AT 88 and OBIDIKE Vs. THE STATE (2014) 3 SCNJ 208. Counsel submitted that the findings of the lower Court were based on the pleadings and evidence adduced by the parties. See OLEKSANDR Vs. LONESTAR (2015) 4 SCNJ 235 AT 272.
Counsel finally concluded that the lower Court was right to assume jurisdiction to entertain the case and to award the damages against the appellant. He urged the Court to dismiss the appeal with cost.
RESOLUTION OF THE ISSUES
The first issue for determination has to do with the jurisdiction of the lower Court. The position of the appellant remained that the suit before the lower Court is one that ought to be before the Sharia Court of Appeal. See paragraph 5.2 of the amended appellant’s brief of argument. He cited and relied on many authorities I earlier credited to him. Counsel also heavily made submissions to the effect that the issues before the lower Court concern Islamic Personal Law and therefore outside the jurisdiction of the lower Court.
From the submission of both learned counsel, they are unanimous that jurisdiction is conferred on the Courts by the constitution and/or by statutes. Where they parted ways has to do with the stand taken by counsel to the respondents that the issue before the lower Court has nothing to do with Islamic Personal Law. He drew the attention of the Court to look at the claim of the plaintiffs to ascertain the subject matter before the lower Court.
In a suit where the parties filed pleadings, it is expected that each party shall formulate his case in his own way. Both the parties and the Court are bound by the pleadings. The purpose is bringing certainty as each party becomes aware of what his adversary presented before the Court and therefore the expectations on him to counter or accept. Evidence that is not in support of pleaded facts becomes of no moment. None is expected to adduce evidence in proof of issues agreed upon. See OSHODI Vs. EYIFUNMI (2000) 3 NSCQR 320 and METROPOLITAN ESTATES Vs. UNION BANK (2018) LPELR – 43989 (CA).
It is trite and settled that no Court grants a relief that is not sought/claimed. The plaintiff claim reliefs through his writ of summons and/or statement of claim. The defendant does through a counter-claim. See NIGERIA AIRFORCE Vs. SHEKETE (2002) 12 SCNJ 35 AT 52, DABUP Vs. KOLO (1993) 9 NWLR (Pt. 317) 674 and EDOSOMWAN Vs. IDUGBOE (2019) LPELR – 46423 (CA).
At the lower Court, the defendant/appellant filed a counter-claim.
It is known that a counter-claim is a separate and independent action. For purposes of convenience however, and to avoid delay, or save cost and waste of judicial time and to fundamentally avoid multiplicity of action, the main claim and the counter-claim are tried together. See JOS ELECTRICITY DISTRIBUTION PLC Vs. MUHAMMED (2015) LPELR – 24461(CA) and OGBONNA Vs AG IMO STATE (1992) 2 SCNJ (Pt. 1) 26 and AG LAGOS STATE Vs. AG FED (2004) 12 SCNJ 1 @ 39.
It is trite law that the measures for determining whether a Court has jurisdiction over a matter in a suit before it, is the statute that established that Court and the subject matter of the litigation which can be determined by the plaintiff averments in the statement of claim. See NNPC Vs. IBRAHIM & ORS (2014) LPELR – 23999 (CA).
The determinants of jurisdiction are:
1. The statute that established the Court, in this case, Sections 270 – 274 of the Constitution (as amended) that creates State High Courts.
2. The subject matter to be litigated upon which is usually determined by the claim of the plaintiff. KOTOYE Vs. SARAKI (1994) 7 NWLR (Pt. 357) 414 and F.G.N. Vs. OSHIOMHOLE (2004) 3 NWLR (Pt. 860) 305 where the Court inter alia held:
“It is the claim before the Court, particularly the reliefs being sought by the plaintiff that determine the jurisdiction of the Court.”
To get to the root of the issues in this appeal therefore is to review the record of appeal to examine the claim before the lower Court.
For the accordance of doubt, this Court or any Court at all has the right to look at its record and proceedings on any matter before it and to take judicial notice of their contents although they may not be formally brought before the Court by the parties, Per Ba’aba, JCA (of blessed memory) in ADO Vs. MEKARA (2009) 9 NWLR (Pt. 1147) 491. See also FUMUDOH Vs. ABORO (1991) 9 NWLR (Pt. 214) 210 AT 229.
From the record particularly pages 138 – 142, the amended claim of the plaintiffs are:
A. A DECLARATION that both the house as well as the plot of land lying (sic) and situate at Na’ibawa Quarters in which Madarasatul Ulumiddini Islamiyya Na’ibawa carries out its school activities belong to the Madarasatul Ulumiddini Islamiyya Na’ibawa.
B. A PERPETUAL INJUNCTION restraining the defendant, his heirs, agents, privies or any person deriving authority, or power, from the defendant, or any person acting through the defendant for themselves or for the defendant from disturbing/obstructing the quiet and peaceful enjoyment of the Madarasatul Ulumiddini Islamiyya Na’ibawa on the house and plot of land laying and situate at Na’ibawa, Kumbotso Local Government Kano.
C. N500,000.00 (Five Hundred Thousand Naira) damages for police intimidation on the Parent Teacher Association members at their meeting on the 10th day of August, 2014.
D. Cost of this action.
These reliefs/claims I dare say do not in my view fall within the per view of Islamic Personal Law.
In addition, the decision/cases relied upon as authority by the appellant are distinguishable from this. The counter-claim filed by the defendant/appellant in my view did not help the case of the defendant regarding the Court that has jurisdiction on his claims. In the amended Defendant’s statement of claim/counter-claim on pages 256 – 260, the defendant counter-claims as follows:
1. A Declaration that the purported instrument of gift dated 30/5/1996 is a concoction and has been forged by the plaintiffs/respondents and therefore invalid and illegal.
2. A Declaration that the purported instrument of sale dated 15/2/1999 is a concoction and has been forged by the plaintiffs/respondents and therefore invalid and illegal.
3. A Declaration that the insinuation and forgery or concoction by the plaintiffs/respondents have succeeded in damaging the reputation, image, prestige and philanthropic character of the counter – claimant which he has been building for more than 40 years now.
4. An Order against the plaintiffs/respondents for payment of N2,500,000.00 to the counter-claimant as damages.
5. An Order against the Plaintiff for payment of N250,000.00 as cost of appearing and defending this suit.
Going through the claims of the appellant before the lower Court, I do not see anything that call in the jurisdiction of the Sharia Court of Appeal.
The jurisdiction of the Sharia Court of Appeal is donated by Section 277 of the Constitution.
Section 277. “The Sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic Personal Law which the Court is competent to decide in accordance with the provisions of Subsection (2) of this Section. (2) For the purposes of Subsection (1) of this Section, the Sharia Court of Appeal shall be competent to decide –
(a) any question of Islamic personal law regarding a marriage concluded in accordance with that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant.
(b) where all the parties to the proceedings are muslims, any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant.
(c) any question of Islamic personal law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a muslim.
(d) any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a muslim or the maintenance or the guardianship of a muslim who is physically or mentally infirm; or
(e) where all the parties to the proceedings, being muslims, have requested the Court that hears the case in the first instance to determine that case in accordance with Islamic personal law, any other question.”
Clearly, the Sharia Court of Appeal is not the right Court to determine the issues raised by both the appellant and the respondents in the Court below.
The High Court of the other hand has its jurisdiction donated by Section 272 of the Constitution:
Section 272 “Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.
(3) Subject to the provisions of Section 251 and other provisions of this Constitution, the Federal High Court shall have jurisdiction to hear and determine the question as to whether the term of office of a member of the House of Assembly of a State, a Governor or Deputy Governor has ceased or become vacant.
Issue no. 1 is therefore resolved in favour of the respondents.
On issue no. 2, which has to do with proof. The appellant in his counter-claim alleged that the plaintiffs concocted documents to the effect that the instrument of gift dated 30th/05/1996 and instrument of sale dated 15th/02/1999 were forged.
In his statement on oath paragraph 12 on page 262 of the record, the appellant agreed that he gave 9 shops to the school which he later exchanged for/with a house. However, when cross-examined as DW4, the appellant said “I have never had any relationship with Madarasatul Ulumiddini Isamiyya.”
The learned trial judge in his judgment held that a counter-claim is a separate action. For clarity, the portion of the judgment are hereunder presented: –
“The 2nd issue for determination is whether the Defendant has proved his counter-claim to entitle him reliefs.
The law is that a counter-claim, is a separate actions on it’s own to be established on the preponderance of evidence in a suit.
See USMAN Vs. GARKE (2003) 14 NWLR (Pt. 840) 216.
The Defendant in his counter-claim alleged that the Plaintiffs concocted and made a false document purported to be a sale agreement between him and the Respondents and they circulated a story that he (the Defendant) is a trouble maker which story tarnished his image within his community.
The 1st issue as per the Defendant counter is that of forgery. Forgery is criminal offence.
It is the law that before a party can legally rely on fraud or forgery, that fact must not only be pleaded but particulars thereof must be provided in the pleadings.
See EYA Vs. OLOPADE (2011) 5 SCNJ 98 AT 118.
I have closely ran through the counter-claim of the Defendant, I have not seen where the particular of the forgery was provided.
This state of affair means that the Defendant has not validly raised the issue of forgery to even be eligible to prove it and I so hold.
The other issue raised by the Defendant/counter-claim is fabricating and spreading a story that he (the Defendant) is a trouble maker.
The Defendant in his adopted deposition in chief that the Plaintiffs widely circulated the story that he is a trouble maker and is not keen on peaceful co-existence with the people of Naibawa Qtrs. And this has damaged his reputation.
This piece of evidence is a mere ipse dixit the Defendant which requires further proof as was held by the SC in the case of EGESIMBA Vs. ONUZURUIKE (2002) FWLR (Pt 128) 1386 AT 1410 – 1411.
The Defendant/counter-claimant did not lead evidence from another person to confirm that the plaintiffs actually circulated the story which led to damaging the Defendant’s reputation.
I do not therefore ascribe any weight to Defendant in that regard.
(2) on the whole, I hold that the Defendant/counter claimant has not by credible evidence proved his counter-claim to entitle him his reliefs.
Consequently, his counter-claim is hereby dismissed.
Conversely, the Plaintiffs have by credible evidence proved their claim on preponderance of evidence.
Consequently, judgment is hereby entered for the Plaintiffs against the Defendant as per that writ.”
After the lower Court had reviewed the evidence before it, held that the testimony of PW1 in chief and during cross-examination were in line with their pleadings. That the witness was not shaken and he did not contradict himself. The lower Court held that evidence not challenged during cross-examination is a tacit acceptance so it held. The lower Court found that the exchange of the 9 shops for the house of the defendant and the sale of 50 X 48 plot to the plaintiffs by the defendant were fully documented, in EBEM & ANOR Vs. NSEYEN (2016) LPELR – 40122 (CA), this Court held:
“Documentary evidence is the best form of evidence because they are not only assailable but are more authentic than oral evidence.”
In AIKI Vs. IDOWU (2006) ALL FWLR (Pt. 293) 361, the Court re-echoed that:
“Documents when tendered and admitted in evidence are like words uttered and do speak for themselves, they are more reliable and authentic than words from the word of an as they are neither transient or subject to distortion and misinterpretation but remains permanent and indelible through the ages.”
For the words of wisdom supra, I am in agreement with the lower Court that where documents are tendered in a suit and the parties are represented by counsel. The counsel to a party raised no objection when the opposition tendered the document and the Court admits the document, then such a party shall not be heard on the authenticity of such document.
In the Court below, Exhibits A and A1, B and B1, C, D and D1 were pleaded and were all admitted in evidence without objection. The lower Court in my view was right to give weight to such pieces of evidence.
On issue no.3, that has to do with award of damages for police intimidation. In paragraph 22 and 23 of the statement on oath of PW1 the witness avers:
“22. That on the 10th day of August, 2014, the defendant instigated same Police Offices to harass the Parent Teacher Association members of the Madarasatul Ulumiddini Islamiyya Na’ibawa. While holding a meeting at about 9:00pm.
23. That the harassment by the Police Officers on the said 10th August, 2014 resulted in same parents and the neighboring residents losing confidence in the Madarasatul Ulumiddini Islamiyya Na’ibawa thereby occasioned loss to the school reputation and finance.”
The above averments were the reasons for the award of N500,000 against the appellant. The respondent’s counsel addressed the issue as general damages.
General damages per Rhodes–Vivour, JSC in CAMEROON AIRLINES Vs. OTUTUIZU (2011) LPELR – 827 (SC):
“ … are thus losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved.”
Similarly, in UBN PLC Vs. ALHAJI AJABULE & ANOR (2011) LPELR 8239 (SC) Fabiyi, JSC held:
“General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued, that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages.”
In the present circumstance, the award according to the learned trial judge was for Police intimidation. On page 412 of the record, the lower Court inter alia held:
“Consequently, judgment is hereby entered for the plaintiffs against the defendant as per that writ.”
Paragraph C of the writ on page 2 of the record provides:
C. N500,000.00 (Five Hundred Thousand Naira) damages for Police intimidation on the Parent Teachers Association members of Madarasatul Ulumiddini Islamiyya Nailbawa at their meeting on the 10th day of August, 2014.
According to the cases cited supra, this award cannot be for general damages. Here, it was asked for and the purpose specified. In my view therefore, having pleaded it, the respondents ought to justify the award. I have earlier quoted paragraphs 22 and 23 of PW1’s witness statement on oath. In his evidence in chief before the Court, PW1 needed to justify the claim. In his deposition, he averred that the appellant instigated same Police Officers to harass the Parent Teachers (sic) Association members while holding a meeting at about 9:00pm.
Here the deponent ought to mention venue of the meeting. During cross–examination, PW1 said:
“I cannot recall the date the incident happened. I recall that we were holding a PTA meeting when we saw Police van in front of the defendants (sic) house I then told the gathering to close the meeting. The meeting was taking place inside the school, the school is fenced.”
No tear gas was fired by the police. No police officer touched the gate of the school. No police officer even spoke with any member of the PTA yet members of the PTA were harassed. The police van he saw was not even in front of the school. Yet, the school was alleged to have suffered loss of reputation and finance.
In my view, the respondents needed to do more than what they did to earn that sum of money. It would have been different if evidence is adduced to justify it, having been specifically claimed. Section 40 of the 1999 Constitution (as amended) provides for right of peaceful assembly and association. If the police had tempered with this right, the respondents may be entitled to compensation.
In addition, loss to the school ought to be proved. An instance is if it can be shown that the presence of Police van in front of the appellant’s house had caused some of the pupils to leave the school. But none was even mentioned to justify the award. The trial judge was speculative to have awarded that sum just like that.
A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high on guesses. As Courts of law are not established to adjudicate on guesses but on facts, such actions are struck out. See A.G PLATEAU STATE Vs. A.G FEDERATION (2006) 3 NWLR (Pt. 967) 346 AT 419.
For these reasons given, the award is set aside.
Finally, let me re-emphasize that the appellate Court is only concern with decision of the trial Court. Once the decision is right, the appellate Court has no business with wrong reasons once decision is right. See SOWUMI Vs. ALHAJI SOMS & ORS (1982) 17 ANLR (Pt. 1) 19.
I am satisfied that the decision of lower Court is based on the evidence adduced.
The matter before the lower Court did not involve Islamic Personal Law, therefore the lower Court rightly assumed jurisdiction.
The counter-claim of the defendant/appellant borders on allegation of forgery. This had not been proved.
The award of damages of N500,000.00 had not been proved. It is therefore set aside by me.
Appeal partly allowed. Judgment of the lower Court affirmed.
No order as to cost.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Usman Alhaji Musale, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusion and the final orders made therein.
The first issue raised by the parties for resolution in the appeal is whether the lower Court, the High Court of Kano State, possessed the jurisdictional competence to hear and determine the claims and the counter-claim of the parties. Counsel to the Appellant is of the view the lower Court did not possess jurisdiction as the subject matter of the action is in respect of gift or waqf of land and that it was the Sharia Court that had jurisdiction. Counsel to the Respondent maintained otherwise and contended that the matter is in respect of ownership of land that it is the lower Court that had jurisdiction.
It is settled law that it is the case of the claimant as endorsed on the writ of summons and elaborated in the statement of claim or as endorsed on a counter-claim and elaborated in the statement of defence that determines the jurisdiction of the Court – Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt. 1318) 423, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. And in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1, Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt 853) 142.
Reading through the claims and the counter-claims of the parties and as elaborated in their pleadings, it is clear that the dispute in the present case was over the ownership of the land and building lying, being and situate in Na’ibawa Quarters in Kumbotso Local Government Area of Kano wherein the Madarasatul Ulumiddini Islamiyya carries out its activities.
The law is settled beyond peradventure that by the provisions of Section 39 of the Land Use Act and Section 272 (1) of the 1999 Constitution, the High Court has exclusive jurisdiction in all matters relating to land located within the areas designated as urban areas and subject to a statutory right of occupancy granted by the State Government while it shares concurrent jurisdiction with the customary Courts, the area Courts and other Courts of such equivalent jurisdiction in respect of all parcels of land located in the areas designated as rural or non-urban areas and subject to a customary right of occupancy granted by a Local Government – see for example, Aseimo Vs Abraham (1994) 8 NWLR (Pt 361) 191, Oyeniran Vs Egbetola (1997) 5 NWLR (Pt 504) 122, Adisa Vs Oyinwola (2000) 10 NWLR (Pt 674) 116, Akanbi Vs Salawu (2003) 13 NWLR (Pt 838) 637, Okonkwo Vs Okonkwo (2004) 5 NWLR (Pt 865) 87, Attorney General, Rivers State Vs Ohochukwu (2004) 6 NWLR (Pt 869) 340, Ezukwu Vs Ukachukwu (2004) 17 NWLR (Pt 902) 227, The Minister of Works & Housing Vs Shittu (2007) 16 NWLR (Pt 1060) 351, Odetayo Vs Bamidele (2007) 17 NWLR (Pt 1062) 77, Adetayo Vs Ademola (2010) 15 NWLR (Pt 1215) 169, Ikenne Local Government Vs West African Portland Cement Co. (2011) 12 NWLR (Pt 1261) 223. The lower Court thus possessed jurisdiction to entertain the matter.
The second complaint of the Appellant was against the evaluation of evidence carried out by the lower Court, that the lower Court did not properly evaluate the oral and documentary evidence led by the parties in making its findings and conclusions.
The law is trite that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs Dada (2016) LPELR-40297(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, TSKJ (Nig) Ltd Vs Otochem (Nig) Ltd (2018) 11 NWLR (Pt 1630) 330, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Mohammed Vs State (2020) LPELR-52451(SC).
An appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark of a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court -Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt. 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377. In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus:
“An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the appellant to show how the Court below erred or was wrong in the decision appealed against. By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the appellant. This presumption enjoins the appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.”
Reading through the submissions of Counsel to the Appellant on his complaints vis-à-vis the notes of the evidence led before the lower Court, I am in total agreement with the lead judgment that Counsel to the Appellant did not make out a case showing any perversity in the findings and conclusion reached by the lower Court on the evidence led on the ownership of the land and house in dispute. This Court thus has no reason to tamper with them.
The third complaint of the Appellant was against the award of the sum of N500,000.00 made in favor of the Respondents by the lower Court. The Respondents claimed the sum of N500,000.00 as damages for police intimidation of the members of the Parents Teachers Association of Madarasatul Ulumiddini Islamiyya at their meeting of the 10th of August, 2014.
Now, damages may be defined as the disadvantage which is suffered by a person as a result of the act or default of another. It may also be defined as a loss or deterioration caused by the negligence, design or accident of one person to another, in respect of the latter’s person or property. Damages are the pecuniary recompense given by the process of law to a person for the actionable wrong that another has done.
It is compensation in money for loss or damage. Thus, an injury produces a right in them who have suffered any damage by it to demand reparation of such damage from the authors of the injury. In other words, damages is a pecuniary compensation or indemnity which may be recovered in the Courts by any person who has suffered loss, detriment or injury, whether to his person, property, or right through the unlawful act or omission or negligence of another. It is a sum of money awarded to a person injured by the tort of another. It is money compensation sought or awarded as a remedy for a breach of contract or tortuous acts – Borno State Urban Planning & Development Board Vs Bams Investment (Nig) Ltd (2017) LPELR-43290(CA), Aero Contractors Co. (Nig) Ltd Vs Oguine (2018) LPELR 46764(CA).
It is settled law that he who asserts must prove – University of Agriculture, Makurdi Vs Sugh (2021) LPELR-54211(CA). In other words, the party who claims damages must lead credible evidence to prove the alleged act of the adversary that caused him injury. The Respondents thus had the onus to prove by cogent evidence the nature of the police intimidation that they suffered by reason of the action of the Appellant and the attendant injury to them to warrant the award of the sum of N500,000.00 claimed as damages.
I am in concurrence with the lead judgment that the Respondents led no such evidence and that they were therefore not entitled to the award of damages claimed.
The lower Court did not follow established legal principles in making the award of damages and this Court is empowered to interfere in such circumstances – Erebor Vs Erameh (2020) LPELR-49671(CA), Shmo Vs Abuul (2020) LPELR-49947(CA). The award is liable to be set aside.
I agree that the appeal has some merit and it succeeds in part. I too affirm the judgment of the High Court of Kano State delivered in this suit by Honorable Justice Ahmad Tijjani Badamasi on the 23rd of September, 2016, save for the portion that awarded N500,000.00 as damages in favor of the Respondents and which portion I hereby set aside. I abide by the order on costs in the lead judgment.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, USMAN ALHAJI MUSALE, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.
Appearances:
A.A.G For Appellant(s)
S. J. Gani, with him, H. Yakubu and M. Bello. For Respondent(s)
