NIGER CONSTRUCTION CO. LTD v. ATAVWODA & ORS
(2020)LCN/14155(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, May 22, 2020
CA/AS/395/2012
Before Our Lordships:
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
NIGER CONSTRUCTION COMPANY LIMITED APPELLANT(S)
And
- MR. STANLEY IGHOYOVWE ATAVWODA (Substituted By Order Of Court Made On The 28th Of February, 2017) (For Himself And On Behalf Of The 2nd To The 10th Plaintiffs) 2. MRS VICTORIA YOUNG 3. MRS. LUCY ATAWODA 4. OKPUBEKU ATAWODA 5. OKA OMOMADIA 6. EHUOBOSA EKURE 7. ONISURU ASHARIOVWA 8. ONOGHENU EGBOMONUWA 9. SUNDAY OKAKO 10. MRS. UMUDJORO UMUHEHE 11. MINISTRY OF WORKS AND TRANSPORT ASABA, DELTA STATE RESPONDENT(S)
RATIO
FACTORS TO BE CONSIDERED IN DETERMINING WHETHER A CASE IS STATUTE-BARRED
It is a trite principle of law that in determining whether a case is statute barred, the originating processes of the Plaintiff who commenced the action (writ of summons and/or the statement of claim of the Plaintiff) would be considered in ascertaining when the cause of action accrued.
A cause of action is defined in ZUBAIR v KOLAWOLE (2019) LPELR – 46928 (SC) as;
“A cause of action has been defined as consisting of “every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment.” “See: Adimora Vs Ajufo (1988) 3 NELR (PT. 80).
1. It has also been defined as “the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right judicial relief.” See: Egbe Vs Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ 20; Adekoya Vs F. H. A (2008) 11 NWLR (Pt. 1099) 539; Oshoboja Vs Amuda (1992) 6 NWLR (Pt. 250) 690.”
per KEKEERE – EKUN, JSC (P. 19, PARAS. D -F)
See also; ADEGBESAN & ANOR v ILESANMI (2017) LPELR – 42552 (CA); ADU & ORS v LAGOS STATE TASK FORCE ON ENVIRONMENT AND SPECIAL OFFENCES UNIT & ORS (2016) LPELR – 40060 (CA); LEARN AFRICA PLC v OKO (2015) LPELR – 25824 (CA); MANDATE INT’L LTD v DANGOTE CEMENT PLC & ANOR (2014) LPELR – 22666 (CA).
And in determining if this appeal is statute barred recourse would be made to the Statement of claim.
This honourable Court in BATTA TRADITIONAL COUNCIL & ANOR v TENEKE & ORS (2017) LPELR – 43005 (CA) held on how the Court determines an action is statute barred;
“…the period of limitation in any limitation statute is determined by looking at the writ of summons and the statement of claim alleging when the wrong committed which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the limitation Law, the action is statute barred.”
per HUSSAINI, JCA (PP. 24 – 25, PARAS C – A)
See also; JOEL OKUNRINBOYE EXPORT COMPANY & ANOR v SKYE BANK PLC (2014) LPELR – 24330 (CA); ADETULA v AKINYOSOFE & ORS (2017) LPELR – 42130 (CA); HASSAN & ORS v BORNO STATE GOVT & ORS (2016) LPELR – 40250 (CA); CHAIRMAN ZAIRA LOCAL GOVT. & ORS v ADAMU & ORS (2015) LPELR – 25934 (CA); KPATI & ANOR v PLATEAU INVESTMENT & PROPERTY DEVELOPMENT CO. LTD (2017) LPELR – 43365 (CA). PER OBASEKI-ADEJUMO, J.C.A.
WHETHER OR NOT AN EVIDENCE HAS PROBATIVE VALUE IF IT TENDS TO PROVE AN ISSUE
“An evidence has probative value if it tends to prove an issue. Where an evidence is tendered in Court, it is the duty of the trial Court to ascribe probative value to the evidence or document tendered. In the case of Sule Anyegwu & Anor V. Aidoko Onuche (2009) LPELR- 521 (SC) the Supreme Court held as follows:- “What must influence his mind in ascribing the probative value is the quality of the evidence or document tendered. In achieving that, the trial Judge has to have regards to, among other things, the followings: 1. Admissibility of the evidence, 2. Relevancy of the evidence, 3. Credibility of the evidence, 4. Conclusivity of the evidence, 5. Probability of the evidence on the sense that it is more probable than the evidence of the other party and 6. Finally, after having satisfied himself that all the above have been compiled with, he shall now, apply the law to the situation presented in the case before him so as to arrive at a conclusion in one way or the other. See Mogaji V. Odofin (1978) 4 S.C 91; Adeyeye V. Ajiboye (1987) 3 NWLR (Pt. 61) 432. This assignment is an exclusive preserve of the trial Court.”
per ADAH, J.C.A (PP. 71-72, PARAS. D-C). PER OBASEKI-ADEJUMO, J.C.A.
THE GENERAL PRINCIPLE OF LAW ON AGENCY
The general principle of law on agency is that, liability falls on the principal, where the agent is carrying out his instructions/duties or where the principal gives his agent express authority to do a tortuous act. The Principal would be held liable for the tortuous act of the agent.
The agent is however not scot – free or excused from liability in matter bothering on tort. Agent and Principal are considered to be Joint tortfeasors in law, and in cases involving more than one tortfeasor, the Plaintiff can choose to sue either the master or servant separately or jointly. The Appellant actually destroyed the farms to construct the road.
This honourable Court in BEKS KIMSE (NIG) LTD v AFRICA & ANOR (2018) LPELR – 24436 (CA) held thus;
“I agree with the reasoning and conclusions reached therein. PER OBASEKI-ADEJUMO, J.C.A.
WHETHER OR NOT THE AGENT OR EMPLOYEE WHO COMMITS A TORT ON BEHALF OF HIS PRINCIPAL, THE SAID AGENT/EMPLOYEE AND THE PRINCIPAL ARE NOT JOINT TORTFEASORS
It has been established in law that such agent who commits a tort on behalf of his principal are joint tortfeasors and can be sued either jointly or severally. In a case not dissimilar to the present case in appeal, this Court in Alhaji Lai Mohammed vs. Chief Afe Babalola (SAN) 2011 LPELR 8973, my Lord Tsammani JCA, guided by the decisions in Pan Brothers Ltd vs. Landed Properties Ltd (1952) All NLR page 22; Management Enterprises Ltd & Ors vs. Johnson Otusanya (1987) 4 SCNJ 110; Ifeanyi Osondu Co Ltd vs. Soleh Boneh Nig Ltd (2000) 3 NWLR (Pt. 656) 322, held that in situations of this nature, this plaintiff is at liberty to either sue the tortfeasors jointly, or pick which amongst the tortfeasors to sue.”
per BARKA, JCA (PP. 21 – 22, PARAS. D – C)
See also; DICKSON & ANOR v ASSAMUDO (2013) LPELR – 20416 (CA); COMMISSIONER FOR HEALTH NASSARAWA STATE & ORS v DADET (2009) LPELR – 8907 (CA); IYERE v BENDEL FEED & FLOUR MILL LTD (SUPRA). PER OBASEKI-ADEJUMO, J.C.A.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal flows from the judgment of Honourable Justice F. O. OHO sitting at the High Court of Justice, Oleh dated 4th April, 2012. Whereupon judgment was entered in favour of the 1 – 10th Respondents herein to the tune of N4,649,580.00 (Four Million Six Hundred and Forty – Nine, Five Hundred an Eighty Naira)
The 1st Respondent at the lower Court had prayed for the sum of N5,000,000.00 (Five Million Naira) being special and general damages, whereupon, they alleged that the Defendants constructed a road along their land that led to the damage of their crops and loss of earnings without paying compensation to them.
The lower Court gave judgment to the 1st Respondent to the tune of N3,649,580.00 (Three Million Six Hundred and Forty – Nine Thousand, Five Hundred and Eighty Naira only) as special damages and N1,000,000.00 (One Million Naira) as general damages.
Disgruntled by the lower Court decision, the Appellant filed its Amended Notice of Appeal on the 8th of April, 2019.
The parties exchanged briefs; the Appellant’s brief was filed 25th
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May, 2017 which was settled by Ralph Kosi Nwalia, Esq., of Ralph Kosi Nwalia & Co., Trinity Chambers, wherein the following issues were formulated for determination;
1. Whether the trial Court was right in assuming jurisdiction to entertain this matter that was statute barred wherein Plaintiff’s writ of summons was filed over 17 years after the cause of action arose in 1981
2. Whether the trial Court has jurisdiction to entertain this matter in view of the unambiguous provision of S. 30 of the Land Use Act.
3. Whether the trial Court was right in arbitrarily awarding to the 1st Respondent the sum of N4,649,580.00 (Four Million Six hundred and Forty – nine Thousand, Five Hundred and Eighty Naira) as damages.
4. Whether the trial Court was right in law to hold the Appellant liable in damages for the Acts of his master who authorised them to construct the road for public purpose.
The Respondent’s brief was filed on 24th of April, 2019. The brief was settled by M. O. Inone (Miss) of J. E. Ogedegbe & Associates, Oghenerhoro Chambers and adopted the issues distilled by the Appellants.
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APPELLANT’S SUBMISSION
On issue one, it is the Appellant’s contention that the trial Court lacks the requisite jurisdiction to entertain this matter as same is statute barred. That in ascertaining the period of limitation, evidence need not be given, it is gleaned from the pleadings and the cause of action arose in 1981 when the alleged destruction of items was done and their Writ of Summon was filed in 1988.
Counsel relied on Order 4 Rule 1 of the Limitation Law Cap 89 ,MRS. O. ADEKOYA v FEDERAL HOUSING AUTHORITY (2008) ALL FWLR PT. 432 AT 1454 RATIO 2; CHIEF E. W. J WOHEREM JP v JOEL EMEREWA & ORS (2004) ALL FWLR PT. 221, PG 1570 AT PG 1581 – 1582, PARA B – H; NIGERIA CUSTOM SERVICE v BAZUAYE (2001) 7 NWLR PT. 712, PG. 357 in submitting that the 1st – 10th Respondents rights became extinguished and/or evaporated 17 years ago thus rending their action statute barred.
The Appellant on issue 2 contends that the lower Court lacks the requisite jurisdiction to entertain this matter. That a union reading of the pleadings, evidence adduced and Section 28, 29 and 30 of the Land Use Act denies the trial Court and renders them vires and incompetent to entertain the
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case of the 1st – 10th Respondents.
Counsel further relied on MADUKOLU & ORS v NKEMDILIM (1962) ALL NLR PAGES 589 – 590 (where three conditions were enumerate to determine the competence of a Court to adjudicate over a matter) in submitting that the Court lacks jurisdiction and that it also lacks fulfilment of a condition precedent under the third condition of the above cited case, and as amplified by Section 30 of the Land Use Act.
Appellant further submits that the first resort is to the Land Use Committee, which is a threshold issue and fundamental to the adjudicating power of the trial Court. A factor which robs the Court of its entire jurisdiction. That the right to submit the matter of the compensation payable to the Land Use Committee is not a right vested in the 1st – 10th Respondents and therefore cannot be waved.
On issue 3, the Appellant contends that the trial Court was wrong to arbitrarily award the sum of N4, 649, 580. 00 (Four Million Six hundred and Forty – nine Thousand, Five Hundred and Eighty Naira) only as special and general damages to the 1st Respondent.
That the evidence of the Plaintiff
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cannot be seen as credible and he did not tell the Court the basis of his evaluation, he was not an expert witness, therefore not much weight should be attached as same is exaggerated. U. B. A v SAMBA PETROLEUM CO. LTD (2003) FWLR PT. 137; A. M. C NIG LTD v VOLKWAGEN NIGERIA LIMITED (2011) FWLR PT. 588 AT PAG 929 PP. 952, PARAS F – H were cited in aid.
Appellant contends further that the learned trial judge proceeded to award the 1st Respondent on the principle of trespass without proper evaluation. Whereas, the main thrust of the Plaintiff’s claim before the trial Court was the construction of road for public purposes leading to alleged destruction of their crops.
That the trial Court failed to avert his mind to Section 29 (c) of the Land Use Act, parties having agreed that the State Government acquired the land and awarded the contract to the Appellant to construct the road for public purpose and the award for loss of earning is not provided by Section 29 (c) of compensation payable. He cited the cases of XTOUDOS SERVICES NIGER LIMITED & ANOR v TAISEI (W. A) LIMITED & ANOR (2006) ALL FWLR PT. 333 AT PG. 1640, P. 1658 PARA G –
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H; A. S. E.S.A. v EKWENEM (2009) ALL FWLR PT. 455 PG. 1669 PP. 1686 PARAS B – C; NATURAL CHEMICAL MARKETING PLC v K C MARDEEN LEGE ADEWORO & ANOR (2009) ALL FWLR PT. 491 AT PG 838, PP. 861 – 862, PARAS H – B, and urge this Court to set aside the award.
The Appellant on issue 4, submits that the findings of the Court below in holding the Appellant liable for damages was perverse when synchronized with the evidence on record. That the parties are in agreement both in pleadings and evidence that the Appellant was an agent of a disclosed principal who contracted them to construct a road for public purpose. It is also in evidence that all matters of compensation of persons having interest in that location were settled by the 11th Respondent. He relied on AYODELE JAMES v MID MOTORS NIGERIA LTD (1978) 11 – 12, PG. 25 PP AT PG 41 in buttressing his submission.
Appellant submits further that the trial Court should have held only the 2nd and 3rd Respondents (sic) liable and answerable to the claim of the 1st Respondent, IFEANYI CHUKWU v SOLEH BONNEH NIG LTD (2000) FWLR PT. 27, 2047, PG 2066 PARA B – D was cited in aid.
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1ST – 10TH RESPONDENTS’ SUBMISSIONS
Counsel submits that, it is only the Writ of summons or the statement of claim that one has to look at to see if there is a cause of action, and a cause of action is the entire set of circumstances giving rise to enforceable claim. He relied on SAMUEL OSIGWE v PSPLS MGT. CONSORTIUM LTD & 12 ORS (2009) VOL. 171 LRCN 94 AT 98 RATIO 4 and OJUKWU v YAR’ ADUA & ORS (2010) VOL. 186 LRCN 24AT 36 RATIO 13.
Counsel submits further that from paragraphs 10 – 11 of the 1st – 10th Respondents’ statement of claim, the cause of action arose only between 1991 and 1993 when the Defendants released the names of those to be paid but failed to release the names of the 1st – 10th Respondents, A. G OF LAGOS STATE v EKO HOTELS LTD &ANOR (2007) VOL. 144 LRCN 296 AT 302 RATIO 12 was cited in aid.
On issue 2, Counsel submits that the provisions of Section 30 of the Land Use Act are very clear and unambiguous and it relates to cases or situations where there are disputes as to the amount of compensation calculated in accordance with the provisions of Section 29 of the Land Use Act.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Counsel contends that paragraphs 10 – 11 of the 1st – 10th Respondents’ Statement of Claim clearly shows that there is no dispute whatsoever between any amount that was calculated by the Appellant and 11th Respondent on the one hand and any of the 1st – 10th Respondents on the other hand.
That the lower Court therefore had jurisdiction to hear and entertain the suit as the provisions of Section 30 of the Land Use Act were inapplicable.
On issue 3, Counsel submits that the Appellant’s failure to challenge the averments at paragraphs 6 (a) – (j) and paragraphs 12 and 13 (1), (2) and (3) as well as the failure of the 11th Respondent to call any witness amounts to an acceptance of the averments in the said paragraphs and therefore need no further proof.
That where the plaintiff pleads special damages and gives necessary particulars and adduces some evidence of it without the Defendant challenging or contradicting the evidence, he has discharged the onus of proof placed on him and unless the evidence adduced is of such a quality that no reasonable Tribunal can accept, it ought to be accepted.
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UNITED BANK FOR AFRICA PLC v BTL INDUSTRIES LTD (2007) VOL. 148 LRCN 1189 AT 1191 RATIO 1; RAMONU RUFIA APENA & ANOR v OBA FATI AILERU & ANOR (2014) VOL. 237 LRCN 1 AT 8 RATIO 5; SULE EYIGEBE v MUSA IYAJI (2013) VOL. 219 LRCN 1 AT 5 RATIO 4.; NDULUE & ANOR v OJIAKOR & ORS (2013) VOL. 219 LRCN (PT. 2) 186 AT 190 – 191 RATIO 5; UNION BANK OF NIGERIA PLC v CHIMAEZE (2014) VOL. 235 LRCN 35 AT 43 RATIO 7 were cited in aid.
Counsel on issue 4 submits that the Appellant’s contention that it is an agent of the 11th Respondent who is a disclosed principal is misconceived in law and mischievous. That from the facts of the case and the state of the pleadings, the issue of contract and agency does not arise between the parties and the case of the 1st – 10th Respondents is based on tort.
Counsel further submits that the Appellant and 11th Respondents are joint tortfeasors in law, that in a case of a tortfeasor, each of two or more joint tortfeasors is liable for the entire damage resulting from the tort. That the 1st – 10th Respondents are at liberty to choose their victim; they may decide to sue either the master and servant separately or
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both of them jointly. Counsel relied heavily in the case of R. O IYERE v BENDEL F.& F. MILL LTD (2009) VOL. 168 LRCN 143 AT 149 RATIO 6; 152 RATIO 13; 151 RATIO 11.
Counsel urge the Court to hold that the Appellant is not an agent of a disclosed principal but a tortfeasor or a joint tortfeasor.
RESOLUTION
The parties are in agreement on the issues for determination, which are the issues distilled by the Appellant, therefore they would be adopted in determining this appeal.
Issue 1 and 2 shall be resolved together as they fall under jurisdictional matters which goes to the root/foundation.
It is a trite principle of law that in determining whether a case is statute barred, the originating processes of the Plaintiff who commenced the action (writ of summons and/or the statement of claim of the Plaintiff) would be considered in ascertaining when the cause of action accrued.
A cause of action is defined in ZUBAIR v KOLAWOLE (2019) LPELR – 46928 (SC) as;
“A cause of action has been defined as consisting of “every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his
10
right to judgment.”
“See: Adimora Vs Ajufo (1988) 3 NELR (PT. 80)
1. It has also been defined as “the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right judicial relief.” See: Egbe Vs Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ 20; Adekoya Vs F. H. A (2008) 11 NWLR (Pt. 1099) 539; Oshoboja Vs Amuda (1992) 6 NWLR (Pt. 250) 690.”
per KEKEERE – EKUN, JSC (P. 19, PARAS. D -F)
See also; ADEGBESAN & ANOR v ILESANMI (2017) LPELR – 42552 (CA); ADU & ORS v LAGOS STATE TASK FORCE ON ENVIRONMENT AND SPECIAL OFFENCES UNIT & ORS (2016) LPELR – 40060 (CA); LEARN AFRICA PLC v OKO (2015) LPELR – 25824 (CA); MANDATE INT’L LTD v DANGOTE CEMENT PLC & ANOR (2014) LPELR – 22666 (CA).
And in determining if this appeal is statute barred recourse would be made to the Statement of claim.
This honourable Court in BATTA TRADITIONAL COUNCIL & ANOR v TENEKE & ORS (2017) LPELR – 43005 (CA) held on how the Court determines an action is statute barred;
“…the period of limitation in any
11
limitation statute is determined by looking at the writ of summons and the statement of claim alleging when the wrong committed which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the limitation Law, the action is statute barred.”
per HUSSAINI, JCA (PP. 24 – 25, PARAS C – A)
See also; JOEL OKUNRINBOYE EXPORT COMPANY & ANOR v SKYE BANK PLC (2014) LPELR – 24330 (CA); ADETULA v AKINYOSOFE & ORS (2017) LPELR – 42130 (CA); HASSAN & ORS v BORNO STATE GOVT & ORS (2016) LPELR – 40250 (CA); CHAIRMAN ZAIRA LOCAL GOVT. & ORS v ADAMU & ORS (2015) LPELR – 25934 (CA); KPATI & ANOR v PLATEAU INVESTMENT & PROPERTY DEVELOPMENT CO. LTD (2017) LPELR – 43365 (CA).
In this case, the Writ of summons is dated 27th July, 1998 as gleaned from page 1 of the record before the Court, and from the 1st -10th Respondents/Plaintiffs’ averments in paragraphs 4, 5, 6, 7, 9, 10 & 11 of their statement of claim at pages 5 – 7, hereunder reproduced;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“4. In or about the year 1981, the 2nd defendant awarded the contract for the construction of the Ekpan/Eku Road to the 1st Defendant. In the course of construction of the Ekpan/Eku Road 1st Defendant buldozed (sic) and destroyed property including crops, rubber trees, raffia palms and so on belonging to several persons. Among the property destroyed by the 1st defendant were various crops such as rubber trees, cassava, pepper stands and so on belonging to the Plaintiffs.
5. As a result of paragraph 4 above, Plaintiffs and several other persons protested to the defendants. Defendants promised the plaintiffs that they (defendants) would send their enumerators to assess the extent of damages done to plaintiffs’ property and/or crops and also to take the assessment of other property of the plaintiffs marked for destruction.
6. Plaintiffs aver that in February, 1981 the defendants sent their enumerators as they promised. The enumerators verified and assessed plaintiffs’ claims and found as follows;
(a) 1st plaintiff was assessed as the owner of a rubber plantation with 640 (Six Hundred and forty) rubber trees and approximate age of
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19 years.
(b) 2nd Plaintiff was assessed as the owner of a cassava farm with 438 cassava stands and an approximate age of 3 months.
(c) 3rd Plaintiff was assessed as the owner of a cassava farm with 663 (six Hundred and Sixty-three) cassava stands and an approximate age of 3 months.
(d) The 4th Plaintiff was assessed as the owner of a rubber Plantation with 191 (one hundred and ninety-one) rubber trees and an approximate age of 14 years.
(e) The 5th Plaintiff was assessed as the owner of a rubber plantation with 450 (Four Hundred and Fifty) rubber trees and an approximate age of 15 years.
(f) The 6th Plaintiff was assessed as the owner of 500 (Five Hundred) pepper stands.
(g) The 7th plaintiff was assessed as the owner of a cassava farm with 778 (Seven Hundred and Seventy – eight) cassava stands with an approximate age of 4 months.
(h) The 8th plaintiff was assessed as the owner of 500 (five hundred) pepper stands.
(i) The 9th Plaintiff was assessed as the owner of a rubber plantation with 425 (Four Hundred and Twenty-five) rubber trees and an approximate age of 16 years.
(j) The 10th Plaintiff was assessed as
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the owner of 500 (Five hundred) pepper stands.
At the trial, plaintiff shall rely on the original copies of the master – list of all the crops and other property enumerated and destroyed during the construction of the Ekpan/Eku Road by the 1st Defendant and the papers or enumeration certificates issued to the Plaintiffs by the 2nd defendant during the enumeration exercise.
7. Plaintiff aver that after the said enumeration exercise in paragraph 6 above the 1st defendant commenced further work and destroyed plaintiffs rubber trees, cassava farms and pepper farms with a promise that the plaintiffs will soon be paid compensation for the destroyed crops.
9. Plaintiffs further aver that despite repeated demands, the defendants have refused to pay for the plaintiff crops destroyed by the 1st defendant during the said Ekpan/Eku road construction.
10. In 1991, 2nd defendant released a list of all those to be paid their various sums of money for their destroyed crops but plaintiffs’ names were not released on the list. Plaintiffs complained to the 2nd defendant who promised that another list will be released.
11. In 1993 the
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defendants paid people whose names were reflected in the list referred to in paragraph 10 above. The defendants refused to release plaintiffs’ names nor did the defendants pay the plaintiffs in 1993. Plaintiffs repeatedly went to the defendants to demand for their compensation but the defendants refused/neglected to pay the Plaintiffs hence this action. (underlining mine)
From the above averments; the Plaintiffs’ (1st – 10th Respondents) cause of action did not accrue when the government revoked the plaintiffs’ right of occupancy and went on their land, in 1991 but when the arrangements to assess and document those affected as having crops on the part of the intended construction of the EKPAN-EKU road. See Exhibits A1-A10- Enumeration certificates issued by 2nd defendant /11th Respondent
In 1991, the master- list came out and the Respondents’ names were not here, the Appellant promised to release the second batch for compensation as promised to affected persons and this was backed up by the acts (assessment of the property and issuance of enumeration certificates) of the defendants which portrayed intentions to compensate the
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Plaintiffs, see paragraph 10 of the statement of claim.
In 1993, the people whose names were in the released list were paid and despite repeated demands, no other list was released nor payments made.
This, in the circumstances of this case, is when the Plaintiffs’ cause of action arose, when compensation was made to other affected persons and the Plaintiffs received nothing. This was in 1993.
The cause of action in this matter was a collection of actions (facts), that is, from the defendants commencing work on the plaintiffs’ land, which occurred in 1981 to the issue of non-payment of claims which only accrued in 1993.
It would have been easier to hold that the cause of action accrued in 1981, if there was no issuance of the enumeration certificates given in 1981 in anticipation of compensation. The compensation was paid in 1993 and as earlier stated, the Writ of summons is dated and filed in the year 1998, which is clear five years after the cause of action occurred and is well within the period of time stipulated in Order 4 Rule 1 of the Limitation Law, 1976 Defunct Bendel State as applicable in Delta State.
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DIASPAN v NIMDEM (2016) LPELR – 43803, the Court held thus;
“A matter is said to be statute barred, where it is filed outside the time limited for commencing such actions as prescribed by any statute of limitation. See OGUNKO V. SHELLE(2004) 6 NWLR (Pt. 686) 17 andOSUN STATE GOVT. v. DALAMI (NIG.) LTD. (2007) 9 NWLR (pt. 1035). In the case of ABOYEJI v. LATEJU (supra) this Court per Tijjani Abdullahi JCA (of blessed memory) held in the determination of whether an action is statute barred, thus: “At the stage of raising the defence of statute bar in an action such as the present one, only documents filed by the parties particularly the statement of claim and the unit are to be considered… In determining whether an action is statute barred or not, the Court has to determine the accrual date of the cause of action and when the action was commenced ADEKOYA V. FHA (2008) 11 NWLR (Pt. 1099) 539. This is done in order to verify whether the action was filed within the prescribed time by the limitation law, in the instant case the Plateau State Limitation of Action Law No.16 of 1988 which prescribed 10 years. It is trite that resort must be made to the writ of
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summons and statement of claim to determine when the cause of action accrued and whether the suit was filed within the prescribed time. See ABOYEJI v. LATEJU (2012) 3 NWLR (pt. 1288) 494 at 451.”
This Court set the basic test for determining when a cause of action begins to run in NNPC v ESHIET (2018) LPELR – 43681 (CA):
“In order to determine whether an action is statute barred, the Court would simply look at and consider the writ of summons and the facts set out in the statement of claim filed by the claimant to commence the action before the Court. The facts in the statement of claim would set out the details of the cause of the action and when it arose to vest the claimant with the right to undertake the action. See Bank of the North vs. Gana (2006) ALLFWLR (296) 862, Adekoya vs. FHA (2008) 6 MJSC, 66. A cause of action may consist of a fact or combination of facts which if proved before a Court would entitle the claimant to a judicial remedy against a defendant. See Oshoboja vs. Amuda (1992) 6 NWLR (250) 690, Bright Motors Limited vs. Honda Motors (1998) 12 NWLR (577) 230 @ 247. For the purpose of limitation of action, time starts to run from the date
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the cause of action arose and the right accrues to the claimant ….. A cause of action would arise and the right of action accrues to a claimant when the facts giving rise to the action are complete to enable the claimant, initiate the action against a competent defendant. The two (2) relevant and material dates for the determination of whether an action was statute barred are the ones set out in statement of claim as to when the cause of action arose and the right of action accrued and the date on the writ of summons used to institute or commence the action. Where the latter date was outside or after the expiration of the period of time prescribed in the limitation statute from the earlier date, then the action is statute barred and incompetent. Owie vs. Ighiwi (2005) 1 SC (Pt. II) 16. University of Ibadan vs. Adetoro (1991) 4 NWLR (185) 375.”
per GARBA, J.C.A (PP. 10-11, PARAS. C-F)
Following from the above, I hold that the action was not statue barred and the lower Court was therefore right to assume jurisdiction over the matter.
Issue 2 borders on the jurisdiction of the lower Court in light of the provisions of Section 30 of the Land Use Act
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which provides thus;
“Where there arises any dispute as to the amount of compensation calculated in accordance with the provisions of Section 29 of this Act, such dispute shall be referred to the appropriate Land Use and Allocation Committee.”
The above provision aims to avert every dispute in relation to the amount of compensation calculated to the Land use and Allocation Committee.
In paragraphs 10 – 11 of the Plaintiffs’ Statement of claim at pages 6 -7 of the record, there was no dispute as to the amount calculated by the enumerators of the Defendants in accordance to Section 29 of the Land Use Act.
The 1st- 10th Respondents’ claim at the lower Court was hinged on the facts that the Appellant and the 11th Respondent carried out an enumeration exercise but was not forthcoming with the compensation. The Appellant pleaded that he knew nothing about the crops and compensation while the 11th Respondent failed to contest the action and did not file a statement of defence therefore in the evidence adduced there was still no dispute, the 11th Respondent did not contend the figure stated in the claim neither did
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they adduce evidence as to their rate of payment, under this circumstances this cannot be said to be a dispute on compensation.
Section 30 of the Land Use Act would have been invoked if there was a dispute to the compensation paid or the amount assessed at the time the certificate was issued. It is inapplicable.
Therefore, the lower Court had requisite jurisdiction and/or was not robbed by the Land Use and Allocation Committee of its jurisdiction.
I resolve these two issues against the Appellant.
Issue 3
The contention herein deals with the award of the sum of N4,649, 580. 00 (Four Million, Six Hundred and Forty – nine Thousand, Five Hundred and Eighty Naira) as special and general damages to the 1st– 10th Respondents, on the grounds that it was awarded arbitrarily.
A cursory perusal of the particulars of the damage as claimed by the 1st – 10th Respondents in paragraph 13 of their Statement of Claim at page 7 of the record. For clarity purposes, it is hereunder reproduced;
“13. Plaintiffs aver that up till now they have not been paid their compensation by reason of which they have suffer (sic) damages
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and claim from the defendants jointly and severally as follows;
PARTICULARS OF DAMAGES
N : K
1. Loss of earning from plaintiffs
1,879 cassava stands at N200,037,580.00
2. Loss of earning from plaintiffs
1000 pepper stands at N200.00
per stand 200,000.00
3. Loss of earning from plaintiffs
1,706 rubber trees at N500.00
per tree per year for 4 years 3,412,000.00
3,649,580.00
General Damages 1,350,420.00
N5,000,000.00.”
The 1st – 10th Respondents in support of their averments tendered Exhibits A1 – A10 (the enumeration certificates issued by the Defendants’ enumerators) and at paragraph 6 (a – j) of its statement of claim pleaded the claim verified by the Defendants’ enumerators and reflected in enumeration certificates. The 11th Respondent who did the verifications and issued the certificate which qualifies the holder to payment of compensation did not challenge the figure by adducing a rate if any.
The 1st – 10th Respondents further in paragraphs 12 and 13, at page 7 pleaded their items of special damages and led evidence in proof of same and at trial
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the figure was not said to be overvalued or undervalued, it was his own assessment as a farmer that planted the crops. The evidence went unchallenged.
PDP& ANOR v INEC & ORS (2019) LPELR -48101 (CA)
“An evidence has probative value if it tends to prove an issue. Where an evidence is tendered in Court, it is the duty of the trial Court to ascribe probative value to the evidence or document tendered. In the case of Sule Anyegwu & Anor V. Aidoko Onuche (2009) LPELR- 521 (SC) the Supreme Court held as follows:- “What must influence his mind in ascribing the probative value is the quality of the evidence or document tendered. In achieving that, the trial Judge has to have regards to, among other things, the followings: 1. Admissibility of the evidence, 2. Relevancy of the evidence, 3. Credibility of the evidence, 4. Conclusivity of the evidence, 5. Probability of the evidence on the sense that it is more probable than the evidence of the other party and 6. Finally, after having satisfied himself that all the above have been compiled with, he shall now, apply the law to the situation presented in the case before him so as to arrive at a
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conclusion in one way or the other. See Mogaji V. Odofin (1978) 4 S.C 91; Adeyeye V. Ajiboye (1987) 3 NWLR (Pt. 61) 432. This assignment is an exclusive preserve of the trial Court.”
per ADAH, J.C.A (PP. 71-72, PARAS. D-C)
The evidence of the 1st– 10th Respondents to my mind, having regard to the occupation and subject matter of the action is farming and crops within a village, is reasonable and logical, it meets all standard and I would not expect that they will get a valuer for this kind of claim. It is for the Court to examine same, whether it is prudent. It was copiously pleaded and itemized for the Defendants to see and put forward a different scale but alas!! none was placed before the Court and it’s a claim of 10persons whose commercial farm crops were destroyed irreparable, I find that they having reasonably satisfied the burden, and the burden of proof having shifted to the Defendants, the Defendants had nothing to urge.
The Supreme Court in OHOCHUKWU v ATTORNEY GENERAL OF RIVERS STATE & ORS (2012) LPELR – 7849 (SC) held on when the burden of proof would shift thus;
“It is after a Plaintiff has proved his
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case that the burden of proof shift to the defendant.”
per MUKHTAR, JSC (P. 37, PARA E)
In DIAMOND BANK v WELLCARE ALLIANCE (2015) LPELR – 40762(CA), this Court held on what amounts to evidence in proof of special damages thus;
“…The Appellant did not contradict the Respondent on this piece of evidence and it is trite that unchallenged credible evidence in support of special damages can be accepted as proof of the claim. See ARABA V ELEGBA (1986) 1 NWLR (PT 16) 333. Therefore, once credible evidence are adduced on items classified as special damages in line with the pleadings and such evidence is not challenged, the evidence should be deemed to have been proved. See ADIM VS. NBC LTD (2010) 9 NWLR (PT. 1200) 543 AND UBA PLC VS. OGUNDOKUN (2009) 6 NWLR (PT, 1138).”
per ABBA AJI, J.C.A (P. 27, paras. A-D)
See also; NDUUL v WAYO & ORS (2018) LPELR – 45151 (SC); AKINBADE & ANOR v BABATUNDE & ORS (2017) LPELR – 43463 (SC); JOHN & ORS v AMAECHI & ORS (2016) LPELR – 40982 (CA); JAJI & ORS v OLOWORA & ANOR (2015) LPELR – 25575 (CA).
The onus shifted to the Appellant
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and 11th Respondent (Defendants). The Appellant did not deny or challenge these averments and the 11th Respondent who attempted to deny same, failed to lead evidence in support of its statement of defence and did not object to the tendering of Exhibits A1-A10.
The defence is therefore deemed abandoned, I draw strength from the decision ofMADUIKE v TETELIS NIGERIA LTD (2015) LPELR – 24288 (CA) where it was held thus;
“Thankfully as noted by the Appellant himself in his reply brief that failure in law to rebut or join the argument raised by a party in a proceeding amounts to an admission of the issue raised by the other. Counsel cited UGBOAJA v AKITOYE – SOWEMIMO (2008) 16 NWLR (PT. 1113) 278 at 291 292 H – A, where the Court opined: “…it is settled law that where a party fails or neglects to react to an issue in contention between the parties, the party in default is deemed to have conceded the point/issue to his opponent.”
per OBASEKI – ADEJUMO, JCA (PP. 6 – 7, PARAS. F – B)
See also; NBC PLC v UBANI (2013) LPELR – 21902 (SC); MAINAMA v KEYSTONE BANK LTD (2015) LPELR
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– 40877 (CA); UNITY BANK PLC v ADAMU & ORS (2013) LPELR – 22047 (CA); GTB v EKEMEZIE (2015) LPELR – 40732 (CA).
I am of the opinion that where a plaintiff pleads special damages, gives necessary particular and adduces some evidence, without the Defendants denying same with evidence or challenging it, it is deemed as the position of things.
I do not find any exaggeration or arbitral award on this head, the Respondents asked for N5Million plus but the Court awarded N3,645,580 and Cost of 1 Million Naira as General damages.
I resolve issue 3 in favour of the 1st – 10th Respondents.
Issue 4 borders on the issue of an agent and principal relationship.
It is imperative that I point out at this junction that the essence of establishing an agency relationship is to prove the tripartite relationship of; Principal – Agent – third party. This usually creates an obligation between the principal and the agent under which there are certain rights, duties and liabilities. When the agent carries out either of them, privity of contract is created between the principal and the third party.
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However, the 1st – 10th Respondent’s issue is one based on tort and not contract.
The general principle of law on agency is that, liability falls on the principal, where the agent is carrying out his instructions/duties or where the principal gives his agent express authority to do a tortuous act. The Principal would be held liable for the tortuous act of the agent.
The agent is however not scot – free or excused from liability in matter bothering on tort. Agent and Principal are considered to be Joint tortfeasors in law, and in cases involving more than one tortfeasor, the Plaintiff can choose to sue either the master or servant separately or jointly. The Appellant actually destroyed the farms to construct the road.
This honourable Court in BEKS KIMSE (NIG) LTD v AFRICA & ANOR (2018) LPELR – 24436 (CA) held thus;
“I agree with the reasoning and conclusions reached therein. The question to be answered in this appeal to my mind is whether the agent or employee who commits a tort on behalf of his principal, the said agent/employee and the principal are not joint tortfeasors? It has been established in law that such agent who
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commits a tort on behalf of his principal are joint tortfeasors and can be sued either jointly or severally. In a case not dissimilar to the present case in appeal, this Court in Alhaji Lai Mohammed vs. Chief Afe Babalola (SAN) 2011 LPELR 8973, my Lord Tsammani JCA, guided by the decisions in Pan Brothers Ltd vs. Landed Properties Ltd (1952) All NLR page 22; Management Enterprises Ltd & Ors vs. Johnson Otusanya (1987) 4 SCNJ 110; Ifeanyi Osondu Co Ltd vs. Soleh Boneh Nig Ltd (2000) 3 NWLR (Pt. 656) 322, held that in situations of this nature, this plaintiff is at liberty to either sue the tortfeasors jointly, or pick which amongst the tortfeasors to sue.”
per BARKA, JCA (PP. 21 – 22, PARAS. D – C)
See also; DICKSON & ANOR v ASSAMUDO (2013) LPELR – 20416 (CA); COMMISSIONER FOR HEALTH NASSARAWA STATE & ORS v DADET (2009) LPELR – 8907 (CA); IYERE v BENDEL FEED & FLOUR MILL LTD (SUPRA).
Flowing from the above, I hold that the Appellant and the 11th Respondent are joint tortfeasors and are both jointly and severally liable. I resolve this issue in favour of the 1st – 10th Respondents.
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On the whole, having resolve all the issues against the Appellant, the appeal fails and is hereby dismissed.
The Judgement of Honourable Justice F. O. OHO delivered on 4th April, 2012. is hereby affirmed.
Cost of N300,000 is awarded to the 1st -10th Respondents.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother OBASEKI-ADEJUMO JCA. I agree with his reasoning and final conclusions. I also find no merit in this appeal. I therefore dismiss this appeal and affirm the judgment of the trial Court. I abide by the orders contained in the lead judgment including that as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal be dismissed as the plaintiff/respondent had proved its case at the trial Court.
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Appearances:
…For Appellant(s)
…For Respondent(s)
