NIGERIA BREWERIES v. CHRIS MBA & ANOR
(2018)LCN/11076(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of March, 2018
CA/E/457/2016
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
NIGERIA BREWERIES Appellant(s)
AND
1. CHRIS MBA
2. VIGEO LTD Respondent(s)
RATIO
THE ESSENCE OF PLEADINGS
The law is settled that the essence of pleadings is to ascertain with precision and certainty the various issues in dispute between parties.
It is also settled that in order to get gist of the case being put forward by a party, the entire pleadings of the party must be read together because civil cases are determined on the basis of issues joined by the parties. Issues are said to be joined when parties have answered one another?s pleadings in such a manner that they have disagreed on a material point which point or issue calls for the determination or resolution of the Court. See ABDUL V. GARBA & ORS. (2010) LPELR ? 9132 (CA) AT 40 (C ? F). IKONNE V. EZIEME (2010) LPELR ? 4224 (CA) AT 24 (A ? D) KABIAWU & ORS V. THOMPSON & ORS (2014) LPELR ? 23258 (CA). PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT ONCE ISSUES ARE JOINED, IT IS NOT NECESSARY TO FILE A REPLY IF THE PURPOSE IS TO DENY THE ALLEGATIONS MADE IN A STATEMENT OF DEFENCE
The law is settled that once issues are joined, it is not necessary to file a reply if its purpose is merely to deny the allegations made in the statement of defence. Where no reply is filed to statement of defence, all material facts alleged in the statement of defence are put in issue. See OSHODI & ORS V. EYIFUNMI & ANOR. (2000) 13 NWLR (PT. 684) 298 AT 326 ? 327 (G ? C). UNITY BANK PLC. V. BOUARI (2008) 7 NWLR (PT. 1086) 372, (2008) LPELR ? 3411 (SC). OBOT V. CBN (1993) LPELR ? 2192 (SC). (1993) NWLR (PT. 310) 140. In EGESIMBA V. ONUZURUIKE (2002) LPELR ? 1043 (SC) (2002) 15 NWLR (PT. 791) 466 AT 519 (A ? E), where the Supreme Court stated the rules governing filing a reply to a statement of defence as follows: –
(a) ?In general, it is not necessary for a plaintiff to file a reply if his only intention in doing so is to deny any allegations that the defendant may have made in the statement of defence.
(b) A reply to merely join issues is not permissible. If no reply is filed, all material facts alleged in the statement of defence are put in issue.
(c) The proper function of a reply is to raise, in answer to the defence, any matter which must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raises issues of fact not arising out of the defence. Also a reply is the proper place for meeting the defence by confession and avoidance.
(d) In order to allow a party to file a reply the trial Court must be satisfied that both the statement of claim and the statement of defence filed by the parties have not, when read together, sufficiently disclosed and fixed the real issues between the parties and that further pleadings in the reply to be filed will achieve the purpose of bringing the parties to an issue.
(e) The purpose of filing a reply is to join issue on the allegations made in the statement of defence. Issues are deemed to have been joined respect of allegations made in the statement of defence even where no reply is filed.?
The submission of the appellant?s counsel that its pleadings are deemed admitted for failure of 1st respondent to file a reply thereto is wrong in law. PER BOLAJI-YUSUFF, J.C.A.
DEFINITION OF AN INDEPENDENT CONTRACTOR
An independent contractor is a person who contracts with another to do something but who is not controlled by the employer in the manner of performance of the contract. In ADEWUNMI V. PLASTEX (NIG.) (1986) LPELR ? 164 (SC), (1986) 3 NWLR (PT. 32) 767 AT 790 (D ? F), the Supreme Court stated that:
?The test distinguishing an independent contractor from a servant or agent is the degree of control which the employer is entitled to exercise. An independent contractor is one who is not bound generally to obey such orders as his employer may from time to time give, but is free to act as he thinks fit within the terms of his contract. In PERFORMING RIGHT SOCIETY LTD. V. MITCHELL & BOOKER PALAIS DE DANSE LTD. (1924) I K. B. 702 AT PP. 765, MCCARDIE J, referring to POLLOCK ON TORTS 12TH ED. PP. 79, 80 expressed it graphically and clearly when he said,
?A servant is a person subject to the command of his master as to the manner in which he shall do his work… An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand. PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT HE WHO ASSERTS MUST PROVE
Secondly, the law is settled that he who asserts must prove. The appellant did not deny the fact that it was his concert and that security personnel were hired to provide security at the venue of the concert. The appellant did not state that the contract between it and the 2nd respondent does not cover provision of security at the venue of the concert. Even if the 2nd respondent was an independent contractor, so long as it was not prohibited from hiring security men for the concert and so long as it acted within the contract, the appellant as the employer and the 2nd respondent are equally liable for the injury inflicted on the 1st respondent. See S. P. D. C (NIG.) LTD. V. OKOGBO & ORS. (2011) LPELR 4951 (CA). ISC SERVICE LTD V. G.C. LTD (2006) LPELR ? 7662 (CA), (2006) 6 NWLR (PT. 977) 481. In law, the liability of an employer is not automatically obliterated because he employed an independent contractor to perform the act which gave rise to a tortuous act. In IYERE V. BENDEL FEED & FLOUR MILL LTD. (2008) 18 NWLR (PT. 1119) 300 AT 329 (E-H) the Supreme Court stated that:
?In case of a tortfeasor, each of two or more joint tortfeasors is liable for the entire damage resulting from the tort. See DE BODREUGAM V. ARCEDEKERE (1302) 70 30 EDW 1 (ROLL SERIES) 106. The following for instance, are joint tortfeasors:
(a) Employer and employee where the employer is vicariously liable for the tort of the employee.
(b) Principal and agent where the principal is liable for the tort of the agent.
(c) Employer and independent contractor where the employer is liable for the tort of his independent contractor.
(d) A person who instigates another to commit a tort and the person who then commits the tort.
(e) Persons who take concerted action to a common end and in the course of executing that joint purpose commit a tort.
The present appeal falls within the first category of joint tortfeasor, i.e employer and employee. See JAMES V. MID ? MOTORS (NIG.) CO ? LTD. (1978) LPELR ? 1593, (1978) 11 ? 12 SC P. 25. VULCAN GASES LTD. V. GESELLCHAFT FUR IND. GAS VERWERTUNG A. G. (2001) LPELR ? 3465 (SC), (2001) 9 NWLR (PT. 719) 610. PER BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State delivered in Enugu Judicial Division in suit no E/227/2001 on 30/10/2012. The 1st respondent in this appeal went to Enugu Stadium on 29th October, 2000 to attend a musical concert organized by the appellant and 2nd respondent with a view to discuss with Awillo Longomba, the musician who performed at the concert. While he was discussing with one Tunde Obalana of Zmirage, one of the security men engaged by appellant and 2nd respondent suddenly used his horsewhip to flog him right in his face. The horsewhip broke his eye glasses and fragment of the glasses penetrated his left eye and injured him. He was taken to Enugu Stadium Clinic and later referred to Niger Optical Clinical, Enugu where he was operated upon and continued to receive treatment. He has since been going for monthly check ups in either Niger Optical Clinic or Maja Hospital in Lagos. He instituted the action from which this appeal emanated and claimed the following reliefs:
1. ?The sum of #10,000,000.00 (Ten Million Naria
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Only) being general, special and exemplary damages for injury sustained by the plaintiff in the hands of the defendants during the musical extravaganza organised by the defendants in Enugu State.
SPECIAL DAMAGES
1. Cost of pursing (sic) and medical expenses
Estimated at #3,500,000.00
2. Loss of Earnings #3,000,000.00
3. Travelling expenses from Lagos to
Enugu and upkeep for check-up #500,000.00
#7,000,000.00
GENERAL DAMAGES
General damages for physical and mental
Pain, suffer and injury to the eye #3,000,000.00
TOTAL CLAIM #10,000,000.00?
The 2nd respondent as the 1st defendant at the Court below filed its statement of defence on 6/9/01 wherein it denied all the allegations of the 1st respondent and asserted that the 1st respondent attempted to get into personal contact with the guest artist Awillo Longomba by joining a group of spectators who were trying to forcefully enter the field which was a restricted area and if he was hit by a horsewhip which was denied, then it was his fault. A defence of volenti non injuria was pleaded.
?
The appellant filed its statement of defence on 9/4/2002
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wherein it also denied all the allegation of the 1st respondent and pleaded that the 2nd respondent was an independent contractor contracted to organize the show and that the appellant was not in any way directly or indirectly involved in the organization, planning, control, supervision and management of the show as it did not exercise any form of control over the 1st defendant. It did not employ any security personnel or officer in whatsoever capacity during the concert and is not vicariously liable for any injury caused to the 1st respondent as he contributed to the injury suffered by him.
The case suffered numerous adjournments and hitches during which attempts made to settle the matter out of Court failed. The 1st respondent testified as PW1 and called 3 other witnesses. The 2nd respondent did not call any witness while the appellant called one witness who testified as DW1. Final written addresses of the appellant and 1st respondent were adopted on 3/6/2009 and judgment was fixed for 22/7/09. The judgment was not delivered on that day. The record of appeal shows that the case came up in Court on 27/4/2010. On that day the Court stated that ?The
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judgment earlier written in this case has been misplaced. I cannot lay hands on it in my study.? Dr. Z. C. Anyogu with J. O. Emordi of counsel for the 1st respondent were in Court. The appellant?s counsel was not in Court. The case was adjourned to 4/5/2010 for re-adoption of addresses. There is no record of what happened on 4/5/2010. The record shows that the case came up again on 5/4/2011. 1st respondent?s counsel was in Court. Defendants were absent and were not represented by counsel. The case was again adjourned to 19/4/2011 for re-adoption of addresses. There is no record of what happened on 19/4/2011. The case came up in Court again on 3/7/2012. The 2nd respondent?s counsel and the appellant?s counsel readopted their written addresses that day. Judgment was fixed for 31/7/2012 but was not delivered as scheduled. Judgment was finally delivered on 30/10/2012 more than 3 years after the final addresses were first adopted and more than 110 days after the re-adoption of addresses on 3/7/12. Judgment was entered in favour of the 1st respondent against the defendants jointly and severally as follows:
?In the final analysis, I hold that the plaintiff has
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proved his case against the defendants on a balance of probabilities and is entitled to judgment.
Judgment is hereby entered in favour of the plaintiff against the defendants jointly and severally as per his claim. The following orders are hereby made: –
1. The sum of #278,718.50 (Two Hundred and Seventy Eight Thousand, Seven Hundred and Eighteen Naira, Fifty Kobo) only awarded as special damages in favour of the plaintiff against the 1st and 2nd defendants jointly and severally for the damages sustained by the plaintiff on the 29th October, 2000.
2. The sum of #3,000,000.00 (Three Million Naira) is awarded as general damages against the defendant jointly and severally in favour of the plaintiff for the losses suffered by the plaintiff as a result of the defendants? act.
3. Cost assessed and fixed at #100,000.00 is awarded in favour of the plaintiff against the defendants jointly and severally. Cost of pocket expenses inclusive.?
?Dissatisfied with the judgment, the appellant filed a notice of appeal containing nine (9) grounds of appeal on 22/11/2012. The grounds of appeal without their
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particulars are as follows:
GROUND ONE – ERROR IN LAW
?The learned trial judge erred in law when he delivered judgment in suit no. E/227/2001 on the 30th of October 2012 being over 3 years, 4 month and 28 days after the adoption of final addresses by counsel for parties and this occasioned a miscarriage of justice.
GROUND TWO – ERROR IN LAW
The learned trial judge erred in law when he held at page nine (9) of his judgment ?the defendants (1st and 2nd defendants) are jointly and severally liable for the damage sustained by the plaintiff on 29th October, 2000?
GROUND THREE – ERROR IN LAW
The learned trial judge erred in law when he held the appellant jointly and severally liable for the injury inflicted on the appellant by a security agent.
GROUND FOUR MISDIRECTION
The learned trial judge misdirected himself when he relied on the evidence of PW3 to ground his finding that the appellant and the 2nd respondent jointly organized the concert and this occassioned a miscarriage of justice.
GROUND FIVE MISDIRECTION
The learned trial judge misdirected himself when he relied on the fact that the
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evidence of PW3 was not challenged in cross examination to believe and rely on same when the said evidence was not pleaded.
GROUND SIX MISDIRECTION
The learned trial Judge misdirected himself when he asserted that the evidence of DW1 in Court was a bare assertion that was not supported by any piece of evidence and this occasioned a miscarriage of justice.
GROUND SEVEN MISDIRECTION
The learned trial judge erred in law when he awarded the 1st respondent the sum of #3,000,000.00 as general damages for losses suffered by the 1st respondent as a result of the appellant?s and 2nd respondent?s acts.
GROUND EIGHT MISDIRECTION
The learned trial judge erred in law when he awarded the 1st respondent the sum of #239.718.50 as special damages when the said award was not supported by the evidence led at the trial.
GROUND NINE MISDIRECTION
The judgment is against the weight of evidence?.
?
The appellant?s brief was filed on 24/7/2014 and deemed filed on 30/1/18. The 1st respondent?s brief was filed on 20/11/17 and deemed filed on 30/1/18. The 2nd respondent did not file any brief and was not represented
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by counsel in spite of service of Court processes including hearing notices on it. The appellant and 1st respondent?s counsel adopted their respective brief of argument on 30/1/18.
The appellant raised the following issues for determination:
1. ?Whether the learned trial judge was right when he held that the 1st and 2nd defendants were jointly and severally liable for the injury sustained by the 1st respondent.
2. Whether the learned trial judge was right when he awarded the sum of #3,000,000.00 (Three Million Naira) as general damages against the appellant.?
The 1st respondent adopted the issues raised by the appellant?s counsel. I find the issues to be adequate for the determination of this appeal. Before I go into the issues, I need to state that a comparison of the issues formulated for determination with the grounds of appeal shows that no issue was formulated in respect of ground 1 of the appeal. The law is settled that where no issue is formulated in respect of a ground of appeal, that ground of appeal is deemed abandoned. See AGBAKOBA V. INEC (2008) LPELR ? 232 (SC), (2008) 18 NWLR (PT. 1119) 489. Ground
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1 of the appeal in respect of which no issue is formulated is hereby deemed abandoned.
On issue 1 which is whether the learned trial judge was right when he held that the 1st and 2nd defendants are jointly and severally liable for the injury sustained by the 1st respondent, the appellant?s counsel referred to the pleadings of the appellant and the respondents and the evidence of PW7. He submitted that the 1st respondent did not traverse paragraphs 4 ? 7 of the appellant?s statement of defence where it was pleaded that the 2nd respondent was hired as an independent contractor to organize the event and paragraph 7 of the 2nd respondent?s statement of defence admitted paragraph 5 of the amended statement of claim where it was pleaded that the 1st respondent went to the stadium to attend the concert sponsored by the 2nd respondent and the appellant. He argued that despite the rules of pleadings that a fact admitted needs no further proof and failure of the 1st respondent to traverse material facts, the Court below wrongly relied on the cases of IBRAHIM V. IBRAHIM (2007) 1 NWLR (PT. 1015) 383 AT 402, UJAM V. IMT (2007) 2 NWLR (PT. 1019)
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497 to hold that the admission of paragraph 7 of the 2nd respondent?s statement of defence is immaterial since the 2nd respondent did not lead any evidence in support of its pleading. He submitted that parties are not bound to give evidence on a fact that is admitted and in this case the appellant is entitled to rely on the evidence of PW1 under cross-examination that the appellant retained the 2nd respondent to organize the concert which supports paragraphs 4, 5 and 6 of its statement of defence. Counsel further submitted that reliance on the evidence of PW3 that she consulted a doctor in the medical team of the appellant and both of them agreed that the 1st respondent should be referred to the eye hospital is fatal to the finding of the Court that one of the security agents engaged by the appellant inflicted the injury on the left eye of the 1st respondent because the evidence is hearsay and it was not pleaded. He referred to SOGUNRO V. YEKU (2017) 9 NWLR (PT. 1570) 290 AT 310. OPARA V. A. G. (FED.) (2017) 9 NWLR (PT. 1569). OKORO V. THE STATE (1998) 14 NWLR (PT. 584) 181.
In response to the above submissions, the 1st respondent?s
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counsel submitted that the 2nd respondent?s pleading in paragraph 7 of its statement of defence which the appellant submitted is an admission capable of being utilized against the 1st respondent was not made by the consent of the 1st respondent nor was it made in a representative capacity where the 1st respondent is among the category of people represented. He further submitted that the 1st respondent did not authorize the 2nd respondent to make any admission and to hold that the so called admission is capable of being used against the person who did not make it would be inconsistent with the provisions of Section 21 of the Evidence Act. He also submitted that the evidence of the 1st respondent that he was not aware that 1st defendant is not an employee of the appellant or that it was engaged by the appellant as a professional events manager cannot be construed as an admission.
?
On the evidence of PW3, counsel submitted that a party is obliged to plead facts and not evidence. He referred to SALISU V. MOBOLAJI (2016) 15 NWLR (PT. 1535) 242. He further submitted that the evidence of PW3 falsified the evidence of DW1 that there was no direct or indirect
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involvement of the appellant in the organisation of the concert and the Court was correct in relying on it and rejecting the evidence of DW1 who mainly testified that he did not know and did not remember whether the agreement between the appellant and 2nd respondent was oral or in writing under the watchful eyes of the Court which made it not difficult for the Court to come to the conclusion that DW1 was evasive in his testimony. On failure to traverse the appellant?s statement of defence, counsel submitted that there was no need for the 1st respondent to file further pleadings because the appellant did not file a counterclaim. He referred to Order 9 Rules (8) and (9) of the High Court (Civil procedure) Rules of Enugu State, 1988. He further submitted that issues are joined at the close of pleadings and the issue joined in this case is whether the 2nd respondent was engaged as an independent contractor and the appellant is not responsible for the injury inflicted on the 1st respondent which the appellant failed to establish.
On failure to lead evidence in support of pleadings, counsel referred to OMISORE V. AREGBESOLA (PT. 1482) 2015.
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He submitted that the Court below did not misapply facts and the law and the case of IBRAHIM V. IBRAHIM (SUPRA) and UJAM V. IMT (2007) 2 NWLR (PT. 1019) 470. He finally submitted that the Court below was right when it held that the appellant and the 2nd respondent are jointly and severally liable for the injury sustained by the 1st respondent.
RESOLUTION:
The law is settled that the essence of pleadings is to ascertain with precision and certainty the various issues in dispute between parties.
It is also settled that in order to get gist of the case being put forward by a party, the entire pleadings of the party must be read together because civil cases are determined on the basis of issues joined by the parties. Issues are said to be joined when parties have answered one another?s pleadings in such a manner that they have disagreed on a material point which point or issue calls for the determination or resolution of the Court. See ABDUL V. GARBA & ORS. (2010) LPELR ? 9132 (CA) AT 40 (C ? F). IKONNE V. EZIEME (2010) LPELR ? 4224 (CA) AT 24 (A ? D) KABIAWU & ORS V. THOMPSON & ORS (2014) LPELR ? 23258 (CA).
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In the instant case, the 1st respondent pleaded in paragraphs 5, 6 and 7 of his amended statement of claim that he went to Enugu Stadium to attend the musical concert organised by the appellant and 2nd respondent with a view to contact Awilo Longomba who performed at the concert. He was injured by one of the security personnel employed by the appellant and 2nd respondent. The appellant in its statement of defence pleaded that 2nd respondent was engaged as an independent contractor and it singularly exercised control in all the spheres of the organisation and presentation of the concert and the appellant did not employ any security personnel or officer in whatsoever capacity during the presentation of the concert. The 1st respondent filed an amended, statement of claim on 21/1/2003. That was the last pleading between the appellant and the 1st respondent, therefore issues were joined when the 1st respondent pleaded that the security personnel who hit and injured his eye with horsewhip was employed by the appellant and the appellant denied the pleading and pleaded that it had nothing to do with the employment of the security personnel because the 2nd respondent was
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engaged as an independent contractor to organise the show. Once, issue was joined as to whether the security personnel were employed by the appellant and 2nd respondent or whether the 2nd respondent was an independent contractor, there was no need for the 1st respondent to file a reply to the appellant?s statement of defence. The law is settled that once issues are joined, it is not necessary to file a reply if its purpose is merely to deny the allegations made in the statement of defence. Where no reply is filed to statement of defence, all material facts alleged in the statement of defence are put in issue. See OSHODI & ORS V. EYIFUNMI & ANOR. (2000) 13 NWLR (PT. 684) 298 AT 326 ? 327 (G ? C). UNITY BANK PLC. V. BOUARI (2008) 7 NWLR (PT. 1086) 372, (2008) LPELR ? 3411 (SC). OBOT V. CBN (1993) LPELR ? 2192 (SC). (1993) NWLR (PT. 310) 140. In EGESIMBA V. ONUZURUIKE (2002) LPELR ? 1043 (SC) (2002) 15 NWLR (PT. 791) 466 AT 519 (A ? E), where the Supreme Court stated the rules governing filing a reply to a statement of defence as follows: –
(a) ?In general, it is not necessary for a plaintiff to file a
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reply if his only intention in doing so is to deny any allegations that the defendant may have made in the statement of defence.
(b) A reply to merely join issues is not permissible. If no reply is filed, all material facts alleged in the statement of defence are put in issue.
(c) The proper function of a reply is to raise, in answer to the defence, any matter which must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raises issues of fact not arising out of the defence. Also a reply is the proper place for meeting the defence by confession and avoidance.
(d) In order to allow a party to file a reply the trial Court must be satisfied that both the statement of claim and the statement of defence filed by the parties have not, when read together, sufficiently disclosed and fixed the real issues between the parties and that further pleadings in the reply to be filed will achieve the purpose of bringing the parties to an issue.
(e) The purpose of filing a reply is to join issue on the allegations made in the statement of defence. Issues are deemed to have been
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joined respect of allegations made in the statement of defence even where no reply is filed.?
The submission of the appellant?s counsel that its pleadings are deemed admitted for failure of 1st respondent to file a reply thereto is wrong in law.
The 2nd respondent filed a statement of defence but did not call evidence in support of the pleadings. 2nd respondent?s counsel never cross-examined the 1st respondent or any of his witnesses. The law is trite that where no evidence is called in support of averments in pleadings, the pleadings are deemed abandoned. See CBN & ORS. V. OKOJIE (2015) LPELR -24740 (SC). I agree with the Court below that the 2nd respondent having failed to cross-examine any of the witnesses called by the appellant and 1st respondent and to adduce evidence in support of the averments in its statement of defence, the statement of defence is deemed abandoned and could not have been considered by the Court below. I disagree with the submission of the appellant?s counsel that the averment in paragraph 7 of the 2nd respondent?s statement of defence constitutes an admission of paragraph
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5 of the 1st respondent?s amended statement of claim and paragraphs 5, 6 and 7 of the appellant?s statement of defence. Those pleadings are reproduced below:
paragraph 5 of the 1st respondent?s amended statement of claim:
5. The plaintiff further avers that on 29th October, 2000 he went to the Enugu Stadium, paid his gate fees to attend the musical concert featuring Awillo Logomba- a concert sponsored by the 1st and 2nd defendants? companies with a view to discussing with the said Awillo Logomba to perform at the festival. Plaintiff attended the concert on the invitation of Abia State Ministry of Tourism. Plaintiff will rely on letter dated the 27th October, 2000.
?Paragraphs 5, 6 and 7 of the appellant?s statement of defence:
5. ?The 2nd Defendant further avers that it was not in any way either directly or indirectly involved in the organization, planning, control, supervision and management of the said show as it did not exercise any form of control over the 1st Defendant in putting together/ organization of the show. The 1st Defendant as an independent professional outfit solely and singularly exercised control in
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all spheres of the organization and presentation of the said show.
6. The 2ND Defendant states that since it did not take part in the organization and or presentation of the said show, it did not employ any security personnel or officer in whatever capacity during the presentation of the show at Enugu or in any other region.
7. The 2ND Defendant shall contend at the trial of this case that it was not an organizer of the said show, it owed the plaintiff no duty of care in whatever capacity.?
Paragraph 7 of the 2nd respondent?s statement of defence:
7. ?The 1st defendant was the Event Manager contracted by the 2nd defendant for the re-launch of its ?Star? brand and its commemorative concert tagged Mega Jam. This event was held at several different venues, one of which was at Enugu, Enugu State.”?
First, the averment in paragraph 7 of the 2nd respondent?s statement of defence was abandoned. Secondly, even if it constitutes an admission, it is an admission that the concert was sponsored by the appellant and 2nd respondent. Thirdly, there is nothing in the abandoned statement of defence from
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which it can be safely and categorically concluded that the 2nd respondent admitted the appellant?s assertion that it was employed as an independent contractor. For an averment in the pleadings to constitute admission, it must be express, clear, equivocal and unambiguous. In determining whether or not a party made an admission on pleadings, the Court must read the entire pleadings of the party together. A paragraph of the pleading cannot be read in isolation as the appellant has done in the instant case. If paragraph 3 and other paragraphs of the 2nd respondent?s statement of defence are read together, a contention that the 2nd respondent admitted that it was engaged as an independent contractor is totally wrong and has no leg to stand. On the failure of the 2nd respondent to call evidence in support of its pleadings, the Court below held as follows at page 125 of the record of appeal:
“The pleading of 1st defendant in the statement of defence at paragraph 7 that she was the event manager contracted by the 2nd defendant for the Re ? launch of its star brand was not supported by any evidence as it abandoned the case
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and its pleadings. Pleadings are not evidence. See Ibrahim Vs Ibrahim (supra) where it was held that averments in pleadings as in petitions are no evidence and cannot be so construed. In ACB Plc Vs. Nnanna Trading Stores (Nig) Ltd. (supra) Adekeye JCA opined that ?parties must give evidence in support of their pleadings.
The evidence of the plaintiff as against the 1st defendant remained unchallenged and uncontroverted as the 1st defendant abandoned the case and refused to give evidence in support of its pleadings.”
The holding of the Court is unassailable as it represents the law.
On the crucial issue of whether the appellant and 2nd respondent are jointly and severally liable for the injury inflicted on the 1st respondent, the Court relied on the evidence of the 1st respondent (PW1) and PW3, the nurse who attended to the 1st respondent at the stadium clinic. The Court rejected the evidence of DW1. The appellant?s counsel vehemently attacked the reliance on the evidence of PW3. He also submitted that the 1st respondent testified that he knew that the 2nd respondent was hired as the organizer of the concert.
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First, the admission by the 1st respondent that the 2nd respondent was hired to organise an event in no way constitutes an admission that the 2nd respondent was an independent contractor and that the appellant had nothing to do with the hiring of the security men for the concert. An independent contractor is a person who contracts with another to do something but who is not controlled by the employer in the manner of performance of the contract. In ADEWUNMI V. PLASTEX (NIG.) (1986) LPELR ? 164 (SC), (1986) 3 NWLR (PT. 32) 767 AT 790 (D ? F), the Supreme Court stated that:
?The test distinguishing an independent contractor from a servant or agent is the degree of control which the employer is entitled to exercise. An independent contractor is one who is not bound generally to obey such orders as his employer may from time to time give, but is free to act as he thinks fit within the terms of his contract. In PERFORMING RIGHT SOCIETY LTD. V. MITCHELL & BOOKER PALAIS DE DANSE LTD. (1924) I K. B. 702 AT PP. 765, MCCARDIE J, referring to POLLOCK ON TORTS 12TH ED. PP. 79, 80 expressed it graphically and clearly when he said,
?A servant is a person subject to the command
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of his master as to the manner in which he shall do his work… An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand.?
Secondly, the law is settled that he who asserts must prove. The appellant did not deny the fact that it was his concert and that security personnel were hired to provide security at the venue of the concert. The appellant did not state that the contract between it and the 2nd respondent does not cover provision of security at the venue of the concert. Even if the 2nd respondent was an independent contractor, so long as it was not prohibited from hiring security men for the concert and so long as it acted within the contract, the appellant as the employer and the 2nd respondent are equally liable for the injury inflicted on the 1st respondent. See S. P. D. C (NIG.) LTD. V. OKOGBO & ORS. (2011) LPELR 4951 (CA). ISC SERVICE LTD V. G.C. LTD (2006) LPELR ? 7662 (CA), (2006) 6 NWLR (PT. 977) 481.
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In law, the liability of an employer is not automatically obliterated because he employed an independent contractor to perform the act which gave rise to a tortuous act. In IYERE V. BENDEL FEED & FLOUR MILL LTD. (2008) 18 NWLR (PT. 1119) 300 AT 329 (E-H) the Supreme Court stated that:
?In case of a tortfeasor, each of two or more joint tortfeasors is liable for the entire damage resulting from the tort. See DE BODREUGAM V. ARCEDEKERE (1302) 70 30 EDW 1 (ROLL SERIES) 106. The following for instance, are joint tortfeasors:
(a) Employer and employee where the employer is vicariously liable for the tort of the employee.
(b) Principal and agent where the principal is liable for the tort of the agent.
(c) Employer and independent contractor where the employer is liable for the tort of his independent contractor.
(d) A person who instigates another to commit a tort and the person who then commits the tort.
(e) Persons who take concerted action to a common end and in the course of executing that joint purpose commit a tort.
The present appeal falls within the first category of joint tortfeasor, i.e employer and employee.?
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See JAMES V. MID ? MOTORS (NIG.) CO ? LTD. (1978) LPELR ? 1593, (1978) 11 ? 12 SC P. 25. VULCAN GASES LTD. V. GESELLCHAFT FUR IND. GAS VERWERTUNG A. G. (2001) LPELR ? 3465 (SC), (2001) 9 NWLR (PT. 719) 610.
The Court will examine the express language used in the contract document as evidence in determining whether an independent contractor relationship exists. The nature of the relationship between an employer and a contractor does not depend only on the terminology the parties choose to use in describing their relationship but on the true nature of the agreement and the exact circumstances of the relationship which can only be disclosed by the express language used in the contract document. See NIGER PROGRESS LTD. V. NORTH EAST LINE CORPORATION (1989) LPELR ? 1996 (SC), (1989) 3 NWLR (PT. 107) 68. The appellant through DW1 sought to prove that the 2nd respondent was an independent contractor. No document was tendered to disclose the language, the nature and the terms of the contract between the appellant and the 2nd respondent. DW1 said the 2nd respondent was an independent
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contractor and there was no involvement of the appellant in the organization of the event. However, under cross-examination, he could not remember anything about the contract between the appellant and the 2nd respondent. He could not remember how much the 2nd respondent was paid for the event. He did not know whether the contract was oral or in writing. He could not remember the details of the agreement with the 2nd respondent. The Court below considered and evaluated the evidence of both parties and held as follows at page 125 of the record of appeal:
?The attempt by D.W.1- Witness of the 2nd defendant to impress it upon the Court that the 1st defendant was an independent contractor engaged by the 2nd defendant is not supportable as there is nothing placed before the Court in support of that piece of evidence except his bare assertion. Even at that he did not know whether the agreement was oral or in writing. The evidence of D.W.1 is evasive and I do not believe him.”?
I agree with the Court below that the testimony of DW1 is of no value or assistance to the case of the appellant. There was no scintilla of cogent and credible evidence from the
26
appellant to support its assertion that the 2nd respondent was an independent contractor. The Court was on a very firm ground when it found that the evidence of the 1st respondent was unchallenged and in accepting and acting on it. The law is settled that when the trial Court has properly performed its primary duty of evaluating the evidence led, ascribed proper probative value to same and made correct findings supported by credible evidence, the appellate Court has no business interfering with the finding(s). That finding cannot be faulted. Apart from the fact that the evidence of the 1st respondent remains unchallenged, the Court also considered the evidence of PW3 and held that:
?The evidence of P.W.3 that the 2nd defendant had a medical team headed by a Doctor at the venue of the concert that night also goes to confirm that the 1st and 2nd defendants jointly organized the concert.
Following from the above, my answer to issue No. 1 as formulated by the Court is in the affirmative. That is to say the defendants (1st and 2nd defendants) are jointly and severally liable for the damages sustained by the plaintiff on the 29th October, 2000.? ?
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The appellant?s counsel contended that the evidence of PW3 is hearsay. It is settled law that hearsay evidence is inadmissible to prove the truth of what is contained in the statement of a person who is not called as a witness. Section 37 of the Evidence Act, 2011 defines Hearsay as follows:
?Hearsay means a statement-
(a) oral or written made otherwise than by a witness in a proceeding; or
(b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.?
In the instant case, PW3 was not relating what she was told by anyone to the Court. Her evidence was about what she did when the 1st respondent was taken to the clinic where she was a nurse and what she observed. Evidence of a personal action taken by a witness or what the witness personally observed is not hearsay. Her evidence was clear and cogent. The appellant had its medical team in the stadium that day. She consulted the doctor in the medical team of the appellant and they both
28
decided to refer the 1st respondent to another hospital. That evidence in no way qualifies as hearsay. The evidence was not discredited under cross-examination. The Court below rightly believed and accepted it.
The appellant?s counsel also strongly contended that the evidence was not pleaded. The law is settled that only the summary of the material facts are to be pleaded and not evidence by which those facts are to be proved except in cases of fraud, statutory exception, defence of laches and acquiescence and res ipsa liqitor which are special defence or matters that must be pleaded. See A. G. ANAMBRA V. ONUSELOGU (1987) LPELR ? 614 (SC), (1987) NWLR (PT. 66) 547, MOROHUNFOLA V. KWARA TECH. (1990) NWLR (PT. 145) 506.
The presence of the appellant?s medical team at the concert is evidence of their involvement in the organization of the concert. I cannot find any error in the finding of the Court below that the appellant and 2nd respondent are jointly and severally liable for the injury inflicted on the 1st respondent. issue 1 is resolved against appellant.
?
On issue 2 which is whether the learned trial judge was right
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when he awarded the sum of N3,000.000.00 (Three Million Naira) as general damages against the appellant, counsel submitted that the Court below did not apply the principle in JOSEPH V. ABUBAKAR (2002) 5 NWLR (PT. 759) 186 where it was held that where a party has recovered all the damages he is entitled to by way of special damages, the Court cannot award general damages. He further submitted that the Court having awarded a sum of #278,718.50 as special damages for medical expenses, loss of earning and travel expenses and upkeep for checkups, the Court should not have awarded the sum of #3,000,000.00 as general damages.
?
In response to the submission of the appellant?s counsel, 1st respondent?s counsel argued that since this is an action in tort, both special and general damages can be awarded. He referred to ELIOCHIN (NIG.) LTD V. MBADIWE (1986) 1 NWLR (PT. 14) 47 AT 64, OBANOR V. OBANOR (1978) 10 NSCC 69 AT 72. CALABAR EAST CO-OPERATIVE THRIFT (1999) 14 NWLR (PT. 638) 225. On what is double compensation, counsel referred to BRITISH AIRWAYS V. ATOYEBI (2014) 13 NWLR (PT. 1424) 253 AT 289. He submitted that all the criteria for award of general damages
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are present in this case as the 1st respondent was fatally wounded by a security man at the venue of the concert.
RESOLUTION:
The 1st respondent?s claim is for an injury sustained at a concert. The law places a duty of care on the organizers of the concert to make the event safe for those that attend the concert. In other words, the appellant and the 1st respondent as the organizers of the concert had a responsibility to avoid foreseeable harm that could come to those who attended the concert. In Black?s Law Dictionary 18th Edition page 676, the principle of forseeability is explained as:
?the quality of being reasonably anticipatable. Foreseeability, along with actual causation, is an element of proximate cause in tort law?
?The principle of foreseeability is an important factor taken into consideration when determining whether or not a concert goer is entitled to compensation for the injury suffered at the concert and who should be responsible for the compensation. The principle of foreseeability rests on whether someone, either the performer or the venue owner or the organizers of the concert should have reasonably
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foreseen or anticipated the danger or the consequences of the action that caused the incident that resulted in the injury. In the instant case, the risk of harm was clearly foreseeable hence the engagement of security personnel to provide security at the venue of the concert. The appellant and the 2nd respondent had a legal duty to ensure that the security personnel engaged by them treat the crowd with civility and respect. In the instant case, the evidence of the 1st respondent that it was one of the security personnel at the concert that hit him with a horsewhip and injured his eye remains unchallenged. His evidence that the security personnel were busy with drinking lots and lots of Star Beer provided by the appellant and the 2nd respondent and thereafter engaged in flogging people without any caution and in the process injured many people was also not challenged. The appellant ought not to allow the security personnel to drink alcohol at the venue of the concert. They ought to have foreseen the consequences of their decision to provide alcohol to the security men and allowing them to drink same at the venue of the concert. The result was the
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use of the horsewhip on the 1st respondent without caution.
The fact that the 1st responden suffered serious injury to his left eye and experienced serious pain and suffering was clearly established. The law is settled that once a plaintiff has successfully established the fact that he suffered personal injury resulting in pains and suffering as a result of the breach of duty of care owed him by the defence, in this case the concert organizers, he is entitled to compensation for the present and future medical bills, loss of earning, pain and suffering. See IGHRERINIOVO V. S. C. C NIGERIA LTD & ORS.(2013) LPELR ? 20336 (SC), (2013) 10 NWLR (PT. 1361) 138, IYERE V. BENDEL FEED AND FLOUR MILL LTD. (2008) NWLR (PT. 1119) 300.
Considering the profession of the 1st respondent, his status, the pain and suffering he has had to endure and the effect on his profession, the Court below was correct in awarding the amount of #3,000,000.00 damages claimed by the 1st respondent for physical and mental pains caused him by the injury to his eye. The Supreme Court in CSC CONSTRUCTION CO. LTD & ANOR. V. OKHAI (2003) LPELR ? 821 (SC), (2003) 18 NWLR (PT.
33
851) 79 AT 105 ? 106 (E ? B), emphasised that pain and suffering and psychological trauma occasioned by permanent physical injury cannot actually be adequately compensated for. Here is what the Court said:
?In the American case of WARFIELD NATURAL GAS CO. V. WRIGHT 54 SW 2ND it was held that where pain is claimed as an element of damages the impossibility of definitely measuring the damages by a money standard is no ground for denying pecuniary relief. In response to the argument of the appellants, the respondent cited the case of STRABAG CONSTRUCTION (NIG) LTD. V. OGAREKPE (1991) 1 NWLR (PT. 170) 733. In that case Uwaifo JCA (as he was then) referred to the observation of SELLERS, L.J. IN WISE V. KAYE (1962) 1 ALL ER 257, and which states thus;
?It has always been accepted that physical injury and the personal experience of pain, and also of suffering, including worry and anxiety for the future and apprehension of an operation, or of nursing or deprivation of activity owing to disablement or embarrassment of limitation felt by reason of disfigurement, cannot in any true sense be measured in money… Damages for such
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injuries, originally almost invariably assessed by juries, were said to be ?at large and had to be assessed on a reasonable and fair basis between party and party. There can be no restitution for the loss of a limb or loss of faculty but the law requires adequate compensation to be assessed.?
At page 111 (D ? F) of the same report, the Court stated thus:
?Once a plaintiff has successfully shown that he suffered personal injury as a result of a breach of duty owed him by the defendant, the claim for pain and suffering must be considered. No principle can be laid down upon which damages for pain and suffering can be awarded in terms of the quantum. There is, however, no doubt that pain and suffering is a recognized head of award that sounds in general damages. The Court must consider what the compensation should be going by the evidence that give an insight into the intensity of the pain and suffering. The award is usually generous although should not be excessively high or usually low. It must be such as reasonably tends to reflect the intensity of the pain and suffering.?
?I do not see anything generous in the award
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of #3.000.000.00 (Three Million Naira) for the pain, suffering and psychological trauma that the respondent will continue to experience for the remainder of his life as a result of the loss of one of his eyes. However, since that is all he asked for and the Court cannot award more than he has asked for, so be it.
Before I rest my pen, I must state my total dismay and dissatisfaction with the way this case was handled by all the Legal Practitioners involved in the case and the Court below. The Court and counsel for all parties in a case have a solemn duty not only to ensure that justice is done but to ensure that it is done within a reasonable time. Justice delayed is justice denied. This case was commenced by a writ of summons filed on 26/3/2001 that is 17 (Seventeen years) ago. In between the commencement of the suit and delivery of judgment by the Court below, there were a period of 11 (eleven) years. The notice of appeal was filed on 22/11/2012 but the record of appeal was only transmitted to this Court on 1/11/16. Both the counsel and the Court below woefully failed in the discharge of their duty to ensure that the appellant gets the justice he so
36
much deserved within a reasonable time. The record of appeal clearly shows that both counsel and the Court below are responsible for the delay. This kind of attitude is no longer tolerable. It is totally condemned.
In conclusion, this appeal is dismissed for lacking in merit. There shall be #100,000.00 costs in favour of the 1st respondent only.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother MISITURA OMODERE BOLAJI-YUSUFF JCA. I completely agree with the reasoning and conclusion that the appeal has no merit and should be dismissed. I will add a few words on sundry issues thrown up in this appeal. I have to say that the liability of an employer is not reduced where he employed an independent contractor to perform an act and the action of any of the persons employed by the said independent contractor gave rise to a tortuous action. The remedy in tort will lie against both the principal and the agent individually and collectively.
I have taken into consideration the judgment of Galinje JCA (as he then was) in ISC Services Ltd. v G.C Ltd. (2006) 6 NWLR (Pt.977) pg.481,
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where his Lordship held as follows:
In tortuous act however, an agent who is an independent contractor can be sued without his principal. This is so because even though the agent is employed, his employer does not control his method of work. There are however some exceptions to this rule and those are:
(a) Where the employer authorized the tortuous act;
(b)Where the master or principal authorized acts which are intrinsically dangerous or statutory breach of duty, then the agent and the principal will be liable to be sued jointly.
I have also read the learned opinion Of Aniagolu JSC in JAMES v. MID- MOTORS NIG. CO. LTD. (1978) 11-12 S.C. (REPRINT) 25, where his Lordship held as follows:
The general law has been stated that a corporation aggregate is liable to be sued for any tort provided that:
(1) it is a tort in respect of which an action will be brought against a private individual
(2) the person by whom the tort is actually committed is acting within the scope of his authority and in the course of his employment as agent of the corporation; and
?(3) the act complained of is not one which the corporation would not, in
38
any circumstances, be authorized by its constitution to commit unless perhaps the corporation has expressed authorized the act. (See Volume 9, Halsbury’s Laws of England, 4th edition paragraph 1374).
Among the acts for which a corporation can be held liable in tort is fraud. Not being a human person the corporation or company, of necessity, acts through human beings who are its agents or servants and the corporation or company, like every master, is liable for the fraud committed by its servant or agent in the course of its service Dealing with the relationship between tort and agency – a relationship which in law has been clearly recognized – Stoljar in his book THE LAW OF AGENCY makes these observations:
“In the second place, P is also liable where A commits not a physical but an economic wrong, the main instance of this being where A perpetrates a fraud upon P’s client or customer. In this situation, it certainly is true to say that A acts as an agent as distinct from a servant, the reason for this distinction being simply this: that A would have no opportunity of committing the fraud, unless he is in a position of agent and thus able to deal
39
contractually with the third party. Further, where A so acts as agent, P becomes liable to T not only where A is a servant, but also where he is an independent contractor; for in the law of agency P’s liability does not depend on A’s precise employee-status, since P can be liable whether A is employed or “Self-employed” provided he is an agent.
One has to concede that it is difficult to find actual modern instances of a fraud by an independent contractor. Yet, as will be remembered as early as Hern v. Nichols (1701) Holt KB 462 there is mention of P’s liability for the deceit of his factor, the latter being of course an independent middleman rather than a servant. It follows that P’s liability for A’s fraud operates very differently, regarding occasion and extent, from the vicarious liability that applies to master and servant. This difference has been much overlooked; which has not only led to misleading questions but has also led to an over- simplification of the tort-agency relationship: so when it is stated that a principal is liable for his agent’s torts, this is true of a tort such as fraud, but not true of trespass or negligence i.e. wrongs relating to physical “service, not of contractual agency.
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Stoljar, The Law of Agency, 1961 Edition pp. 8-9?
My Lord Aniagolu further stated:
A good exposition of the general principle is to be found in the judgment of the House of Lords in Houldsworth v. City of Glasgow Bank (1874-1880) All ELR (Reprint) p. 333: (1880) 5 APP. cas. 317. Lord Selborne put the matter clearly in his own speech at p. 339 Of the Reprint in which he said:
“The principle on which Barwick v. English Joint Stock Bank, Mackay v. Commercial Bank of New Brunswick, and Swire v. Francis, relied upon by the appellant, were decided was thus stated by Willes, J. in the first of those cases and repeated (from his judgment) by the Judicial Committee in the two latter (LR 2 Exch. at pp. 265, 266); ?The master is answerable for every such wrong of the servant or agent as is committed in the course of the service, and for the master’s benefit, (because, although the master may not have authorized the particular act), he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which that agent has conducted himself in doing the
41
business which it was the act of his master to place him in.”
My Lord Aniagolu JSC went further to state the following:
To the principle so stated no exception can, in my opinion, be taken, though the manner in which the master is to be answerable, and the nature and extent of the remedies against him, may vary according to the nature and circumstances of particular cases. That principle received full recognition from this House in National Exchange Co. v. Drew and New Brunswick and Canada Rail and Land Co. v. Conybeare, was certainly not meant to be called in question by any one of the learned Lords who decided in Western Bank of Scotland v. Addie. It is a principle, not of the law of torts, or of fraud or deceit, but of the law of agency equally applicable whether the agency is for a corporation (in a matter within the scope of the corporate powers) or for an individual; and the decisions in all these cases proceeded, not on the ground of any imputation of vicarious fraud to the principal, but because (as it was well put by Willes, J., in Barwick’s case; ‘With respect to the question whether a principal is answerable for the act of his agent in
42
the course of his master’s business, no sensible distinction can be drawn between the case of fraud and the case of any other wrong.”
In the case of James v. Mid- Motors (supra), Aniagolu JSC had no hesitation in holding against the finding of the trial judge that though the independent contractor acted outside the objects of the company, in so far as he was acting in the course of his employment in respect of his master’s business, the master will be liable even where the act is specifically prohibited by the principal corporation. His Lordship cited Limpus v. London General Omnibus Co. Ltd (1861-1873) All ER Reprint 556.
For the purpose of this appeal, it is important to note the words: “in the course of the masters business” as it relates to the tort committed by the Appellant in this case. I would say that the precedents in Nigeria do not make a distinction between fraud by the agent and any other tort such as assault and battery.
The evidence led by the Appellant at the trial was totally colourless. There was no actual evidence led from which a finding as to the exact status of the 2nd Respondent vis-a-vis the Appellant could be made. In
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short, no proof that they were not agents but were independent contractors.
I agree with my learned brother that indeed the organizers of the concert owed a duty of care and responsibility to avoid foreseeable harm to the participants and spectators at the event. The organizers had a foreseeable duty to ensure that the security agency provided by the organizers would treat people with civility and respect. If the organizers’ principal of whom was the Appellant engaged irresponsible security men who drank a lot of beer and injured several people they were supposed to protect in a drunken orgy, the Appellant must be held accountable for not exercising the duty of care in engaging an independent contractor or agent who would have done the proper thing.
The extensive injury done to the eye of the 1st Respondent by the security men and his pain and suffering which it entailed was not challenged by the Appellant. The 1st Respondent was entitled to be compensated in damages.
The amount awarded by the learned trial judge was in my view on the low side, but it is hereby affirmed.
?
The law relating to the entertainment industry in Nigeria is
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still in its infancy. Decision and law all over the world has clearly delineated the rights of the public, organisers of the event, occupier of the premises etc., in respect of tortious liability. We wait for an opportunity in that regard.
I am constrained in joining my learned brother in expressing my dismay at the way in which this case was handled at the trial Court by the Court itself and by the counsel on both sides who all appeared to me were engaged in an unspoken conspiracy to frustrate the 1st Respondent. I also looked at the record of proceedings. The case was started by Justice K.N. Udeh on 30/10/2000. It was not concluded and judgment which reserved several times over a year or more was not delivered by His Lordship until 30/10/12 exactly 12 years after the writ was issued. Mind you, there was no interlocutory appeal in the interval to excuse the delay. It’s a shame. It is this type of method of dispensing slow excruciating justice that gives the dispensation of justice in Nigerian Courts a bad name. This appeal is dismissed as it has absolutely no merit. The judgment of Hon. Justice K.N. Udeh delivered on 30/10/2012 in Suit No. E/2Z7/2C01 is
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hereby affirmed. I abide by the order as to costs in the lead judgment.
TOM SHAIBU YAKUBU, J.C.A.: I was opportuned to peruse the draft of the judgment rendered by my Lord, MISITURA OMODERE BOLAJI-YUSUFF, JCA. I am in complete agreement with the reasons adduced by his Lordship, which culminated in the dismissal of the appeal. I, too dismiss the appeal, for being devoid of merits. The judgment in re – Suit No E/227/2001 delivered on 30th October, 2012, is also affirmed by me.
I endorse the award of N100,000.00 costs in favour of the 1st respondent only against the appellant, contained in the lead judgment, as mine.
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Appearances:
N. N. EluwaFor Appellant(s)
Prof. Z. C. Anyogu with him, C. I. Achu for the 1st Respondent.
No appearance for the 2nd Respondent.For Respondent(s)
Appearances
N. N. EluwaFor Appellant
AND
Prof. Z. C. Anyogu with him, C. I. Achu for the 1st Respondent.
No appearance for the 2nd Respondent.For Respondent
