OKHIZUMATE & ANOR v. UKHABI & ORS
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Wednesday, May 05, 2021
Before Our Lordships:
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
1. CHIEF IRUMHE OKHIZUMATE 2. PRINCE MICHEAL IMACHEDE (For Themselves And On Behalf Of The Entire Members Of Okime Unit In Alookpe Family Imida Kindred Of Okpekpe) APPELANT(S)
1. MR. OYIME UKHABI 2. JIBRIL AFIMIA 3. MR. JAMES TAYE ISAH (For Themselves And On Behalf Of The Entire Members Of Agbagame Unit In Alookpe Family, Imida Kindred Of Okpekpe) RESPONDENT(S)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Edo State, holden at Agenebode (the trial Court) delivered on 28/3/2012 in suit No. HFU/5/2006 by E. F. IKPONMWEN, J. In the judgment, the trial Court found that the appellants (as plaintiffs) failed to prove their claim and so it declined to grant the declaratory reliefs sought by them. The trial Court also dismissed their relief for perpetual injunction. It then proceeded to find for the respondents (as defendants/counter-claimants) and held that the 1st defendant had been duly selected, initiated and installed as Ede of Okpekpe.
Aggrieved by the decision, the appellants appealed to this Court by the means of a Notice of Appeal filed on 16/4/2012 which incorporates nine (9) grounds of appeal.
The facts of the case leading to this appeal are as follows. The Chieftaincy title of Ede is exclusively reserved for the Imida Kindred of Okpekpe (Edo State). The Imida Kindred is made up of five families, to wit: Imiomobe (Omobe), Imiakharu (Akharu), Imioze (Oze), Imialokphe (Alokphe) and Imiegwi (Egwi). Succession to the title of Ede is on a rotational basis between Imioze and Imialokphe. These facts are common ground between the parties. The parties, however, part company as to the number of the units of Imialokphe family and which of the units is entitled to produce an Ede when it is the turn of Imialokphe to produce an Ede. The appellants’ case was that Alokphe, the eponymous founder of Imialokphe family, had two children, viz: Okime and Okpogho and that Ede title alternates between the two units. It was their position that the 1st defendant was of the Agbagamhe (or Agbagame) sub-unit of Okpogho unit and it is not the turn of that unit to produce the Ede; rather it is the turn of their Okime unit to do so.
The respondents’ case was that the Alokphe family is made up of four (4) units corresponding with the four children of its founder, namely; Okime, Okpogho, Agbagame and Alugbhe. It was also their case that upon the demise of the last Ede, Dr. S. T. Alokwe III, who was from Imioze family, it is now the turn of Alokphe family to produce the Ede and in particular, it is the turn of Agbegame (their unit) to produce the Ede.
In their amended statement of claim, the appellants claimed as follows:
i. A declaration that in accordance with the custom of Okpekpe Kingdom it is now the turn of Okime unit to produce the Ede of Imida in Okpekpe Kingdom.
ii. A declaration that in accordance with custom of Okpekpe Kingdom it is not the alternate turn of Okpogho unit or Agbagame sub-unit of Alookpe family to produce the Ede of Imida in Okpekpe Kingdom having produced the last Ede within Alookpe family.
iii. A declaration that the first defendant not being a member of Okime Unit of Alookpe family in Imida kindred is not qualified to fill the vacant position of the Ede of Imida kindred Okpekpe after the death of Dr. S. T. Alokwe III and therefore any purported installation of 1st defendant as Ede of Imida Kindred is null, void and of no effect.
iv. An order of perpetual injunction restraining the 1st Defendant from parading himself or allowing himself to be paraded as the Ede of Imida kindred in Okpekpe kingdom and/or perform any rites or exercise any right and/or duties attached to the holder of the Ede title in Imida kindred, Okpekpe.”
The respondents, on the other hand filed a further amended statement of defence and counter-claim denying the claim of the appellants and counter-claiming as follows:-
“1. A Declaration that in accordance with Okpekep (sic) custom, it is now the turn of Agbagame Unit of Imiolokphe Family of Imida kindred to produce the Ede of Okpekpe.
2. A Declaration that under Okpekpe custom, it is not the turn of Okime Unit or Okpogho Unit to produce the Ede of Okpekpe.
3. A Declaration that the 1st Defendant was properly initiated Ede of Okpekpe in April, 2001 and installed in April 2003 and is entitled to be so recognized.
4. An order setting aside/nullifying the purported installation of 1st Plaintiff as Ede of Imida kindred as same is contrary to Okpekpe custom.
5. An Order of perpetual injunction restraining the 1st Plaintiff, by himself servants or agents from parading himself or allowing himself to be paraded as Ede of Imida kindred or Ede of Okpekpe howsoever designated or performing any role, duties and customary functions of the Ede of Okpekpe.
6. An order of perpetual injunction restraining the Plaintiffs, their servants, agents and/or privies from harassing, disturbing, or obstructing the 1st Defendant in the performance of his role, duties and customary functions as the Ede of Okpekpe.
7. One million naira being general damages for the harassment and obstruction caused the 1st Defendant by the Plaintiffs in the discharge of his customary function as Ede of Okpekpe.”
The case proceeded to trial at which three witnesses testified for the appellants. The respondents testified through four witnesses and tendered 13 exhibits. After taking of addresses from counsel, the learned trial Judge, as I have already stated, found against the appellants refusing their claim. His lordship granted the counter-claim of the respondents.
Pursuant to the rules of this Court, the appellants filed an amended appellants’ brief of argument on 12/12/2018 which was deemed duly filed and served on 19/11/2018. The respondents filed an amended respondents’ brief of argument on 21/12/2018.
It needs to be mentioned that during the pendency of this appeal, the original 1st respondent (who was the 1st defendant) died and his name was struck out of the appeal.
At the hearing of the appeal on 15/2/2021, O. E. Musoe, Esq, adopted and relied on appellants’ brief of argument in urging the Court to allow the appeal.
A. O. Edeki, Esq. for respondent adopted and relied on respondents’ brief of argument in urging the Court to dismiss the appeal.
In the appellants’ brief of argument, the following issues have been formulated for the determination of the appeal:
1. Whether, in view of the pleadings and evidence, the lower Court was right to have held that the respondents’ counterclaim succeeds in its entirety?
2. Whether the learned trial Judge did not occasion a miscarriage of justice when he said that Mr. Paul Unogbua has been “duly installed as deputy Ede mistakenly in my view called Ede” thereby substituting his views for evidence on record.
3. Whether the lower Court was right to have awarded the sum of N250,000.00 as damages against the Appellants even though Respondents did not prove any damages.
4. Whether, the appellants did not prove their case on the balance of probability or preponderance of evidence, contrary to the findings of the lower Court.
The respondents in their brief of argument distilled the same issues as those formulated by the appellants. I do not need to re-state them again. I will adopt the said issues for the determination of the appeal. I intend to take issues 1, 2 and 4 together since they relate to assessment of evidence and ascription of probative value to them by the trial Court. Thereafter I will treat issue 3 separately.
ISSUE 1, 2 AND 4
– Whether, in view of the pleadings and evidence, the trial Court was right to have held that the respondents’ counter-claim succeeded in its entirety.
– Whether the learned trial Judge did not occasion a miscarriage of justice when he said that Mr. Paul Unogbua has been “duly installed as deputy Ede mistakenly in my view called Ede” thereby substituting his views for evidence on record.
– Whether the appellants did not prove their case on the balance of probability or preponderance of evidence contrary to the findings of the lower Court.
Appellants’ counsel submitted that it is settled law that a counter-claim is a separate and independent action which has to be proved like the main claim. He further submitted that the respondents had the burden of proving by credible evidence that it is now the turn of their Agbagame unit to produce the Ede title holder of Imida Kindred. He stated that the learned trial judge appeared to have taken the position that once the appellants’ case failed, the counter-claim automatically succeeded. He referred to pages 120 – 121 of the record of appeal and argued that the learned trial judge did not make even a perfunctory attempt to evaluate evidence led by the respondents in support of their counter-claim before arriving at the conclusion that the respondents had proved their counter-claim. He posited that it was inappropriate for the learned trial judge to proceed to give judgment in respondents’ favour without determining the question whether it was the turn of Agbagame unit to produce the Ede.
Counsel referred to the pleadings of the respondents and the evidence of Paul Unogbua (formerly 1st respondent). He submitted that if the case of the respondents is to be believed, namely; that the Ede title, when it is Alokphe’s turn to produce the holder, rotates among the four units of Alokphe, then it is Okpogho unit that is entitled this time to produce the title holder since it is the only unit that has not produced an Ede. He posited that the trial could not be right in holding that from Exhibit C, Okime unit and Okpogho unit have produced Ede twice while Agbagame unit has not produced an Ede.
He referred to the holding by the learned trial judge that, “I believe the evidence of the 1st defendant and his witnesses that he has been duly installed as deputy Ede, mistakenly in my view called Ede by some in evidence in the lifetime of the substantive Ede, though due to disputations, apparently, the ceremonies were not done till 2003”. He argued that by so holding, the trial judge substituted his views for the pleadings and evidence on record. He referred to paragraphs 11 and 12 of the counter-claim and the evidence of the original 1st respondent in cross-examination.
Counsel went on to contend that the trial Court erred in holding that the appellants failed in proving their claim. He further contended that contrary to the finding of that Court, there is nothing on Exhibit C which indicates the units of Alokphe family that had hitherto taken the Ede title. He noted that the trial Court blew hot and cold in relying on appellants’ chart to hold that Okime and Okpogho units had been Ede twice while Agbagame has not been Ede before, only to turn round to say that it did not accept the evidence of the appellants on the number of units in Alokphe family. He contended that appellants’ chart supported their case that there are two Ede – producing units in Alokphe family.
Counsel referred to Exhibit F1, a Customary Court summons, and posited that the trial Court was wrong in relying on it as it had been withdrawn at the Customary Court without evidence being led on it. He continued by stating that Exhibit A was unreliable as it excludes one family out of the five families of Imida. He finally urged the Court to hold that on a proper evaluation of evidence the appellants proved their case.
Respondents’ counsel acceded to the point that a counter-claim is a separate and independent action. However, he contended that the learned trial Judge did not take the position that once the claim of the appellants failed, the respondents’ counter-claim succeeded. Rather, he further contended, the learned trial Judge vigorously evaluated the evidence of the parties before it to his decision. He referred to Exhibit A (memorandum submitted by the parties’ community to the Moje Bare Commission of Inquiry in 1989). This, he stated, was contrary to the chart and oral testimony of the appellants and so destroyed the credibility of their witnesses. He also referred to Exhibit F1 (Customary Court Summons) wherein the appellants referred to the respondents as being of Agbagame unit contrary to their position in this matter that the respondents are of Okpogho unit. He posited that the learned trial Judge went into detailed evaluation of evidence, oral and documentary, proffered in respect of the claim and counter-claim. He set out the evaluation of evidence by the learned trial Judge and submitted that it was absurd for appellants to suggest that the learned trial Judge failed to consider the counter-claim.
Counsel argued that the original 1st respondent was initiated after the death of the immediate past Ede (Dr S. T. Alokwe) and not before his death as stated in paragraph 12 of the counter-claim.
Appellants contended that in deciding the counter-claim, the trial Court did not evaluate evidence led by the respondent to support their counter-claim in arriving at the conclusion that the counter-claim had been proved.
A counter- claim, as rightly argued by appellants’ counsel, is indeed a separate and independent action. It is an action by the defendant against the plaintiff and the counter-claimant is duty-bound to prove the same. The mere fact that the plaintiff’s claim has failed does not automatically mean that the counter-claim must succeed. See MUSA v. YUSUF (2006) 6 NWLR (PT. 977) 454, BELOXXI & CO. LTD v. SOUTH TRUST BANK (2013) ALL FWLR (PT. 661) 1617, LOKPOBIRI v. OGOLA (2016) 3 NWLR (PT. 1499) 328 and ATIBA IYALAMU SAVINGS AND LOANS LTD v. SUBERU (2018) 13 NWLR (PT. 1637) 387.
Appellants counsel referred to pages 119 — 120 of the record of appeal. The correct reference is pages 118 — 120 where the learned trial Judge reasoned as follows:
“I have examined paragraph 13 of the consequential amendments, reply to statement of defence and counter-claim and find that the chart drawn up by the Plaintiffs which in my humble view does not support their case when placed in conjunction with the accepted documentary evidence of Chief S. T. Alokwe III as to the ruling houses… I believe the evidence of the 1st respondent and his witnesses that he has been duly installed as deputy Ede, mistakenly in my view called Ede by some in evidence, in the life time of the then substantive Ede, though due to disputations, apparently, the ceremonies were not done till 2003. Contrary to the submission of learned counsel for the Plaintiff I do not agree there is any good reason shown why the installation of the 1st defendant as the Ede should be declared null and void. It is a fait accompli. The evidence adduced by the defendants in support of their counter-claim is far more superior to that presented by the Plaintiffs especially that of DW1. I therefore find that the plaintiffs have failed in the balance of probability and preponderance of evidence to prove their claim. Consequently, I decline to make any of the declaratory orders sought by them in paragraph 27 (i), (ii) and (iii). The order for perpetual injunction is accordingly dismissed, In the light of the above, I find that the 1st Defendant has been duly selected from Agbagame unity (sic) of Imiolokpe family and appointed, initiated and installed as Ede of Okpekpe and performed the Oghalor ceremony on 13/4/2003 in accordance with Okpekpe custom is hereby declared to be entitled to be recognized as such.”
On account of the forgoing, appellants’ counsel contended that the learned trial Judge did not make any attempt to evaluate evidence led by the respondents in support of their counter-claim before arriving at the conclusion that the respondents had proved their counter-claim.
It can be seen that the issues and evidence in respect of the main claim were also the issues and evidence in respect of the counter-claim. The learned trial Judge examined evidence led on both sides from pages 117 to 119 of the record of appeal and in the process, rejected the evidence presented by the appellants and believed the evidence of the respondents. Having done so, it became unnecessary to separately go over the same process in determining the counter-claim. That would have been unnecessarily pedantic.
In the case of ADEROUNMU v. OLOWU (2000) LPELR – 141 (SC) P. 18 Ayoola, JSC, stated that:
“… It suffices to say that the issues determined in the claim were sufficient to dispose of the counter-claim. Where common questions determinative of a claim and a counter-claim arise in a case, the trial Court is not expected to consider the same questions separately in relation to the counter-claim.”
The contention of the appellants’ counsel that the learned trial Judge did not make any attempt to evaluate evidence led in respect of the counter-claim before concluding that it had been proved therefore is unfounded.
Evaluation of evidence with the attendant duty of ascribing probative value to it is primarily the function of a trial Court. Where the trial Court has not only assessed but given value to evidence at its disposal and leaves no one in doubt as to how and why, in arriving at its decision, it preferred the evidence of the respondent to the appellant, it is not the function of appellate Court to interfere and embark on evaluation of the evidence to arrive at a different conclusion. It is only when the finding of the trial Court is perverse that the appellate Court can interfere. See WOLUCHEM v. GUDI (1981) 5 SC 291, ENANG v. ADU (1981) 11 SC 25 and MOGAJI v. ODOFIN (1978) 4 SC 1.
It is common ground between the parties that the Ede title alternates between two of the five families of Imida Kindred of Okpekpe, to wit: Imioze and Imialokphe.
A point of disagreement is that the appellants contend that the founder of Alokphe family (whose descendants are called Imialokphe) had two children, namely; Okime and Okpogho; that the respondents are of Agbagame sub-unit of Okpogho unit; that when it is the turn of Imialokphe to produce an Ede, the title alternates between Okime and Okpogho and that it is the turn of their Okime unit to produce the Ede. The respondents, on the other hand, posit that there are four units of Imialokphe, to wit: Okime, Okpogho, Agbagame and Alugbhe between which Ede title rotates when it is the family’s turn to produce the tile holder; that they are of Agbagame unit and that it is their turn to produce the Ede title holder.
The trial Court found:
(i) That the respondents are of Agbagame unit;
(ii) That there are four ruling houses in Imialokphe family, namely: Okime, Agbagame, Okpogho and Alugbhe units;
(iii) That the original 1st respondent (of Agbagame unit, that is the respondents’ unit) had been installed as Ede of Okpekpe; and
(iv) That Okime and Okpogho have been Ede twice but Agbagame has not been.
The law is that an appellate Court will not lightly interfere with the finding of fact of a trial judge if there is evidence on record to support it. See ODOFIN v. AYOOLA (1984) NSCC 717, ADEROUNMU v. OLOWU supra and OKALA v. UDEH (2019) 9 NWLR (PT. 1678) 562. There is enough evidence on record to support the findings in (i), (ii) and (iii) above. Apart from oral evidence by the witnesses of the respondents, there is documentary evidence to vindicate the findings. It must be remembered that documentary evidence serves as a hanger or yardstick by which to assess the veracity of oral evidence or its credibility, See SHUAIBU v. MUAZU (2014) 8 NWLR (PT. 1409) 207, 319.
Exhibit F is a summons of the Customary Court of Etsako East, Agenebode while Exhibit F1 is the claim accompanying it. The suit numbered EEACCA/7/2004 was between:
1. Chief Usman Mekidi
2. Prince Michael Imachede
(for themselves and on behalf of Okhime unit of Olokphe family, Imida Kindred of Okpekpe) – Plaintiffs
1. MR. PAUL UNOGBUA
2. MR. OYIME UKHABI
3. MR. JAMES TAYE ISAH
(For themselves and on behalf of the entire members of Agbagame Unit in Alokphe family, Imida Kindred of Okpekpe)
4. Pa Andrew Irosowe
5. Mr. Oshiokpekhe Nasama” – Defendants
(Underlining is mine for emphasis).
The claim was in respect of the Ede of Okpekpe. The present appellant (the suit being a representative suit) sued the present respondents as “Agbagame unit”. How can the appellants now claim that Agbagame is a sub-unit of Okpogho unit? They are estopped from so asserting by their act in Exhibits F and Fl. The contention by appellants’ counsel that Exhibit F1 cannot form the basis of the trial Court’s conclusion because it was withdrawn and struck out and no evidence was led on it holds no water. Though it was withdrawn, according to appellants, it does not cease to exist on the Court’s record and can still be referred to. In AJIJOLA v. RASAKI (2019) 5 NWLR (PT. 1655) 284, 293, it was held that when a process is withdrawn and struck out, it is still alive and kept in the Court’s file.
I have stated that the appellants are estopped from asserting that Agbagame is a sub-unit and not a unit of Alokphe family. I draw analogy for this conclusion from the position of the law as to the use of a pleading in a previous case. In OKONKWO v. KPAJIE (1992) LPELR – 2483 (SC) 37 – 38, Nnaemeka-Agu, JSC, opined that:
“As for the proper use that could, be made of evidence, pleading and judgment in a previous case in the present proceedings, the law should now be regarded as perfectly settled. Aboh, F. J., stated it succinctly in the Federal Supreme Court in the case of BABATUNDE JIMI ALADE v. LAWANI ABORISHADE (1960) SCNLR 398, (1960) 5 FSC 167, at page 173.” … evidence given in a previous case can never be accepted as evidence by the Court trying a later case except where Section 34 (1) of the Evidence Ordinance applies. The evidence given in earlier case by persons who also testify in a later case may be used for cross- examination to credit but it is of no higher value than that. The pleadings in an earlier case may, however be referred to, to show what was, in that earlier case, the claim or defence sought to be set up and to point to inconsistency on the part of one party or the other in the later case…”
The trial Court was therefore right in relying on Exhibit F1 to reject the inconsistent position of the appellants.
Exhibit A is the memorandum submitted by Imida Kindred of Okpekpe Clan to Justice Moje Bare’s Commission of Inquiry appointed by the Military Governor of defunct Bendel State to look into the dispute concerning the succession to the vacant Chieftaincy Stool of Okpekpe Clan, Etsako Local Government Area. It is signed by served persons including the PW1. Page 2 of the document states:
“In Imialokpe family we have four ruling houses namely:
How then can the PW1 and indeed the appellants now say that there are two ruling units in Imialokphe family and that Agbagame is a sub-unit of Okpekpe unit?
Exhibit B is the Government White Paper or views accepting the report of the Justice Moje Bare’s Commission, wherein it is stated at page 2 that Imialokpe consists of four family units, contrary to the case of the appellants that it is made of two units. The findings of a public inquiry into a Chieftaincy dispute is valid and subsisting if it is not set aside by a competent and reviewing authority. See OGUNTADE v. OYELAKIN (2020) 6 NWLR (PT. 1719) 41, 66. So also is the White Paper. There is no evidence that the findings of the commission and the white paper have been set aside and so they are binding on the parties.
I have taken the trouble to state as above to show that there is enough evidence on record to support the findings No. (i) and (ii) of the trial Court highlighted earlier in this judgment. There is also evidence from the defence witnesses including the DW2 (wrongly named DW1 by the trial Court) who is the Apa and Clan Head Okpekpe to support finding No. (III) I see no reason therefore to interfere with those findings.
Appellants’ counsel did argue that if the case of respondents that there are four ruling units in Alokphe family among which the title rotates when it is the turn of the family to produce Ede is to be believed, it follows that Okpogho unit is entitled to take the title now. Indeed, by the chart at paragraph 12 of the further amended statement of defence and counter-claim of the respondent, the following have been Ede from Alopkhe family:
i. Okpolo – Agbagame unit
ii. Okhizumate – Okime unit
iii. Agbadu Azebeokhe – Alugbhe
The original 1st respondent testified in the same vein in cross-examination. This would seem to support the position of appellants’ counsel that by the showing of the respondents, the Ede should be produced by Okpogho unit and that there is nothing in Exhibit C, the report of Moje Bare Commission to support the finding of the trial Court that Agbagame has not produced an Ede before. But this position will not help the case of the appellants. This is because the appellants are not of Okpogho unit but of Okime unit. They cannot fight a proxy war for Okpogho unit. If a family or unit, whose turn it is to produce a traditional ruler does not step out to produce one and the next family or unit takes its turn without a protest from them, no other family can complain about the situation. The law is that a family, house or unit whose turn it is in a rotational Chieftaincy system to produce the title holder, can waive or abandon its right by not insisting on it. See OGUNLOWO v. OGUNDARE (1993) 7 NWLR (PT. 307) 610, 624 and 652. The appellants therefore have no standing to champion the cause of Okpogho unit.
The appellants complained about the finding of the learned trial Judge at page 119 of the record of appeal that:-
“I believe the evidence of the 1st Defendant and his witnesses that he has been duly installed as deputy Ede, mistakenly in my view called Ede by some in evidence in the life time of the then substantive Ede…”
It was their contention that the learned trial judge made a case for the respondents and substituted his views for the pleadings and evidence on record. I do not agree with the appellants.
In paragraph 20 of the further amended statement of defence of the respondents, it is averred as follows:
“The Defendants aver that the 1st Defendant has been duly selected, appointed, initiated and installed as Ede of Okpekpe on 12/4/2001 and performed his Oghalor ceremony on 13/4/2003. He has been performing all the customary functions and duties of his office since then.”
In paragraph 12 of the counter-claim, the respondent averred regarding the original 1st respondent (as 1st defendant) that:
“The Defendants aver that after his initiation and installation as Ede at the Inwoli shrine on 12/4/2001, the 1st Defendant performed the “Oghalor” ceremony on 13/4/ 2003″
The appellants denied the averments above in their consequential amended reply to statement of defence and counter-claim, particularly in paragraphs 2 and 17 thereof. What is common ground between the parties is that when there is an Ede from Imioze family, there will also be a deputy Ede from Imiolokphe, who will take over from the Ede on his demise. It is also common ground that there cannot be two Edes at the same time. The Ede, Chief Dr. S. T. Alokwe III, died in 2003, and so if the original 1st respondent was initiated and installed in 2001, it had to be as a deputy Ede.
In his evidence at page 86 of the record of appeal, the original 1st respondent testified that he was asked by Dr. S. T. Alokwe III to write a memorandum to the Moje Bare Commission of Inquiry because he was his deputy at that time. See also page 90 of the record. In cross-examination, he testified that he was at the Imoli shrine as it was compulsory to become deputy Ede. The DW2 (wrongly named DW1) testified that there can be a senior Ede and a junior Ede. The DW3 testified that when it is a family’s turn, the family’s candidate will be installed as deputy Ede because the senior Ede is still alive.
It is my understanding that the use of the term “Ede” in paragraph 20 of the further amended statement of defence and paragraph 12 of the counter-claim when situated within the context of the whole case is a reference to deputy Ede. In so holding, the learned trial Judge was not making a case for the respondents and substituting his views for the pleadings and evidence on record as argued by appellants’ counsel. I draw support for this position from the case of OLORUNFEMI v. ASHO (2000) LPELR – 2592 (SC) where the appellants counsel argued in respect of the cross-appeal that the defendants having averred in their statement of defence and counter-claim that the land in dispute was “partitioned”, the family on behalf of whom the defendants had counter claimed for declaration of customary right of occupancy had divested themselves of title and interest in the land to sustain any standing to sue or obtain the relief sought. Counsel for the defendants argued that the use of the word “partition” in the defendants’ pleadings was understood and was intended to mean “allotment” in the context in which it was used.
At pages 10 – 11 of the electronic report, Ayoola, JSC, opined thus:-
“The mere use of the word “partition” may not settle the issue where there is an issue whether or not family property is determined. In DOSUNMU v. ADODO (1961) L.L.R. 149; at 150, Sir De Lestang CJ (Lagos) said:- “That being so, the principal question for decision in this appeal is whether the allocation of the plots by the head of the family was a partition of the property between the branches or whether it was a grant of occupational rights only. This is primarily a question of fact to be decided on the evidence…” The significance of these general principles is that where details of partition are not given in the pleadings and the fact of determinative partition is not common ground, the mere use of the term “partition” may not be conclusive of the fact that family ownership has been determined”.
I therefore do not agree with appellants’ counsel in respect of the point under review.
There is enough evidence on record to support the findings of the learned trial judge and therefore it is not my business to interfere with those findings and substitute them with my view of the evidence, that is if I have a different view from that of the learned trial judge, and I do not.
I therefore resolve issues 1, 2 and 4 against the appellants.
Whether the lower Court was right to have awarded the sum of N250,000.00 general damages against the appellants.
Appellants’ counsel submitted that the learned trial Judge erred in law when he awarded the sum of N250,000.00 general damages against the appellants. He set out the reason given by the learned trial Judge for the award and argued that general damages are not awarded to assuage the feelings of the Court but upon evidence adduced in support of pleadings. He referred to paragraph 7 of the counter-claim and stated that the respondents did not lead evidence in support of their claim for general damages.
Respondents’ counsel argued that award of general damages is a matter which is entirely at the discretion of the trial Court and that an appellate Court will not interfere with such an award unless some factors are present. He contended that the reason given by the learned trial judge for the award of general damages was convincing.
The learned trial Judge awarded the sum of N250,000.00 as general damages in favour of the respondents. The basis for the award was stated by his lordship as follows:
“The audacity of the plaintiffs in asserting in Court that that 1st plaintiff was installed as Ede of Okpekpe during the pendency of this suit must be visited with general damages…”
In other words, the sum of N250,000.00 was awarded by the trial Court because the appellants asserted in Court that the 1st appellant was installed as Ede during the pendency of the suit. It is therefore clear that the damages were awarded on account of the contemptuous and insolent conduct of the appellants. Where a party acts contemptuously towards the Court, it is open to the Court to set aside the act. The Court may, upon proper application, commit the contemnor for the contempt pursuant to Section 72 of the Sheriffs and Civil Process Act and its inherent power. The remedy for contemptuous conduct does not include award of damages by the Court in favour of the opponent of the contemnor.
The respondents claimed in their counter-claim for One million naira being general damages for the harassment and obstruction caused to the 1st Defendant by the Plaintiffs in the discharge of his customary function. But the award made by the trial Court was for the audacious assertion of the appellants that the 1st appellant was installed as Ede of Okpekpe during the pendency of the suit. This was not what the respondents counter-claimed for. In short, the trial Court awarded to the respondents what they did not claim. The law is well established that a Court has no power to award to a party a relief that he did not claim. See EKPENYONG v. NYONG (1975) 2 SC 71 and ODUKWE v. OGUNBIYI (1998) 5 SCNJ 102.
Damages are the pecuniary compensation obtained by a successful party in an action for a wrong which is either a tort or breach of contract – ASESA v. EKWENEM (2009) 3 NWLR (PT. 1158) 410. I fail to see where the award made by the trial Court fits into in this definition.
Furthermore, events that occur after the filing of a suit, in this case the counter-claim, cannot form the basis for award of damages. This is because an action relates back to the date it was commenced and not a subsequent date. Therefore a plaintiff (in this case the counter-claimed) cannot succeed in a cause of action which did not exist on the date of the filing of the suit. Whatever happens after that date cannot be used to ground a cause of action which was not in existence on the date of the filing of the suit – MOHAMMED v. UBA PLC (1976) 2 FNR 21. It follows therefore that the act of the appellants done during the pendency of the suit cannot form the basis for the award of general damages in favour of the respondents.
An appellate Court will hardly interfere with award of damages by a trial Court unless the award is based on some wrong principle of law, or where the amount awarded is so high or so low as to make it an entirely erroneous estimate of the damage suffered by the claimant. See B.B. APUGO & SONS LTD v. ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD (2016) 13 NWLR (PT. 1529) 206 and ODOGU v. ATTORNEY-GENERAL OF THE FEDERATION (1996) 6 NWLR (PT. 450) 508. In this instance, the award by the trial Court was based on some wrong principles of law as I have shown. I shall therefore interfere to set it aside.
I enter a negative answer to issue 3 and resolve it in favour of the appellants.
On the whole, the appeal succeeds in part. I hereby set aside the award of N250,000.00 general damages by the trial Court. But I affirm the decision of the trial Court dismissing the claim of the appellants and upholding the counter-claim of the respondents, except in respect of the claim for general damages.
The parties shall bear their costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My learned brother, JOSEPH EYO EKANEM, JCA had afforded me in advance the opportunity of reading the judgment just delivered by him.
I agree with the succinct reasoning and conclusion arrived thereto and I have nothing more to add.
I abide by all consequential order as to cost.
BALKISU BELLO ALIYU, J.C.A.: I agree with the insightful judgment of my learned brother Joseph Eyo Ekanem, JCA which I had the preview before today. I too allow the appeal in part only as regards the award of general damages of N250,000 made by the trial Court. I set that award aside. However I affirm the judgment of the trial Court dismissing the Appellant’s suit for lacking in merit and upholding the counter claim of the Respondent. I abide by the order of no cost made in the lead judgment.
O. E. Musoe, Esq. For Appellant(s)
O. Edeki, Esq., with him, F. A. Abdulimen For Respondent(s)