STIRLING CIVIL ENGINEERING NIGERIA LIMITED V. AMBASSADOR MAHMOOD YAHAYA(2001)

STIRLING CIVIL ENGINEERING NIGERIA LIMITED V. AMBASSADOR MAHMOOD YAHAYA

(2001)LCN/1008(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of June, 2001

CA/K/111/99

JUSTICES

ISA AYO SALAMI Justice of The Court of Appeal of Nigeria

RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

Between

STIRLING CIVIL ENGINEERING NIGERIA LIMITED Appellant(s)

AND

AMBASSADOR MAHMOOD YAHAYA Respondent(s)

RATIO

WHETHER OR NOT THE APPELLATE CAN INTERVENE IN THE FINDINGS OF THE TRIAL COURT

The principles upon which an appellate court will act in reassessing an award of damages are trite. It is not entitled to substitute a figure of its own for that of trial court mainly because it would have awarded a different figure if it had heard the case at first instance. The appellate court can only intervene if it were satisfied that the trial Judge, while assessing the damages, applied a wrong principle of law such as taking into account some irrelevant factor or leaving out of account some relevant factor, or that it was an erroneous estimate of the damages as the sum awarded is ridiculously too high or so ridiculously too small: Flint v. Lovell (1935) 1 K.B. 354, 360; Owen v. Sykes (1936) 1 KB 192, Agaba v. Otobusin (1961) 2 SCNLR 13, All NLR 299, 300; Khawam v. K. Chellaram & Sons Nig. Ltd. (1964) 1 WLR 711, 714; Shodipo & Co. Ltd. v. Daily Times of Nigeria Limited (1972) 1 All NLR 406, 411 and His Highness Uyo 1 v. Nigerian National Press Ltd. (1974) 6 SC 103, 105. PER SALAMI, J.C.A.

WHETHER OR NOT A GROUND OF APPEAL MUST RELATE TO ITS PARTICLUARS

A ground of appeal to be proper or valid must relate to its particulars.The penalty for the particulars not flowing from or relating to ground of appeal is striking of the unrelated particular or particulars: Honika Sawmills Ltd. v. Mary Okogie Hoff (1994) 2 NWLR (Pt.326) 252, 262. Once one or more particulars are rendered bad the remaining particulars serve no useful purpose because the court will not carry out a surgical operation on the ground of appeal by excising bad ones: Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 and Bereyin v. Gbobo (1989) 1 NWLR (Pt.97) 372. PER SALAMI, J.C.A.

SALAMI, J.C.A.(Delivering the Leading Judgment): This is an appeal against High Court of Justice, in the Zaria Judicial Division, awarding the plaintiff the sum of N500,000.00 as general damages and costs assessed at N500,000.00.
The defendant was dissatisfied with the judgment and has appealed to this court on one original ground and with the leave of court an additional ground of appeal was added. The two grounds of appeal read as follows:-
“(1) The Learned Judge erred in law when he awarded the sum of N500,000.00 to the plaintiff as general damages after he held that the claim for trespass and the destruction of economic trees failed.
PARTICULARS:
(a) Having refused the claim of N5,000,000.00 for economic trees he cannot thereafter award N500,000.00 general damages for trespass, loss of use and mischief done to the economic trees.
(b) The Judge having held that, the plaintiff has not proved his claim for N5,000,000.00 general damages for trespass, loss of use and mischief done to the economic trees.
(c) The Judge having accepted in his judgment that compensation was paid to the plaintiff through his representative cannot thereafter award N500,000.00 for the same purpose of mischief done to the economic trees of the plaintiff.
(2) The learned trial Judge erred in law when he awarded the sum of N500,000.00 damages to the plaintiff/respondent with N5,000.00 costs.
PARTICULARS OF ERROR:
(a) The claim of the plaintiff/respondent as pleaded in his statement of claim was N5,000,000.00 general damages for trespass, loss of use and mischief done to the economic trees planted by him and N70,709,097.00 being costs of filling the craters dug with laterite.
(b) The plaintiff/respondent’s claims for loss of use and mischief are clams of special damages.
(c) The plaintiff/respondent lumped his claim damages for trespass, loss of use and mischief together.
(d) The plaintiff/respondent did not specifically plead the particulars of loss of use and mischief.
(e) The plaintiff/respondent gave evidence of and orally claimed the sum of N6,000,000.00 (sixty Million Naira) (sic).
(f) The learned trial Judge found that the plaintiff/respondent did not prove his claim of what he was earning from his farm.”
Briefs of argument were filed and exchanged as appellant’s and respondent’s briefs of argument. There is no appellant’s reply brief. In appellant’s brief, only one issue which was adopted by the respondent was identified as calling for determination in the instant appeal. The sole issue is set out immediately hereunder as follows:-
“Whether the learned trial Judge was right in awarding N500,000.00 damages to the respondent having regards to the statement of claim, evidence led and the findings of the court.”
It is not immediately quite clear from which of the two grounds of appeal, original or additional, the issue derived. It does not very much matter since neither ground appears competent. But the appellant’s intention becomes clearer when one examines the brief under argument. The issue is therein related to ground 2 of the grounds of appeal. The original ground of appeal is consequently deemed abandoned since no issue has been culled from it. A ground of appeal from which an issue had not been framed is deemed abandoned. See the case of B.P. (West Africa) Ltd. v. Allen (1962) 2 SCNLR 388, Effiong v. State (1998) 8 NWLR (Pt.562) 362, 368 and Tukur v. Government of Taraba State (1997) 6 SCNJ 81, (1997) 6 NWLR (Pt.510) 549.

The second ground of appeal rolled up questions ranging from pleadings vide particulars (a), (b), (c) and (d) to proof or burden of proof in particulars (e) and (f). This ground of appeal clearly does not raise any issue of quantum of damages. The ground of appeal failed to take into account the circumstance in which an appellate court could interfere in the award of damages. This court has the power to interfere in award of damages where a trial Judge, sitting alone, has awarded damages subject, of course, to compliance with certain conditions: Zik’s Press Ltd. v. lkoku (1951) 13 WACA 188, 189. But appellate courts are very slow or reluctant to exercise this power to attempt to reassess the damages a trial court has given.
The principles upon which an appellate court will act in reassessing an award of damages are trite. It is not entitled to substitute a figure of its own for that of trial court mainly because it would have awarded a different figure if it had heard the case at first instance. The appellate court can only intervene if it were satisfied that the trial Judge, while assessing the damages, applied a wrong principle of law such as taking into account some irrelevant factor or leaving out of account some relevant factor, or that it was an erroneous estimate of the damages as the sum awarded is ridiculously too high or so ridiculously too small: Flint v. Lovell (1935) 1 K.B. 354, 360; Owen v. Sykes (1936) 1 KB 192, Agaba v. Otobusin (1961) 2 SCNLR 13, All NLR 299, 300; Khawam v. K. Chellaram & Sons Nig. Ltd. (1964) 1 WLR 711, 714; Shodipo & Co. Ltd. v. Daily Times of Nigeria Limited (1972) 1 All NLR 406, 411 and His Highness Uyo 1 v. Nigerian National Press Ltd. (1974) 6 SC 103, 105.

The issues arising from the ground that was impliedly retained are that pleadings and evidence are in conflict, if particulars (a) and (e) of the grounds of appeal are read together. Particulars (b), (c) and (d) raise the question whether the claims had been adequately or specifically pleaded with the particulars and the same had been specially and strictly proved. So also did particulars (c) and (d) deal with consequences of pleading damages for claims for loss of use, mischief and trespass together as if they are all claims for general damages which they are not. While loss of use and mischief require being pleaded specifically or specially and proved strictly, trespass that is allegedly lumped along with them does not require to be pleaded and proved specially and strictly. Particular (f) raise the question of the effect of the court finding that the plaintiff failed to prove his earnings from the farm. The single ground raised the various issues analysed above but surely it failed to raise the question whether the assessment took into account relevant or irrelevant factor or whether the damages was excessive or not.
It seems to me, however, that the learned trial Judge rejected respondent’s claim for loss of use. The two claims of the respondent that eventually went to trial as per his statement of claim reads as follows:
“24. WHEREOF the plaintiff claims from the defendant the following:-
(a) General damages of five million (N5,000, 000.00) naira for trespass, loss of use and mischief caused or done to the economic trees planted by the plaintiff.
(b) That defendant to pay the plaintiff the sum of seventy million seven hundred and nine thousand and ninety seven N70, 709,097.00 naira (sic) being the cost of filling with laterite the four craters which need 249,450 cubic metre at N283.46 per cubic metre.”
In rejecting the respondent’s claim for loss of use, the learned trial Judge rightly, in my view, reasoned as follows:
“I believe the plaintiff ought to have displayed something before the court to show that and/or give it a cleam (sic) of what he was earning from the farm and not to make a sweeping statement of the amount he is earning. Moreso, it is not the whole farm that is being destroyed by the plaintiff but just a portion of it.”
(Italics mine)
The learned trial Judge further considered some payments already made to the respondent through his representative, Dahiru, as per Exhibits 4, 5 and 6 by the Federal Ministry of Works and Housing and finally concluded thus:-
“On the whole, I hold that the plaintiff has proved his 1st claim against the defendant but will definitely not be entitled to the claim of N5m as he is claiming for reasons enumerated above.
I finally entered judgment for the plaintiff against the defendant in the sum of N500,000 being general damages for trespass, loss of use and mischief done to the economic trees planted by the plaintiff on his farmland along Kaduna – Abuja Road.”
(Italics mine)
The inclusion of “loss of use” in the award of general damages is clearly an accidental slip. It cannot be, otherwise the learned trial Judge having expressly excluded it in his reasoning along with the payment already made by the Federal Ministry of Works and Housing.
These two grounds couple with the fact that the appellant did not destroy the whole farm accounted for the learned trial Judge’s refusal to award N5,000,000.00 claimed by the respondent and his reducing it to or awarding N500,000.00.
Before returning to the issue of competence of this appeal it must be observed that the issue of the plaintiff lumping a claim of trespass, mischief and loss of use was never raised before the trial court to enable it to pronounce upon it. The appellant can only properly appeal against a judgment by raising a ground challenging ratio deciedendi of the trial court’s judgment. It appears the ground of appeal does not relate to the decision. He is raising, therefore, a fresh issue on appeal. He did not raise the issue of lumping together of the loss of use, trespass and mischief in the trial court. Neither did the trial Judge pronounce on same. To successfully raise the new issue, at this stage of hearing, the appellant must specifically seek leave of this court to raise the new issue and merely seeking leave to file additional ground of appeal is not sufficient. See Jov v. Dom (1999) 9 NWLR (Pt.620) 538, Obioha v. Duru (1994) 8 NWLR (Pt. 365) 631,(1994) 10 SCNJ 48 and Oshatoba v. Olujitan (2000) 5 NWLR (Pt.655) 159, 171.

The court, according to appellant’s contention, was left to speculate when the respondent lumped together his claim for trespass, loss of use and mischief done to his economic trees or farm. Learned counsel argued that what is claimed for trespass as distinct from loss of use and mischief was not known. But learned counsel for appellant, at the trial court, under Order 24 rule 7 of the Kaduna State (High Court Civil Procedure) Rules Cap 68 Laws of the Kaduna State of Nigeria, 1991 had a duty to ask for better and further particulars which duty he failed to perform. Similarly, he has not raised any ground of appeal challenging the speculative decision of the learned trial Judge. It is therefore late in the day to raise it and the defect is not cured by merely canvassing argument on non existence ground and issues.
A ground of appeal to be proper or valid must relate to its particulars.The penalty for the particulars not flowing from or relating to ground of appeal is striking of the unrelated particular or particulars: Honika Sawmills Ltd. v. Mary Okogie Hoff (1994) 2 NWLR (Pt.326) 252, 262. Once one or more particulars are rendered bad the remaining particulars serve no useful purpose because the court will not carry out a surgical operation on the ground of appeal by excising bad ones: Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 and Bereyin v. Gbobo (1989) 1 NWLR (Pt.97) 372.

Particulars (a) and (e) deals with contradiction between pleadings and evidence adduced whereas particular (f) touches upon discharge of onus of proof. Particular (c) complained that the respondent lumped his claim for mischief, loss of use and trespass, which require different considerations, together. The ground is incompetent because the particulars do not relate to the ground and is struck out. The issue framed therefrom and the argument canvassed thereon in the appellant’s brief is struck out. The appellant having abandoned the original ground and same struck out, the appeal is deemed abandoned and is dismissed.
There is order as to costs proposed at N4,000.00 in favour of the respondent.
In parenthesis, the respondent’s brief does not contain list of authorities contrary to the express provisions of Order 6 rule 3 of the Court of Appeal Rules Cap 62. Moreover all the cases cited in the brief except one do not carry references. This is not good enough.

R. D. MUHAMMAD, J.C.A.: I have read before now the judgment of my Lord Salami JCA which has just been delivered. He has meticulously dealt with all the issues raised in this appeal. I am in complete agreement with his reasoning and conclusion. It is trite that a ground of appeal against a decision, must relate to the decision and should be a challenge to the ratio of the decision. Where a ground of appeal does not challenge the ratio of the decision it becomes incompetent and will be struck out. See A.G. Oyo State v. Fairlakes Hotel (1988) 5 NWLR (Pt.92) 1 and Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546. I agree that the appeal is deemed abandoned and is dismissed. I abide by all the orders made in the lead judgment including the order as to costs.

OMAGE, J.C.A (Dissenting): Following the action commenced in the High Court of Kaduna, sitting in Zaria, the learned trial Judge M. L. Bello J. after considering the evidence adduced by both parties in the suit, ruled in his judgment on 20/10/95 as follows:
“I finally enter judgment for the plaintiff against the defendant in the sum of N500,000 being general damages for trespass, loss of use and mischief done to the economic trees planted by the plaintiff in his farm land  along Kaduna-Abuja Road. Based on the consensus of both parties and their counsel I hereby order that the defendant shall fill with laterite the craters dug by it inside the said farm land of the plaintiff.”
The claim of the plaintiff/respondent against the defendant/appellant upon which the judgment of the court above was delivered in the plaintiff’s claim for:-
“(a) Damages of five million N5,000,000.00 naira for trespass loss of use and mischief cause done to the economic trees planted by the plaintiff.
(b) That defendant to pay the plaintiff the sum of seventy million, seven hundred and nine thousand and ninety seven Naira (70,709,097.00k) being the costs of filling with laterite, the four craters which need 249.450 cubic  meters at N283.46 per cubic meter.”
The printed record shows that the plaintiff/respondent called four witnesses, in the effort to establish his claim, and the defendant appellant called five witnesses in defence. The facts of the case in the court below is the claim of the plaintiff as the owner of a parcel of land measuring 546.30 acres located at Chikun/Dutse village in Chikun Local Government Area. The respondent testified that he has on the land a certificate of occupancy No. NC 18003. The plaintiff/respondent testified further that he realized prior to the incident the sum of N5 million from the farm “about 4 years ago” that no specific year is stated. Without stating the previous date, the respondent said about four years ago when the defendant was constructing the dual carriage way or road, the defendant trespassed into the plaintiff’s farm land and destroyed the economic trees, such as banana guava, grains of all sorts, date palms etc and stole the top soil,  (sub-soil) and used same in constructing the dual carriage way; or road in the processes the defendant made four craters on the plaintiff’s land for which the plaintiff claim damages as above. In his defence, the defendant called witnesses some of who said they were paid compensation by the defendant, many of the witnesses say they  do not see economic trees on the plaintiff’s land while others do not know the plaintiffs land. The defendant denied digging craters in the plaintiff’s land.
The judgment of the court on the proceedings is as recorded above. The defendants were dissatisfied with the judgment, and they lodged this appeal on one original ground. Leave of court was granted and the ground of appeal was amended to read “the learned trial Judge erred in law, when he awarded the sum of N500,000 damages to the plaintiff/respondent, with N5000.00 costs”. It is from the said ground that the appellant proposed his lone issue for determination. It reads:
“Whether the learned trial Judge was right in awarding N500,000.00 damages to the respondent having regards to the statement of claim evidence led and the findings of the court.”
The respondent adopted the same issue and urged the court to dismiss the appellant’s appeal because the arguments advanced by the appellant do not support the ground of appeal and the issue filed.
The issue therefore must be deemed abandoned. In my view, the substance of the issue for determination and the implication thereof is a challenge of the award of damages made by the court to the respondent. The issue complains that the award was less than justifiable with regards to the statement of claim, and the evidence led in court. This complaint to my mind is not only a complaint against damages, by the court, as a quick glance of it may suggest, it challenges the entire judgment of the court below, when it says, “when you consider the statement of claim and the evidence led, was the court right to award judgment of N500,000.00?” I am of the view that an interpretation of the issue which limits the complaint to one of costs for damages alone, as done by the respondent is parochial. The issue goes beyond the issue of costs. It deals with the entire complaint of the claim, though I admit that issue can be more specific and apparent. In my understanding of the issue I treat it thus, on two grounds of (a) proof trespass and (b) award of damages. Besides this the claim for trespass to the land, which issue was not at all considered in the judgment, the plaintiff’s claim for damages for loss of economic trees, which the respondent described as general damages was not specified. If the parochial approach adapted then the appeal should fail. In my view a substantial justice would not have not have been done.
In the opening of his judgment the court recorded the claims of the plaintiff respondent as a claim for general damages for N5,000,000.00 for trespass, loss of use and mischief caused or done to the economic trees planted by the plaintiff the learned trial Judge has quoted in his judgment the contents of the statement of claim, before him. Having received evidence on the claim of the plaintiff, I have not seen in the judgment where the trial court made a finding of the committal or non-committal by the defendant/appellant of trespass to the land in issue what is recorded in the judgment is: “an award of N500,000 being general damages for trespass, loss of use, mischief done to the economic trees planted by the plaintiff, whereas the issue of trespass to land should be a distinct finding by the court.
The claim for a trespass to land is rooted in exclusive possession of the land trespassed upon: Act of trespass to land is therefore actionable at the suit of a person in actual physical possession of the land. See Amaka v. Obiefuna (1974) 3 SC 67, (ii) Ekretsu v. Oyobebere (1992) 9 NWLR (Pt. 323)718. See also Bamgbade v. Balogun (1994) 1 NWLR (Pt.323) 718. Therefore it is incumbent on the trial court having received evidence of a trespass to the land in issue to state specifically whether its findings from the evidence established trespass to the land, and not just lump together the damages payable on alleged proof of trespass with other awards on economic crops, mischief and any other. The issue remains unanswered, is the claim on allegation of wrongful entry to the land of the plaintiff proved? If it is not, why was damages of N500,000.00 awarded to the plaintiff. If the award is partly for the economic crops, what portion of the award is for trespass? Was trespass proved or admitted? A separate finding and decision should be made thereon, before damages may be awarded against the defendant/appellant. I did not see in the judgment of the court below such a finding on trespass in the trial in the court below. The second issue which needs to be considered before the court can award justifiable costs is this. The claim for economic trees made by the plaintiff/respondent for which damages of N500,000.00 is awarded in favour of the respondent with trespass is a claim in the nature of general damages. It is wrong in law to designate such a claim as a claim in general damages.
A claim for general damages, is one within the discretion of the court, and such damages are not generally awarded on a claim in torts.
Where a claim for a specific claim is made, see PZ Co. Ltd. v. Ogedengbe (1972) 1 ALL NLR 202, the specific claim should be proved to have existed. Its value should be stated to establish the truth of the claim such a claim when made is a claim in special in damages and it must be strictly proved. See L.S.D.P.C. v. Foreign Finance Corp. (1987) 1 NWLR (Pt,50); Nzeribe v. D. Ave Eng. Co. Ltd. (1994) 8 NWLR (Pt.157). A feature of the claim for special damages is that before the strict proof by viva voce evidence, the claimant; i.e. plaintiff must specifically plead the claim and itemise the claim. In the case of economic crops, the value of each crop before the total loss sustained must be stated. It is not sufficient to describe such a loss as of general damages, because the court has no discretion to award damages for the loss without proof. In the instant appeal, the statement of claim did not plead the specific loss of its item of claim and its value. It cannot be said that the plaintiff has proved his claim for damages to the crops. The  award made in the order of court remains unidentifiable to any of the claims before the court. In my opinion therefore, the statement of claim, and evidence before the court when considered with the statement of defence of the defendant, which denies the claim do not justify the award of N500,000.00 made by the court. I therefore set aside the order, and the appeal succeeds. It is settled law that the plaintiff in a claim in court must succeed only on the strength of his claim, not the weakness of the defence. See Kodilinye v. Odu (1953) 2 WACA 336.337. In my opinion, the appeal should succeed and I so rule . The judgment of the court below is set aside. I make no order as to costs.
I have read the lead judgment of my learned brother Salami JCA, which dimisses the appeal. I have recorded above that in my view a limited approach to the issue may deem the appeal incompetent I respectfully hold a different view and also respectfully ask to be allowed to thread a different path in this appeal. I rule that the appeal should succeed, and the judgment of the court below be set aside. I make no order for costs.
Appeal allowed by a majority of 2-1.