UNION BANK OF NIGERIA PLC v. SIMON I.UGBE & ORS
(2019)LCN/13355(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2019
CA/A/399/2018
RATIO
TRESPASS: NATURE OF CLAIM IN TRESPASS
A claim for trespass is rooted in exclusive possession or the right to it. All the plaintiff needs to establish in order to succeed in such a claim is that he has exclusive possession or the right to such exclusive possession of the land in dispute; See the cases of:- FASIKUN II V. OLURONKE II (1999) 1 S.C. 16, (1999) LPELR-1248(SC); OSHO vs FOREIGN FINANCE CORPORATION (1991) LPELR-2801(SC).PER ADAMU JAURO, J.C.A.
PLAINTIFFS IN A SUIT CANNOT SET UP CONFLICTING CLAIMS BETWEEN THEMSELVES
It is trite law that, all persons who are plaintiffs in the same suit cannot set up conflicting claims between themselves. In other words, plaintiffs suit must act together. They must present common cause of action with the common set of reliefs. See EJEZIE vs ANUWU 2008 12 NWLR PT. 1101 PG 446 at 47 – 471.PER ADAMU JAURO, J.C.A.
DEFENDANT: DEFINITION: WHO IS A DEFENDANT
A defendant is said to be the party against whom a civil suit in a Court of law was brought. And a party against whom a suit is commenced in Court must be a person known to law, that is, a natural or an artificial person, given legal personality by statute. It means that no action can be brought or commenced by or against any party other than a natural person or body of persons, unless such a party has been given by statute expressly or impliedly either (a) a legal personality under the name by which it sues or is sued or (b) a right to sue or be sued by the name, See; KNIGHT AND SEARLE VS. DOVE (1964) 2 ALL ER 307; ADMINISTRATOR ESTATE OF GENERAL SANNI ABACHA VS. EKE-SPIFF & ORS (2009) 3 SCM 1; (2009) NWLR (PT.1133) 92.PER ADAMU JAURO, J.C.A.
APPEAL:WHAT IS AN APPEAL
It is trite law that, an appeal is generally regarded as a continuation of an original suit, rather than as an inception of new action. An appeal should be a complaint against the decision of a trial Court. Thus, in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See the cases of; OREDOYIN VS. AROWOLO (1989) 4 NWLR PT. 114 PG. 172; BABALOLA Vs STATE (1989) 4 NWLR PT. 115 PG. 264.PER ADAMU JAURO, J.C.A.
EXCLUSIVE POSSESSION: DEFINITION
Exclusive possession gives the person in possession the right to retain the land and to undisturbed enjoyment of it against all wrong doers except a person who can establish a better title. In the instant case, it is not in dispute that the respondents are in lawful possession of the property as tenants, therefore, it is the tenants and not the landlord (the mortgagor) who can sue for trespass. See the cases of; ADEPOJU Vs OKE 1999 3 NWLR PT. 594 PG 154; BALOGUN Vs AKANJI 2005 10 NWLR PT. 933 PG 571; AGU Vs. NNADI 1999 2 NWLR PT. 589 PG 131.PER ADAMU JAURO, J.C.A.
VICARIOUS LIABILITY: A DISCLOSED PRINCIPAL IS VICARIOUSLY LIABLE FOR THE TROT OF IT’S AGENTS
On the issue of non naming and joining the staff, officers, agents and servants of the appellant to the suit and afforded any hearing, it is trite that a disclosed principal is vicariously liable for the torts of its agent and even if the agent was malicious, the principal would be liable for the tort in question because the act of an agent in the course of his employment is the act of the principal. See CBN Vs OKOJIE 2004 100 NWLR PT. 882 PG 488.PER ADAMU JAURO, J.C.A.
VICARIOUS LIABILITY:WHAT THE PLAINTIFF MUST ESTABLISH
In an action for vicarious liability, the plaintiff must establish that the relationship of master and servant exists and that the servant is liable for the wrongful act. See the cases of; CHUKWU VS SOLEH BONEH NIG. LTD1993 3 NWLR PT. 280 PG 246; OBI vs BIWATER SHELLABEAR NIG. LTD 1997 1 NWLR PT. 484 PG 722.PER ADAMU JAURO, J.C.A.
MISJOINDER: NO PROCEEDINGS SHALL BE DEFEATED BY REASON OF MISJOINDER OR NON JOINDER
It is trite law that no proceeding shall be defeated by reason of misjoinder or non joinder of parties and a Court may deal with the matter in controversy, so far as regards the interest of the parties before it. Hence the non-joinder of the staff was not fatal to the suit before the Court. See Chukwu Osondu Vs Soleh Boneh (2000) 5 NWLR (part 656) 322, Peenok Invest Ltd Vs Hotel Presidential Ltd (1983) 4 NCLR 122; Sunmonu Vs Sapo (2010) 5 NWLR (part 1205) 374; Attorney General of Rivers State Vs Attorney General of Akwa Ibom State (2011) 8 NWLR (part 1248) 31 at 130.PER ADAMU JAURO, J.C.A.
SPECIAL DAMAGE: WHAT AND HOW MUST IT BE PROVEN
The law requires that a person claiming special damages must prove his entitlement to it by credible evidence, that will show to the Court that he is entitled to the award. The evidence must be of such a quality that a reasonable Tribunal will accept. He referred the Court to the case of NNPC Vs CLIFCO (NIG) LTD., (2011) 10 NWLR (PT 1255) PG 209 @ 238.PER ADAMU JAURO, J.C.A.
SPECIAL DAMAGES: AN AWARD OF SPECIAL DAMAGES IS NOT BASED ON DISCRETION BUT ON CREDIBLE EVIDENCE
An award of special damages, unlike an award of general damages, is not based on the discretion of the trial Court but on credible evidence adduced before the trial Court which strictly proves the plaintiffs’ entitlement to the award. See GARBA Vs KUR 2003 11 NWLR PT. 831 PG 280.PER ADAMU JAURO, J.C.A.
SPECIAL DAMAGES: MUST BE PLEADED AND EFFECT OF NOT PLEADING SPECIAL DAMAGES
It is trite law that Special damage must be pleaded, consequently, an evidence on special damages, which is not pleaded and claimed in their statement of claim goes to no issue. See SBN LTD VS. MPIE LTD 2004 6 NWLR PT. 868 PG 146. PER ADAMU JAURO, J.C.A.
GENERAL DAMAGES: THEY FLOW NATURALLY FROM THE ACT COMPLAINED OF
It is trite that, General damages are such damages as the law will presume to be direct natural or probable consequence of the act complained of. They are such as the Court would award in the circumstance of a case, in the absence of any yardstick with which to assess the award except the expectations of a reasonable man. Unlike special damages, they need not be specifically pleaded and proved; general damages arise from inference of law; see the cases of; YALAJU-AMAYE Vs ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD (1990) LPELR-3511(SC); INCAR (NIG) LTD Vs BENSON TRANSPORT LTD (1975) LPELR-1512(SC); KOPEK CONSTRUCTION LTD Vs EKISOLA (SUPRA) ALSO REPORTED IN (2010) LPELR-1703(SC).PER ADAMU JAURO, J.C.A.
GENERAL DAMAGES: ARE ISSUED UPON THE EXERCISE OF DISCRETION OF THE TRIAL COURT
The award of general damages is essentially made upon the exercise of the discretion of the trial Court, which an appellate Court will not interfere with simply for the reason that, in its opinion, a higher or lower amount would have been granted; OKWEJIMINOR Vs GBAKEJI (2008) 1 S.C. (PT 111) 263, (2008) LPELR-2537(SC). The appellate Court would however be compelled to so interfere in certain circumstances, such as: (a) When the trial Judge has acted under a misapprehension of facts or law; (b) Where he has failed to take into account relevant matters; (c) Where the amount awarded is too low or too high; (d) Where failing to interfere would amount to injustice. See: U.B.N. PLC Vs AJABULE (2011) LPELR – 8239 (SC); CAMEROON AIRLINES Vs OTUTUIZU (2011) LPELR-827 (SC); USONG Vs HANSEATIC INTERNATIONAL LTD (2009) LPELR-3434 (SC).PER ADAMU JAURO, J.C.A.
GENERAL DAMAGES IN PERSONAL INJURY MATTERS
In personal injury cases, once there is evidence of injury pain, discomfort and scarring, even though these are not quantified in monetary terms, the plaintiff will be entitled to a reasonable general damages. See ESEIGBE Vs AGHOLOR 1993 9 NWLR PT. 316 PG 128.PER ADAMU JAURO, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIGERIA PLC – Appellant(s)
AND
1. SIMON I. UGBE
(Trading under the name & style of IGBE SIMON & CO. Legal Practitioner & Consultants)
2. RETRO PRINTS & PUBLISHING NIG. LTD
3. DADA ADEWUYI
4. YAKUBU ABU
5. EMMANUEL DADI
(Trading under the name & style of Success Tutorial Academy) – Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja (herein after referred to as the trial Court) in Suit No. FCT/HC/CV/1013/2016 delivered on the 12th day of April, 2016 by Hon. Justice Sylvanus Chinedu Oriji.
By amended writ of summons dated 2nd June, 2016 the Respondents as Plaintiffs claimed against the Appellant as Defendant as follows;
1. A DECLARATION of this Honourable Court that the forceful invasion and the purported taking over of the Plaintiffs’ offices and workshop lying and situate at Plot 499 Tafawa Balewa Way Area 3, Garki Abuja (Vaman Nigeria Limited) by the officers, staff, servants and agents of the Defendant and at the instance, prompting and instigation of the Defendant on the 14th day of December 2015, without a Court order is illegal, unlawful and unconstitutional and an act of self-help.
?2. An ORDER of this Honourable Court granting perpetual injunction against the Defendant, its agents, privies, business partners or whosoever from further trespassing/invading into Plaintiffs’ offices and
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business premises.
3. AN ORDER of this Honourable Court directing the Defendants to pay the sum of N7,210,000.00 (Seven Million, Two Hundred and Ten Thousand Naira) Only to the 1st, 2nd and 5th Plaintiffs.
4. AN Order of this Honourable Court directing the Defendant to pay the sum of N5,000,000.00 (Five Million Naira) Only as general and aggravated, or punitive damages for using self-help and in a commando style and without following the due process of the law to forcefully and forcibly wrecking the possession of the Plaintiffs’ offices and workshop thereby resulting to the huge loss of revenue earnings by Plaintiffs’ and the pains, embarrassment, hardship, instability, frustration and damage to the corporate images of the Plaintiffs, including the cost of this suit.
5. AN ORDER of this Honourable Court directing the Defendants to pay the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) Only being the cost of the damaged doors to the 1st and 2nd Plaintiffs’ offices.
6. An ORDER of this Honourable Court directing the Defendant to cause an apology to be published to the Plaintiffs in 2 (Two) National Dailies for Defendant’s illegal
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action.
7. AND FOR SUCH ORDER OR FURTHER ORDERS that this Honorable Court may deem fit to make in the circumstances.
The Defendant filed its statement of defence on 23/11/2016. At the hearing of the suit, the Respondents as Plaintiffs at the trial Court called 3 witnesses, while the Appellant as Defendant called only one witness.
The trial Court entered judgment in favour of the Plaintiffs.
Dissatisfied with the decision of the trial judge, the Appellant appealed to this Court vide two notices of appeal. The first notice of appeal was filed on 16/4/2016. While the second notice of appeal containing nine grounds of appeal was filed on 2/5/20181 The Appellant’s brief is predicated on the second notice of appeal.
The record of appeal was compiled and transmitted to the Court on 3/5/2018. The briefs of argument were subsequently filed and exchanged by the parties in accordance with the Rules of Court. The Appellant’s b
