Alfred Yahaya V. Felix Chukwura (2001)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A.

This is an appeal from the Judgment of S.O. Adagun, J. sitting in the Biu Judicial Division of Borno State, in Suit No. BU/18/89, dated 31/10/91, wherein the respondent herein, as plaintiff in the court below was awarded N15,000.00 (Fifteen Thousand Naira) general damages after his claim for special damages had been dismissed. As a passing remark, Adagun, J. had transferred his services from the Borno State Judiciary, to the Lagos State Judiciary, shortly after he had delivered this judgment now on appeal. Indeed, he has voluntarily retired from the High Court Bench, after having attained the statutory age of sixty five years.

Naturally, the appellant felt aggrieved with the award made by the court below of general damages after the main claim had failed. On 5/1/92 therefore the appellant filed, through his counsel a notice and grounds of appeal containing one ground of appeal. Much later on 15/5/2000 and upon an application filed on 17/2/2000, this court granted the appellant leave to file an amended notice and grounds of appeal containing five grounds of appeal. The lone ground of appeal in the original notice and grounds of appeal was incorporated in the amended notice and grounds of appeal. Thus, in all the appeal, contains five grounds of appeal.

In compliance with the rules of this court, parties, by their counsel filed and exchanged briefs of argument. Each party however, had to seek for and obtain extension of time to do so after the time allowed by the rules of court had expired. In his brief of argument, learned Counsel for the appellant identified three issues as arising for determination from the five grounds of appeal. The issues are the following:

(a) Whether the learned trial Judge was right in giving judgment on a statement of claim that was not before him.

(b) Whether on the pleadings and evidence adduced, the lower court, was right in giving judgment for the respondent in the sum of N15,000 as general damages.

(c) Whether the learned trial Judge was right in dismissing the appellant’s counter-claim moreso, that there was no defence filed by the respondent.”

On his part and as contained in the respondent’s brief of argument, learned Counsel also identified three issues for determination namely:

“(a) Whether from the record, it can be said that the respondent did not file a further amended statement of claim.

(b) Whether from the totality of the evidence before the court, the learned trial Judge was right in awarding damages of N15,000.00 to the respondent.

(c) Whether the appellant proved his counter-claim and was entitled to judgment.”

For a just disposition of this appeal, I shall consider the arguments of both learned Counsel on their respective issues. I shall however, consider the issues together such that issues identified by learned Counsel for the appellant shall be considered along with the corresponding issues formulated by learned Counsel for the respondent as it appears clear that the corresponding issues seem to address the matters in difference in the light of the perception of learned Counsel. The conclusion one would arrive at however. would settle the issues without the necessity of having to view them separately.

The facts which gave rise to the suit before the court below are themselves product of another suit. The defendant at the court below (the appellant herein) inherited from his deceased father, a landed property. The property was being occupied by the plaintiff, who established and operated hotel business therein even before the death of the defendant’s father. The plaintiff continued to be the tenant of the defendant, after the latter had inherited it. Sometime in the year 1987, the defendant increased the rental amount from N2,000.00 to N8,000.00 per annum. As the plaintiff would not have it, the defendant issued him with a quit notice. Having failed to quit and deliver up possession, the defendant sued him at the Upper Area Court, Biu seeking for the recovery of the premises. Judgment was given in his favour and the plaintiff was ordered to vacate the premises immediately. This the plaintiff did.

Be that as it may, the plaintiff was not satisfied with the said judgment of the Upper Area Court. It seems as a result, he appealed against the judgment at the court below. Almost simultaneously, he filed an application at the said High Court praying to have the judgment of the Upper Area Court (which incidentally had been executed) stayed. The learned trial Judge granted the application. When the defendant failed to return the keys of the demised premises as ordered by the court below, the plaintiff filed yet another application seeking to commit the defendant for being in contempt of the court order. Realising the looming danger in which he would find himself, the defendant obliged. The order of the court below dated 25/9/87 staying the execution of the judgment of the Upper Area Court was only complied with on 25/7/88. Informed by the above, the plaintiff filed the suit giving rise to this appeal seeking for special damages as itemised in the plaintiff’s amended statement of claim, dated 30/8/89 being loss of earning occasioned by the failure of the defendant to handover the keys to the demised premises as ordered by the court below. Paragraph 19 of the said amended statement of claim dated 30/8/89 gave particulars of the items of special damages claimed. I reproduce it hereunder: