Aloysius Nwokediaso & Ors V. Mrs Christiana Onuoha & Anor (2000)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This appeal emanates from the judgment handed out on 19th November, 1997 at the High Court of Justice, Onitsha in Anambra State of Nigeria.
The Plaintiffs/Respondent’s claims are contained in paragraph 46 of her statement of claim. Although they appear legion, I shall reproduce them for an adequate determination of this appeal. She claimed jointly and severally against the Defendants as follows:-
“(a) A declaration that the Plaintiff is the rightful allottee of pitche(s)/stall(s) No. ATK/2A and B at Ogbaru main market in Ogbaru Local Government Area, Anambra State of Nigeria.
(b) An order of court declaring null and void any revocation of the above mentioned pitche(s) stall(s) numbered in relief (a) or any re-allocation of same to any other person apart from the plaintiff.
(c) Injunction restraining the defendants, their agents, servants, privies, assigns or workmen from interfering with the Plaintiff’s rights and interests over the said pitch(s)/stall(s) No. ATK/2A and B or from dealing with the said property in any manner inconsistent with the Plaintiff’s rights and interests or from revoking or re-allocation of the said pitch(s)/stall(s) No. ATK/2A & B.
(d) SPECIAL DAMAGES: Goods and properties of the plaintiff destroyed by the defendants and their monetary values (Itemised from (i) to (ix) both inclusive) Total sum – N149,000.00.
(e) Loss of profit of the sum of N400 per market day starting from 31-1-95 to 28-4-97 for six hundred and seventy eight days which is N271,200.00.
(f) Loss of profit of the sum of N400.00 per market day starting from 28-4-97 to judgment day in this suit.
(g) N2,000,000.00 (two million Naira only) for general damages for inconveniences, pains, sufferings, humiliations etc. which the plaintiff sustained.”
The Plaintiff filed her statement of claim dated 30-4-97 on 2-5-97 as discernible from page 11 of the record of proceedings. As none of the Defendants filed a statement of defence in good time, the plaintiff’s counsel filed a motion on notice dated 31-10-97 on 13-11-97. This is manifest on page 14 of the record. Prayer 1 therein is for an order for judgment against the defendants/Respondents for failure to file their respective papers.’
On 19-11-97, the suit came up before the Trial Judge. The plaintiff was present in court, and represented by A.M. Umeozulu Esq, of Counsel. The Defendants were absent and not represented by counsel. Court notes indicate that Umeozulu Esq. asks for judgment in terms of the claim: There and then, the Learned Trial Judge proceeded to enter judgment in favour of the Plaintiff. The rationale for the judgment is contained in page 19 of the record. I need to reproduce it. And it goes as follows:-
“The plaintiff filed a statement of claim which was served on the defendants. The defendants filed a memorandum of appearance but none of them filed a statement of defence. I hold that the time prescribed by the High Court Rules, 1988, for filing statement of defence has passed. The plaintiff is entitled to judgment in default.
I observe that there is no evidence as to what the plaintiff earns as profit. It is not for this Court to quantify the loss against the defendants jointly and severally. The plaintiff is entitled to the sum claimed as special damages i.e. N149,000. (b) she is hereby declared the rightful allottee of pitch/stall No. ATK 2A and B at Ogbaru Main Market. (c) Any allocation made by the 1st defendant in respect of stall ATK/2A and B is hereby declared null and void. Finally (d) the defendants, their agents, servants, privies, assigns or workmen are restrained perpetually from interfering with the plaintiff’s rights and interests over pitch/stall ATK/2A & B or from dealing with said property in any manner inconsistent with the plaintiffs)” rights and interests or from revoking or re-allocating the said pitch/stall.
Costs to the plaintiff assessed and fixed at N5,000 inclusive”.
Signed
Judge
19/11
The Appellants naturally felt dissatisfied with the stance taken by the Trial Judge in his judgment. A notice of appeal dated 30-11-97 was filed on their behalf by B.C. Igwe Esq of Counsel, on 2-12-97. Five grounds of appeal accompanied the said notice. The grounds of appeal, without their particulars, read as follows:-
“GROUND 1 – ERROR-IN-LAW:-
The Learned trial judge erred in law in exercising his discretion to make a declaration of right to pitch/stall No. ATK/2A and B at Ogbaru Main Market in favour of the plaintiff when the plaintiff did not adduce any evidence to establish her entitlement thereto.
GROUND 2
The Learned trial Judge erred in law by awarding the plaintiff/Respondent the sum of N149,000.00 as special damages without taking evidence to quantify the damages entitled to by the plaintiff on the statement of claim.
GROUND 3
The Learned Trial Judge erred in law by failing to ensure that the Defendants/Appellants are accorded fair hearing under section 33 of the Constitution of the Federal Republic of Nigeria, 1979 as amended.
GROUND 4
The Learned Trial Judge erred in law by awarding judgment to the Plaintiff by reason of default by the Defendants to file statement of defence when no motion for such judgment was moved by the plaintiff/Respondent.
GROUND 5
The Learned Trial Judge erred in law in making an order of perpetual injunction against the Defendants in favour of the plaintiff with respect to stall No. ATK/2A and B, when from her own showing, she does not claim any interest thereat in the land thereof and hold (sic) no transmissible interest in the land”.
The Appellants and the 2nd Respondents exchanged briefs of argument in consonnance with the Rules of this Court. The plaintiff/Respondent did not file any brief of argument.
On page 2 of appellant’s brief of argument, five issues were distilled from their five grounds of appeal for the due determination of this appeal. They read as follows:-
“(i) Whether the learned trial Judge was right in making a declaration of right of the plaintiff/Respondent when the latter did not adduce any evidence to prove the averments in her pleadings.
(ii) Whether the learned Trial Judge acted on the right principle when he made an award of special damages to the plaintiff/Respondent without taking evidence to quantify the damages the plaintiff was thereof entitled to.
(iii) Whether the learned Trial Judge accorded the Defendants/Appellants any opportunity to be heard with respect to the application that led to this judgment.
(iv) Whether the plaintiff/Respondent’s Counsel actually moved his motion for judgment before the learned trial Judge awarded the plaintiff judgment.
(v) Whether the Plaintiff/Respondent’s interest in the subject matter of the suit is such that entitles her to the remedy of perpetual injunction that was decreed in her favour by the learned trial Judge.”
On behalf of the 2nd Respondent, four issues were formulated for determination. The issues appear to over-lap with those formulated on behalf of the appellants as reproduced above. However, for a balance, the four issues are also reproduced as follows:-
“1. Whether or not the learned Trial Judge was right in making a declaration of right in favour of the plaintiff who did not adduce any evidence to prove the averments in her pleadings.
2. Whether or not the learned Trial Judge was right in entering judgment for the plaintiff/respondent and granting the relief of special damages in default of pleadings.
3. Whether or not the Defendant was denied of fair hearing.
4. Whether or not the Trial Court was correct in making an order of perpetual injunction against the 1st Defendant.”
On appellant’s issue 1, B.C. Igwe Esq., of counsel submitted that the learned Trial Judge was wrong to have made a declaration of right in favour of the plaintiff/Respondent when she did not adduce any evidence to show that she was entitled to same. He referred to Wallersteiner v. Moir (1974) 3 AER 277, Vincent Bello v Magnus Eweka (1991) 1 S.C. 101 at pages 102-103; Aja Mazi Aja & Anor v. John Okoro & Ors (1991) 9 – 10 SCNJ 1 at page 23; Chief G.A. Titiloye v. Chief J. Olupe & Ors (1991) 9-10 SCNJ 122.
On issue 2, learned Counsel referred to order 9, Rule 42 (2) of the High Court Rules of Anambra State, 1988. He contended that the Trial Judge flouted the stated Rule when he failed to call for evidence before awarding the plaintiff judgment in the sum of N149,000 special damages. He maintained that the Rules of Court are prima facie, to be obeyed. He referred to Ratman v. Curmarasary (1965) 1 WLR 8; Bank of Baroda & anor v. Merchantile Bank (Nig) Ltd (1987) 6 SC.341 at p. 350.
Learned Counsel further submitted that in a claim for special damages, the plaintiff has to prove same strictly. He referred to Joachin Oseymen v. S.O. Ojo (1997) 2 SCNJ 365 at p. 386.
On issues 3 & 4, the appellants complained that the plaintiff filed motion for judgment in default as no statement of defence was filed. Learned Counsel maintained that on 19-11-97, no such motion was moved. Plaintiff’s counsel merely asks for judgment in terms of the claim’. He felt that they were not put on notice on the new stance. He referred to Okoroafor Mbadinuju & Ors v. Chukwunyere Ezuka & Ors (1994) 10 SCNJ 109 at p. 121.
Learned Counsel further submitted that where a party files an application before a Court praying for any relief it is the duty of such a party to move his application and failure to do so may be taken as a withdrawal of the application. He referred to Chief Gani Fawehinmi v. Attorney General of Lagos state & Ors (No.2) (1989) 3 NWLR (pt.11) 740 at p. 760.
On issue No 5, Learned Counsel observed that the plaintiff did not disclose the owner of the stalls, subject matter of the suit. He submitted that it was improper to decree an order of perpetual injunction in the absence of the owner of the stalls. He asserted that it was wrong to grant the said order to a limited owner when the owner of the absolute interest is not a party. He referred to Chief Dada; The Lojaoke v. Chief Shittu Ogunremi (1967) N.M.L.R 181.
Learned Counsel submitted that an allottee of a market stall does not enjoy any interest that exceeds that of a licencee. She is not seized of the estate in the land that could be protected by an order of injunction according to Learned Counsel. She only had right to occupy and use the stalls. He finally opined that it is not proper to grant an order of perpetual injunction at the instance of a limited owner. He again referred to Chief Dada, The Lolaoke’s case supra. He urged us to allow the appeal.
Mrs F.U. Ofor, on 2nd Respondent’s issue 1, submitted that declaration of right cannot be made on admission or in default of pleadings. She referred to Wellersteiner v. Morie (1974) 3 All E.R 217 at 251, Bello v. Eweka supra; Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) 90 at p. 102 and Faponle v. University of Ilorin Teaching Hospital Board of Management (1991) 4 NWLR (Pt.183) 52.
Learned Counsel also submitted that it was wrong for the learned Trial Judge to have made a declaration that the plaintiff/Respondent is the rightful allottee of the stalls without evidence. She contended that the proper step was for the Court to order the plaintiff to prove her claim by adducing evidence. She referred Nigerian Airways Ltd v. Ahmadu (1991) 6 NWLR (pt.198) 492 at p.495.
On issue 2, Learned Counsel submitted that vide order 9 Rule 42 (2) of the High Court Rules of Anambra State, 1988, special damages should not be awarded without the court calling for evidence in proof of same. She felt the award of N149,000 special damages was wrongly made as such was not strictly proved. She referred to Africa Shipping Agency (Nig.) Ltd. v. Alhaji Musa Kella (1978) 3 S.C. 21 at p. 31.
On issue 3 Learned Counsel submitted that where a person’s legal rights or obligations are called in question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. She referred to Olumesan v. Oladepo (1996) 2 NWLR (Pt.433) 628 at p. 644, Atsher v. Gachi (1997) 6 NWLR (Pt.510) 609 at 629.
Learned Counsel observed that the motion slated for 19-11-97 for judgment in default of defence was not moved. She observed that plaintiff’s Counsel on that day asked for judgment in terms of the claim; which was not brought to the notice of the defendants before it was decided upon by the Learned Trial Judge. She contended that such constituted an infraction of the defendants’ right to fair hearing as they were not given opportunity to reply to the oral application for judgment in terms of the claim.
On issue 4, Learned Counsel opined that when a party claims a relief of perpetual injunction, it is sufficient if the evidence led shows a right or interest the Court could protect by that order and an actual, threatened or likely infringement or violation of that right or interest by the other party. She cited Biyo v. Aku (1996) 1 NWLR (pt.422) 1. Learned Counsel asserted that it was wrong of the Trial Judge to grant perpetual injunction order without any evidence adduced by the plaintiff. Learned Counsel felt that since the plaintiff claimed to be an allottee of the stalls, she is merely entitled to occupy same for a limited period. She finally submitted that the Court could not make a decree of perpetual injunction in favour of a limited owner as against the owner of the absolute interest.
Learned Counsel finally maintained that for the reasons advanced by her, she could not support the judgment. She urged that the appeal be allowed. She also asked that the judgment of the Trial court be set aside.
The Plaintiff/Respondent’s reliefs (a) and (b) as reproduced earlier in this judgment are for declarations in her favour. The Trial Court granted the reliefs without any shred of evidence adduced by the plaintiff/Respondent. Issue no 1 in the Appellants’ brief as well as issue no 1 in the 2nd Respondent’s brief query the stance of the Learned Trial Judge in this respect.
It must be noted that the position of things in relation to whether or not a declaratory judgment can be granted on admission by a party or in default of pleadings, appears fluid. Some decades ago, judgments used to be entered in declaratory matters on default of pleadings. Refer to Ogunleye v. Arewa (1960) WRNLR (Pt.1) 9, Babajide v. Aisa (1966) 1 All NLR 254. It occurs to me that from a plethora of recent authorities, Courts have shifted the ground. They insist on evidence before a judgment shall be given in a case for declaration. In Wallersteiner v. Morie supra at page 251, Buckley, LJ., said-
“It has always been my experience and I believe it to be a practice of long standing that the court does not make declarations of right either on admission or in default of pleadings but only if the court was satisfied by evidence.”
Such is in consonance with reason as declaratory judgments basically have to do with discretion. And such discretion should be rooted in considered evidence. In Alhaji Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) 90; (1988) 12 SCNJ 166 at p. 177 the Supreme Court insisted that in a case of declaration, since the grant of declaratory relief is within the discretion of the court the plaintiff to succeed must give evidence of his entitlement to the declaration and could not rely on admission in the pleadings. This has been the trend. Refer to Lewis Peat (NR.) Ltd v. Akhimien (1976) 7 SC, 157; Bello v. Eweka (1981) 1 S.C. 101, Ogbonna v. A.G. Imo State (1992) 1 NWLR (Pt.220) 647; Faponle v. University of Ilorin Teaching Hospital Board of Management (1991) 4 NWLR (Pt.183) 52. In this case, it was pronounced with certainty by Ogundare JSC that a declaratory judgment can only be given where the justice of the case warrants it having regard to the pleadings and evidence led in proof by the plaintiff in which he discharged the onus of proof on him under section 136 of the Evidence Act. To make assurance doubly sure, I must still refer to Nigeria Airways v. Ahmadu supra, Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254 and Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23, as well as Mortune v. Balonwu & Anor. (2000) 5 NWLR (Pt.655) 87 at 121; 128.
It is clear from the above analysis that the declaratory judgment awarded to the plaintiff by the Trial Court without any iota of evidence missed the target. And, as such, the judgment was entered to no avail. It cannot stand in the prevailing circumstance.
Issue no 2 in both briefs of argument relates to the award of the sum of N149,000 to the plaintiff who did not adduce any evidence in support of same. It must be quickly pointed out in this respect that the Trial Judge did not take note of order 9 Rule 42 (2) of the High Court (Civil procedure) Rules of Anambra state, 1988 which provides as follows:-
“If a defendant fails to file a statement of defence as prescribed by these rules or by the order of the court, the plaintiff, on his application, shall be entitled to judgment on the face of the statement of claim; provided that where damages are claimed, the court shall take evidence before quantifying the damages entitled by the plaintiff on the statement of claim.”
The Learned Trial Judge failed to quantify the damages as put up by the plaintiff. He awarded the plaintiff the sum of N149,000 special damages as claimed by her. The Learned Trial Judge in his judgment, said – ‘it is not for this court to quantify the loss against the defendants jointly and severally’. I feel such stance was in flagrant disregard of this Rule of court as reproduced above. The Learned Trial Judge ‘left undone that which should have been done’. It must always be borne in mind that Rules of court are specially designed as guide in due administration of justice. Rules of Court are, prima facie, to be obeyed. See Ratman v. Curmarasary supra Bank of Baroda v. Merchantile Bank (Nig) Ltd supra.
The above is not the end on this issue. I need to state it that it is no longer a moot point that special damages must be strictly proved by a plaintiff. Refer to Agunwa v. Onukwue (1962) N.S.C.C. (vol. 2) 345, Jaber v. Basma 14 WACA 140, Joachin Oseymon v. S.O. Ojo supra; African Shipping Agency (Nig) Ltd. v. Alhaji Musa Kella (1978) 3 SC. 21 at p. 31 where the Supreme Court held that strict proof in the con of special damages can mean no more than such proof as would readily lend itself to quantification or assessment.
At page 354 of Black’s Law Dictionary, 5th Edition, special damages are said to be –
“Those which are the actual but not the necessary result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions.
Twin Coach Co. v. Chance Vought Aircraft Inc. 2 Storey 588, 163 A. 2d. 278, 286. Special damages must be specially pleaded and proved. Fed. R. Civil P. 9 (g).”
I have taken time to quote the above to depict the fact that the concept relating to proof ascribed to a claim in special damages is not one that is only employed by Nigerian Courts. It is a concept that is accepted allover the Common Law Countries. It has been shown that the position is the same in American Courts. As such, it appears to me that it has a fairly universal tenor.
Put mildly, the Learned Trial Judge abandoned a seeming universal concept by awarding the sum of N149,000 to the plaintiff who did not give any atom of evidence to buttress same. It is not proper to disregard a Universal concept; as it were. Such often leads to the rock. The special damages of N149,000 awarded to the plaintiff without evidence in assessment of same was, no doubt, wrong.
Appellants’ issues 3 and 4 are subsumed by the 2nd Respondents issue no 3. It is manifest that the plaintiff filed a motion for judgment in default as no statement of defence was filed. From the minutes at page 18 of the record of appeal, there is no indication that A.M. Umeozulu Esq, Learned Counsel for the Plaintiff, moved the motion. He only ask for judgment in terms of the claim’.
I completely agree with the counsel on both sides of the divide in this appeal that the defendants should have been put on notice of the new stance taken by the plaintiff. They should be heard on the new stance before judgment was entered. See Olumesan v. Oladepo supra and Atsher v. Gachi supra. The defendants are entitled to have the judgment entered against them behind their backs set aside in the prevailing circumstance. See Okoroafor Mbadinuju & Ors v. Chukwunyere Ezuka & Ors supra at page 121.
An application by a party to a suit is not just filed for the fun of it. Where a party files an application before a court for any relief, it is the duty of such a party to move his application. Failure to do so, as in this matter, may be taken as a withdrawal of the application. See Fawehinmi v. A.G. Lagos State supra.
The last issue relates to the propriety or other wise of the order of perpetual injunction granted by the Trial Judge. Since the plaintiff did not adduce any evidence to show her right or interest in the market stalls, the order made by the Trial Judge hangs in the air. See Biyo v. Aku supra.
The plaintiff says she is an allottee of the stated market stalls. At best, she is a licencee; a limited owner. A Licencee is a person who has a privilege to enter upon land from the permission or consent, express or implied, of the possessor of land but who goes on the land for his own purpose. He is subject to the whims and caprices of the possessor or real owner of the land. He is not seized of any estate in the land that could be protected by an order of perpetual injunction.
See Chief Dada, The Lolaoke v. Ogunremi supra. The plaintiff only had right to occupy and use the stalls. It is not proper to grant an order of perpetual injunction at the instance of a limited owner as the Plaintiff herein against the real; actual owner, not shown to be a party to the suit.
I now come to the final stage of the judgment. In all its ramification, the appeal is meritorious. And it is accordingly hereby allowed. The judgment of the Trial Court, as well as costs awarded by him, are hereby set aside. Since the Learned Trial Judge has been elevated, the case is remitted to the Chief Judge of Anambra State for due assignment to a Judge of his court for an adequate determination. I award N2,000 costs against the plaintiff/Respondent in favour of the Appellants.
Other Citations: (2000)LCN/0811(CA)