Anthony Odiba V. Tule Azege (1998)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This appeal is sequel to proceedings instituted in the High Court, Gboko, Benue State, whereby the respondent, Tule Azege, who was plaintiff in the High Court, claimed N1,000,000.00 (one million naira)against the appellant, Anthony Odiba, being special and general damages for the unlawful demolition of premises situate at Plot No. BN. 6763, along J.S. Tarka Way, Gboko, being in possession of the respondent.

The facts of the case have been given in the writ wherein the respondent as plaintiff averred as follows:

“1. On or about the 15th day of November, 1984 the Local Government Sanitation Task Force, Gboko, wrote to the plaintiff letter No. GLG/HEA/DHC/T/ENV/SANT/VOL.1/44 ordering the plaintiff to destroy his said premises and in the alternative threatening to destroy same.

2. The plaintiff on or about the 19th day of November. 1984, filed an action in the High Court, Gboko, seeking three declarations to the effect that the said task force has no powers to order the plaintiff to destroy his said premises and seeking an injunction to restrain the task force from carrying out its threat to destroy the plaintiff’s said premises.
3. At the time of filing the said declarations and injunction, the plaintiff also filed a motion for interim injunction against the said task force restraining it in the interim from carrying out its said threat pending the trial of the main suit.
4. Even though the said suit and motion were fixed by the High Court for the 5th day of December, 1984, the High Court by letter No. GBD/65/84/1 dated the 20th day of November, 1984, admonished the said task force not to do anything on the premises of the plaintiff before the motion for interim injunction had been determined.
5. The Honourable Attorney-General of Benue State by letter No. MOJ/CIV/129/84 dated the 2nd day of November, 1984, also advised the said task force not to do anything to the plaintiffs said premises until the said motion for interim injunction had been determined.
6. The defendant is not a member of the said task force but performed the function of appointing members of the task force.
7. The defendant at all material times was aware of the said letters from the High Court and the Honourable Attorney-General of Benue State, respectively.
8. Without waiting for the said motion for interim injunction to be determined and in utter disrespect of the said letter from the High Court and in complete disregard of the said letter from the Honourable Attorney-General of Benue State, the defendant on or about Friday, the 23rd day of November, 1984, wrongfully entered the plaintiffs said premises situate at Plot No. BN 6763 along J.S. Tarka Way, Gboko, and unlawfully broke into and caused to be destroyed the plaintiffs building thereon and stock in trade therein contained.”

By reason of the action of the appellant the respondent filed this suit and claimed N1,000,000.00 (one million naira) being general and special damages as set out in the following particulars:

“(a) N200,000.00 being the value of the building destroyed.

(b) N20,000.00 for loss of use from 23/11/84 until judgment.

(c) N25,000.00 being value of destroyed Mercedes Benz 911.

(d) N4,500.00 being value of 25 trips of chippings.

(e) N18,640.00 being value of 900 crates of More beer.

(f) N300.00 being value of 11 bags of Locust beans.

(g) N1 ,012.50 being value of beans (IVE)”‘.

Pleadings were ordered and duly filed. The case was first heard by Anoliefo J of Benue State High Court, but half way during the hearing Utsaha J took over and started de-novo. Parties gave evidence and called witnesses. At the end of the trial the learned trial Judge, in a considered judgment, held as follows:

“The conduct of the defendant was not only oppressive but also reprehensible and bordered on an unwarranted use of governmental power. It deserves a measure of exemplary or aggravated damages.”

The learned trial Judge whose judgment was delivered on 23/11/89 considered the rising cost of living since the case was registered in 1984 and the conduct of the appellant before awarding the appropriate damages to the respondent. In consequence thereof he awarded both special and general damages totalling N312.652.80 to the respondent.

Aggrieved by the judgment, the appellant appealed to Court of Appeal. The Court of Appeal in its judgment considered all the submissions made by the respective counsel for the parties before it and agreed with the appellant that some aspects of the special damages had not been proved. The damages awarded were therefore reduced. Accordingly, the appeal was dismissed in part.

It is against that decision that the appellant has finally come to this court, armed with one original and six additional grounds of appeal, contesting the judgment of the Court of Appeal. The following issues formulated by the learned counsel for the appellant are the central questions that call for determination of this appeal.

“(a) Was the learned Judge and the Justices of the Court of Appeal justified in concluding-

(i) that it was the appellant who had ordered the demolition of the respondent’s house,

(ii) that the appellant did so in the face of timely warning by the chairman of the task force and against the advice by the resident state counsel, and

(iii) that this was a proper case to award aggravated general damages,

(iv) that the respondent proved and was entitled to the award of special damages

(b) Was the award of special damages to the respondent, in the circumstances of this case, not compensating the respondent twice over for one loss

I however made issue (b) to read (iv) because it is a sub-paragraph or issue (a). Issue (b) is to remain unchanged. The two issues formulated by the learned counsel for the respondent are based on questions against an appeal from concurrent findings of fact and double compensation of damages.

Learned counsel for the appellant devoted 26 pages of a 34-page appellant’s brief and the entire appellant’s reply brief to show that the concurrent findings of the two lower courts are perverse because the findings of the trial court which the Court of Appeal accepted were based on evidence rendered highly unreliable by reason of material inconsistencies and contradictions. Mr. Ulegede made a very serious allegation against the learned trial Judge in the appellant’s brief wherein he said that some findings of the learned trial Judge were based on no evidence at all while yet others were based on evidence manufactured by the learned trial Judge himself and credited to a witness.

I have looked into the submission of learned counsel on the manufactured evidence by the learned trial Judge and it is pertinent to reproduce what the learned Judge said in his judgment which made the learned counsel to say that he manufactured evidence and credited it to a witness. The learned Judge said as follows:

“The plaintiff on the other hand testified that when the Task Force Committee served him a notice to demolish the building he went to see the defendant with all his documents of title. That the defendant not only refused to see him but drove him away.”

I have also gone through the evidence adduced by the respondent and, quite correctly, as the learned counsel had submitted, the respondent did not say that he went to see the appellant after he had received the letter of notice from the task force. What he said while giving evidence in court is as follows:

“Before the task force wrote me the letter, they came and marked the house in bold red paint with crosses. Initially I thought they had made a mistake; so I carried all my documents of title to them together with my approved building plan.”

However, the appellant himself, in answer to a question during the cross-examination testified before the learned trial Judge and explained about the visit of the respondent to him as follows:

“I remember the plaintiff came to me to make representations in respect of the house with all his documents of title. I referred him to the task force to settle the matter with it”.

The only error therefore committed by the learned trial judge during the evaluation of the evidence concerning the visit of the respondent to the appellant with his documents of title was where he said that it was the respondent who testified to that fact instead of saying that the appellant told the court that the respondent visited him with his title documents. Is this enough to show that the decision of the learned trial Judge which the Court of Appeal accepted is perverse I think not. A perverse decision is one which ignores the facts or evidence and, when considered as a whole, it amounts to a miscarriage of justice. See also the case of Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360 at 375.

The case of the respondent is quite plain. As explained above, it is clear from the facts that soon after he had been served with a notice that his house was to be demolished he ran to the High Court and filed a suit seeking, inter alia, for an injunction to restrain the task force from demolishing his house. He also filed a motion praying for interim injunction restraining the task force from carrying on with its threat pending the hearing of the suit. He also complained before a representative of the Ministry of Justice. Both the High Court and the Ministry of Justice requested the task force to stay their action pending the hearing of the suit. There is evidence from the witnesses called by both the appellant and the respondent that the Task Force Committee met on 22/11/84 over the cases of houses of the respondent and one Akaazua Muemue and resolved to stay action pending the receipt of an advice from the state counsel. On the following day the appellant went to the house of the respondent with a bull-dozer and had it demolished.

The appellant has a herculean task in this appeal to show that such overwhelming evidence against him has cracks which would lead this court to interfere with the concurrent findings of the two lower courts. See Chief Akin Omoboriowo & Anor. v. Chief Michael Adekunle Ajasin (1984) ANLR page 105; (1984) 1 SCNLR Page 108 and Chief Bola Ige v. Dr. Victor Olunloyo (1984) ANLR page 150; (1984) 1 SCNLR Page 158.

Mr. Ulegede, learned counsel for the appellant, submitted in the appellant’s brief, that there was evidence to show that it was not the house of the respondent alone which was demolished on 23/11/84. He said that two other houses were also demolished. But this is not the issue. Even if other houses were demolished if the owners did not complain it does not stop the respondent from going to court and filing a suit against the task force. Another flaw in the argument of appellant’s counsel is where he said that the central issue is not the presence or otherwise of the appellant at the respondent’s house at the time of the demolition but whether it was indeed the appellant and not the Task Force Committee that demolished the house on 23/11/84. Counsel argued that the appellant was not present at J.S. Tarka Way, Gboko, when the respondent’s house was demolished. This submission is contrary to the evidence of D.W.3 and D.W.4 who were appellant’s witnesses and the witnesses called by the respondent. They all told the trial court that the appellant was present when the house was demolished.

It is relevant to note that P.W.1, P.W.2 and P.W.5 were members of Gboko Local Government Environmental Sanitation Task Force and they told the trial court that the appellant was not a member of the task force. To make the case of the appellant worse most of the members of the task force who gave evidence affirmed the assertion of the respondent that when the task force knew about the case filed by the respondent the committee met and agreed to stay action against the house of the respondent pending the determination of his case in court.

The evidence of P.W. 5 which the learned trial Judge believed and the Court of Appeal affirmed, has established beyond any doubt that the appellant directed for the demolition of the respondent’s house. P.W.5 testified thus:

“On 23rd November, 1984 I was in office when my cleaner came to inform me that the defendant wanted to see me. When I came out I saw the defendant outside. There was a bull-dozer being carried by a vehicle which was parked outside the offices between the secretariat buildings and the Tor Tiv’s palace. The defendant directed me to lead the vehicle to the following buildings: Stephen Kungwa, Madam Shitile Avaa, Tule Azege, Akaazua Muemue and J.I. Kajo. My instructions were to take the driver of the bull-dozer and show him the buildings belonging to the people mentioned above. The defendant also accompanied us.

I eventually directed the driver of the bull-dozer to the plaintiff s house. The defendant was also in our company. When we got to the plaintiffs house. the defendant ordered the driver of the bull-dozer to take the bull-dozer from the vehicle carrying it down and demolish the house. While the bull-dozer was demolishing the plaintiff’s house, the defendant was around, directing the driver of the bull-dozer on what part to demolish.”

It is therefore quite clear that the appellant, who was not a member of the task force, directed for the demolition of the house of the respondent. I agree that the two lower courts found correctly that the respondent should be answerable for such oppressive act.

I now turn to the issue on the award of special and exemplary damages. Learned counsel for the appellant submitted, in the appellant’s brief, that the task force took a decision to demolish the house of the respondent and that there was no satisfactory evidence that the task force had communicated to the appellant its decision to suspend the resolution reached to demolish the house of the appellant Counsel further argued that if the appellant directed P.W.5 to order the bull-dozer driver to the respondent’s house in order to demolish it the appellant cannot be said to have demolished the house out of spite or cruelty or in flagrant disregard of the law. Counsel finally submitted that there was no basis for the conclusion that the appellant’s conduct warranted the award against him of exemplary or aggravated damages.

In reply to the above submission, learned counsel for the respondent, in the respondent’s brief, submitted that the demolished building had not yet been condemned as a building that must be demolished since the question whether the building contravened the law or was illegally built was a matter that was to be determined by the court. The suit was the case filed by the respondent against the task force in the High Court, Learned counsel is quite correct here. What really aggravated the case of the appellant is the fact that he was not a member of the task force and therefore had no business or authority to order for the house of the respondent to be demolished. In addition to what I have said above the task force whose assignment was to see that illegally constructed premises should be demolished had decided to stay the demolition of the respondent’s house pending the determination of his case in court. These aspects made the conduct of the appellant, as quite rightly found by the trial court, reprehensible and oppressive. In the case of Eliochin (Nigeria) Ltd. v. Victor Mbadiwe (1986) 1 NWLR (Pt.14) 47 at 65. Obaseki J.S.C., contributing to the lead judgment held;

“The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages. Vindictive damages, even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like”.

The behaviour of the appellant falls within the first category of cases listed by Lord Devlin in the case of Rookes v. Barnard (1964) A.C. 1129, in which exemplary damages could be awarded. Lord Devlin held, in that case, that exemplary damages could be awarded against oppressive, arbitrary and unconstitutional action by servants of the government.

In sum, the appellant has established no convincing argument to warrant my interference with the decision of the Court of Appeal on the award of damages which it accepted to have been proved before the High Court. This appeal has therefore failed and it is dismissed. The judgment of the Court of Appeal is hereby affirmed. I award N10,000.00 in favour of the respondent.

SC.20/1992