Anyasinti Umunna & Ors V. Animudu Okwuraiwe & Ors (1978)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

The appellants were defendants in Suit No. A30/72 instituted by the respondents at Asaba in the Asaba Judicial Division of the High Court of Justice, Mid-Western State (now Bendel State) of Nigeria wherein the respondents as plaintiffs claimed by their Writ of Summons and paragraph 20 of the Statement of Claim:

“(a) A declaration that the plaintiffs are entitled to the exclusive possession of that piece and parcel of land lying and situate in Asaba within the Asaba Judicial Division known as Akwulo land as shown on and verged in pink in plan No. LSU 624 filed by the plaintiffs in this suit;

(b) N4000 (Four Thousand Naira) damages for trespass; and

(c) An injunction restraining the defendants, their servants or agents and each of them from committing further acts of trespass on the said land.”

In compliance with the order of the trial court, pleadings were duly filed and served or delivered and the matter came up for hearing before Akpata, J., At the conclusion of the hearing of evidence of witnesses called by the parties and addresses of counsel, the learned trial Judge delivered a considered judgment finding in favour of the plaintiffs/respondents on all the three items of claim.

As the mis-statement of the 1st item of claim in the opening paragraph of the said judgment was brought to the notice of the learned trial Judge before costs were asked for by counsel and ordered by the learned trial Judge, the learned trial Judge expressly regretted the error before entering judgment on the 1st item of claim in favour of the plaintiffs. Thereafter he heard counsel’s application and argument on the question of costs and made his award. All these appeared on the pages of the record particularly from the first 4 lines of the judgment and the concluding portion which reads:

“This is an action brought by the plaintiffs for themselves and on behalf of the Idumugbe family of Asaba for a declaration of title to a parcel of land referred to in their Statement of Claim and plan as Akwulo (Akwu Ulo) land….

Also although there is sufficient evidence to show that plaintiffs are entitled to exclusive possession of the land in dispute, they cannot in this action be awarded “exclusive possession” against the defendants as they did not ask for it either in their Writ or Statement of Claim……The plaintiffs having established at least exclusive possession to Akwulo land, their claim for injunction is bound to succeed. The defendants did not deny farming on the land. The plaintiffs’ claim is for damages for trespass between 1967 and 1971. There is sufficient evidence in support of the claim for damages in respect of trespass to the land. The plaintiffs are also bound to succeed in respect of the claim for trespass. In the circumstances for the reasons above, an order for a non-suit is entered against he plaintiff in respect of their claim for a declaration of title. The defendants in this action that is the Odanta family (village) or Ibusa, their agents and servants are hereby restrained from farming, or doing anything amounting to an act of trespass on the land known as Akwulo land, more particularly described and verged pink in survey plan No. LSU 624 admitted in evidence marked as Exhibit A in these proceedings. The plaintiffs are also awarded N3,000.00 (Three Thousand Naira) as general damages for trespass.

Court

My attention has been drawn to the fact that the plaintiffs’ claim is for a declaration for exclusive possession to the land. The error of the court is regretted. It is, in my view, a slip which can be corrected, particularly as the court has not dealt with the issue of costs. Having regard to my findings of facts, it is hereby declared that the plaintiffs are entitled to the exclusive possession of that piece of land known as Akwulo land more particularly described and verged pink in survey plan No. LSU 624 admitted in evidence and marked Exhibit A.”

The defendants were aggrieved by the above judgment and have now appealed to this court on 6 grounds which read as follows:

“1. The learned trial Judge erred in law and upon facts when he drew mistaken conclusions derived from facts on a foundation different from the claim before the court and gave judgment on a point not raised before him.

2. The learned trial Judge erred in law in altering his judgment without first inviting the views of counsel on both sides, and which alteration was not specific as to what was altered thereby leaving his judgment in a state of confusion.3. The learned trial Judge having found as follows in his judgment

“also although there is sufficient evidence to show that the plaintiffs are entitled to exclusive possession of the land in dispute they cannot in this action be awarded “exclusive possession”; against the defendants as they did not ask for it either in their writ or Statement of Claim.”erred in law and contradicted himself, when he later held as follows “It is hereby declared that the plaintiffs are entitled to the exclusive possession of the piece of land known as Akwu Ulo land.”

4. The learned trial Judge erred in law and upon facts when he awarded damages for trespass and injunction against the defendants/appellants having held earlier that the plaintiffs/respondents could not be awarded “exclusive possession”;
5. The damages as well as costs awarded are manifestly excessive.
6. The judgment is against the weight of evidence.”

Grounds 1, 2, 3, and 4 were argued together whilst grounds 5 and 6 were argued separately.

On grounds, 1, 2, 3, and 4, Mr. Chigbue, learned counsel for the appellant, submitted that the record was silent as to the person who drew the attention of the learned trial Judge to the error in stating the 1st item of claim in the judgment before he gave judgment on it. He contended that in any case, he could not properly exercise his power under the Slip Rule – without hearing from both counsel. He was at pains however to contend that counsel was not heard but maintained quite rightly that the record was silent on the point. On ground 4, he submitted that the confusion as to the first item of claim which existed in the mind of the learned trial Judge when writing his judgment must have worked adversely against the appellant and must have prevented a proper consideration of the defendants’ case.

Turning to ground 5, learned counsel for the appellants submitted that on the evidence the respondents suffered no special damage to aggravate the act of trespass and that the trespass proved was only of a technical nature which entitled the plaintiffs/respondents to only a nominal award.

On ground 6, he contended that there were conflicts in plaintiffs’ evidence particularly as to the number of shrines on the land in dispute. Professor Kasunmu, learned counsel for the respondents drew the attention of the court to the part of the record containing the address of counsel for the appellants. He then submitted that the learned trial Judge was led into the error by the address of counsel which incorrectly stated the 1st item of the claim.

He further submitted that the court had power to correct such errors as arose in this case and that the learned trial Judge properly exercised his powers. On the question of damages, he contended that the evidence on record justified the award especially in view of the fact that previous judgments had no restraining influence on the appellants. Dealing with ground 6, he submitted that there was no conflict in the evidence relating to the number of shrines and that if it be regarded as such, it is minor and further submitted that there was abundant evidence to support the findings and judgment of the learned trial Judge. We think that the complaint in ground 1 of the ground of appeal does not arise. This is so because the relevant portion of the judgment complained of which had been reproduced above was amended by the learned trial Judge in exercise of the inherent powers of the court and also in exercise of the powers of the court under Order 20 rule 11 of the Rules of the Supreme Court of England made applicable in the Bendel State by virtue of Order 35 rule 10 of the High Court (Civil Procedure) Rules of the Western Region applicable in Bendel State otherwise known as the Slip Rule. Order 35 Rule 10 of the High Court (Civil Procedure) Rules reads: “Where no provision is made by those rules or by any other written laws, the procedure and practice in force for the time being in the High Court of Justice in England shall so far as they can be conveniently applied, be in force in the court, provided that no practice which is inconsistent with these rules shall be applied.”

While order 20 rule 11 of the Rules of the Supreme Court of England 1965 reads:

“Clerical mistakes in judgments or orders arising therein from any accidental slip or omission may at any time be corrected by the court on motion or summons without appeal. Turning to ground 2 of the grounds of appeal which complains of the failure of the learned trial Judge to invite the views of counsel before proceeding to alter the judgment, we are at pains to appreciate the point of complaint. This situation really was not one of altering a judgment. It was one of giving judgment on a claim before the court which the learned trial Judge erroneously thought at first was not before him. It must be emphasised that a Judge had no duty to pronounce on a claim not before him except as obiter. His clear duty is to pronounce on a claim before him in respect of which evidence has been led. There is evidence on record that in the presence of the parties and their counsel, the omission to pronounce on the first item of the claim was brought to his attention. We feel strongly that the learned trial Judge’s attention could only have been drawn to the omission by counsel although it was not so stated on the record. If it was done by counsel, it was a commendable one in the discharge of his duty to the court and course of justice and has saved time and costs.

The failure to pronounce on the claim before him (which claim he had found proved but erroneously expressed was not before him to enable him give a declaration in those terms), having been drawn to the learned trial Judge’s attention, it does seem to us that his clear duty was (and he has no other duty) to pronounce the declaration he had earlier found proved when he was labouring under the erroneous belief that that claim was not before him. To invite counsel to address him on whether he should perform his duty at that stage would in our view be superfluous and unnecessary. We find ourselves therefore unable to accept the contention of counsel that the failure to do so vitiates the judgment. On a proper examination of ground 3, we find that the appellant seems to be running away from the reality of the situation. He had omitted from the portion of the judgment quoted the relevant facts expressed by the learned trial Judge before making the declaration of exclusive possession in favour of the respondent. The relevant portion of the judgment had been set out above in the opening paragraphs of this judgment and therein it is crystal clear that the learned trial Judge regretted his error in stating that

“They (i.e., the respondents), cannot in this action be awarded exclusive possession against the defendants as they did not ask for it either in their Writ or Statement of Claim”. The appellants are all aware that the respondents asked for it both in their Writ of Summons and in their Statement of Claim. We therefore see no merit in grounds 1, 2 and 3. Although the point was not specifically raised in grounds 1, 2, 3 and 4, the competence of the learned trial Judge to correct his error was seriously questioned and we intend to say a few words on this aspect of the law.

We cannot doubt that under the original powers of the court, quite independent of any order, that is made under the governing statutes, every court has power to correct accidental slips and omissions properly brought to its motion. Lord Hobhouse delivering the opinion of the Board of Privy Council in the case of Milson v. Carter (1893) AC 638 observed at page 639-640 “This is an application on the part of the respondent in the appeal now dismissed Milson v.Carter asking for an order directing the appellant to pay the costs of and incidental to the appeal and also the costs of the present application. It is obvious that the omission to provide for the case of dismissal under the order of June, 1853 – a case of constant occurrence – must have been an accidental omission for which the registrar of the Supreme Court or perhaps the respondent himself is to blame. It is impossible to suppose that the court could have intended to give the appellant an opportunity of shuffling out of his liability by making default in the prosecution of his appeal. Their Lordships do not doubt that the court had powers at any time to correct an error in a decree or order arising from a slip, whether there is or is not a general order in that effect. A recent instance of the exercise of this power occurred in the case of Hatton v. Harris before the House of Lords (1892) App Cas 547 where an error arising from an accidental omission was corrected after the lapse of forty years.” (Underlining ours) The minute of a judgment can in our opinion be corrected suo motu at the time of reading the judgment as it has the effect and force of a decree. Order 29 rule 4 of the High Court (Civil Procedure) Rules reads:

“A minute of every judgment whether final or interlocutory shall be made and every such minute shall be a decree of the court and shall have the full force and effect of a formal decree. The court may of its own motion or on the application of either party order a formal decree to be drawn up.”

In the case of Federal Public Trustee v. Mrs. C.A. Sobamowo (1967) NMLR 350 Taylor, CJ., exercised this power quite rightly in our view to correct accidental slips and omissions in the judgment and orders of the court. In the case of Daniel Asiyanbi v. Emmanuel Awe Adeniyi (1967) NMLR 238, the Supreme Court (Coker, JSC., delivering the ruling of the court) in refusing the application seeking an order that

“The judgment and order of this Honourable Court (the Supreme Court) dated 4th March, 1966 be read as if all references to the appellant’s counter-claim were deleted and that there should be substituted therefore either (a) an order directing that arguments be heard on the question of the appropriate order to make regarding the appeal from the order dismissing the counter claim or (b) an order that the said counter-claim be struck out”

said at page 245:

“The defendants could have drawn attention to the error of fact in the judgment of the court when it was delivered and asked it to be corrected but not having availed themselves of that opportunity before the order was drawn up we consider it too late for them to ask the court to do so.” (Underlining ours)

It appears that the respondents in this appeal were well advised to bring to the attention of the learned trial Judge the error of omission in his judgment when it was delivered. In our opinion, that course is not open to question in this court as that was the step this court openly expressed should have been taken by the applicant in the Asiyanbi’s case (supra). If it had been an error of the court in law, the court would have had no jurisdiction to correct such errors even though apparent on the face of the order (Bright v. Seller (1904) 1 KB 6, Re: Gist (1904) 1 Ch 408).

We therefore find no merit in grounds 1, 2, 3 and 4 of the grounds of appeal and the appeal on those grounds fails.

Turning to ground 5, we think that only the complaint on the excessive quantum of damages has merit in it. The complaint against the costs awarded was not substantiated and was not pursued.

In support of this complaint about excessive award of damages, counsel for the appellant properly, in our view, submitted that the trespass committed by the appellant was only of a technical nature which can at best attract only nominal damages or minimal compensatory damages. See Armstrong v. Sheppard and Short Ltd. (1959) 4 QB 384. No special damage was claimed and non was proved. The period of trespass complained of was 1967-1971 – a period properly described as a period of civil strife and conflict in Nigeria resulting in the absence of peace in the area in which situates the land in dispute. This state of affairs could not have enabled the appellants to farm profitably. It is true that the award of exemplary damages is a somewhat make-shift and arbitrary method of preventing a tort-feasor’s “unjust enrichment”. But no unjust enrichment has been alleged or proved in this case.

The learned authors of Volume 12 of the Halsbury’s Laws of England, 4th Edition dealt with the rules regarding measure of damages in regard to trespass to land in paragraph 1170 and therein at page 460 commented as follows:

“A plaintiff is entitled to nominal damages for trespass (See Armstrong v. Sheppard and Short Ltd. (1959) 4 QB 384 (1959) 2 All ER 651 CA); even no damage or loss is caused; if damage or loss is caused, he is entitled to recover in respect of his loss according to general principles. Where by the trespass the plaintiff has been wholly deprived of his land he is to be compensated according to the value of his interest and if he is a freeholder entitled to possession, the damages will be the value of the produce of the land during the period of deprivation subject to the proper expense of management or in the case of permanent deprivation, its selling value (McArthur & Co. v. Cornwall (1892) AC 75 PC Spencer v. Registrar of Titles (Third Appeal) (1910) (103) LT 647 PC). Where the defendant has by the trespass made use of plaintiff’s land the plaintiff is entitled to receive by way of damages such sum as should reasonably be paid for the use. It is immaterial that the plaintiff was not in fact thereby impeded or prevented from himself using his own land either because he did not wish to do so or for any other reason Whithum v. Westminster Bimbo coal and Coke Co. (1896) 2 Ch 538 CA (Underlining ours)

We see no basis for awarding N3000.00. We are of the opinion, therefore, that N800.00 general damages will be adequate compensation in the circumstances having regard to the fact that the order of injunction granted is the main relief the respondents sought to protest their proprietary rights.

This leaves us with the consideration of the last ground of appeal – ground 6. This is an omnibus ground – one based on the facts. We see no merit of any kind in the only argument advanced in support of the ground.

The argument advanced in support of the ground was the inconsistency in the evidence of 3rd plaintiff and plaintiffs’ witnesses 2 and 3 as to the number of shrines on the land. The 3rd plaintiff and plaintiffs’ witness number 2 gave the number as one while plaintiffs’ witness number 3 gave the number as two. A close scrutiny of the record shows that the 3rd plaintiff named 2 shrines. This alleged discrepancies in the evidence as regards the number of shrines on the land rather strengthens than weakens the credibility of the witnesses who testified for the plaintiffs. The discrepancies were not conflicts and were of a minor nature that is expected in the testimony of witnesses who have not had the advantage of being schooled about their evidence.

This ground of appeal fails. On the whole, the appeal fails, and except for the quantum of damages awarded, it is dismissed. The judgment in respect of the claim for exclusive possession and injunction together with the order as to costs is hereby affirmed.

We hereby set aside the N3000.00 general damages awarded and substitute instead an award of N200.00 as general damages. This shall be the judgment of the court.

The appellants shall pay the respondents costs in this appeal fixed at N342.00 (Three Hundred and Forty Two Naira).

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Other Citation: (1978) LCN/2050(SC)