Bhojsons Plc. V. Geoffrey K. Daniel-kalio (2006)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This is an appeal against the decision of the Court of Appeal, Port-Harcourt Division delivered on 11-5-2000 in which that court allowed the appeal of the appellant against the judgment of the High Court. At the High Court of Justice of Rivers State in Port-Harcourt, the appellant in this appeal, as the plaintiff in that court instituted an action against the respondent as the defendant and in paragraph 25 of the statement of claim, the following reliefs were sought:

25.WHEREFORE the plaintiff’s claims against the defendant are as follows:

(i) A declaration that the execution of judgment levied against the plaintiff by the defendant on the 4th day of October, 1993, at No. 25 Aba Road Port-Harcourt within the jurisdiction of the Honourable Court pursuant to the judgment delivered the same day, 4th October, 1993 in Suit No. PRT/1041/92 was wrongful, illegal and therefore null and void and ought to be set aside.

(ii) The sum of N50,000,000.00 (Fifty million naira) being special and general damages for loss suffered by plaintiff by reason of the wrongful and unlawful acts of the defendant. This amount is broken down as follows:

(a) N6,775,815.61 for loss of goods and stocks and N4,227,217.38 incurred as a result of increase in rent. These sums, totaling N11,003,032.99 are hereby claimed as special damages.

(b) N20,250.00 representing the loss of profit for the remaining (9) nine years and N18,746,967.01 representing loss of business, goodwill and the high cost of re-establishing the business. These sums, totaling N38,996.967.01 are hereby claimed as general damages.

(iii) A declaration that the agreement made between the plaintiff and the defendant in 1972, confirmed by letters written by the defendant dated 14th February, 1972 and 27th April, 1974 in respect of No. 25 Aba Road is valid and subsisting.

(iv) An injunction restraining the defendant by himself or his servants and/or agents from subletting the property to any person or body corporate until the determination of this suit

In the course of the hearing to pursue these claims at the trial High Court, the appellant called 3 witnesses who gave evidence on its behalf while the respondent testified in his own defence and called one other witness. The plaintiff/appellant’s case was that in 1972, it leased property at No. 25 Aba Road Port-Harcourt from the defendant/respondent for the term of 30 years. The property was used as a supermarket and a warehouse. However, during the currency of the term of the lease, the defendant/respondent sued the plaintiff/ appellant before a Rent Tribunal in 1992, claiming possession of the property which relief was granted by the Tribunal on 4-10-1993. On the orders of the Tribunal, its judgment was executed the same day against the plaintiff/appellant resulting in destruction of properties and causing heavy losses of business, profit and goodwill.

On the part of the defendant/respondent however, he denied leasing the property for 30 years to the plaintiff/appellant. He claimed that the plaintiff/appellant was a yearly tenant whose tenancy was duly determined by a notice to quit. The action instituted at the Rent Tribunal was to claim possession of the property at the expiry of the notice to quit and judgment was given in favour of the defendant/respondent on 30-9-1993 which was executed on 4-10-1993 without causing any damage to property.

After hearing addresses from the learned counsel, the learned trial Judge delivered her judgment on 26-9-1996 in which she refused and dismissed all the claims of the appellant as plaintiff. Part of this judgment which is relevant in this appeal at pages 107 – 108 of the record reads:

In the case in hand each party had taken a firm stand as to what transpired in relation to the delivery of the judgment. It was necessary that some extra piece of evidence to break that impasse was most essential. The way out would have been the learned Magistrate testifying but then that is wishful thinking as he is now deceased. Therefore the clerk of court who was present at both dates of 30/9/1993 and 4/10/1993 or even at only one of the dates to tilt the balance one way or the other was essential especially when the judgment without cancellations or anything out of the ordinary showed it was on the 30th September, 1993. The same appearing on the cause list of the same day. The plaintiff failing to call that essential witness calls into effect the provisions of S. 149(d) Evidence Act to the conclusion that if he had been called his evidence would not have been favourable. No mention was even made as to what effort they made to bring any witness to settle that issue.

The case being on the balance of probability that balance is in favour of the defence.