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.
It is there (sic) not necessary to talk about damages special or general as the plaintiff failed to prove its case as required by law.
The suit is therefore dismissed and all the reliefs failed.
Aggrieved by this decision of the trial High Court, the plaintiff now appellant, lodged appeal at the Court of Appeal Port-Harcourt Division upon filing 6 grounds of appeal, challenging the decision of the trial court. Having regard to the relevance of these grounds of appeal to which I shall return later in this judgment, I shall quote them below without the particulars –
Ground One
The learned trial Judge erred in law when she found that if the judgment in Suit No. PRT/I041/92 had been delivered on the 4th October, 1993 and no other earlier date, the execution on that same day would have been irregular and there would have been need to avoid such an irregular act but if the judgment was delivered on 30th September, 1993 and execution levied on the 4th October 1993, it would be regular.
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Ground Two
The learned trial Judge was in error in failing to resolve the principal issue at the trial: whether judgment in suit No. PRT/I041/92 had been delivered on the 4th October, 1993 or on the 30th September, 1993 and whether execution of the said judgment on 4th October, 1993 was regular.
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Ground Three
The learned trial Judge misdirected himself in law and thereby occasioned a miscarriage of justice when she held as follows:
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 the impasse was most essential…
Therefore the clerk of court who was present at both dates of 30/9/1993 and 4/10/1993 or even one of the dates to tilt the balance one way or the other was essential… The plaintiff failing to call that essential witness calls into effect the provisions of section 149(d) Evidence Act to the conclusion that if he had been called his evidence would not have been favourable. No mention was made as to what effort they made to bring any witness to settle that issue. The case being on a balance of probability that balance is in favour of the defence.’
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Ground Four
The learned trial Judge did not properly evaluate the evidence before her and failed to make a finding whether the execution of the judgment which was levied against the plaintiff on 4th October, 1993 was wrongful, illegal and a nullity despite abundance of evidence when:
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Ground Five
The learned trial Judge erred in law when she declined jurisdiction to make a declaration to the rights of the parties which had been adversely affected by the wrong committed by the respondent.
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Ground Six
Judgment is against the weight of evidence.
In its brief of argument, the appellant in the court below formulated three issues from the six grounds of appeal filed by it. The issues at page 121 of the record of appeal are:
(i) Whether execution of the judgment on 4th October, 1993, is legal having regard to Order IV Rule 1(1) and (2) of the Judgments (Enforcement) – Rules made under section 94 of the Sheriffs and Civil Process Act, 1990.
(ii) Whether the fact that the plaintiff did not call as a witness the clerk of the Rent Tribunal which ordered possession was fatal to the plaintiff’s case.
(iii) Whether the learned trial court properly evaluated the evidence and made correct finding of the facts on the evidence led before her.
After hearing the appeal on the respective briefs of argument filed by the appellant and the respondent who also relied on the respondent’s notice filed by him, the court below in its judgment delivered on 11-5-2000, allowed the appeal but declined to wade into the complaint of the appellant on damages as that complaint was not supported by any ground of appeal. This is what Ikongbeh J.C.A. said in his lead judgment at pages 168 – 169 of the record:
On the whole, I hold that the learned Judge adopted the wrongful approach to the handling of the case before her and came to the wrong conclusion on the first relief in the appellant’s claim. She ought to have granted it.
The appeal as it relates to that relief accordingly succeeds and is allowed by me. The order of the Judge, Odili, J., dismissing it is set aside and in its place I make the declaration sought.
I have examined the six grounds of appeal but found none attacking the conclusion of the learned Judge that it is there (sic) not necessary to talk about damages special or general as plaintiff failed to prove its case as required by law.’ None of the three issues formulated on its behalf relate to it. Clearly, therefore, we have not been called upon to do anything about it. I say no more on that.
It is against this judgment of the Court of Appeal that the appellant in that court who though was the successful party, was still dissatisfied with it and has now further appealed to this court principally on the failure of the Court of Appeal to consider it’s claim for damages. From the two grounds of appeal filed by the appellant, two issues were identified as follows in the appellant’s brief of argument.
(i) Whether the lower court was right in declining to assess and award damages to the appellant.
(ii) Whether there exists on the record of the lower court enough evidence on which an assessment of special and general damages could be made in favour of the appellant.
The respondent in his brief of argument saw the first issue in the appellant’s brief of argument as the only issue arising for determination in the appeal. I entirely agree.
It was argued for the appellant that the duty to consider a claim or award of damages is not exclusive to the trial court as an appellate court equally has a duty to deal with such issues on appeal. The case of Pavex v. Afribank (2000) 4 SC (Pt.11) 191 at 212 (2000) 7 NWLR Pt. 663) 105 was called in aid. As for the power of the Court of Appeal to assess damages where a trial court failed to do so on the face of the material available on record, reliance was placed on Overseas Construction v. Creek Ent. Ltd. (1985) 3 NWLR (Pt.13) 407. Finally, the appellant insisted that the court below was at liberty to consider the issue of damages even though it was not specifically made a ground of appeal as laid down in Anyim Mba & 2 Ors. v. Agbajo Agu & Ors. (1999) 9 SC 73 at pages 80 – 83, (1999) 12 NWLR (Pt. 629) 1.
The respondent however contends that having regard to the six grounds of appeal and the three issues distilled from the grounds of appeal filed by the appellant, there was no appeal at all on the failure of the trial court to consider the award of general and special damages; that the lower court was quite right in declining to look into the claim for general and special damages as it was rightly guided by the cases of Oshodi v. Eyifunmi (2000) 7 SCNJ 295 at 323, (2000) 13 NWLR (Pt. 684) 298; Adeyemi & Anor. v. Olakunri & Ors. (1999) 12 SCNJ 224 at 229, (1999) 14 NWLR (Pt. 638) 204; Lawani Alli & Anor. v. Chief Gbadamosi Alesinloye & 8 Ors. (2000) 6 NWLR (Pt.660) 177 at 212 and Oshatoba v. Olujitan & Anor. (2000) 5 NWLR (Pt.655) 159 at 170.
I have deliberately quoted in full earlier in this judgment the contents of paragraph 25 of the appellant’s statement of claim as the plaintiff at the trial High Court to bring out in full view, the four items of reliefs claimed. The relief which is the subject of this appeal is the second one in which the appellant claimed N50,000,000.00 as special and general damages and proceeded to give the break down of the various heads of the items of damages claimed against the respondent arising from the wrongful execution of the judgment of the Rent Tribunal. The other three remaining reliefs claimed comprised a declaratory relief that the execution of the judgment of the Rent Tribunal was wrongful, illegal, null and void, a declaratory relief that the agreement entered between the parties in 1972 in respect of the leased premises No. 25 Aba road Port-Harcourt was valid and subsisting, and an injunction restraining the defendant from subletting the property to other persons until the determination of the appellant’s action. It is quite clear from the part the judgment of the trial court earlier quoted in this judgment that all the four distinct reliefs sought by the appellant in the action against the respondent arising from the alleged wrongful execution of judgment, were refused and the entire action was dismissed.
In the appellant’s appeal to the Court of Appeal against the judgment of the trial High Court, the appellant was expected to vent out his grievances against that judgment in a notice of appeal containing the appropriate grounds of appeal outlining the aspects of the findings and decisions of the trial court it disagreed with in the judgment. This is in accordance with Order 3 rule 2 of the Court of Appeal Rules. These six grounds of appeal filed by the appellant challenging the correctness so to say, of the judgment of the trial court, have been earlier quoted in this judgment without the particulars. Running through these grounds of appeal, it is quite plain that the appellant’s complaint in grounds one and two centered on the execution of the judgment in suit No. PRT/1041/92 as to whether or not it was regular. The complaint in ground three on the other hand is on the failure of the trial court to make a finding as to the actual date the said judgment was executed between 30-9-1993 claimed by the respondent and 4-10-1993 claimed by the appellant. As for ground four of the grounds of appeal, the appellant was merely complaining on the failure of the trial court to make a finding on the execution of the judgment from the evidence on record. What ground five contains is a complaint on the failure of the trial court to deal with the declaratory reliefs sought arising from the alleged wrong committed by the respondent regarding the execution of the judgment against the appellant. The remaining ground, ground six is an omnibus ground of appeal. It is trite that there are several decisions of this court warning parties particularly those in desire to exercise their right of appeal that such parties cannot hide behind an omnibus ground of appeal to raise specific questions on matters like issues of damages, in the absence of specific grounds of appeal raising the questions. See Ndiwe v. Okocha (1992) 7 NWLR (Pt.252) 129 at 139 – 140. Although I have also quoted the three issues raised by the appellant in its brief of argument in the appeal at the court below presumably arising from the six grounds of appeal filed by it, it is not even possible in the correct application of the law on formulation of issues for determination from the grounds of appeal, to expect If the three issues of the appellant earlier quoted in this judgment brace a complaint on the failure of the trial court to consider and determine the appellant’s claim for general and special damages. This is because there was no such complaint in any of the six grounds of appeal filed by the appellant to question the decision of the trial High Court in an appeal before the court below. In other words, to say it in plain language, there was no appeal by the appellant against the decision of the trial High Court refusing or dismissing its specific claim for N50,000,000.00 damages broken down into special and general damage placed before the Court of Appeal for determination in the appellant’s appeal heard by that court.
The position of the law in the situation in which the Court of Appeal found itself in the instant case, it would appear that the court had rightly heeded the warning given by this court in the case of Chief Ebba v. Chief Ogodo & Anor. (1984) 1 SCNLR 372 at 385 (l984)4 S.C. 84 at 112 where the court said:
… it should be plain to a Court of Appeal that when an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a Knight errant looking for skirmishes all about the place.
To this end, it seems to me that the argument of the learned counsel to the appellant based on the decisions of this court in Pavex v. Afribank(supra) and Overseas Construction v. Creek Ent. Ltd. (supra) that the trial High Court having failed to assess and make award of damages, the Court of Appeal can rightly do so provided there are sufficient material on record to do so, is completely off the point.
The learned counsel to the appellant appears to have misunderstood the real issue involved in this matter. The issue is simply that there being no appeal against the decision of the trial High Court declining to assess and award special and general damages to the appellant, there was no issue before the Court of Appeal to enable it evaluate any evidence on record on that claim. It is trite and well settled that the Court of Appeal is only entitled to consider an appeal on the grounds of error of law or fact committed by the trial court placed before the Court of Appeal in grounds of appeal filed. An appellant cannot without leave of court be heard on any other grounds. See Management Enterprises v. Otusanya (1987) 2 NWLR (Pt.55) 179 and Alli v. Alesinloye (2000) 6 NWLR (Pt.660) 177 at 212. Definitely, the Court of Appeal cannot pronounce on issue or finding on which the parties have not appealed against. See Adeyemi v. Olakunri (1999) 14 NWLR (Pt.638) 204 at 211.
It may be emphasized on this issue that the whole purpose of grounds of appeal is to give notice to the respondent of the errors complained of. See National Investments and Properties Ltd. v. Thompson Organisation (1969) 1 NMLR 99. Thus, where an appellant relies on any ground, this must be properly raised either by way of a ground of appeal, or as a cross-appeal in case of a respondent. Any issue not raised in a ground of appeal in this manner is clearly not before the court. Accordingly, it is not open to the court to raise an issue which the parties have not raised. See Inua v. Ntah (1961) 1 All NLR 576. It is also the law that where a court decides to raise such an issue because it is material for the determination of the appeal before it, the parties must be given an opportunity to argue the point before any decision is taken on it as was stated in Kuti v. Balogun (1978) 1 SC 53. Therefore, in line with these decisions, it is quite obvious that the court below was well guided when it refused to consider and determine the issue of general and special damages claimed by the appellant at the trial court which was not properly raised in the appellant’s appeal before it in the absence of any cross-appeal by the respondent on the subject.
Furthermore, the proposition is both elementary and fundamental to our judicial system that there is a presumption that the judgment of the trial court is correct, and the burden of showing the contrary is always on the appellant. See Williams v. Johnson (1937) 2 WACA 248; Kisiedu & Ors. v. Dompreh & Ors. (1935) 2 WACA 268; Akesse v. Ababio (1935) 2 WACA 264; Folorunsho v. Adeyemi (1975) 1 NMLR 128.
Applying the principles in these decisions to the sole issue arising for determination from the two grounds of appeal filed by the appellant in this appeal, it is quite clear that the Court of Appeal had no jurisdiction to raise and consider not to talk of the determination of the issue of the appellants claim for special and general damages which was not placed before that court for determination in the appeal.
Looking at this case from another angle, it is well settled that when an issue is not placed before an appellate court, that court has no business whatsoever to deal with it. One of the cases in mind is Olusanya v. Olusanya (1983) 3 SC 41; (1983) 1 SCNLR 134. The appellate jurisdiction of the Court of Appeal being statutory, must be exercised in accordance with the statutes conferring the jurisdiction particularly the provisions of the Constitution. Therefore, if a finding or decision of a trial court whether on an issue of fact or law is not challenged in an appeal to the Court of Appeal, such finding or decision, rightly or wrongly must not be disturbed in the hearing of the appeal. See Oshodi v. Eyifunmi (2000) 13 NWLR (Pt.684) 298 at 352. Thus, in the instant case, it would have been wrong for the court below to have ventured into the issue of general and special damages which the trial court refused to consider, assess and award or refuse, when such a complaint was not brought before the court for determination in the appeal. In similar vein, it is also a cardinal principle of law in courts exercising appellate jurisdiction that before the findings or decisions of a trial court can be contested at all, there must be a gound of appeal complaining of the inadequacies in the findings or decisions. See Ejowhomu v. Edok-Eter Mandilas Limited (1986) 5 WLR (Pt.39) 1 at 30 – 31 and Ekpa v. Utong (1991) 6 NWLR 197) 258 at 285. Without such ground of appeal, the findings or decisions stand and no argument to undermine them, no matter even indirectly, will be entertained by the Court of Appeal.
It should not be forgotten that in the determination of disputes between parties in court, the court must ensure that its judgment is confined to the issues raised by the parties. See Commissioner for Works Benue State v. Devcon Development Consultants Ltd. (1988) 3 NWLR (Pt.83) 407; Nigerian Housing Development Society Ltd. v. Mumuni (1977) 2 SC 57; Adeniji v. Adeniji (1972) 1 All NLR (Pt.1) 278 and Alli v. Alesinloye (2000) 6 NWLR (Pt.660) 177 at 211- 212. In the case at hand, the appellant not having raised the issue of his complaint on the manner the trial High Court dealt with the question of his claim for general and special damages in a ground of appeal, the lower court would have committed a breach of the principle of law stated in the cases mentioned, if it had gone on to consider the issue. This is also in line with the requirement of the law that an appellate court must confine itself to the issues raised by the parties before it. In other words, it is not open to the appellate court to raise an issue which the parties did not raise themselves in the course of the hearing of the appeal. If however, the appellate court decides to or feels inclined to raise an issue for whatever reason, that court should give the parties an opportunity of making their comments upon it before taking a decision on such issue. To do otherwise will be to deny the parties the opportunity of being heard and lead to a miscarriage of justice. See Aermacchi S.P.A. v. A.I.C. Ltd. (1986) 2 NWLR (Pt.23) 443 at 449; Kuti v. Balogun (1978) 1 SC 53 at 60; Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) 252 at 265 and Ndiwe v. Okocha (1992) 7 NWLR (Pt.252) 129 at 139. On the application of these decisions of the court with which I am absolutely bound, there is no doubt whatsoever that in the circumstances of the present case in which the appellant in his appeal before the Court of Appeal did not appeal against the decision of the trial High Court for failing to consider and determine its claim for general and special damages, the court below was well guided in law in refusing to go into the issue. I find this appeal lacking in merit and the same is hereby dismissed. There shall be N10,000.00 costs against the appellant in favour of the respondent.
As for the cross-appeal of the respondent, the issue raised for its determination is whether an execution of a valid judgment of court levied before the statutory period allowed under the Sheriffs and Civil Process Act Cap. 407, Laws of the Federation 1990, is illegal or merely irregular. In view of the decision I have arrived at in the consideration of the main appeal which I have dismissed, the need to look at the cross-appeal and the determination of whether the execution of a valid judgment of a court levied before the statutory period allowed under the law is illegal or merely irregular, has certainly become hypothetical or academic which this court has long refrained from entertaining. See Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 at 534; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 at 330, Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162 at 179 and Macaulay v. R.2.B. Austria (2003) 18 NWLR (Pt.852) 282 at 300. Therefore this court is not bound in law to deal with the cross-appeal which accordingly is hereby struck out.
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