Chief Leo Degreat Mgbenwelu & Anor V. Augustine N. Olumba & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Imo State presided over by Hon. Justice P. O. Nnadi delivered on 14/7/04. The facts that led to this appeal are as follows:

The 1st Appellant was a tenant of the 1st Respondent on the premises known as No. 4 Wetheral Road Owerri from 1995. The 2nd Respondent was the caretaker and attorney to the 1st Respondent in respect of the premises. The 1st appellant being a businessman used the premises to run the business of some companies including the 2nd Appellant of which he was the Chief Executive Officer.

In the year 2000 the 1st Respondent sued the 1st Appellant through the 2nd Respondent as his attorney in suit No. HOU/358/2001 and judgment in default of pleadings was entered in favour of the Respondents. Thereafter the 1st Appellant appealed and sought a stay of execution of the judgment. Meanwhile on 20/6/02, the Respondents had proceeded to levy execution by obtaining a writ of possession of the premises and attachment of the property of the Appellants. When the court officials were shown the motion papers, they immediately desisted from levying execution and they returned the 1st Appellant’s vehicle already attached and later served the 2nd Respondent with the motion papers.

The Appellants thereafter sued the Respondents claiming N=20,000,000.00 (Twenty million Naira) as general damages for trespass on his person and chattels and for unlawful execution of a Court Order. At the end of trial, the learned trial judge dismissed the Appellants’ case. The Appellants have now appealed against that judgment.

The Appellants’ brief is dated 17/4/06 filed on 18/4/06. The Respondents’ brief is dated 30/6/06 and filed the same day.

The Appellants’ counsel identified three issues for determination set out as follows:

1. Whether the learned trial judge was right when he held that the 1st Respondent was not liable for the acts of trespass and unlawful eviction cum unlawful execution of Court Order against the Appellant on the ground that the 1st Respondent was not present at the scene of the illegal conduct complained.
2. Whether the Appellants proved their case to be entitled to damages as claimed.
3. Whether the 1st Appellant proved his allegation of trespass to his person by the Respondents and their agents.

The Respondents donated only one issue to wit:

Whether the learned trial judge rightly dismissed the Appellant’s claim.

I am inclined to adopt the Respondents’ sole issue as it seems to me that the three issues identified by the Appellants’ counsel can be addressed within that issue and breaking the issue into three is an unnecessary repetition and proliferation of the facts and issues in controversy.

Learned Appellants’ counsel argued that the 1st Appellant’s evidence at the trial court was clear and to the effect that when he protested against the unlawful execution, he was pushed around by the thugs hired by the Respondents. He argued that the learned trial judge was wrong to hold that the Respondents were not present during the execution as PW2 categorically swore on page 29 and page 30 of the record that both Respondents were present when execution was being levied. He submitted that assuming without conceding that the 1st Respondent was not present, his agent 2nd Respondent was present and he is liable as principal for the actions of his agents. He cited the following cases QUA STEEL PRODUCTS v. BASSEY (1992) 5 NWLR Pt. 239 Pg. 62, 74 and 76; NIGER PROGRESS LTD. v. NORTH EAST LINE CORPORATION (1989) 3 NWLR Pt. 107 Pg. 68 at 83-84; LEVENTIS TECHNICAL LTD. v. PETRO JESSICA ENTERPRISES LTD. (1992) 2 NWLR Pt. 224 Pg. 459 at 469.

Counsel argued that Exh. K is a writ of fifa, and not a writ of possession and the Respondents were wrong in trying to recover possession of the premises. The act of execution exceeded the mandate. He cited OJEME v. MOMODU (1995) 6 NWLR Pt. 403 Pg. 583; AKILU v. ODUNTA (1991) 2 NWLR Pt. 171 Pg. 1 at 11; NIGERIA ARMY v. MOWARIN (1992) 3 NWLR Pt. 235 Pg. 345 at 359. He argued that no valid writ of execution can be issued during the pendency of Exh. G which is the motion for stay of execution. He cited NIGERITE LTD. v. DULARI NIG. LTD. (1992) 7 NWLR Pt. 253 Pg. 288 at 292-293, 298; UBN v. FAJEGBE FOODS (1994) 5 NWLR Pt. 344 Pg. 325 at 345-346; DIN v. ADIBUA (2002) FWLR Pt. 107 Pg. 1271 at 1285; ARGOS NIG. LTD. v. UMAR (2003) FWLR Pt. 155 Pg. 753; IBWA LTD. v. PAREP NIG. LTD. (2000) 7 NWLR Pt. 663 Pg. 69.

Learned Appellants’ counsel submitted that the 1st Appellant led unchallenged evidence to the effect that when the execution was levied, it gave him bad publicity and it affected his business. He argued that when there is a right, there must be a remedy. He cited ALIU BELLO v. A.G. FEDERATION (1986) 2 SC 1 or (1986) 3 NWLR Pt. 40. He posited that the learned trial judge was wrong in relying on the evidence of PW2 while Exh. H showed that the Respondents were served with the motion papers on 15/2/2002. He submitted that the law is that even if oral evidence is called in proof of a matter, the existence of documentary evidence in the same proceedings would serve as yardstick or hanger with which to access the oral testimony. In UMORU v. ODUOGBO (1993) 6 NWLR Pt. 296 Pg. 217 at 228; EYO v. IYANG (2001) 8 NWLR Pt. 715 Pg. 305 at 325.

Learned Appellants’ counsel submitted that even though the 1st Appellant pleaded that he was held and pushed by agents of the Respondents, the Respondents in their defence never denied the allegation and it is deemed admitted as requiring no further proof. He cited JIKANTARO v. DANTORO (2004) FWLR Pt. 216 Pg. 390 at 394.