O. ODIBA & ANOR. V. AKAAZUE MUEMUE (1999)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The respondent was the plaintiff before the Benue High Court. He was the owner of a piece of land covered by Certificate of Occupancy No. BP 1503. The land is situate along J.S. Tarka Way, Gboko. The respondent built a single storey house on the land. He later constructed an extension to the building.

In November, 1984, the Task Force on Environmental Sanitation for Gboko Local Government Area observed that some buildings in Gboko Town had encroached on the streets and sanitary lanes. The Task Force decided to demolish the buildings. The house of the respondent was one of the buildings earmarked for demolition. The respondent received a letter dated 15th November, 1984, from the Task Force notifying him that his house was earmarked for demolition.

On receiving the letter, the respondent went to the High Court. Gboko and filed a suit against the Task Force. He applied also for an injunction to restrain the Task Force from demolishing his house pending the determination of the suit. Before the High Court granted the prayer for the injunction it got a letter served on the Task Force directing the committee not to demolish the building of the respondent pending the hearing of a suit he filed against the Task Force. On receiving the letter of the High Court, the Task Force Committee resolved not to demolish the house of the respondent until the matter in court was determined.

Mr. Odiba, the first appellant, in this appeal was the sale Administrator of Gboko Local Government in November. 1984. When information reached Mr. Odiba that the Task force had resolved to obey the Order of the High Court restraining it not to demolish the house of the respondent he visited the office of the Task Force and told the members of the Committee that the demolition should go on, the High Court’s Order notwithstanding.

Thereafter, the 1st appellant secured a bull-dozer, went and identified some buildings earmarked for demolition, including the house of the respondent and ordered the structures to be demolished. The respondent went to court and filed a claim for N1,470,407.00 being general and special damages against the 1st appellant for the demolition of his property along J.S. Tarka Way, Gboko. The 2nd appellant was later joined in the suit.

Pleadings were called and delivered. At the completion of the hearing the learned trial Judge, Utsaha J, entered judgment in favour of the respondent and awarded him N313,033.50 as general and special damages. The appellants appealed to the Court of Appeal against the decision of the High Court. The Court below dismissed the appeal. It however found that the claim for N30,000.00 as special damages for loss of use of the premises was not established before the trial High Court. It therefore allowed the appeal against that award.

Dissatisfied with the decision of the Court below the appellants filed this appeal. From the nine grounds of appeal filed the following 4 issues have been identified, in the appellant’s brief as having arisen for the determination of this appeal:

“(a) Was the Learned Trial Judge and Court of Appeal justified in their conclusion that the averments in paragraph 4 of the Statement of Defence do not constitute a valid denial of respondents averments in paragraphs 6-9 and 11 of the Statement of Claim and, are therefore, on the authority of Lewis and Pear (N.R.I) Ltd.v. Akhimien (1976) 1 F.N.L.R. 80 al 83, deemed to be admission of the allegation by the respondent, which facts need no further proof by evidence by the respondent at the trial

(h) Were they justified in their conclusions

(i) That it was the appellants who carried out the demolition of the respondent’s house

(ii) That the appellants did so in the face of timely advice against it from both the Chairman of the Task Force and the then Resident State Counsel and

(iii) That this was a proper case to award aggravated general damages’

(c) Were they justified in awarding to the respondent the sum of N133,033.50 as special damages

(d) By awarding aggravated general damages to the respondent in the circumstances of this case were they not compensating him twice over for one loss’”

The learned counsel for the respondent formulated what, in my view, are the pertinent issues to be considered for the determination of this appeal. Those issues are:

“(1) Whether the Learned Judge and the Court of Appeal were justified in holding that paragraph 4 of the 1st Appellant’s defence do not constitute a valid denial of Respondent’s averments in paragraphs 6-9 and 11 of the Statement of Claim.

(2) Was the trial court and the Court of Appeal right in holding that it was the 1st Appellant that demolished the respondent’s house.

(3) Whether the trial court and the Court of Appeal were justified in awarding to the respondent: (i) Special Damages of N133,033.50;

(ii) Aggravated General Damages of N150,000.00.”

Before considering the issues raised above I should mention that learned counsel for the respondents, during the hearing of this appeal, drew our attention to a case quite similar to this one in which the 1st appellant was directed by the High Court to pay damages for the wrongful demolition of a house belonging to one Tule Azege. The case came up on appeal before this court and the appeal was dismissed. The case is Anthony Odiba v. Tule Azege (1998) 9 NWLR, (Part 566) at pages 370-388. The facts of that case are similar to this present appeal. Tule Azege’s house was one of the buildings demolished in Gboko town on the order of M.A.O. Odiba, the 1st appellant, in the case in hand.

The demolition of the house of Tule Azege and that of Akaazua Muemue, the respondent in this appeal, took place on the same day. Tule Azege tried to stop the demolition of his house by filing a case against the Task Force in the High Court. He also applied for an injunction, just like the present case, restraining the Task Force from demolishing his house pending the determination of the suit he filed in court. The High Court sent a letter to the Task Force directing the Committee to withhold their threatened demolition pending the determination of the suit filed by Azege.

In spite of the letter from the High Court the 1st appellant went and supervised the demolition of Tule Azege’s house. Tule Azege sued the 1st appellant and was awarded damages totalling N312,652.80 for what the High Court called reprehensible and oppressive behaviour. The 1st appellant failed in his appeal to both the Court of Appeal and in this court.

I now go hack to the issues identified for determination of this appeal. It is axiomatic that the issues raised by the learned counsel for the respondent are more appropriate for the determination of this appeal taking into consideration the grounds of appeal filed. I will therefore refer to those issues in this judgment.

The question in issue 1 is whether the learned trial judge and the Court of appeal were justified in holding that paragraph 4 of the 1st appellant’s defence do not constitute a valid denial of respondent’s averments in paragraphs 6-9 and 11 of the statement of claim. Paragraphs 6-9 and 11 reads as follows:-

“1. On or about the 15th of November, 1984 the Task Force on Environmental Sanitation Gboko Local Government by a letter GIG/HEA/AMK.ENV/SANT/VOL.1/47 ordered the plaintiff to demolish the plaintiff’s building aforesaid. The said letter will be made available at the trial hereof and relied upon.

2. On the 19th November 1984 the plaintiff filed suit No./GBD/64/84 at the Gboko High Court seeking three declarations aimed at perpetually preventing the Task Force from demolishing his house aforesaid. The plaintiff also filed a motion to prevent the Task Force in the interim from demolishing his house aforesaid.
3. The High Court by a letter No. GBD/64/84 of 20th November, 1984 ordered the Task Force not to demolish the Plaintiff’s premises until the motion for interim injunction was heard. The said letter will be made available at the trial hereof and relied upon.
4. By a letter reference No. MOJ/CIV/125/84 of 2nd November, 1984 the Attorney-General of Benue State advised the Task Force not to take any action on the plaintiff’s premises pending the hearing of the motion for interim injunction. The said letter will be made available at the trial hereof and relied upon.
5. The Task Force had by its 7th meeting, held on the 10th November, 1984 and subsequent dates resolved not to demolish the plaintiff’s house. The minutes of the 7th meeting of the Task Force held on the 20th November, 1984 and other subsequent dates shall be relied upon at the trial of this case”.

Learned Assistant D.P.P. Benue State, Mr. Ulegede, for the appellants, submitted in the appellants’ brief that the appellants answered the above averments in paragraph 4 in the Statement of Defence. Paragraph 4 reads as follows:

“Defendant is not in a position to admit or deny paragraphs 6-9 and 11 of the claim as he is neither a member of the said Task Force nor does he attend their meetings and he has no knowledge of the existence of the averred facts, the plaintiff shall be put to the strictest proof thereof’.

Both the High Court and the Court of Appeal held that the averment in paragraph 4 amounted to admission of the facts in paragraphs 6-9 and 11 of the Statement of Claim. The case of Lewis and Peat (N.I.R.) Ltd. v. Akhimien (1976) 7 S.C. 157 was referred to in support of the decisions. Learned counsel for the appellants submitted, in the appellant’s brief, that paragraph 4 of the Statement of Defence did not amount to admission of facts averred in paragraphs 6-9 and 11 of the Statement of Claim. Counsel argued that the general rule of pleading is that facts shall be positively and distinctively alleged by the plaintiff, and the defendant shall specifically deny all such facts as he does not intend to admit.

Learned counsel is right in that positive and distinctive allegations in the Statement of Claim must be specifically denied. This is called a special traverse. In a special traverse the defence shall explain or qualify the denial of facts in a Statement of Claim. Now if one reads the averments in paragraphs 6, 8 and 9 one will see that letters with their reference numbers and dates have been pleaded. Also in paragraph 11 minutes of the meeting of the Gboko Local Government Task Force on Environmental Sanitation had been pleaded. All these positive and distinctive allegations must be traversed specifically. Where the defence pleaded “as he is neither a member of the said Task Force nor does he attend their meetings and he has no knowledge of the existence of the averred facts” in answer to the specific averments in paragraphs 6, 8, 9, and 11 the denial in my view is insufficient. In support of my view I will refer to the case of Wallersteiner v. Moir (1974) 1 WLR 991 at 1002. In that case there was an allegation of fraud and dishonesty against Mr. Wallersteiner who was plaintiff in the main suit. In his defence to the counterclaim filed by Mr. Moir, Mr. Wallersteiner did not refer to the particulars of the fraud and dishonesty which was alleged in the counterclaim. But pleaded simply thus:

“The plaintiff denies that the plaintiff has been guilty of fraud, dishonesty, misfeasance or breach of trust, as alleged in paragraph 103 of the amended counter-claim or at all.”

Lord Denning M.R. in his judgment in the case referred to the above traverse and held that that was no good defence. He went further in his judgment and said:

“The master did not give leave for it to be served. R.S.C. Ord. 18, r. 13(3) states expressly that a general denial is not a sufficient traverse of the allegations. So there was no valid traverse. The counterclaim stood without any contradiction. So under R.S.C. Ord. 19 r. 7, Mr. Moir was entitled to judgment.”

Similarly, in the case in hand, the defence of the 1st appellant in paragraph 5 amounted to a general denial to a positive and distinctive allegation in the Statement of Claim. The two courts below are therefore justified in holding that the averment in paragraph 4 of the Statement of Defence did not constitute a valid denial of respondent’s averments in paragraphs 6-9 and 11 of the Statement of Claim.

The question in the second issue is whether the trial court and the Court of Appeal were right in holding that it was the 1st appellant that demolished the respondent’s house. I agree that the primary function of accrediting one witness or set of witnesses and discrediting the other is that of the trial court which had the advantage of watching the witnesses testify and not the duty of the appellant court: Ebba v. Ogodo (1984) 4 SC; 84; (1984) 1 SCNLR 372. From the evidence before the trial court there is over whelming and direct evidence that the 1st appellant was aware of the letter from the High Court ordering the Task Force to suspend the demolition of the house of the respondent pending the hearing of the suit he (respondent) filed before the court. There was also evidence before the trial court that the 1st appellant, in spite of his knowledge of the High Court’s order, secured the services of a bull-dozer and directed the driver to demolish the house of the respondent. The learned trial Judge analyzed all the evidence before him and from his judgment it is clear that he placed all the evidence on an imaginary scale before he found in favour of the respondent. The Court below also looked into the whole evidence before it affirmed the decision of the High Court.

It is not the function of an Appeal Court to substitute its own views for those of a court of first instance with respect to facts found by the court based on a dispassionate appraisal of the evidence before it. See Kasunmu and Anor. v. Abeo (1972) 2 S.C. 69. The appellants have not advanced any convincing argument for me to disturb the findings of the two courts below on this issue.

In opening his submission against the award of what the learned counsel for the appellants termed double compensation an excerpt of the judgment of the learned trial judge was reproduced in the appellant’s brief. It is pertinent to look into that excerpt with a view to assessing what convinced the learned trial judge to award aggravated damages in addition to special damages. The considered decision of the learned trial judge reads:

“What then was the conduct of the 1st defendant in the commission of the tort The evidence of PW1 and that of the plaintiff is relevant. PW1 said he advised the defendant against his decision to proceed to demolish the house. That he warned the defendant that there was a pending action in court and that it would be wrong to proceed to demolish the house. That when the defendant would not heed his advice he appealed to the then Resident State counsel, both of them whom (sic) prevailed on the defendant not to go ahead with his plan, but to no avail.

The plaintiff himself said when he called on the defendant to plead with him to intervene; the defendant said he was not a member of the Task Force Committee. And when the Task Force Committee resolved not to carry out its plan, he turned round to do the act. In assessing the measure of damage under this heading I shall take into consideration the above conduct, which in my view, was not only harsh but an unwarranted abuse of Governmental power”.

It is without doubt that the wanton demolition of the respondent’s house despite the Order of the High Court directing the Task Force not to carry out the committee’s threat to demolish the house is inexcusable. In my judgment in the case of Anthony Odiba v. Tule Azege (1998) 9 N.W.L.R. (Pt. 566) 370 at 382 where the 1st appellant was made to pay both special and aggravated damages for the demolition of Tule Azege’s house I opined as follows:

“What nearly 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 about 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”.

I will make the same remark in this case and add what my learned brother Iguh, J.S.C., in his judgment in Tule Azege’s case said. He said that having regard to the concurrent findings of both courts below were as aggravated in nature as they were reckless, vindictive, high handed and utterly oppressive. They also depicted gross abuse of official power on the part of a public officer. I need not say more in this case.

This appeal is therefore devoid of any merit and it is dismissed. The judgments of the two courts below are hereby affirmed. No costs awarded.

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SC.8/93