Overseas Construction Company Nigeria Ltd. V. Creek Enterprises Nigeria Ltd. & Anor(1985) LLJR-SC

Overseas Construction Company Nigeria Ltd. V. Creek Enterprises Nigeria Ltd. & Anor (1985)

LawGlobal-Hub Lead Judgment Report

C. A. OPUTA, J.S.C.

The Plaintiff, now Appellant, originally sued one Defendant – Creek Enterprises (Nig.) Ltd. claiming special and general damages for trespass and an injunction. The writ of Summons dated 15/1/76 was filed on 16/1/76.

On an application, the Plaintiff was on the 9th February 1976 granted leave to join a further Defendant, namely Nelphinco and Company Ltd. Pleadings were then ordered and a Statement of Claim and a Statement of Defence were accordingly filed on the 23/4/76 and 27/5/76 respectively. The case was however not tried on these original writ of Summons and Statements of Claim and Defence.

An Amended writ of Summons was filed on 15/4/77. In that writ, the Plaintiff sued Creek Enterprises (Nig.) Limited as the 1st Defendant and the Abandoned Property Authority as the 2nd Defendant and claimed as follows:-

AMENDED WRIT OF SUMMONS

The Plaintiff’s claim against the 1st Defendant is for N50,000.00 damages for trespass to the land and premises situate at No.6 Aba Road, Port-Harcourt and known as Plot 3 in Block 241 Orije Layout, Port-Harcourt belonging to the plaintiff and wrongfully occupied by the 1st defendant as trespasser from January 1971 to March, 1975.

2. A declaration against the 2nd Defendant that the property at No. 6 Aba Road, Port-Harcourt, otherwise known as Plot 3 in Block 241 Orije Layout, Port-Harcourt, the subject-matter of this action was never abandoned by the Plaintiff and therefore not an abandoned property under the Abandoned Property (Custody and Management) Edict 1969. Amended the 4th day of April 1977 pursuant to the order of Court made on the 28th day of March, 1977.

(Signed)

C.J. Okoli, Esq.,

Plaintiffs Solicitor

After due trial on relevant evidence, the court of first instance found at pp.94/95 of the Record of proceedings:-

“That the property Plot 3, Block 241 Orije Layout, Port-Harcourt was not an abandoned property under the Abandoned Property (Custody and Management) Edict 1969. This head of claim succeeds.

Dealing with the issue of trespass against the 1st Defendant, the trial court relied on a proposed sublease of the premises by the Plaintiff to Messrs. Wiedemann & Walters tendered as Ex. N as evidence of the fact that the Plaintiff had already let the property concerned to Wiedemann & Walters by 4th January, 1971, when the 1st Defendant was alleged to have committed the trespass and found at p.91, lines 26 to 32 of the Records of proceedings:

It is my finding therefore….that as from 1st January 1971 the property concerned was in the possession of Wiedemann & Walters as tenants and that as such the right of action for any trespass on it on 4th January, 1971 was not in the Plaintiff but in Wiedemann & Walters.

Concluding his judgment on the issue of trespass, the learned trial judge observed:-

“I had earlier however found that the claim for damages for trespass against the 1st Defendant was untenable. That claim therefore fails and I dismiss it.”

The Plaintiff appealed on the issue of trespass to the Court of Appeal. That court confirmed the finding of the trial court that at the time the 1st Defendant was alleged to have trespassed on the premises, the Plaintiff was no longer in possession because possession has passed over to Messrs Wiedemann & Walters. The court below held at p.142 and 143 of the Record of Proceedings:-

In this case, the learned trial Judge rightly in my view, had accepted that as from the 1st of January 1971 the possession of the premises in question had passed over to Wiedemann & Walters. I cannot but agree with the submission of Chief Jamabo, that since exhibit N, which the Appellants requested Wiedemann & Walters to sign and send in the cheque for the rents, had been signed and returned to the Appellants, the monies for the rents must have been paid over to the Appellant’s. I agree also that since rents had passed over to the Appellants, keys for the premises must have also been given to Wiedemann and Walters. All these facts have been established beyond all doubts that possession of the premises in question was with Wiedemann and Walters at the time the trespass was committed. I therefore agree with the learned trial judge that the right party to sue in trespass in respect of this property is Wiedemann and Walters and not the Appellants. In consequence this appeal fails and it is accordingly dismissed. (Italics mine).

Now the Appellant having failed in two courts, has now appealed to the Supreme Court. An Appellant appealing against the concurrent findings of two courts is faced with an uphill task of considerable magnitude. As a general rule, this Court will not normally disturb or upset such concurrent findings unless there is some miscarriage of justice or violation of some principle of law or procedure:- Enang v. Adu (1981) 11-12 SC.25 at p.42: Okagbue v. Romaine (1982) 5 S.C. 133 at pp.170/171: Lokoyi v. Olajo (1983) 8 S.C. 61 at pp.68-73: Ojomu v. Ajao (1983) 9 S.C. 22 at p.53. In the instant appeal, there are many valid and compelling reasons for this Court to interfere.

Firstly a finding which is merely speculative and not based on any evidence is perverse and will invariably and inevitably lead to a miscarriage of justice. There is definitely a mighty difference between saying that the keys for the premises were in fact given to Wiedemann and Walters and arguing that keys of the premises must have also been given to Wiedemann & Walter. One is a statement of fact, the other is not. It is a mere speculation and no court is allowed to base its decision on mere speculation. Secondly, it is an essential principle of the rules of pleading in our adversary system that each party is free to formulate his own case and once formulated, he is bound by his pleadings and cannot be allowed (without necessary amendment) to urge a case different from that formulated in his pleadings. The courts themselves – here the trial court and the Court of Appeal – are bound to decide only the case as formulated on the pleadings of the parties. It will be contrary to the proper function of the court to enter upon any inquiry outside the pleadings or to adjudicate on any matter not put in issue by the pleadings. Courts decide issues and it is none of their functions to speculate: African Continental Seaways Ltd. v. Nigerian Dredging Roads & General Works Ltd. (1977) 5 S.C. 235 at pp.249/250. Any departure from the above will be a violation of some principle of law or procedure.

Was there such a violation in this case This case was tried on the Amended Writ of Summons, the Amended Statement of Claim filed on 15/4/77 and the Amended Statement of Defence filed on the 15/1/77. To appreciate the points taken up by learned counsel in their respective Briefs and oral argument, it will be necessary to look closely and critically at the relevant pleadings in order to find out what the live Issues were and how the courts below dealt with those Issues. It may here be necessary to reproduce paragraph 4, 5 and 6 of the Plaintiffs further Amended Statement of Claim as those paragraphs clearly summarise the Plaintiff’s entire case:-

“4. On or about the 4th day of January 1971, the Defendant by its servants and agents wrongfully entered and took possession of the said plot of land, put up their sign board at the entrance therein and thereafter wrongfully remained in possession thereof until the end of March, 1975; despite warning letters to abate the said trespass dated 3rd February 1971 and 31st May 1971 respectively from the Plaintiffs Solicitors.

5. The Plaintiff Company had prior to its wrongful dispossession from the premises as aforesaid, exercised maximum acts of enjoyment and possession over the said premises including building on the said land, using it as its offices, and granting a yearly tenancy of the same to Messrs BEWAC AUTOMOTIVE PRODUCTS LIMITED who occupied the same from 1965to 1970.The Plaintiff maintained day and night guards on the premises from November 1970 to April 1971 when the said watchmen were driven away by the Defendant. The Plaintiff had also reached agreement to grant a sub-lease of the same to Messrs WIEDEMANN & WALTERS for a term of two years from January 1971 at the annual rent of N11,000.00, but were prevented from doing so by the wrongful occupation of the same by the defendant. The letter granting consent to grant said sub-lease to BEWAC and several correspondences between the Plaintiff and BEWAC and WIEDEMANN & WALTERS in relation to the said premises, payment vouchers for rents and watchmen wages and minute of meeting between Nnanna Kalu and Plaintiff are hereby pleaded and will be founded upon at the trial.
6. By reason of the matters aforesaid the plaintiff has been deprieved of the use and enjoyment of the said land and has thereby suffered damage. A reasonable sum for the use and enjoyment of the said land is N12,000.00 per annum. The valuation report on the rental value of the said property is hereby pleaded and will be relied upon at the trial. The Plaintiff had secured a contractual rent of N11,000 per annum in 1971 from Messrs. Wiedemann & Walters (Nig.) Limited.”

I have on purpose italised certain relevant portions of the paragraphs (4, 5 and 6) of the Plaintiff’s Amended Statement of Claim reproduced above. The main props of the Plaintiff’s case as disclosed in these paragraphs are:-

1. That the Plaintiff was wrongfully dispossessed of the premises now in dispute.
2. A reasonable sum for the use and enjoyment of the said land is N12,000.00 per annum.
3. That the Plaintiff agreed to grant a sub-lease of the premises in dispute to Messrs. Wiedemann & Walters for two years from January 1971 to January 1973 at a rent of N11,000.00 per annum.
4. That the Plaintiff was not able to put Messrs Wiedemann & Walters into possession as it was physically impossible to do that, since the defendant was in wrongful occupation of the self same premises at the time.
5. That as a result of this wrongful occupation of the premises by the Defendant, the Plaintiff has suffered financial loss which it now calculates at the rate of N11 ,000.00 per annum being the rent it would have received were it able to put its tenants (Messrs Wiedemann & Walters) into possession.
6. That the Plaintiff now claims N50,000.00 damages for trespass.

Now what were the Defendant’s answers to all the material averments contained in the Plaintiff’s Amended Statement of Claim The relevant paragraph is paragraph 2 of the Amended Statement of Defence which pleaded:-

“2. The Defendant denies paragraph 4 of the Statement of Claim and avers in further answer thereto, that it was lawfully put in vacant possession of the said premises, ab initio, by the Abandoned Property Authority of the Rivers State Government and remained lawfully therein until it moved out from the premises in 1975.

It is thus the Defendant’s contention:-

1. That no one was in possession of the premises in dispute before was put in possession thereof. It was vacant.
2. That it was therefore “put in vacant possession”.
3. That it continued to be in possession during the entire period pleaded in paragraph 4 of the Amended Statement of Defence, that is from 4th January 1971 to end of March 1975.
4. But that its possession was lawful having been lawfully put in vacant possession by the Abandoned Property Authority of the Rivers State Government”.

The only issue arising from the pleadings of the parties was one solitary issue:-

Was the possession of the premises by the Defendant from 4/1/71 to 31/3/75 lawful or unlawful

The Plaintiff maintains that that possession was unlawful because the property in dispute was not abandoned property and was therefore outside the power and control of the Abandoned Property Authority of the Rivers State Government. The Defendant on the other hand says that it was lawfully put in possession by the Abandoned Property Authority. This was the only issue that went to trial and in fact the only issue that should have gone to trial if the aim of pleadings is still to define issues and narrow the scope of the controversy.

What was the finding of the trial court on this issue that properly arose out of the pleadings After a careful review of the evidence led, especially the evidence that the Plaintiff through its agents BEWAC Automotive Products Limited, was effectively in control of the property at all material time, and after a detailed consideration of the relevant sections of the Abandoned Property (Custody and Management) Edict (now Law) 1969, the learned trial judge found:-

“I therefore find that the property Plot 3 Block 241 Orije Layout, Port-Harcourt was not an abandoned property under the Abandoned Property (Custody and Management) Edict 1969. This head of claim succeeds.”

The above finding means that the Defendant was wrong in the position it took, namely – “that it was lawfully put in vacant possession of the said premises, ab initio by the Abandoned Property Authority of the Rivers State Government”. The Abandoned Property Authority had no control over the property in dispute and lacked the legal capacity to put the Defendant, or anyone else for that matter, in lawful possession. If the Defendant was not in lawful possession of the property in dispute then its possession was unlawful and an infringement of the right of the Plaintiff to use its said property or else sublet it to tenants of its choice. This should have been the end of this case. But no, it was not.

The learned trial judge accepted the submission of learned counsel for the Defendant that Ex. N (the sublease to Wiedemann and Walters) was evidence of the fact that the Plaintiff had already let the property concerned to Wiedemann & Walters by the 4th January 1971 when the 1st Defendant was alleged to have committed the trespass ….and that the right of action for any trespass on it ….was not in the Plaintiff but in Wiedemann & Walters”. Concluding, the learned trial judge observed:-

Where in an action on trespass a Plaintiff fails to show that he was in possession but rather by his evidence shows that another was in actual possession of the land concerned at the material time of the trespass then his action must fail, and it is not necessary to look at the case for the Defendant”.

As a general proposition of law, it is correct to say that trespass is a wrong against possession and that the proper Plaintiff in an action for trespass is the person in possession. But as a commentary on this case, a commentary on the pleadings, the issues raised on those pleadings, and the evidence led to establish those issues (as opposed to evidence that went to no issue and which was thus inadmissible) the above comment was, to say the least, (and with the greatest respect to the learned trial judge) a gross misdirection in law and in fact. The Plaintiff’s case was thus, notwithstanding this obviously erroneous view of the law, the pleadings and the evidence, dismissed.

The Plaintiff appealed to the Court of Appeal. Uthman Mohammed, J.C.A., in a lead judgment, with Abai Ikwuechegh and Sanni Aikawa, JJ.C.A concurring, held:-

“In this case, the learned trial judge rightly in my view, had accepted that as from the 1st January 1971, the possession of the premises in question had passed over to Wiedemann & Walters…..I therefore agree with the learned trial judge that the right party to sue in trespass in respect of this property is Wiedemann & Walters and not the Appellants. In consequence this appeal fails and it is accordingly dismissed. I affirm the judgment of Okara, J. in Suit No PHC/10/76 delivered on the 13th of February 1979……..” (Italics mine)

The effect of the above is that if the court of first instance was wrong on the issue of trespass and the capacity of the Plaintiff to sue and claim as it did in paragraph 6 of its Amended Statement of Claim, then the Court of Appeal which agreed with the trial court will equally be wrong.

Now the Plaintiff has appealed to this Court stoutly complaining that both the trial court and the Court of Appeal were in serious error. Four Grounds of Appeal were filed, and, I may add, argued together. I will only deal with two of those grounds, namely grounds 1 and 4, and they will quite easily dispose of all the salient points raised by and in this appeal. Ground 1 of the Grounds of Appeal complained that:-

“1. The Federal Court of Appeal was wrong in law by holding that Appellant was not in possession of the property known as No.6 Aba Road, Port-Harcourt and cannot maintain the action in trespass having divested its possession to Wiedemann & Walters.

Particulars of Error

(a) There was no evidence that Wiedemann & Walters ever went into possession of the said land after the agreement Ex. N; on the contrary evidence abound that Plaintiff assumed possession of the property from November 1970.

(b) Having found that the leasehold property, No. 6 Aba Road, Port-Harcourt was not an abandoned property, the title in the said leasehold property vested on the Plaintiff/Appellant and was prima facie proof of possession.

(c) ………………………………

(d) ……………………………….

Ground 4 is the omnibus ground:-

“4. The judgment of the Federal Court of Appeal is against the weight of evidence.”

I, on purpose, limited myself to these two grounds because they were those agitated during the oral arguments of counsel. In fact ever before either counsel opened his respective argument, my learned brother and presiding Justice, Bello, J.S.C. hit the nail squarely at the head by his initial and all embracing question – Where is the evidence that Wiedemann & Walters were in possession of the premises in 1971 Can the courts below presume such possession without clear and unequivocal evidence I do not remember that Chief Jamabo for the Respondent was ever able to answer any of the two questions posed above. At a certain stage, Chief Jamabo honourably conceded that “all through the period 1971 to 1975 Wiedemann & Walters did not take actual physical possession of the premises now in dispute”. This is as it should be, and this is in keeping with the highest traditions of the Bar.

Let me now examine the grounds. The Court of first instance found as a fact that the premises in dispute was not abandoned property. This finding completely and totally disposed of the only live issue in this case. The aim of ordering pleadings is, and has always been to secure from the Defendant as many admissions as the facts and circumstances of each particular given case warrant and thus narrow the scope of the controversy – in legal parlance, narrow the issues. As a corollary, the law and the courts insist that parties are bound by their pleadings and that any evidence at variance with such pleadings goes to no issue and should be disregarded by the Court: see George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All N.L.R. 71 at p.77: Aniemeka Emegokwe v. James Okadigbo (1963) 4 S.C. 113 at p.117. Now what is an issue By and large every disputed question of fact is in issue. But in every case, there is always the crucial and central issue which if decided in favour of the Plaintiff will in itself give him a right to the relief he claims subject of course to some consideration arising from other subsidiary issues. If however the main issue is decided in favour of the Defendant, then the Plaintiff’s case collapses and the Defendant wins: Howell v. Dering (1915) 1 K.B. 54 at p.62. An issue of fact arises when a fact is maintained by one party and is controverted by the opposite party in the pleadings. As I observed in J. E. Ehimare & Anor. v. Okaka Emhonyon S.C.7/1984 (1985) 2 N.W.L.R. 177 at p.183 when parties to an action have answered one another’s pleadings in such manner that they have arrived at some material point or mailer of fact, affirmed on one side and denied on the other the parties are said to be at issue, they have joined issue and the question thus raised is called the issue.

The central and, I dare say, the crucial issue in this case was-

Was the Defendant/Respondent in lawful occupation of the premises in dispute as it claimed

or Was it in unlawful occupation (and therefore a trespasser) as the Plaintiff Appellant claimed and still claims

On this all important issue, the trial court found in favour of the Plaintiff Appellant. It found in unmistakable terms that the Abandoned Property Authority through whom the Defendant claimed possession had no right to give the Defendant such possession for ex nihilo nihil fit. The court thus found that Defendant’s possession was without any vestige of right and that is what the law calls trespass. The Court of Appeal did not disturb and may be, could not possibly disturb or fault this finding of trespass against the Defendant/Respondent. As I observed earlier on in this judgment, that should have been the end of this case. But it was not.

The court of first instance and the court below both, with the greatest respect, departed from all known rules of pleadings and started considering, rather gratuitously, a question which was never an issue between the parties on their pleadings namely – whether the Plaintiff, or Wiedemann & Walters, was the proper party to sue for the trespass found as a fact by the trial court. There is, as a question of law, no dispute that trespass is a wrong against possession. But to make – who should be the proper party to sue for such trespass an issue – there ought to be an averment by the Defendant in its Statement of Defence that It trespassed, but that the admitted trespass was on land not in the possession of the Plaintiff but in the possession of someone else – here Wiedemann & Walters. The Amended Statement of Defence in this case contained no such averment. The proper party to sue was therefore not an issue in this case. The Plaintiff’s capacity to sue was never challenged in the pleadings. It cannot at the close of those pleadings be, so to speak, invented by the courts below. The duty of a trial court is limited, strictly limited and confined to trying the issue arising from the pleadings. A trial court is not to go on a wild goose chase; to embark on an academic exercise in which all sorts of questions are discussed at will, without reference to the pleadings, to the issues and to the admissible evidence.

This Court, in very many cases, has consistently maintained that parties and their counsel should not be allowed at the trial to make a different case – a case different from that appearing naturally from the pleadings:- J. O. Idahosa & Anor. v. D. N. Oronsaye (1959) 4 F.C.S. 166 at pp.170/171: Ferdinand George v. The United Bank for Africa Ltd. (1972 8/9 S.C. 264 at p.274: Metalimpex v. A.G. Leventis & Co. (Nig.) Ltd. (1976) 2 SC.91 at p.102: Lawal v. G.B. Ollivant (Nig) Ltd. (1972) 1 All. N.L.R. (Part 1) p.207: G.B. Ollivant v. Olatunbosun (1977) 5 F. C. A. 8. Our judicial procedure is predicated on the fact that in fairness a litigant should have due notice of the issues that are to be raised, in order that he may prepare himself with the evidence necessary to present his case fittingly to the court. When therefore at the close of the case of each party, the court itself in its judgment raises a new issue not appearing on the pleadings, how is the party to be affected expected to deal with such a situation which is at best an embarrassment and at worst a travesty

How did Ex. N – the purported sublease of the premises in dispute- come to feature in these proceedings It was the Plaintiff/Appellant itself which pleaded the purported sublease to show what in terms of Naira and Kobo it was losing by the unlawful and wrongful occupation of the premises by the Defendant/Respondent. Paragraph 5 of the Amended Statement of Claim clearly and unequivocally stated that:-

“The Plaintiff had also reached an agreement to grant a sublease of the same (premises) to Messrs Wiedemann & Walters……but were prevented from doing so by the wrongful occupation of the same (premises) by the Defendant.

The evidence of P.W.3, Walcolm Mecann regarding the purported sublease was as follows:-

“….We agreed to sublet the premises to Wiedemann & Watters mentioned in Ex. A for 2 years at an annual rent of N11,000.00 per annum. This is the document tendered as EX.N Wiedemann & Walters could not be put into possession because the 1st Defendant was in occupation.

There was no evidence from any where to controvert the assertion that Wiedemann and Walters could not be put in possession because the 1st Defendant was wrongfully in possession. How then and from what evidence did the courts below arrive at the conclusion that Wiedemann & Walters were in possession of the premises. Even if Wiedemann & Walters paid 2 years rent to the Plaintiff/Appellant, that will not affect the issue of possession- (assuming that that is a live and crucial issue in this case, which it is not) – which will determine one way or the other the proper party to sue and the issue whether the Defendant was liable to the Plaintiff for trespass or not. All Ex.N gave Wiedemann & Walters was a bare right to possess and not legal possession. Legal possession must have two elements:-

(1) the de facto control – the factum of possession; and

(2) the animus domini – the intent to exclude others sometimes called animus possidendi.

These two elements must co-exist to amount to legal possession. One must observe however that possession means possession of that character of which the thing is capable: Lord Advocate v. Young (1877) 12 App. Cas 556. In the case on appeal possession of the premises in dispute by Wiedemann & Walters will include not only the sub-lease, Ex. N, but also actual or constructive occupation of the premises by Wiedemann & Walters. This was not so. The two courts below were therefore in serious error in holding that Wiedemann & Walters were in possession. This finding is not supported by any evidence whatseover – what is even worse is that the finding is against the direct, oral, and uncontradicted evidence of P.W.3 The judgments of the two courts below are, on that score, both against the weight of evidence. The appeal should therefore succeed on this ground.

The other important point which should be emphasised in this case is that Ex. N was pleaded and tendered in evidence to show the amount of loss the Plaintiff sustained from the wrongful act of the Defendant. The Defendant did not make the capacity of the Plaintiff to sue an issue in its Amended Statement of Defence and neither the Defendant/Respondent nor the courts below can depart from the pleadings and invent new and sudden “issues” outside the pleadings and then decide the case on their “invented issue” see Chief Sule limbo & Ors v. Aminu Asani & Ors. SC.373/67 delivered on 13th March, 1970 (unreported). I think the courts below were wrong to have used Ex. N the way they did: See also the decision of this Court in Ogboda v. Adulugba SC.31/1970 delivered oh 12th February 1971. The Court of Appeal was wrong in speculating that the keys of the premises must have also been given to Wiedemann & Walters. On this point also this appeal should be allowed.

It is now left for me to deal with the quantum of damages to be awarded to the Plaintiff/Appellant. In its Amended Writ of Summons. the Plaintiff Company claimed N50,000.00 damages for trespass. In paragraph 6 of the Amended Statement of Claim filed on 15/4/77, the Plaintiff claimed that a reasonable sum that will compensate it for the deprivation of the use and enjoyment of the said land is N12,000.00 per annum. Now the Statement of Claim naturally supersedes the Writ. On the figure given in paragraph 6 of the Amended Statement of Claims, one has some means of assessing the correct damages to be awarded.

But the question now arises – Can this court itself assess the damages as the learned counsel for the Appellant requested or will it be better to remit the case to the trial court only for the assessment of damages as the learned counsel for the Respondent submitted Where the court of trial has assessed damages, then, an appellate court can either agree with the assessment or in an appropriate case vary the amount. Where the trial court made no assessment, an appellate court can undertake to make the assessment itself if there exists on the record enough material, enough evidence, on which such assessment can be based. The appellate court will also consider all the surrounding circumstances including the period of time the case has lasted and the urgent need to bring the litigation to finality. I am satisfied that this is a proper case for this court to make the assessment itself. The Defendant/Respondent had been in unlawful occupation of the premises from 4th January 1971 to 31st March 1975, a period of 4 years and 3 months. From Ex.N the anticipated annual rent was N11,000.00 per annum. This will amount to N46,750.00. This is exactly what was claimed in paragraph 6 of the Amended Statement of Claim. Though the Writ of Summons claimed N50,000.00 damages for trespass, yet the Amended Statement of Claim (which superseded the Writ of Summons) only claimed rent at the rent of N11,000.00 per annum against the 1st Defendant for the period it was in wrongful occupation of the said land. The period is now known – 4 years 3 months. The court will-not normally award a party what he did not claim.

In the final result, the appeal is allowed. The judgment and orders for costs made by the trial court and the Court of Appeal are all set aside and in their place:

1. The Defendant will pay to the Plaintiff damages assessed at N46,750.00.

The Plaintiff/Appellant is entitled to costs in this Court which I assess at N300 and costs in the court below which I assess at N200.00 as well as costs in the court of first instance which I assess at N400.00.

I have merely awarded the Plaintiff/Appellant the same amount of costs awarded to the Defendant in the two courts below. They say equality is equity.

Other Citation: (1985) LCN/2243(SC)