Prof. Ajibayo Akinkugbe V Ewulum Holdings Nigeria Ltd & Anor (2008)
LAWGLOBAL HUB Lead Judgment Report
P.O. ADEREMI, JSC
The present appeal is from the judgment of the Court of Appeal (Lagos Division) in Appeal No. CA/L/74/2000: Prof. Ajibayo Akinkugbe v. Ewulum Holdings (Nig.) Ltd. & Anor. delivered on the 30th of May 2002. The respondents, who were the plaintiffs before the trial court (the High Court of Lagos State in the Ikeja Judicial Division) had instituted an action against the appellant herein who was then the defendant before that court claiming as follows: – (1) A declaration that the ejecting of the plaintiffs from the premises No. 53, Talabi Street, Adeniyi Jones Avenue, Ikeja, Lagos state on the 4th day of February 1994 is unlawful, the same having been carried out vi et arm is and without lawful authority. (2) An order directing the defendant to enter into an undertaking as to unlimited damages indemnifying the plaintiffs for all or any expense or loss that they may incur directly or incidental to the loss of the Airline Tickets. (3) N5,000,000.00 (five million naira) damages for unlawful execution and damages for loss of proper feelings of dignity and pride. (4) N100,000.00 (one hundred thousand naira) damages for trespass. (5) SPECIAL DAMAGES AS FOLLOWS: – (a) N650,000.00 (b) US DOLLARS – 113,000.00 (c) UK POUNDS – 41,000.00 (d) GERMAN MARKS – 80,000.00 for value of damaged property, monies lost due to wilful act and/or negligence of the defendant, his servants and/or agents. In paragraph 31 of his amended statement of defence and counter-claim, the defendant/appellant counter-claimed against the plaintiffs/respondents as follows:- “The defendant repeats all the allegations in the second amended statement of defence and counter-claim against the plaintiffs for N2,114,715.00 (two million one hundred and fourteen thousand seven hundred and fifteen naira only) as general and special damages for breach of covenant to repair at the end of the lease: PARTICULARS Cost of Repair – N1,114,715.00 General Damages – N1,000,000.00′. Pleadings filed and exchanged between the parties at the trial court with leave of court, are: (a) the amended statement of claim dated 21st February 1995, (b) amended statement of defence and counter-claim dated 10th July, 1995 and (c) the amended reply dated 20th February, 1997. Both parties led evidence in proof of the averments in their respective pleadings. Sequel to taking the final addresses of the counsel, the learned trial judge, in a reserved judgment delivered on the 4th of March 1998, granted reliefs numbers (1), (2) (3) wherein three million naira was awarded to the plaintiffs against the defendant/appellant and (5) whereupon being satisfied with the evidence led by the plaintiffs/respondents, he awarded all the various sums of money claimed as special damages. The claim for N100,000.00 as damages for trespass was however refused. Also, the counter-claim of the defendant/appellant was refused. Being dissatisfied with the said judgment of the trial court, the defendant, now the appellant before this court, lodged an appeal against the judgment in respect of the substantive claim and the counter-claim of the court below. The respective counsel of the parties proffered arguments in support of the various issues raised by them in their respective briefs of argument. In a considered judgment delivered on the 30th of May 2002, the court below, in dismissing the appeal in toto, had reasoned:- “The evidence of D.W.1 had ominous implications for the case of the defendant. The evidence revealed that the defendant know that as at 22/12/93, the plaintiffs were still in the premises. The defendant would also know that Plaintiff’s motion for extension of time to vacate was still in court and fixed for hearing on 24/1/94. The question is, what happened between 22/12/93 and 29/12/93 to prompt the defendant to believe that the plaintiffs had vacated only for the same plaintiffs to apply after 4/1/94 to be reinstated to the premises? …………………… ………………………………………………………….. appellant’s counsel was not contending that the sum of N3m awarded as general damages was excessive. Rather, the argument was that the trial judge did not assess the quantum of damages or state the nature of the damages awarded ………………………………………………………………………………. The litigation in court between the parties on the defendant’s claim for possession against the plaintiffs was quite prolonged and might have been frustrating for the defendant. The plaintiff had not been keeping with undertakings given to the defendant to give up possession. It is, I believe this situation which drove the defendant into a state of desperation which led him to what he did. However, the law does not excuse such conduct even if the plaintiffs did not behave well. They were in occupation and could not be evicted except in accordance with the due process of law………………………………………………………. The truth is that there was before the court evidence showing the unjustifiable circumstances in which the appellant had forcible ejected the plaintiffs. The plaintiffs had in their amended statement of claim asked for aggravated damages …………………………………………….. It seems sufficient to note that aggravated damages are at large as it is in general damages. I might myself think that perhaps N3 million as aggravated damages was excessive but that was not the issue raised before us by the appellant and I say no more on the matter ………… It is enough to say that the appellant has not made a case for this court to intervene by reducing the sum of N3 million awarded as damages. Under the 2nd issue …………………………………………………………..there is in my view no merit in the argument. The plaintiffs pleaded the items they list including foreign currencies. The evidence on the point was not challenged. The lower court accepted such unchallenged evidence as he is entitled to do ……………… I see no reason to disturb the award as special damages ……………………………………………………….. I agree that the applicable standard is proof beyond reasonable doubt. I am satisfied however that the evidence available in support of plaintiffs case attained the standard required.” As I have said, being dissatisfied with the said judgment, the appellant appealed to this court against the judgment of the court below as it relates to the substantive claim and the counter-claim. With the leave of court, the original Notice of Appeal was amended and the Amended Notice of Appeal on which the appeal is founded is the one filed on the 24th of May 2006. Again, with the leave of the court, the parties also amended their respective briefs of argument. In his amended brief of argument filed on the 24th of May 2006, the appellant raised three issues for determination; as set out in the said brief, they are as follows: – “(1) Was the Court of Appeal right in confirming the decision of the trial court when that court granted the plaintiffs relief for a declaration that the defendant forcefully and unlawfully ejected the plaintiffs from the premises at 53, Talabi Street, Ikeja, Lagos on the 4th of January 1994? (2) If the trial court was right in granting the declaration sought for by the plaintiffs, was the Court of Appeal right in confirming the award of damages as assessed and awarded by the trial court in favour of the plaintiffs? (3) Was the Court of Appeal right in affirming the decision of the trial court to dismiss the defendant’s counter-claim?” For their part, the respondents also identified three issues for determination, which as stated in their amended brief of argument, are in the following terms:- “(1) Whether the Court of Appeal was right in confirming the decision of the trial court when it granted that the plaintiffs/respondents had successfully led credible oral and documentary evidence in support of their claim for a declaration that the defendant/appellant forcefully ejected the respondents from the premises at No. 53, Talabi Street, Ikeja, Lagos State on the 4th day of January, 1994 same having been carried out vi et armis. (2) Whether the Court of Appeal was wrong in upholding the findings of the trial court in accepting the evidence of the plaintiffs/ respondents in support of award of damages as assessed which incidence is unchallenged, uncontradicted and uncontroverted by the appellant. (3) Whether the Supreme Court will interfere with concurrent findings of fact by the trial court and the Court of Appeal.” When this appeal came before this court for argument on the14th of January, 2008, Prof Kasunmu, S.A.N., learned senior counsel for the appellant while relying on his client’s amended brief of argument filed on the 24th May 2006 submitted, on points of law, that special damages must be proved by credible evidence and in the instant case by documentary evidence, adding that the General Manager of the 1st respondent called as a witness, failed to tender any document relating to the special damages claimed; he finally urged that the appeal be allowed. Chief Nwokolo, learned counsel for the respondents while relying on his clients’ amended brief of argument filed on the 11th of December 2006, urged that the appeal be dismissed. I have carefully examined the issues raised for determination in this appeal as contained in the briefs of the parties, it is my view that two cardinal issues that call for thorough examination and determination are (i) whether evidence led met the required standard to sustain claim for special damages and whether evidence led in support of the allegation that some monies were carted away – wherein criminality is imported – satisfies the requirement of the law and (ii) whether the award of N3 million (three million naira) as damages for what was described as unlawful execution and PAGE| 3 damages for loss of proper feelings of dignity and pride as set out in leg (3) of the reliefs claimed by the plaintiffs/respondents. The trial court in allowing the claims of the plaintiffs/respondents substantially held in its final judgment: “I am satisfied that the plaintiffs have proved their case and are entitled to the declaration sought. It is hereby granted.” On the claim for damages, the learned trial judge awarded N3 million naira to the plaintiffs/respondents. On the claim for special damages, the learned trial judge said:- “I am satisfied with the evidence adduced for the plaintiffs. I hold that they have proved the special damages. I therefore award in favour of the plaintiffs against the defendant the following:- (1) N650,000.00 (2) 113,000 US Dollars (3) 41,000 Pounds Sterling (4) 80,000 German Marks or the equivalent in naira at official rate of the claims.” Suffice it to say that the fourth leg of the reliefs which is one for N100,000.00 (one hundred thousand naira) as damages for trespass was refused. The learned trial judge awarded both general and special damages in favour of the plaintiffs/respondents in the judgment delivered at the end of the trial before him. In the consideration of how a plaintiff must deal with damages in his statement of claim, it is often necessary to make a basic distinction between general damage or damages and special damage or damages. General damage often consists in all items of loss which a plaintiff is not required to specify in his pleadings in order to allow him recover monetary compensation in respect of them at the trial. But special damage consists in all items of loss which must be specified or stated by him in his pleadings before they will be allowed to be proved at the trial and recovery of same granted. This is an action in which the respondents are claiming special and general damages and by rules of pleadings, they (the respondents) must plead special damages and give particulars thereof before they will be allowed to lead evidence in proof thereof. See B.E.O.O. Industries (Nig) Ltd v. Maduakoh & Anor. (1975) 1 S.C. (REPRINT) 68. In MCGREGOR ON DAMAGES 16th EDITION, I find paragraphs 2025 and 2027 and pages 1319 -1321 very useful and germane to the consideration of this appeal and they are:- Para 2025:- “General damage consists in all items of loss which the plaintiff is not required to specify in his pleadings in order to permit proof and recovery in respect of them at the trial. Special damage consists in all items of loss which must be specified by him before they may be proved and recovery granted. The basic test of whether damage is general or special is whether particularity is necessary and useful to warn the defendant of the type of claim and evidence or of the specific amount of claim, which he will be confronted with at the trial ……… ‘SPECIAL DAMAGE’ said Bowen L.J. in Ratcliffe v. Evans (1892) 2 Q.B. 524 C.A. at 528: – means the particular damage (beyond the general damage), which results from the particular circumstances of the case, and of the plaintiffs claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial.” Para 2026 “What constitutes general damage in pleading is made clearer when considered in relation to the two other meanings of the term. The first of these goes to liability and the second goes to proof.” Para 2027 “If an item of damage is general for the purpose of liability because it represents a normal loss, a fortiori, it will be general for the purpose of pleading in so far as its existence cannot take the defendant by surprise…………………………………… If an item of damage is general for the purpose of proof because it is inferred or presumed by the court a fortiori it will be general for the purpose of pleading since what the law is prepared to infer or presume in the plaintiffs favour the defendant cannot contend would surprise him at the trial.” Having stated what general damage and special damage connote in law, I shall now examine the pleadings of the parties and the evidence led in proof of the averments therein contained to see whether the awards made by the trial judge are justified in law. The relevant paragraphs of the statement of claim are 35, 36, 37, 38, 39, 40, 47 and 51; the averments therein contained are hereunder reproduced: – Para 35 PAGE| 4 “The plaintiffs state that the defendant by himself, his servants and armed agents stormed the premises, broke down the doors, pillaged the plaintiffs’ property and littered them in the streets to the dismayed (sic) and awe of neighbours and passers-by.” Para 36 “The plaintiffs aver that the defendants, his servants and agents carried out the said illegal and forcible ejection without regard to the due process of law by reason of which the execution thereof was and is unlawful.” Para 37 “The plaintiffs aver that by reason of the matters aforesaid, the plaintiffs suffered loss and damage to their proper feelings of dignity and pride.” Para 38 “The plaintiff aver that the defendant carried out the said unlawful execution with malice and spite with the notice and intention to disparage and ridicule the plaintiff and bring him low and despicable in the estimation of his peers and right thinking members of the public.” Para 39 “The plaintiff shall as much as possible claim on the footing of aggravated damages PARTICULARS OF DAMAGE (a) Damages for wrongful execution – N2,000,000.00 (b) Aggravated Damages for loss of proper feelings of dignity & pride N3,000,000.00 Para 40 “The plaintiffs states that at the time the 2nd plaintiff returned from his Christmas Vacation, save for the destruction and pillage on the property aforesaid, neither the defendant, his agents or the soldiers were in sight. They merely wrecked havoc in the premises and left”. Para 47 “The plaintiffs aver also that the 2nd plaintiff kept in the same movable safe box his personal collections of articles of vertu (sic) and cash.” Para 51 “The plaintiffs aver that before the record plaintiff travelled, the said safe box which was in the second plaintiffs bedroom but removed during the said unlawful ejection exercise by the defendant contained the first plaintiff’s stock-in-trade, cash in foreign and local currencies and the second plaintiffs valuable watches, gold chains and cash all of which were consequently …………………” PARTICULARS OF LOSS The said missing/lost safe box contained: – “A. THE 1ST PLAINTIFF’S (i) US DOLLARS $98,000.00 (ii) UK POUNDS 41,000.00 (iii) GERMAN MARKS 80,000.00 (iv) LOCAL CURRENCY (CASH) N50,000.00 (v) 50 copies of blank Nigeria Airways Ltd Tickets (vi) 25 pieces of blank KLM Tickets (vii) 9 pieces of blank Alitalia Tickets” “B. 2ND PLAINTIFF’S (i) 5 Rolex Watch valued US Dollars N15,000.00 (ii) 8 Wrist Watches all valued N150,000.00 (iii) 5 Assorted gold chains valued N150,000.00 PAGE| 5 (iv) 2 Gold rings valued N100,000.00 (v) 4 Cameras all valued N100,000.00 (vi) 1 Video Machine valued N12,000.00 TOTAL N512,000.00” What is the evidence led? PW1 and PW2 security guard and a Public Relation Officer with Zodiac Housing respectively, never in their testimonies, said they saw anybody cart away the valuables which constitute the basis for the special damages. PW3’s evidence did not advance the plaintiffs’ case in the direction of award of general and special damages. PW4 who was the General Manager of the 1st plaintiff/respondent said inter alia: – “It was agreed that the plaintiffs should stay there in the house till December 31st 1993. The 1st plaintiff did not vacate the premises in (sic) the 31/12/93. The plaintiffs asked for extension of time to enable them move to a new place. The plaintiffs filed a motion in court. The defendant filed a motion to dismiss the plaintiffs motion. The defendant’s motion was dismissed and the plaintiffs motion was adjourned till 24/1/94 …………………………………………………….. The defendant thereafter broke into the house and ejected the 2nd plaintiff on 5/1/94. I came back from the East Onitsha. I went into the premises. I saw that the door was broken, anytime we were going on holidays – in (sic) security reasons we consigned company’s articles like travel tickets, money-dollars, pounds, dutch makes (sic) to the Chairman who has a cash box at home. This box contains 98,000.00 US Dollars, 41,000.00 pounds sterling, 80,000 German Deuch (sic) and 50,000.00 naira, 50 pieces of blank Nigeria Airways Tickets and pieces of Airline Tickets. The 2nd plaintiff did not return the items to the office. I discovered that the cash box got lost during the ejection. I called at Police at Area “F” I reported the loss to the Police and the Airlines.” The 2nd plaintiff/respondent who at the material time to this case was the Chairman of the 1st plaintiff/respondent – company, in his testimony said inter alia: – “I was away for Christmas vacation. I came back on the 4th January with my family, when I got to the house No. 53, Talabi Street. I saw my properties in the street and some in the compound. My properties were damaged, wardrobe broken, dress torn. The bed were(sic) broken. The value is N20,000.00 then. Bar unit destroyed beyond repairs. The value then PAGE| 6 should be about N20,000.00. Suit cases torn into two. These were 2. They cost N80,000.00. mobile Safe Box. It was scarted (sic) away. I could not find it. I have in the box both official and private belongings. I have rolex wrist watch which is 15,000 dollars and eight other wrist watches of different kinds or makes. The value is N 150,000.00 then. Five gold chains of N150,000. 2 24 carat gold rings valued Nl00,000.00. Official money in the safe is N8,000 = US Dollars, 41,000 pounds sterling, 80,000 dutch Makes (sic) and N50,000.00. 50 Bland Nigeria Airways Tickets. 25 KLM Blank Tickets, 9 Alitalia Blank Tickets. The monies and the tickets belong to Ewulum Holdings (Nig.) ltd, the 1st plaintiff specifically to Zodiac Travels and Zodiac Bureau De Change both subsidiaries of the 1st plaintiff/company. I keep these articles in my safe at home because my office was vacating for Christmas at the time.” The above are the salient pieces of evidence led by the plaintiffs/respondents upon which they have predicated their claim for the reliefs set out above. As I have earlier said in this judgment, the totality of the evidence led by PW1, PW2 and PW3 does not meet the standard of proof required in this case since, from the facts pleaded, element of criminality is involved. The 2nd plaintiff/respondent rightly realised that commission of crime is thrown up by the facts of this case, hence he made spirited efforts to show that he reported to the Police; but what he claimed he reported to the Police were series of robbery attacks which had earlier occurred in their premises and with the presence of soldiers in their premises this time around leading to this case and this prompted him to lodge a complaint at the Bonny Camp against the said soldiers. He did not attack the issue of crime frontally as required by the law. The court below while agreeing that the applicable proof in the instant case is one beyond reasonable doubt nevertheless held that the evidence available in support of the case attained the required standard. With the greatest respect, I am of the clear view that the conclusion reached by the court below was wrong. The law is sacrosanct that if the commission of a crime by a party to a civil case is directly in issue, the party must prove it beyond reasonable doubt and such crime must be set down specifically in his pleading. See (1) Ikoku v. Oni (1967) 1 ALL NLR 194, (2) Okuarumo v. Obabokor (1966) NMLR 47 and Sofekun v. Akinyemi & Ors. (1980) 5 S.C. 1. That standard required in law has not been met by the plaintiffs/respondents through the evidence led. The evidence reproduced supra is not of the quality required in law, to grant the award of special damages in favour of the plaintiffs/respondents. As I have said earlier, the plaintiffs/respondents attempted to bring in the Police and Army as independent bodies but no effort was made by them to call witnesses from the two sectors to lend credence to their case. Very devastating to the claim of the plaintiff/respondents is the evidence of the 2nd plaintiff/respondent (EWULUM) who held himself out as the Chairman of the 1st plaintiff/respondent, to the effect that some of the items said to have been stolen belonged to some companies, although said to be subsidiaries of the 1st plaintiff, they were never made parties to the suit. Indeed, under cross-examination, he gave the names of the subsidiaries as ZODIAC BUREAU DE CHANGE LTD and ZODIAC TRAVELS AND COMMUNICATION LTD. These two companies are, in the eye of the law, separate and distinct personalities from the plaintiffs/respondents; they ought to have been joined in the suit as parties and if they were not joined as parties, they ought to have given Power of Attorney to the plaintiffs to claim on their behalf for the loss. There is no evidence to this effect before the court. Again, let me say that special damages are in a class of their own requiring strict proof which can only be established by credible and ascertainable facts which must have been specifically pleaded and of course strictly proved. This is not the case here. Issue No. 2 on each of the appellant’s amended brief and that of the respondents’ brief is each answered in the negative. For the avoidance of doubt, each is resolved in favour of the defendant/appellant.
I now go on to Issue No. 1 on each of the two briefs – this relates to whether the court below was right in affirming the judgment of the trial court to the effect that the defendant forcefully and unlawfully ejected the plaintiffs from the premises at 53, Talabi Street, Ikeja, Lagos. It is commonly agreed between the parties, that the relationship of landlord/tenant existed between them; the plaintiffs/respondents were the tenants of the defendant/appellant. It is equally common ground between the parties that at the expiration of the tenancy, the appellant sought to recover possession of the premises from the respondents. This led to series of litigations between them for the retention of possession of the premises by a party on the one hand and recovery of possession by another party on the other hand. It is not in dispute between them that by the judgment of the High Court of Lagos State in Suit No. ID/431/92 delivered on the 23rd of February 1993, the respondents were ordered to vacate the premises. Dissatisfied with the said judgment, the respondents lodged an appeal against it to the Court of Appeal and simultaneously brought an application for stay of execution of the judgment ordering him to give up possession pending the determination of the appeal. At the time of hearing the application for stay, both parties subscribed to a Consent Judgment whereby the respondents were to vacate the premises on 31st December 1993. But on the 15th of December 1993, the respondents brought another application praying for an order extending their time to stay in the premises by six months. The appellant however countered this application by a preliminary objection to dismiss the respondents’ application with a view to enable him (appellant) take possession by 31st December 1993. That application was argued before the court on the 22nd December 1993 and same was dismissed. The motion of the respondents’ for an order extending the time within which they should vacate was thereafter set down for hearing on the 24th January 1994 by the court. It is not in dispute between the parties that before 24th of January 1994 when the motion of the respondents was to be heard, the appellant, precisely on the 4th of January 1994 by himself and with the aid of some people, broke into the said premises and threw out all the belongings of the respondents therein and took possession of the place. It cannot be denied that the appellant was aware that the application of the respondents for an order extending the time to vacate the premises was to be heard on the 24th of January 1994 and by this, that application was still pending in the court as at 4th January 1994 when he and his agents broke into the premises and evicted the respondents. Judicial authorities abound that it has always been a doctrine common to all courts and the doctrine rests upon the foundation that it would plainly be impossible that PAGE| 7 any action or suit or even motion or application could be brought to a successful end if alienation pendente lite were permitted to prevail. This, in a nutshell, is a practical explanation of the doctrine of LIS PENDENS – which doctrine prevents the effective transfer of rights in any property, as in the instant case, which is the subject-matter of an action pending in court during the pendency in court of the action or application. I pause to say that a landlord can unilaterally take possession of a premises tenanted by him if he can do so peacefully upon the termination of the tenancy. See (1) A.P. Ltd v. Owodunni (1991) 8 NWLR (Pt.210) 391 and (2) Aglim BV v. Cohim (1955) 1 A.E.R. 785. The overriding condition to do so is that the tenancy has lawfully come to an end. In the instant case, as I have said, an application by the respondents was still pending before the court of law when the appellants went and took over possession of the premises. A landlord who resorts to self-help in a bid to recover possession of the premises tenanted by him runs foul of the law and he is liable in damages. See (1) Eliochin Nig. Ltd. v. Mbadiwe (1986) 1 NWLR (Pt.14) 47, (2) Ihenacho v. Uzochukwu (1997) 2 NWLR (Pt.487) 257 and (3) Mil. Gov. of Lagos State v. Ojukwu (1986) 2 S.C. 277. The law is common place that a claim for damages for trespass is at the instance of a person in lawful possession of the land such as in the instant case where the occupation of the premises by the respondents has the backing of the law.