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Stirling Civil Engineering (Nigeria) Ltd V. Ambassador Mahmood Yahaya (2005) LLJR-SC

Stirling Civil Engineering (Nigeria) Ltd V. Ambassador Mahmood Yahaya (2005)

LAWGLOBAL HUB Lead Judgment Report

EDOZIE, J.S.C.

The material facts that gave rise to this case are undisputed. The appellant, a civil engineering construction company in the process of the execution of a road construction project, entered in the respondent’s farmland to excavate large quantities of earth thereby creating four large burrows or pits referred to by the parties as craters. In consequence, the respondent as plaintiff sued the defendant/appellant in the Kaduna High Court claiming reliefs formulated in paragraph 24 of the amended statement of claim in the following terms:

“24 Whereof the plaintiff claims from the defendant the following:

(a) General damages of five million naira (N5,000,000.00) for trespass, loss of use and mischief caused or done to the economic trees planted by the plaintiff.

(b)That the defendant to pay the plaintiff the sum of seventy million seven hundred and nine thousand, ninety seven naira (N70,709;097.00) being the cost of filling with laterite the four craters which need 249,450 cubic metres at N283.46 per cubic metre.”

After both parties had joined issues on the pleadings filed and exchanged by them, they called witnesses in proof of their averments and at the conclusion of trial, the learned trial Judge, Bello J, On 20th October, 1995 in favour of the respondent in a judgment in which he encapsulated his findings on pages 69-70 inter alia, thus:

“From the foregoing findings and reasoning of this court, I am of the opinion that the plaintiff had proved his claim on the balance of probability as required by the law. All his witnesses have testified to the effect that the defendant went into his farm and dug some craters and for that he could not cultivate the place, I need not go into the elementary meaning of trespass, destructions and mischief. This was done not within the 50 metres right of way but inside the farm of the plaintiff, what was done within 50 metres right of way has been compensated

I believe the plaintiff ought to have display (sic) something before the court to show and or give it a clear (sic) of what he was earning from the farm and not to make a sweeping statement of the amount he is earning. Moreso, it is not the whole farm that is being destroyed by the plaintiff (sic) but just a portion of it.

On the whole I hold that the plaintiff has proved his 1st claim against the defendant but will definitely not be entitled to the claim of N5m as he is claiming for reasons enumerated above.

I finally enter judgment for the plaintiff against the defendant in the sum of N500,000.00 being general damages for trespass, loss of use and mischief done to the economic trees planted by the plaintiff in his farm land Kaduna-Abuja Road.

Based on the consensus of both parties and their counsel, I hereby order that the defendant shall fill with laterite the 4 craters dug by it inside the said farmland of the plaintiff.” The sum of N,5000 was awarded to the respondent.

My understanding of what the learned trial Judge said in the above extract is that, in respect of the 1st claim, the plaintiff has proved the act of trespass on his land but did not establish the claim for special damages done to his economic trees yet he is entitled to N500,000.00 as “general damages for trespass, loss of use and mischief done to the economic trees.” And in respect of the second head of claim, the defendant is to refill the pits on the plaintiff’s land based on the agreement of the parties.

The appellant did not take kindly to the decision in respect of the first claim adjudging him to pay the sum of N500,000 to the respondent. Consequently, he lodged an appeal to the Court of Appeal, Kaduna Division in respect of that part of the decision, though in the amended notice of appeal, it is erroneously indicated that the appeal is against the whole decision. The amended notice is predicated on two grounds of appeal and since the decision of the Court of Appeal turned on the competency of these grounds of appeal, they are reproduced in extenso hereunder:

“1. The learned Judge erred in law when he awarded the sum of N500,000.00 to the plaintiff as general damages after he held that the claim for trespass and the destruction of economic trees failed.”

Particulars

(a) Having refused the claim of N5,000,000.00 for economic trees cannot thereafter award N500,000.00 general damages for trespass, loss of use and mischief done to the economic trees.

(b) The Judge having held that the plaintiff has not proved his claim for N5,000,000.00 general damages for trespass loss of use and mischief done to the economic trees (sic).

(c) The Judge having accepted in his judgment that compensation was paid to the plaintiff through his representative cannot thereafter award N500,000.00 for the same purpose of mischief done to the economic trees of the plaintiff.

  1. The learned trial Judge erred in law when he awarded the sum of N500,000.00 damages to the plaintiff respondent with N5,000.00 costs.

Particulars of error

(a) The claim of the plaintiff/respondent as pleaded in his statement of claim was N5,000,000.00 general damages for trespass,loss of use and mischief done to the economic trees planted by him and N70,709,097 being cost of filling the craters dug with laterite.

(b) The plaintiff/respondent’s claim for loss of use and mischief are claims of special damages.

(c) The plaintiff/respondent lumped his claim for damages for trespass, loss of use and mischief together.

(d) The plaintiff/respondent did not specifically plead the particulars of loss of use and mischief.

(e) The plaintiff/respondent gave evidence of and orally claimed the sum of N6,000,000.00 (six million naira).

(f) The learned trial Judge found that the plaintiff/respondent did not prove his claim of what he was earning from his farm.”

In the appellant’s brief before the court below the sole issue for determination which was also adopted by the respondent in that court reads thus:

“Whether the learned trial Judge was right in awarding N500,000.00 damages to the respondent having regards (sic) to the statement of claim, evidence led and the findings of the court.”

Delivering the majority judgment of the Court of Appeal (in a split judgment of 2 to 1) Salami, JCA, observed that the appellant did not indicate from which of the two grounds of appeal the sole issue was formulated. He then held that no issue was formulated from ground 1 and consequently that it was deemed abandoned. In respect of ground 2, from which the court held the sole issue for determination was distilled, it observed that the said ground did not raise any issue of quantum of damages; but the ground did not relate to the decision of the trial court; that the particulars did not relate to the ground and that some of the particulars raise fresh points. The court therefore struck out the sole issue for determination and all the arguments canvassed there under.

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Referring to the order of the trial court, where it said:

“I finally enter judgment for the plaintiff against the defendant in the sum of N500,000 being general damages for trespass, loss of use and mischief done to the economic tree planted by the plaintiff on his farmland along Kaduna-Abuja Road ..”

It held that the word “loss of use” in the said judgment is an accidental slip. Upon the foregoing premises, the appellant’s appeal was dismissed with N4,000 costs.

Against that judgment, the appellant has further appealed to this court upon a notice of appeal premised on four grounds of appeal. Briefs of arguments were filed and exchanged. At the hearing of the appeal, respondent’s counsel who was in court adopted his brief while the appeal was deemed argued on the brief filed by the appellant who was not in court. The four issues formulated by the appellant and which were adopted by the respondent read as follows;

“1. Was the inclusion of loss of use in the award of general damages of N500,000.00 for trespass, loss of use and mischief by the trial court an accidental slip (Ground A)

2.Whether the Court of Appeal was right to hold that the appeal was not competent because the particulars stated in support of the ground of appeal did not relate to the said ground (Ground B)

3.In the circumstances of this case, was the Court of Appeal right to have raised the issue of incompetence of the appeal suo motu, argued same and dismissed the appeal without affording the parties opportunity to address on it (Ground C)

4.Were the cases of Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 and Bereyin v. Gbobo (1989) 1 NWLR (Pt. 87) 372 cited and relied upon properly applied to the instant case by the Court of Appeal” (Ground D)

Issue 1:

For the appellant, it is submitted that there is no clerical mistake in the judgment of the trial court as the words “loss of use” included in the judgment are the exact words used by the respondent in formulating his claim. The case of Olu Ogunsola v. National Insurance Corporation of Nigeria (1996) 1 NWLR (Pt. 423) 126 at 136 was called in aid. The contention of the respondent in reply is that the expression complained of’ that is, “loss of use” in the award of damages was clearly an oversight which did not by itself occasion any miscarriage of justice.

Issues 2 and 3.

These relates to the competency of the appeal. The appellant contends that ground 2 of the grounds of appeal is in compliance with Order 3 rules 2(2), 2(3) and 2(4) of the Court of Appeal Rules 1981 in that it concisely alleged error in law, it is concise, not vague or general in terms and does disclose reasonable ground of appeal.

Citing the case of Obala of Otan – Aiyegbaju and 5 Ors. v. Chief Joseph Adesina and 2 Ors. (1999) 2 NWLR (Pt. 590) 163, (1999) 2 SCNJ 1, learned counsel submitted that where some grounds of appeal are competent and others incompetent, the court has a duty to decide the appeal on the competent grounds. It was further contended on the authority of the case of Madam Asiawu Adepeju Korede v. Prince Adedepo Adedokun & 4 Ors. (2001) 15 NWLR (Pt. 736) 483, (2001) FWLR (Pt. 65) 421 at 431 that the court could not raise an issue suo motu and proceed to resolve it without inviting counsel to address it on that issue. Finally, learned counsel contended that the complaint of the appellant was not against assessment of damages, rather, it is that the award of the sum of N500,000.00 as general damages for trespass, loss of use and mischief done to economic trees was erroneous and that particulars were furnished to show that the awards was not made out.

The response of the respondent is that the point raised in the particulars of ground 2 were not canvassed at the trial court and that by virtue of Order 3 rule 3(7) of the Court of Appeal Rules, the Court of Appeal has the power to strike out any notice of appeal which for any reason is not competent. It is further the contention of the respondent that even if the Court of Appeal took a point suo motu and resolved it without an address of counsel on it, the decision on that issue is not vitiated if no miscarriage of justice occurred.

Issue 4:

On this issue, the complaint of the appellant is that the cases of Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 97) 718 and Bereyin & 5 Ors. v. Gbobo (1989) 1 NWLR (Pt. 97) 322 at 379 relied upon by the Court of Appeal in holding that the court will not engage itself in separating competent from incompetent particulars are not apposite. The respondent’s reply is that the principle in Bereyin v. Gbobo (supra) was properly applied in the instant case.

The issues canvassed are related and in some cases dovetail one into the other. I therefore find it more convenient to consider all the issues together.

The starting point is the observation by the court that the inclusion of the expression of “loss of profit” in the judgment of the trial court is an accidental slip. Admittedly, once a trial court delivers its final judgment, it becomes functus officio and ceases to be seized with the matter except for making ancillary orders such as stay of execution etc. Nevertheless, the trial court has inherent power to interfere with its own judgment in order to correct accidental omissions or arithmetical errors. See M.C. Cauphy v. Stringer (1947) 1 IR 73, Adams and Harvey Ltd. v. International Maritime Supplies Ltd. (1967) 1 WLR 445, (1967) 1 All ER 533, Orukunkpor v. Itebu & Ors. 15 WACA 39, Ogunsola v. NICON (supra).

By Order 1 rule 20 of the Court of Appeal Rules, Cap. 62, Vol. D V, Laws of the Federation, 1990 then applicable, the Court of Appeal has the power to make an amendment in the judgment of the trial court before it in appropriate cases such as to amend or correct an accidental slip. The crucial question then is what is an accidental slip In this regard, it is instructive to refer to the judgment of this court in the case of Ogunsola v. NICON (supra), where it was held, per Uwais CJN, as follows:

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“The words “accidental slip” have been judicially considered to inter alia mean a clerical mistake in a judgment or order. Such error must be an error in expressing the manifest intention of the court: see Southerland and Company v. Hennering Brother Ltd. (1921) 1 KB 336 at 340-341, Asiyanbi & Ors. Adeniji (1967) All NLR 88 at 94 (reprint) and Adigun v. A.-G., Oyo State (No.2) (1987) 2 NWLR (Pt. 56) 197.”

In the instant case, at p. 112 of the above record, Salami, JCA in his lead judgment made the following observation:

“The inclusion of “loss of use” in the award of general damages is clearly an accidental slip. It cannot be otherwise ,the learned trial Judge having expressly excluded it in his reasoning along with the payment already made by the Federal Ministry of Works and Housing … ”

I agree with the reasoning of the learned Justice that the trial court was wrong to have included the expression “loss of use” in the award of general damages but with much respect, I disagree that the inclusion can be classified as an accidental slip or arithmetical error which can be amended. It is certainly not a clerical error. In the case of Minister of Lagos Affairs, Mines and Powers & Ors. v. Akin Olugbade & Ors. (1974) 1 All NLR (Pt. 2) 266, 235, this court adopted with approval the dictum of Morris, C.J. in Thynne v. Thynne (1955) 3 All ER (129) 146 to the following effect:

“Where a court has decided an issue and the decision of the court is truly embodied in some judgment or order that has been effective then the court cannot re-open the matter and cannot substitute a different decision in place of the one which has been recorded. Those who seek to alter must in those circumstances invoke such appellate jurisdiction as may apply.”

And in Hattan v. Harris (1992) A.c. 560, it was held that where there is only an accidental omission or arithmetical error:

“It is always within the competency of the court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmony with the order which the Judge obviously meant to pronounce. The correction ought to be made on motion and not a matter either for appeal or re-hearing.”

By the force of the above authorities, I am persuaded to hold that the reference to “loss of use” in the judgment of the learned trial Judge is neither an accidental omission nor an arithmetical error and that In the absence of a cross-appeal or a respondent’s notice under Order 3 rule 14 of the Court of Appeal Rules the court below could not correct the error. Indeed it is the inclusion of the expression complained of that formed the gravamen of the appellant’s case and to jettison it unsolicited as the Court of Appeal did was to overreach the appellant.

The court below suo motu raised the issue of the competency of the appeal. It observed that the appellant did not indicate from which of the two grounds of appeal the issue for determination was distilled. The observation would appear to suggest that an issue for determination must be formulated from each ground of appeal. This, however is not the case. The position is that a single issue should contain or encompass the point raised in one or more grounds of appeal. Thus, a number of grounds of appeal may raise a single issue: see the cases of Aja v. Okoro (1991) 7 NWLR (Pt. 203) 273, Madagwa v. State (1988) 5 NWLR (Pt. 92) 60; Agbetoba v. Lagos State Executive Council (1991) 4 NWLR (Pt. 188) 664., The court below still suo motu ruled that as no issue was derived from the 1st ground of appeal, it was deemed abandoned. Turning to ground 2 which it held is related to the sole issue formulated, it gave a number of reasons to hold that that ground was incompetent. Consequently it held that since there was no competent ground to support the issue for determination the appeal was incompetent.

There can be no doubt that an appeal court is entitled, in its discretion to raise some points suo motu if it sees fit to do so, but that discretion must be exercised sparingly and in exceptional circumstances only. Where the points are so raised, the parties must be given the opportunity to address the appeal court before decision on the points is made by the appeal court. This court has warned time without number against decisions of court being founded on any ground in respect of which it has neither received arguments from either of the parties before it nor even raised by any of the parties: see Shitta-Bay v. Federal Public Service Commission (1981) 1 SC 40, Saude v. Abdullahi (1989)7 SCNJ 216 at 299; Chief Ebba v. Chief Ogodo (1984) 1 SCNLR 372, (1984) 4 SC 84-112.

Although Order 3 rule 2( 4) of the Court of Appeal Rules permits the court to strike out any ground of appeal that does not comply with the Rules, the court must be wary in doing so without an address on it by counsel. Afterwards, Order 3 rule 2(6) has provided that in deciding an appeal, the court shall not be confined to the grounds set forth by the appellant provided that the court shall not if it allows the appeal rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground: see Labiyi v. Anetiola (1992) 8 NWLR (Pt. 258) 139 at 109. The effect of the court below deciding on the incompetence of the appeal before it without an input by counsel will depend on whether a miscarriage of justice had been occasioned thereby and this I will address later in this judgment.

In respect of the competence of the appellant’s grounds of appeal, I am unable to strike down the said grounds which looked upon liberally appear to be clear and unambiguous. the object of a ground of appeal is to apprise the opposite party of the nature of the complaint of the appellant and so where such a compliant is clear and unambiguous and no rule of court is violated, such a ground should be regarded as competent: see the recent decisions of this court in Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253, Hambe v. Hueze (2000) 4 NWLR (Pt. 703) 372 at pp. 385, 389. Consistent with this liberal approach, it is not uncommon for an appeal court to formulate an issue or issues for determination based on the grounds of appeal filed where the issues formulated by the parties are inadequate for the determination of the appeal: see Ogbunyinya v. Okudo (No.2) (1990) 4NWLR (Pt. 146) 551; Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523; Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276) 410, Sha (Jnr.) v. Kwam (2000) 8 NWLR (Pt. 670) 685 at 708-709. Bearing the above principle in mind, it is proposed to examine the appellant’s two grounds of appeal vis-a.-vis the sole issue formulated for determination which had earlier been set out in this judgment.

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On a careful reading of the two grounds of appeal and their particulars, I am of the view that they are related to the sole issue for determination. The court below had at p. 109 observed that ground did not raise any issue about the quantum of damages and on page 112 it also observed with respect to particular of the said ground that the issue about lumping of a claim of trespass, mischief and loss of use was never raised before the trial court to enable it pronounce upon it and as such it constituted a fresh issue which could not be entertained on appeal without leave of court. With due deference, the law is that an issue for determination must be based on the complaint in the ground and not on the particulars as the particulars cannot be argued as separate grounds of appeal; see Chief Daniel Oghonnaya & Ors. v. Adapalm Nigeria Ltd. (1983) 6 SCNJ (Pt. 1) 22. Moreover, it seems to me that the court below misapprehended the complaint of the appellant. A careful reading of its grounds of appeal reveals that it is not complaining about the assessment or quantum of damages as the court below erroneously thought, rather, the appellant was appealing against the principle of awarding N500,000.00 damages. The pith of the appellant’s complaint, if I understand it, is that, the trial court having held that the respondent had proved his case in respect to trespass to his land but did not prove his special damage for “loss of use and mischief done to the economic trees planted,” it was wrong for the trial court to have entered judgment for the respondent in the sum of N500,000.00 being general damages for the trespass (which was established) and loss of use and mischief done to the tree (which was not proved). Flowing from that, a proper issue for determination in the court below would have been framed thus:

“Whether the trial court was right to have awarded the respondent a lump sum of N500,000.00 as general damages for trespass and special damages for damages to economic trees, having already held that the claim for damage to economic trees had not been proved.”

This issue as re-framed by me is distillable from the two grounds of appeal and brings into focus the grouse of the appellant. In addressing this issue, it is pertinent to bear in mind the circumstances under which an appellate court can interfere with the amount of damages awarded by a trial court. In this connection, it is settled law that in order to justify the interference with the amount of damages awarded by the trial Judge, an appeal court must be convinced either, that,

(a) The trial Judge acted upon some wrong principle of law or

(b) That the amount awarded was extremely high or so small as to make it in the judgment of the appellate court an entirely erroneous estimate of the damages to which the plaintiff is entitled:

See Flint v. Lovell (1935) 1 KB 360; Ziks Press Ltd. v. lkoku (1951) 13 WACA 188 ldahosa v.Oronsaye (1959) SCNLR 407, (1959) 4 FSC 165 (1959) SCNLR 703; Bala v. Bankole (1986) 3 NWLR (Pt. 27) 141; Onaga v.Micho & Co. (1961) 2 SCNLR 407, (1961) 1 All NLR 238; ljebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166)136.

I am of the view that the award under consideration was made in violation of the first principle stated above, that is, it was in violation of some principle of law. This is so, because it is incongruous to make an award for a claim for special damages which had not been proved much less particularised. Trespass is a wrong redressible per se without proof of damage. Had the award been limited to nominal damages for trespass alone, perhaps this appeal would have been unnecessary. The error in making the award may be attributed to the improper manner learned counsel had phraseology in the claim in entering judgment for the respondent.

I have already observed that the appellant’s grounds of appeal are not incompetent. They are tolerably good and from them is formulated the issue as I had re-framed above. It follows, therefrom, that the procedure adopted by the court below in raising suo motu the competency of the appeal and resolving same without an address of counsel had occasioned a miscarriage of justice.

In the light of the foregoing, this appeal has great merit and is accordingly allowed. The judgment of the trial court in relation to the first head of claim awarding the sum of N500,000.00 general damages for trespass and loss of use and damage to economic trees and the majority judgment of the court below affirming that judgment are hereby set aside and in their place the respondent’s claim in that regard is dismissed. The judgment of the trial court in respect of the second head of claim directing the appellant to fill the craters in the respondent’s land against which there was no appeal still stands. The appellant is entitled as against the respondent to costs assessed and fixed at N5,000.00 in the court below and N10,000.00 in this court.


SC.301/2001

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