Commissioner Of Health, Nasarawa State & Ors V. Dr. Michael Klinlong Dadet (2009)
LawGlobal-Hub Lead Judgment Report
ABUBAKAR DATTI YAHAYA, J.C.A.
Dr. Michael Klinlong Dadet, the respondent in this appeal, was the plaintiff at the trial High Court, Lafia, where he instituted an action against the appellants in this appeal. In his original statement of claim, he prayed for three reliefs. However, in his further amended statement of claim, he added more prayers, bringing them to nine. They are-
“a A declaration that the plaintiff is the lawful registered title owner of that parcel of land- measuring about 0.27Ha and situated along Lafia Shendam Road in Lafia L.G.C. and covered by a land Certificate of Occupancy No. PL 7228 and as such the forceful and wrongful entry and -demolition of the plaintiff’s structure on the land by the defendants (without following the due process of the law) is unlawful and unconstitutional.
b. An order of this Honourable Court for perpetual injunction restraining the defendants either by themselves or through their agents from further and/or continous act of trespassing on the plaintiff’s land situated along Lafia – Shendam Road in Lafia L.G.C., the subject matter of this suit; OR ALTERNATIVELY
The value of the plaintiff’s land situated along Lafia – Shendam Road in Lafia L.G.C., the subject matter of this suit valued at N2 million.
c. The current value as at 20/12/2000, of the development on the disputed land which was valued on the 7th January 1992 at N954,720.00 by the principal estate officer in the then Ministry of Lands, Survey and Town Planning has appreciated to two million Naira (N2 million).
d. The cost of this suit, to wit payment of professional fee to legal practitioner Eighty thousand Naira (N80,000.00).
e. Payment for approval of building plan Two thousand Naira (N2,000.00).
f. Cost of expert estate valuer reassessing the valuation report carried out on the disputed land, dated 7th January 1992 Twenty Four Thousand Naira (24,000.00).
g. General damages -N894,000.00 Total- Five Million Naira (5,000,000.00).
h. 20% interest from the 20-11-2000 until the day judgment is entered.
i. 10% interest from the date of judgment until the entire- judgment sum is liquidated.”
Briefly, the facts of the case are: The respondent was allocated the land in question, at Lafia, following his application to the Bureau for Lands and Surveys in the former Plateau State. He was also issued with Right of Occupancy. He commenced development but was approached by the Health Management Board, which indicated its interest in the land. When the issue of compensation arose, the estate surveyors of the Ministry of Survey and Town Planning of the then. Plateau State, made two assessments in 1988 and 1991. As it was unable to meet the amount of compensation assessed, the Health Management Board lost its interest in the land. But in May 1988 ADKAN NIGERIA LIMITED, the agent of the Health Management Board -entered into the premises in question, destroyed the structures put up by the respondent, and took over the land to extend the Specialist Hospital it was building. When letters of protests by the respondent were ignored by the appellants, he went to court, and the trial was on the basis of his Further Amended Statement of Claim. The appellants filed an Amended Joint Statement of Defence and a counterclaim.
The respondent filed a defence to the counter-claim. He called 3 witnesses including himself and tendered 12 exhibits. The appellants called three witnesses who testified. At the end of the trial, the High Court Lafia, hereafter called the trial court, found for the respondent, and made the following Orders:-
“(A) A declaration that the plaintiff was the lawful registered titled owner of that parcel of land measuring about O.27Ha and situated along Lafia – Shendam Road in Lafia Local Government Area – and covered by a land Certificate of – Occupancy No. PL 7228 and as such the forceful and, wrongful entry and demolition of the plaintiff’s structure on the land by the Defendants (without following the due process of the Law) is unlawful and unconstitutional.
(B) That the land having been taken over by the defendants and the same being not recoverable I award the sum of N1,500,000.00 kas the value of the plaintiff’s land situated along Lafia – Shendam Road.
(C) That the development having been put at N954,720.00k by the principal’ estate officer as at 7th January 1992, and considering the inflationary trend from 1992 to date of this judgment, I award the sum of N954,729.00k the assessed value and 500% of the sum being N477,360.00k totaling N1,432,080.00k as the value of the structure demolished by the defendants at the site.
(D) That the sum of N150,000.00k is awarded as general damages for the tort of trespass and inconveniences caused.
(E) I award the (no) interest on the judgment sum considering the fact that the land was acquired for the public use and in the interest of the public.”
The appellants were not happy with the judgment and have appealed against it to this court on 14/5/2004 vide their Notice of Appeal containing twelve grounds. The appellants and the Respondent filed, exchanged and adopted their briefs of argument.
In the appellants’ brief, settled by their counsel P. A. Akubo SAN, six issues were identified for determination, and the respondent has adopted them. They are-
“1. Whether upon a careful evaluation of evidence adduced in this case, the Respondent discharged the onus of proof on him so as to entitle him for Judgment including the Reliefs granted by the Lower Court.
- Whether the Learned trial Judge was right in resolving the issue of statutory bar vide section 2 (a) of the Public Officers Protection Law, Cap III Laws of Northern Nigeria, 1963 in favour of the Respondent on the ground that it was a case of continuing trespass (Grounds 2 and 3).
- Whether the Learned trial Judge had the jurisdiction to entertain the new reliefs at paragraph 22 (a), (b) and (c) of the Further Amended Statement of Claim (albeit, not paid for) on the ground that the non-payment of requisite filing fees for the said reliefs had been regularized. (Grounds 4 and 5).
- Whether the Learned trial Judge was right in admitting and utilizing inadmissible evidence, to wit: Exhibits 1, 2, 3, 5, 6, 9, 10 and 11 having regard to sections 109, 97 (2) (c ); 111 and 91 (3) of the Evidence Act as Amended (Grounds 6 and 7).
- Whether the Learned trial Judge had the Jurisdiction to award monetary awards and or percentage not claimed for let alone giving double compensation to the Respondent. (Grounds 8 and 9).
- Whether the Learned trial Judge denied fair hearing to the Appellants for failing to consider their counter-claim having regard to section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. (Ground 12).
ISSUENO.1
This Issue concerns the burden of proof on the respondent, and the evaluation of evidence by the trial court. Counsel for the appellants submitted that the respondent had the burden of proving his assertion but that he had failed to do so. He argued that the claim of the respondent for the value of his development and the value of the land, each put at N2m, falls under the category of special damages which must be strictly pleaded and proved, relying on UTB (NIG.) LTD. VS. AJAGBULE(2006) 2 NWLR (PT 96) 447 at 500; TOTAL (NIG.) LTD. VS. MORKAH (2002) 9 NWLR (PT. 773) 492 at 513. Counsel argued that the respondent did not supply the particulars of the special damages which at any rate contain conflicting figures and therefore ought to have failed to get them awarded.
Counsel also argued that the evidence of the respondent was to the effect that he never owned the land in question by way of purchase or inheritance under customs, and that he only applied for and it was allocated to him. Even when the Right of Occupancy (Exhibit 1) was issued to the respondent, a condition in clause 6 thereof was attached, subjecting the right to payment of compensation, which was not complied with, he argued. Counsel referred to the evidence of DW1, His Highness the Sarkin-Lafia, to the effect that the land in question, was part of a land originally .belonging to the family of Magajin Mallam, before the Government acquired it in the nineteen sixties, for the purpose of building a General Hospital in Lafia, and that no compensation was paid to the original owners.
On valuation, counsel for the appellants submitted that the respondent had himself conceded under cross-examination, that the valuation carried out by PW2 was not based on actual things on the ground, because the structures had been destroyed by then, and that the cost of the land put at N2m was based on its market value. Counsel attacked the valuation reports as worthless and that they were made 1 1/2 years after the institution of the action, to suit the claims. Counsel also referred to exhibits 1 and 6 and submitted that the respondent had unilaterally changed the purpose for which the land was allocated to him from residential to a hospital and pharmacy. Since no approval was given for these, the structures put up were unlawful and illegal and the respondent should not be allowed to benefit from his own wrong doing.
It was the argument of counsel, that since ADKAN NIGERIA LIMITED was alleged by the respondent to be the one responsible for the destruction of his structures on the land, he ought to have joined it as a party and that his failure to so do, is fatal to his case, since the appellants cannot be held vicariously liable for the action of a non-party. Reliance was placed on IYERE VS. BENDEL FEED & FLOUR MILL LTD. (2001) 7 NWLR (PT 711) 76 at 85 and ALALE VS. OLU (2001) 7 NWLR (PT. 711) 119 at 131. He urged us to set aside the monetary award made since the respondent did not give evidence in accordance with the award made by the trial court.
Learned counsel for the respondent submitted on this issue, that the respondent had discharged the onus of proof on him and was rightly awarded the reliefs. He contended that from the pleading of both parties, it was not controverted, that the respondent is the registered owner of the land, with a Certificate of Occupancy No. PL.7228, based on his application and that the grant was not revoked. It is also settled, he argued, that he commenced development on the land, which the appellants’ contractorsentered and destroyed, without any formal acquisition. These, he argued, have established ownership of the land in the respondent and trespass by the appellants who entered upon it and put up an extension of a specialist hospital.
On the damages, counsel referred to the further amended statement of claim which pleaded the special damages and submitted that the pleadings were supported by the evidence of PW2, without any contrary view from the appellants. Inspite of the evidence, the trial court awarded lesser amount, which it could, on the authority of METAL CONSTRUCTION VS. ABODERIN (1998) 60 LRCN 4034. It was therefore incorrect, he argued, for the appellants to say that the trial court awarded what was not claimed. Counsel argued further, that the appellants did not on their own, lead any evidence of the value of what they destroyed and the evidence of the respondent in this, is the only one available and was therefore proved by minimum of proof – BURAIMO VS. BAMGBOSE (1989) 3 NWLR (Pt. 109) 352 at 364 D-E.
On ADKAN (NIG.) LTD, counsel submitted that the admission of the appellants that ADKAN (NIG.) LTD. is their agent, puts the matter to rest, since the age8t had acted on behalf of a disclosed principal and the principal is thus liable for the acts of the agent. He cited PLATEAU INVESTMENT AND PROPERTY DEVELOPMENT LTD. VS. EBOHOTA (2001) FWLR (PT.64) 374.
On departure from the purpose for what the land was granted, counsel argued that parties did not join issues on it, and urged us to discountenance the argument.
By paragraphs 5 and 12 of the Further Amended Statement of Claim, the respondent laid claim to the land in question. He therefore had the burden of proving title by evidence as even an admission by the appellants, could not suffice, since it is a declaratory relief he is seeking. The law recognizes five ways of proving title to a piece of land. They are:-
- By traditional evidence;
- By documents of title;
- By various acts of ownership, numerous and positive, and extending over a length of time as to warrant an inference of ownership in such land;
- By acts of lawful enjoyment and possession of the land; and
- By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the disputed land. See the celebrated case of IDUNDUN VS. OKUMAGBA (1976) 9-10 S.C. 227.
In his evidence before the trial court, the respondent stated that he applied for a piece of land in Lafia and was allocated the land in question and was issued with a Right of Occupancy. Later, in 1992, the Governor of Plateau State signed and issued him with a Certificate of Occupancy No. 7228 admitted as Exhibit 6. He applied for approval of building plan and when he obtained same, commenced construction on the land. The appellants later on, through the agency of ADKAN (NIG.) LTD., entered the land in question, destroyed his structures and put an extension of a specialist hospital on it. At page 76 of the record, PW3 confirmed the land in question to belong to the respondent, as he got it from the Bureau of Lands, through an application. At page 77, this witness stated that the land in question is now part of the specialist hospital, Lafia. This same witness who later gave evidence as DW 111, at pages 86-87 of the record, maintained that the land was granted to the respondent, and when he commenced development on it, the Ministry of Health expressed interest in acquiring it, to expand its hospital. The land and the development were valued but the Ministry declined to pay and the respondent was asked to continue with his development. Later, the hospital was ‘extended to encompass “the area allocated to the plaintiff” (respondent).
The trial court, after reviewing and evaluating the evidence led before her, made a finding that the respondent had successfully establish title and possession to the land in question. The finding is based on the evidence believed by the trial court, as the respondent has been granted a certificate of occupancy over the land in questioned, by the Governor of Plateau State, who, by virtue of the Land Use Act 1978, had control over the land material time. All other existing rights in respect of the land in question were by law. Therefore automatically extinguished. See OLAGUNJU v. ADESOYE (2009) 4 SCNJ 96, 127 – 129; TITILAYO v. Olupo (1991) 7 NWLR (pt.205) 519 at 530. so the ownership by the people of Magajin Mallam, is of no consequence. At any rate there is evidence that they had divested themselves of title to the land when they gave it to the Government. Again, it is the law, that a person who is granted a certificate of occupancy over a piece of land, holds same to the exclusion of all others. See GAMKON v. UGOCHUKWU (1993) 6 NWLR (pt.297) 55.
It is the cardinal function of a trial court, to evaluate evidence led and ascribe probative value. It believes or disbelieves witnesses, as it has the singular privilege of seeing and hearing the witnesses, testify. An appellate court does not venture into the business of believing or disbelieving witnesses, since it did not see them and their demeanour. Once a trial court properly evaluates the evidence led, an appellate court will not interfere, unless the findings are perverse, in which case a duty to interfere, will arise – ONISAODU VS. ELEWUJU (2006) 7 SCNJ 270 at 282; MOSES RUNGE VS. GOVERNOR OF RIVERS STATE (2006) 6 SCNJ 48 at 94; WAMADI N. EJILEMELE VS. BELEME OPARA (2003) 5 SCNJ 1 at 15. In this appeal, the findings of the trial court are supported by evidence on the record and there is no wrong approach or misapplication of law, substantive or procedural. There is therefore no basis for interference.
On payment of compensation as a condition attached to the grant, it is my view that the point is not based on issues joined by the parties at the trial court and is also not covered by any ground of appeal in this court. It is a new issue which has been raised without the leave of this court. It is incompetent and therefore discountenanced. Again, if compensation was not paid to the original owners of the land, that is not a matter properly before this court as it is for those persons to seek their remedies. The appellants herein, are not shown to be their representatives and cannot complain on their behalf.
On departure from the purpose for which the grant was made to the respondent, I agree that this was taken up by the trial court in its judgment and the appellants have a right to raise it since it arose from the decision of the trial court. The court made a finding that Exhibits 9 and 10 (building plans) show clearly that the respondent was to build residential accommodation with bed rooms, children’s’ bedroom, guest room, kitchen, dining room and store. I agree with this finding as it is borne by Exhibits 9 and 10. But I also agree with counsel for the appellants, that ‘Appendix A’ attached to Exhibit II (valuation report) contains plans of -putting up consulting room, laboratory and pharmacy among other rooms. To this extent only, the finding of the trial court, that Exhibit II does not depart from residential purpose, is not strictly correct. But it is not every error or slip committed by a trial court that would lead to allowing an appeal..
The error must be of such a nature that it is substantial and has occasioned miscarriage of justice. See EKPE VS. OKE (2001) 10 NWLR (Pt. 721) 341 at 351. Here, even if there is a departure from the purpose of the grant, it is for the appropriate authority to call the respondent to order or mete out the correct sanction. That course of action was not embarked upon and so the appellants cannot be heard to complain. They have not been shown to have been adversely affected in any way, by the action of the respondent in changing the purpose of the grant. If no wrong has been committed against them, they cannot be entitled to any remedy.
There is no evidence of revocation of the grant At any rate Appendix A to Exhibit 11 is not the approved building plan. It is only a sketch which cannot override Exhibits 9 and 10.
On failure to join ADKAN (NIG.) LTD, I am in complete agreement with counsel for the respondent, that that is neither fatal nor necessary. This is because an agent who acts on behalf, or on the authority of his disclosed principal, and who commits a tortuous act thereby, becomes liable together with his principal. They are joint – tortfeasors and a plaintiff is at liberty to pick and choose any of them or both of them to sue. The failure to join one of the tortfeasors is not fatal unless there is a statutory requirement to that effect. See IFEANYICHUKWU VS. BONEH (2000) 5 NWLR (Pt.656) 366.
The next point ,is the issue of the awards made by the trial court. Trespass to land is a tort against a person in exclusive possession, without justification – ADELAJA VS. FANOIKI (1990) 2 NWLR (PT. 131) 137; ECHERE VS. EZIRIKE (2006) 5 SCNJ 170 at 179. It is actionable per se, as the plaintiff needs not prove any actual damage – OGUNBIYI VS. ADEWUNMI (1988) 2 NWLR (PT.93) 215. In such a situation, the plaintiff would be entitled to general damages. But a plaintiff who has actually suffered an injury can claim compensation by way of special damages, which he must specifically plead and strictly prove. The Supreme Court in XTOUDOS SERVICES VS. TAISEI (W.A) LIMITED AND ANOR (2006) 6 SCNJ 300 at 315, referred to IJEBU ODE L.G. VS. BALOGUN (1991) 1 NWLR (PT. 166) 136 at 158; ESEIGBE VS. AGBOLOR (1993) 9 NWLR (PT. 316) 218 at 145; B.E.O.O INDUSTRIES VS. MADUAKOR (1975) 12 S.C 91 at 108 and held that “a plaintiff claiming special damages has an obligation to plead and particularize any item of damage. The obligation to particularize arises not because the nature of loss is necessarily unusual, but because the plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.”
In the instant appeal, the respondent led evidence on the value of the property he owned and prayed for special damages for its loss.
The measure of damages in a situation where the property was totally destroyed, is the properly assessed value of the property (a reasonable re-instatement of the structure destroyed) at the time of its destruction. See SHELL PETROLEUM NIG. LTD. VS. ARUBAH (1999) 3 NWLR (PT.593) 1; KEREWI VS. ODUGBESAN (1965) 1 ALL NLR 95 and LAR VS. STERLING ASTALDI (NIG.) LTD. (1977) 11-12 S.C 53 at 61. Once the trial court has properly carried out its functions, an appellate would not interfere, unless the decision was perverse. In this case, the value of the property was not stated as at the time of its destruction by the appellants. The value or the development in the property as at 7/1/1992, (before the destruction) vide Exhibit 11, was put at N954,720.00k. The claim was for N2,000,000.00k representing its value as at 20/12/2000. The trial court rightly in my view, rejected the claim of the N2,000,000.00k since it did not represent the cost of the structural development on the property. Rather, it accepted the assessment value of N954,720.00k as at 7/1/1992 plus 50% of this sum being N477,360.00k, being the inflationary figure from 7/1/92 to the date of judgment -(5/5/2004). I do not think that this is a correct position of the law, since it gave the assessment of the improvement up to the date of judgment. By the authority of Shell Petroleum Vs. Arubah (Supra) the value of the development is to be as at the time of the destruction.
It is however trite, that courts of law ought to take judicial notice of the decline in the value of the naira due to the economic problems encountered by this country over a period of time, including the period in question. See ONWU VS. NKA (1996) 7 NWLR (Pt.86 at 258 and KALU VS. NBUKO (1988) 3 NWLR (Pt.80) 86 at 105. Appellate courts do not ‘normally interfere with the assessment of trial courts. But when the wrong principle of law is applied, an appellate court has a duty to step in and effect a correction. In this instant, it has been shown that the trial court was in error when it based its award of damages for the destruction of the property, on the value and rate of inflation, as at the time of the delivery of its judgment. It ought to have been as at the time of the destruction of the development on the property. There is therefore every justification in interfering with that award – AKINKUGBE VS. EWELUM (2008) 4 SCNJ 404 at 424 and HIS HIGHNESS UYO 1 VS. EGWARE (1974) 1 ALL NLR (PT. 1) 293. I am of the view that the 50%. inflationary trend, within a period of about 12 years (7th January 1992 to 5/5/2004) is too high. 15% would, in my view, be more reasonable. I therefore award 15% inflationary trend on the assessed value of N954,720.00k as at 7th January 1992 to June 1998, the date of destruction of the development on the property.
The trial court awarded N1,500,000.00kas the value of the respondent’s land. A court has power to grant less than what was asked for. It cannot however, grant more than was asked for BADMUS VS. ABEGUNDE (2001) 3 WRN 40. The appellants have not attacked the valuation of the land at N2,000,000.00k as stated by PWII and the respondent. They were supported by Exhibit II. I do not have any basis for interfering with the award of N1.5m, a figure less than the amount claimed. I therefore decline to review it.
On the award of N150,000.00k general damages, it is the law that an award of general damages is the responsibility of a trial court, which an appellate court would not interfere with, unless the trial court
(a) acted under a mistake of law or under a misapprehension of facts;
(b) acted in disregard of principles;
(c) took into consideration, irrelevant matters or failed to take consideration of relevant matters; or
(d) acted in such a way that injustice would result. See U.B.N. VS. ODUSOTE BOOKSTORES (1995) 9 NWLR (Pt.421) 558.
Where the award is too high or too small, an appellate court will interfere – DUMEZ VS. EGBOLI (1972) 1 ALL NLR 244 at 25.Q per Lewis J.S.C. None of these stated factors have been proved to exist, concerning the award of the N150,000.00 general damages. The fact that I would have given less, is not a criteria for upsetting the award and so I decline to interfere with it. In the circumstances, Issue NO.1 is resolved against the appellants.
ISSUE NO.2.
This Issue pertains to the defence of statutory bar, pursuant to section 2 (2) of the Public Officers Protection Law, Cap III Laws of Northern Nigeria 1963, applicable to Plateau State. Arguing the issue, learned counsel for the appellants Mr. Akubo SAN, submitted that it is common ground between the parties that the cause of action in the case, arose in May 1998 when the appellants entered into the land in question, demolished the respondent’s structures on it and used the land as an extension for the construction of the specialist hospital. Since the action was not filed until the 22/3/2000, and since the lower court had found the appellants to be Public Officers and/or offices, it should have held that the filing of the action three years from the date when the cause of action arose, and outside the three months stipulated in section 2(a) of the Public Officers Protection Law 1963, was caught by the provision of the said law and therefore, statute-barred. Counsel argued that since the commission of the acts complained about was in the past and had not endured beyond May 1998, there was no continous trespass, and the respondent had no right of action. EGBE VS. ADEFARASIN (1987) 1 SCNJ 1 at 17 – 18: IBRAHIM VS. JUDICIAL SERVICE COMMITTEE (1998) 12 SCNJ 255 at 272 – 273 were referred to.
In his response on this, learned counsel for the respondent submitted that the claims of the respondent were not caught by the provisions of the Public Officers Protection Law Cap 111 Laws of Northern Nigeria 1963, as the action of the appellants amounted to. continous trespass. He referred to the evidence of DW3 who stated that the specialist hospital built by the appellants, encompasses the respondents’ land taken over by them, and since they are still in the land, their action constitutes continous trespass. He sought in aid, the case of ADEPOJU VS. OKE (1993) 3 SCNJ46.
Section 2(a) of the Public Officers Protection Law Cap 111, Laws of the Northern Nigeria 1963, applicable to Plateau State, provides, inter alia, that all actions against public officers who acted in their official capacities, ought to be commenced within three months from the date of accrual of the cause of action. See EGBE VS. ALHAJI (1990) 1 NWLR (Pt.128) 546. This legislation is therefore, a limitation law, the purpose of which, is to bar a plaintiff who ordinarily has a cause of action, to lose his right to enforce the action – C.B.N. VS. UKPONG (2006) 13 NWLR (PT. 998) 555. It takes away from the plaintiff, his right of action, right of enforcement and the right to judicial relief, leaving him as it were, with water in a basket, sieving out torrentially. Any action commenced outside the limitation period, offends the limitation law, is statute-barred, does not give rise to a cause of action and will be struck out – IBRAHIM VS. J.S.C (1998) 14 NWLR (Pt.584); UNILORIN VS. ADENIRAN (2007) 6 NWLR (Pt. 1031) 498.This is the general law. There are however, exceptions – where it is to enforce a fundamental constitutional right contravened by a court acting judicially, then the limitation law does not apply. See FEDERAL REPUBLIC OF NIGERIA VS. CHIEF IFEGWU (2003) 5 SCNJ 217 at 253. Similarly, when a plaintiff is prevented from bringing the action, or fraudulently denied the opportunity to sue timeously, limitation law will not apply. See ABACHA VS. SPIFF (2009) 2 SCNJ 119 at 140.
When does time begin to run in a limitation law? It is when a person who can sue (a natural and a juristic person) exists, and another who can be sued also, exists and when all material facts needed to be proved, have happened, i.e when the cause of action has arisen. See NIGERIAN PORTS AUTHORITY VS. ABU AJOBI (2006) 7 SCNJ 168 at 173 – 174. In factual terms, to determine when time begins to run in a limitation law, the Writ of Summons and the Statement of Claim ought to be examined, since they are the documents that allege when the wrong was committed, which gave the plaintiff the cause of action, and then compared with the date when the Writ was filed. When that is ascertained, then it will reveal whether the action was filed timeously or outside the limitation period. There are however, some situations where the wrong committed does not end but continues. An example is where there is a continous tort of trespass. Talking about trespass, once a person has been proved to be the owner of a piece of land, he is said to be in exclusive possession or has the right to that exclusive possession.
Whoever enters or invades that private property without his consent, becomes a trespasser.
In this appeal, there is undisputable evidence that the appellants had entered the respondent’s property, demolished the structures he had built therein, and extended their hospital on to the property. Trespass is then proved and they are liable in -damages.
This is because trespass is a wrong against possession and since he had established his right to possession by virtue of his ownership of the property, trespass is proved. When they entered his property, destroyed his structures therein, and built an extension of their hospital on his property, they remained therein, up to, and including the time he took out the Writ. They were therefore clearly in a continuing tort of trespass and the cause of action had endured from their initial entry into the property, to the time the action was filed. See the Supreme Court decision – ONAGORUWA VS. AKINREMI (2001) 13 NWLR (Pt. 729) 38 at 61 and ADEPOJU VS. OKE
(1999) 3 NWLR (Pt. 594) 154 at 163 – 164. The continuity of the trespass is their remaining on it. In ADEPOJU VS. OKE (supra) at 163 H, the Supreme Court, in a situation where the defendants entered the plaintiff’s land and built houses which were still remaining on the land, similar to this case, held that “Since the act of building on the plaintiffs’ land was unlawful and the houses have been left on the said land, the trespass continued as long as the houses were on the land and the defendants were rightly found liable….. ”
In the circumstances, the action was not caught by the provisions of the Public Officers Protection Law, was not time-barred and was therefore competent. The trial court was right when it found the appellants liable.
Issue NO.2 is thus resolved against the appellants.
ISSUE NO.3
This has to do with the non-payment of filing fees for new reliefs 22(a) and (b) after the statement of claim was further amended. Counsel for the appellants argued forcefully, that the trial court was wrong when it held that the non-payment of the filing fees had been regularized by the respondent, when it was a condition precedent to assumption of jurisdiction. He referred to OKOLO VS. UBN (2004) 3 NWLR (Pt. 859) 87 at 108 and ONWUGBUFOR VS. OKOYE(1996) 1 NWLR (Pt. 424) 252 at 292, and submitted that a fundamental defect cannot be regularized in retrospect since filing of fees is a condition precedent.
Counsel for the respondent in his response submitted that since the filing fees in respect of the additional reliefs had been paid by a deeming order of the court, the defect had been cured and had removed the case from the situation in ONWUGBUFOR VS. OKOYE (Supra)
It is not controverted, that the respondent had amended his statement of claim further and had introduced additional reliefs as per paragraphs 22 (a) and (b). These two new reliefs, were not assessed by the Registrar of Court and were not paid for. Counsel for the appellants in his address before the trial court, raised the issue. In a swift reaction, the respondent filed a motion seeking the leave of court to pay for these reliefs and having paid same, obtained a deeming order that the reliefs had been properly paid for. This happened before judgment was delivered.
It is correct that the Supreme Court, per Niki Tobi, JSC in OKOLO Vs. UBN (supra), also reported in (2004) 1 SCNJ 113 at 123, referred to and applied the case of ONWUGBUFOR VS. OKOYE (Supra) per Iguh JSC where he held that payment of filing fees in respect of each relief claimed is a condition precedent to the commencement of a judicial function. Specifically, it was held that “A court shall not entertain a relief claimed without payment of the prescribed requisite fees …..” See also SEVEN-UP BOTTLING COMPANY VS. YAHAYA (2001) 4 NWLR (Pt. 702) 47 at 55 E- F and AJA VS. OKORO (1991) 7 NWLR (Pt. 203) 260. It is to be noted, that in the case of ONWUGBUFOR VS. OKOYE (Supra) an exception was made. Iguh JSC went on to say that the court should strike out a claim whose fees had not been paid “in the absence of an appropriate remedial action or application to regularize such anomaly.”
The Supreme court here, was dealing with a situation in which no fees was paid in respect of the new claim of forfeiture and the court struck it out for’ being incompetent. This is not the position in the instant appeal where the respondent applied to the trial court by way of Motion on Notice, to pay the requisite fees in respect of the new reliefs. The court granted the prayers and the fees were paid ‘before judgment was delivered. The application, the grant of the prayers and the payment of the fees had therefore regularized the anomaly and were a good remedial action. The trial court was perfectly in order when it accepted ‘the new reliefs as competent before it, since it was supported by the ONWUGBUFOR’s case. In its overwhelming desire to ensure that substantial justice is what every court in the land should promote, the Supreme Court has on 13/2/2009, shifted from the position it held in ONWUGBUFOR VS. OKOYE (supra) concerning filing fees. In the case of ALLOYSIUSÂ Â AKPAJI VS. FRANCIS UDEMBA (2009) 2 SCNJ 202, a similar situation to the case in hand, the Registrar of the trial court, omitted to make an appropriate assessment for a counter-affidavit. The case was concluded at the trial court with that anomaly and the issue only surfaced at the Court of Appeal, where the respondent filed an application to pay for the appropriate fees. The Supreme Court, per Ogbuagu J.S.C. in a very pungent and decisive manner, held at page 209, that it is now firmly settled that even the failure to pay filing fees does not raise issue of jurisdiction and the failure to fulfil the provisions of the High Court Rules in that regard is a mere irregularity which when not taken timeously or when acquiesced in becomes incapable of affecting the proceedings in any way. See the case of A.C.B. Ltd. Vs. Henshaw (1990) 1 NWLR (Pt. 129) 646 at 650 CA citing the cases of Sonuga Vs. Anadein (1967) NMLR 77 at 79; Ezemo Vs. Oyakhire (1985) 1 NWLR (Pt. 2) 195 at 202 – 203; Noibi Vs. Fikolata & Anor (1987) 1 NWLR (Pt. 52) 619 at 632 (it is also reported in (1987) 3 SCNJ 14) and Alhaji Saude Vs. Alhaji Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 405-406 (it is also reported in (1989) 7 SCNJ 216.
The usual remedy, it is also settled, is an order by the lower court, that the appropriate fees or any short-fall be paid. It has nothing to do with jurisdiction of the lower court to entertain the counter-claim”
The learned justice of the Supreme Court went on to conclude on the issue at page 211 of the report, that “I therefore hold that the nonpayment in full of the appropriate fees was a mere irregularity and did not vitiate the proceedings and it has nothing to do, with the jurisdiction of the trial court. At worst, it is voidable not void. As can even be seen, it is not the failure to pay an assessed filing fees, but non-payment of the appropriate or requisite fees – (ie inadequate fees). If the Registrar/Registry under-assessed – ie not assessing correctly, can it be said, by any stretch of imagination, that the fault to assess adequately, is that of a litigant or a lawyer or the respondent? I think not.” This is a remarkable development of the law as it has de-emphasised the use of technicalities, to defeat the course of justice. The ills of the Registry in under-assessing the reliefs, should not be visited on the respondent. The additional reliefs were competent before the court. Issue NO.3 is thus resolved against the appellants.
ISSUE NO.4
This is in respect of admission of inadmissible evidence at the trial court. Counsel for the appellants submitted that although the trial court had made a finding that exhibits 2, 3, 5, 6, 9and 10 were public documents and the only acceptable copy is the certified true copy, it refused to expunge them from the evidence, on the ground that they are documents executed in several parts, hence primary evidence. On exhibits 9 and 10 the trial court held that although they are photocopies, they contain original stamps and endorsements, executed in several parts and therefore primary evidence. Counsel argued that none of the exhibits 2, 3, 4, 5, 9 and 10 was certified as public documents and therefore inadmissible by virtue of sections 97 (2) (c) and 111 of the Evidence Act. Further, that they were not executed in several parts. On the strength of section 97 (2) (c) of the Evidence Act and the case of ARAKA VS. EGBUE (2003) 7 SCNJ 114 at 125, counsel submitted that the only admissible copy of a public document is its certified true copy and no other. On Exhibit 11, counsel submitted that it was made by a party interested during the pendency of the suit and so in admissible by virtue of section 91 (3) of the Evidence Act. HASHIDU VS. GOJE (2003) 15 NWLR (Pt. 843) 352 at 381 – 382; ANYABOSI VS. R.T. BRISCOE (NIG.) LTD. (1987) 3 NWLR (Pt. 59) 84 at 93; NWANGWA VS. OBADAN (1997) 10 NWLR (Pt. 526) 559 at 572 were referred to. He therefore argued that if the exhibits are expunged, the respondent’s case will collapse. He urged us to resolve the issue in favour of the appellants.
Counsel for the respondent on his part, argued that it is not correct, as submitted by the appellants, that the only admissible copy of a public document is its certified true copy and no other. The correct legal position he posited, is that primary evidence of a public document is admissible in evidence, but that secondary evidence of a public document, must be certified before it becomes admissible in evidence. He then submitted that exhibits 1, 2,3, 5, 6, 9 and 10 are public documents within the meaning of section 109 (a) (II) and (III) of the Evidence Act and are primary, not secondary evidence. They are therefore admissible under section 93 and 96 of the Evidence Act. On exhibit II, counsel submitted that although it was made when proceedings were pending, the maker was not a party interested, but an expert who was not an employee of the respondent.
Following APENA VS. AIYETOBI (1989) 1 NWLR (Pt. 95) 85 at 95, counsel submitted that there must be a real likelihood of bias before a person making the statement could be regarded as a person of interested.
At any rate he argued, exhibit II was not utilized by the trial court in arriving at its decision and so expunging it would not have altered the judgment. He urged us to resolve the issue in favour of the respondent. In my view, a lot of heat was unnecessarily generated concerning the admissibility and utilization of the exhibits. At page 92 of the record, counsel for the appellants had submitted that exhibits 2, 3, 4, 5, 8, 9 and 10 are public documents and only certified true copies are admissible. It is therefore not correct as stated at page 13 of the appellants’ brief, that counsel for the appellants in the final address at the trial court, attacked the admissibility of exhibit 1. He did not. No wonder in his subsequent submissions in the appellants’ brief, exhibit 1 was no more referred to. It is not shown or established before this court, that Exhibit 1 is not a primary document. It is therefore admissible under section 93 and 94 (1) of the Evidence Act. Trial court was therefore right when it admitted it in evidence. It shows the grant of right of occupancy to the respondent.
Exhibits 2, 3, and 5 were held by the trial court at page 114 of the record, to be duplicate copies of the document with original stamps and endorsement on them, were documents executed in several parts or in counterpart and are therefore primary evidence, relying on section 94 (2) and (3) of the Evidence Act. It has not been shown before this court that the said exhibits were not executed in several parts or in counterpart. A mere submission without proof cannot dislodge the finding of fact by the trial court. The submission has therefore not been properly made out. Exhibits 9 and 10 are the approved building plans, and were also held by the trial court to be photocopies with original stamps and endorsements on them and that they were executed in several parts. For the plaintiffs to succeed, they need to dislodge the finding of the trial court, that the exhibits were executed in several parts and are therefore primary evidence.
They have not succeeded in doing this and thus must fail. Exhibit 11 was held to have been made by an interested party, during the pendency of the case – page 120 of the record – and so the trial court did not take it into consideration, in assessing the value of the development on the property.
It instead, relied on Exhibit 2. Since this is so, whether Exhibit 11 was expunged or not, it was discountenanced as it did not add any value to the case of the respondent.
It is correct, as submitted by counsel for the respondent, that a surveyor or an expert in his field of knowledge who makes a statement in any form when a matter is pending, is not regarded as one who would depart from the truth and is therefore not regarded as a person interested within the meaning of section 91 (3) of the Evidence Act Before the appellation a “person interested” is ascribed, it must be established that there is a real likelihood of bias – APENA VS. AIYETOBI (supra) at page 94. So even if it is argued that the trial court was wrong in rejecting Exhibit 11 as no real likelihood of bias had been shown in respect of the report by the estate valuer, a professional, it did not cause any miscarriage of justice and cannot be a ground of upsetting the judgment. This is because it is not every slip or error in a judgment, that leads to the appeal being allowed – UDEGBUNAM VS. FCDA (2003) 5 SCNJ 131 at 138; AGBI VS. OGBEH (2006) 5 SCNJ 314 at 332. At ‘any rate, counsel for the respondent cannot be heard to argue this point, since he did not cross-:
appeal the finding of the trial court in rejecting Exhibit 11. I hold that the admission of the exhibits by the trial court was supported by the evidence Act and no grounds abound, to interfere with that action. Issue NO.4 is thus resolved against the appellants.
ISSUE NO.5
This is in respect of the award of various sums by the trial court.
Counsel for the appellants submitted that the various awards amount to double compensation and that the special damages awarded, were neither’ pleaded nor specifically proved and so the trial court had no jurisdiction to award them. He specifically referred to the claim of N2m each for the value of the land and the improvement of the land, and submitted that since he failed to prove them, they ought to have been discussed.
Counsel for the respondent in his reply to Issue NO.5, submitted that the value of the land in question was claimed as an alternative relief in the respondent’s further amended statement of claim and although the evidence led on their value had not been challenged, the trial court awarded less than what was claimed. He further submitted that there was no case of double compensation.
Most of the arguments canvassed in this Issue were raised in Issue No.1, by the appellants, and they have been resolved by this court. They therefore apply with equal force in this Issue. Suffice it to say that all the claims of the respondent, were specifically pleaded in the further amended statement of claim and oral and documentary evidence led on them. Only half-hearted effort was made to challenge the evidence. The value of the land was given as per the open market value. No attempt was made to adduce any other value for the land or discredit the evidence led on it. In such a situation, the trial court had only one version and it acted accordingly. If a plaintiff claims a specific sum pleaded, but is only able to prove less than what was pleaded, the trial court is perfectly in order, to grant the lesser sum proved. It will be futile to argue in that vein, that the trial court departed from the legal position of parties being bound by their pleadings. Certainly, the trial court did not play the role of Father Christmas doling out largesse, as suggested by the appellants. Afterall, the trial court had declined to grant the respondent’s prayers on professional fees of counsel, payment for approval of building plans, and cost of reassessing the valuation report, on the grounds that as they were for specific damages they had not been strictly proved.
On double compensation, it is to be noted that it is perfectly in order to claim for specific damages and general damages in an action for the tort of trespass. This is because trespass is actionable per se and general damages payable without the necessity of proving a specific injury. When there is’ an injury suffered, such as destruction of property, a plaintiff will be entitled to claim for same by way of special damages. Again, the trial court declined to award interest on the judgment sum as that “will amount to multiple grant of damages on same item and consequently double punishment…” The trial court was right and nothing has been proved to amount to double compensation in the awards made by the trial court.
This Issue is also resolved against the appellants.
ISSUE NO.6
This is in respect of the failure of the trial court, to pronounce on the counter-claim of the appellants and whether that has led to a denial of fair hearing. Counsel for the appellants submitted that the appellants had counter-claimed against the respondent and had elicited evidence through DW1 and DW2 in support of their counter-claim. The respondent had also filed a defence to the counter-claim. Both counsel addressed the lower court on the counter-claim. However, the trial court failed to consider the counter-claim. Counsel submitted further, that a counter-claim is a separate action deserving a judgment. He placed reliance on OGUNLEYE VS. OYEHOLE (2000) 14 NWLR (Pt. 687) 290 at 298; ADEGBITE VS. OGUNFAOLU (1990) 4 NWLR (Pt. 146) at 590; NARIADEX TRUST LTD.VS. NIMB LTD (2001) 10 NWLR (Pt.721) 321 at 338- 339; MOBIL PRODUCING NIG. LTD. VS. MONOKPO (2003) 18 NWLR (Pt. 852) 346 at 412 – 413. He argued that the failure to consider the counter-claim, is a denial of fair hearing in breach of section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria, which cannot be compromised in any way – ALABI VS. LAWAL (2004) 2 NWLR (Pt. 856) 134 at 147; OKONKWO VS. OKONKWO (1998) 10 NWLR (Pt. 571) 108 at 146 and NWOKORO VS. ONUMA (1998) 3 NWLR (Pt. 136) 22 at 31. He urged this court to consider the counterclaim and grant it based on the evidence of DW1 and DW2.
The submission of counsel for the respondent on this, is that although the trial court did not specifically pronounce on the counter-claim, no miscarriage of justice had been occasioned since the success of the respondents’ case automatically spelt the failure of the appellants’ counter-claim. He then urged us to resolve the issue in favour of the respondent.
A counter-claim is a separate and independent action on its own, although the normal practice, for the purposes of convenience, is for a defendant to join it with his statement of defence and it must be proved during the trial, on preponderance of evidence, as other civil claims are wont to. See OGBONNA VS. A.G. IMO STATE (1992) 1 NWLR (Pt.220) 647 and UNOKAN ENTERPRISES LTD. VS. OMUVWIE (2005) 1 NWLR (Pt. 907) 293. Because a counter-claim is a distinct claim, separate from the main claim, with separate filing fees from the statement of defence, and the defendant who now becomes the plaintiff, has to prove it, the court has a duty and is obliged to consider it in its judgment and pronounce on it one way or the other.. See MUSA V. YUSUF (2006) 6 NWLR (Pt. 977) 454 and OGLI OKO MEMORIAL FARMS LTD. VS. N.A.C.B. (2008) 4 SCNJ 436 at 448. Both parties must be given a hearing in respect of the counter-claim, for justice to be done. The hearing of a case covers its commencement up to the delivery of the judgment thereof – SOKOTO STATE GOVERNMENT & 2 ORS VS. KAMDEX NIGERIA LTD. (2007) 3 SCNJ 94 AT 104 JEREMIAH AKOH VS. ABUH (1988) 3 NWLR (Pt.85) 696 at 713. It follows therefore, that even if a trial court delivers one judgment in respect of the main claim and a counter-claim, the judgment must consider and decide the fate of the counter-claim. In some instances, the trial court delivers two judgments, one for the main claim and the other for the counter-claim. Furthermore section 294 (1) of the 1999 Constitution, enjoins every court established under it, (the High Court of Lafia, the trial court, inclusive) not only to deliver its decision in writing, but to do so within 90 days from the conclusion of evidence and final addresses..
The failure to comply with this fundamental constitutional requirement and to decide the fate of the counter-claim which is a separate suit in itself, has rendered the entire proceedings of the separate counter-claim Suit, a nullity. Because it is a nullity, this court cannot consider it.
Even if it is not a nullity, considering it will entail evaluation of evidence, including the assessment of credibility of DWS 1 and 2. Since believing and disbelieving of witnesses and observing their demeanour, is outside the scope of power of an appellate court, that exercise. cannot be undertaken by this court. It is not known whether the trial judge is still available at the trial court or not I am also not unmindful of the success of the main claim and its possible consequence on the counter-claim. As the issue is a constitutional one, the justice of the case will demand, in my view, that that counter-claim Suit, be heard de novo. Issue NO.6 is thus resolved in favour of the appellants.
Consequentially, this appeal succeeds partially. I make the following orders –
- Relief A granted by the trial court is affirmed.
- Relief B which is an award of N1,500,000.00k being the value of the land in question, granted by the trial court, is affirmed.
- Relief C in the sum of N1,432,080.00k, granted by the lower Court is set aside and substituted with N954,720.00k plus 15% as inflationary trend on the sum of N954,720.00k which totals – N1,097,928.00k
- Relief D which is N150,000.00k general damages awarded by the trial court, is affirmed.
- The proceedings in the counter-Claim Suit is declared a nullity and I order that it be heard de novo before the High Court of Nasarawa, in Lafia. Parties to bear their own costs.
Other Citations: (2009)LCN/3458(CA)
