Alhaji Ado Ibrahim & Company Ltd & Anor V. Eldestein (Nigeria) Ltd (2001)
LawGlobal-Hub Lead Judgment Report
A. BA’ABA, J. C. A.
This is an appeal against the judgment of Edo State High Court, sitting in Auchi Judicial Division, delivered on the 12/10/94. The action was founded on trespass of a piece or parcel of land, measuring 35.00 hectares located at Afokpella village, Etsako East Local Government Area, Edo State.
By its paragraph 19 of the amended statement of claim dated 25/11/93, at pages 107-108 of the records, the respondent as plaintiff claimed the following reliefs:-
(a) A declaration that the plaintiff company is entitled to possession of the piece or parcel of land, measuring 35.00 hectares located at Afokpella village, Etsako East Local Government Area, Edo State, covered by Quarrying License No. 21392, of 15/5/92 and any renewal thereof, and licences Nos. 21393 and 21394.
(b) A declaration that the plaintiff and its officials and employees are entitled to conduct its quarrying operations on the said piece or parcel of land, without any interference, disturbance or harassment by the 1st and 2nd defendants, either acting directly or through their servants, agents or privies during the validity of the Quarrying Licence Nos. 21392 of 15/5/92, and any subsequent renewal thereof, and licences Nos. 21393 and 21394.
(c) An order of injunction restraining the 1st and 2nd defendants from interfering, disturbing or preventing (either by themselves, their agents, servants or privies) the plaintiff company or any of its officials, from possession of and prosecution of their lawful duty of quarrying operations.
(d) As against the third defendant.
An order of injunction restraining the 3rd defendant either by himself or through his agents, servants, subordinates or privies from harassing, intimidating, disturbing or preventing the plaintiff and its officials, workers, contractors and licencees from occupying and carrying on their quarrying operations on the piece of land, situated at Afokpella village area, covered by quarrying licences Nos. 21392, 21393 and 21394.
(e) N20 million (twenty million naira) damages against the defendants jointly and/or severally arising from disruptions to the plaintiff’s operations by the defendants.
Pleadings were ordered, filed and exchanged. The respondent amended their statement of claim dated 25/11/93, while the appellants as defendants filed and relied on their statement of defence dated 4/10/93 at pages 77-82 of the records.
At the trial, in proof of its case, the respondent as plaintiff called seven witnesses, while the appellants who were defendants called two witnesses.
The learned trial Judge gave judgment in favour of the plaintiff/ respondent. It is against this judgment that the appellants have now appealed to this court.
With the leave of this court granted on 14/10/98, the appellant amended the original notice of appeal contained at pages 149-152 of the record.
Briefs were filed and exchanged. Learned Counsel for the appellant formulated three issues for determination:
“1. Whether the High Court of Justice of Edo State, rightly assumed jurisdiction to hear and determine the cause, in view of the provisions of section 2 of the Federal High Court (Amended) Decree No. 60 of 1991; and section 230(1) of the Constitution (Suspension and Modification) Decree No. 107 of 1993.
- Whether on the admissible evidence available to the trial court, the award of N4.0 million as (general) damages was not arbitrary and excessive?
- Whether the order of injunction made by the trial court, was not vague in its terms and over an unascertainable area of land?”
The respondent adopted the issues for determination formulated in the appellants brief of argument.
The learned Counsel for the appellants, Mr. Fola Ajayi, in the appellant’s brief of argument commenced his submission on issue No.1, by stating that though the issue of jurisdiction was not raised at the trial, it is settled law that it can be raised at any time, citing a number of authorities in support of his submission. He referred to the respondent’s claims in the amended writ of summons and amended statement of claim and submitted that the claims, particularly the reliefs sought by the respondent, determine whether the trial court has jurisdiction or not to entertain the matter.
According to the learned Counsel for the appellant from the reliefs claimed by the respondent, the respondent claimed exclusive mining rights over the minerals field comprised in Quarrying Licence Nos. 21392, 21393 and 21394 respectively, and that paragraphs 11, 12,14 and 17 of the amended statement of claim show clearly, that the dispute between the parties is pertaining to the extent and quality of the minerals deposit. Learned Counsel for the appellant relied on section 7 of the Federal High Court (Amendment), Decree No. 60 of 1991, and further submitted that the dispute between the parties arose from the conflicting mining rights of the parties, consequently the trial court lacks jurisdiction as the High Court does not have concurrent jurisdiction with the Federal High Court on the matter by virtue of the provisions of sections 5 and 6 of the Decree. He also relied on section 230(1)(0) of 1979 Constitution of the Federal Republic of Nigeria, which vests exclusive jurisdiction on the Federal High Court, to hear and determine civil causes arising from or pertaining to mines and minerals fields, citing a number of cases to buttress his submissions.
Relying on the case of Madukolu & Ors. v. Nkemdilim (1962) 1All NLR (Pt.4) 587, 589-589, a leading authority on jurisdiction, learned Counsel for the appellant urged us to hold that the trial court lacks jurisdiction to entertain the matter and for that reason, the judgment delivered on 12/10/94, by the learned trial Judge, should be declared a fortiori a nullity.
On issue No. 2, learned Counsel for the appellant contended that assuming (without conceding) that the trial High Court had jurisdiction, over the subject matter, the award of general damages of N4.0 million was wrong because, the trial court failed to give reason for the award and there was no indication of the facts considered by the trial court in arriving at that amount. It is the submission of the counsel for the appellant on this issue that the award of N4.0 million general damages is extremely high and an erroneous estimate of the damages to the respondent. He therefore, urged us to interfere with the award. Submitting on the appellant’s last issue, learned Counsel for the appellant referred to relief 19(c), granted to the respondent and contended that the order of injunction failed to state the area of land over which the order of injunction is applicable. He further argued that the area of land, over which the order of injunction was granted was not proved. Learned Counsel pointed out that the learned trial Judge failed to ascertain the said area and contended that, unless the area is ascertained an order of injunction cannot be granted. He concluded his submission by urging us to allow the appeal.
In reply, Mr. Esosa M. Eremwanarue, holding brief for Ken. E. Mozia Esq., in the respondent’s brief, started by referring to the respondent’s reliefs for which the counsel said, uncontradicted evidence was led in proof of the appellant’s trespassory activities on the respondent’s land. Learned Counsel for the respondent referred to the evidence of DW2 at page 118 lines 19-22 of the record, where DW2 confirmed the trespass by the appellants. He further submitted that by virtue of section 20 of the Evidence Act, Laws of the Federation of Nigeria, 1990, statements made by an agent to any party in a suit such as that of DW2 is admission and that sections 21 and 22 of the Evidence Act are apposite, citing a number of cases in support of his submission.
It is further contended for the respondent, that the nature of a cause of action determines jurisdiction. That it is the claim of the plaintiff, that determines the issue of jurisdiction and not the statement of defence, citing Attomey-General, Kwara State v. Olawale (1993) 1 NWLR (Pt.272) 645 at 651; Shell-BP Petroleum Dev. Co. Ltd. v. Onasanya (1976) All NLR (Pt.1) 425 to buttress his submission.
Learned Counsel for the respondent further submitted that, from the nature of the claims and the evidence adduced, it is evident, that the core issue before the court was founded on trespass by the appellants, injunction and damages, which were matters over which only the High Court has jurisdiction to entertain. He further explained that the issue was whether the appellants over stopped their area of operation and thereby, trespassed into respondent’s own area of operation. Learned Counsel pointed out that the learned trial Judge properly identified the issue germane for the determination of the case as shown in the finding of the learned trial Judge at page 143 of the record.
Learned Counsel stated that in fact, ownership and/or title to the land in dispute was proved and conceded to the respondent by the appellants.
It is further submitted that the case was not hinged on the conflicting mining rights of the parties, as argued by the learned Counsel for the appellants in the appellant’s brief. Furthermore, learned Counsel for the respondent submitted that, the provisions of the Federal High Court (Amended) Decree No. 60 of 1991, in its strict interpretation is not intended to cover an area of land, over which there is an established valid mining licence. He emphasized that the law is well settled by a long line of cases, that a statute ousting the jurisdiction of the court to entertain any matter must be construed strictly, relying on Kotoye v. Saraki (1994) LRCN 68,88, (1994) 7 NWLR (Pt.357) 414 On issue No.2, learned Counsel for the respondent pointed out that at the conclusion of the evidence of both parties, during address, the appellants’ counsel on behalf of the appellants, conceded reliefs (a) and (b), claimed by the respondent in the amended statement of claim at page 120 of the record. He argued, relying on the authority of Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 153 at 171, that the appellant’s counsel concession to reliefs (a) and (b) is binding on the appellants. Counsel for the respondent concluded his submission on issue No. 2, by submitting that the learned trial Judge was therefore, quite in order to award damages in favour of the respondent. Reference was made in details by the learned Counsel for the respondent, to the evidence adduced which he contended was neither challenged nor controverted, citing a number of cases, learned Counsel submitted that the learned trial Judge had the benefit of receiving the facts from the witnesses, who after a thorough assessment made findings of fact consequently, this court should not interfere, unless such findings of fact are perverse. He concluded his submission on this issue by stating that the learned trial Judge was right in making the award.
It is submitted on issue No. 3 in the respondent’s brief, that the order of injunction made by the trial court was not vague in its terms, and neither was it to cover an unascertained area of land as argued by the learned Counsel for the appellants.
Learned Counsel for the respondent stated that the area of the land claimed by the respondent, was properly described in paragraph 19(a) of the amended statement of claim.
Furthermore, learned Counsel submitted that reliefs A and B of the respondent’s claim having been proved, admitted and conceded, the order of injunction made was quite in order. He finally urged us to dismiss the appeal.
In the appellant’s reply brief, learned Counsel for the appellants, conceded that at page 118 lines 20-22, DW2 admitted encroaching but contended that, by virtue of section 26 of the Evidence Act such an admission is not conclusive and inconsequential on the face of the more fundamental issue of jurisdiction raised by the appellants.
He disagreed with the submission of the learned Counsel for the respondent on the issue of jurisdiction and maintained, that the lower court lacked jurisdiction, repeating his earlier submission in the appellants’ brief. Learned Counsel for the appellants still maintained that the award of N4.0 million damages is patently erroneous.
The first issue for determination in this appeal, challenging the jurisdiction of the trial court, is a fresh issue which was not raised before the trial court.
However, leave was granted by this court to the appellants, to amend its original notice of appeal which contains a ground of appeal upon which the issue of jurisdiction, which can be raised at anytime was formulated.
Dealing with the issue of the determination of jurisdiction, the Supreme Court of Nigeria, in the case of A.-G., Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645, 675, cited to us by the learned Counsel for the respondent, had this to say;
“It is however well settled that where the endorsement on the writ of summons, and the statement of claim are clear and unambiguous as to facts from which the issue of jurisdiction could be settled one way or the other, it is the proper material for determination of the issue.
When this is done, the issue is settled on the plaintiff’s pleading in his statement of claim and not on the defendant’s answer in his statement of defence” See Adeyemi & Ors. v. Opeyori (1976) 9-10 SC 31.
Hence, when the issue of jurisdiction has been clearly established on the writ of summons and statement of claim, it is not necessary to consider the statement of defence. Jurisdiction already assumed, cannot be divested on the strength of a valid defence to the action.”
In the instant case, it is clear from the amended writ of summons, the amended statement of claim as well as the evidence adduced before the trial court, that the core issue for determination by the trial court, was founded on trespass by the respondents, injunction and damages which were matters over which the trial High Court has jurisdiction to entertain. It is not the case of the respondent that, there was a dispute over conflicting mining rights of the parties and no evidence whatsoever was adduced before the trial court to that effect.
Apart from the admission of trespass of the respondent’s land by DW2 at page 118 of the record, the learned Counsel for the appellants at the trial court, conceded to reliefs (a) and (b) claimed by the respondent herein reproduced. It appears to me that the appellants know fully well, that the dispute between the parties is in respect of the land or area of the land, rather than mining rights as averred in paragraph 12 of the appellants statement of defence which reads:-
“12. With regard to paragraph 17 of the statement of claim, the 1st and 2nd defendants admit that the area covered by ML 18400 as shown in survey plan No. KWSM.14 dated 4th October, 1977, and attached to mining lease No ML 18400, is distinct from the area covered by Quarry Licence Nos. 21392, 21393 and 21394, but the 1st and 2nd defendants, contend that the plaintiff abandoned the area of their holdings and moved into the area of the 1st and 2nd defendants holding to carry out mining operation.”
As can be seen shortly from the findings of the learned trial Judge, the appellants did not only abandon their claim in paragraph 12 of the statement of claim, but admitted reliefs (a) and (b). At pages 141-143 of the record, the learned trial Judge, clearly identified the issue and held:
“I have given careful consideration to the evidence adduced in the whole of this case, the submissions of learned Counsel for the parties and the legal authorities cited by the learned Counsel. In this case, the plaintiff’s claims 5 reliefs against the defendants, as per paragraph 19 of the amended statement of claim. Initially, there were 3 defendants, but the plaintiff later withdrew against the 3rd defendant (i.e Commissioner of Police).
Consequently, the plaintiffs have now applied to have relief 19(d) which was specifically against the 3rd defendant struck out.
I think this would be a proper starting point in dealing with this matter. In all, the plaintiffs fielded 7 witnesses, while the defendants fielded 2 witnesses. The defendants did not contend the striking out of relief 19(d). I am of the view that relief 19(d) ought to be struck out, since the plaintiff have withdrawn against the 3rd defendants. Relief 19(d) is hereby accordingly struck out.
On the issue of reliefs 19(a) and (b) both the plaintiff and defendants appear to me to be on common ground, although each party arrived at that common ground by different routes. While Chief Orifunmishe, learned Counsel for the defendants concedes these reliefs on the basis of the evidence of PW1, PW2, PW3, PW4 and PW5 takes together, Mr. Aihiokhai, learned Counsel for the plaintiff on the other hand contended and I quote:-
“We urged the court to grant these reliefs not on the basis given by my learned friend, but on the ground that we have proved the fact that we are in actual and effective possession (of the land) until we were harassed in 1992.”
I accept and believe the evidence of PW1, PW2, PW3, PW4 and PW5. These witnesses are professional. Their testimonies are clear, straight forward and to the point.
Exhibits ‘A’ and ‘B’ show clearly that North of the green line which runs through them used to be Kwara State, while South of the green line used to be part of Bendel State, but now Edo State. The property of the plaintiff lies South of the green line which is Edo State, while property of the defendant lies North of the green line. ML. 18400 is North of the green line. It is located in Kogi State. It is the property of the defendants. Quarrying lease Nos. 1636, Quarrying Licence Nos. 21394,21393 and lies South of the green line. It follows therefore, that the property of the plaintiff and that of the defendants are not located in the same geographical area. They do not over-lap. At the material time during which the plaintiff were harassed and their operations interrupted they were legally, properly and strictly within the confines of their property. On this point, I prefer the plaintiff’s case to that of the defendants, I accept the view that the plaintiff has proved its case on a balance of probabilities. I so hold.
With regard to paragraph 17 of the statement of claim the 1st and 2nd defendants admit that, the area covered by ML. 18400 as shown in Survey Plan No. KWS M.14 dated 4th October, 1977, and attached to Mining Lease No. ML. 18400, is distinct from the area covered by Quarry Licence Nos. 21392, 21393 and 21394 but the 1st and 2nd defendants contend that the plaintiff abandoned the area of their holding to carry out mining operations.”
It follows from the above and relying on the authority of A.-G., Kwara State (Supra) that the trial court had jurisdiction to hear and determine the action as rightly in my view submitted by the learned Counsel for the respondent consequently issue No. 1 is resolved in favour of the respondent against the appellants.
On issue No. 2, dealing with the award of damages, the learned trial Judge, in my humble opinion, carefully reviewed the evidence adduced before him on that aspect, along with the submission of both counsel on the matter at pages 143-147 and inter alia, held as follows:-
“Having satisfied myself that the plaintiffs have been injured by the illegal invasion of their property and ejection therefrom by the defendants, the plaintiffs are entitled to an award of damages. Their legal rights have been violated. The duty of this court therefore, is to make estimate of the damage suffered by the plaintiff. The law requires that I should award the plaintiff damages on the basis of compensation. All that the Judges and court can do, is to award sums which must be regarded as giving reasonable compensation.
Admiralty Commissioner v. Susquehanna (1926) AC 655. There has to be the need for uniformity in awards, but I am afraid I have been unable to lay hands on any comparable cases in this jurisdiction.
It seems to me that my task here is to look at the facts and to start by asking the question what sort of sum would it have been proper to award for damages in this case – Drane v. Evangelon (1978) 1 WLR 455 ‘CA). For Lawton L.J. In all the circumstances of this case, I would make an award of N4,000,000.00 (Four million naira) damages. The plaintiffs having succeeded in all their claims, I hereby enter judgment in their favour as claimed in paragraph 19 of the amended statement of claim as follows:-”
In Nwobosi v. A.C.B. Ltd (1995) 6 NWLR (Pt 404) 658 at 680, the Supreme Court of Nigeria, per Onu, J.S.C., set out the guiding principles upon which an appellate court will act in reviewing an award of damages, as follows:-
“Indeed, this court in Obere v. Board of Management, Eku Baptist Hospital (1978) 6-7 SC 15 at page 24 which was later cited with approval in its decision in Uwa Printers (Nig.) Ltd. v. Investment Trust Co. Ltd. (1988) 5 NWLR (Pt. 92) 110, has set out the guiding principles where an appellate court can or will perforce interfere with an award of damages by a trial court thus:
“The principles upon which an appellate court will act in reviewing an award of damages are not well settled and can be summarized as follows:
“An appellate court is not justified in substituting a figure of its own for that awarded by the lower court simply because it would have awarded a different figure it had tried the case at first instance. Before the appellate court can properly interfere, it must be satisfied either that the Judge in assessing the damages applied a wrong principle of law, such as taking into account some irrelevant factors or leaving out of account some relevant factors or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damage.”
I am bound by the decision of the Supreme Court of Nigeria, referred above which I respectfully follow in resolving issue No.2. From the evidence adduced, the reasoning and conclusion of the learned trial Judge, applying the guiding principles enunciated in Nwobosi (supra), I disagree with the submission of the learned Counsel for the appellants that the award of damages is arbitrary and excessive and have no reason whatsoever to review the award of damages in the instant case. I therefore, resolve issue No.2 against the appellants in favour of the respondent.
There is no doubt as I earlier stated that there was admission by DW2 that the appellants trespassed the respondent’s land. Reliefs (a) and (b) for declaration were also conceded by the learned Counsel for the appellants at the trial court which the learned trial Judge took into consideration in his judgment, particularly in granting the order of injunction. However, the issue of admission was still contested between the parties before us. True, admission on its own, is not an issue formulated for determination but I am of the view that the determination of the issue of admission and its effect particularly in a civil case like the instant case, will have a far-reaching effect on the determination of other issues formulated, hence, the necessity of dealing with the said issue. I find the case of the Supreme Court of Nigeria, per Iguh, JSC, in Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 153 at 171, helpful, in both the classification and effect of admission, as clearly set out at page 171, as follows:-
“It is certainly not the law that all admission are necessarily conclusive against the maker, as each and every admission must be carefully evaluated and considered by the court, against the particular circumstances under which it was made.
Admission are either formal or informal. Formal admissions are admissions made by a party to a civil proceeding so as to relieve the other party of the necessity of proving the matters admitted. They are usually contained in a pleading as facts admitted in a pleading need not be proved any longer, but are taken as established. Formal admissions may also take the form of clear admissions filed or made by a party to a civil proceeding or by his counsel in the course of the trial of a civil suit. See Chief Aaron Nwizuk and Others v. Chief Waribo Eneyok and Others (1953) 14 WACA 354 and Re Beeny (1894) 1 Ch. 499. The court, however, even in the case of a formal admission in a civil proceeding, has discretion to require the admitted fact to be proved by some other evidence other than by the admission itself. See the proviso to section 74 of the Evidence Act.
Informal admissions, on the other hand, do not necessarily or strictly speaking, bind their maker and may therefore, be explained or contradicted. The weight of an informal admission depends on the circumstances under which it was made, and these circumstances may always be proved to impeach or enhance its credibility. Thus, an informal admission, unless it amounts to an estoppel, may be established by the party against whom it is tendered to be incorrect, untrue or to have been made under a mistake of law or fact or some compelling or vitiating circumstances. Accordingly, the value of an informal admission depends on the particular circumstances, under which it was made and it is for the trial court to determine the issue and to give due weight to the alleged admission and the explanatory circumstances thereof. See Nii Abossey Okai II v. Nii Ayikai II (1946) 12 WACA 31 and Joe Iga and Others v. Ezekiel Amakiri and Others (1976) II SC 1. It is like any other evidence, and the court is duty bound to consider all the surrounding circumstances, under which it was made and to take a decision on whatever weight, if any, that must be attached to it. Such an admission is therefore, not conclusive proof of the matters admitted although, as I have already pointed out, it may in an appropriate and established case, operate as estoppel against the party, against whom it is tendered.”
In view of the above, I with respect, disagree with the learned Counsel for the appellants, that the admission in the instant case is not conclusive. That being the case, the grouse of the appellants on issue No. 3, that the learned trial Judge was wrong in granting an injunction as the area claimed, was not ascertained in irrelevant having regard to the admission of DW2 and the concession to reliefs (a) and (b) by the learned Counsel for the appellants.
Having regard to the claim, the evidence adduced and the fact that DW2, who testified for the appellants admitted trespassing on the land of the defendants as well as the concession to reliefs (a) and (b) of the claim, I am of the view that ground of appeal No.1 and issue No.3, formulated therefrom, does not appear to relate to the judgment in the instant case. A ground of appeal must ground a complaint, upon which an issue for determination is formulated pertaining to the judgment or any aspect of the judgment, requiring the determination of the appellate court.
As ground of appeal No.1, is not relevant in the instant case, where the area of the land claimed is not in dispute, the question of ascertaining the area of the said land does not even arise. I do not think it can be denied that the order of injunction automatically follows reliefs (a) and (b) of the claim, having been granted. It appears to me therefore, that ground of appeal No.1 and issue No.3, formulated thereon, is in abstract consequently, ground of appeal No.1, is incompetent and is struck out along with the issue.
It is trite law that where evidence tendered by a party to any proceedings, was not challenged or put in issue by the other party who had the opportunity to do so, it is always open to the court seized of the matter to act on such unchallenged evidence before it. See Isaac Omoregbee v. Daniel (1980) 3-4 SC 108 at 117; Odulaja v. Haddad (1973) II SC 357; Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79 at 81; and Boshali v. Allied Commercial Exporters Ltd. (1961) All NLR 917.
In the result, having regard to the foregoing, the appeal fails and is hereby dismissed. The judgment of the learned trial Judge, Okunega, J. delivered on 12/10/94, is hereby affirmed by me, with costs assessed at N5,000.00 in favour of the respondent against the appellants.
Other Citations: (2001)LCN/0970(CA)
