Alhaji Isiyaku Yakubu & Anor V. Ministry of Works & Transport Adamawa State & Ors. (2005)

LawGlobal-Hub Lead Judgment Report

IFEYINWA CECILIA NZEAKO, J.C.A.

The Appellants in this appeal were the Plaintiffs in the suit which they filed at the High Court of Justice, Yola, Adamawa State of Nigeria on 20th June 1993. The claim arose out of events which occurred some time in 1984. Compensation was, as admitted by the Respondents, payable to the Appellants by the Respondents by reason of the Respondents causing the Appellants’ buildings in Yola metropolis to be demolished. The Appellants had valid Certificates of occupancy and approved building plans of the property in question. The Appellants’ Amended Statement of Claim sets out in detail the events, their sequence, the claim and the grounds thereof. I will later set out relevant paragraphs of the statement of claim.

Although the Respondents entered an appearance and filed a defence, they did not defend the suit at the trial. At the said trial, the Appellants adduced evidence, tendering series of documentary evidence which were not controverted. In his judgment, the learned trial Judge granted the Appellants’ claims in part against the 1st Respondent alone and refused their other claims said by the Appellants to be 75% of their claims.

Dissatisfied, the Appellants have appealed to this Court on 19/10/95. Later, by leave of the Court, granted on 12/7/2001, they filed a further amended Notice of appeal on 27/9/2002.

The Appellants, filed their brief of argument on 9/8/99. This, they later amended by leave of this Court granted on 29/9/2002.

The Respondents, inspite of being duly served with the processes and hearing notices, failed to file any brief of argument and did not attend Court during any of the proceedings. The Appellants on 3/4/2003 obtained leave of this Court to argue the appeal exparte in the absence of any brief of argument from the Respondents. Though served with the order of the Court and hearing notices, the Respondents took no steps to file their brief or appear at the hearing of the appeal on 18/1/2005.

This Court thus heard the appeal, based only on the Appellants’ brief of argument alone.

There are 5 grounds in the Further Amended Grounds of Appeal with their particulars. They are as follows:-

GROUND 1:

The learned trial Court Judge erred in law and when he reduced the interest rate payable on the sum of N1,447,409.34 from 1st July, 1992 to date of payment, from 32% to 10%.

PARTICULARS OF ERROR

(a) There was no basis for the reduction in the rate of interest payable in view of the clear provisions of S.29(4)(b) and S.29(5) of the Land Use Act 1978 which provides that interest payable shall be at prevailing bank rate.

(b) The Defendants had no defence to the Plaintiffs’ Claims, which stood unchallenged and should have been granted. See F.C.D.A. Vs. NAIBI (1990)3 N.W.L.R. Part 138 page 270 at 272 Ratio 1.

GROUND 2:

The learned trial Judge erred in law when he refused to award the relief of N321,627.24 as claimed by the Appellants in Paragraph 59(3) of the Amended Statement of Claim and thereby occasioned a serious miscarriage of justice.

PARTICULARS OF ERROR

1. It was established with no dispute whatsoever that from the very 1st approval of compensation, 30% interest was to follow and/or accompany the approved sum.

626. Exhibit Ay-43 shows clearly that the summation and/or working out of 30% interest on the balance of the principal sum N623,626.90) carried out by the Respondents, was erroneous in the sense that it omitted the sum of N321,627.24 from the amount arrived at by them (N1,477,409.34).

627. The Respondents are still bound to pay 30% interest regardless of the fact that it was an erroneous sum that was approved as the correct amount can only be arrived at by the inclusion of the sum omitted (N321,627.24).

GROUND 3:

The learned trial Judge erred in law when he held as follows:

1. “There is no evidence to suggest that any complaint was made to the Governor or his officials about the inadequacy of the sum approved by the Governor. It would appear unjust if that claim is approved now when no representation of the supposed under payment was made to the Defendants when the compensation matter was under consideration by the defendants”.

1. “The Claim under sub paragraph 4 of paragraphs 59 of the Plaintiffs’ Amended Statement of Claim cannot succeed. The Claim fails the same goes for sub paragraph 5 thereof’.

1. “I do not think the Plaintiffs can bring a fresh claim when the compensation had been fully assessed. The claim under sub paragraph 6-10 inclusive fails” and thereby occasioned a serious miscarriage of justice.

PARTICULARS OF ERROR

1. Exhibit Ay-25 which predates the Governor’s final approval by about 2-1/2 years, is clearly an indication and/or evidence tendered before the court to show that the attention of the Respondents were drawn to thee claims at the time of considering the compensation.

2. It is also clear that the 2nd approval of 27/8/92 which was predicted on LUAC findings did not include the said claims.

3. It is again clear that these claims represent losses suffered by the Appellants by reason of the acts of the Respondents.

GROUND 4:

The learned trial Judge erred in law when he held “I think it would amount to double compensation if general damages are again awarded. They cannot have a second compensation for one loss.

The general damages are hereby disallowed”.

PARTICULARS OF ERROR

1. The incidents for award of interest on the sum claimed are distinct from those that attract general damages.

2. General damages are awarded to make for the reasonable losses occasioned by the Plaintiffs due to the Defendants acts or neglect.

3. If the Court found for the Plaintiffs on the facts and law, then general damages should have been awarded as a natural consequence.

GROUND 5:

The learned trial Judge erred in law when he ordered “The Adamawa State Ministry of Works and Transport shall pay the above mentioned sums to the Plaintiffs”.

PARTICULARS OF ERROR

1. The trial Court did not explain nor justify why it singled out the first Defendant to pay the Judgment debt, when the suit was commenced against the Defendants, jointly and severally.

2. All the Defendants, failed, refused or neglected to challenge the Plaintiffs claims, which in turn made them jointly and severally liable, to the Plaintiffs.

The Appellants distilled the following 5 issues for determination from these grounds of appeal:-

1. Whether the interest rate payable by a Defendant, already found to be liable to pay a certain rate of interest can be reduced to take effect from any date predating the date of judgment.

GROUND 1.

2. Whether the Appellants are not in law entitled to their claim for N321,627.24 as contained in paragraph 59(3) of their Amended Statement of Claim especially when same was based on the interest rate already approved both by the Governor and the L.U.A.C., and especially when the relevant interest rate was never disputed by the Respondents. GROUND 2.

3. Whether or not the claims in paragraph 59(4) – (10) are included in the amount approved and if they were not, whether the Appellants -are not entitled to claim them-as Special Damages in the form of paragraph 59(4) – (10). GROUND 3.

4. Whether the circumstances of this case are not such as entitled the Appellants to General Damages as a consequential relief to the hardship suffered by them. GROUND 4.

5. Whether the learned trial Judge can rightly single out only one of the Respondents to bear the burden of the liability in this case solely. GROUND 5.

I hereunder reproduce some relevant paragraphs of the rather long statement of claim which tell the facts and the case of the Plaintiffs to the effect that their property was demolished by and/or at the instance of the Government but compensation which they were entitled to and admitted by the Respondents was never fully paid since 1984, causing them much loss and suffering.

In paragraph 4 – the Plaintiffs/Appellants show that they had Certificates of Occupancy and legal title to the property in question, that all the developments they carried out thereon were duly approved plans from the Ministry of Works and Housing, the Urban Planning and Development Authority and Health Department of the State and that the demolition of their building was at the instance of the Government Task Force on Environmental Sanitation. When they submitted a claim for compensation in 1984, they itemized what was demolished and the cost, the use thereof to them, the cost of replacement (see paragraphs 15-22).

They had raised loans when they developed the demolished property and the Banks were after them as they could not replace the building and carry on their industries thereon due to non payment of the compensation. One of the Banks, NIDB already charging 30% interest on the loan appointed a receiver over the Appellants’ business which they tried to sell through a suit in Court, all as a result of the hardship arising from this. (See paragraphs 24 – 26). First Bank of Nigeria Plc from which the Plaintiffs/Appellants also secured a facility for their business was charging 32% interest, so also the United Bank for Africa (see paragraphs 27-28).

“Paragraph 29: The plaintiffs aver that as a result of the demolition and the consequent stoppage of the business of the Bakery and confectionery the second plaintiff has continued to loose N1,5000.00 as loss of earnings per day.

Paragraph 30: The plaintiffs aver that as a result of the threat by the creditors of the second plaintiff and the inability of the defendants to pay the compensation to the plaintiffs the Secretary to the Defunct Gongola State Government by two letters both dated 29/8/88 Ref No. SGS.4/20.S.1/VOL.IV/714 and Ref. No. SGS.4/20.S.1/VOL.IV/715 to the Branch Manager First Bank Ltd, and the Sole Administrator Nigerian Industrial Development Bank Ltd. Bauchi Area Office Bauchi acknowledging the indebtedness of the Government to the second plaintiff. The plaintiffs shall found and rely upon both letters at the trial of this suit.

Paragraph 31: The plaintiffs aver that they suffered damage and that even the 1st and second defendants also advised for the payment of damages. Reliance shall be made on the 1st defendant’s letter dated 27/12/90 Ref. No. GS/MOW/S/A.529/T/97 and the second defendant’s letter to the Secretary to the State Government dated 27/4/90 Ref. No.LM/GGS/2/T.1/120. Both letters are hereby pleaded and a notice to produce them is hereby given to the defendants.

Paragraph 32: The first defendant then made an assessment of the demolished properties and fixed the amount of compensation payable to the plaintiffs at N909,150.00 following a directive for fresh evaluation by the Military Governor, He plaintiffs shall found and rely on the letters dated 7/6/90 from the office of the Secretary-of the State Government to the first defendant Ref. No.SGS/16/24/VOL.V/172 and another dated 27th December, 1990 Ref. No. GS/MOW/S/A/529/T/97 addressed to the Honourable Commissioner of the first defendant Notice is hereby given to the first and 4th defendants to produce the said letter”.

In paragraphs 33-36 the Appellants pleaded the part payment of the sum referred to in paragraph 32 (supra) as compensation assessed on the direction of the Military Governor of the State, the many demands for full payment, failure of the Respondents to pay till 1991 when the Appellants tried to get a review upwards of the compensation due to the long delay in payment The Respondents did not perform.

“Paragraph 37: The plaintiffs aver that the defendants refused and or neglected to pay the demanded sum until the plaintiffs was forced to take up the matter with the Land Use and Allocation Committee of the defunct Gongola State Government. The plaintiffs’ claim filed before the said Land Use and Allocation Committee dated 27/5/91 is hereby pleaded and shall be founded and relied upon the hearing of this suit and notice to produce is given to the 4th defendant.

Paragraph 38: The plaintiffs aver that pursuant to the plaintiffs’ claim at the Land Use and Allocation Committee (L.U.A.C.) the committee recommended to the Hon. Commissioner of the first defendant to pay to the plaintiffs the principal sum of N623,626.90 and the accrued interest at 32% plus N9,000.00 which plaintiffs spent in mobilizing the machines from the premises and the interest on same. The memorandum signed by the Secretary of the committee date 5/5/92 shall be relied upon at the trial of this case and notice to produce same and file No. GS/MOW/LS/LAN/1425 containing the letter Ref. No. MOW/LS/LAN/1425/68 is hereby given to the first and fourth defendant to produce same at the hearing of this suit.

Paragraph 39: The plaintiff avers that when the 1st defendant arrived at the sum of N1,447,409.34 as the sums due and payable to the plaintiffs in 1992, the 1st defendants wrongfully committed the sum of N32 1,627.42 which is the actual sum due to the plaintiffs on the sum of N623,626.90 at the interest rate of 30% from the period 6/3/89 to 30/6/92 as was calculated by them plus N9,000.00 at the interest rate of30% from 1/7/84 to June, 1992, which total is equals to N1,769,036.58 and not the sum of N1,447,409.34.

Paragraph 40: The plaintiffs further aver that following the memorandum submitted by the Hon. Commissioner for Works, Transport, Land and Survey the Governor of Adamawa State approved the immediate payment to the plaintiffs the principal amount of N623,626.90 plus the accumulated interest sum of N814,409.34 totalling N1,447,409.34 as amount due and payable for the period between 1989 to June, 1992 the compensation having been reviewed according to the current market value.

The plaintiff shall rely on the file No.AD/MOWLS/LAN/1425/68 and notice to produce same is here by given to the first and 4th defendants and reliance shall be made on the letter Ref. No.AD/MOWLS/LAN/1425/68 of 7/9/92 and the memorandum of the Hon. Commissioner of first defendant to His Excellency the Governor of Adamawa State attached to the letter dated 25/8/92 which is hereby pleaded and the 1st and 4th defendants are hereby given notice to produce.

Paragraph 41: The plaintiffs aver that the Ministry of Finance (3rd defendant) was directed to release the said sum approved by His Excellency the Governor of Adamawa State to the plaintiff.

Paragraph 42: The plaintiffs aver that the Hon. Commissioner to the third defendant vide letter Ref. F/S/512/VOL.11/06 dated 23/9/93 in turn-directed the Accountant General of the State to release the first installment payment of N623,626.90 to the plaintiff which letter was copied to the first plaintiff for follow up. Reliance shall be made on the above letter which is hereby pleaded and notice to produce the file No. F/S/512/VOL/IV/140 and the said letter is hereby given to the 3rd defendant.

Paragraph 43: The plaintiffs aver that the directive of the Governor Of Adamawa State was based on the contents of file Nos.GS/MOWLS/1425, GS/MOWLS/1420 and GS/MOWLS/1425 and the memorandum of the Hon. Commissioner for the first defendant. The plaintiff shall found and rely on the all three files and the memorandum mentioned in this paragraph and notice to produce the same is hereby given to the first and fourth defendants.

Paragraph 44: The plaintiffs further avers that up to date the defendants have refused or neglected to pay the said amount directed to be paid to the plaintiffs.

Paragraph 45: The plaintiffs aver that despite repeated demands by the plaintiff, the defendants have refused or neglected to pay the sum. Letters of demand Ref. No. LDN/LIT/26/91 dated 1st December, 1992 and Ref. LDN/LIT/25/91 dated 15th January, 1993 shall be found and relied on at the hearing of this suit and notice to produce all the letter is hereby given to the third defendant.

Paragraph 46: The plaintiffs aver that despite the directives the defendants refused to pay up the amount and the third defendant particularly said the letter Ref. No.F/S/512/VOL.IV/140 was not approval of the Governor on the matter and the Commissioner of the 3rd defendants sought again from the Hon. Commissioner of the 1st defendant whether the payment was approved. Notice to produce the original of the letter dated 2/3/93 s hereby given to the 1st defendant.

Paragraph 47: The plaintiffs aver that the first plaintiff therefore complained to the Hon. Commissioner of the 3rd defendant verbally and consequently gave photocopies of the letter of approval and the attachments referred to in paragraphs 38-40 an 42 above and consequently the third defendant directed that the plaintiffs be paid. The plaintiff herby pleads and shall rely on file No. F/S/5122/VOL.IV/140 and notice to produce same is hereby given to the third defendant.

Paragraph 48: The plaintiffs further aver that uptill date third defendant has refused or neglected to pay the amount demanded despite repeated demands by the plaintiffs’ Solicitors and repeated calls by the plaintiffs personally at the office of the Hon. Commissioner of the defendant.

Paragraph 49: The plaintiffs aver that as a result of the demolition of the properties the plaintiffs have suffered personal injuries and untold hardship”.

The subsequent paragraphs of the Amended Statement of Claim 50-56 contain catalogues of damages and suffering which the plaintiffs attributed to the non-payment of their compensation.

Three more paragraphs of the statement of claim are relevant.

“Paragraph 57: The plaintiffs aver that they contacted a firm of Chartered Accountant (viz: TUNDE WILLIAMS & CO. of NO.9 Creek Road, Apapa Lagos) to calculate and compute the various interest rates and the total claim on each sub head of their statement of claim. The said Chartered Accountant put down the result of their calculation and computations in written. The said document is hereby pleaded and shall be relied upon at the trial of this suit.

Paragraph 58: The plaintiffs aver that the defendants have no defence to this action whatsoever. The plaintiffs shall rely on the 2lld defendants’ letter to the 3rd defendant, Reference No. CIVSU/41/93 and dated 5th October, 1993. The 3rd defendant is hereby given notice to produce the original of the said letter at the hearing of this suit.

Paragraph 59: WHEREOF the plaintiffs seeks for the following Reliefs from all the defendants jointly and severally:-

1. An order of this Honourable Court directing the Defendants to pay to plaintiff the sum of N1,447,409.34 as already approved by the Governor of Adamawa State as part payment of compensation on their demolished properties at No. 19 and 21 Gimba Road and No.4 (former No.2) Warwar street.
2. An order directing the defendants to pay to the plaintiffs the–remaining balance of compensation and interest on the N1,447,409.34 with interest at 32% from 1st July, 1992 until the day the payment is settled as compensation for the demolished properties.
3. An order of this court directing the defendants to pay to plaintiffs the sum of N312,627.24 being amount owed to the plaintiffs as a result of wrong calculation by the defendants at 30% interest in arriving at the amount in paragraph 1 of this reliefs as from 6/3/89 to 31/6/92 and at 1/7/92 until the final payment is made.
4. An order directing the defendants to pay to the plaintiffs interest on the sum of N71 ,804.30 at 30% from 1/11/90. until the sum is totally liquidated.
5. An order directing the defendants to pay the plaintiffs interest on the sum of N47,580.42 at 32% from 1/3/90 until the money is totally liquidated.
6. And order directing the defendants to pay to the Plaintiff the sum of N66,580.00 being expenses incurred by the plaintiffs who were compelled to personally demolish parts of their premises and the cost of shifting of the Bakery building with interest at 30% from 1/1/86 until the money is totally liquidated.
7. An order directing the defendants to pay to the Plaintiffs the sum of N24,480.00 being plaintiffs costs of building the said toilet, kitchen store, and a bathroom in 1982 which were affected by the demolition exercise together with interest at 30% from 1/1/86 until the money is totally liquidated.
8. An order directing the defendants to pay the Plaintiffs the sum of N6,000.00 being costs incurred in the demolition of part of the plaintiffs property at No. 4 Warwar street with interest at 30% from 1/1/86 until the money is totally liquidated.
9. An order directing the defendants to pay to the Plaintiffs the sum of N810,000.00 being loss of earnings on the demolished Bakery and Confectionery at N1,500.00 per day from 1/7/84 to 31/12/85 with 30% interest from 1/1/86 until the money is totally liquidated.

10.An order directing the defendants to pay to the Plaintiffs the sum of N270,000.00 being loss of rent from 1/7/84 to 30/6/93 with 30% interest from 1/7/84 to 30/6/93 and from 1/7/93 interest at 32% until the money is totally liquidated.

11. An order of this court directing the defendants to pay the plaintiffs General Damages of N3,000,000.00 for injuries suffered by the plaintiffs as a result of the action of the defendants.

12.An order of this court directing the defendants to pay to the plaintiffs such other sums as they shall assess as due to the plaintiffs as a result of the high inflation now ill the country over and above the sums now being claimed.

13. An order of this court directing the defendants to Pay the plaintiffs the entire cost of this action and any other costs as shall be assessed by this Honourable Court.”

I must observe that the Appellants systematically led oral and documentary evidence to prove their averments in the Amended Statement of Claim (see page 86-218 of the record of proceedings), described in his judgment by the learned trial Judge as, “a very comprehensive evidence”.

Although the Respondents filed a statement of defence, to which the Plaintiffs filed a Reply – p26 of record, they never appeared at the trial. They led no evidence and did not challenge or controvert any of the evidence tendered by the Appellants.

I will now address the five issues for determination as identified by the Appellants.

Issue No.1 questions the reduction by the Court below of prejudgment interest rate which the Respondents were already found liable to pay. Learned counsel contended that the Court below was in error to have reduced the rate from 32% determined by the Land Use and Allocation Committee to 10%, particularly as the Respondents did not deny their liability thereto but in fact admitted it.

In his judgment, this is what the learned trial Judge said regarding the Appellants’ claim of interest at 32% per annum.

“The Plaintiffs are also Claiming thus:-

2. An order directing the defendants to pay to the plaintiffs the remaining balance of compensation and interest at 32% from 1st July 1992 until the day the payment is settled as compensation for the demolished properties).

I think this claim is in order but I reduce the interest from 32% to 10% (ten percent), from 1st July, 1992”

No reason is stated for this reduction of the interest fixed at existing Bank rate, by the Land Use and Allocation Committee as proved at the trial.

The Appellants’ statement of claim and their evidence before the Court below which were totally uncontroverted or challenged by the Respondents, show that the Respondents admitted their liability to pay compensation to the Appellants, by reason of the demolition of their buildings in 1984. They showed their admission by their actions, even in letters to third parties such as banks. These were in evidence. They also made part payment in two installments out of the sum of N909,150.00 which they then approved. The sum of N205,948.98 was paid in February and N79,521.73 in September 1989. There was thereafter a balance of N623,676.29 unpaid for quite a long time. In effect they held unto this sum from 1984. They would not pay. After a long wait the Appellants sought a review upwards of the compensation. The Respondents not being willing inspite of their inordinate delay in payment since 1984, the Appellants, pursuant to Sections 29 and 30 of the Land Use Act, initiated proceedings before the Land Use and Allocation Committee. The Committee, in accordance with their powers under Section 29(4)(b) of the said Land Use Act, Cap. 202 of the 1990 Laws of the Federation, considered the payment of interest for “delayed payment of compensation” which had characterized the payment of the said compensation to the Appellants by the Respondents for over 6 years, from 1984.

It then ordered the Respondents to pay to the Appellants the balance of the approved unpaid compensation, in the sum of N623,626.90 and, in addition for delayed payment, compound interest at the rate of 30% per annum up to 30/6/92. Thereafter, that is to say, from 1/7/92, they were to pay interest at 32% per annum.

What accrued therefore to the Appellants as at 30/6/92 was N1,447,409.34. See the decision of the Committee in Exh Ay 33 at pages 192-195 of the record of proceedings. This was not denied.

It is to be observed that the Committee has powers under and applied Section 29(4)(b) of the Act to calculate the interest payable for this purpose “at bank rate” .

None of the evidence – oral and documentary tendered by the Appellants at the trial in the High Court was challenged by the Respondents. Let me set out subsection 4(b) of Section 29 which provides what compensation is payable as respects:-

“29(4)(b)- buildings, installations or improvements thereon, for the amount of the replacement cost of the building, installation or improvement, that is to say, such cost as may be assessed on the basis of the prescribed method of assessment as determined by the appropriate officer less any depreciation, together with interest at the bank rate for delayed payment of compensation and in respect of any improvement in the nature of reclamation works, being such cost thereof as may be substantiated by documentary evidence and proof to the satisfaction of the appropriate officer”.

(Underlining supplied).

I have no doubt, in view of these facts and these provisions of the law that the Appellants were entitled to the sum of N1,447,409.34 with interest at 32% per annum from July, 1992 till payment. This is having regard to the obvious delayed payment to them of their compensation which had been persistent till date.

This is even more so because the Respondents admitted their liability to pay compensation and failed to controvert all adduced facts. The trial Court ought to have acted on them.

It is the law that where evidence adduced by a party to any proceedings is not challenged by the opposite party who had an opportunity to do so, it is open to the Court seised of the proceedings to act on those unchallenged facts. See Odulaja v. Haddad (1973) 11 SC 35. Nigerian Maritime Services Ltd. Vs. Alhaji Bello Afolabi (1978) 2 SC 79 at 81 – 82. See also the Privy Council decision on the Nigerian case of Adel Boshali v. Allied Commercial Exporters Ltd. (1961) All NLR 917 (per Lord Guest), Imana v. Robinson (1979) 3 & 4 SC 1 at 26.. Agbaje v. Ibru Sea Foods Ltd. (1972 5 SC 50. Omoregbe v. Lawani (1980) 3 – 4 SC 108. Nwabuoku v. Ottih (1961)1 All NLR 487 at 490. Adejumo v. Ayantebe (1989) 3 NWLR (Pt 110)417 at 439, Union Bank v. Ogbo (1995) NWLR (Pt 380) 647 at 669.

Quite significantly in this matter, the Respondents filed a statement of defence but thereafter backed out of the trial. They led no evidence and challenged none of the massive evidence led by the Appellants.

Issue No. 1 must be decided in favour of the Appellants. It is so decided. The Appellants are entitled to be paid the interest as claimed.

In Issue No.2, the Appellants claim that as they were entitled to 30% compound interest on the unpaid compensation of N623,626.90 with effect from 6/3/89 to 30/6/92 and that amount plus interest thereon at the said 30% per annum as at 30/6/92 came to N1,447,409.34. In error, the Respondents had mistakenly omitted N321,627,42 out of this and also interest on the sum of N9,000.00. The error corrected, what is due to them would be N1,769,036.58 not N1,447,409.34. In paragraph 39 of the Amended Statement of claim, they had claimed as follows:-

“The Plaintiff avers that when the 1st defendant arrived at the sum of N1,447.34 as the sums due and payable to the plaintiffs in 1992, the 1st defendants wrongfully committed the sum of N321,627.42 which is the actual sum due to the plaintiffs on the sum of N623,626.90 at the interest rate of 30% from the period 6/3/89 to 30/6/92 as was calculated by them plus N9,000.00 at the interest rate of 30% from 1/7/84 to June, 1992, which total is equals to Nl,769,036.58 and not the sum of N1,447,409.34″.

To prove this, the Appellants adduced oral and documentary evidence at the trial. Exh AY-43 on page 213-218 is the report of Tunde Williams & Co, Chartered Accountants pleaded in paragraph 57 of the Statement of claim setting out the arithmetical calculation of the unpaid compensation of N623,626.90 with compound interest at 30% per annum from 6/3/89 – 30/6/92 as was due as at 30/6/92, not as the Respondents and the trial Court purport it to be.

The Respondents led no evidence in rebuttal, nor challenged the oral and documentary evidence of the Appellants.

The learned trial Judge in his judgment decided against this part of the claim. He found as follows after he examined the claim in paragraph 59(3) of the Amended Statement of Claim, the evidence of the Plaintiffs proving their averment in paragraph 57 of the Amended Statement of Claim (supra), the report of the Chartered Accountant Tunde Williams & Co. – AY43 dated 13.6.92, and the Governor’s approval for payment made on 27/8/92:-

Exh AY.43 is dated 13/6/92. The Governor gave approval for the payment of the sum of N1,447,409.34 on 27/8/92. there is no evidence to suggest that any complaint was made to the Governor or his officials about the inadequacy of the sum approved by the Governor. That claim, cannot succeed. It would appear unjust if that claim is approved now when no representation of the supposed under-payment was made to the defendants when the compensation matter was under consideration by the defendants.

The claim under sub-paragraph 4 of paragraph 59 of the plaintiffs’ amended statement of claim cannot succeed for the reasons stated above. That claim fails”.

With due respect to the learned trial Judge, the liability of the Respondents to pay compensation to the Appellants with interest is established under the law and the Respondents know and admit this liability.

The computation of the exact figures is another matter altogether. As a matter of right under the law, what the Appellants should be paid is what they are entitled to after proper computation of the interest at compound interest of 30% up to September 1992 and thereafter at 32% till the entire compensation with the interest thereon is paid (see my views under issue No.1, supra). I hold the firm view that the introduction of the issue that there was no evidence of complaint to the Governor or his officials about the inadequacy of the sum approved is totally extraneous. It did not in any way arise either from the pleadings or evidence at the trial. The trial Court had not been called on to determine it and ought not. See Kalio v. Kalio (1975)2 SC 15, Ebba v. Ogodo (1984)4 SC 84, Akpere v. Barclays Bank (1977) 1 SC 47, Ikenye v. Ofune (1985) 2 NWLR (Pt.5) 1. The right which accrues to the Appellants by way of compensation is one which they are entitled to by law. The Respondents do not dispute that. The Appellants are entitled to come to Court to claim it, where the Respondents fail to pay, as the evidence clearly shows, and there was some mathematical error in the computation of the actual sum involved.

I am bound to further state that this right which has accrued by law, admitted by the Respondent is not shown to be at the discretion of any government official or agent. Before our Courts, it is a matter of justice that parties be awarded what they are shown to be duly entitled to. It is not for the Court to find excuses for a party to a suit who did not make the excuses in his case before the Court.

In their brief of argument, learned counsel for the Appellants had argued that the learned trial Judge had erred in law in resolving the issue as though justice could only have been done had the Appellants pointed out the error at the consideration stage. The Respondents were already bound to pay interest on the principle sum at 30% compound interest from 6/7/89 to 30/6/92 and thereafter from 1/7/92 at 32% compound interest as reviewed by the Land Use Committee. The guiding principle and/or yardstick is 30% and 32% whether there was an error in the computation or not. It was further submitted that that should not affect the fact that the correct compensation ought to be the one which agrees with the yardstick. The Respondents it was then submitted, would still have been bound in law to pay the N321,627.42 inadvertently omitted whether discovered at the consideration stage or not.

I agree.

I also agree with the Appellants’ learned counsel that the trial Court ought not to have concerned itself with whether or not the error was pointed out to the Respondents at the consideration stage, a matter which did not arise at the trial and on which none of the parties called upon the Court to decide. In the case of University of Calabar v. Dr. Okon J. Essien (1996) 12 SCNJ 304 at 326 cited by the Appellants, also reported in (1996) 10 NWLR (Pt 477)225 at 251, the Supreme Court reiterated the age-long-principles that a Court of law ought to limit itself only to issues raised and/or canvassed by parties before it.

The vehemence shown by the learned Justices of Supreme Court in deprecating such a practice is obvious and instructive. Ogundare, JSC pointed out that the Supreme Court had in a number of cases deprecated the practice of a Court taking up a point as in this case and making it the basis of its decision without hearing the parties on it. The respected learned Justice of the Supreme Court continued:-

“In Adeosun v. Babalola (1972)5 SC 292 this Court held that it is improper for a court to give a decision on a point not argued before it”.

A judgment must be confined to issues raised by parties to the action before the Court. See Ikenye v. Ofune (supra).

It is in the light of the foregoing I would decide Issue No.2 in favour of the Appellants, and award the sum of N321,627.24 claimed in paragraph 39(3) of the Amended statement of claim, further amended by the Order of the Court on 28/3/95 (see pages 97-98 of the records) established by uncontroverted evidence by the Appellants as due to them.

Ground 2 of the grounds of appeal succeeds.

Issue No.3 This issue relates to the Appellants’ claims in paragraphs 59(4) – 59(10) of the Amended Statement of Claim earlier set out. The Appellants complain that the learned trial Judge had wrongly refused to grant these claims which were pleaded and proved as special damages. I have set out the facts pleaded in the Amended Statement of Claim relating to these claims. The evidence led, which the Court below described as “comprehensive”, remained unchallenged and uncontroverted. The trial Court ought to have accepted and acted on them on the authorities which I had referred to under Issue No.1.

The trial Court did not base its reason for refusing the claim on the case of the parties before him. His reason is as set out in his judgment thus:-

“There is no evidence to suggest that any complaint was made to the Governor, his officials or his officials about the inadequacy of the sum approved by the Governor. It would appear unjust if that claim is approved now when no representation of the supposed under-payment was made to the defendants when the compensation matter was under consideration by the defendants”.

He also said:-

The claim under subparagraph 4 of paragraph 59 of the plaintiffs’ Amended Statement of Claim cannot succeed”.

He later concluded:-

“I do not think the plaintiff an bring a fresh claim when the compensation had been fully assessed. The claim under subparagraph 6-10 inclusive fails”.

In the first instance, there is abundant evidence that the Appellants complained to the Governor and his officials about the sum approved. It is my view that apart from this, which i will return to later, the learned trial Judge was in error, for some other reasons. One of them is, why was the learned trial Judge making a case for the Respondents which they never made before his Court? Why was he making excuses for and wrecking up a defence for them which they did not proffer before his Court? I see no reason whatsoever under the law for him to do that. Indeed, the law does not permit him to do so.

If I may reiterate the position of the law, even at the risk of repetition, it is that no Court of law has the competence to make a case for any of the parties in a matter before it, which the party himself did not make.

Again the averments in the pleadings of the Appellants carefully testified to in the evidence of the 1st Appellant, have never been challenged or contoverted. For, the Respondents did not rebut the evidence nor testify in contradiction thereof. For even though the Respondents filed a statement of defence, they failed to go to Court to lead evidence thereon.

This Court and the Supreme Court have in many of their decisions stated that where evidence given by a party to any proceedings was not challenged by the opposite party who had an opportunity to do so, the Court seised with the proceedings is obliged to act on the unchallenged evidence before it. Nzeribe v. Dave Engineering (1994)8 NWLR (Pt 361)124 at 139. Odulaja v. Haddad (1973)11 SC 35, Hutchful v. Biney (1971) 1 All NLR 268, Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 SC 79 at 81-82, Imana v. Robinson (1979)3-4 SC 1 at 9-10.

We are not unaware that it is also the law that the failure of the defence to tender evidence at a trial does not by itself discharge the plaintiff of the burden to prove his case. It does not follow that he is automatically entitled to judgment where the evidence tendered by him is not challenged or controverted by the defendant. The position is that in such a case, the trial court is still under a duty to evaluate the evidence adduced by the Plaintiff and to satisfy itself that the evidence is credible and sufficient to sustain the claim. See Paul Adebayo Atilade v. G. L. Atilade (1968)1 All NLR 27.

It is the case herein however, that the Appellants led more-than sufficient evidence including documentary evidence to prove their claim, which had not been controverted and had the trial Court properly evaluated it, it ought to have found for them.

This is a typical case where it is obvious from the facts and uncontroverted evidence, that the trial Court was in error. For it based its decision on facts which are not by any stretch of imagination supported by the evidence adduced before him. With respect, his finding that there was no representation to the Military Governor and his officials is incorrect. There certainly was such a complaint made, leading later to the representation to the Land Use Committee, as a matter of last recourse when the Appellants’ complaints and pleas were not hided. To this, the Appellant averred in their Amended Statement of Claim and showed by their evidence in Court.

I do not however see what relevance the making of a complaint to the Governor or his official first has to do with an aggrieved citizen who cries to the Court of justice for redress before his claim may be awarded. If however it is adjudged relevant, I confirm that there is evidence on record to show that they did complain and later as required by the Land Use Act, took their complaint to the Land Use … Committee which made an award, part of which the Respondents themselves applied during their subsequent consideration of the Appellants’ claims. This is evident from the records. In his brief of argument, the learned counsel for the Appellants drew our attention to the fact and rightly too, that the approval for their compensation was done in two batches, the first for N909,150.00 shown on Exh AY 21 on page 160 of the records and Exh. AY 24 on page 164. The second approval came pursuant, and subsequent to the deliberations and findings of the Land Use Committee for the sum of N1,447,409.34. This was purported to represent the unpaid balance of the principal sum earlier awarded (part payment of which was done in 1989 in two tranches) and compound interest at 30% per annum from 1984 to June 30th 1992, after which the interest was to increase to 32% per annum from 1st July 1992.

Learned counsel also pointed out Appellants’ letter of 20/3/90 – Exh AY 25 (see pages 109-172 of the records) titled “RE COMPENSATION FOR THE DEMOLISHED PROPERTY OF ALH. ISIYAKU DYAKUBU: AN APPEAL FOR AN UPWARD REVIEW OF THE COMPENSATION TO REFLECT MARKET VALUE…” It was addressed to:

“The Secretary to the

Military Government

Military Governor’ Office

……………………..”

I would reproduce the contents of this lengthy letter – Exh Y 25. When it is considered, the error of the Court below becomes manifest. Had he properly taken note of and appreciated/evaluated its content, and other evidence before him, he would have arrived at a different and correct decision.

The Appellants wrote:-

“With the greatest respect and humility Sir, I wish to refer to your letter Ref. No. SGS.16/24/T.1/41 dated 14th March, 1990, and to state as follows:

1. That it is with greatest dismay and surprise I noted the comments in the above quoted letter from your good office, thus “…you appear to be ungrateful inspite of all that has been done to help you”. And that the said matters relating to the above should be regarded as closed.

On this said comments, I wish to observe with due respect that I am not being ungrateful at all, rather I think my situation if viewed with positive differences, from a proper perspective and in good faith the truth would remain that I am only urging for compensation that may disengage me from the bad situation the demolition exercise had plunged me into. While, Sir, I am not in the position now to say that the statement quoted above amounts to an abuse of my person, neither am I in the position to say that the five (5) years 9 months delay on the part of the State Government to consider payment of the said compensation was not religiously and humanely proper, I am only in the position now to still urge you to PLEASE HELP REVIEW MY CASE.

2. That it is my belief that this administration is ONE OUT for justice and fair play, and that an aggrieved person like my humble self will certainly get remedy to my problems through the administrative process purely without necessarily resorting to the embarrassment and rigors of subjecting the Government to the trouble of the litigation process. And I hasten to state that this my said faith in the present Military Administration has never waived, hence this letter despite your purported closure of the said matter which I humbly believe does not arise.
3. Sir, my request for an upward review of my compensation is not without good reasons. It is noteworthy that the property was demolished in 1984 and it was with promptitude that I submitted the estimate of my compensation. This I did in good faith believing the Government would settle me without any due delay. However, the contrary was the case.
4. It is therefore on good premises I submit that the long delay in settling the compensation has caused me untold hardship and sustained loss. My reasons for asserting so can be deduced from the following situations:

(a) As a direct result of the demolition exercise, the Bakery project which I had commenced was disrupted and had to be suspended pending such time that I could rebuild and relocate the project. It was not until after a period of 1-1/2 years that the project was revived.

(b) As a result of the closure of the Bakery which flowed directly from the demolition exercise, the Bank loan which was procured to finance the project remained unserviced and attracted interest in a whopping sum of N113,000.00 from 1984-85.

(c) It is also of material importance that during the said period of the closure I lost a total Sum of N810,000.00 computed at N1,500.00 per day as loss of profit for the aforesaid period. This would naturally attract interest if pursued stricto – sensu and is viewed objectively.

(c) That as a result of the said demolition exercise and delay in settlement of compensation I was unable to complete the project of my house at No.2 Warwar street, which house was purposely commenced for rentage purposes, and same would have fetched me N12,000 per annum, i.e. N6,000.00 for upstairs and N6,000 for down stairs respectively, and this was loss for 6 years, i.e. is equals to N72,000.00, this the government should also compensate me with interest, because the house was aimed at rentage purposes so as to pay back the bank.

5. The above claims were not forwarded with my initial claim for Compensation because it was never envisaged that the compensation would be delayed for such an inordinate length of time. You will also agree Sir, that there would not have been any justification for me to include such claim in my initial claim for compensation. However, now that the delay has given rise to the claim it is natural that I forward the claim which I have done supra.
6. With respect Sir, I submit that if justice would be granted me, I would suggest that bearing in mind the aforementioned facts and circumstances, only compensation based on the current market value of the demolished property would be sufficient compensation for my loss and I also plead that you should be persuaded by my views herein. This is moreso as the circumstances of the inordinate delay in settlement has started manifesting with the appointment of Receiver/Manager for my Bakery Company by my Bank creditors.
7. Furthermore, Sir, I would like you to be impressed by the fact that my demand for payment based on current market value is not a recent demand as I had been persistent in making the said demand in my earlier correspondences with your office. This can be confirmed in my previous correspondences with your office.
8. For example, my letter to His Excellency, the Military Governor of Gongola State dated 17/1/90 pointed out at paragraph 5 the issue of current market value, as same was properly observed by the-then State Government Technical Committee on Non-payment of compensation, that if the property is valued at the present cost of building materials the amount would certainly be higher than N600.000 i.e. it would be N909,150.00 presently. Now, N909,150.00 minus N205,998.78 is equals to N703,151.22, it is this balance of N703,151.22 that I am now asking for.
9. However, Sir, if the Government would insist on the payment being on interest, the payment due to me would be based on the under listed premises:

(a) Payment from 1/7/84 – 30/2/90 is equals to N217,135.86 and not N20,998.78, i.e. to say the balance of N11,137.08 is yet outstanding, and I believe you know this more than I do.

(b)The sum of N72,000 plus interest being loss of rent for 6 years in respect of my house at No.2 Warwar street, Nasarawo, Jimeta.

(c) The sum of N60,000.00 being expenses made on renovations after demolition of the Bakery house, and this paragraph 4 of my letter dated 1/3/90 to His Excellency the Military Governor of Gongola State.

(d) The sum of N115,00.00 being interest charged by the two banks under the period of 1/2 years from 1984 – 85 with interest from 1/1/86.

(e) The sum of N810,000.00 being loss of profit for years from 1984 – 85 plus interest from 1/1/86 till date of payment.

10. Sir, inspite of the above demands, I request that your good office should consider allocating an alternative plot to ameliorate for the loss of the plot on which my property was demolished. Vide paragraph 6 of my letter to His Excellency, the Military Governor dated 1/3/90 attached.

11.You should also note that the demolition exercise did not only cause loss of earnings, profit and unexpected expenses, but it has also placed my Bakery Machines into an idle situation (without working) due to the above circumstance. And you know more than I do, that it is not safe to allow machines to stay for a long period of time such as these under question without working. Note further, therefore that in the event of the said machines rusting as a result of their being idle, and/or the Receiver/Manager finally getting judgment and disposing off the Bakery machinery and the landed property, I shall have no alternative than to claim damages from your government; hence I am urging you to pay me compensation based on current market value OR, ALTERNATIVELY, you pay me compensation covering loss, banks interest and other special damages as out lined above.

12. The position remains that unless your good government makes a timely payment in full of my entitlement, my property including the Bakery house stands to be disposed off in liquidation of my indebtedness to the Banks as a result of huge interest.
13. On a final note Sir, it is my humble expectations that even after payment based on current market value would have been made to me, I should be commended for having borne with the Government for all this period despite constant threat from my creditor Banks, rather than the Government addressing me as an ingrate as done by your subordinate, which said language I deem as not only being vulgar but a conduct least expected of a highly placed civil servant as the addressor. Letter attached for your perusal.
14. Sir, I most humbly implore you to use your good office and ensure that my complaint be treated timeously and favorably.

Thanks for your kind consideration.

Yours faithfully,

(ALH. ISIYAKU YAKUBU)

MANAGING DIRECTOR

CC: The Military Governor of

Gongola State.

Military Governor’s Office,

Government House,

Yola.

Your Excellency Sir, over-leaf is for your information. I re-appeal to your most respected office to consider my plight and to treat as a matter of concern and urgency my humble claim for compensation to alleviate my problems.”

(All the underlining is supplied by me).

The foregoing speaks for itself and shows that the Court below was in grave error when it based its decision on a wrong premise. There was evidence of representation to the Military Governor and his officials regarding the inadequacy of the compensation and payment of interest for delayed settlement. They proceeded to obtain legal advice in Exh AY 25, supra.

The third point is that there is nothing unjust about awarding to a party what he is properly proved to be entitled to. A Court of law to which he brought his claim in the hope that he would have redress for a right denied him by the defendants and for which he suffered so much damage, ought to accord him justice.

For the Appellants, it had been submitted regarding claim 59(4)- (8) that the Appellants showed their dissatisfaction with the sum initially approved, and complied with provisions of Sections 29 (4)(b) and 30 of the Land Use Act 1978 making the claims as brought and proved before the trial Court due and proper. It was asserted that there was no doubt that the Respondents owed the Appellants the duty of payment within a reasonable time but they failed to do so, causing the Appellants draw backs to their flourishing business, in which circumstances the Respondents’ could not escape liability. The case of Obasuyi v. B.V.L. (2000) 4 SCNJ 20 at 31 is relied on.

I agree.

Obasuyi v. Business Ventures Ltd (supra) is also reported in (2000) 5 NWLR (Pt 658) 668 SC.

In that case, the Supreme Court outlined the obligation to a plaintiff who claims special damages. He is obliged not only to plead and carefully particularize them, the evidence in support of them must be credible. It is a matter of strict proof, but this means no more than evidence which shows the same particularity as made it necessary to plead them and that he is entitled thereto. Oshinjinrin v. Elias (1970) 1 All NLR 153 at 153, Odulaja v. Haddad (1973)1 All NLR 191 at 196.

Here also is what the Supreme Court held in West African Shipping Agency v. Kalla (1978) 3 SC 21 at p31:-

“Strict proof in the con of special damages can mean no more than proof as would readily lend itself to qualification or assessment and if a plaintiff who has peculiar knowledge of facts of special damages gives evidence and the evidence is uncontroverted, this amounts to proof.  See Ijebu Ode L.G. v. Balogun (199.1) SCNJ 1 at 18, also (1991) 1 NWLR (Pt.166) 136. Also, Obanor v. Obanor 1976 2 SC 1 at p. 4-6, Incar Nigeria Ltd. v. Adegboye (1985)2 NWLR (Pt 8) 453 at 460.

In Odiba v. Azege (1998) 61 LRCN 4605 at 4625, Onu JSC has this to say, underscoring the need for strict proof and rebuttal, it is must be countered:

“Indeed it is worthy of note that the appellant has not attempted to challenge the respondent’s evidence. …on special damages…”

It follows therefore that where the plaintiff has established the precise amount of an item in the list of special damages known before the trial either because the damage had occurred and become crystalised, as herein I should consider it just that the trial Court should award it, unless rebutted.

By the claims of the Appellants herein, specially and carefully pleaded and particularized in the Amended statement of claim (see Paras 23-59), and the evidence no less particularized and strictly proferred and there was no contradiction thereto, the claims qualify to be awarded by the Court below. The Appellants pleaded the failure/delay of the Respondents to pay them the compensation to which they were certified entitled. Even after the initial approval, only a fraction was paid. After and since the review and second approval nothing has been paid. The Appellants had borrowed money used for the construction of part of the demolished buildings used for their bakery and confectionery business. The business could not continue. They could not pay back the bank loan. They could not collect rent due to the demolition of those built for rent. They lost other businesses. The catalogue is on record. When it came to evidence, it was as detailed – see in particular pages 90-97 of records.

Regarding the claim in Para 59(4), the Appellants’ testimony stated the particulars on which the claim of N71,804.30 at 30% per annum was based. It was supported by documentary exhibits.

Exh Ay 13 is a petition by the Appellants to the chairman Task Force Committee, that is the 5th Respondent appealing to the Committee not to demolish or cause to be demolished, the buildings as soon as they observed their marking for demolition. Paragraph 3 on page 143 of the records, cataloguing suffering, loss and damage that would result if the demolition proceeded. This was preceded by the history of the property, the use to which its various components were being put. Let me set out some relevant paragraphs in Exh AY 13:

“The Company and myself will suffer an irreparable loss, agony and distress if this Bakery House and my residential quarters is demolished by the Task force whereby rendering the efforts and struggles of the Company which it started since 1978 useless and putting me and my Company into a very big debt of which I cannot sustain whatsoever in view of the following reasons.

1. This Bakery House and the machinery thereon was built and purchased by the money granted to the Company by the Nigerian Industrial Development Bank (Federal Govt. money) and the money is to be paid back to the NIDB instalmentally immediately the Bakery commences production.
2. If the proposed demolition is carried out, the Bakery House cannot exist any more and the money used in building this Bakery House will then lie as a burden and debt on the head of the Company and myself because it is a must that the NIDB (Federal Govt. money) money will be paid back to it at the stipulate period come what may.
3. I depend and rely solely on the Certificates of Occupancy granted to me on which this Bakery House was built and the approved building plans which was approved by the State Government for the building of the Company’s Bakery House and my residential quarters where they were built.”

This forecast of suffering set out in Exh AY 13 materialised as the evidence shows. Failure to pay timously the compensation admitted to be ‘the entitlement of the Appellants caused the liability to pay interest on the unpaid sum being claimed in Para 59(4) and (5).

Exh AY 22 dated 27/1/90 is the opinion of the Attorney General of the State, the 2nd Respondent justifying the compensation, interest for nonpayment timously and the appeal to Government by the Appellants for upward review of the compensation – see page 161-165 of the records. At page 164, the advice ends with this, that if the claimants do not pursue a claim in compensation, but, “sues the Government for damages”, they may succeed and, he continues:-

“This is so because the compensation paid is in respect of the demolition exercise and not in respect of the losses suffered by the claimant which losses were incurred as a result of the demolition exercise.

A line of demarcation must…be drawn between compensation and damage, the latter meaning “money claimed from or paid by a person causing loss or injury”.

The Government is advised accordingly. I would also advise that in view of the state economy, payments of compensations of this nature must not be delayed unreasonably thereby preventing the Government from paying colossal sums of money.”

In the Appellants’ appeal for upward review of their compensation on which the legal opinion was required, the Attorney General spotted a threat by the Appellants, “to claim damages from the Government” if their claim was not considered. He held the view that such a claim would be justified.

It is clear to me that in view of Exh AY 21 and other evidence on record, that when the claim reached the trial Court, the Respondents already knew what to expect. The Appellants averred in their statement of claim that the Respondents’ had no defence to their claim. They were right after all. The Respondents did not challenge or counter their overwhelming evidence. Pages 96 – 97 contain the evidence of the 1st Appellant regarding what he called “the effects of non-payment” in proof of which he tendered Exhs AY 39, 39A, 39B, 39C, AY 40, AY 41, AY 42 andAY 43. These read with AY 32, 33, 34, 35, 36, 37 and 38 buttress the claims in paragraph 59(4)-(8), see page 47-61 of the records.

From page 90 of the records, the 1st Appellant testified to what he termed, “the damages of demolition”. He listed them.

He testified as follows:-

(i) GS. 147 – Fence of 25 metres long, 4 stores, one door, Staircase.

(ii) GS. 146 and 148 – facing Gimba Road.

(a) 50 metres long offence;

(b) 2 Car parks;

(c) plants planted in front of the house;

(d) a wall dividing my house (GS.148) and the bakery house (GS.146) 30 metres long.

(iii) For GS. 148 -Toilet, Bathroom, Store.

I shifted the Bakery House backwards.

The total expenses in demolishing and reconstruction are N66,580.00.

Demolition was N6,580.00. Reconstruction was N60,000.00. I looked for a contract of and we agreed upon N66,580.00. I paid. The contractor is Bukar Musa. We had a written agreement. I can identify the agreement per my signature and the amount. This is the agreement.”

Also:-

“I know one Clement Onyejekwe. He was the contractor who built my house.

In 1982 (20th June), he built a kitchen, store, toilet and bathroom for my wives for the sum of N24,480.00. They were later destroyed by the Task Force. In respect of WARWAR STREET plot, the following were destroyed:

(a) Front of 2nd storey building, verandah and fence destroyed.

(b) Main building – affected.

The wall fence had Iron gate. I spent N6,000.00 in reconstructing the parts destroyed. I had no money to carry out further works at the plot on Warwar street. That plot -: Ground Floor – has a parlour, 3 bedrooms, 2 toilets, kitchen, store, Dinning, Boys quarters – 2 rooms – Car park, 1 Pit toilet, First floor – Parlour, 3 bedrooms, kitchen, Store, Conference Hall, 2 Toilets, 2 Room Boys’ quarters. The house was not completed and so I could not give it out for rent”.

On page 92, he further testified:-

“I constructed the building at Warwar Street for rent at the annual rent of N30,000.00 for both flats. The Bakery house is at 19 Gimba Road, Jimenta-Yola. The loan given to me was N172,000.00 at 10% interest initially but later disbursement was 14.%. I constructed the said Bakery.

The Defendant demolished part of the Bakery in 1984. I got the N.I.D.B. loan per an agreement. I can identify the agreement per the name of the Company and my name thereon. I signed on the agreement.”

Also:-

“I lost the profit of N1,500.00 per day and I could not pay the loan I got form the bank. Consequently, the Bank appointed a Receiver who is instructed to sell my house and the Bakery. The Receiver came with his group of 9 and they entered my personal house in my absence. The head is Mr. Adeyemi P.A. They searched my personal rooms. They went to the Bakery. They let some Security men at the personal house and the Bakery. They seized my cars – three in number. I have filed another suit for the break-in in the High Court which suit is before the Honourable Chief Judge’s Court.

The Certificate of Occupancy No.GS, 148 in respect of my house is still with the 1st Bank. In 1979, I got a loan of N15,000.00 from the said Bank and gave the Certificate as Security. In 1985, I finished payment of that loan but they refused to give me back the certificate. They claimed I have not finished payment. The Certificate Covers the building close to the Bakery. The 1st Bank has sued me in High Court No.2 for a certain sum of money. The Certiflcate of Occupancy No. YLG/000842 is for the house at Warwar Street and the Certificate is with the United Bank for Africa. That Bank in 1982 gave me a loan of N30,000.00. On 5/7/90 the United Bank for Africa Plc was written to me about the loan. On 21/1/93, the Bank wrote me charging me interest on the loan at the rate of 32%. I can identify the said Bank’s letter per my name on it and the date. This is the letter”.

The effect of non-payment of the sum approved in Exh AY 38 is set out on pages 96-97 the evidence of 1st Plaintiff. He said:-

“The effects of non-payment of that amount are varied. I took a loan from the N.I.D.B. to build a bakery. The engines and equipment were fixed and the Task Force demolished part of the bakery. I could therefore not do the bakery due to the said destruction. I could not pay back the loan. The NIDB then locked the bakery and also my personal house was locked and my vehicles were seized. I have nothing to eat in my house. I have 18 dependants. My properties in question are: GS.146, 147, 148 and LG. 000842.

The flour I was supposed to get from the company producing same was never supplied to me. I have documents to prove the approval of the supply of flour to me. I have the flour dealer registration code and other documents. They are all bearing my name. These are some of the document”.

Documentary evidence was tendered – Exhs AY 39, 39A, 39B, 39C, 40, 41, 42 and 43. They show how interest accrued to the Appellants for non-payment of the compensation as due. Exh PY 43 is the professional Accountants calculation of the interest of 30% and 32% already dwelt upon earlier in this judgment.

I agree with the learned counsel for the Appellants that the reason of the Court below for refusing to grant their claim in paragraph 59(4) extended to those in paragraph 59(5)- 59(10) was upon a wrong premise. With respect, the Court muddled up the sequence of the dates on Exh AY 25 which is 20th March 1990 when the Appellants submitted in’ writing their “appeal for an upward review of the compensation”, and the date of 27th August 1992-in Exh AY 43 being the date of the second approval by the Respondents. At page 230 of the records, the learned trial Judge on the other hand said Exh AY 43 was dated 13/6/92 and that the Governor gave his approval on 27/8/92. Based on this he came to the decision refusing the claim, which, with respect, is in any event totally erroneous. He said that there was no evidence that any complaint was made to the Governor or his officials about the inadequacy of the sum approved by the Governor. The truth of the matter is that between 20th March 1990 and 27th August 1992 is a period of over two years. During that period, the Appellants made representations which were unhided, leading to the proceedings before the Land Use…Committee, bringing up the same matter. The recommendations following the Land Use…Committee gave rise to the second approval.

The evidence and the claim of the Appellants show that the Appellants had kept in view the provisions of Sections 29 and 30 of the Land Use Act, justifying their claims for interest for non-payment of compensation within a reasonable time which has obviously caused the Appellants proved loss and continuing loss.

My view is that the Appellants proved the special damages which they claimed with such particularity as is required by law and were entitled thereto. The Court below was in error not to have awarded them. I award them, being the claims in paragraph 59(4), (5), (6), (7), (8), (9) and (10) as follows:-

59(4) Interest on the sum of N71,804.30 at 30 compound interest per annum from 1/11/90 till payment.

59(5) Interest on the sum of N47,580.42 at 32% compound interest from 1/3/90 till payment.

59(6) The sum of N66,580.00 being expenses of demolition of parts of the Appellants’ premises and of shifting the bakery building, together with interest thereon from 1/1/86 till payment.

59(7) The sum of N24,480.00 cost of building toilet, kitchen, store, bathroom, together with interest thereon from 1/1/86 at 30% compound interest until payment of the sum due.

59(8) The sum of N6,000 cost of demolition at 4 Warwar Street together with interest thereon at 30% compound interest from 1/1/86 till payment.

59(9) The sum of N810,000.00 being loss of earnings on the demolished bakery and confectionery at N1,500.00 per day from 1/7/84 to 31/12/85 with interest thereon at 30% per annum from 1/1/86 till fully paid.

59(10) N270,000.00 being loss of rent from 1/7/84 to 30/6/93 with interest of 30% compound interest and at 32% per annum from 1/7/93 till the sum is full liquidated.

Let me conclude, the decision on this issue by stating that 1982 till date is too long a time for a citizen to be denied payment of compensation admitted to be due to him. The loss and suffering caused by the delay in non-payment which is avoidable are unjust, and, indeed, the burden on public funds from payment of damages and such huge interest accruing for so many years and. virtually indefinitely, is also avoidable and must be deprecated.

Issue No. 3 is in the Appellants’ favour, so also ground 3 of the grounds of appeal.

Issue No.4

Under this, the Appellants attempt to justify their claim for general damages which the Court below had rejected.

What did the Court below give as its reason? At page 233 of the records, the learned trial Judge said:-

“The plaintiffs are claiming general damages of N3,000,000.00 for injuries suffered by them as a result of the action of the defendants.

The plaintiffs have been awarded compensation and they have got interest thereon. I think it would amount to double compensation if general damages are again awarded. They cannot have a second compensation for one loss. The general damages are hereby disallowed”.

I should think the Court below was on firm grounds. The law frowns against double compensation. In the case of Yau v. Dikwa (2001) 8 NWLR (Pt. 714) 127 at 155, this Court had this to say concerning the issue of award of damages and double compensation.:-

“It is correct that the law frowns against double compensation and would not ordinarily allow a party for a specific loss suffered, to claim general damages under that head….. See Federal College of Education v. Anyanwu (1997) 4 NWLR (Pt 501) 533 at 561.

The reasoning behind this, is that it is wrong to adjudge any item of specific loss as general damage when indeed it is a special damage to be specifically pleaded, particularized an strictly proved”.

It is well settled that where specific items of damage are claimed, followed by a claim for general damages, the trial Court should scrutinize such a claim to ensure that the plaintiff is not asking for compensation more than once for the same cause of action.

It is in my view a question of measuring the loss suffered by the plaintiff. Once compensated, there is no room for a second compensation for the same loss or damage suffered. See Thomas Keremi v. Bisiriyu Odegbeson (1965)1 All NLR 95 SC at p.99 also reported in (1967) NMLR 89 at 91 per Onyeama JSC; Ezeani v. Ejidike (1964)1 All NLR 402.

The applicable principle in determining what damages to award in any given case, demands that all the facts of the case are to be considered together with the whole of the evidence before the Court. See J.T. Chanrai & Co. (Nigeria) Ltd. Vs. Khawam (1965)1 All NLR 182 at p187, per Coker JSC.

There is no gainsaying that damages are a sum of money awarded as compensation for loss or harm of any kind suffered by the plaintiff and once fully compensated for such a loss or harm, it is not open to him to expect, and the Court to award him, any other form of additional damages which may wear the cloak of a bonus.

Once a claimant is compensated in a manner which restores him in his original position in so far as this is practicable, and for loss of earnings where that is applicable, that would satisfy his entitlement.

It is often said that where the quantum of loss or damage is certain or ascertainable and the Court awards it, it is not proper to also proceed to award general damages. It would be totally unjustified. See Anthony M. Soetan & Anor v. Z. Ade Ogunwo (1975) 6 SC 67 at p.75 per Ibekwe JSC.

The learned Justice of the Supreme Court in that case stated the view of the apex Court thus:-

“We take the view that where as in this case, the loss is itself of a financial character, the assessment of damages is primarily a matter of arithmetic. It seems to us that in such cases, the plaintiff, subject to the rule that special damages should be strictly proved, is entitled in principle to full compensation and no more. In other words such plaintiff is not entitled to be doubly compensated under the guise of general damages. It has been well said that a Court of law is not a donor of charities, it gives either party only that which the justice of his case demands”.

I have no doubt that the foregoing principles, applied to the facts and evidence before the Court below in-this case, clearly justify the decision of that Court in refusing to grant the Appellants’ claim for general damages.

The Appellants base their claim for general damages on the argument that the circumstances of this case forced them into tremenduous but unnecessary hardship, which ought to attract the award of substantial general damages apart from the award for specific losses. They enumerate the harassment and Court action faced from banks to which they could not pay back loans used for the construction of the demolished buildings, damage to their business arising from continued delay in ‘payment of compensation even after approval.

I have carefully considered the foregoing, scrutinizing the claim and evidence on record and hold the view that the claim for interest covers the items listed above.

The averments in the Appellants pleading and the claim in paragraph 59(1) – 59(10) of the Amended Statement of Claim strictly plead and particularise the Appellants’ claim for compensation and interest. In proof of all that, they gave copious evidence. This Court has already, in this judgment, determined them entitled thereto. It is all a claim of financial character, seeking compensation for the demolition of their property, for expenses incurred, loss of earnings arid interest on the said compensation for non-payment within a reasonable time or “delayed payment” as was shown in evidence. All damages have been taken care of. All that in my view would have restored the Appellants in their former position. The principle of restitutio in integrum applied, they would not be entitled to any further sum as damages.

The decision of the lower Court refusing to award general damages is upheld. Issue 4 is determined against the Appellants and ground 4 of the grounds of appeal fails.

Issue No.5

In this issue, the Appellants complain about the determination of the Court below to limit liability for the Appellants’ claim to the 1st defendant only, that is to say the Adamawa State Ministry of Works and Transport as stated on page 233 of the records.

Learned counsel for the Appellants, in his brief of argument, has submitted that the 5 different defendants were substantively sued jointly and severally. None of them made an issue of the capacity in which they were sued so that it could be formally litigated upon. In as much as no party called upon the Court to adjudicate as to which one of the Defendants should be made liable to the exclusion of the others, there is no ground in law whatsoever forming the basis for the trial Court’s decision to single out only one of the defendants to bear the liability proved to be on them jointly and severally.

It was further argued that the learned trial Judge could not in law make out for the parties a different case from that submitted to him for arbitration.

I would agree with the foregoing. The Respondents were sued jointly and severally. They did not consider it worthwhile to appear in Court to present their defence. There was no issue raised regarding parties before the Court below. There is nothing on record in the nature of pleadings or evidence which pinned the claim on the 1st Defendant alone, exonerating the other defendants. It simply came like a thunder-bolt in the judgment of the Court below for no reason. A Court of justice can only adjudicate and determine issues raised before it and come to a just decision based only upon evidence adduced before it.

In the case of Obulor v. Oboro (2001) 8 NWLR (Pt.714) 25, it was pointed out by the Supreme Court of Nigeria that Courts of justice must be wary of coming to a decision on any point not pleaded and not in evidence before it (per Belgore JSC at page 32 and Uwaifo JSC at page 34 of the report).

Said my Lord, Belgore JSC so very aptly:

“The judgment of a Court must be based on legal evidence before it, that is to say, all that is pleaded and supported by clear evidence. Anything not pleaded goes to nothing. It is surprising how the trial Judge after the pleadings before him and the evidence which he carefully reviewed just like a sudden storm brought out an adverse conclusion on matters unpleaded and on matters not in issue between the parties. Metal Construction W.A. Ltd. v. D.A. Migliore & Ors. (1990) 1 NWLR (Pt. 126) 299, 320. Courts must confine their decisions on matters that are fought upon by the parties and it is wrong and I may also say, it is unjust, to open a new and unexpected new battle field in their judgments. This may not only spell injustice on the parties but may also erode confidence in administration of justice”.

Then, in agreement with Belgore JSC, Uwaifo added, tersely:-

“Civil cases are decided upon what is put as an issue by the parties: See Adeniji v. Adeniji 1972 4 SC 10…”.

The learned trial Judge in the case before us, has no basis for limiting the judgment only to the 1st Defendant. That part of his decision is set aside. Where proved as in paragraph 59(1)-59(10) of the Amended Statement of claim, all the defendants are liable jointly and severally as claimed. Issue 5 is in favour of the Appellants.

In effect, apart from Issue No.4 which is against the Appellants, all the issues in 1, 2, 3 and 5 with their corresponding grounds of appeal are determined against all the Respondents jointly and severally, so to be bound by this judgment.

This appeal succeeds in part to that extent the judgment of Oluoti J. as aforesaid is set aside except the refusal to award general damages claimed in Para. 59(11) of the Statement of Claim which is upheld.

There will therefore be judgment for the Appellants as claimed in paragraph 59(1) – (10) of the Amended Statement of Claim provided that the claim in paragraph 59(3) of the Amended Statement of Claim shall read N321,627.24 as amended by order of the Court below on 28/3/95.

The Appellants are entitled to costs which I assess at N10,000.00

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Other Citations: (2005)LCN/1711(CA)