Engr. U. Aliyu & Ors V. Chief David U. Itauma & Anor (2008)
LawGlobal-Hub Lead Judgment Report
M. A. OWOADE J.C.A
This is an appeal against the judgment of G. K. Olotu J. delivered on the 27th day of June, 2007 at the Federal High Court, Uyo Judicial Division in Akwa Ibom State. The Respondents who were Plaintiffs in the lower court issued a writ of summons against the Appellants/Defendants on 2nd August, 1999, this was followed by a Statement of claim dated 17/7/2000 and filed on 18/7/2000. The 1st Defendant filed a Statement of defence on 24/7/2003 while the 2nd and 3rd Defendants filed their Statement of defence on the same 24/7/2003. The claims of the Plaintiffs (now Respondents) against the Defendants/Appellants crystallized in the Plaintiff’s Amended Statement of claim of 25/4/2005 wherein in its paragraph 27 it states:
- The Plaintiffs are entitled to compensation, which is being denied them by the Defendants, wherefore they claim against the Defendants jointly and severally as follows:
(a) A declaration that the Plaintiffs, as landlords and shrine owners of the land acquired by the Federal Government for the establishment of the Federal Government Low Cost Housing Estate, Mkpok, Eket are entitled to compensation for the land acquired.
(b)(i) Eleven Million Naira, being the sum approved by the 3rd Defendant as compensation to be paid to the Plaintiffs for the land acquired.
(b)(ii) In alternative to (b) (i) above, the sum of eleven million Naira being this Honourable court’s assessment of reasonable compensation due to the Plaintiffs from the Defendants for the land acquired.
(c) Declaration that the purported list of claimants to compensation purportedly kept by the 2nd and 3rd Defendants, is made up of persons who have no land, shrine, crops or right over the land acquired, and are therefore not entitled to compensation.
The facts of the case are as follows, upon the acquisition of the Plaintiffs/Respondents land by the Government for a Housing Estate project, the Plaintiffs/Respondents by power of Attorney dated 9th November, 1992, appointed the 1st Defendant/Respondent to negotiate for the payment of compensation, working in liaison with the 2nd and 3rd Defendants/Appellants.
Sometimes in 1998, the Plaintiffs/Respondents discovered that false claimants were making moves to collect compensation for the land acquired. Plaintiffs/Respondents wrote Exhibit 3 to the 3rd Defendant/Appellant, re-affirming the authority given to the 1st Defendant/Respondent to collect the compensation on behalf of the Plaintiffs/Respondents. About February, 1999, the 1st and 2nd Defendants informed the Plaintiffs/Respondents that money had been approved for payment of the compensation. While the 1st Defendant/Respondent put the figure at eleven million Naira, the 2nd Defendant/Appellant put it at Nine Million Naira. The Plaintiffs/Respondents contend that the sum due to them as compensation is still in the custody of the 2nd and 3rd Defendants/Appellants. The case of the 2nd and 3rd Defendants/Appellants is that the power of Attorney given to the 1st Defendant/Respondent was revoked by Exhibit 6, while a new one (Exhibit 5) was issued in favour of one Akin Olaifa & Co. The Appellants maintained that the money had been paid over to the said Akin Olaifa & Co. which in turn paid same over to the persons on its list of claimants.
The Plaintiffs/Respondents called only one witness in proof of their claim. The 1st Defendant/Respondent admitted the Plaintiffs/Respondents claim and offered no evidence. The 2nd and 3rd Defendants/Appellants, called two witnesses to testify on their behalf. At the end of the trial, the learned trial Judge found that:
(1) The Plaintiffs have discharged their burden of proof that they are entitled to compensation for their land compulsory acquired against the 2nd and 3rd Defendants only and
(2) The 2nd and 3rd Defendants have failed to discharge their own burden of proof of their defence that they had paid compensation to the Plaintiffs through one Akin Olaifa & Co.
The learned trial Judge at pages 121 – 122 of the record entered judgment for the Plaintiffs/Respondents against the 2nd and 3rd Defendants/Appellants jointly and severally in terms of their Reliefs 27(a) and (b)(i) and refused the Plaintiffs relief 27(c).
In relation to the claim of eleven million Naira being the sum approved by the 3rd Defendant as compensation to be paid to the Plaintiffs for the land acquired, the learned trial Judge observed at page 122 of the record as follows:
“In relief 27(b) Plaintiffs by their pleadings and oral evidence averred that a staff of the 1st Defendants I. M. Ekpa informed them that the Federal Government had approved the sum of N11 Million as their compensation and had released the sum of N3.66 Million to be paid as the 1st instalment. The 2nd and 3rd Defendants denied the averment in their statement of defence but did not adduce any evidence or contradict the averment of the Plaintiffs. The implication is that the averment of the Plaintiffs in this regard is unchallenged and established. This relief 27(b) (i) is therefore granted as prayed.”
As against this judgment, the 2nd and 3rd Defendants/Appellants filed a Notice of Appeal on 3/7/2007.
Appellant’s brief of argument was filed on 11/3/2008 while the Respondent filed their own brief of argument on 20/5/2008. The Appellants formulated four issues for determination as follows:
(i) Whether the judgment of the court was not against the weight of evidence.
(ii) Whether the failure to join Akin Olaifa as a party to the suit was fatal to the Plaintiffs case.
(iii) Whether the Plaintiff’s case was not speculative in view of the state of pleadings and evidence adduced by their sale witness.
(iv) Whether the learned trial Judge rightly assumed jurisdiction over the case in view of the fact that it was statute barred.
In dealing with this appeal, I will start with a consideration of Appellant’s issue NO.4, which touches on the assumption of jurisdiction by the lower court. On issue No. 4, learned Counsel for the Appellant submitted that the lower court lacked the jurisdiction to entertain the case as the Plaintiff/Respondent’s case was statute barred against the 2nd Defendant/Appellant, Engineer A. Aliyu who was the Controller, Federal Ministry of Works, Uyo at the time the case was brought. Appellant’s Counsel submitted that from the pleadings and evidence on record, the cause of action arose in March, 1999 vide Exhibit 4 dated 19th March, 1999, the 2nd Defendant’s letter to the Plaintiffs canceling the meeting they were to have to resolve the problem. And that having refused to meet, the Plaintiffs filed Suit No. FHC/CA/CS/2058/99 at Calabar on 2nd August, 1999 which metamorphosed to Suit No. FHC/UY/131/2003 upon the creation of Uyo Judicial Division of the Court – a period of more than four months. He submitted that having instituted this case more than 3 months upon the accrual of the cause of action against the 2nd Appellants, being a public officer the action was statute barred; consequent upon which the lower court has no jurisdiction over it.
Relying on the case of Olutola v. UNILORIN 2005 Vol. WRN pg. 22 at 28, learned Counsel for the Appellant submitted that having not had jurisdiction over the 2nd Appellant – Engr. U. Aliyu, the lower Court lacked the jurisdiction over the other parties, as the issue of jurisdiction cannot be compartmentalized.
In reaction to Appellant’s issue No.4, the Respondents submitted that the contention of the Appellants does not accord with the pleadings and evidence and that there was nothing to indicate the time when Exhibit 4 Was delivered to the Respondents. Further, that paragraphs 23, 24, and 25 of the Plaintiffs/Respondents Amended Statement of claim pleaded, facts which occurred after 19th March, 1999 when Exhibit 4 was dated, these facts include the proposed payment of the said compensation on 4th April, 1999, the filing of Suit No. HEK/57/99 at the Eket High Court to stop the Appellants from paying compensation to the wrong persons and the non-payment of compensation to the claimants in spite of the institution of Suit No. HEK/57/99 before instituting the suit, which culminated into this appeal. Learned Counsel for the Respondents said that the evidence of P.W.1 on these activities was not denied by any of the Appellant’s witnesses. And that in any event, limitation of time does not apply in cases of compensation for land or claim for labour. On this, learned Counsel referred to the case of FGN v. Zebbal Nig. Ltd (2003) 3 WRN pg. 11.
Beyond the submissions of Respondent’s Counsel on Issue NO.4, I would have thought that the simple answer to Appellant’s claim of limitation of action is that no such case was made out at the lower court. There is nothing in the pleadings or evidence of the parties which could suggest that the parties ever joined issues on the question of limitation of action. There is equally nothing in the record of this court to suggest that the Appellant sought leave of this court to raise fresh issues such as that of limitation of action in this court neither are there any new materials on record before this court to suggest that the parties shall contest a new issue of limitation of action before this court.
In these circumstances, the Appellants cannot now be heard to complain about the action of the Plaintiffs/Respondents being caught, if at all by the Public Officers Protection Law.
In the case of The Federal Government of Nigeria & 6 Ors v. Zebra Energy Ltd. (2002) 3 NWLR (Pt. 754) p. 471 at 498, when the Court of Appeal (Abuja Division) was faced with a similar problem D. Mustapher JCA (as he then was) delivering the leading judgment of the court had this to say:
“Now, the issue of the Public Officers (Protection) Act is afresh legal issue which did not arise for determination in the court below, and no leave was sought and obtained to raise the issue on appeal for the first time. Where a Defendant relied on a special defence like the Public Officers Protection Law or the statute of limitation, such a defence has to be specifically raised and pleaded. The Appellants in the instant case did not raise it at the trial they are deemed to have waived such a defence and had submitted to the jurisdiction of the court. Such an issue cannot without leave be raised in an appeal.”
See U.B.R.B.D.A. v. Aika (1998) 2 NWLR (Pt. 537) 326; Odubeko v. Fowler (1993) 7 NWLR (Pt. 6308) 637 …”
Clearly, it is also now rather late in the day for the Appellants in this case to complain on the Protection afforded them (if any) under the Public Officers Protection Act when no such issue was alluded to, pleaded, raised in evidence or canvassed at the court below. And, without any leave of this court sought or obtained to raise a fresh issue or adduce fresh evidence. Issue NO.4 is resolved against the Appellants.
The Appellants contention’ on Issue NO.1 is that the judgment of the learned trial Judge was against the weight of evidence. Appellant’s Counsel then said of the evidence of Etuk Benjamin Etukudo, the sole witness for the Plaintiffs/Respondents that there was nothing for the trial Judge to have relied upon to find for the Plaintiffs. That, at page 43 of the record, P.W. 1 gave evidence that the total land area acquired by the Government is 100 acres and that their own portion constitute 42.05 acres and that this witness never gave evidence of what amount they were entitled to being 42.05 acres out of 100 acres.
Appellant’s Counsel continued that P.W.1 also gave evidence that their Attorney Chief Eyo prepared valuation report of their land which formed basis to assess the compensation due to the Plaintiffs/Respondents by the Federal Government but this valuation report was not tendered. In contrast, said Appellant’s Counsel, DW2, Iniobong Nnah Akpan in his evidence in Chief at page 78 – 82 of the record stated that after the appointment of Akin Olaifa & Co by the Plaintiff, the Federal Government released the money for payment to the communities. That DW1 tendered the claimants forms, admitted as Exhibit 7A and 7B.
Learned Counsel for the Appellants then submitted that when the two sets of evidence are put on an imaginary scale that of the Appellants will outweigh the Respondents. This, he said will be so because even if the valuation report allegedly prepared by the Respondent’s Valuer Francis Eyo was not tendered as Exhibit before the court to assist the court to see the figures therein, no evidence was also led as to the actual amount of money in the valuation report not put in evidence.
The Respondents concede that a total of 100 acres of land was acquired for the Housing Estate out of which the Respondents land is 42.05 acres thereof. The pleadings and the evidence of the Respondents who are members of the families of Udoeyo Ette and Etukudo Etuk Ette, said Counsel Show that the Respondents appointed Francis Eyo & Partners to collect compensation for their acquired land that is 42.05 acres. The Respondents witness said nothing about the remaining 57.95 acres.
No claim for compensation for that remainder was placed before the court. Evidence on it was thus irrelevant. Respondents Counsel furthered that nowhere during the trial was it contended that the mandate of Francis Eyo and Partners included recovering compensation for the entire land acquired. Nothing was said about the claim, if any, of the families that owned the remainder of the land. And the information which P.W. 1 testified to receiving from Francis Eyo and Partners and from the Appellant as to the sum approved as compensation, to the understanding of the Respondents, related only to the mandate given to Francis Eyo & Partners over the Respondents. 42.05 acres of land. From these, said Respondents Counsel, it was the place of the Appellants to contradict P.W.1 during the trial by showing, for instance, that the approved sum covered the entire 100 acres of land. To the contrary, said Respondents Counsel, no such fact was pleaded, no such evidence was given.
The Respondents, Counsel added, had nothing to lose if that evidence was not supplied; it is the Appellant who had something to lose. Referring to Section 137 (2) of the Evidence Act, Respondents Counsel said by law, the onus of supplying that evidence rested on the Appellants and that legal argument, however brilliant cannot take the place of evidence. On the contention that the Respondents failed to tender the valuation report of Francis Eyo and Partners, Respondent’s Counsel said it was not the duty of the Respondents to tender same. That the evidence of P.W.1 which is unchallenged is that Francis Eyo and Partners prepared the valuation report and submitted it to the Appellants. That P.W.1 never said that he was given a copy of the valuation report. Counsel continues, the maker of the valuation report, Francis Eyo and Partners, and the recipient of same, the Appellants, were Defendants at the trial. They had ample opportunity to plead and tender the valuation report but they withheld it, knowing it to be unfavourable to their case. He urged the court to apply Section 149 (d) of the Evidence Act in resolving the issue in favour of the Respondents.
The submission of the teamed Counsel for the Appellants to Issue NO.1 seem to overlook the fact that the case between the parties at the lower court was not for proof, of compensation claim in stricto sensu but was indeed for a claim in the nature of liquidated money demand between the Plaintiffs/Respondents and the Defendants/Appellants. Indeed it was a claim for the sum of
(6) Eleven Million Naira, being the sum approved by the 3rd Defendant as compensation to be paid to the Plaintiffs for the land acquired.
The case of the Defendants/Appellants in this respect was that they received a power of Attorney by the Plaintiffs/Respondents in favour of Akin Olaifa & Co for the Plaintiffs claim of compensation after the Plaintiffs/Respondents have revoked the power of Attorney given to the 1st Defendant/Respondent Francis Eyoand Partners, that their money had been given to Akin Olaifa who in turn following his list of claimants have paid the ‘communities’. The response of the Plaintiffs/Respondents is that:
- Akin Olaifa is not our lawful Attorney.
- Before you purportedly paid our money to him we warned you vide Exhibit 3 that. Akin Olaifa was not our Attorney.
- So you have not paid us our compensation.
From the above, it would be clearly seen that neither the question of the acquired land area of the Plaintiffs/Respondents being 42.05 acres nor the content of the valuation report by Plaintiffs/Respondents Attorney Chief Eyo was an issue in the pleadings of the parties or before the lower court at anytime deserving of a decision. Those issues, now highlighted by the learned Counsel for the Appellants were irrelevant to the trial Court’s decision, as the parties by their pleadings did not join issues on those facts. It is trite law that a court has no powers to set up a case different from that which the parties have pleaded, brought to it and canvassed before it.
See, Bisiriyu Akinlagun & 3 Ors v. Taiwo Oshoboja & 1 Or (2006) 12 NWLR (Pt. 993) 60 at 81. If I must add, the Plaintiffs/Respondents claim in their relief 27(a) for:
(a) A Declaration that the Plaintiffs as landlords and shrine owners of the land acquired by the Federal Government for the establishment of the Federal Government Low Cost Housing Estate, Mkpok, Eket are entitled to compensation for the land acquired.”
Which is not denied by the Defendants/Appellants is indeed a claim under the Fundamental Rights Provision in Section 44 of the 1999 Constitution. By virtue of Section 44 of the 1999 Constitution, in order to acquire moveable property or interest in any immoveable property, prompt payment of compensation must be made and any person claiming such compensation has unlimited access to a court of law or tribunal or body having jurisdiction in that part of Nigeria.
This is because, the right to own property by an individual is well entrenched in our constitution and it carries with it, the right to dispose of the said property. Therefore, no one shall be deprived of his land unless the land is acquired compulsorily in accordance with the provisions of the Land Use Act. For instance, for overriding public interest or for public purpose by the Local Government and in such a case, compensation must be paid. Kukoyi v. Aina (1999) 10 NWLR (Pt. 624) 233, Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745, Elf Petroleum Nigeria Limited v. Daniel C. Umah and 4 Others (2007) 1 NWLR (Pt.1014) 44 at 66 – 67.
Consequently, Issue NO.1 is resolved as against the Appellants.
On Issue NO.2, learned Counsel for the Appellants submitted that the failure to join Akin Olaifa as a party was fatal to the case of the Plaintiffs/Respondents. Counsel reviewed the evidence of DW 2 and DW1 to support his argument on Issue No. 2 at page 82 of the record, DW 2 stated thus:
“The power of Attorney donated to the 1st Defendant was revoked because of the death of Francis Eyo. After appointment of Akin Olaifa by the Plaintiffs’ the Federal Government released money for payment to the Consultant to the Plaintiff that is Akin Olaifa in this case for payment to communities. Akin Olaifa paid the compensation to the communities. This can be seen in the Claimant’s form which is kept in the Ministry for record purposes. I identify the forms shown to me as the copies of the claimants’ forms.”
Appellant’s Counsel further submitted that DW1 succeeded in showing that some of the names of the people who authorized the institution of the suit were also among those who gave power of Attorney to the new Valuer Akin Olaifa who was paid by the Government. He submitted that if any doubt existed as to whether the present Respondents were among those who were paid by Akin Olaifa or not the doubt should have been resolved by the said Valuer Akin Olaifa. Counsel referred to the cases of Ayorinde v. Oni (2000) 75 LRCN 206 at 212 Nig. Eng. Ltd. V. Denap (2001) 92 LRCN pg. 3425 and submitted that the court under Order 12 of the Federal High Court Civil Procedure Rules ought to have directed that Akin Olaifa be joined as a party to the Suit in Order to resolve the question – who and who did he pay the moneys to.
In response to Issue NO.2 Respondents Counsel submitted that Akin Olaifa & Co. purportedly acted on behalf of people other than the Respondents. That the act of Akin Olaifa & Co on behalf of such persons has nothing to do with claim of the Respondents. The Respondents have no claim against Akin Olaifa & Co. They never appointed her to do anything. The compensation claimed is not due from her, but from the 2nd and 3rd Appellants through the 1st Defendant/Respondent., There is, thus, no basis for joining Akin Olaifa & Co as co-defendant. At best, Akin Olaifa & Co. is merely an agent of the persons who appointed her, against which persons the Appellants have no claim. Respondent’s Counsel added that there is no question of joining Akin Olaifa & Co. as a party to the case as suggested by the Appellants. That in the circumstances of the case, the Appellants had two options none of which they exercised.
First, they had the duty to call Akin Olaifa & Co as a witness to clarify the position of payments on compensation and also that the Appellants would have issued a third party notice to Akin Olaifa & Co. to indemnify them for any loss occasioned by the failure to pay compensation to all land owners, that is, if Akin Olaifa & Co. held herself out to the Appellants as acting on behalf of all the owners of the acquired land. Having failed to issue such notice, the Appellants must bear the brunt of their liability.
Respondents Counsel further submitted that nowhere during the trial did any of the Appellants witnesses testify that Akin Olaifa & Co. or any other person paid compensation to the Respondents. All that D.W.2 said in this connection is: “The Communities” gave Akin Olaifa & Co. the mandate to collect compensation for them. The Respondents gave her no such mandate and thus had no case against Akin Olaifa & Co. The person against whom the Respondents had a case is the ones who were sued.
The simple answer to Issue NO.2 is that the failure to join Akin Olaifa & Co is not fatal to the case of the Plaintiffs/Respondents. As earlier recognized by the learned trial, Judge, this issue has to deal with the dynamics of burden of proof in between the parties. The Defendants/Appellants admitted that:
(a) The Plaintiffs land now in Akwa Ibom State was acquired by the South Eastern State Government for use of the Federal Government.
(b) The Plaintiffs appointed 1st Defendant as their Attorney.
(c) They are liable to the Plaintiffs for compensation for their land.
(d) Chief E. E. Eyo that is, the Principal Partner of the 1st Defendant had died.
The Defendants/Appellants at the same time claimed that:
(a) The Plaintiffs appointed Akin Olaifa as their Attorney vides Exhibit 5 dated 29/12/1997 after the revocation of the power of Attorney in favour of E.E. Eyo following his demise vide Exhibit 6 dated 10/12/1997.
(b) The Federal Government paid Plaintiffs compensation to their Attorney, Akin Olaifa who in turn paid same to the communities as shown in the claimant’s forms which form part of the 2nd and 3rd Defendants records – Exhibits 7A and 7B. ‘”
The Plaintiffs/Respondents on the other hand through their evidence and by Exhibit 3 dated 6th April, 1998 wrote to the 3rd Defendant:
(1) Disclaiming Akin Olaifa & Co and the power of Attorney denounced to him to represent them and
(2) Reiterating and confirming the power of Attorney which they donated to the 1st Defendant Francis E. Eyo and Partners to act on their behalf.
The learned trial Judge found that from the evidence adduced by both parties, F. E. Eyo and Partners the 1st Defendant whom the Plaintiffs claim to have appointed their Donee and whom the 2nd and 3rd Defendants acknowledge to be Plaintiffs Donee was not paid the money. And that the 2nd and 3rd Defendants led evidence that in spite of the Notice by the Plaintiffs in Exhibit 3 which postdated Exhibit 6 and 5 they acted on the power of Attorney revoking 1st Defendant’s appointment as Attorney appointing Akin Olaifa as Plaintiffs Attorney (Exhibit 5) and paid Plaintiffs compensation money to Akin Olaifa.
The Defendants/Appellants did not tell the court why they ignored the warning in Exhibit 3, which they received after Exhibits 6 and 5 and chose to pay the Plaintiffs compensation to Akin Olaifa.
Consequently, the lower court became burdened with how to resolve the question of where the compensation money ended up it was the Defendants/Appellants that asserted in the affirmative that Akin Olaifa & Co has paid compensation money to the Plaintiffs/Respondents; the Plaintiffs/Respondents insisted, they have not been paid. In this circumstances, the burden of proof lies on the Defendants/Appellants to prove that the compensation money had indeed been paid to the Plaintiffs/Respondents. If there was any need to call Akin Olaifa & Co as a witness or to join the same as a party, that need was to be filled by the Defendants/Appellants and not the Plaintiffs/Respondents. It is the Defendants/Appellants that would lose on the contention that the Plaintiffs/Respondents have been paid by Akin Olaifa & Co., if Akin Olaifa & Co was not called as a witness or joined as a party.
It is trite and ancient that the burden of proof in civil cases rests upon the party whether the Plaintiff or the Defendant who substantially asserts the affirmative of the issue. Section 137 (1) of the Evidence Act Cap 112 LFN 1990 puts the matter thus:
“137(1) in civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given. If no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”
In the case of Chief Gordon Joe Young jack & Others V. Chief R. I. T. Whyte & 5 Others (2001) 3 SCNJ 55 at 68 the Supreme Court relied on the cases of Joseph Constantine Steamship Line Ltd. V. Imperial Smelting Corporation (1942) AC. 154 at 174 and Imana V. Robinson (1974) 3 – 4 S.C 1 and held that:
“The burden of proof in civil cases rests upon the party, whether Plaintiff or Defendants, who substantially asserts the affirmative of the issue. It is an ancient rule founded on consideration of good sense and it should not be departed from without reasons. It is fixed at the beginning of the trial by the state of proceedings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstance whatever, if when all the evidence, by whomsoever introduced is in the party who has the burden has not discharged it, the decision must be against him.”
In the instant case, it is the Appellants that are substantially asserting the affirmative of the issue. The burden of proof is on them to prove that they have actually paid the Plaintiffs. They should have been the one to bring Akin Olaifa either as a witness or a co-defendant to assist them to discharge the burden of proof on them to prove their case.
Issue NO.2 is resolved against the Appellants.
Appellants Issue NO.3 is whether the Plaintiffs case was not speculative in view of the state of pleadings and evidence adduced by their sole witness. In arguing Issue NO.3, learned Counsel for the Appellant went only a little further than the arguments he proffered on issue No. 1 as to weight of evidence. Appellant submitted that the pleadings and evidence of the Respondents is speculative and that the claim in paragraph 27 (b) (1) for N11 Million was in the nature of special damages, which must be strictly proved. Appellant’s Counsel submitted that by paragraph 18 of the Plaintiffs/Respondents Amended Statement of claim, the Respondents were still not sure of the exact figures approved and/or released for payment as compensation to the landlords of Mkpok.
Learned Counsel for the Appellants referred to the cases of Ivienagbor V. Buzuaye (1999) 70 LRCN 2256 at 2262, A.I.C. Ltd V. NNPC (2005) 129 LRCN 1678 at 1685, Gonzee Nigeria V. N.E.R.D.C (2005 128 LRCN 1540 at 1543 and Amobi V. Texaco (1972) 3 SC 104. First, to show that special damages must be strictly proved and also those courts do not act on speculation. Appellants Counsel also submitted that the alternative claim of the Plaintiff/Respondent that the court should assess reasonable compensation due to them to be N11 Million was cases secured.
In response to Issue NO.3 the Respondents submitted that the case at the trial court was not speculative. And that in the Amended Statement of claim, the Respondents made alternative claims for eleven Million Naira (N11, 000,000.00) being the sum approved as compensation due to them for their land acquired by the Appellants. That the claim in paragraph 27 (b) (ii) is a claim for a fixed and definite sum. The 1st Defendant/Respondent at the court below who supplied the figure admitted the entire claim of the Respondents including paragraph 17 of the Amended Statement of claim, wherein the averment was made. Also, according to Respondents Counsel, the reaction of the Appellants to the said paragraph 17 is contained in paragraph 14 of their Statement of Defence, which goes thus:
“14. Paragraph 16 – 18 of the Statement of claim is false.”
The law said Respondents Counsel is that an evasive traverse is an improper traverse. He relied on the cases of Okonkwo V. ZCB Nig. Plc (2003)8 NWLR (Pt. 82) 347 at 366 and Omin v. Etim (2003) 6 NWLR (Pt. 817) 587 at 595. The Appellant said. Respondents Counsel did not plead what they claim to be true, if the averment of the Respondents were false, the Appellants are deemed in law to have admitted such. And since facts admitted need no further proof, the evidence of P.W. 1 that Eleven Million Naira (N11, 000,000.00) was approved by the Appellant for payment to the Respondents as compensation was mere surplusage.
Moreover, said Respondents Counsel, none of the Appellant’s witnesses denied that the sum of Eleven Million Naira (N11, 000,000.00) was approved for payment to the Respondent as compensation.
The first thing to say in the determination of Issue No. 3 is that which I stated earlier in respect of Issue No. 1 that the Respondents claim before the lower court was in the nature of a liquidated money demand and not in the nature of proof of special damages as suggested by the learned Appellant’s Counsel-
The 6th Edition of the Black’s Law Dictionary at page 930 explains a liquidated claim as:
“Claim, amount of which has been agreed on by parties to action or is fixed by operation of law. A claim which can be determined with exactness from party’s agreement or by arithmetical process or application of definite rules of law, without reliance on opinion or discretion. Claim for debt or damages is “liquidated” in character if amount is thereof is fixed, has been agreed upon, or is capable of ascertainment by mathematical computation or operation of law.”
Clearly therefore Relief 27 (b) of the Plaintiffs/Respondents Amended Statement of claim is in the nature of a demand for a fixed and ascertainable sum from the Defendants/Appellants.
Now to the pleadings of the parties paragraph 17 of the Plaintiffs/Respondents Amended Statement of claim was couched as a bate waiting to entrap the Appellants and the Defendant/Respondent. It reads:
“17. About February, 1999, one I. N. Ekpa, a staff of the firm of F. E. Eyo & Partners, informed the Plaintiffs that the sum of Eleven Million Naira (N11, 000,000.00) as been approved for payment to the land owners. He further informed the Plaintiffs that Three Million, six hundred and sixty Thousand Naira (N3, 660,000.00) had been released as part payment. The 2nd Defendant, however, informed the people that only Nine Million (N9, 000,000.00) was approved and Three Million Naira (N3, 000,000.00) released. He also informed the Plaintiffs that he possessed a list of claimants which he read to the people of Mkpok, about March, 1998.”
What then was the reaction of the 1st Defendant/Respondent and the 2nd and 3rd Defendants/Respondents to the approved compensation sum now being claimed by the Plaintiffs/Respondents? The 1st Defendant/Respondent admitted Plaintiffs/Respondents paragraph 17 in paragraph 2 of his statement of defence as follows:
“2. The 1st Defendant admits paragraphs 3, 4, 10, 12, 13, 14, 17, 20 and 27 of the Statement of claim.”
The 2nd and 3rd Defendants/Appellants did not do better when in paragraph 14 of their Statement of defence, they reacted to Plaintiffs/Respondents paragraph 17 as follows:
“14. Paragraph 16 – 18 of the statement of claim is false.”
The reaction to paragraph 17 of the Plaintiffs/Respondents pleading by the 1st Defendant/Respondent is clearly an admission. The reaction to the same paragraph 17 by paragraph 14 of the 2nd and 3rd Defendants/Appellants is also an admission of the fact stated in paragraph 17 of the Amended Statement of Claim. The second admission is so much so because a mere denial or an averment in a statement of defence that the Defendant is not in a position to admit or deny paragraphs of the statement of claim amounts to insufficient denial or insufficient traverse to put the matter thus denied in issue.
Lewis & Peat NRI) Ltd. V. Akhimien (1976) 7 SC 157, Akintola V. Solano (1986) 2 NWLR (Pt.24) 598, Otago V. Sunmonu (1987) 2 NWLR (Pt. 58) 587, Ajao v. Ajao (1986) 5 NWLR (Pt. 45) 802. Bala James Ngillari V. National Insurance Corporation of Nigeria (1998) 9 NWLR (Pt.560) 1 at 18.
The Plaintiffs/Respondents were no longer obliged to render proof to their paragraph 17 in relation to the sum of N11 Million Naira approved for compensation of their land, the paragraph haven been admitted or improperly traversed by the Appellants. This is because the effect of admission in pleadings is to relieve the other party of the necessity of proving the matters admitted.
Clearly, when both parties have agreed about a particular matter in their pleading such matter need not be proved and they should accept such an agreed fact as established. Section 75 of the Evidence Act Cap 112 LFN 1990 puts the matter thus:
“No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time, they are admitted by their pleadings provided that the court may, in its discretion, require the facts admitted to be proved otherwise then by such admissions.”
See also, Friday Kamalu & Ors. v. Uka Umunna & Ors (1997) 5 NWLR (Pt. 505) 321, Kenling Holdings Ltd. V. R. E. Invest Ltd. (1997) 11 NWLR (Pt. 529) 438.
In the instant case, the complaint of the Appellants that the Respondents case is speculative is unfounded. Apart from the admission by the Appellants, of the core pleadings of the Respondents, the Respondents still called PW1 who also gave uncontradicted evidence of the sum claimed by the Respondent from the Appellants.
Issue No. 3 is also resolved against the Appellants.
Having resolved all the four issues in this appeal against the Appellants, the appeal lacks merit and it is hereby dismissed. The judgment of Olotu, J. sitting at the Federal High Court (Uyo Judicial. Division) Akwa Ibom State in Suit No. FHC/UY/65/13/103 delivered on 27th June, 2007 is hereby affirmed.
There shall be N10, 000.00 in favour of the Respondents.
Other Citations: (2008)LCN/2964(CA)
