Major James M. Ado (Rtd) V. Hon. Commissioner For Works, Benue State & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
NDUKWE-ANYANWU, J.C.A.
By an order of this Honourable Court dated 17/11/98, three separate appeals filed by the parties were consolidated.
   The first appeal filed by the appellant was against the judgment of Honourable Justice D. T. Ahura of Benue State High Court dated 23/4/97.
   The appellant therein appealed against the quantum of damages awarded to him.
The second appeal by the appellant was against a ruling delivered by the same Judge on 22/01/98 against his decision granting a stay of execution.
   The third appeal was filed by the respondents against a ruling dated 01/08/97 wherein their application to set aside the judgment was refused.
   The appellant had sued the respondents claiming a total sum of One million, seven hundred and thirty five thousand, three hundred and thirty-five Naira (1,735,335.00) being sum for special and general damages. Specifically, the appellant claimed N735, 335 for special damages and 1 million naira for general damages.
Judgment was given against the respondents and the appellant was awarded a total of N107,000.00. The appellant being dissatisfied appealed against the quantum of the damages and formulated 3 issues for determination.
- Is the appellant entitled to damages of N70, 000.00 (seventy thousand naira) representing amount lost in the course of ejection (grounds 1, 4 and 5 of the grounds of appeal).
- Did the trial court wrongfully deny the appellant damages following unlawful and forceful ejection? (Grounds 3 and 6 of the grounds of appeal).
- Was the trial court in error in assessment of quantum of damages for unlawful termination of contract at 1 month in lieu of notice? (Ground 2 of the grounds of appeal).
Issue One
The appellant contended that he was entitled to N70,000.00 representing cash he lost in the cost of his forceful ejection from his quarters. The appellant gave uncontradicted evidence to the fact that he had N70,000.00 in his quaters on that day. The defendants/respondents did not put in their defence and as such the evidence of the plaintiff/appellant required minimum proof.
   The appellant contended that the evidence of his missing N70,000.00 was unchallenged and as such proved. See the cases of Torti Ufere v. Ukpabi Chris & 2 Ors. (1984) All NLR 185, (1984) 1 SCNLR 214; Ekpe N. E. v. Fagbeni S. A. (1978) All NLR 107, (1978) 3 SC 209; H. N. Nzeribe v. Dave Engineering Co. Ltd. (1994) 9 SCNJ 161; (1994) 8 NWLR (Pt. 361) 124.
“It is elementary that special damages are such that the law will not presume to flow or infer from the nature of the act or breach of duty complained of by the plaintiff as a matter of course. They are exceptional in their character and connote specific items of loss which the plaintiff alleges are the result of the defendant’s act of breach of duty complained of. Unlike general damages, special damages must be claimed specifically and strictly proved and the court is not entitled to make its own estimate of same” – per Iguh, JSC in Benjamin Obasuyi, Nigeria Construction Ltd. v. Business Ventures Ltd. (2000) 12 WRN 112 at 129; (2000) 5 NWLR (Pt. 658) 668 at 693-694.
   The rule with regard to the award of special damages is that the burden of proof is on anyone claiming to prove strictly that he did suffer such special damages claimed. What is required is that the person claiming it should establish his entitlement to the special damages claimed by credible evidence of such a character as would establish that he, indeed, is entitled to an award under that head.”
   The trial court rightly denied the appellant the award of N70,000.00 claimed as cash lost in the ejection. Even though the appellant testified that he did a contract for the State Government and made a profit of N43,000.00. Apart from that statement, the appellant was not able to prove that he infact carried out the contract as he failed to produce the contract papers, the mode of payment of the contract and why the money was kept in the house. This subhead was not proved to the satisfaction of the trial Judge.
   It would be recalled that the extension of time for the appellant to pack out expired on 31/13/94. The ejection was carried out on 04/01/05.
   The appellant’s counsel submitted that the appellant lost N70,000.00 during his illegal ejection from his quarters. He went on to say that this piece of evidence was unchallenged and that unchallenged evidence is taken as established.
   The general principle of law is that unchallenged oral evidence is sufficient proof.
   However, in this case the appellant also gave evidence of his impecunious state even though there was evidence of his having landed property.
   The trial Judge had a duty to assess and evaluate evidence proffered by the appellant. In so doing, the trial Judge found as a fact that the appellant did not prove to his satisfaction that he indeed lost N70,000.00. The trial Judge had to assess from the contradicting evidence of the appellant and distil what the true position was.
  It is trite law that the appellate court would not ordinarily interfere with findings of fact of the trial Court.
In the instance case, I am satisfied that the trial Judge evaluated properly the evidence before him. I do not intend to interfere with his findings.
   The appellant failed in this issue to prove that he lost N70,000.00 during the ejection and I so hold.
Issue Two
   Did the trial court wrongfully deny the appellant damages following unlawful and forceful ejection?
   The appellant in para. 46 of his statement of claim claimed a total sum of N 1m as general damages arising from the illegal ejection from his quarters.
   It would be recalled that the State Government on compassionate grounds extended the time within which he was to find alternative accommodation form 04/10/94 to 31/12/94. The ejection was carried out on 04/01/95 some days after the expiration of the time extended.
   The appellant after being ejected left his property outside for several weeks before carting them away.
   The trial Judge found as a fact that even though he was ejected, the appellant failed to mitigate his losses if any. The trial Judge after evaluating his evidence did not award him any amount on general damages. His reasoning being that he should have mitigated his losses if any. See Obot v. C.B.N. (1993) 9 SCNJ (Pt. 11) 268; (1993) 8 NWLR (Pt. 310) 140 at 145.
“It is the duty of the trial Court to assess damages even if its decision goes against a plaintiff.”
   The trial Court had assessed the damages and decided not to award anything to the plaintiff. I agree with that finding and have no reason to interfere.
   The appellant was given an extension of time to pack out but he refused to or neglected to do so. Any losses incurred are of his own making. A diligent person would have recovered his property that same day rather than abandon it there for days at the mercy of thieves and weather.
   I do not have any reason to interfere with the findings of the trial Court and I so hold. The appellant is only entitled to N 107,000.00 awarded being sum for items proved to have been carted away.
Issue Three
   Was the trial Court in error in the assessment of the quantum of damages for unlawful termination of contract at 1 month in lieu of notice.
   The appellant claimed N78,000.00 representing i.e. salaries for 13 months. The appellant tendered exh. 1 which is the contract agreement governing the employment.
Clause 7(1) of the contract of employment provides.
“The Government may at any time determine the engagement of the person engaged on giving him three months’ notice in writing or on paying him one month’s salary.”
   The trial court found as a fact as per clause 7(1) that the respondent reserved the right to determine the contract of employment by giving him three months notice or payment of one month’s salary in lieu of notice. The lower court went ahead and awarded one month’s salary in lieu of notice since the respondent failed to give the required three months notice as envisaged by clause 7(1) of the contract of employment exh 1. See the case of Nigeria Airways Ltd. v. Joseph Aiyeoribe (2001) 17 WRN 40; Onnoghen, JCA (as he then was) referred to the case of Obot v. C.B.N. (1993) 8 NWLR (Pt. 310) 140 at 162 – 163 and stated the proper relief in an action for wrongful dismissal.
   The Supreme Court in Obot v. CB.N (supra) cited the case of Denmark Production Ltd. v. Boscobel Productions Ltd. and held,
“That an employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he should have earned to the end of the contractual period he must sue for damages for wrongful dismissal and must of course mitigate those damages as far as he reasonably can.”
In Obot v. CB.N (supra) the Supreme Court went ahead to hold
“That the appellant therein, having been in the service of the respondent for 25 years would, had his appointment been properly terminated, be entitled to a month’s notice of the termination or a month’s salary in lieu of notice. That the general damages which the appellant is entitled to amount, to one month’s salary and in addition he is entitled to “pension and gratuity.”
   In the present case, the trial court was right in his interpretation of exh. 1 clause 7(1). The appellant was entitled to three months notice or one month’s salary in lieu. The respondents did not give the appellant the three months notice so he was rightly entitled to one month’s salary in lieu. The trial court was right in awarding the one month’s salary in lieu and not more. The appeal failed on this issue and is hereby dismissed together with its ground of appeal.
   The appellant failed in all the three issues canvassed in the main appeal and I so hold. I hereby dismiss the appeal in its entire entirety.
   Appellant’s appeal against the ruling, for stay of execution. The appellant also filed an appeal against the interlocutory ruling of the trial Judge delivered on the 22nd day of January, 1998 against the grant of stay of execution.
   The appellant formulated only one issue for determination set hereunder.
“Did the respondent show exceptional circumstances that would warrant a stay of execution?”
   The trial court in its discretionary powers granted a stay of execution in this matter.
   From a plethora of decisions of the court, the emphasis has been whether there are special or exceptional circumstances to warrant a stay of execution. See Balogun v. Balogun (1969) 1 All NLR 39; Khalil v. Oredein (1985) 3 NWLR. (Pt. 12) 371; Okafor v. Nnaife (l987) 4 NWLR. (Pt. 64) 129.
   It is trite that the categories of special or exceptional circumstances are not exhaustive. See also Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. (l980) 5 – 7 S.C. 60.
The important question in any application for stay is whether the applicant has exhibited any special or exceptional circumstance to warrant granting a stay in his favour pending the determination of his appeal. In Balogun v, Balogun (supra) Coker, J.S.C. had this to say:
“We are in full agreement with the principle that in order to obtain a stay of execution of judgment against a successful party, an applicant must show substantial reasons to warrant a deprivation of the successful party of the fruits of his judgment by the Court. We are in no doubt whatsoever that where grounds exist on the motion suggesting a substantial issue of law to be decided on the appeal in an area in which the law is to some extent recondite and where either side may have a decision in his favour, such substantial grounds as would warrant interference clearly exist.” See Olatunbosun v. Anenih (2000) 4 NWLR (Pt. 653) 474.
   In the present case, the applicants filed an appeal on grounds of law which did not require the leave of court so to do.
   The granting of a stay is a discretionary power which is exercised by both trial and appellate Courts. See the case of Nzeribe v. Dave Eng. Co. Ltd. (1994) 8 NWLR (Pt. 361) 124.
“The exercise of jurisdiction to stay execution is a matter of discretion of the Court which depends on the facts and circumstance of each case. The general principle is that an appellate court would not; generally question the exercise of discretion by the trial court merely because it would have exercised the discretion in a different way if it had been in the position of the lower court. The appellate court will be very slow to interfere with the discretion of a trial Judge unless it appears that the result of the order made below will defeat the rights of the parties altogether or that the trial Judge gave no weight or sufficient weight to important consideration or that such an exercise was tainted by some illegality or substantial irregularity. In such cases, an appellate court has the power to review such an order and it is its duty to do so.”
   In the instant case, the trial Judge gave the reasons for granting a stay of execution pending the determination of the appeal. He stated inter alia
“I have looked at the notice and grounds of appeal and they raise substantial issues of law. While the principle of fair hearing and lack of jurisdiction involved, may appear to be fairly well known, then practical application like in this case pose considerable difficulties.”
   I do not find any reason to interfere with the exercise of the discretion of the trial court. I, therefore, uphold his order for a stay of execution.
   The appeal on the ruling for stay of execution is hereby dismissed.
   Respondent’s Appeal.
The respondent in his own appeal, appealed against the ruling of the trial Judge for extension of time within which to apply to set aside his judgment delivered on 23/04/97.
The respondent formulated 2 issues for determination set hereunder.
Issue One
This issue relates to the refusal to extend the time for respondent to apply to set aside the judgment.
The facts leading to this application is as follows:
“The defendants/respondents were duly served the originating processes in this suit. The defendants/respondents in fact cross examined PW1 and PW2 on the 22/03/96 before the case was adjourned to 10/06/96.”
   On the 10/06/96, the court did not sit. However, both counsels took dates for continuation of hearing.
   On the 6/12/96, the defendants and their counsel were absent. PW3 was taken and the court adjourned to 11/02/97 for address. On 11/02/97, the defendants and counsel were still absent.
   The trial court subsequently delivered a considered judgment on 23/04/97.
The defendants’ counsel then brought an application to set aside the judgment on 26/06/97. This was more than two months after the judgment was delivered.
   Order 37 rule 9 of the Benue State High Court Rules states;
“Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem just upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”
For purposes of argument, the respondents’ counsel stated as follows:
“3(e) that on 2/6/97, he was served with the record of proceedings in this case by R. A. Mom Esq., who is counsel for the plaintiff.
(f) That on going through the proceedings, he discovered that it was conducted in the absence of the applicants and their counsel.
(g) That he lost track of the proceedings after adjournment of 22/3/96.
(h) That thereafter, he was not served to appear in Court on any subsequent adjournment…
(i) That he became aware of the judgment long after it was delivered.”
   The respondent’s counsel gave no reason for the delay in putting up his application 24 days after he claimed he was aware of the judgment against them. The law states that a judgment may be set aside for good cause shown (emphasis mine).
   The respondents showed no good cause to enable the trial Court use its discretion to grant any extension of time within which the respondent may apply to set aside its judgment. That being the case, the trial Judge was right in refusing an extension of time and I so hold.
Issue Two
   This issue relates to the failure of the court in serving fresh hearing notices on the respondents which led to their absence at the trial.
   It would be recalled that the defendants/respondents entered appearance and filed their statement of defence.
The defendants/respondents also participated in the trial and cross examined two prosecution witnesses.
The plaintiff/appellant and the defendants/respondents counsel took dates on the day the court did not sit. Thereafter the defendants and their counsel never appeared again until judgment was delivered.
   This issue to my mind should not be canvassed as the appeal is against the ruling of the trial Court extending time. The leave was refused and I hold that it was rightly refused.
   The respondents/applicants are asking for extension of time to apply to set aside the judgment. I agree that the court has discretionary powers to extend time but what are the materials placed before it to exercise that discretion?
   The defendants/respondents counsel state that he was served with the record of proceedings on 2/6/97 and he could only file on 26/06/97. A clear 24 days after. This definitely is not the act of a diligent counsel.
   Secondly, the defendants/respondents counsel said that he only found out that the trial was conducted in the absence of the applicants and their counsel. This to my mind is a lame excuse as he ought to have known that he did not participate throughout the trial as he said in his own words:
“I lost track of the proceedings after adjournment of 22/3/96.”
   The general rule is that for a judgment to be set aside as a default judgment, the following ingredients must co-exist to enable the court exercise its discretion judicially and judiciously. See the case of S & D Const. Co. Ltd. v. Ayoku (2003) 5 NWLR (Pt. 813) 278.
Amongst other things, the court must consider the following
“(a) The reasons for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence;
(b) Whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists;
(c) Whether the latter party (i.e. in whose favour the judgments subsist) would be prejudiced or embarrassed upon an order for rehearing of the suit being made so as to render such a course inequitable;
(d) Whether the applicant’s case is manifestly unsupportable; and
(e) Whether the applicant’s conduct throughout the proceedings, that is, from the service of the writ upon him to the date of judgment has been such as to make his application worthy of a sympathetic consideration.”
See also Williams v. Hope Rising Voluntary Funds Society (1982) 12 S.C. 145.
   The explanation given by the defendants/respondents are not satisfactory to enable the court set aside its own judgment.
   Having taken the date with the plaintiff/appellant’s counsel, he is aware of the next adjourned date and cannot be waiting for a hearing notice.
   Counsel and litigants should be diligent in the conduct of their cases. It would be gleaned from the defendants/respondents counsel that they have not conducted themselves well throughout the duration of the proceedings and as such do not deserve a sympathetic consideration.
   The defendants/respondents had the opportunity to present their case, but failed to utilize the opportunity afforded them to ventilate their case. They cannot thereafter blame their adversary or the court for their failure as they had been afforded a fair hearing.
   The Court cannot order a rehearing of this case as it would prejudice and embarrass the plaintiff/appellant. See also the case of Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144 where Niki Tobi, J.S.C. succinctly put
“Fair hearing is fair hearing when and if it is fair to both parties. This is because the constitutional principle of fair hearing is for both parties in the litigation. In other words, fair hearing is not a one way traffic but a two-way traffic in the sense that it must satisfy a double carriage-way, in the context of both the plaintiff and the defendant or both the appellant and the respondent.
The court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. To do this, will amount to injustice.”
See also Muhammed v. Kpelai (2001) 6 NWLR (Pt. 710) 700 where Mukhtar, J.C.A. (as she then was) stated:
“A party who wants to be absolved from liability must be conscientious and vigilant in defending his case, even if his counsel is not in court to follow the progress of the case.
Equity aids the vigilant and not the indolent.
   A party who deliberately refuses to be an active part of the trial process, does so at his own peril for if at the end of the day the end result of a case is not in his favour, he has himself to blame.”
The miscarriage of justice is a double-edged sword that operates both ways. A party cannot hold the other to ransom and expect justice to lean towards him only.”
   The end result of this appeal is that it fails in its entire entirety and it is hereby dismissed.
   The judgment and the two rulings of the trial court are hereby affirmed. I make no orders as to cost. Parties should bear their cost.
Other Citations: (2007)LCN/2199(CA)
