Transkomplet (Nig.) Ltd. V. Mr. E. I. Galadinia (1998)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J .C.A.
The action leading to this appeal was commenced at the High Court of the Federal Capital Territory Abuja hereinafter called trial court. There the plaintiff, herein respondent, claiming as per writ of summons damages against the defendant, now appellant, in the sum of N1,995,000.00 (one million, nine hundred and ninety five thousand naira) as special and general damages arising from the escape of rock pellets through blasting by the appellant. The said respondent’s house was located at Asokoro Residential District. The defendant was a civil construction engineering firm awarded the contract by the Federal Government of Nigeria to construct the access roads within the Asokoro District, Abuja, The construction of the said roads involved the blasting of rocks to make way for the access ways. It was in the cause of blasting of rocks within the vicinity where the plaintiff’s house was located that the cause or action arose.
Issues were neatly joined. Pleadings were then ordered, settled and served.
After the exchange of pleadings, the claims of the plaintiff now respondent, in their final amended statement of claim, which surely supercedes the writ of summons reads as follows:
“Whereof the plaintiff claims for the damages done to the properties situate at plot No. 368 Cadastral Zone A-4 Asokoro Abuja.
(a) For repairing the damaged properties the main house and boys quarter – N1,700,000.00 (one million seven hundred thousand naira),
(b) General damages N3,695,000.00).
Alternatively
(a) Payment of the current price of the main building and the boys quarters N2,630,387. 15.
(b) General damages – N3,695,000.00.
After the hearing in earnest and consideration of parties’ respective case, the learned trial Judge, Saleh C.J., in a reserved judgment found for the respondent in these terms on p42 of the record of proceedings.
“Consequently I find for the plaintiff for special damages as in Exh. 2 together with plaintiff evidence comes to N2.8million and N800,000.00 loss of revenue. I enter judgment in favour of plaintiff.
against the defendant in the sum of N2.8 million as special damages.
For general damages plaintiff claims N3.6 million. I will give plaintiff general damages assessed at N200,000.00 totalling in all N3 million.”
Dissatisfied with the above judgment, the defendant appellant herein lodged an appeal to this court. He filed a notice of appeal containing the following grounds of appeal. In view of the arguments on the competency or otherwise of the grounds of appeal they are reproduced hereunder with their respective particulars, thus:
Grounds of appeal
- The learned trial Judge erred in law and on facts and applied wrong principles of law in the assessment and determination of quantum of damages and wrongly awarded the plaintiff N3m (three million naira) contrary to the evidence adduced before the court.
Particulars of error
(a) That the learned trial Judge contrary to the rules of pleadings that particulars of special damage must be specifically pleaded and must be proved, specifically awarded specific damages to the plaintiff whereas the plaintiff did not plead the particulars of any specific or special damage and did not adduce any evidence entitling him to any special or specific damage.
(b) That the learned trial Judge misdirected himself in law and upon facts when he referred to items which in law amounted to general damages and erroneously awarded same as special/specific damage.
(c) That the learned trial Judge erroneously relied on Exhibit 3 dated April, 1985 and Exhibit 2 as the basis of the award of damages wherein the plaintiff’s statement of claim and address in chief showed that the acts of the defendant complained about occurred in 1988 wherein the exhibits were made in 1985.
(d) The learned trial Judge erred in law and on fact when he relied on Exhibits 2 and 3 as the basis for the award of special/specific damages whereas the said exhibits did not relate to any act of the defendant and did not contain any special proof or basis of assessment of quantum of damages caused the plaintiff and is completely unrelated to the plaintiff’s claim.
(e) That the assessment of damages by the court was completely unrelated to the statement of claim, the evidence in chief and the exhibits tendered and admitted by the lower court.
(f) The learned trial Judge erred when he awarded N3m damages contrary to the fact that the plaintiff did not adduce any expert evidence/technical report or any report whatsoever to prove that there was structural and other damages to his property as a result of the blasting by the defendant and no bills for quantities or other evidence or cost of repair was adduced by the plaintiff to aid the court in assessing the N3m damages.
- The learned trial Judge erred in law and on facts in overruling the submission of counsel to the defendant to the effect that the plaintiff had not made out any case or adduced sufficient evidence on quantum of damages to warrant the defendant to call witness/defend the action.
And or in the alternative
The learned trial Judge erred in law in allowing the parties to make submission on non suit where the defence had not filed its amended statement of defence and had called no witness or led any evidence at all.
Particulars of error
(a) The defendant had not filed any amended statement of defence in reply to the amended statement of claim.
(b) The defendant was not put to his election by the trial Judge on whether they intended to call evidence.
(c) The learned trial Judge did not extract an undertaking from the defendant that no further evidence would be adduced if the submission was over-ruled.
The learned trial Judge erred in law and or misdirected himself when in overruling submission of the defence solicitor, he proceeded to award judgment in favour of the plaintiff contrary to the defendant’s right to fair hearing under the Constitution of the Federal Republic of Nigeria.
Particulars of error
(a) The learned trial Judge in overruling the defence ought to have directed the defence to defend the action rather than proceeding to award judgment.
(b) The learned trial Judge erred in law in taking argument on non suit and proceeded to award judgment where defence did not join issue on facts as per the amended statement of claim, call no witness and led no evidence whatsoever.
(c) The learned trial Judge breached the fundamental human right of the defendant where the defence was not put to their election and no undertaking extracted that defence would call no further evidence to defend the action.
At the hearing of the appeal, learned counsel for both parties adopted their respective briefs; they made the following brief oral submission before us in further amplification of the case of their respective clients thus:-
Mr. Aigbonoga contended that the burden of proof rests on the person who asserts same. The respondent as plaintiff in the court below did not discharge that burden placed on him by the law. He cites section 134 of Evidence Act. He then urged on us to allow the appeal and order a retrial.
Chief Amupitan submitted that it was wrong for the appellant’s counsel to have formulated more than one issue from one ground. He argued that only one issue can be formulated from a ground: In a nutshell he argued that the appellant’s counsel formulated issue number one from ground I above, while issue number two is also distilled from grounds 1,2 and 3.
Chief Amupitan further argued that it was legally unlawful for the appellant to formulate, in their reply brief, a fresh issue. It is incompetent for them to do so. He relies on Imonikhe v. Attorney-General Bendel State (1992) 7 SCNJ P. 197; (1992) 6 NWLR (Pt.248) 396. He then urged this court not to order for any retrial.
Learned counsel for the appellant, in a short reply on points of law, denied formulating any fresh issue in their appellant’s reply brief. He added that they are only responding to the issues raised in the respondent’s brief.
The appellant’s brief was deemed filed by the order of this court on 4/1 0/95 and the appellant’s reply brief was similarly deemed filed on 5/5/97. Both were adopted by the appellant. The respondent’s brief, on the other hand was deemed properly filed and served on 18/9/96 and it was duly relied and adopted by the respondent’s counsel.
The appellant formulated the following two issues arising from the grounds of appeal filed thus:-
(1) Having found that the plaintiff was entitled to have his house restore (sic) to its position before the damage, on whom lies the burden of proof “onus probandi” to prove degree/quantum of damage done to the house, the special and general damages recoverable therefrom and whether the learned trial Judge applied the right principle of law in the assessment and award of general and specific damages.
(2) Whether the defendant’s constitutional right to fair hearing was breached by the procedure adopted by the court in arriving at the judgment thereby occasioning mis-carriage of justice.
The respondent on p.15 of their brief respectfully adopted issues 1 and 2 as formulated by the appellant and refused to formulate their own. In the circumstance the law is that the respondent will be taken to have adopted the issue formulated by the appellant in his brief. Agbai v. Okagbue (1991)7 NWLR (Pt.204) 391 at 42422 per Karibi- Whyte, JSC to the effect that a respondent who filed brief of argument but failed to formulate issues for the determination therein will be taken to have adopted the issues formulated by the appellant in his brief.It appears to me that if the respondent’s contention that the above three grounds were incompetent then it would, out of necessity, affect the jurisdiction of this court to hear and determine this appeal. For that reason I think I should deal with the matter in detail to see whether or not this court could have jurisdiction to hear this appeal.
Learned counsel for the appellant had argued their issues formulated from the grounds of appeal filed. The respondent has raised an objection on the ground that grounds 1,2 and 3 from which the two issues were distilled are incompetent. He urged this court to strike these grounds out and to hold that the appellant’s formulation of issues based on those incompetent grounds cannot stand. The objection on these grounds of appeal were said to be fundamental and it affects the jurisdiction of this court.
The main thrust of the objection is that the three grounds in question are of fact, mixed law and fact. That being the case the appellant is supposed to seek leave before he can properly file them. If they were grounds of law per se there was no need to seek leave before they can be filed.
It is clear that where the ground of appeal is on law alone then it is as of right and does not require leave of either court below or this court. Section 220(1) and (b) and 221 (1) Laws of the Federation (Enactment) Act 1990, Cap. 62 says:
“220(1) An appeal shall lie from decisions of a High Court to the Federal Court of Appeal as of right in the following cases;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
There are other situations where an appeal cannot be as of right. In any of such situations leave must be sought and obtained before grounds of appeal can be properly and validly filed. For example where a ground of appeal is of facts, or fact and law then it is mandatory on the appellant to seek leave. Section 221 (1) says:-
“Subject to the provisions of section 220 of this Constitution, an appeal shall lie from decisions of a High Court to the Federal Court of Appeal with leave of that High Court or the Federal Court of Appeal.”It is clear, submitted learned counsel for the respondent, that from these two provisions (sections 220 and 221 of the 1979 Constitution) if the ground of appeal is of law alone it needs no leave because it is of right, but once it is of fact, or fact and law, leave of court is mandatory. He refers also to the judicial interpretation of these two sections by the Supreme Court in the case of Adeyemi v. Y.R.S. Ike Oluwa & Sons Ltd. (1993) 9 SCNJ 293; (1993) 8 NWLR (Pt.309) 27 per Uwais JSC as he then was.
Two issues have to be resolved before I make my mind known:-
(a) Is it a fact that these three grounds were filed without leave of either the High Court or this court sought and obtained?
If the answer to the above is in affirmative
(b) Is it true in fact that the said grounds of appeal are not law alone?
I have followed the arguments of both counsel and scanned through the record of proceedings and found out as a fact, which cannot be altered, that the appellant did not seek and obtain leave of either court before filing these three grounds of appeal. He felt that it was quite unnecessary and uncalled for to secure any leave.
On the second issue posed by me the appellant insisted that all the three grounds under consideration are grounds of law simpliciter and he can therefore file them as of right without the necessity of seeking for any leave under the law.
It is necessary to consider the three grounds of appeal said to be affected. In so doing, I believe it may not be out of place if I juxtapose same with their particulars having in mind that whatever epithet or application given to a particular ground if appeal by the appellant cannot be the determining factor. The real issue, for example where the question is whether a particular ground is “a ground of law” is to consider and analyse its particulars. In otherwords, before one can determine whether a ground of appeal is one of law or fact one must look at the particulars assigned to it. My learned brother Edozie, JCA in the case of ACB v. Elosiuba (1991) 3 NWLR (Pt.178) 133 at p. 146 has stated thus:-
â€?Although the above two grounds are described as being errors in law, it is well established that the decision on the point whether a ground of appeal raises questions of law alone does not depend on the label an applicant gives to the ground in question. Such a decision involves an examination of the ground of appeal as framed together with the particulars thereof. – Nwadike and On. v. Clews Ibekwe and ors. (1987) 11-12 SCNJ p. 14; (1987) 4 NWLR (Pt. 67) 718; U.B.A. Ltd v. Stahbau C.M.S.H. (1989) 6 SCNJ P.I; (1989) 3 NWLR (Pt. 110) 374 and Tilbury Construction Company Limited v. Ogunniyi (1988) 2 NWLR (Pt. 74) 64.”
Finally on this point the Supreme Court has decided that:-
“It must be emphasised that a ground does not translate into a ground of law because it [boldly says] so. There must be clearly and unambiguously shown reasons why the alleged error of law was made. The ground as well as the particulars must point unequivocally at the error in law. If there are grounds purportedly on error in law and in actual fact are based on facts, this court will not have jurisdiction to entertain them if filled without leave, as if will be against S. 213(3) of the Constitution to entertain such grounds. It is a fundamental issue of jurisdiction and this court has no discretion to invest itself with jurisdiction denied it by S. 213(3) of the Constitution. – Akwiwu and anor v. Sangonuga (1984) 5 S/C 184. 186;: Erisi v. Idika (1987) 4 NWLR (Pt.66) 503, 511…? Per Belgore JSC in Tilbury Construction v. Ogunniyi (1988) 2 NWLR (Pt. 74) 64/70.I have closely considered the said three grounds and found that on the face of them they are mainly grounds of law even though inelegantly couched. The particulars substantially questioned the wrong application of law by the learned trial Judge. The principles of law in assessment of quantum of damages are either at large or wrongly applied. For example, it was said that the learned trial Judge awarded special damages where same has neither been pleaded nor proved by evidence. The trial court, particulars further revealed, relied on items suitable for general damages and erroneously awarded special and or specific damages on them.
It goes without saying therefore that the finding of the learned trial Judge is clearly contrary to the evidence. Again it is obvious that some other vital issues of fact or principles crying for examination and or consideration and which were not done. In such situation question of facts of mixed facts and law are raised. One cannot therefore say with degree of certainly that a question of law alone has been raised. It is the law that where the finding of the learned trial Judge is contrary to the evidence or issue before that court then question of law and fact was raised. In other words, there are number of important issues of fact that must be examined and decided. That being the case such ground is one of fact or at least of mixed law and fact – Ogbechie v. Onochie (1986) 3 S/C p34/56; (1986) 2 NWLR (Pt.23) 484; Paul Nwadike & 2 ors v. Cletus Ibekwe (1987) 4 NWLR (Pt. 67) p. 718 at 744. So also where a court below misunderstood the law in some relevant particular any complaint as such speaks of question of fact and law. It was stated in the case of:- Edwards (Inspector of Taxes) v. Bairstow and another (1955) 3 All ER48 that” .. All these cases in which the facts warrant a determination either way can be described as questions of degree, and therefore, as questions of fact”. In the same vein Eso JSC, has this to say at p. 58 and p. 491 respectively of the case of Ogbechie v. Onochie supra:-
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the ground reveals a misunderstanding by the lower tribunal or the law, or a misapplication of the law to the facts already proved of admitted, in which case would bequest ion of law where however, the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, that would amount to question of mixed law and fact.. The issue of pure fact is easier to determine.”
(italics supplied)I have come across a rich literature on the yardstick to distinguish questions of law alone from those of facts and mixed facts and law. That analysis could be found in the judgment of the learned jurist Eso J.S.C. in the case of Ogbechie v. Onochie supra at p.59 where he extensively quoted from the article titled ”Error of Law in Administrative Law by L.T. Emery, contained in volume 100 of the October 1984 issue of the Law Quarterly Review.
It is therefore my judgment that the trial Judge with due respect wrongly and erroneously exercised his discretion on wrong principles so any ground of appeal complaining of such exercise is aground of mixed fact and law and the law requires leave of either court below or this court before it can be properly filed. The appellant, it follows, purported to appeal as of right whereas the Constitution of this country does not grant him such a right.. The three grounds i.e. grounds 1, 2 and 3, without the requisite leave are therefore incompetent. See Ifediorah v. Ume (1988) 2 NWLR (pt. 74) 5 at p. 16 per Nnamani JSC.
This court per Musdapher JCA held that it is elementary law that under s.220 of the 1979 Constitution. “When an appellant is appealing on a point of law. i.e. when his grounds of appeal are grounds of pure law, he appeals as of right.
However when he appeals on grounds of fact or mixed law and fact under s. 221 of the 1979 Constitution, his purported appeal is incompetent; a nudum factum without the requisite leave”. See the case of ACB v. Elosiuba (1991) 3 NWLR (Pt.178) 133.In the above expositions of law and fact it is clear that the appellant had attempted to appeal as of right when that right does not exist.. He could only have appealed by leave of either the High Court of Federal Capital Territory Abuja or of this court. As no such leave was sought and obtained the appeal, I hold, is incompetent.
My Lords, I wish to state in passing that the 1st ground of appeal, to add salt in the wound, complains of both error in law and on the facts. This I think cannot stand. The law I hold is quite clear a ground of appeal cannot be of error in law and at the same time on facts – Nwadike v. Ibekwe supra at p. 744.
Again it is the law that where a ground of appeal is found to be incompetent the rules of this court conferred on us the power to strike it out.. Since in this appeal all the grounds of appeal are incompetent they deserve to be struck out they are accordingly struck out. Since all the grounds of appeal stand struck out the notice of appeal will also be affected rendering the appeal as a whole a nullity. Order 3 rule 2(7) of the Court of Appeal Rules 1981 as amended. See also the decision of the Supreme Court in the case of Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) p. 285  at p. 296 per Obaseki JSC. The appeal is therefore incompetent. In view of the fact that the judgment of the lower court is riddled with so many lapses one has to be extremely cautious in making consequential orders after allowing the appeal.For instance that the judgment is not based on evidence. The assessment was wrongly done. The quantum of damages is at large due to the absence of pleadings and evidence. It is a fact as contended by the appellant that some items suitable for general damages were converted to special damages and award was wrongly made on same. There is need in this type of cases to have evidence in proof of the nature and or quantum of damages. The valuation of work needs an expert evidence. The plaintiff in the trial court did not clearly call relevant witnesses to testify as to how they arrived at a particular conclusion. The valuation report in court Exhibit 9 without the evidence of those who fed the quantity surveyor before he made Exhibit 9 could be an inadmissible document as being hear say. See J.E. Elukpo and Sons  Limited v. F.H.A. (1991) 3 NWLR (Pt. 179) p. 322 per Adio JCA as he then was at p. 334. As we all know, and it is fast becoming trite that special damages must be proved strictly. It is the law that items of special damages must be clearly pleaded and specifically proved. Any evidence no matter how unchallenged or uncontradicted which falls short of what is required to prove special damages must be rejected. See the case of Arinze v. The State (1990) 6 NWLR (Part 155) 158. Another problem is that even the defendant now appellant admitted causing damage to the plaintiff/respondent’s property the subject matter of this appeal. On page 3 of the appellant’s brief it was stated thus:-
“…. Sometimes in 1988, defendant commenced blasting of rocks within the vicinity where the plaintiffs house was located. Rock pellets escaped from the blasting and caused some damage to plaintiffs house. Plaintiff wrote a letter dated 18/6/90 complaining to the defendant that his house was damaged. Defendant replied undertaking to assess the damage and restitute same …
That the blasting of the rocks caused some damages to the plaintiff’s house but the damage was minimal and negligible and the claim of the plaintiff was bogus, unrealistic and made without regard to accounting and valuation principles. The defendant denied being negligent and averred that plaintiff refused to co-operate in the move to assess the damage and restitute his house for him … ”
(italics mine for possible emphasis).
The plaintiff/respondent is entitled to some damages there is no doubt about that. However there is no proper and valid evaluation of the special damages. Even the quantum of damage has not been properly determined. It may not be fair to allow the respondent to go away, as it were, without any damages at all. At the same time he did not deserve the kind of damages awarded him by the trial court. If there is proper pleadings supported by evidence then on the balance of probability the respondent in this appeal would have been entitled to both general and special damages. The amount then to be awarded to him could be less or more depending on the finding of the trial court.
That being the case, in order to do justice to both sides I would, and it is hereby held that the appeal is allowed. The judgment of the lower court, not being supported by evidence and law, is hereby set aside. Even though we are not, strict sensu, non suiting the plaintiff/respondent we order that there shall be a retrial before another Judge of the High Court Federal Capital Territory Abuja to take fresh evidence on the question of quantum of damage leading to the award of both general and special damages if any. At the trial the parties are free to call any witness and to tender any documents on the issues of damages. Those who testified earlier on can as well testify in this fresh trial and fresh witnesses can also testify for both parties in accordance with the rules and regulations. The appellant is entitled to N800.00 costs to be paid to him by the respondent.
Appeal is allowed.
Other Citations: (1998)LCN/0403(CA)
