IN THE SUPREME COURT OF NIGERIA
On Friday, the 11th day of April 2008
SC 316/2002
BETWEEN
AKINKUGBE .......................................................................................................... APPELANT
And
EWULUM HOLDINGS NIGERIA LTD & ANOR ......................................................................................................... RESPONDENT
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Before: |
Aloysius Iyorgyer Katsina-Alu; Sunday Akinola Akintan; Mahmud Mohammed; Walter Samuel Nkanu Onnoghen; Pius Olayiowola Aderemi, JJSC |
ISSUES
Whether the appellant re-claimed the leased property by force.
Whether the trial court and the Court of Appeal were correct in upholding respondents’ (tenants’) claim that their eviction by the appellant (landlord) amounted to trespass.
Whether the trial court and Court of Appeal were correct in awarding the respondents special damages in the sum of N3 million.
FACTS
The appellant as landlord had leased his property at 53 Talabi Street, Ikeja, to the respondents as tenants. The second respondent, as chairman and chief executive of the first respondent, was in actual occupation of the property. A dispute arose when the period of the lease expired and the respondents failed to vacate the leased property and give back possession to the appellant. The appellant successfully brought an action in the Lagos High Court claiming possession and obtained judgment in his favour. The respondents applied for extension of time to leave the property. The application was set down to be heard in January 1994, but before the hearing, the appellant took possession of the property. In turn, the respondents brought an action claiming that the eviction of the appellant was unlawful and that they were entitled to damages. The appellant defended the action and counter-claimed for damages. The trial court entered judgment for the respondents and awarded them special damages in the sum of N3 million. The appellant’s counter-claim was dismissed. The appellant’s appeal to the Court of Appeal was also dismissed and the appellant appealed further to the Supreme Court.
HELD
Leading judgment by Pius Olayiwola Aderemi, JSC; with A.I. Katsina-Alu, S.A. Akintan, M. Mohammed, W.S.N. Onnoghen, JJSC concurring
1. Substantial error in concurrent findings of lower courts must be corrected on appeal
An Appellate Court can interfere with the concurrent findings of lower courts where there is substantial error on the face of the proceedings which served to occasion a miscarriage of justice. Per Aderemi, JSC at 135.
2. When eviction amounts to trespass
At the time the appellant took over possession of the property, the respondents still had the keys and were therefore still in possession. The appellant therefore ejected the respondents from the property while their motion for an extension was still pending. Considering the circumstances of the case, the appellant committed an act of trespass, since trespass is a wrong against possession. Per Onnoghen, JSC at 153.
3. Landlord not to resort to self-help
A landlord who resorts to self-help to recover property leased by him runs foul of the law and is liable in damages. Per Aderemi, JSC at 135.
4. Liability in damages for trespass
In ejecting the respondent the appellant committed an act of trespass against the respondents and was therefore liable to the respondents in damages. Per Onnoghen, JSC at 153.
5. Commission of a crime must be proved beyond reasonable doubt
If the commission of a crime by a party to a civil case is directly in issue, the party must prove it beyond reasonable doubt. Per Aderemi, JSC at 135.
The quantum of damages had to be proved beyond a reasonable doubt, not on the balance of probabilities normally applied to civil matters. Per Onnoghen, JSC at 153.
6. Special damages must be specifically pleaded
Special damages consist of all items of loss which must be specified in pleadings before they may be proved. Per Aderemi, JSC at 135.
The respondents failed to prove their special damages beyond a reasonable doubt. Per Aderemi, JSC at 135.
The lower courts erred in awarding such damages. Special damages must not only be pleaded by the party claiming same but must also be strictly proved. Per Onnoghen, JSC at 153.
7. Award of special damages must not be outrageous
The award of damages in a case may not be outrageous. The circumstances of the case in which the respondents refused to vacate the leased premises in the face of an order for their eviction meant that they were only entitled to nominal damages in the sum of N10,000 for trespass. Per Onnoghen, JSC at 153.
Prof. A.B. Kasunmu, S.A.N. for the appellant with him, Mr A.A. Odunsi and Mr Tunde Osadare
Chief K.H.C. Nwokolo for the respondents with him, Mr C.J. Omekuagu
The following cases were referred to in this judgment:
Nigeria
A.P. Ltd v Owodunni (1991) 8 NWLR (Part 210) 391
Agunwa v Onukwe (1962) 2 SCNLR 275
B.E.O.O. Ind Nigeria Ltd v Maduakoh & another (1975) 1SC (Reprint) 68
Chinwendu v Mbamali & another (1980) 3–4 SC 31
Coker v Oguntola & others (1985) 6 SC 223
Eliochin Nigeria Ltd v Mbadiwe (1986) 1 NWLR (Part 14) 47
Ihenacho v Uzochukwu (1997) 2 NWLR (Part 487) 257
Ikoku v Oni (1967) 1 All NLR 194
Imana v Robinson (1979) 3-4 SC 1
Kurubo v Zach Motison Nigeria Limited (1992) 5 NWLR (Part 239) 102
Mil. Gov. of Lagos State v Ojukwu (1986) 2 SC 277
Okuarumo v Obabokor (1966) NMLR 47
Oladehin v C.T.M.L. (1978) 2 SC 23
Sofekun v Akinyemi & others (1980) 5 SC 1
Uyo v Egware (1974) 1 All NLR (Part 1) 293
Zik’s Press Ltd v Ikoku (1951) 13 WACA 188
Foreign
Aglim BV v Cohim [1955] 1 AER 785
Ratcliffe v Evans [1892] 2 QB 524 CA
Aderemi, JSC (Delivered the leading judgment):– The present appeal is from the judgment of the Court of Appeal (Lagos Division) in Appeal No. CA/L/74/2000: Prof. Ajibayo Akinkugbe v Ewulum Holdings Nigeria Ltd & another delivered on 30 May 2002. The respondents, who were the plaintiffs before the trial court (the High Court of Lagos State in the Ikeja Judicial Division) had instituted an action against the appellant herein who was then the defendant before that Court claiming as follows:–
(1) A declaration that the ejecting of the plaintiffs from the premises No. 53 Talabi Street, Adeniyi Jones Avenue, Ikeja, Lagos state on 4 February 1994 is unlawful, the same having been carried out vi et armis and without lawful authority.
(2)An order directing the defendant to enter into an undertaking as to unlimited damages indemnifying the plaintiffs for all or any expense or loss that they may incur directly or incidental to the loss of the airline tickets.
(3)N5,000,000 (five million naira) damages for unlawful execution and damages for loss of proper feelings of dignity and pride.
(4)N100,000 (one hundred thousand naira) damages for trespass.
(5) Special Damages as follows:–
(a)N650,000
(b) US DOLLARS – 113,000
(c) UK POUNDS – 41,000
(d) GERMAN MARKS – 80,000
for value of damaged property, monies lost due to wilful act and/or negligence of the defendant, his servants and/or agents.
In paragraph 31 of his amended statement of defence and counter-claim, the defendant/appellant counter-claimed against the plaintiffs/respondents as follows:–
“The defendant repeals all the allegations in the second amended statement of defence and counter-claim against the plaintiffs for N2,114,715 (two million one hundred and fourteen thousand seven hundred and fifteen naira only) as general and special damages for breach of covenant to repair at the end of the lease:
PARTICULARS
Cost of Repairs – N1,114,715
General Damages – N1,000,000”.
Pleadings filed and exchanged between the parties at the trial court with leave of court, are: (a) the amended statement of claim dated 21 February 1995, (b) amended statement of defence and counter-claim dated 10 July 1995 and (c) the amended reply dated 20 February 1997. Both parties led evidence in proof of the averments in their respective pleadings. Sequel to taking the final addresses of the Counsel, the learned trial judge, in a reserved judgment delivered on 4 of March 1998, granted reliefs numbers (1), (2), (3) wherein three million naira was awarded to the plaintiffs against the defendant/appellant and (5) whereupon being satisfied with the evidence led by the plaintiffs/respondents, he awarded all the various sums of money claimed as special damages. The claim for N100,000 as damages for trespass was however refused. Also, the counter-claim of the defendant/appellant was refused.
Being dissatisfied with the said judgment of the trial court, the defendant, now the appellant before this Court, lodged an appeal against the judgment in respect of the substantive claim and the counter-claim of the court below. The respective Counsel of the parties proffered arguments in support of the various issues raised by them in their respective briefs of argument. In a considered judgment delivered on the 30 May 2002, the court below, in dismissing the appeal in toto, had reasoned:–
“The evidence of DW1 had ominous implications for the case of the defendant. The evidence revealed that the defendant know that as at 22/12/93, the plaintiffs were still in the premises. The defendant would also know that plaintiff’s motion for extension of time to vacate was still in court and fixed for hearing on 24/1/94. The question is, what happened between 22/12/93 and 29/12/93 to prompt the defendant to believe that the plaintiffs had vacated only for the same plaintiffs to apply after 4/1/94 to be reinstated to the premises? . . . appellant’s Counsel was not contending that the sum of N3m awarded as general damages was excessive. Rather, the argument was that the trial judge did not assess the quantum of damages or state the nature of the damages awarded . . .
The litigation in court between the parties on the defendant’s claim for possession against the plaintiffs was quite prolonged and might have been frustrating for the defendant. The plaintiff had not been keeping with undertakings given to the defendant to give up possession. It is, I believe this situation which drove the defendant into a state of desperation which led him to what he did. However, the law does not excuse such conduct even if the plaintiffs did not behave well. They were in occupation and could not be evicted except in accordance with the due process of law.
The truth is that there was before the court evidence showing the unjustifiable circumstances in which the appellant had forcible ejected the plaintiffs. The plaintiffs had in their amended statement of claim asked for aggravated damages . . . It seems sufficient to note that aggravated damages are at large as it is in general damages.
I might myself think that perhaps N3 million as aggravated damages was excessive but that was not the issue raised before us by the appellant and I say no more on the matter . . . It is enough to say that the appellant has not made a case for this Court to intervene by reducing the sum of N3 million awarded as damages.
Under the second issue . . . there is in my view no merit in the argument. The plaintiffs pleaded the items they list including foreign currencies. The evidence on the point was not challenged. The lower court accepted such unchallenged evidence as he is entitled to do. . .
I see no reason to disturb the award as special damages. . .
I agree that the applicable standard is proof beyond reasonable doubt. I am satisfied however that the evidence available in support of plaintiff’s case attained the standard required.”
As I have said, being dissatisfied with the said judgment, the appellant appealed to this Court against the judgment of the court below as it relates to the substantive claim and the counter-claim. With the leave of court, the original Notice of Appeal was amended and the Amended Notice of Appeal on which the appeal is founded is the one filed on 24 May 2006. Again, with the leave of the court, the parties also amended their respective Briefs of Argument. In his amended Brief of Argument filed on 24 May 2006, the appellant raised three issues for determination; as set out in the said brief, they are as follows:–
“(1) Was the Court of Appeal right in confirming the decision of the trial court when that Court granted the plaintiffs relief for a declaration that the defendant forcefully and unlawfully ejected the plaintiffs from the premises at 53 Talabi Street, Ikeja, Lagos on the 4 of January 1994?
(2) If the trial court was right in granting the declaration sought for by the plaintiffs, was the Court of Appeal right in confirming the award of damages as assessed and awarded by the trial court in favour of the plaintiffs?
(3) Was the Court of Appeal right in affirming the decision of the trial court to dismiss the defendant’s counter-claim?”
For their part, the respondents also identified three issues for determination, which as stated in their amended brief of argument, are in the following terms:–
“(1) Whether the Court of Appeal was right in confirming the decision of the trial court when it granted that the plaintiffs/respondents had successfully led credible oral and documentary evidence in support of their claim for a declaration that the defendant/appellant forcefully ejected the respondents from the premises at No. 53 Talabi Street, Ikeja, Lagos State on 4 January, 1994 same having been carried out vi et aruns.
(2) Whether the Court of Appeal was wrong in upholding the findings of the trial court in accepting the evidence of the plaintiffs/respondents in support of award of damages as assessed which incidence is unchallenged, uncontradicted and uncontroverted by the appellant.
(3) Whether the Supreme Court will interfere with concurrent findings of fact by the trial court and the Court of Appeal.”
When this appeal came before this Court for argument on the 14 January, 2008, Prof Kasunmu, SAN, learned Senior Counsel for the appellant while relying on his client’s amended Brief of Argument filed on 24 May 2006 submitted, on points of law, that special damages must be proved by credible evidence and in the instant case by documentary evidence, adding that the General Manager of the first respondent called as a witness, failed to tender any document relating to the special damages claimed; he finally urged that the appeal be allowed. Chief Nwokolo, learned Counsel for the respondents while relying on his clients’ amended Brief of Argument filed on 11 December 2006, urged that the appeal be dismissed.
I have carefully examined the issues raised for determination in this appeal as contained in the briefs of the parties, it is my view that two cardinal issues that call for thorough examination and determination are:
(i) whether evidence led met the required standard to sustain claim for special damages and whether evidence led in support of the allegation that some monies were carted away – wherein criminality is imported – satisfies the requirement of the law; and
(ii) whether the award of N3 million (three million naira) as damages for what was described as unlawful execution and damages for loss of proper feelings of dignity and pride as set out in leg (3) of the reliefs claimed by the plaintiffs/respondents.
The trial court in allowing the claims of the plaintiffs/respondents substantially had in its final judgment reasoned:–
“I am satisfied that the plaintiffs have proved their case and are entitled to the declaration sought. It is hereby granted.”
On the claim for damages, the learned trial judge awarded N3 million naira to the plaintiffs/respondents. On the claim for special damages, the learned trial judge said:–
“I am satisfied with the evidence adduced for the plaintiffs. I hold that they have proved the special damages. I therefore award in favour of the plaintiffs against the defendant the following:–
(1)N650,000
(2) 113,000 US Dollars
(3) 41,000 Pounds Sterling
(4) 80,000 German Marks or the equivalent in naira at official rate of the claims.”
Suffice it to say that the fourth leg of the reliefs which is one for N100,000 (one hundred thousand naira) as damages for trespass was refused. The learned trial Judge awarded both general and special damages in favour of the plaintiffs/respondents in the judgment delivered at the end of the trial before him. In the consideration of how a plaintiff must deal with damages in his statement of claim, it is often necessary to make a basic distinction between general damage or damages and special damage or damages. General damage often consists in all items of loss which a plaintiff is not required to specify in his pleadings in order to allow him recover monetary compensation in respect of them at the trial. But special damage consists in all items of loss which must be specified or stated by him in his pleadings before they will be allowed to be proved at the trial and recovery of same granted.
This is an action in which the respondents are claiming special and general damages and by rules of pleadings, they (the respondents) must plead special damages and give particulars thereof before they will be allowed to lead evidence in proof thereof. (See B.E.O.O. Industries (Nigeria) Ltd v Maduakoh & another (1975) 1 SC (Reprint) 68. In McGregor on Damages (16ed), I find paragraphs 2025 and 2027 and pages 1319–1321 very useful and germane to the consideration of this appeal and they are:–
Para 2025:–
“General damage consists in all items of loss which the plaintiff is not required to specify in his pleadings in order to permit proof and recovery in respect of them at the trial. Special damage consists in all items of loss which must be specified by him before they may be proved and recovery granted. The basic test of whether damage is general or special is whether particularity is necessary and useful to warn the defendant of the type of claim and evidence or of the specific amount of claim, which he will be confronted with at the trial . . . ‘SPECIAL DAMAGE’ said Bowen L.J. in Ratcliffe v Evans (1892) 2 QB 524 CA at 528:–
means the particular damage (beyond the general damage), which results from the particular circumstances of the case, and of the plaintiff’s claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial.”
Para 2026:–
“What constitutes general damage in pleading is made clearer when considered in relation to the two other meanings of the term. The first of these goes to liability and the second goes to proof.”
Para 2027:–
“If an item of damage is general for the purpose of liability because it represents a normal loss, a fortiori, it will be general for the purpose of pleading in so far as its existence cannot take the defendant by surprise.
If an item of damage is general for the purpose of proof because it is inferred or presumed by the court a fortiori it will be general for the purpose of pleading since what the law is prepared to infer or presume in the plaintiff’s favour the defendant cannot contend would Surprise him at the trial.”
Having stated what general damage and special damage connote in law, I shall now examine the pleadings of the parties and the evidence led in proof of the averments therein contained to see whether the awards made by the trial judge are justified in law. The relevant paragraphs of the statement of claim are 35, 36, 37, 38, 39, 40, 47 and 51; the averments therein contained are hereunder reproduced:–
Para 35
“The plaintiffs state that the defendant by himself, his servants and armed agents stormed the premises, broke down the doors, pillaged the plaintiffs’ property and littered them in the streets to the dismayed (sic) and awe of neighbours and passers-by.”
Para 36
“The plaintiffs aver that the defendants, his servants and agents carried out the said illegal and forcible ejection without regard to the due process of law by reason of which the execution thereof was and is unlawful.”
Para 37
“The plaintiffs aver that by reason of the matters aforesaid, the plaintiffs suffered loss and damage to their proper feelings of dignify and pride.”
Para 38
“The plaintiff avers that the defendant carried out the said unlawful execution with malice and spite with the notice and intention to disparage and ridicule the plaintiff and bring him low and despicable in the estimation of his peers and right thinking members of the public.”
Para 39
“The plaintiff shall as much as possible claim on the footing of aggravated damages:–
PARTICULARS OF DAMAGE
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(a) |
Damages for wrongful execution |
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(b) |
Aggravated Damages for loss of proper feelings of dignity & pride |
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Para 40
“The plaintiff’s states that at the time the second plaintiff returned from his Christmas Vacation, save for the destruction and pillage on the property aforesaid, neither the defendant, his agents or the soldiers were in sight. They merely wrecked havoc in the premises and left.”
Para 47
“The plaintiffs aver also that the second plaintiff kept in the same movable safe box his personal collections of articles of vertu (sic) and cash.”
Para 51
“The plaintiffs aver that before the record plaintiff travelled, the said safe box which was in the second plaintiff’s bedroom but removed during the said unlawful ejection exercise by the defendant contained the first plaintiff’s stock-in-trade, cash in foreign and local currencies and the second plaintiff’s valuable watches, gold chains and cash all of which were consequently . . .”
PARTICULARS OF LOSS
The said missing/loss safe box contained:–
“A. THE FIRST PLAINTIFF’S
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(i) |
US DOLLARS |
$98,000 |
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(ii) |
UK POUNDS |
41,000 |
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(iii) |
GERMAN MARKS |
80,000 |
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(iv) |
LOCAL CURRENCY (CASH) |
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(v) |
50 copies of blank Nigeria Airways Ltd Tickets |
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(w) |
25 pieces of blank KLM Tickets |
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(x) |
9 pieces of blank Alitalia Tickets” |
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“B. SECOND PLAINTIFF’S
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(i) |
5 Rolex Watch valued US Dollars |
15,000 |
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(ii) |
8 Wrist Watches all valued |
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(iii) |
5 Assorted gold chains valued |
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(iv) |
2 Gold rings valued |
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(v) |
4 Cameras all valued |
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(vi) |
1 Video Machine valued |
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TOTAL |
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What is the evidence led? PW1 and PW2 security guard and a public relation officer with Zodiac Housing respectively, never in their testimonies, said they saw anybody cart away the valuables which constitute the basis for the special damages. PW3’s evidence did not advance the plaintiffs’ case in the direction of award of general and special damages. PW4 who was the general manager of the first plaintiff/respondent said, inter alia:–
“It was agreed that the plaintiffs should stay there in the house till December 31 1993. The first plaintiff did not vacate the premises in (sic) the 31/12/93. The plaintiffs asked for extension of time to enable them move to a new place. The plaintiffs filed a motion in court. The defendant filed a motion to dismiss the plaintiff’s motion. The defendant’s motion was dismissed and the plaintiff’s motion was adjourned till 24/1/94.
The defendant thereafter broke into the house and ejected the second plaintiff on 5/1/94. I came back from the East Onitsha. I went into the premises. I saw that the door was broken. Anytime we were going on holidays – in (sic) security reasons we consigned company’s articles like travel tickets, money – dollars, pounds, dutch makes (sic) to the Chairman who has a cash box at home. This box contains 98,000.00 US Dollars, 41,000.00 pounds sterling, 80,000 German Deuch (sic) and 50,000.00 naira, 50 pieces of blank Nigeria Airways Tickets and pieces of Airline Tickets. The second plaintiff did not return the items to the office. I discovered that the cash box got lost during the ejection. I called at Police at Area ‘F’ I reported the loss to the Police and the Airlines.”
The second plaintiff/respondent who at the material time to this case was the Chairman of the first plaintiff/respondent company, in his testimony said, inter alia:–
“I was away for Christmas vacation. I came back on the 4 January with my family, when I got to the house No. 53 Talabi Street. I saw my properties in the street and some in the compound. My properties were damaged, wardrobe broken, dress torn. The bed were (sic) br