[PDF copy of this judgment can be sent to your email for N300 only. Just order through email@example.com and firstname.lastname@example.org or text 07067102097]
ELOICHIN (NIGERIA) LTD AND 2 ORS
VICTOR NGOZI MBADIWE
IN THE SUPREME COURT OF NIGERIA
10TH JANUARY, 1986
SUIT NO. SC 54/1981
(1986) 1 NWLR (Pt.14)47
BEFORE THEIR LORDSHIPS
VICTOR NGOZI MBADIWE (Substituted for Chief J. Green Mbadiwe)
Civil Action – Practice and Procedure – Appeal to Supreme Court – Findings of fact – Reversal at instance of respondent – Appropriate procedure – Respondent merely giving notice under provisions of Order 7 Rule 13(1) of Supreme Court Rules 1977 to affirm judgment on other grounds – Supreme Court precluded in absence of cross-appeal from reversing Court of Appeal findings on grounds that reversal of High Court judgment not based on pleadings.
Tort – Trespass – Unlawful entry on demised premises and forcible removal of occupants property liability.
Landlord and Tenant – Ejectment – Need for prior coon order ever? in case of sub-lease – Failure to serve statutory notices and to obtain order of court – Effect.
Damages – Exemplary damages – Limitation in Rookes v. Barnard – Not binding on Nigerian Courts though of persuasive authority – Absence of evidence for pecuniary loss of value of goods removed – Award of general or nominal damages held to be precluded by claim for exemplary damages only – Effect.
This appeal has come from the Court of Appeal, Lagos. The Respondents were the plaintiffs before the High Court of Lagos in a suit, filed on 12th April 1976, in which they joined to claim a sum of N250,000.00.
“as exemplary damages for trespass committed by the said defendant on the premises, goods and household effects (sic) of the plaintiff (sic) at No. 1 Goriola Street, Victoria Island, Lagos”
They also claimed an injunction. The original defendant was Chief Green Mbadiwe. Following his demise, Victor Ngozi Mbadiwe was substituted as the defendant. The Claim was finally settled in an amended statement of claim in which
(i) the 1st plaintiff claimed N100,000.00 exemplary damages for trespass to the premises;
(ii) the 2nd plaintiff claimed N50,000.00 exemplary damages for trespass to his goods; while
(iii) the 3rd plaintiff claimed N500,000.00 exemplary damages for trespass to her own goods.
It is necessary to emphasize, having regard to the arguments put forward in the course of the hearing of this appeal, that only the 1st plaintiff-a limited liability company-claimed in trespass to the premises, while the 2nd and 3rd plaintiffs claimed in trespass to goods.
The High Court of Lagos (as per C. Ademola Johnson, J., as he then was) dismissed the claims of the plaintiffs on the ground as finally held, that
“The plaintiffs therefore, having failed to establish before the Court the right to sue in trespass are bound to fail in this action.”
The plaintiffs appealed to the Court of Appeal which reversing some of the findings of the High Court on some of the facts and making some findings favourable to the plaintiffs, none-the-less dismissed the action on the ground that while the plaintiffs might, on the evidence be entitled to general damages if they had asked for it, they must fail on damages because they asked for exemplary damages only, having regard to the decision of the House of Lords in England, and the principles therein laid down, in Rookes v. Barnard (1964 1 All E. R. 367, on the question of exemplary damages.
The plaintiff/Appellants, not satisfied with the said decision of the Court of Appeal, have appealed to this Court on concisely worded seven grounds of appeal, all of which relate to the issue of damages.
“GROUNDS OF APPEAL
PARTICULARS OF POINTS IN QUESTION
(i) Alleged failure of Appellants to establish grounds for the award of exemplary damages.
(ii) Alleged want of jurisdiction or discretion to award any damages where a claim is unsuccessfully made for the award of exemplary damages.
IN THE ALTERNATIVE
(ii) The Federal Court of Appeal erred in law in regarding the cases of Rookes v. Barnard and Broome v. Cassel (which are not followed in other common law jurisdictions) as having laid down the law for Nigeria in regard to the grounds for the award of exemplary damages.
PARTICULARS OF ERROR
It is obvious that in a case of this nature no proper computation of the amount of damages can (sic) be made until it is known whether the goods or part thereof are recoverable.
Counsel for the Appellants, in his brief, has condensed the entire grounds of appeal into a narrow “issue for determination” (and the only issue in the appeal) to be
“whether a plaintiff who claims exemplary damages in circumstances in which that type of award cannot be made must have his action dismissed in limine”
having regard to the finding of the Court of Appeal that
“In the result, although we are of the view that a case for damages might have been made out for the 1st and 2nd or 3rd plaintiffs, we are, regretfully, unable to award any general damages because no case for the award has been made on the pleadings, the evidence and the law. In the result the appeal fails and is dismissed with cost fixed at N100.00.”
In other words where in this country a party has claimed exemplary damages and has not proved special circumstances entitling him to exemplary damages but has proved nominal or general damages, can he receive nominal or general damages or does the decision of the House of Lords in England in Rookes v. Barnard (1964) A. C. 1129 preclude the party from receiving nominal or general damages?
Before going into this, it is perhaps necessary to state the short facts which give rise to these proceedings, as disclosed in evidence. The defendant did not give evidence. All the evidence there was, was given by the 3rd plaintiff the wife of the 2nd plaintiff who did not appear throughout the proceedings. She swore that she lived at 55 Park Lane, London W.1 and also 21B Kofo Abayomi Road, Victoria Island. She said she was helping her husband, the 2nd plaintiff, and that she was a director of the company; her husband held 60% while she held 40% of the shares of the company. She enumerated her goods and those of her husband in the house which were removed by the defendant.
Arguing the appeal on the issue of damages only, Chief Williams submitted that the action was dismissed by the High Court. The Court of Appeal reversed some of the findings of the High Court but nonetheless dismissed the action on grounds of not before the Court, saying they would dismiss the action on the principle of Rookes v. Barnard (1964) A. C. 1129 in which it was held that the lower court erred in law in granting exemplary damages. He referred also to Drane v. Evangelou (1978) 1 W. L. R. 455 at 457 where it was said that exemplary damages were awarded
“wherever it is necessary to teach a wrong doer that tort does not pay”.
He argued that Rookes v. Barnard which the Court of Appeal held was binding on it, prevented the said court from doing justice in this case. He conceded that the plaintiffs did not lead evidence on the pecuniary loss or the value of the goods removed, but contended that the defendant was liable in trespass and that the Court of Appeal should have found for the plaintiffs on the issue of liability which would attract nominal damages.
He further conceded that the 2nd and 3rd plaintiffs were claiming for trespass to goods only and not trespass to the premises. The trial High Court Judge thought, he said, that 1st, 2nd and 3rd plaintiffs were claiming for trespass to the premises. He pointed out that the learned trial Judge accepted the claim for loss of the occupation of the premises by the company, that is, the 1st plaintiff. On the question whether the 2nd and 3rd plaintiffs were proved to be directors of the company, he submitted that the uncontradicted evidence of the 3rd plaintiff that she and her husband were directors was enough roof, without the production of the company’s books, and that nothing in Section 138 of the Companies Act stated to the contrary. He argued that even if the plaintiff failed to prove that they were directors of the 1st plaintiff company, that fact could not justify the trespass complained of by the 1st plaintiff because that trespass was against the possession of the company. He drew attention to the uncontradicted evidence of the 3rd plaintiff that Chief Mbadiwe agreed that the 2nd and 3rd plaintiffs should stay in the house. He argued that the question whether the 2nd and 3rd plaintiffs were directors of the company were questions of facts which could be proved by oral evidence.
On the issue of trespass to goods, he submitted that the defendant admitted having the goods, or having removed the goods but said the plaintiffs should come and beg for them to have their goods back. He pointed out that the goods were in the premises demised to the 1st plaintiff. The landlord cannot just walk into the house and take out the goods whether the 2nd or 3rd plaintiffs were just friends of the 1st plaintiff or directors.
He referred to the landlord and tenant situation in Lagos State pointing out that nobody can eject a person in occupation of premises without serving on him the statutory notices as prescribed by Law. The Court of Appeal recognised that in its judgment. He referred to section 11 of the Rent Control Law and to Amos Brothers and Co. Ltd. v. British West African Corporation 14 W.A. C.A. 220 on section 19 which is on all fours with section 11 of Rent Control Law. Even where a tenancy has come to an end a* landlord is not entitled to go into the premises and physically throw out the tenant but must give the statutory notices to the person in possession. He cited Teliat Sule v. Nigerian Cotton Board S. C. 113/1984 decided on 7th June 1985. (See also: McPhail v. Persons Unknown (1973) 3 All E.R. 393-per Lord Denning.) He finally submitted that if his argument was accepted, by this Court, the proper order would be to send the case back to the High Court for assessment of damages on the principles laid down by James v. Mid-Motors Nig. Ltd. (1979) Vol. II. L.R.N. 187 at 207; (1978) 11 & 12 S. C. 31.
Chief Onyiuke for the Respondent, countered this argument and submitted that the defendant defended this action according to the pleadings; that the High Court decided the case in accordance with the pleadings, but unfortunately, the Court of Appeal decided the case without reference to the pleadings. Although he was supporting the conclusion of the Court of Appeal, he was supporting it on grounds other than the grounds relied upon by the Court of Appeal. This Court, he pointed out, has granted his application to that effect. He was not attacking the judgment of the Court of Appeal by pointing out that the judgment was without reference to the pleadings. He wanted to support the judgment of the Court of Appeal without reference to aggravated damages pointing to the African Continental Seaways Ltd. v. Nigeria a
Dredging, Road and General Works Ltd. (1977) 5 S. C. 235 at 243, 248, 249 and 250. The Court of Appeal decided on a totally different issue. He pointed out that the defendant stuck clearly to the pleadings and led evidence on it. As far as the 1st plaintiff was concerned it was a case of unlawful entry into the premises of which he was in lawful possession while for the 2nd and 3rd plaintiffs, it was a question of trespass to their goods. The real basis for the claims of the 2nd and 3rd plaintiffs was that they were directors of the company and were allocated the remises and were in possession thereof virtute officii. He conceded that if the 2nd plaintiff was a director of the company his wife (the 3rd plaintiff) would automatically be entitled to succeed. He contended that there must be evidence of licence by the 1st plaintiff to the 2nd plaintiff. This evidence of licence was not to be given by the 3rd plaintiff but by the 1st or 2nd plaintiff. The 2nd plaintiff never gave evidence and never appeared. The Court of Appeal, he reiterated, was in error in law in deciding a case outside the pleadings. This was a matter of law and not a matter of fact.
On section 138 of the Companies Act, he submitted that the minutes of the proceedings of the directors of a company shall be evidence of the proceedings pointing to section 138 (2) and 138 (3) of the Companies Act. The proper evidence, he submitted, would be the production of the minutes. No other evidence would be accepted. He referred to the Registered Trustees of the Apostolic Church Ilesha v. Attorney General of Midwestern State of Nigeria (1972) 4 S.C. 150 at 154 to 155. Therefore, it was neither proved that 2nd and 3rd plaintiffs were shareholders nor directors.
On the issue of the exemplary damages, at no time did the 3rd plaintiff in her evidence identify any articles in a list of properties removed. He conceded that the law presumes nominal damages. On the question of the recovery of premises law, Chief Onyiuke submitted that there was no tenancy relationship between the 2nd and 3rd plaintiffs on one hand and the defendant on the other and, therefore, the issue of section 11 of the Rent Control Law did not arise. In resolving this appeal one thing stands out clearly, namely, that the defendant admitted going into the premises and removing those goods kept in the premises. He did not get the order of Court in doing so-an act which must be unlawful unless it can find justification in a legitimate exercise of abatement of nuisance or on some other cause.
Chief Onyiuke has submitted both in his brief (p.4) and in oral argument before us that 2nd and 3rd plaintiffs could only succeed on the pleadings if they proved:
(a) that the 2nd plaintiff was a director of the first plaintiff/ company;
(b) that the premises were allocated to him virtute officii and he was in lawful possession of the premises; and
(c) that the 1st plaintiff was entitled to allocate the premises to him.
With much respect to Chief Onyiuke, the above argument cannot be right because
(i) the 2nd and 3rd plaintiffs, although they alleged they were directors, were suing for trespass to goods only and not trespass to the premises;
(ii) the 2nd plaintiff, although an alleged director, pleaded he was there by licence of the 1st plaintiff since he said the 1st plaintiff allowed him to be there; and
(iii) paragraph 7 of the statement of defence said 2nd and 3rd plaintiffs occupied the premises “without the consent of the defendant and as trespassers,” but the 3rd plaintiff gave uncontradicted evidence in-chief that
“The defendant allowed us to live in the house” and under cross-examination of Mbanefo, of Counsel, that “Chief Mbadiwe agreed we should stay in the house.”
She was not re-examined.
Therefore, on the pleadings, the 2nd plaintiff could succeed in trespass to goods either by proving that he was a director of the company in lawful occupation of the premises by virtue thereof.
by virtue of the consent of Chief Green Mbadiwe. If he proved either, he was entitled and his wife (the 3rd plaintiff) by virtue of her being his wife and living with him, would also succeed in trespass to her goods.
The defendant, Chief Green Mbadiwe, did not give evidence. The only evidence led for the defence was that of the Assistant Registrar of Companies who testified that he had certified copies of documents in Eloichin (Nig.) Ltd.’s file and tendered document signed by the Registrar of Companies, Exhibit 4. Therefore, there was no rebuttal of the evidence of the 3rd plaintiff that the defendant allowed them to live in the house.
The trial High Court Judge held that there was significantly nothing in the evidence to connect the 2nd and 3rd plaintiffs with the 1st plaintiff and that the 2nd and 3rd plaintiffs having failed to establish their right to sue in trespass, were bound to fail. Again, this could not be right because the 2nd and 3rd plaintiffs were suing on trespass to goods and not on trespass to the premises.
On the question whether 2nd plaintiff was a director of the 1st plaintiff-company it cannot be said that it is only by the production of the Register that that fact can be proved. It can be proved by some other mode. Since, however, the defendant categorically challenged the 2nd plaintiff on that, stricter proof of that fact would be expected from the 2nd plaintiff. That strict proof cannot be discharged by the 3rd plaintiff-the wife alleging that the 2nd plaintiff was a director.
But, since the 2nd and 3rd plaintiffs were claiming, not in trespass to the premises but in trespass to goods only, all that proof of directorship was strictly unnecessary.
Even if they were merely visitors allowed by the 1st plaintiff to stay in the house, the defendant would not have the right to set upon their goods and commit the acts of trespass complained of, in respect of them.
On the possession of the 1st plaintiff-company, the Court of Appeal found that the company was rightfully in possession. The Court held at page 107 of the Record thus:
“The sub-lease, dated 27th June 1970 pleaded in paragraph 4 of the Statement of defence, was not tendered in evidence and its terms are not known nor, apart from the correspondence between it and Appellant’s Agents, how the 1st Plaintiff came into occupation of the premises. But, as the learned Counsel for the Appellants said, there cannot be any doubt that the defendant knew of the occupation of the premises by the 1st Plaintiff Company, and that there was then a subsisting tenancy which would have expired on 23rd December 1976, and that defendant wanted the term of the lease reduced by a year, and as indicated in Exhibit 1, and that he was resiling from his previous demand of an ex gratia payment of N3,000 before executing the sub-lease of the premises. We note again, that the request was addressed to the 1st Plaintiff Company, not to Stagnetto, to whom according to the letter, the sub-lease was granted. We are of the view therefore, from the foregoing facts, that the 1st Plaintiff-Company was not a trespasser but occupied the premises with the acquiescence of the Defendant.”
The Court of Appeal gave the reason why the defendant went into the premises and committed the acts complained of. It said:
“The 3rd Plaintiff gave evidence, which was not challenged under cross examination or contradicted by any other evidence, that both herself and her husband lived in the remises and had their (1st Plaintiff Company) office in the premises with the consent of the Defendant; that her husband was a director of 1st Plaintiff Company. There was also her uncontradicted evidence that the 1st Plaintiff Company sub-leased the premises from the defendant. That while they were temporarily away from Nigeria, the defendant authorised the ejectment of the Plaintiffs and removed the personal effects of the 2nd and 3rd Plaintiffs, without their consent.
Exhibits 1, 2 and 3 show clearly that the intention of the defendant was to re-negotiate the sub-lease and because 1st Plaintiff Company refused or neglected to comply with his demand, Defendant ejected the Plaintiffs from the premises before the expiration of the sub-lease which was due on the 23rd December 1976. “
(The italics are mine.)
Dealing with the Rent Control Law of Lagos State the Court of Appeal had held that there could be no ejectment without the order of Court and that the three plaintiffs were not trespassers. This was what the Court said:
“Now, the Plaintiffs who were in lawful possession cannot be ejected by the defendant before the expiry of the tenancy. If he did, as he eventually did, his action was wrongful and liable in damages for trespass per se. Even if the tenancy has expired, and the Plaintiffs held over the premises, they were not for that reason trespassers on the premises. As Lord Denning, M.R. said in the case of McPhail v. Persons Unknown (1973) 3 All E. R. 393 p. 399.
‘When a tenancy has come to an end, the landlord is not entitled to take possession except by an order of Court, and on making the order, the Court has the power to fix the date for possession, where the defendant has no statutory right to remain.’
However, the Rent Control Law, Cap. 122, Laws of Lagos State, S. 13 gave statutory protection to a tenant from eviction except by an order of Court m proceedings regulated by the provisions of Recovery of Premises Law, Cap. 118 of the Laws of Lagos State. Edict 9/1976, referred to in ground 7, came into operation on 1st July 1976 and the cause of action arose in or about ‘March 1976 vide paragraph 7 of the Statement of Defence’. S. 7 of the former Law which applies to this case, provides that after the determination or expiry of the tenancy the landlord seeks to recover possession, he must cause statutory notice to be served on the tenant in the prescribed forms such notices must be of such length of time as provided in S. 8, depending on the terms or nature of the tenancy.
In the case of Amos Brothers & Co. Ltd. v. British West African Corporation 14 W.A.C.A. 220, the West African Court of Appeal had occasion to consider the question of ejection of tenant in relation to the provisions of sections 4, 12 and 19 of the Rent (Restriction) Ordinance which was later replaced by the Rent Control Law, Cap. 118 of the Laws of Lagos State.
Section 13 of the Rent Control Law provides (leaving the immaterial part) that
“A tenant of any premises to which this Act applies can only be ejected therefrom in pursuance of an order of Court obtained under the provisions of the Recovery of Premises Law.”
The Laws of all civilized Nations have always frowned at self help if for no other reason than that they engender breaches of peace. It is no doubt annoying, and more often than not, frustrating for a landlord to watch helplessly his property in the hands of an intransigent tenant who is paying too little for his holding, or keeps the premises untidy, or is irregular in his payment of rents or is otherwise an unsuitable tenant for the property. The temptation is very strong for the landlord to simply walk into the property and retake immediate possession. But that is precisely what the law forbids. Amos Brothers and Co. Ltd. v. British West African Corporation Ltd. (1952) 14 W.A.C.A. 220 dealt with sections 4,12,19 of the Increase of Rent (Restriction) Ordinance Cap. 93 and restricted ejectments to Orders by Court. In the same way, s. 13 of the Rent Control Law of Lagos State Cap. 122 Volume 6 Laws of the Lagos State of Nigeria 1973 enacts that:
“Subject to the provisions of section 12 above, a tenant of any premises to which this law applies can only be ejected therefrom in pursuance of an order of the Court obtained under the provisions of the Recovery of Premises Law.”
“Tenant” is defined therein, and
“means any person occupying any accommodation on payment of rent including a sub-tenant.”
It has been decided that a sub-tenant is protected. Whether there is privity of contract or not; attornment of tenancy or not, a sub-tenant is, for the purposes of ejectment, a tenant and the provisions of the laws must be followed before ejecting him: Dawodu v. Ijale (1946) 12 W.A. CA. 12; Pan African Co. Ltd. v. National Insurance Corp. (Nig.) Ltd. (1982) 9 S.C. 1. This Court has recently decided that the statute will apply to a servant of a company occupying the company’s premises alloted to him by the company: Sule v. Nigerian Cotton Board S. C. 113/ 1984 decided on 7/6/85 now reported in (1985) 2 N.W.L.R. (Part 5) p. 17.
So much for the ejectment Laws. I now turn to the issue of damages which is the main plank in this appeal.
I have already stated the reason which the Court of Appeal gave for refusing to award damages to the plaintiffs. It all turned on the decision of the House of Lords in Rookes v. Barnard (1964) A. C. 1129 in which Lord Devlin severely limited the categories in which exemplary damages could be awarded to:
(i) “oppressive, arbitrary and unconstitutional action by servants of the government”;
(ii) cases “in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff.”; and
(iii) “any category in which exemplary damages are expressly authorized by statute.”
(ibid pp. 1226-1227).
Lord Devlin was quick to acknowledge that the idea of exemplary damages is peculiar to English Law. (ibid. p. 1221). This limitation imposed by Rookes v. Barnard, (supra) was later confirmed by the House in Broome v. Cassell & Co. Ltd. (1972) A. C. 1027.
The Court of Appeal appeared to have treated Rookes v. Barnard as having a binding force on the Courts of this Country. But that is not so. It does not bind the Courts of this country; it has only persuasive authority. There can be little doubt that since the abolition of the Privy Council from the hierarchy of our Courts and the enactment of our Republican Constitution in 1963, English Courts’ decisions are no more binding, but have persuasive, even if, essential value. Equally, Rookes v. Barnard has been held by the Privy Council not to apply to Australia: Australian Consolidated Press Ltd. v. Uren (1967) 3 W.L.R. 1338-not by reason that it was not correct for English law. Indeed, Lord Morris pointed out that the necessity for uniformity in the Common Law of different countries was less in matters such as the one dealt with in Rookes v. Barnard then, for example, in law merchant.
It has to be noted, in any case, that Rookes v. Barnard did not decide that where a plaintiff claims exemplary damages and is unable to prove the same, he cannot be awarded nominal damages, where the liability of the defendant to damages has been established. It does not seem to me right and just that a plaintiff’s claim should be dismissed in its entirety merely because he has claimed a larger sum than the Court considers he deserves. The Court of Appeal held that
“a case for damages might have been made out”
but they could not award general damages
“because no case for the award has been made on the pleadings, the evidence and the law.”
This could not be an accurate assertion. On the pleadings, admitted by the defence, the 2nd and 3rd plaintiffs averred that in their absence the defendant went into the premises and removed their goods without authority. In evidence, the 3rd plaintiff swore that that was so. In law, such forcible interference with their goods was a trespass entitling them to some damages. As Chief Onyiuke has conceded-in my view, rightly-the law presumes nominal damages. The plaintiffs clearly were entitled to an award of damages.
Following the procedure adopted by this Court in Ayodele James (Trading under the name and style of Alileye & Sons) v. Mid-Motors Nigeria Co. Ltd. (1978) 11 & 12 S. C. 31 at 74) I would allow this appeal and hereby allow it. The judgments of the High Court and the Court of Appeal are hereby set aside and in their place judgment is hereby entered against the defendant on the issue of liability.
IT IS HEREBY FURTHER ORDERED that the case be remitted back to the High Court of Lagos, before the same Judge who heard the case, MR JUSTICE C. ADEMOLA JOHNSON, now Chief Judge of Lagos State, for a rehearing on the issue of damages only, in favour of the plaintiffs/appellants, and that the parties be at liberty to call all the evidence necessary for the assessment. N300.00 costs to the Appellants.
OBASEKI, J.S.C.-I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Aniagolu, J.S.C. I agree with him that the appeal be allowed for the reasons stated in the said judgment and the reasons hereinafter appearing. It is the importance and unusual character of the issues raised in this appeal that calls for my comments. The claim appears to be a simple and straightforward one. The 1st plaintiff/appellant claimed N100,000.00 exemplary damages for unlawful entry on the premises at No. 1 Goriola Street, Victoria Island and an injunction restraining the defendant, his servants and agents from continuing such trespass. The 2nd plaintiff claimed Id50,000.00 exemplary damages for trespass to his goods while the 3rd plaintiff also claimed N50,000.00 exemplary damages for trespass to her goods. The 2nd and 3rd plaintiffs also claimed an order of injunction to restrain the defendant, his servants and agents from continuing such trespass. The issues formed on the pleadings came up for hearing before Candide Johnson J. (as he then was). At the conclusion of the hearing, he said and concluded:
“The plaintiffs’ witness put in Exhibit 4 to show the Directors of the first plaintiff company and in that Exhibit neither the name of the second nor third plaintiff appears nor is there any evidence from those whose names appear as Director of the Company that there is any connection between their company and the second-and third plaintiffs.
That being so, it is difficult for the court to determine by what right, if any, the second and third plaintiffs took an action in trespass against the defendant. The first plaintiff who, perhaps from the documents tendered in evidence, might have any issue to join with the defendant was never before the court in this case as I earlier realised.
The plaintiffs therefore, having failed to establish before the court the right to sue in trespass, are bound to fail in this action. The maxim is ubi jus ibi remedium. Since no right is therefore established in the plaintiffs, the action is liable to dismissal.”
The plaintiffs took the matter on appeal to the Court of Appeal on several grounds and succeeded in persuading that Court to reverse important findings of facts. That court held, inter alia:
“We are of the view, therefore, from the foregoing facts that the 1st plaintiff company was not a trespasser but occupied the premises with the acquiescence of the defendant. The 3rd plaintiff gave evidence which was not challenged under cross-examination or contradicted any other evidence, that both herself and her husband lived in the premises and had their (1st plaintiff company) office in the premises with the consent of the defendant; that her husband was a director of the 1st plaintiff company subleased premises from the defendant. That while they were temporarily away from Nigeria, the defendant authorised the ejectment of the plaintiffs and removed the personal effects of 2nd and 3rd plaintiffs without their consent.
Now, the plaintiffs who were in lawful possession cannot be ejected by the defendant before the expiry of the tenancy. If he did, as he eventually did, his action was wrongful and liable in damages for trespass per se. Even if the tenancy had expired and the plaintiffs held over the premises, they were not for that reason trespassers on the premises. As Lord Denning, M.R. said in the case of McPhail v. Persons Unknown (1973) 3 All E. R. 393 p. 399:
‘When a tenancy has come to an end, the landlord is not entitled to take possession except by an order of court and on making the order, the court has the power to fix the date for possession, where the defendant has no statutory right to remain.’
However, the Rent Control Law Cap. 122 Laws of Lagos State S. 13 gave statutory protection to a tenant from eviction except by an order of court in a proceeding regulated by the Recovery of Premises Law Cap. 118 of the Laws of Lagos State.”
Despite the above findings and their conclusion that
“For the foregoing reasons, we are of the clear view that the three plaintiffs were not trespassers on the premises and that the defendant had no right to enter the premises and remove their goods therefrom.”
The Court of Appeal held the appellants not entitled to exemplary damages. The grounds on which the Court of Appeal based its decision are that:
(1) the statement of claim has pleaded no facts upon which any of the three plaintiffs relied on for the award of exemplary damages;
(2) it is not sufficient to plead exemplary damages, the facts on which the plaintiff relies must be clearly stated in the body of the statement of claim;
(3) there is nothing pleaded in the 11 paragraphs of the statement of claim which brings the case within the three limited categories propounded by Lord Devlin in Rookes v. Barnard (1964) A. C. 1129 pp. 1226-1227 and approved by the House of Lords in Broome v. Cassell &. Co. Ltd. (1972) A. C. 102.
The Court of Appeal felt that the appellants were entitled to some damages and lamented its inability to award damages in the following terms:
“we are regretfully unable to award any general damages because they were not claimed nor can exemplary damages be awarded because no case for the award has been made on the pleading, the evidence and the law.”
The plaintiffs were still aggrieved and appealed to this Court. The issues for determination raised in their grounds of appeal and succinctly set out in the appellants’ brief are twofold and read:
“(1) whether a plaintiff who claims exemplary damages in circumstances in which that type of award cannot be made must have his action dismissed in limine.
(2) whether it is the law in Nigeria that award of exemplary damages cannot be made save only in the category of cases laid down by the House of Lords in Rookes v. Barnard (1964) A. C. 1129.”
The appellants, it should be noted, did not appeal against the findings of fact by the Court of Appeal and expressly in their brief, said:
“The appellants do not wish to question the reversal by the Court of Appeal of certain findings of fact made by the high Court.’
Surprisingly, the respondent has not appealed against the reversal by Court of Appeal of certain crucial findings of fact by the High Court. His counsel has by the notice filed, sought to obtain affirmation of the judgment on other grounds. He had an uphill task to find those other grounds in the judgment. In support of the grounds of appeal, learned counsel for the appellants, Chief F. R. A. Williams, S.A.N., submitted that the respondent did not raise the ground or contend that the Court of Appeal could not enter judgment for the plaintiffs because the only type of award claimed was exemplary damages. He submitted that not only was the ground not raised but that it was also not argued. It appears to me that this line of argument overlooks the important fact that the relief claimed from the Court of Appeal was for judgment for exemplary damages.
The law is settled that when a claim of trespass is established, i.e. facts establishing trespass to land or goods are proved and general damages are claimed, the court of trial proceeds to assess, quantify and award the appropriate amount. If special damages are not claimed in addition and proved strictly these will be awarded in addition. If special damages are not claimed or if claimed but are not proved strictly, they will not be awarded. Exemplary damages being in nature general damages together with punitive damages fixed high enough to be not only compensatory out also punitive, it is my opinion that where facts damages can be awarded and ought to be granted if the facts pleaded and proved establish a case of trespass. It was contended in the Court of Appeal and held by that Court that the decision in Rookes v. Barnard (1964) A. C. 1129 ought to be followed.
This then leads me to an examination of the principles enunciated in Rookes v. Barnard. The House of Lords in Rookes v. Barnard (1964) A.C. 1129 rejected exemplary damages or the award of exemplary damages except in three categories of cases as anomalous feature of English Law and reaffirmed that stand in Broome v. Cassell & Co. Ltd. (1972) 2 W.L.R. 647. In the later case, the House was not prepared to follow the Court of Appeal in its criticism of Rookes v. Barnard and held that
“we cannot depart from Rookes v. Barnard here. It was decided neither per incuriam nor ultra vires”
The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit; exemplary damages, punitive damages; vindictive damages, even retributory damages can come into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.
The debate on whether the modern legal system should recognise exemplary damages at all has been on and all in all the case for dispensing with them has been made out. The central argument is that they are anomalous in the civil sphere confusing the civil and criminal functions of the law.
The House of Lords in Rookes v. Barnard held that it is no longer permissible to award exemplary damages against a defendant except in a few exceptional cases, however outrageous his conduct may be. It is acknowledged that the new thinking does not have such drastic effect upon the existing case law as would at first sight appear, for as Lord Devlin pointed out, there is a double rationale behind such awards. He said:
“when one examines the cases in which large damages have been awarded for conduct of this sort, it is not at all easy to say whether the idea of compensation or the idea of punishment has prevailed.” See (1964) A.C. 1129, 1221.
The House considered that practically all the so-called exemplary damages cases could and should be explained as cases of aggravated damages-that is as cases of extra compensation to the plaintiff for the injury to his feelings and dignity. Lord Devlin hoped that the decision of the House would:
“remove from the law a source of confusion between aggravated and exemplary damages which has troubled learned commentators on the subject. Otherwise, it will not, I think, make much difference to the substance of the law or rob the law of the strength which it ought to have. Aggravated damages in this type of case can do most if not all of the work that could be done by exemplary damages. In so far as they do not, assaults and malicious injuries to property can generally be punished.” As Broomes. See also (1964) A.C. 1129, 1230.
The weighty submissions of counsel for the parties to this appeal deserve high commendation. It is observed that counsel for the appellant concentrated his criticism on the failure of the Court of Appeal to award damages of any sort even nominal damages after making findings of fact clearly establishing liability of the respondent in trespass to land and to goods. Learned counsel for the respondent while commending the dismissal of the appeal found little comfort in the reversal of the findings of fact made by the learned trial judge dismissing them as made in disregard of the pleadings. However, the failure of the respondent to cross-appeal disabled learned counsel from continuing his line of argument when the court drew attention to the absence of a cross-appeal.
The admission, by the defendant on the pleadings, of entry into the premises and removal of the goods found there without the permission of their owners gave added weight to the evidence of the 3rd plaintiff to the effect that the 2nd and 3rd plaintiffs were on the premises with the consent of the defendant; that the premises was let to the 1st plaintiff; and that the defendant had approved of the occupation by the 1st plaintiff. Counsel for the respondent conceded that on proof of trespass, the law presumes nominal general damages. The absence of any pleading and claim of special and general damages by the appellant was constantly brought to the attention of the court. The failure of the respondent to obtain an order of court before entering the premises and removing the goods did strengthen the case of the appellants and establishes the liability of respondent in trespass.
It is not the law of this country that a landlord has unbridled right to invade premises in the lawful occupation of a tenant and cart his goods and belongings away even for safe keeping, more so when the intention of the landlord is to recover possession after refusal by the tenant to pay higher rent.
Where the landlord brushes aside the necessity to obtain an order of court of possession and jettisons the rule of law, enters the premises and takes possession, he has invaded and committed an infraction of the rights of the tenant and renders himself liable in trespass.
What did the respondent Green Mbadiwe intend by his action? Certainly, he intended to eject the three plaintiffs and obtain possession by unlawful means probably to satisfy his desire for better terms of tenancy. Surely, our law must and does frown on such conduct. It is observed that English Law frowns on such conduct, see McPhail v. Persons Unknown (1973) 3 All E.R. 393 at p. 399, so does Nigerian Law, see Amos Brothers & Co. Ltd. v. British West African Corporation 14 W.A.C.A. 250.
The misconception that the appellants were in unlawful possession cannot help the respondent. In fact, there was no basis for such conception as the evidence shows that the respondent was in negotiation with the 1st appellant for better or more favourable conditions and terms of tenancy on the expiration of the sub-lease granted it which was due on the 23rd December, 1976. Resort to self help in such circumstances and even in any event against a tenant in lawful occupation does not come within the purview and provision of the law. Possession from a tenant in lawful occupation must only be obtained by the help of an order of court made after hearing the parties. See Dawodu v. Ijale (1946) 12 W.A. C.A. 12; Pan African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) 9 S. C. 1; Sale v. Nigerian Cotton Board (1985) 2 N. W. L. R. (Part 5) 17.
Having settled the issue of liability in trespass, I now proceed to consider the issue of damages.
The decision in Rookes v. Barnard (1961) A. C. 1129 limited cases in which exemplary damages may be awarded to:
“(i) oppressive, arbitrary and unconstitutional action by servants of the government;
(ii) cases in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff; and
(iii) any category in which exemplary damages are expressly authorised by statute”
The appellants’ case could well be dealt with under and comes within the category of cases in (ii) above. However, Rookes v. Barnard was decided by the House of Lords in 1964. By then, the Privy Council which used to be the final Court of Appeal had ceased to be the final court of appeal for cases emanating from Nigeria in keeping with Nigeria’s independent status acquired in 1960 and re-emphasised in 1963 in the Nigerian Republican Constitution of the Federation. The decision on Rookes v. Barnard does not therefore bind the Court of Appeal in this country. It however has persuasive effect. It is therefore still good law in Nigeria that exemplary damages can be awarded by Nigerian courts when claimed and proved.
However, it was not proved in the instant appeal but liability for general damages for trespass was proved although not claimed specifically. Rookes v. Barnard did not decide that general damages cannot be awarded where exemplary damages are claimed and not proved. It is of interest to observe that Lord Devlin’s brief analysis of decided cases which were accepted as precedents in claims for exemplary damages revealed that it was not possible to say that there was a dividing line between them and aggravated damages. He found that they were in the main cases of aggravated damages. Australia has not accepted the decision in Rookes v. Barnard and the Privy Council has refused to apply it to Australia. See Australian Consolidated Press Ltd. v. Uren (1967) 3 W.L.R. 1338.
However, the case for acceptance is weighty. For the above reasons and the further reasons in the judgment of my learned brother, Aniagolu, J.S.C., I would and I hereby allow the appeal, set aside the judgment of the Court of Appeal on the question of Images and remit the case to the High Court, Candide Johnson, J. for rehearing on the issue of damages only. I am also in agreement with the other orders made by my learned brother, Aniagolu, J.S.C.
UWAIS, J.S.C.-I have had the opportunity of reading in draft the judgment read by my learned brother Aniagolu, J.S.C. I agree that the appeal be allowed with N300.00 costs to the respondent; and the case be remitted to the High Court for the damages to be assessed by Johnson, C.J. The parties shall be at liberty to amend their pleadings on the issue of damages and to call evidence if they wish.
KAZEEM, J.S.C.-I have had the advantage of reading the draft of the judgment just read by my brother Aniagolu, J.S.C. and I entirely agree that it has carefully dealt with all the issues canvassed before us. I only wish to add this little point by way of emphasis.
This appeal was essentially one against the decision of the Court of Appeal on the issue of failure to award exemplary damages claimed by the appellants, having found that the respondent was liable on the claim for trespass against him. If the issue had therefore been limited to that aspect, this appeal would probably not have suffered the delay of not being heard before now since it was first filed in August 1979. It is to be noted that the findings of facts on the issue of trespass made by the trial court, were to a great extent reversed by the Court of Appeal, and consequently that court found in favour of the appellants, that the respondent was liable on the claims for trespass committed against all the appellants.
Against that decision, the respondent did not cross-appeal; but learned counsel for the respondent sought for and obtained an order under Order 7, rule 13(2) of the Rules of the Supreme Court 1977 to support the judgment on grounds other than the grounds relied upon by the Court of Appeal. He based his application on the fact that the decision of the Court of Appeal in reversing some findings of the trial judge and in dismissing the appellants’ claims nonetheless was reached without reference to the pleadings of the parties at the trial. Hence during the appeal, learned counsel for the respondent attacked those findings of the Court of Appeal. But he could not do that without specifically cross-appealing against those findings of fact. See African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) S. C. 235 where the respondent had filed a similar notice and this court made the observation that:
“We would like to say here ………… that a party seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and not by an application to vary.”
On the question of damages, I do not wish to express any view on the issue at this stage, since it is yet to be decided at the retrial ordered in this case. However it may be rewarding to see the case of Drane v. Evangelou (1978) 2 All E. R. 437.
Having said that much, I will also allow the appeal and set aside the judgment of the Court of Appeal; and instead, I hereby enter judgment in favour of the appellants on the issue of liability for trespass. In addition, I associate myself with the Order made in the lead judgment for remitting the case to the High Court of Lagos before Candide Johnson, C.J. for rehearing on the issue of damages.
OPUTA, J.S.C.-I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Aniagolu, J.S.C. I am in entire agreement with his reasoning and conclusions that this appeal be allowed and that the case be remitted to the Lagos High Court for the issue of damages only to be tried and determined by Johnson, C.J., Lagos, who as judge of Lagos High Court heard the case initially. Parties will be free at this trial to file further pleadings and/or call further evidence on the issue of damages.
There is however an aspect of the appeal I will like to comment on, at least for greater emphasis, namely whether in the surrounding circumstances of this case including the findings made by the Court of Appeal, the best course open to the Respondent was not a cross-appeal to reverse those findings rather than the procedure under Order 7, Rule 13(1) of the Supreme Court Rules 1977. The facts were fully gone into in the lead judgment. I will therefore set out only so much of those facts as are necessary to enable me develop the argument.
The facts of this case are not complicated at all. Rather they are quite simple and straightforward. The case as pleaded by the Plaintiffs, now Appellants is as follows:
The Defendant, now Respondent, is admittedly the registered owner of the premises at No. 1 Goriola Street, Victoria Island-the premises involved in this dispute. The case for the defendant as pleaded was:
From the pleadings of both parties, the main and crucial issues seemed to be:-
The trial court, the Lagos High Court, tried the case and found that the Plaintiffs especially the 2nd and 3rd Plaintiffs were not in lawful possession of the premises. With regard to the 1st Plaintiff, the learned trial judge noted:
“The first Plaintiff who perhaps from the documents tendered in evidence might have any issue to join with the Defendant was never before the court in this case as I earlier remarked.”
Finally, in dismissing their action, the learned trial judge observed:
“The Plaintiffs therefore, having failed to establish before the court the right to sue in trespass are bound to fail in this action ….. Since no right is therefore established in the Plaintiffs, the action is liable to dismissal. In the circumstances, the claim is accordingly dismissed ……”
The Plaintiffs then appealed to the Court of Appeal, Lagos Division on grounds including errors in law, misdirection and basically that the decision of the trial court was against the weight of evidence. In a rather detailed judgment, Coker, J.C.A. (as he then was) with Okagbue and Uthman Mohammed, M.C.A. concurring, considered all the points and issues agitated in the appeal but in the end dismissed the appeal solely on the ground that the Plaintiffs had not sufficiently pleaded the facts on which they relied for their claim of exemplary damages. The Court of Appeal observed:
“In our view, it is not sufficient to plead exemplary damages, the facts on which the Plaintiff relies must be clearly stated in the body of the Statement of Claim. In the result, although we are of the view that a case for damages might have been made out for the 1st and 2nd or3rd Plaintiffs, we are, regretfully, unable to award any general damages because they were not claimed nor can exemplary damages be awarded because no case for the award has been made on the pleadings, the evidence and the law.”
The underlining is mind: I did so firstly for greater emphasis of the reasons given by the court below for dismissing the appeal; secondly because that passage presupposes that a case for damages was in fact made out and thirdly because the entire appeal to this Court is a spirited attack on the view of the law taken by the Court of Appeal as expressed in the passage underlined.
The question now arises-Was a case for damages, be it general damages and no more, made out? The trial court said No but the Court of Appeal said Yes. This then raises a further and more fundamental question-Can an appellate court substitute its own findings for those of the trial court that saw, heard and believed? There is no doubt that an appellate court is understandably very reluctant to reverse the findings of the trial judge who had the advantage of seeing the witnesses; of hearing them give evidence, with or without equivocation or mental reserve; and thus forming an opinion on their demeanour. But having said this, an appellate court still has a duty to form its own independent opinion-call this making its own findings of fact-upon that evidence especially where the issue does not depend on the credibility of those witnesses but is rather the proper deduction to be drawn from the evidence which is admittedly not in dispute:- Christian Yao Kisiede & Ors. v. Djorbnah Denpreh & Ors. (1935) 2 W.A. C.A. 268 at p. 272 refers. See also Mersey Docks v. Procter (1923) All E.R. Reprint 136 per Viscount Cave, L.C. Whether the Plaintiffs in this case, from the totality of the evidence led, were in lawful possession of the premises at No. 1 Goriola Street, Victoria Island, is a conclusion which can be drawn by a trial court as well as by an appellate court. Where therefore, as in this case, the sole question is the proper inference to be drawn from the specific facts, here the evidence of the 3rd Plaintiff was not controverted, the court below was in as good a position as the court of first instance to draw that inference. The drawing of inferences or conclusions from admitted or established or uncontroverted facts is not a monopoly of a trial court:- Benmax v. Austen Motor Co. Ltd. (1955) A. C. 370 at p. 375: (1955) 1 All E. R. 326 at p. 328.
Applying the above principles to the facts led in evidence in this case, the Court of Appeal was perfectly justified in findings as it did at p. 107 of the Record:-
iii. That the Defendant wanted the term of the lease reduced by a year as indicated in Ex. 1 and that he was resiling from his previous demand of an ex gratia payment of N3,000.00 before executing the sublease of the premises.
vii. That the Defendant wanted a re-negotiation of the sublease and when the 1st Plaintiff refused or neglected to comply with his demands, the Defendant ejected the Plaintiffs from the premises and removed the personal effects of the 2nd and 3rd Plaintiffs forcibly without their consent.
viii. That the Plaintiffs who were in lawful occupation cannot be so ejected by the Defendant.
The above are formidable findings of fact in favour of the Plaintiffs as well as utterly devastating against the Defendant.
Chief Williams, S.A.N. obviously accepted the above findings with open hands. He is not complaining against any of them. He has not appealed against any of them. His appeal is limited solely and wholly to the refusal of the Court of Appeal to award the Appellants damages inspite of their findings listed above. Chief Onyiuke for the Defendant/ Respondent had not also appealed against the judgment of the Court of Appeal. He has merely asked that that judgment be upheld on other grounds-namely on the grounds upon which the trial court dismissed the Plaintiff’s case-that is, that the Plaintiffs were not in lawful possession of the premises. The question then arises-Can this Court, without an appeal to it from the findings of fact to the Court of Appeal reverse those findings (which may be right or wrong) and restore the findings of the trial court which themselves had been reversed by the Court of Appeal? In other words, what is the extent of the powers of this Court when a Respondent applies under Order 7, Rule 13(1) of the Supreme Court Rules 1977, that the judgment of the court below should be affirmed on other grounds? Alternatively, is affirming a judgment on other grounds a substitute for a cross-appeal questioning the law, the facts or the findings of fact on which the Court of Appeal relied or questioning the reversal of the findings of the court of first instance by the Court of Appeal?
Appellate jurisdiction to hear and determine appeals from the Court of Appeal is conferred on this Court by Section 213 of the 1979 Constitution. Neither Section 277 of the 1979 Constitution-the Interpretation Section-nor the Interpretation Act Cap. 89 of 1974 defined the word appeal but I do not think that there is any doubt that an appeal will include any proceeding taken to rectify an erroneous decision of a lower court by a higher court. It may be an error in evaluating the facts or an error in understanding the pleadings and thus in appreciating the live issues raised on those pleadings. The latter example of error was Chief Onyiuke’s mainstay and trump card. It may even be an error in applying the law to the facts as found. The error may also be a misapprehension by the lower court as to what the antecedent presumptions were and therefore on whom the onus of proof lay. All these are errors which can be committed by a trial court. The appellate court-here the Court of Appeal, Lagos Division-can itself be in error and that is why Section 213 of the 1979 Constitution conferred on this Court appellate jurisdiction to correct any error committed by the Court of Appeal, that is to say to review the proceedings of that court either as to law or fact mixed law and fact. In my humble view, where, as in this case, a Respondent seeks to vary the findings of the Court of Appeal, he should do so by way of a cross-appeal because it is on those findings that any decision in the appeal one way or another can correctly be made:- Daqlish v. Barton 68 L.J. Q.B. 1044. In any event, the purpose of a cross-appeal is to correct an error standing in the way of a Respondent in the main appeal. In the case on appeal, unless the findings of the court below are reversed, there is no way the Defendant/ Respondent can escape liability for trespass. Those findings have not been appealed against and they remain (right or wrong) intact.
I will now consider the provisions of Order 7, Rule 13(1) of the Supreme Court Rules 1977 (now Order 8, Rule 31 of the Supreme Court Rules 1985) dealing with affirming the judgment appealed against on other grounds. That Order stipulates:
“Order 7, Rule 13
(1) It shall not be necessary for the Respondent to give notice of motion by way of cross-appeal, but if a respondent intends upon the hearing of the appeal to contend that the decision of the court below should be varied, or that it should be affirmed on grounds other than those relied on by that court he shall within one month after service on him of the notice of appeal cause written notice of such intention to be given to every party who may be effected by such contention ……….. In such notice the respondent shall clearly state the grounds on which he intends to rely …….”
(The underlining is mine.)
The most important word in the rule reproduced above is “decision.”
By Section 277(1) of our 1979 Constitution:
‘decision’ means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.”
Decision as defined above does not mean judgment although it includes a judgment. In the case on appeal, the fulcrum around which everything else revolves is the issue whether or not the Plaintiffs were in lawful possession or in unlawful possession and therefore trespassers. The determination of the Court of Appeal was that the Plaintiffs were all in lawful possession. They were not trespassers. It was also a determination of the Court of Appeal that the Defendant’s action amounted to trespass. If these two determinations or decisions are affirmed as requested by the Defendant/Respondent in his notice, then the logical and, in fact, the only result will be not a dismissal of the appeal, definitely not, but the allowing of the appeal. Chief Onyiuke, S.A.N. gallantly conceded that if trespass is proved against the Defendant, the Plaintiffs’ claim for exemplary damages will be no reason or excuse for denying. the successful Plaintiffs some damages, be that general or even nominal. Both parties-Plaintiffs/Appellants and Defendants/Respondents therefore agreed that the Court of Appeal was wrong in not awarding damages of any kind simply because exemplary damages were claimed. What decision of the Court of Appeal now remains to be affirmed on grounds other than those relied upon by the court below? I do not see any. The ground relied upon by the Court of Appeal in dismissing the Plaintiffs’ appeal was unfortunately erroneous and cannot be affirmed in any event and on any ground. The present appeal does not therefore lend itself to the invocation of the procedure under the then Order 7, Rule 13 now Order 8, Rule 3, Rules of the Supreme Court 1985. It lends itself only to a cross-appeal to reverse the pernicious and devastating findings of the court below without which this Court cannot but allow the appeal. A Respondent can only come under Order 8, Rule 3 of the Supreme Court Rules for (or the old Order 7, Rule 13) if on the facts and on the law the decision of the court below will in any event be affirmed. This view is clearly brought out by the decision of this Court in Lagos City Council v. Emmanuel Ayodeji Ajayi (1970) M. All. N.L.R. 291 at p. 296:
“Another characteristic of Order 7, Rule 13(1) is that it is applicable only where the Respondent intends to retain the judgment but at the same time wants it varied, so where a respondent intends for instance to dispute the jurisdiction of the court or trial or to contest the competency of the entire proceedings or to maintain the absence of a fundamental pre-requisite it seems he cannot come under this rule. In that case he has to file a substantive cross-appeal. The basis for this is clear for a man cannot at the same time obtain an advantage by maintaining a particular standpoint and then seek to discard that same stand-point whilst keeping the advantage.”
In the above case, the court was dealing with the variation arm of the Order. It is my humble view that the same principle will apply to the affirmation arm of the same Order 7, Rule 13. Chief Onyiuke, S.A.N., concentrated his entire fire power on the competence of the Court of Appeal to make the findings it made when, it is alleged that, the case as pleaded was not the case that that court considered and when it was further alleged that some of the facts relied on by the court below were not even pleaded. These are matters for a cross-appeal pure and simple.
It is for the above reasons and also for the fuller and more exhaustive reasons given in the lead judgment of my learned brother, Aniagolu, J.S.C. that I too will allow this appeal. I adopt all the consequential orders made in the lead judgment.