3PLR – BHOJSONS PLC V. DANIEL-KAILO
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
BHOJSONS V. DANIEL-KAILO
BHOJSONS
V.
DANIEL-KAILO
IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRLDAY THE 17THDAY OF FEBRUARY. 2006
SC.59/2002
3PLR/2006/27
OTHER CITATIONS
(2006) 5 NWLR (Pt.973} 330
BEFORE THEIR LORDSHIPS
SYLVESTER UMARU ONU, JSC
ALOYSIUS IYORGYER KATSINA-ALU, JSC
NIKI TOBI, JSC
GEORGE ADESOLA OGUNTADE, JSC
MAHMUD MOHAMMED, JSC
BETWEEN:
BHOJSONS PLC PLAINTIFF /APPELLANT
AND
GEOFFREY K. DANIEL-KALIO DEFENDANT/RESPONDENT’
(Has an issue from page20-down)
SUMMARY OF FACTS
In the course of the hearing to pursue these claims at the trial High Court, the Appellant called 3 witnesses who gave evidence on its behalf while the Respondent testified in his own defence and called one other witness.
The Plaintiff/Appellant’s case was that in 1972, leased property at No. 25 Aba Road Port Harcourt from the Defendant/Respondent for the term of 30 years. The property was used as a supermarket and a warehouse. However, during the currency of the term of the lease, the Defendant/Respondent sued the Plaintiff/Appellant before a Rent Tribunal in 1992, claiming possession of the property which relief was granted by the Tribunal on 4/10/1993. On the orders of the Tribunal, its judgment was executed the same day against the Plaintiff/Appellant resulting in destruction of properties and causing heavy losses of business, profit and goodwill.
On the part of the Defendant/Respondent however, he denied leasing the property for 30 years to the plaintiff/Appellant. He claimed that the Plaintiff/Appellant was a yearly tenant whose tenancy was duly determined by a notice to quit. The action instituted at the Rent Tribunal was to claim possession of the property at the expiry of the notice to quit and judgment was given in favour of the Defendant/Respondent on 30/9/1993 which was executed on 4/10/1993 without causing any damage to property.
After hearing addresses from the learned counsel, the learned trial Judge delivered her judgment on 26/9/1996 in which she refused and dismissed all the claims of the Appellant as Plaintiff.
Aggrieved by the decision of the trial High Court, the Appellant appealed. The Court of Appeal allowed the appeal but declined to wade into the complaint of the Appellant on damages as that complaint was not supported by any ground of appeal.
The Appellant appealed to the Supreme Court.
MAIN ISSUES
PRACTICE AND PROCEDURE – Whether the lower Court was right in declining to assess and award damages to the Appellant.
unanimously dismissing the appeal and striking out the cross-appeal.
PRACTICE AND PROCEDURE – On duty of a trial Court to assess the damages proved and payable even if the claimant had not proved his entitlement to same.
In cases involving the assessment of damages it is the duty of a trial Court or tribunal to assess the damages proved and payable even if that Court had decided that the entitlement of the claimant thereto had not been proved. This course obviates the necessity of sending back a case where no other course is justifiable merely for the purpose of assessing such damages and unduly mulcting the litigants in the expenses of unnecessary retrials.
PRACTICE AND PROCEDURE – On whether a Court can grant a relief not asked for.
A Court has no jurisdiction to grant a relief not asked for.
PRACTICE AND PROCEDURE – On whether the issue of award of damages can be considered by a Court under the omnibus ground of appeal.
A Court cannot consider the issue of award of damages under the omnibus ground that the judgment is against the weight of evidence.
PRACTICE AND PROCEDURE – On impropriety of raising specific questions on matters like issues of damages on omnibus ground of appeal.
It is trite that there are several decisions of this Court warning parties particularly those in desire to exercise their right of appeal that such parties cannot hide behind an omnibus ground of appeal to raise specific questions on matters like issues of damages, in the absence of specific grounds of appeal raising the questions.
PRACTICE AND PROCEDURE – On bindingness of processes and issues on Courts.
Courts are bound by the processes placed before them. They have no business to dabble with issues not placed before them.
PRACTICE AND PROCEDURE – On duty on Court to confine its judgment to issues raised by the parties.
In the determination of disputes between the parties in Court, the Court must ensure that its judgment is confined to the issues raised by the parties.
PRACTICE AND PROCEDURE – On presumption of correctness of judgment of a trial Court and burden on the Appellant.
There is a presumption that the judgment of the trial Court is correct, and the burden of showing the contrary is always on the Appellant.
PRACTICE AND PROCEDURE – On purpose of grounds of appeal.
The whole purpose of grounds of appeal is to give notice to the Respondent of the errors complained of.
PRACTICE AND PROCEDURE – On duty on an appellate Court to refuse to be drawn into a correction of errors not appealed against.
When an appellate Court in the course of hearing an appeal forms the impression that the Court below made some errors, which ought to have been appealed against, but which were not, the appellate Court must show aloofness and refuse to be drawn into a correction of errors not appealed against.
PRACTICE AND PROCEDURE – On duty on Court of Appeal to confine itself to issues placed before it.
When an issue is not placed before a Court of Appeal, the Court has not business whatsoever to deal with it.
A Court of Appeal is not a knight errant looking for skirmishes all about the place.
PRACTICE AND PROCEDURE – On duty on an appellate Court to confine itself to issues placed before it.
When an issue is not placed before an appellate Court, that Court has no business whatsoever to deal with it.
The appellate jurisdiction of the Court of Appeal being statutory, must be exercised in accordance with the statutes conferring the jurisdiction particularly the provisions of the Constitution. Therefore if a finding or decision of a trial Court whether on an issue of fact or law is not challenged in an appeal to the Court of Appeal, such finding or decision, rightly or wrongly, must not be disturbed in the hearing of the appeal.
PRACTICE AND PROCEDURE – On duty on an appellate Court to consider an appeal on the grounds of appeal placed before it.
The Court of Appeal is only entitled to consider an appeal on the grounds of error of law or fact committed by the trial Court placed before the Court of Appeal on grounds of appeal filed. An Appellant cannot without leave of Court be heard on any other grounds. The Court of Appeal cannot pronounce on issue or finding on which the parties have not appealed against.
PRACTICE AND PROCEDURE – On duty on the Court to confine itself to issues raised by the parties and duty on a Court when it raises an issue suo motu.
Where an Appellant relies on any ground, this must be properly raised either by way of a ground of appeal, or as a cross-appeal in case of a Respondent. Any issue not raised in a ground of appeal in this manner is clearly not before the Court. Accordingly, it is not open to the Court to raise an issue which the parties have not raised. Where a Court decides to raise such an issue because it is material for the determination of the appeal before it, the parties must be given an opportunity to argue the point before any decision is taken on it.
PRACTICE AND PROCEDURE – On duty on an appellate Court to confine itself to issues raised by the parties and duty on the Court when it raises an issue suo motu.
An appellate Court must confine itself to the issues raised by the parties before it. In other words it is not open to the appellate Court to raise an issue which the parties did not raise themselves in the course of the hearing of the appeal. If however the appellate Court decides to or feels inclined to raise an issue for whatever reason, that Court should give the parties an opportunity of making their comments upon it before taking a decision on such issue. To do otherwise will be to deny the parties the opportunity of being heard and lead to a miscarriage of justice.
PRACTICE AND PROCEDURE – On bindingness of the appellate Court by the notice and grounds of appeal.
As trial Courts are bound by the pleadings before them, so are the appellate Courts bound by the notice and grounds of appeal.
PRACTICE AND PROCEDURE – On attitude of Supreme Court to hypothetical or academic issues.
The Supreme Court has long refrained from entertaining hypothetical or academic issues.
PRACTICE AND PROCEDURE – On meaning and bindingness of grounds of appeal.
Grounds of appeal are the complaints of the Appellant on the judgment appealed against. They are the pillars on which the entire appeal stand and an appellate Court cannot go outside them in search of greener pastures for any of the parties. Where an issue before a trial Court is not raised by a ground of appeal, the issue cannot be taken by the appellate Court because it is not before that Court. Issues coming for adjudication before an appellate Court are erected by the ground or grounds of appeal.
MAIN JUDGMENT
MOHAMMED JSC [ Delivering the Lead Judgment]
This is an appeal against the decision of the Court of Appeal Port Harcourt Division delivered on 11/5/2000 in which that Court allowed the appeal of the Appellant against the judgment of the High Court. At the High Court of Justice of Rivers State in Port Harcourt, the Appellant in this appeal as the Plaintiff in that Court instituted an action against the Respondent as the Defendant and in paragraph 25 of the Statement of Claim, the following reliefs were sought:
“25. Wherefore the Plaintiff’s claims against the Defendant are as follows:-
(i) A declaration that the execution of judgment levied against the Plaintiff by the Defendant on the 4th of October, 1993, at No. 25 Aba Road Port Harcourt within the jurisdiction of the Honourable Court pursuant to the judgment delivered the same day, 4th October, 1993 in Suit No. PRT/1041/92 was wrongful, illegal and therefore null and void and ought to be set aside.
(ii) The sum of N50,000,000.00 (fifty million naira) being special and General damages for loss suffered by Plaintiff by reason of the wrongful and unlawful acts of the Defendant. This amount is broken down as follows:
(a) N6,775,815.61 for loss of goods and stocks and N4,227,217.38 incurred as a result of increase in rent.
These sums, totaling N11,003.032.99 are hereby claimed as special damages.
(b) N20,250.00 representing the loss of profit for the remaining (9) nine years and N18,746,967.01 representing loss of business, goodwill and the high cost of re-establishing the business. These sums, totaling N38,996,967.01 are hereby claimed as general damages.
(iii) A declaration that the agreement made between the Plaintiff and the Defendant in 1972, confirmed by letters written by the Defendant dated 14th February, 1972 and 27th April, 1974, in respect of No. 25 Aba Road is valid and subsisting.
(iv) An injunction restraining the Defendant by himself or his servants and/or agents from subletting the property to any person or body corporate until the determination of this suit”.
In the course of the hearing to pursue these claims at the trial High Court, the Appellant called 3 witnesses who gave evidence on its behalf while the Respondent testified in his own defence and called one other witness. The Plaintiff/Appellant’s case was that in 1972, leased property at No. 25 Aba Road Port Harcourt from the Defendant/Respondent for the term of 30 years. The property was used as a supermarket and a warehouse. However, during the currency of the term of the lease, the Defendant/Respondent sued the Plaintiff/Appellant before a Rent Tribunal in 1992, claiming possession of the property which relief was granted by the Tribunal on 4/10/1993. On the orders of the Tribunal, its judgment was executed the same day against the Plaintiff/Appellant resulting in destruction of properties and causing heavy losses of business, profit and goodwill.
On the part of the Defendant/Respondent however, he denied leasing the property for 30 years to the plaintiff/Appellant. He claimed that the Plaintiff/Appellant was a yearly tenant whose tenancy was duly determined by a notice to quit. The action instituted at the Rent Tribunal was to claim possession of the property at the expiry of the notice to quit and judgment was given in favour of the Defendant/Respondent on 30/9/1993 which was executed on 4/10/1993 without causing any damage to property.
After hearing addresses from the learned counsel, the learned trial Judge delivered her judgment on 26/9/1996 in which she refused and dismissed all the claims of the Appellant as Plaintiff. Part of this judgment which is relevant in this appeal at pages 107-108 of the record reads:
“In the case in hand each party had taken a firm stand as to what transpired in relation to the delivery of the judgment. It was necessary that some extra piece of evidence to break that impasse was most essential. The way out would have been the learned Magistrate testifying but then that is wishful thinking as he is now deceased. Therefore the clerk of Court who was present at both dates of 30/9/1993 and 4/10/1993 or even at only one of the dates to tilt the balance one way or the other was essential especially when the judgment without cancellations or anything out of the ordinary showed it was on the 30th September, 1993. The same appearing on the cause list of the same day. The Plaintiff failing to call that essential witness calls into effect the provisions of S.149 (d)” Evidence Act to the conclusion that if he had been called his evidence would not have been favourable. No mention was even made as to what effort- they made to bring any witness to settle that issue. The case being on the balance of probability that balance is in favour of the defence. It is there (sic) not necessary to talk about damages special or general as the Plaintiff failed to prove its case as requited by law. The suit is therefore dismissed and all the reliefs failed.”
Aggrieved by this decision of the trial High Court, the Plaintiff now Appellant, lodged appeal at the Court of Appeal Port Harcourt Division upon filing 6 grounds of appeal challenging the decision of the trial Court. Having regard to the relevance of these grounds of appeal to which I shall return later in this judgment. I shall quote them below without the particulars.
“Ground One
The learned trial Judge erred in law when she found that if the judgment in Suit No. PRT/1041/92 had been delivered on the 4th October, 1993 and no other earlier date, the execution on that same day would have been irregular and there would have been need to avoid such an irregular act but if the judgment was delivered on 30th September, 1993 and execution levied on the 4th October 1993, it would be regular.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXX
Ground Two
The learned trial Judge was in error in failing to resolve the principal issue at the trial: whether judgment in Suit No. PRT/1041/92 had been delivered on the 4th October. 1993 or on the 30th September, 1993 and whether execution of the said judgment on 4th October, 1993 was regular.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Ground Three
The learned trial Judge misdirected himself in law and thereby occasioned a miscarriage of justice when she held as follows:
“In the case in hand each party had taken a firm stand as to what transpired in relation to the delivery of the judgment, it was necessary that some extra piece of evidence to break the impasse was most essential….. Therefore the clerk of Court who was present at both dates of 30/9/1993 and 4/10/1993 or even one of the dates to tilt the balance one way or the other was essential…. The Plaintiff failing to call that essential witness calls into effect the provisions of Section 149(d) Evidence Act to the conclusion that if he had been called his evidence would not have been favourable. No mention was made as to what effort they made to bring any witness to settle that issue. The case being on a balance of probability that balance is in favour of the defence.”
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Ground Four
The learned trial Judge did not properly evaluate the evidence before her and failed to make a finding whether the execution of the judgment which was levied against the Plaintiff on 4th October, 1993 was wrongful, illegal and a nullity despite abundance of evidence when:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Ground Five
The learned trial Judge erred in law when she declined jurisdiction to make a declaration to the rights of the parties which had been adversely affected by the wrong committed by the Respondent.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Ground Six
Judgment is against the weight of evidence”
In its brief of argument, the Appellant in the Court below formulated three issues from the six grounds of appeal filed by it. The issues at page 121 of the record of appeal are:-
(i) Whether execution of the judgment on 4th October, 1993, is legal having regard to Order IV Rule I( 1) and (2) of the Judgments (Enforcement) – Rules made under Section 94 of the Sheriffs and Civil Process Act, 1990.
(ii) Whether the fact that the Plaintiff did not call as a witness the clerk of the Rent Tribunal which ordered possession was fatal to the Plaintiff’s case.
(iii) Whether the learned trial Court properly evaluated the evidence and made correct finding of the facts on the evidence led before her.”
After hearing the appeal on the respective briefs of argument filed by the Appellant and the Respondent who also relied on the Respondent’s Notice Filed by him, the Court below in its judgment delivered on 11/5/2000, allowed the appeal but declined to wade into the complaint of the Appellant on damages as that complaint was not supported by any ground of appeal. This is what Ikongbeh JCA said in his lead judgment at pages 168-169 of the record:-
“On the whole, I hold that the learned Judge adopted the wrongful approach to the handling of the case before her and came to the wrong conclusion on the first relief in the Appellant’s claim. She ought to have granted it. The appeal as it relates to that relief accordingly succeeds and is allowed by me. The order of the Judge,
Odili, J., dismissing it is set aside and in its place I make the declaration sought.
I have examined the six grounds of appeal but found none attacking the conclusion of the learned Judge that
“it is there (sic) not necessary to talk about damages special or general as Plaintiff failed to prove its case as required by law.” None of the three issues formulated on its behalf relate to it. Clearly, therefore, we have not been called upon to do anything about it. I say no more on that.”
It is against this judgment of the Court of Appeal that the Appellant in that Court who though was the successful party, was still dissatisfied with it and has now further appealed to this Court principally on the failure of the Court of Appeal to consider it’s claim for damages. From the two grounds of appeal filed by the Appellant, two issues were identified as follows in the Appellant’s brief of argument.
“(i) Whether the lower Court was right in declining to assess and award damages to the Appellant.
(ii) Whether there exists on the record of the lower Court enough evidence on which an assessment of Special and General Damages could be made in favour of the Appellant.”
The Respondent in his brief of argument saw the first issue in the Appellant’s brief of argument as the only issue arising for determination in the appeal. I entirely agree.
It was argued for the Appellant that the duty to consider a claim for award of damages is not exclusive to the trial Court as an Appellate Court equally has a duty to deal with such issues on appeal. The case of Pavex v. Afribank (2000) 4 SC (Pt. 11) 191 at 212 was called in aid. As for the power of the Court of Appeal to assess damages where a trial Court failed to do so on the face of the material available on record, reliance was placed on Overseas Construction v. Creek Ent. Ltd (1985) 3 NWLR (Pt.13) 407. Finally, the Appellant insisted that the Court below was at liberty to consider the issue of damages even though it was not specifically made a ground of appeal as laid down in Anyim Mba & 2 Ors v. Agbafo Agu & Ors. (1999) 9 SC. 73 at pages 80-83.
The Respondent however contends that having regard to the six grounds of appeal and the three issues distilled from the grounds of appeal filed by the Appellant, there was no appeal at all on the failure of the trial Court to consider the award of general and special damages; that the lower Court was quite right in declining to look into the claim for general and special damages as it was rightly guided by the case of Oshodi v. Eyifunmi (2000) 7 SCNJ 295 at 323; Adeyemi & Anor v. Olakunri & Ors (1999) 12 SCNJ 224 at 229; Lawani Ali & Anor v. Chief Gbadamosi Alesinloye &. 8 Ors (2000) 6 NWLR (Pt. 660) 177 at 212 and Oshatoba v. Olujitan &Anor (2000) 5 NWLR (Pt. 655) 159 at 170.
I have deliberately quoted in full earlier in this judgment the contents of paragraph 25 of the Appellant’ Statement of claim as the Plaintiff at the trial High Court to bring out in full view, the four items of reliefs claimed. The relief which is the subject of this appeal is the second one in which the Appellant claimed N50,000,000.00 as special and general damages and proceeded to give the break down of the various heads of the items of damages claimed against the Respondent arising from the wrongful execution of the judgment of the Rent Tribunal. The other three remaining reliefs claimed comprised a declaratory relief that the execution of the judgment of the Rent Tribunal was wrongful, illegal, null and void, a declaratory relief that the agreement entered between the parties in 1972 in respect of the leased premises No. 25 Aba Road Port Harcourt was valid and subsisting and an injunction restraining the Defendant from subletting the property to other persons until the determination of the Appellant’s action. It is quite clear from the part the judgment of the trial Court earlier quoted in this judgment that all the four distinct reliefs sought by the Appellant in the action against the Respondent arising from the alleged wrongful execution of judgment, were refused and the entire action was dismissed.
In the Appellant’s appeal to the Court of Appeal against the judgment of the trial High Court, the Appellant was expected to vent out his grievances against that judgment in a Notice of Appeal containing the appropriate grounds of appeal outlining the aspects of the findings and decisions of the trial Court it disagreed with in the judgment. This is in accordance with Order 3 Rule 2 of the Court of Appeal Rules. These six grounds of appeal filed by the Appellant challenging the correctness so to say, of the judgment of the trial Court, have been earlier quoted in this judgment without the particulars. Running through these grounds of appeal, it is quite plain that the Appellant’s complaint in grounds one and two centered on the execution of the judgment in suit No. PRT/1041/92 as to whether or not it was regular. The complaint in ground three on the other hand is on the failure of the trial Court to make a finding as to the actual date the said judgment was executed between 30/9/1993 claimed by the Respondent and 4/10/1993 claimed by the Appellant. As for ground four of the grounds of appeal, the Appellant was merely complaining on the failure of the trial Court to make finding on the execution of the judgment from the evidence on record. What ground five contains is a complaint on the failure of the trial Court to deal with the declaratory reliefs sought arising from the alleged wrong committed by the Respondent regarding the execution of the judgment against the Appellant. The remaining ground, ground six is an omnibus ground of appeal. It is trite that there are several decisions of this Court warning parties particularly those in desire to exercise their right of appeal that such parties cannot hide behind an omnibus ground of appeal to raise specific questions on matters like issues of damages, in the absence of specific grounds of appeal raising the questions. See Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 at 139 -140. Although I have also quoted the three issues raised by the Appellant in its brief of argument in the appeal at the Court below presumably arising from the six grounds of appeal filed by it, it is not even possible in the correct application of the law on formulation of issues for determination from the grounds of appeal, to expect any of the three issues of the Appellant earlier quoted in this judgment to embrace a complaint on the failure of the trial Court to consider and determine the Appellant’s claim for general and special damages. This is because there was no such complaint in any of the six grounds of appeal filed by the Appellant to question the decision of the trial High Court in an appeal before the Court below. In other words to say it in plain language, there was no appeal by the Appellant against the decision of the trial High Court refusing or dismissing its specific claim for N50,000,000.00 damages broken down into special and general damages placed before the Court of Appeal for determination in the Appellant’s appeal heard by that Court.
The position of the law in the situation in which the Court of Appeal found itself in the instant case, it would appear that the Court had rightly heeded the warning given by this Court in the case of Chief Ebba v. Chief Ogodo & Anor (1984) 4 SC. 84 at 112 where the Court said:
“…….. it should be plain to a Court of Appeal that when an issue is not placed before it , it has no business whatsoever to deal with it. A Court of Appeal is not a Knight errant looking for skirmishes all about the place.”
To this end, it seems to me that the argument of the learned counsel to the Appellant based on the decisions of this Court in Pavex v. Afribank (supra) and Overseas Construction v. Creek Ent Ltd (supra) that the trial High Court having failed to assess arid make award of damages, the Court of Appeal can rightly do so provided there are sufficient material on record to do so, is completely off the point. The learned counsel to the Appellant appears to have misunderstood the real issue involved in this matter. The issue is simply that there being no appeal against the decision of the trial High Court declining to assess and award special and general damages to the Appellant, there was no issue before the Court of Appeal to enable it evaluate any evidence on record on that claim. It is trite and well settled that the Court of Appeal is only entitled to consider an appeal on the grounds of error of law or fact committed by the trial Court placed before the Court of Appeal in grounds of appeal filed. An Appellant cannot without leave of Court be heard on any other grounds. See Management Enterprises v. Otusanya (1987) 2 NWLR (Pt. 55) 179 and Ali v. Alesinloye (2000) 6 NWLR (Pt. 660) 177 at 212. Definitely, the Court of Appeal cannot pronounce on issue or finding on which the parties have not appealed against. See Adeyemi v. Olakunri (1999) 14 NWLR (Pt. 638) 204 at 211.
It may be emphasized on this issue that the whole purpose of grounds of appeal is to give notice to the Respondent of the errors complained of. See National Investments and Properties Ltd v. Thompson Organization (1969) NMLR 99. Thus where an Appellant relies on any ground, this must be properly raised either by way of a ground of appeal, or as a cross-appeal in case of a Respondent. Any issue not raised in a ground of appeal in this manner is clearly not before the Court.
Accordingly, it is not open to the Court to raise an issue which the parties have not raised. See Inua v. Ntah (1981) All NLR 576. It is also the law that where a Court decides to raise such an issue because it is material for the determination of the appeal before it, the parties must be given an opportunity to argue the point before any decision is taken on it as was stated in Kuti v. Balogun (1978) 1 SC. 53. Therefore in line with these decisions, it is quite obvious that the Court below was well guided when it refused to consider and determine the issue of general and special damages claimed by the Appellant at the trial Court which was not properly raised in the Appellant’s appeal before it in the absence of any cross-appeal by the Respondent on the subject.
Furthermore, the proposition is both elementary and fundamental to our judicial system that there is, a presumption that the judgment of the trial Court is correct, and the burden of showing the contrary is always on the Appellant.
See Williams v. Johnson (1937) 2 WACA 253; Kisiredu & Ors v. Dompreh & Ors (1935) 2 WACA 286, Akesse v. Ababio (1935) 2 WACA 264; Folorunso v. Adeyemi (1975) 1 NMLR 128. Applying the principles in these decisions to the sole issue arising for determination from the two grounds of appeal filed by the Appellant in this appeal, it is quite clear that the Court of Appeal had no jurisdiction to raise and consider not to talk of the determination of the issue of the Appellants claim for special and general damages which was not placed before that Court for determination in the appeal.
Looking at this case from another angle, it is well settled that when an issue is not placed before an appellate Court, that Court has no business whatsoever to deal with it. One of the cases in mind is Olusanya v. Olusanya (1983) 3 SC. 41; (1983) 1 SCNLR 134. The appellate jurisdiction of the Court of Appeal being statutory, must be exercised in accordance with the statutes conferring the jurisdiction particularly the provisions of the Constitution.
Therefore if a finding or decision of a trial Court whether on an issue of fact or law is not challenged in an appeal to the Court of Appeal, such finding or decision, rightly or wrongly, must not be disturbed in the hearing of the appeal.
See Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298 at 352. Thus in the instant case, it would have been wrong for the Court below to have ventured into the issue of general and special damages which the trial Court refused to consider, assess and award or refuse, when such a complaint was not brought before the Court for determination in the appeal. In similar vain, it is also a cardinal principle of law in Courts exercising Appellate jurisdiction that before the findings or decisions of a trial Court can be contested at all, there must be a ground of appeal complaining of the inadequacies in the findings or decisions. See Ejawhomu v. Edokenter Mandilas Limited (1986) 5 NWLR (Pt. 39) 1 at 30-31 and Ekpa v. Utong (1991) 6 NWLR (Pt. 197) 258 at 285. Without such ground of appeal, the findings or decisions stand and no argument to undermine them, no matter even indirectly, will be entertained by the Court of Appeal.
It should not be forgotten that in the determination of disputes between parties in Court, the Court must ensure that its judgment is confined to the issues raised by the parties. See Commissioner for Works Benue State v. Devcon Development Consultants Ltd (1988) 3 NWLR (Pt. 83) 407; Nigerian Housing Development Society Ltd v. Mumuni (1977) 2 SC. 57; Adeniji v. Adeniji (1972) 1 All NLR (Pt.1) 278 and Ali v. Alesinloye (2000) 6 NWLR (Pt.660) 177 at 211-212. In the case at hand, the Appellant not having raised the issue of his complaint on the manner the trial High Court dealt with the question of his claim for general and special damages in a ground of appeal, the lower Court would have committed a breach of the principle of law stated in the cases mentioned, if it had gone on to consider the issue. This is also in line with the requirement of the law that an appellate Court must confine itself to the issues raised by the parties before it. In other words it is not open to the appellate Court to raise an issue which the parties did not raise themselves in the course of the hearing of the appeal. If however the appellate Court decided to or feels inclined to raise an issue for whatever reason, that Court should give the parties an opportunity of making their comments upon it before taking a decision on such issue. To do otherwise will be to deny the parties the opportunity of being heard and lead to a miscarriage of justice. See Aermachi S.P.A. v. A.I.C. Ltd (1986) 2 NWLR (Pt. 23) 443 at 449; Kuti v. Balogun (1978) 1 SC. 53 at 60; Iriri v. Erhurhobora (1991) 2 NWLR (Pt. 173) 252 at 265 and Ndiwe v. Okocha (1992) 7 NWLR (Pt.252) 129 at 139. On the application of these decisions of the Court with which I am absolutely bound, there is no doubt whatsoever that in the circumstances of the present case in which the Appellant in his appeal before the Court of Appeal did not appeal against the decision of the trial High Court for failing to consider and determine its claim for general and special damages, the Court below was well guided in law in refusing to go into the issue. I find this appeal lacking in merit and the same is hereby dismissed.
There shall be N10,000.00 costs against the Appellant in favour of the Respondent.
As for the cross-appeal of the Respondent, the issue raised for its determination is whether an execution of a valid judgment of Court levied before the statutory period allowed under the Sheriffs and Civil Process Act Cap. 407, Laws of the Federation 1990, is illegal or merely irregular. In view of the decision I have dismissed, the need to look at the cross-appeal and the determination of whether the execution of valid judgment of a Court levied before the statutory period allowed under the law is illegal or merely irregular, has certainly become hypothetical or academic which this Court has long refrained from entertaining. See Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 at 534; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 330, Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 at 179 and Macaulay v. R.Z.B. Austria (2003) 18 NWLR (Pt. 852) 282 at 300. Therefore this Court is not bound in law to deal with the cross-appeal which accordingly is hereby struck out.
- U. ONU, .JSC
I have been privileged to read before now the judgment of my learned brother Mohammed, JSC just delivered. I am in full agreement with him that
The appeal be and is hereby dismissed while the cross – appeal being in issue be and is accordingly struck out.
A word or two or mine in expatiation will do to put the case in a clearer perspective thus:
The Plaintiff/Appellant claimed inter alia special and general damages for wrongful levy of execution of judgment for possession of premises at No. 25 Aba Road, Port Harcourt.
In the claim the Plaintiff/Appellant sought the following reliefs:
“1. A declaration that the execution or judgment levied against the Plaintiff by the Defendant on 4th October at No. 25 Aba Road, Port Harcourt within the jurisdiction of the Honourable Court pursuant to the judgment delivered the same day 4th October, 1993 in Suit No.PRT/I 041/92 was wrongful, illegal and therefore null and void and ought to be set aside.
*******************************************************************2. The [sum of] N5O, 000, 000.00 (Fifty Million Naira) only
Special and General Damages for suffered by Plaintiff by reason of the wrongful and unlawful acts on the Defendant. This amount is broken down as follows: –
- NO, 775, H15.6 1 loss of goods and stock and Nel, 227,217.38 incurred as a result or increase in rent.
These sums totalling Nil, 003, 032.99 are hereby claimed as Special Damages.
- N20, 250, 000.00 representing loss orprotit ror the remaining nllle years and N 18, 746, 9()7.0 I representing loss or business, goodwill and the high cost or re – establishing the business. These sums, totaling N38, 996, 967.0 I are hereby claimed as general damages.
- ;\ declaration that the agreement made between the Plaintiff and the Defendant in 1972, confirmed by letters written by the Defendant dated] 41h February, ] 992 and 2ih April, 1974 in respect or No.25 Aba Road is valid and subsisting.
- An injunction restraining the Defendant by himself or through his servants and/or agents from subletting the
With the completion and exchange of’ pleadings by both sides, the learned trial Judge upon receipt of’ evidence and ;H./dress of’ counsel, proceeded to dismiss the Plaintiffs’ suit on 26th September, 1996, The Plaintiff/’Appellant filed an appeal on 23/12/96 against the said decision to the Court of Appeal, Port Harcourt containing six grounds of appeal. Briefs filed were exchanged by the Appellant and the Respondent (the latter also being Respondent therein). Issues were formulated and the low court distilled its own two issues and finally gave judgment on 11th July,v2000 in favour of the Appellant albeit in part, as the claim for damages, special or general, was not considered by the lower court.
It is this part of the decision that the Appellant having obtained leave of this Court dated 9111October, 2002, is appealing against.
QESTIONS FOR DETERMINATION
The Appellant in the light of’ the six grounds of Appeal herein formulated, submitted two major questions as arising for determination as follows:
(i) Whether the lower court was right in declining to assess and award damages to the Appellant.
(ii) Whether there exists on record of the lower court enough evidence on which an assessment of special and general damages could be made in favour of the Appellant.
I wish to consider the two issues together by stating clearly that the learned trial Judge made a mess or the case. For instance, the judgment (Suit PRT/ 1041/92) was delivered on 4/ 10/96 and not on 30/9196 as the trial court held. However, it was established that the trial court was correct when it held that the issue of damages, special or general was not argued bcl<J(“cit, in which case, the Court of Appeal would be raising such an isstle sl~m(}I!!,
/ (having been unpleaded) which it ought not tu. See Olusanya Y. OlusanE!
at 56/57 and Odiascv. A!!ho (1972) I AIINLR(Pt.I) 17.
Thus, allowing the appeal against the decision of the trial court, the cOI”1 below (per Ikongbeh, .JCA) observed …”I have examined the grounds of appeal but found none attacking the conclusion o( the learned Judge that “it is there (sic) not necessary to talk about damages special or general as plaintiff l~lilcd to prove its case as required by law.” NOlle of the three issues formulated on its behalf relate to it. Clearly, therefore, we have not been called upon to do anything about it.. ..” Sympathy, as hen-ill invoked by the Appellant, being no /IJrerunner of justice would not there/!)!”e in my view, avail the Appellant. The submission herein that there W,IS ill existence on record enough evidence on which an assessment of special <lIId general damages could be made in favour of the Appellant being purely academic would no longer, in my view, arise. I there/ore accordingly strike it out as a non – issue.
For the reasons I have given and the more comprehensive reasons articulated in the judgment of my learned brother Mahmud Mohammed, se with which I am in entire agreement, I too dismiss the main appeal and consequently, strike out the cross – appeal as being a non issue.
- U. GNU,
JUSTICE, SUPREME COURT
- C. Amadi Esq., with him N. Ozokoli Esq., for the Plaintiff/Appellant.
Dejo Lamikanra Esq., with him D. Ucheobi Esq., for the Defendant/Respondent.
IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY. THE 17THDAY OF FEBRUARY. 2006
BEFORE THEIR LORDSHIPS
SYLVESTER UMARU ONU JUSTICE, SUPREME COURT
ALOYSIUS IYORGYER KATSINA-ALU JUSTICE, SUPR” EME COURT
NIKI TOBI JUSTICE. SUPREME COURT
GEORGE ADESOLA OGUNTADE JUSTICE, SUPREME COURT
MAIl MUD MOHAMMED JUSTICE, SUPREME COURT
SC.59/2002
BETWEEN:
BHOJSONS PLC. …………………. PLAINTIFF/RESP()NDENT
AND
GEOFFREY K. DANIEL-KALIO ………… DEFENDANT IR {£SI’O NI>EN’ r
JUDGMENT
Delivered by A. I. Katsina-Alu, JSC.)
I have read before now in draft the judgment delivered by my learllixl I!I”other
Mohammed JSc. I entirely agree with his reasoning and conclusion.
For the reasons he has given, I also dismiss the appeal and strike out the erossappeal
with =N=10,000.OOcosts in favour of the Respondent.
~..:.. — -<L-~,
- I. KATSINA-ALU,
JUSTICE, SUPREME COURT
- C. Amadi Esq., with him N. Ozokoli Esq. for the Plaintiff/appellant
Dejo Launikanra Esq., with him D. Ucheobi Esq. for the Defendant/respondent.
,”1
—
IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY THE 17THDAY OF FEBRUARY, 2006
BEFORE THEIR LORDSHIPS
SYLVESTER UMARU ONU
ALOYSIUS IYORGYER KATSINA-ALU
NIKI TOBI
GEORGE ADESOLA OGUNTADE
MAHMUD MOHAMMED
JUSTICE. SUPREME COURT
‘:
JUSTICE. SUPREME COURl
JUSTICE. SUPREME COURT
JUSTICE. SUPREME COUR1~
JUSTICE. SUPREME COURl
SC.59/2002
BETWEEN
BHOJSONS PLC PLAINTIFF/APPELLANT
AND
GEOFFREY K. DANNIEL-KALlO DEFENDANT/RESPONDENT
JUDGMENT
(Delivered by Niki Tobi, JSC)
I have read in draft the judgment of my learned brother,
Mohammed, JSC, and I agree with him. As trial courts are bound by the
pleadings before them, so are the appellate courts bound by the Notice
and Grounds of Appeal.
Grounds of Appeal are the complaints of the appellant on the
judgment appealed against. They are the pillars on which the entire
appeal stand and an appellate court cannot go outside them in search of
greener pastures for any of the parties. Where an issue before a trial
court is not raised by a ground of appeal, the issue cannot be taken by the
appellate court because it is not before that court. Issues coming for
adjudication before an appellate court are erected by the ground or
grounds of appeal.
.
Courts of law, like umpires in a game, cannot go outside the rules of
the court and do things in the way they like. Courts are bound by the
The statement made by Ejiwunmi, JSC, in the case is good law and
remains good law. I must say that it does not apply in the
of this case.because the issue before us is failure to raisecitrhceumaswtaanrdceosf
special and general damages in the Court of Appeal.
can consider an’d give the necE!ssary Before this court
appraisal to all pieces
forming part of the record before it, there must be an appeal onottheevidisesnucee,
The court has no business to deal with an issue not backed by a ground
of appeal.
The second case counsel cited is Overseas
Ent. Ltd. (1985) 3 NWLR (Pt. 13) 407 where this couCrtohnestldructhtiaotnwvh,erGerethe~k
trial court made no assessment of damages, an appellate court can
the assessment itself if there exists on the record (as in this case) enmouagkl”l
evidence on which assessment can be based. Again, this is good law and
remains good law. Again, the case does not apply to the situation in this
appeal. The decision of this court in Overseas
apply when there is a ground of appeal backing the Casosnesstrsumcteionnt ocfasnpeocnialyl
and general damages.
I think I can stop here. r dismiss the appeal.
appeal, there is nol much in the cross-appeal. It isHhaevreinbgy dsistrmuciskseodut.theI
award N10,000.00 costs against the appellant in favour of the respondent.
~ .’– ~
NIKI TOBI
JUstice, Supreme Court
- C. Amadi, Esq. with him N. Ozokoh, Esq. for the
plaintiff/appellant.
Dejo Lamikanra, Esq. with him D. UCheobi, Esq, for
defendant/respondent.
—
IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY THE 17THDAY OF FEBRUARY, 2006
BEFORE THEIR LORDSHIPS
SYL VESTER UMARU ONt!
ALOYSIUS IYORGYER KATSINA-ALU
NIKI TOB!
GEORGE ADESOLA OGUNT ADE
MAHMUD MOHAMMED
JUSTICE, SUPREME COUIU
JUSTICE, SUPREME COURT
Ir
JUSTICE, SUPREME COURT
JUSTICE, SUPREME COUI~J
JUSTICE, SUPREME COUI(1
SC.59/2002
BETWEEN:
BHOJSONS PLC. PLAINTIFF/APPELLANT
AND:
GEOFFREY K. DANIEL-KALlO DEFENDANT/RESPONDLN r
JUDGMENT
(Delivered by G. A. Oguntade, JSc.)
The appellant was the plaintiff at the Port-Harcourt High COUl1.It
was a tenant to the respondent in respect of a property at No. 25 Aba
Road, Port-Harcourt. The plaintiff claimed that it had a lease from the
defendant for 30 years. The defendant on the other hand stated that it was
a yearly tenancy. On 4-10-93, the plaintiff was evicted from the property
following a court judgment against it, which it claimed was given on the
same 4-10-93. The plaintiff therefore brought a suit claiming:
“25. WHEREFORE the plaintiffs claims against the defendanl
are as follows:
(i) A declaration that the execution of judgment
levied against the plaintiff by the defendant
on the 4thday of October, 1993, at No. 25
Aba Road, Port-Harcourt within the
jurisdiction of the Honourable Court
pursuant to the judgment delivered the
same day, 4thOctober, 1993 in suit
No. PRT1l041/92 was wrongful, illegal
and therefore null and void and ought
to be set aside.
(ii) The sum ofW50,000,000.00 (fifty million
Naira) being Special and General Damages
for loss suffered by plaintiff by reason of
the wrongful and unlawful acts of the
defendant. This amount is broken down
as follows:-
(a) W6,775,815.61 for loss of
goods and stocks and W4,227,217.38
incurred as a result of increase in rent.
These sums, totalling Wll,003,032.99
are hereby claimed as special damages.
(b) W20,250.00 representing the loss of
profit for the remaining (9) nine years
and WI8,746,967.01 representing loss
of business, goodwill and the high cost
of re-establishing the business. These
sum3, totalling W38,996,967.01 are
hereby claimed as general damages.
(iii) A declaration that the agreement made between the
plaintiff and the defendant in 1972, confirmed by
letters written by the defendant dated 14thFebruary,
1972 and 2th April, 1974 in respect of No. 25
Aba Road is valid and subsisting.
(iv) An injunction restraining the defendant by himself
or his servants and/or agents from subletting the
property to any person or body corporate until the
determinati on of this suit.”
Parties filed and exchanged pleadings. The suit was heard by Odili
- as she then was. The trial judge on 26-9-96 dismissed plaintiff’s suit.
Dissatisfied, the plaintiff appealed to the Court of Appeal sitting at Port-
Harcourt (hereinafter referred to as the ‘court below’). The court below
in its judgment on 11-5-2000 felt that the trial judge was in error in the
manner she evaluated the evidence. It also faulted her conclusion on the
evidence. At pages 168-169 of the record, the court below said:
“On the whole, I hold that the learned judge
adopted the wrongful (sic) approach to the handling
of the case before her and came to the wrong conclusion
on the first relief in the appellant’s claim. She ought
to have granted it. The appeal as it relates to that
relief accordingly succeeds and is allowed by me.
/ The order of the judge Odili J. dismissing it is set aside.
” / . I have examined the six grounds of appeal but
found none attacking the conclusion of the learned judge
that ‘it is there (sic) not necessary to talk about damages
special or general as plaintiff failed to prove its case as
required by law’. None of the three issues formulated
on its behalf relate (sic) to it. Clearly, therefore, we
have not been called upon to do anything about it.
I say no more on that.”
It is pertinent to reiterate here that the plaintiff’s first claim before
the trial court was for a declaration that the execution levied on its
properties by the defendant on 4-10-93 was wrongful. The pecuniary
damages claimed under the second head of claim represented the
quantum of loss, which the plaintifI claimed to have suffered as a result
of the unlawful execution levied against his properties. The trial court
should have proceeded to assess quantum of damages to be granted to the
plaintiff had she been able to hold as the Court of Appeal later did that the
execution levied was wrongful. In Kareem & Ors. v. Ogunde & Anor.
[1972] All N.L.R. 75 at 80 (Reprint) this Comi per Coker J.S.c. observed:
“We must here repeat the advice which we had
given on a number of occasions that in cases involving
the assessment of damages it is the duty of a trial court
or tribunal to assess the damages proved and payable
even if that court had decided that the entitlement of
the claimant thereto had not been proved. This course
obviates the necessity of sending back a case where no
other course is justifiable merely for the purpose of
assessing such damages and unduly mulcting the
litigants in the expenses of unnecessary retrials.”
The trial court failed to heed the warning given in the above case or
the necessity to consider damages in a suit as an alternative in the event
the conclusion reached by it on liability is held wrong by the appellate
court.
, .~l
;'”
, )’ Be that as it may, the plaintiff in its appeal before the court below
,(I did not raise by its grounds of appeal the question of damages. It has
f’ been said several times in cases that the appellate jurisdiction of this
Court and irideed the court below is derived from the Constitution of
Nigeria and other relevant statutes. The appellate jurisdiction can only be
activated when a valid ground of appeal is filed against the judgrpent
appealed against.
My learned brother Mohammed JSC has in the lead judgment
reproduced the six grounds of appeal raised by the plaintiff in the court
below against the judgment of the trial court. None of them raises any
complaint against the failure of the trial court to consider and award
damages. It seems to me that the court below correctly refused to
consider the issue of damages not raised before it. A court has no
jurisdiction to grant a relief not asked for -See Ugo v. Obiekwe [1989] 1
NWLR (Pt.99) 566. Nor can a court consider the issue of award of
damages under the omnibus ground that the judgment is against the
weight of evidence – See Sapara v. D.C.H. Board [1988] 4 NWLR
(1’t.86) 58.
When an appellate court in the course of hearing an appeal forms
the impression that the court below made some errors, which ought to
have been appealed against, but which were not, the appellate court must
show aloofness and refuse to be drawn into a correction of errors not
appealed against. This point was lucidly made by this COUli in
Ejowhomu v. Edok-Eter Mandilas Ltd. [1986] 5 NWLR (Pt.39) at 30-31
where Obaseki JSC said:
“A trial court may have committed grave
errors in its judgment in a matter in a manner
which stirs the informed mind of the appeal court
Judges for correction, but it is settled law that if the
parties to the matter are satisfied with the judgment,
there is nothing the justices of the Court of Appeal
can do. The Justices can only maintain studied
silence or observe that there was no appeal before
them on the point. If one of the parties is aggrieved
and decides to appeal on grounds, which do not
raise the grave errors, observed as issues to be
debated and determined the Justices are still
powerless and hamstrung in tackling the errors.
But if the party adversely affected by the errors
through careful reading, wisdom and vigilance,
spots the errors and takes the matter on appeal
on grounds complaining of those errors, it is only
then and then only that the COUl1of Appeal under
our law cCilldeal with the issue. Generally,
appeal courts without statutory provision, have
no jurisdiction to disturb settled issues not properly
brought as well as those not brought before them.”
.r f:.
It is for the above reason and the more elaborate ones in the lead
judgment of my learned brother Mohammed J.S.C. that I would also
dismiss this appeal as unmeritorious and strike out the cross-appeal. I
award the same costs of WlO,000.00 in favour of the respondent as in the
lead judgment.
Counsel:
F.C Amadi Esq. with N. Ozokoli, Esq. for the Plaintiff/Appellant
Dejo Lamikanra, Esq. with D. Ucheobi, Esq. for Defendant/Respondent
