3PLR – ELEM V. MOKU

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ELEM

V.

MOKU

FEDERAL SUPREME COURT OF NIGERIA

5TH APRIL, 1957.

F.S.C. 20/1956

3PLR/1957/26 (SC)

BEFORE THEIR LORDSHIPS:

SIR STAFFORD FOSTER-SUTTON, F.C.J. (Presided)

OLUMUYIWA JIBOWU, F.J. (Read the Judgment of the Court)

1. C. NAGEON DE LESTANG, F.J.

BETWEEN

1. CELESTINE ELEM
2. SIMON OBIUKWU
3. ISAAC EKEBUISI (For Themselves and as Representing Akpukpa Village-Uturu)
4. NATHANIEL CHIMEZE
5. ISAAC IKE (For themselves and as representing Nvuruvu Village Uturu)
6. RICHARD EMENIKE
7. GABRIEL CARPENTER

(For Themselves and as Representing Umumana Village Uturu

8. SABASTINE EBI (For himself and as representing Isunabo Village Uturu Okigwi Division

AND

1. CHIEF OKEREKE MOKU
2. OKEUZE OKEREAFOR
3. NWANKAOKOROOSU (For themselves and as representing Achara Village Uturu, Okigwi Division

MAIN ISSUES

TORT AND PERSONAL INJURY – Damage – Damnum sine injuria.

PRACTICE AND PROCEDURE – DAMAGES – Exemplary Damages – Award of for invasion of party’s rights.

PRACTICE AND PROCEDURE – DAMAGES – Party responsible for cause of damage – Effect – Damnum sine injuria.

REPRESENTATION:

Mr. F.O. Anyaegbunam -for the Appellants.

Mr. C. C. Mojekwu -for the Respondents.

MAIN JUDGMENT

JIBOWU, F.J. (Delivering the Judgment of the Court):

The appellants, as defendants in the Court below, were sued by the respondents, then plain­tiffs, for (1) £500 damages for setting up a rival market to their ancient mar­ket and causing them loss of custom and by actually interfering with people who made use of their market on the 28th and 29th February, 1952, and (2) for an injunction to restrain the appellants, their agents and servants, from holding the said market or disturbing the respondents’ market.

The learned trial Judge found in favour of the respondents and awarded them £300 damages on the ground that the new market, “Ogumabiri,” set up by the appellants, caused damage and disturbance to the respondents’ mar­ket, “Nkwo Achara,” as it grew, and also on the ground that the appellants caused damage to the respondents by interfering with people going to their market on the 29th February, 1952.

The claim for an injunction was disallowed as the learned trial Judge found that it was an attempt to recover possession of the land on which the market was being held which was claimed to be the 1st respondent’s prop­erty.

The appellants have brought this appeal against the award of damages against them.

There was clear evidence to justify the learned Judge’s finding of fact that the new market complained about was set up in 1948 by the Aturu Clan Council which included five Councillors from Achara Village who rep­resented the respondents on the Clan Council. That being so, the respon­dents could not properly complain about the setting up of the new market to which their representatives on the Clan Council were parties.

It follows, in my view, and with respect to the learned trial Judge, that whatever damage the respondents might have suffered from the growth of the market would be a damnum sine injuria for which the respondents could not sue. In my view, the learned trial Judge was wrong in awarding damages on this score.

There was abundant evidence before the learned Judge that letters were written to several people on the 28th February, 1952, to request them not to attend the respondents’ market on the 29th February, 1952, and that about 140 people attending the market on the 29th February, 1952, were ac­tually interfered with and prevented from going to the respondents’ market by members of the appellants’ community.

The learned trial Judge was right, in my view, in awarding damages for this disturbance which invaded not only the rights of the people attending the market but also of the owners of the market who thereby lost customers and custom. I agree, with respect, with the learned trial Judge, that the ac­tion of the appellants and/or of their agents on the 29th February, 1952, might have caused bloodshed if the respondents and their supporters had not restrained themselves. I therefore share the view of the learned trial Judge that exemplary damages should be awarded for this invasion of the re­spondents’ rights.

The £300 damages awarded included damages for loss through growth of the market (or expansion) over a period of three years and I consider £100 would be adequate exemplary damages for the incident of the 29th Feb­ruary, 1952.

I would therefore reduce the damages awarded to £100 for the reasons given above and allow this appeal to that extent with costs.

FOSTER-SUTTON, F.C.J.  I concur.

DE LESTANG, F.J.: I concur.

Appeal Allowed in part.