LATEST COURT OF APPEAL CASES – MARCH 31ST, 2014April 8, 2014
Just Decided – Latest Judgments – May 16th, 2014May 26, 2014
AREAS OF LAW:
The Plaintiff/ Appellant brought an action at the High Court of Mubi of the old Gongola State -now Adamawa State, against the Defendants /Respondents over a land dispute claiming the following reliefs: an injunction to restrain the Defendant or his servants, agents and privies from continuing to perpetuate the act of trespass on the Plaintiff/Appellant’s land and the sum of N40, 000.00k (Forty Thousand Naira only) as general and special damages. Pleadings were filed and exchanged between parties. The Plaintiff/ Appellant called only one witness -an official of the Ministry of Lands and Survey, applied for joinder of the 2nd and 3rd Respondents and at the same time amended his statement of claim. The Defendants called two witnesses. At the end of the trial, the trial Judge gave judgment in favour of the Defendants /Respondents. Dissatisfied with the judgment, the Plaintiff/Appellant appealed to the Court of Appeal which affirmed the judgment of the trial Court. Still not satisfied the Plaintiff/Appellant has appealed to this Court.
Could it truly be said that there were sufficiently material conflicts in the evidence adduced by jthe appellant and his witness, which could have made the Court of Appeal to affirm the decision of the trial court?
Was the Court of Appeal right to have endorsed the finding of the trial court that the Certificate of Occupancy was fake, false and fraudulent when the respondents admitted having issued the Certificate to the appellant?
Was the appellant entitled to the land measuring 6,149 square metres? And if not, was the Court of Appeal not wrong to have denied appellant the smaller portion of land to which the 2nd respondent admitted as having been allotted to the appellant?
“Allegation of fraud must be proved beyond reasonable doubt. Such must not leave room for speculation. It is proof in the realm of probability and not fantastic possibility that is required.” PER FABIYI JSC
COMMISSION OF CRIME IN CIVIL CASES-STANDARD OF PROOF REQUIRED
“Standard of proof for commission of crime in civil cases as alleged herein is the same as in criminal cases.” PER FABIYI JSC
FRAUD – PROOF OF
“Fraud requires a higher degree of probability in its proof. It must be pleaded with particulars adequately supplied”. PER FABIYI JSC
FRAUD-DUTY OF A PARTY ALLEDGING SAME
“A party alleging fraud must discharge the onus of proof to the satisfaction of the court.”PER FABIYI JSC
DECLARATION OF TITLE TO LAND – CLAIM FOR-GRANT OF
“It is settled law that in a claim for declaration of title to land as herein, the court may grant declaration over a smaller area than that claimed if the evidence before the court justifies it.” PER FABIYI JSC
DECLARATION OF TITLE TO LAND –PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS CASE
“The law is settled that in an action for declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness (if any) of the defence, except where the defence supports the plaintiff’s case.” PER KEKERE-EKUN JSC
CONTRADICTIONS-NATURE OF CONTRADICTIONS IN EVIDENCE THAT WILL RESULT IN REJECTION OF THE EVIDENCE
“The law is that it is not all contradictions in the evidence proffered and relied upon by a party in proof of its case that results in the rejection of the evidence. It is only material discrepancies which constitute substantial disparagement of the witnesses concerned, in the sense that reliance on their testimony will likely result in a miscarriage of justice that should impact negatively on the case of the party who relies on such evidence. Thus contradictions in the evidence of witnesses may not be fatal to a case especially when they are minor and do not materially affect the fundamental and crucial issues in the case”. PER MUHAMMAD JSC
CONTRADICTIONS-WHEN CAN BE FATAL
“Contradictions are fatal only if, not being minor, they go to the substance of the case. And what is material and substantial remains a question of fact.” PER DATTIJO MUHAMMAD JSC
Adesanya Vs Aderonmu (2000) 13 WRN 104 at 115 lines 10 – 35
Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91 at 106
Arabe v. Asaulu (1980) 5 -7 S.C.N.J. 78 at 85
Eze Vs Atasie (20001 9 WRN 73 at 88;
Ezeaka Befove v. Emenike (1998) 9 SCNJ 58 at 73;
Famiiroti v. Agbeka (1991) 5 NWLR (Pt. 189) 1 at 13
George v. Dominion Four Mills Ltd. (1963) All NLR 70 at 77;
Nathaniel Nasamu V. State (1979) 6-7 SC 112
Nwobodo v. Onoh (1984) 1 SCNLR 1 at 27-28
Omoboriowo v. Ajasin (1984) 1 SCNLR 108
Omoregle v. Aiwerioghene (1994) 1 NWLR (Pt. 321) 488 at 499
Onwugbufor Vs Okoye (1996) 1 NWLR (424) 252;
Shittu Vs Fashawe(2005) 14 NWLR (946) 671:
Sogunle & Ors. v. Akerele & Ors (1967) NMLR 68; reported as (1980) 5-7 SCNJ 78 at 85,
Udeze v. Chidebe (1990) 1 N.W.LR. (Pt. 125) 141
Usiobaifo & anor V. Usiobaifo & anor (2005) 1 SCM 193
Evidence Act 1990
AREAS OF LAW:
The Plaintiff/Respondent granted an overdraft facility of N7, 400,595.53 (Seven Million, Four Hundred Thousand, Five Hundred and Ninety-Five Naira, Fifty-Three Kobo) to the Defendant/Appellant. The Plaintiff made repeated demands for the sum but the Defendant/Appellant failed to liquidate the sum hence the Plaintiff/Respondent instituted this action. The Defendant/Appellant filed a motion on notice praying the court to strike out the suit on grounds that it was premature that the Plaintiff did not give a demand notice before instituting the action. The trial Court entered judgment for the Plaintiff/Respondent in the said sum with interest at the rate of 5% per annum from the date of judgment until the total payment of the judgment debt. Dissatisfied with the trial Court’s decision, the Defendant/Appellant appealed to Court of Appeal where the appeal was dismissed. The Defendant/Appellant subsequently appealed to this Court.
Was the Lower Court right, having regard to the affidavit evidence/exhibits and admissions in the case in upholding the judgment of the trial Court?
“Whenever application is made to a Court for the issuance of a writ of summons in respect of a claim to recover a debt or a liquidated money demand and such an application is supported by an affidavit setting forth the ground upon which the claim is based and stating that in the applicant’s view, there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “undefended list” and mark the writ accordingly and enter thereon a date for hearing, subject to the circumstances of the particular case. If the party served with the writ of summons and affidavit delivers to the registrar a notice that he intends to defend the suit together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the court may think just”. PER PETER-ODILI, JSC
UNDEFENDED LIST ACTION-WHEN AN UNDEFENDED LIST ACTION CAN BE TRANSFERRED TO THE GENERAL CAUSE LIST
‘However, for an action to be transferred to the general cause list from the undefended list there must be a defence on the merit. It must not be a half – hearted defence”. PER PETER-ODILI, JSC
UNDEFENDED LIST PROCEDURE-INTENTION TO DEFEND –WHEN CAN BE REGARDED AS MERITORIOUS
“For an Intention to Defend to be regarded as meritorious warranting the matter being transferred from the Undefended List to the General Cause List for a full hearing with the taking of evidence, oral and documentary, a certain standard is required of such a- defendant and the supporting affidavit of that Intention to defend must contain a defence on the merit”. PER PETER-ODILI, JSC
“It is not enough for the defendant merely to deny the claim or aver that some payments he made were not taken into account. He must set out the details and particulars of the defence”. PER PETER-ODILI, JSC
“The Supreme Court will not ordinarily disturb concurrent findings of fact by the two Lower Courts except in special circumstances such as the commission of error in substantive or procedural law”. PER PETER-ODILI, JSC
By Section 151 of the Evidence Act provides that when one person has, by his declaration, act or omission, intentionally caused or permitted a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest to deny the truth of that thing”. PER PETER-ODILI, JSC
FRAUD-DUTY OF PARTY RELYING THEREON
“It cannot be left unsaid that fraud being of its gravity, the law insists that concrete materials must back up such an allegation in proof before fraud can change the colour of the case of the party alluding thereto”. PER PETER-ODILI, JSC
“Where a trial Court finds as in this case that defendant has no defence to a plaintiffs suit placed under the undefended list, the court has no option other than to enter judgment for the plaintiff for the sum of money claimed”. PER PETER-ODILI, JSC
“There should be consistency in prosecuting cases at the trial court as well as on appeal. There should be no somersault”. PER FABIYI, JSC
Adebavo v Ighodalo (1996) 5 NWLR (Pt. 450) 507 at 516, 527 – 530 (SC),
Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (Pt. 109) 250
Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248
Balogun v Amubikanhun (1989) 3 NWLR (Pt. 107) 18,
Chinwendu v Mbamadli (1980) 3 – 4 SC 31 at 53;
Egonu v Egonu (1978) 11 – 12 SC 111 at 129;
Ehidimhen vMusa (2000) 8 NWLR (Pt. 669) 540 at 556 – 557
Enang v Adu (1981) 11-12 SC 25
Franchal (Nig.) Ltd v N. A. B. Ltd (1995) 8 NWLR (Pt. 412) 172.
John Holt & Co. (Liverpool) Ltd v Faiemirokun (1961) 1 All NLR 492
NICON v P. I. E. Co. Ltd (1986) 1 NWLR (Pt. 14) 1
Nishizawa Ltd v Jethwani (1984) 12 SC 234;
Obibu v Guobadia (1984) 10 SC 130;
Tahir v J. Udeagbala Holdings Ltd (2004) 2 NWLR (Pt. 854) 438
UTC v Pamotei (1989) 1 NWLR (Pt. 103) 244
High Court Rules, 1988, Anambra State
Evidence Act, 2011
AREAS OF LAWS:
The Respondents purchased some ink cartridges through their agent in Dubai. The agent approached the Appellant and contracted the airline to airfreight the goods to Murtala Mohammed Airport, Lagos. The goods were to arrive within a month from the date the freight was paid for but the goods never got to Lagos. The Respondents as Plaintiffs instituted an action against the Appellant as Defendant for breach of contract. The Defendant admitted failure to deliver the goods but contended that the conditions governing the contract of carriage of the Plaintiff’s cargo and the liability of the Defendant are as contained in Emirates General Conditions for Carriage of Cargo 2006 and the Montreal Convention 1999; in line with which the Defendant had offered the Plaintiff compensation for the lost goods which was refused. Judgment was entered against the Defendant. Dissatisfied with the judgment, the Defendant/Appellant has lodged the instant appeal.
Whether the limitation of liability as contained in the Montreal Convention and the Conditions of Carriage of Cargo of the Defendant is applicable in the circumstances of this case?
Whether a Court can award General damages and also Special damages at the same time?
Whether a Court can base its judgment on facts that were neither pleaded nor on which no evidence was adduced in the course of trial?
The provisions of the Montreal Convention are in the Second Schedule of the Civil Aviation Act 2006. Article 29 of the Montreal Convention 1999 provides:
“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring the suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.” PER IYIZOBA, JCA
Article 22 (3) of the Montreal Convention 1999 provides:
22(3) In the carriage of Cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 special Drawing Rights per Kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignors’ actual interest in delivery at destination.” PER IYIZOBA, JCA
“The burden is squarely on the Claimant to prove negligence and not on the carrier to rebut negligence.” PER IYIZOBA, JCA
“The only way to escape the limitation of liability with respect to damage or loss of cargo is where the consignor at the time when the package was handed over to the Carrier made a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires.” PER IYIZOBA, JCA
“It is my view that the special declaration envisaged in Article 22(3) means more than just presentation of the sales invoice and the packing list. The declaration of value ought to be in writing on the airway bill.” PER IYIZOBA, JCA
“The law is that the Respondents cannot challenge the judgment of the lower court given in their favour without first filing a cross-appeal or a Respondents’ Notice.” PER IYIZOBA, JCA
“As far as breach of contract is concerned, the law is that award of special damages as well as general damages amounts to double compensation and is not allowed.” PER IYIZOBA, JCA
“As regards the doctrine of res ipsa loquitor, it can be pleaded in one of two ways – either specifically by reciting the Latin maxim or in the alternative by making it known that the Plaintiff intends to rely on the very loss of the cargo as evidence of negligence”. PER IYIZOBA, JCA
But for Article 22 (5) to apply to remove the limitation of liability it is not sufficient for the act or omission that is relied on to have been done negligently or recklessly; it must also be shown to have been done with knowledge that damage would probably result. It is quite impossible to show through the doctrine of res ipsa loquitor that the Defendant did the act that gave rise to the loss with knowledge that the loss would occur.” PER IYIZOBA, JCA
Ibekendu V. Ike (1993) NWLR (Pt.299)287
Oauma V. I.B.W.A. (1988) NWLR (Pt. 73) 658
Civil Aviation Act 2006
The Montreal Convention 1999
EVIDENCE-EVALUATION OF EVIDENCE, SPECIAL DAMAGES, PRACTICE AND PROCEDURE
The Plaintiff/Respondent bought the Defendant/Appellant’s airline ticket (electronic) for the sum of US $2,067 (Two thousand and sixty seven dollars) to enable her travel from Dallas – Houston -Dubai- Lagos and back. When the Plaintiff/Respondent turned up at the airport to travel on 17/12/07, the Defendant/Appellant denied her boarding and made no alternative provision for her carriage without offering any reason for their failure to carry the Plaintiff/Respondent. The Respondent made alternative arrangement and eventually travelled on 19/12/07 and then sought from the Appellant a refund of the two (2) tickets (Emirates and American Airlines tickets). The Plaintiff/Respondent, in the consequence of the above development, instituted an action against the Defendant/Appellant for breach of the terms of the contract of carriage with the Plaintiff/Respondent. The trial Judge entered judgment for the Plaintiff/Respondent. Dissatisfied with the trial Court’s judgment, the Defendant/Appellant appealed to the Court of Appeal.
Appeal Succeeded Partially
Whether the learned trial Judge was right when he awarded the sum of N250, 000 in legal fees when the Plaintiff claimed N 1,000,000 but led no evidence in proof
“I do not believe that neither the Plaintiff nor her agent did not reconfirm the ticket issued her or in any way defaulted in sustaining the validity of the issued ticket. I believe PWI Clement Dolor acting on behalf of the Plaintiff personally or through Simba Travels & Tours limited made such reconfirmation of the said ticket as indeed would be expected of an experienced Travel Agency staff such as himself.”
“It is not in doubt that evaluation of evidence entails much more than the Judge saying “I believe” or “I didn’t believe a witness”. There must be on record the reasons why the court arrived at its conclusions for preferring one evidence to the other”. PER IYIZOBA JCA
CROSS-EXAMINATION- FAILURE TO CROSS-EXAMINE WITNESS ON VITAL ISSUE – EFFECT OF
“The law is that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness”. PER IYIZOBA JCA
LIABILITY OF AIRLINES-WHETHER AIRLINES CAN INCUR LIABILITY FOR DELAYED OR DENIED BOARDING
“Airlines can incur liability for ‘delayed or denied boarding’. PER IYIZOBA JCA
RELIEF-WHETHER A COURT CAN AWARD SAME TO A PARTY WHERE IT WAS NOT CLAIMED
“It is trite law that a court has no power to award to a claimant that which was not claimed. PER IYIZOBA JCA
“The claim is for special damages and the law requires that there must be strict proof of same”. PER IYIZOBA JCA
“A compensatory damage is a sum of money awarded by a Court to indemnify a person for the particular loss, detriment or injury suffered as a result of the unlawful conduct of another. They differ from “punitive damages”, which punish a Defendant for his conduct as a deterrent to the future commission of such acts”. PER AUGIE, JCA
“The object of a treaty like the Montreal Convention is to provide a uniform international code in the areas that it covers”. PER AUGIE, JCA
Adesule v. Mayowa & Ors (2011) LPELR-3591 (CA)
Badmus V. Abeaunde (1999) 11 NWLR (Pt 627) 493,
Cameroon Airlines V. Otutuizu (2011) 4 NWLR (Pt.1238) 512 SC
Emirates Airline v Uzoaku Kenechukwu Ngonad (CA/L/198/2012) delivered on 19/12/2013.
Gaff v Paye (2003) 8 NWLR (Ft 823) 583;
Harka Air Services (Nig.) Ltd. V. Keazor (2011) 13 NWLR (Pt1264) 320 S.
Oforlete v. State (2000) 12 NWLR (PL 681) 415 @ 436;
STATUTES REFERRED TO:
Civil Aviation Act 2006
The Montreal Convention 1999