No valid argument can be made on an incompetent issue (Continued from last week)

(Continued from last week) Since the only two issues raised for determination by the 3rd respondent’s brief are incompetent, I hold that all the arguments based thereon are incompetent.  Arguments in an appeal before this court must be based on issues that are validly raised and are competent.  Whereas in this case the issue is […]

(Continued from last week)

Since the only two issues raised for determination by the 3rd respondent’s brief are incompetent, I hold that all the arguments based thereon are incompetent.  Arguments in an appeal before this court must be based on issues that are validly raised and are competent.  Whereas in this case the issue is incompetent, no valid or competent argument can be made on the basis of such an issue.  See KALA VS. POTISKUM & ANOR (1998)3 NWLR (pt.540)1 or (1998) LPELR 1648 where the Supreme Court discountenanced arguments based on incompetent issues.  For the above reasons the entire brief of the 3rd respondent is hereby struck out for being incompetent.
        The fact that exhibit P4 was written to the appellant irrespective of the fact that he owed rent or the fact that such letter is no acknowledgment that the tenant does not owe rent is not pleaded in the 1st respondent’s statement of defence or any of the other statements of defence.  Being a new fact that is not in the statement claim and is the basis of his defence, it ought to have been pleaded in the statement of defence.  See NIPC Ltd Vs. Bank of West Africa Ltd (1962)1 All NLR 556.
It is at variance with the 1st respondent’s pleading in paragraph 13 of his statement of defence.  It is trite law that evidence must be consistent with pleadings.  The defendant can only raise a defence or elicit evidence of a defence he or she had set out in the statement of defence.  He or she cannot competently elicit evidence of facts of a defence not contained in the statement of defence.  Such evidence will be disregarded in line with the settled principle that evidence of fact at variance with the pleadings go to no issue and will not be considered in the determination of the case.  Therefore the explanation of DW3 is not only unbelievable it is also inadmissible evidence.  I therefore disregard it and hold on the basis of exhibit P 4 that the appellant’s rent expired at the end of 2005.  He was not owing any rent by the end of 2005.
        Since the appellant was not owing any rent, there was no basis for his eviction and claim for arrears of rent.  There was no basis for the institution and prosecution of suit No MID/953/2005.
In the light of the foregoing I hold that the notice to quit and suit No MID/953/05 are malicious and false processes.  This is clearly an unmitigated malicious abuse of judicial process.  It is unfortunate that the civil process of Court is so maliciously and wrongfully used in the pursuit of an illegal enterprise. Learned Counsel for the appellant, Mr Agwuna has in the appellant’s brief drawn the attention of this court to the fact that the practice of landlords and their lawyers wrongly and maliciously using the Magistrate Court process to illegally eject tenants in brazen disregard of existing tenancy agreements is now rampant. It is important that the legal profession continue to, not only play its role, but also be seen to be playing its role as the pivot of law enforcement and promotion of rule of law.
From the facts of this case, on the totality of the pleadings and the evidence, it is obvious that the appellant suffered loss of his household property and dislocation from his home and inconveniences as a result of this breach of the 1st respondent’s obligation to give the appellant quiet and peaceable occupation and enjoyment of the demised premises.  All sides agree the appellant, his wife and children were evicted from the house and that their property as listed on the inventory were removed and sold at the instance of the 1st respondent.  It was clearly an abuse of the civil process of court. The judgment of the Chief Magistrate Court Idemili delivered on 7th February 2006 in MID/953/05 was obtained on the basis of these processes.
The appellant is entitled to recover general damages since his peaceable and quiet occupation and enjoyment of the land has been completely disrupted by the 1st respondent.  See the English case of JONES VS. LAVINGTON (1903)1 KB 253
The appellant failed to get compensation by way of special damages for the loss of his property listed on the inventory because the value of the loss was incapable of exact quantification or calculation.  Should he remain without remedy for his losses because the value of the loss cannot be calculated with arithmetical exactitude?  In one, the measure of damages is akin to special damages and another is in the form of general damages.  With regards to the former, the Supreme Court in WAHABI VS. OMONUWA (1976) LPELR 3469 held 1 said: “The damages recoverable are the losses reasonably foreseeable by the parties and foreseen by them at the time of the contract as inevitably arising if one of them broke faith with the other. With regard to the second type, the Supreme Court held that “general damages are those which the law implies in every breach of contract.”  After holding that “apart from damages naturally resulting from the breach no other form of general damages can be contemplated.”
 The importance of this differentiation between types of damages for breach of contract is that it helps to differentiate the damages for losses whose monetary value are capable of exact calculation and damages for losses whose monetary value are incapable of exact calculation.  So that in a situation where the damages are for contemplated loss but the value of the loss is incapable of exact calculation, the assessment and award will be guided by the principle for award of general damages.  It is my view that whether a loss is contemplated or arises by implication or presumption, an award of damages for breach of contract can be made only if the loss results from the breach of contract.  Where it is obvious that a person has suffered loss as a natural and direct result of the breach of his contractual or other legal right it will be unjust not to compensate him for the loss because the value of the loss is incapable of exact quantification.  In this situation the justice of the case demands that he be awarded general damages.  But he must claim for general damages to be entitled to the award.  It does not automatically tenure from a failure of the claim for special damages.
        In this case it is expressly claimed for.  As the Supreme Court per Idigbe JSC held in WAHABI VS. OMONUWA supra held 5, the quantification of general damages in terms of money is, however, a matter for the court and in a majority of cases no precise measure can be indicated although the award necessarily includes compensation for damage incapable of exact proof in terms of money.”
        It is trite law that the purpose for the award of damages for breach of contract is to restore the party whose right has been violated to the same position, so far as money can do, as if his right had not been breached.  See WAHABI VS. OMONUWA (supra). In assessing the amount to award as damages I have considered that the properties removed and sold which are contained in the inventory list are admittedly old and dilapidated.  I assess and award the appellant general damages in the sum of N500, 000 for the properties lost, the hardship and embarrassment suffered by the appellant. The 3rd respondent who acted pursuant to a writ of attachment as a bailiff of the court in the bonafide belief that he was enforcing a judgment of the magistrate court on behalf of the 1st respondent as judgment creditor, cannot be held liable to pay the said damages in the absence of any mala fide on his part or any irregular or illegal exercise of his power as bailiff in the enforcement of the writ of attachment.  Order 11, Rule 29(2) of the Judgment (Enforcement Rules) made under S. 94 of the Sheriffs and Civil Process Act cap. S. 6 provides that: “The party prosecuting the judgment shall be liable for any damages arising from any illegal or irregular proceedings taken at his instance.
 The evidence shows that the 2nd respondent played no role in the execution of the said judgment.  The only role he played in the whole case is that he claimed to have served the statutory notice to quit by posting same on the door of the appellant’s house.  The trial court did not believe this story.  Nevertheless he had testified in the proceedings in the Magistrate Court and thereby helped in the malicious use of the false processes to obtain the judgment at the Magistrates Court against the appellant.  However the trial court made no finding of liability against him.  There is no ground of appeal complaining about the failure or refusal of the trial court to find him liable.
        In the light of the foregoing, I resolve issue No 2 herein in favour of the appellant.  I hold therefore that the appeal is allowed on issue No. 2 and ground E of this appeal and I award N500, 000.00 as general damages to the appellant to be paid by the 1st respondent.  The appeal fails on issue No. 1 and grounds A, B and C of this appeal. All the grounds of the cross-appeal and issues raised and argued therein having been struck out, the cross appeal is hereby equally struck out.
        The first respondent shall pay cost of N30, 000 to the appellant

Hon. Justice Emmanuel Akomaye Agim, Justice, Court of Appeal
 (Concluded)