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In The Supreme Court of Nigeria

On Friday , 4th day of May 1990

SC 173/1988

 

Before Their Lordships

 

Kayode Eso

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

 

Between

 

Monier Construction Company Ltd.

.......

Appellant

 And 

Tobias I. Azubuike

.......

Respondent

   

Judgment of the Court

Delivered by

Abdul Ganiyu Olatunji Agbaje. J.S.C.

On 12th February, 1990, I dismissed the appellant's appeal summarily subject to the accidental slip of the lower court in the assessment of the damages due to the respondent which I corrected. I indicated then that I would give the reasons for my judgment today. I now proceed to do so.

 

The plaintiff, Tobias I. Azubuike sued the defendant company, Monier Construction Company Ltd. in an Imo State High Court, holden at Okigwe, claiming the following as per paragraph 12 of his statement of claim, since the latter supercedes the writ of summons:-

 

12     Wherefore the plaintiff claims frorn the defendant the sum of N100,000.00 made up as follows:

 

(i)     N72.000.00 being the value of stone chippings removed on or about 16th and 17th December, 1977 by the servants, agents or workmen of the defendant from the land in occupation of the plaintiff, at Isulabo, Uturu Okigwe, within jurisdiction.

 

(ii)    N20,O00 .00 being the cost of yams, cassava and other crops destroyed in the plaintiff's farm in the course of the removal of the said chippings, at Isulabo Uturu aforesaid.

 

(iii)   N8,000.00 general damages.

 

Pleadings were ordered, filed and exchanged. The case proceeded to trial before Abai Ikwechegh, J. (as he then was), who after hearing the parties and their witnesses found in his judgment dated 11th June, 1982 for the plaintiff on the issue of liability and awarded him N72,000.00 damages, being the full amount the plaintiff had contracted to sell the stone chippings F in question to a company called Hispacon Nigeria Ltd.

 

The defendant company was not satisfied with the judgment. It appealed against the whole decision to the Court of Appeal Enugu Division. The defendant lost its appeal on the issue of liability but succeeded partially on the issue of damages. The Court of Appeal, coram Maidama, Akpata, Babalakin, JJ.C.A., as per the lead judgment of Maidama, J.C.A., in which the other Justices concurred ruled as regards the latter as follows:-

 

The next finding challenged by the appellant, is the finding that it was liable to pay to the respondent the sum of N72,000.00 as damages. This amount includes the value of the chippings as contained in Exhibit A plus the profit the respondent would have made if he had executed the Order in Exhibit D. It was submitted that there was no justification for the award of this amount because evidence led by the respondent showed that exhibit D was issued in August, 1977 and the alleged removal took place on 16th December, 1977. The Order expired in February, 1978 and by that time the respondent was away in Benue State and could not have been prevented from executing the Order. He was not therefore entitled to receive the amount shown on exhibit D. The learned trial Judge was therefore in error in awarding N72,000.00.

 

I entirely agree with this submission. In my view the respondent could only be entitled to recover the price of the chippings which according to exhibit A was valued at N64,000.00. In the circumstances this appeal therefore succeeds and it is hereby allowed. The damages awarded by Ikwechegh, J. (as he then was) is hereby set aside and in its place judgment for N64,400.00 as damages is substituted with costs assessed at N250.00 to the appellants.

 

The defendant is again not satisfied with the decision of the Court of Appeal but this time, according to its amended notice of appeal, the part of the decision of lower court complained of is as follows:-

 

That part of the decision dealing with the capacity of the Plaintiff/Respondent, and also the issue of the inadmissibility of EXHIBITS "A", "B" and "D" which non-rejection has brought about the award of N64,400.00 damages against the Defendant/Appellant even though the appeal was allowed by the Court of Appeal. As a matter of interest and of justice, EXHIBIT "A" reads N62,400.00 and not N64,400.00

 

The defendants' grounds of appeal are as follows, leaving out their particulars except those of ground 4:-

 

1.     The learned Justices of the Court of Appeal erred in law by making like mistake of law as the trial Court did by awarding of N64,400.00 as damages to the Plaintiff/Respondent who lacks the capacity to sue as he did.

 

2.     The Learned Justices of the Court of Appeal erred in law when they held that EXHIBITS "A", "B" and "D" were properly admitted at the Trial because Defendant/Appellant's Counsel did not object to their inadmissibility.

 

3.     The learned Justices of the Court of Appeal erred in law by failing to upset the judgment of the Trial Court, which acted upon the inadmissible hearsay evidence of the son of the Plaintiff/Respondent.

 

4.     The Award of N64,400.00 by the Court of Appeal was based on faulty and wrong principles of law:-

 

(1)   The award of N64,400.00 bears no relevance to the special damages claimed in both the writ of summons and the Statement of Claim.

 

(2) The question was not that of general damages

 

(3) The award was excessive

 

(4) There was no proof of the special damages.

 

(5) EXHIBITS "A", "B" and "D" are documents in pari delito, Ex nihilo nihil.

 

(6)    "Mr. T. I. Azubuike Bros. Construction Co." and/or "Messrs T. Azubuike Brothers Construction Co." are/is not the same as Plaintiff/Respondent.

 

(7)    The said companies in (6) above are neither incorporated nor registered according to law.

 

(8)    The Court of Appeal had no right to award damages to a non-person or non-persona.

 

(9)    The son of the Plaintiff/Respondent was the only alleged eyewitness and he did not testify. There is no more evidence to suport the claim of damages and the claim should fail.

 

(10) Plaintiff(Respondent travelled to the North for many months and at no time during his absence was it reported to him by courier or correspondence by his said son or workers that a loss as heavy as N72,000.00 chippings had been inflicted on him. The situation remained so until he returned home normally.

 

5.    The judgment is against the weight of evidence." Briefs of arguments were filed on both sides.

 

The issues raised in the defendant's brief relate to:

 

(1)    the capacity of the plaintiff to sue in his perso0nal capacity in this case

 

(2)    the admissibility of certain documentary and oral evidence

 

(3)    the assesment of the damages due to the plaintiff if issues 1 and 2, both of them are resolved against the plaintiff.

 

In view of the issues involved in this appeal as I have just outlined them, I have to set down the averments in the plaintiff's statement of claim upon which his claims against the defendant are grounded:-

 

1.     The Plaintiff is a Building and Civil Engineering Contractor and resides at Uturn Okigwe in Okigwe Judicial Division. The plaintiff is also a big farmer and has large acres of cultivated farm lands planted with cassava, yams and other crops.

 

 

2.     The Plaintiff also is engaged in the supply of crushed stone chippings to various contracting firms, individual contractors and some State Ministries of Works and Housing, in different parts of the Country.

 

4.     On or about the 16th and 17th of December, 1977 in the absence of the Plaintiff the Defendant by their agents, servants and/or privies led by a Police constable in uniform unlawfully broke and entered and trespassed into the Plaintiff's Worksite at Uturu and using the defendant's tipper lorries and pay loaders loaded and removed Plaintiff's 2400 cubic yards of crushed chippings heaped on the Plaintiff's Worksite at Uturu without the Plaintiff's authority and consent.

 

5.     The said Plaintiffs 2400 cubic yards of crushed stone chippings unlawfully removed by the defendant were purchased, and delivered to the Plaintiff by the Femaco Crushing Industry Emene for onward supply and delivery to the Hispacon Nigerian Limited, which has placed an order with the Plaintiff for the supply and delivery of 2400 cubic yards of ½ inch and Ύ inch sized stone chippings valued at N72,000.00 (Copy Sales Invoice will be founded upon at the trial.)

 

8.     As a consequence of the defendant's unlawful acts of trespass ~ and removal of the plaintiff's stone chippings and also the defendant refusing to return same back to plaintiff in obedience to the Police Orders/and or advice the plaintiff was unable to supply, satisfy )r execute the order of the Hispacon Nigeria Limited and thereby lost order (Copies of Order and cancellation of order by Hispacon Nigeria Limited will be founded upon at the trial.)

 

11.    The defendant has refused or neglected to return back the said Plaintiffs crushed stone chippings totaling 2400 cubic yards and valued at N72,00.00 despite repeated demands.

 

It is also necessary to refer to the evidence for the plaintiff at the trial court in support of the above averments of his. In this regard I refer first to the following evidence of the plaintiff himself:-

 

I know the defendant Company known as M.C.C. On the 16th and 17th December, 1977, I was away in Benue State, and on my return early in 19781 was informed by my son that M.C.C had removed my chippings ………

I had stacked the chippings on my site on my land on my worksite where I normally heaped chippings preparatory to serving my customers. When I went to my worksite I discovered that all the quantity of chippings I had on the land had been removed. I had left on the site about 2400 cubic yards of chippings. I went to the police at Okigwe as I was much aggreived.

 

……. I told the police that I had bought the chippings from Femaco Crushing Industry, Emene, and that M.C.C. must return the chippings to me. I even took the policeman to Emene and I showed him the documents covering the purchase. I bad valid documents from the vendors at Emene. This is the Invoice for the purchase of the chippings Invoice of 18th August, 1977, No.1152 received as Exhibit A

 

……. The defendant's failure to return the chippings cost me a job I would have done at Hispacon Nigeria Limited. This is the order I got from Hispacon Nigeria Limited. The order was to have been satisfied by February, 1978, but defendant's activities made it that I could not satisfy this order. The order from Hispacon Nigeria Limited was worth N72,000.00 to me …….

 

……. The chippings had been brought to my site from Emene in my three lorries, and in addition I hired two more to evacuate the chippings to Uturu. Each of my three lorries was carrying on each trip 14 cubit yards of chippings. These are the Delivery notes brought in by the drivers of the lorries and relate to the haulage of the chippings from Emene to Utum-pack of 170 Delivery notes received by defence ……..

 

…… I have been dealing in supplying crushed chippings from 1954.

 

I said that I had a contract order from the Hispacon Nigeria Limited, Construction Engineers. This is the job order from the company for supply of chippings - tendered, no. objection - Document dated 8/8/77 admitted as the Exhibit D. I did not satisfy this job-order. I did not satisfy the order because the M.C.C. defendants - removed the chippings which I had assembled for supply to the company. The order to me was worth N72,000.00. I had piled up 2400 cubic yards of chippings for satisfying this order, but defendants trespassed into my premises and removed the chippings ………

 

Cross-examined by Offoaro: …….. I had been dumping my chippings on this site since 1972. I began placing orders with Femaco of Emene in 1977. This was not the only order I ever placed with Femaco ……. I have been a contractor for about 15 years - from before the war. I had been supplying chippings to companies. I got chippings ………

 

…… I took the job-order to Emene and placed the order for 2400 cubic yards. I paid in cash of N16,000.00 and the company gave me credit for the balance. I did not pay this amount on the same day I placed the order. We had agreed on the total supply price of N62,400.00 before I paid in the N16,000.00 and the balance was on credit.

 

…….. The chippings were mine and defendants removed them I see the Exhibit B here. These delivery notes were not made out on one day ……..

 

…….. I made a cash payment of N16,000.00 to the Emene Company. He wrote this sum down on the purchase Invoice and this is on the Cash Invoice - Exhibit A.

 

……….. I say emphatically that the chippings removed by defendants were mine.

 

Next I go to the evidence of P.W.1, Richard Ugorji:-

 

I see the Exhibit D. I signed it as the Technical Director and project manager of Hispacon Company. I know the plaintiff. I placed this order with plaintiff, as we needed the chippings in our construction work on the Okposi-Amasiri-Nguzu Edda Road. I placed this order on this Exhibit D.

 

Next I refer to the following evidence of P.W.2, Felix Maduagwu:-

 

I know the plaintiff. He is a Contractor here at Okigwe. On 9th August, 1977, the Plaintiff came to my office and said he had a contract to supply a foreign firm chipped stone of various sizes. He requested that I supply him the chipping. We had discussions about supply and the plaintiff gave me an LPO for supply of 2400 cubic yards of chippings. We agreed on the price of N26 per cubic yard. On 18/8/77 the plaintiff came and paid a deposit of Nl6,000.00 but I used our sales Invoice Receipt to show that he has paid the sum of Nl6,000.00. I did not issue my receipt for this sum of Nl6,000.00 leaving a balance of N46,400.00. What is shown me here is the Sales Invoice Receipt I issued to plaintiff - tendered, no objection, Sales Invoice No.1152 dated 18/8/77 admitted as Exhibit A. This cash invoice is duly stamped with an 18k postage stamp. After paying this deposit the plaintiff began to take delivery of the materials, and on 20/8177 he began collection. Plaintiff sent his drivers in a fleet of tippers with letter to collect the chippings and my workers issued Delivery notes as the supplier were borne out. These delivery notes were issued from my factory at Emene - bundle of Delivery Notes tendered objection made, and Bundle of 170 Delivery Notes is identified now having been admitted IS Exhibit B in the plaintiff's evidence.

 

The pleading of the plaintiff and the evidence in support leave no one in any doubt that the plaintiff's ease at the trial court was that the stone chippings which the defendant removed from the plaintiff's land where the stones were kept by him belonged to him. It was the plaintiff's Case that he personally bought the stone chippings from a firm called Femaco Stone Constructing Industry of Emene in Anambra State and that he caused the same to be delivered on his land whence the defendant removed them. It was equally the plaintiff's ease that he had personally contracted to sell the stone chippings to a Company. Hispacon Company, before the defendant removed them and thereby frustrated the contract.

 

However, the plaintiff had put or caused to be put in evidence the following documents.

 

First:- Exhibit A.

 

"EXHIBIT ‘A’ – HO/1/79

 

Femaco Stone Crushing Industry

Emene-Enugu

Cash Invoice No.1152

 

Mr. T. I. Azubuike Bros. Construction Co.

P.O. Box 64,

Okigwe

 

Date 18th August, 1977

 

Qty Particulars of Goods  Rate  Value
2400

Two thousand four hundred cubic yards1/2’’ & Ύ Chippings at

N26.00k per cubic yard Paid N16,000.00

To balance N46,400.00

To be paid in two instalments

Total  N62,400.00

 

Amount in words Sixty-two thousand four hundred Naira Nil kobo

 

Received the above Goods in Good Condition No refund of money after payment

 

(Sgd.) Manager’s Sig. (Sgd.)Customer’s Sig."

 

Second:- Exhibit D;

 

"Exhibit ‘D’ Job Order:

Hispacon Nigeria Limited

Construction Engineers

 

Amaseri Camp, 

P.O. Box 238 

Afikpo. 

36 Orlu Road

P.M.B. 1223

Amakohia-Owerri

Imo State, Nigeria

 

 

8th August 1977

 

Our Ref: HNL/A/467

Messrs T. Azubuike Brothers Construction Co.,

P.O.Box 64,

Okigwe.

 

Dear Sir,

 

JOB ORDER

 

You are requested to supply and deliver to our Amaseri site ½" and Ύ" sized chippings.

 

Total quantity of ½" sized chippings required is 1400 cum at N30.00 per cum i.e. N42,000.00. Total quantity of 3/4" sized chippings required is 1000 cum at N30.00 per cum i.e. N30,000.00. The total cost of this order is N72,000.00 to be paid on the completion of the supplies. This job order shall be cancelled if not executed before the end of February, 1978."

 

and third Exhibit B which I need not copy. They are delivery notes.

 

Exhibit A, B, and D were obviously put in evidence in support of the oral evidence in proof of paragraph 5 of the plaintiff's statement of claim which for ease of reference I reproduce again here:

 

5.     The said Plaintiff's 2400 cubic yards of crushed stone chippings unlawfully removed by the defendant were purchased, and delivered to the Plaintiff by the Femaco Crushing Industry Emene for onward supply and delivery to the Hispacon Nigerian Limited, which has placed an order with the Plaintiff for the supply and delivery of 2400 cubic yards of ½" and Ύ" sized stone chippings valued at N72.000.00 (Copy of Sales Invoice will be founded upon at the trial.)

 

It is to be noted that in Exhibit A, B, and D, the transactions in question were said to be with a firm, Messrs T. Azubuike Brothers Construction Company. It is because of this that counsel for the defendant in his oral submissions to us and in the defendant's brief of argument, has submitted that the plaintiff lacked the capacity to bring this action.

 

His submissions before us ran as follows:

 

It is submitted and contended that an unregistered company such as the one reflected in EXHiBITS "A" "B" and "D" is not a non entity as it used to be under the Common Law: See

 

(a)    Business Law: Principles and Cases 4th Edition 1978 by LUSK, Hewitt, Donnell and Barnes PP.293-294 Capacity of Parties - Unincorporated Associations and Companies

 

(b)    Under English Law, for example, Unregistered Companies may be wound up under Section 399 Companies Act 1948: Re Banque des Marchands de Moscou (1958) Ch. 182 (1954) 2 All E.R. 746). By statute therefore an Unregistered Company has acquired a new status above a non-entity.

 

(c)    Under the High Court Rules of Eastern Nigeria Cap. 61, 1963, Rules 2, 3 and 6 of order IV deal with joint ground of suit, representative Capacity, Partners, in that order. Unregistered associations are hereunder accommodated in matters of who can sue or be sued.

 

(d)     Odgers Principles of Pleadigs and Practice in Civil actions in the High Court of Justice: 221st Edition: by Casson & Dennis PP.18-21

 

        In an action founded on contract, as well as on Tort, it is essential to state the parties correctly. A false start as in the present appeal, may not only entail delay and expense but could even be fatal in the sense that the remedy against even the right party may be lost for ever.

 

(e)    Under the Nigerian Companies Act, 1968, various sections have bestowed a quasi-corporate personality on Unregistered Companies distinguishing them from their owners and partners. Refer especially to SS.363-367 on Winding up of Unregistered Companies; s.379 Restricted application of the Act to Unregistered Companies; SS.414-416, 213, 360, 364-366, to mention a few, all deal with Unregistered Companies.

 

From the foregoing instances, it goes without saying, therefore, that where a person or group of persons make a representation in the name of an Unregistered Company as reflected in EXHIBITS "A", "B" and "D", contrary to the finding of the Court of Appeal on the issue, that Unregistered Company cannot be brushed aside without more, and a single or more persons springing up to make claims under the same representation or contract without reference to the Unregistered Company and without explaining what the connection is. A court of Law will not condone any such deceit or surprise contemplated.

 

The only relevant rule of court cited by Counsel for the appellant, as I see it, is rule 6 of Order IV of the High Court Rules of the former Eastern Nigeria applicable in Imo State High Court of Justice which says:-

 

6.      Any two or more persons claiming or alleged to be liable as partners may sue or be sued in the name of the firm in which they were partners when the cause of action arose; and any party to an action may in such case apply to the Court for a statement of the names and addresses of the persons who were when the cause of action arose, partners in any such firm, to be furnished in such manner, and verified on oath or otherwise as the Court may direct.

 

The highest one can put the submissions of Counsel for the defendant having regard to Exhibits A, B, and D and the evidence in this case is that the plaintiff was at all times material to this case trading or carrying on business in the name of a firm, Messrs Azubuike Brothers Construction Company and the plaintiff has not sued in the firm's name as he might or could have done under Order IV rule 6 of the High Court rules of the former Eastern Nigeria applicable in Imo State High Court.

 

Order IV rule 6 in question is in pan materia with Order XLVIII A rule 1 of the Rules of R.S.C. U.K 1891. In Noble Lowndes and Partners (a firm) and Hadfields Ltd. Same v. Same (1939)1 Ch. 569 Farwell, J., adverting to Order XLVIII A rule 1 (U.K.) said at pages 571 and 572:-

 

Order XLVIII enables persons carrying on business in partnership to sue or be sued in the firm name, but that is a rule made for convenience, and an action by or against a firm notwithstanding the rule remains an action by or against the individual members of the firm." (italics mine)

 

It follows, in my judgment, that it cannot be said that an individual member of a firm lacks the capacity to sue in his personal names in respect of a transaction involving the members of the firm because of the provisions of Order IV rule 6 of the rule in question. In the instant case the only evidence available is to the effect that the plaintiff is carrying on a one-man business and that he carries on that business under the name of a firm. He is evidently qualified to sue in his personal name in respect of the transactions of that firm. That is what the plaintiff has done in this case.

 

The contention by counsel for the defendant Chief Njemanze, that the plaintiff lacks capacity to sue in this case lacks merit in my judgment. So I reject it.

 

It is submitted by counsel for the defendant that Exhibits A, B, & D, are inadmissible because they are not pleaded. The short answer to that is that, as I have shown earlier on in this judgment, these documents;each of them, are tendered as evidence of facts pleaded in the plaintiffs statement of claim. This being so, it is the law that they should not be pleaded. In this regard I refer to the decision of this court in Thanni v. Saibu (1977)2 S.C.89 at page 116 where Sowemimo, J.S.C., as he then was, delivering the judgment of this court said:-

 

Further, with respect to the submission of learned counsel that these Exhibits should not have been received in evidence (and if received should not have been acted upon) because the appellants failed to plead the same we think attention should be drawn to the provisions of Order XXXII rule 5 of the Supreme Court Civil Procedure Rules Cap.211 Vol. X 1948 edition of the Laws of Nigeria applicable in the Lagos State High Court at the time of the hearing by the High Court of these proceedings which read:-

 

Every pleading shall contain statement of all material facts on which the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs numbered consecutively, and each paragraph contain as nearly as may be a separate allegation." (italics ours)

 

In Davy v. Garrett (1877)7 Ch D 473 the Court of appeal in England was of the view that the Rule of court (similar to the provisions above) which provides that evidence is not to be pleaded applies to admissions (such as here) as well as to other evidence. In his judgment James, L.J., made the followng observations:

 

……. it is said that part of the resolution is evidence supporting ‘the plaintiffs' case, but the rules of Court expressly forbid the statement of evidence in pleading. The party is to state facts constituting the wrong of which he complains and he is not to state evidence, whether consisting of admissions or not." (italics ours)

(See 7Ch. Dat 485)

 

And on the same issue, Brett, L.J., dealing with rule 41 similar to the provisions of our Rule under consideration) had this to say:-

 

The distinction is there pointed out that every pleading shall contain a statement of the material facts on which the party pleading relies, but not the evidence by which they (that is, those material facts) are to be proved. The distinction is taken in the very rule itself, between the facts on which the party relies and the evidence to prove those facts. Erle, C.J., expressed it in this way. He said there were facts that might be called the allegata probanda, the facts which ought to be proved, and they were different from the evidence which was adduced to prove those facts.

 

I am therefore satisfied that Exhibits A, B, & D were properly admitted in this case having been tendered without any objection to their admissibility.

 

The decision in Olukade v. Alade (1976)1 All N.L.R. part 1 67 applies there. In that case it was held:-

 

(2)    It is, however, the duty of the opposite party or his counsel to object immediately to the admissibility of such evidence, but if the opposite party fails to object:

 

(a)     the trial court in civil cases may (and in criminal cases must) reject such evidence ex proprio motu; but

 

(b)    On appeal, and provided the evidence is one which is, by law, admissible under certain conditions, then since the opposite party failed to object to its admissibility at the court of trial or by implication consented to its admissibility (although the conditions precedent have not been shown to have occurred) he cannot be allowed to raise the objection in the appeal court.

 

(3)    Where, however, evidence is by law inadmissible in any event, it ought never to be acted upon in court (whether of first instance or of appeal), and it is immaterial that its admission in evidence was as a result of consent of the opposite party or that party's default (in failing to make objection at the proper time).

 

From what I have said above it cannot be said that Exhibits A, B and D, none of them, are by law inadmissible in any event because none of them was pleaded. I have held that the law does not require them to be pleaded. So, such cases as National Investments & Properties Co. Ltd. v. Thompson Organisation Ltd. (1969) 1 N.M.L.R. 99 at 104 which decide that facts not pleaded go to no issue do not apply here. Evidence in support of fact not pleaded goes to no issue either. Again that this is not the case here I have shown earlier on in this judgment.

 

Even if Exhibits A, B & D are inadmissible, which in my judgment they are not, the decision of the court below would have been the same on the admissible evidence. This is so, in my view, because there is the oral evidence of P.W.2, the Managing Director of Femco Stone Crushing Industries as to the sale and delivery of 2400.00 cubic yards of chippings at N26.00 per cubic yard i.e. N62,400.00. The evidence is an eyewitness account of the transaction. It is primary evidence of the transaction. I need not bother to refer to the eye witness account of the transaction to which Exh.D relates. For the lower court in any case in assessing the damages due to the plaintiff thought Exh. D was irrelevant. So in my judgment the admission of the alleged inadmissible evidence could not have occasioned a miscarriage of justice. So the decision could not have been overturned by me because of the alleged inadmissible evidence. See Sec. 226 of the Evidence Act.

 

It is true as contended by counsel for the defendant that the evidence of the plaintiff that his son told him that it was the defendant who collected the stone chippings from the plaintiff's land was hearsay evidence It is inadmissible per se. It cannot form the basis of any decision in this case. So it cannot be said on the basis of that evidence that the defendant removed the stone chippings in question. However besides this hearsay evidence, there is the statement of defence of the defendant, which admitted the removal of the chippings from the plaintiff's land, although it was asserted that the removal was carried out under a claim of right. The claim of right was rejected by the trial court and the Court of Appeal and rightly too in my view. There is also the oral evidence of P.W.3, Ephraim Ejiofor, a police sergeant, as to the removal of the chippings from the plaintiff's land by the servants of the defendant at the instance of the latter.

 

It is evident that the admission of the hearsay evidence could not have caused a miscarriage of justice. Without it the decision would still have been the same. See again Section 226 of the Evidence Act.

 

I said I corrected a slip in the assessment by the Court of Appeal of the damages due to the plaintiff against the defendant. The slip occurred in the following passage from the judgment of the lower court:-

 

In my view the respondent could only be entitled to recover the price of the chippings, which according to exhibit A was valued at N64,000.00. In the circumstances this appeal therefore succeeds and it is hereby allowed. The damages awarded by Ikwechegh. J. (as he then was) is hereby set aside and in its place judgment for N64,400.00 as damages is substituted with Costs assessed at N250.00 to the appellants.

 

The assessment of damages was based on Exh.A which I have copied earlier on in this judgment. According to Exh. A the value of the chipping is N62,400.00. So it was a slip for the lower court to have said that Exh. A read N64,000.00 and then to go on to award N64,400 damages. Counsel for the plaintiff herself admitted that the proper amount the lower court should have awarded having regard to Exh. A was N62,400.00. So I had no difficulty in correcting the award due to the plaintiff accordingly.

 

It was for the above reasons that I dismissed the defendant's appeal on 12th February, 1990.

 

 

Judgment delivered by

Eso. J.S.C.

 

I have had a preview of the comprehensive reasons given by my learned brother Agbaje, J.S.C., in this case. I am in full agreement and would not wish to add anything more to the reasons.

 

 

Judgment delivered by

Uwais. J.S.C.

 

On the 12th day of February, 1990, I dismissed this appeal with N500.00 costs to the respondent and reserved my reasons for doing so till today. I have had the advantage of reading in advance the reasons for judgment read by my learned brother, Agbaje, J.S.C. As it was for the same reasons that I dismissed the appeal, I adopt his reasons as mine. I have nothing to add.

 

Judgment delivered by

Karibi-Whyte. J.S.C.

 

On 12/2/90 I dismissed this appeal and indicated that I shall give my reasons for doing so today. Herein below are the reasons.

 

I have read the judgment of my learned brother Agbaje, J.S.C., in this appeal. I agree with his analysis of the facts and the issues, his arguments and the conclusion that the appeal ought to be dismissed. Learned Counsel for the Appellants Chief Njemanze has pursued a completely erroneous view of the law relating to the capacity of the Respondent to institute the action. The erroneous approach moved learned counsel away and obscured his ability to comprehend the real issues in the case. This ground of appeal is clearly lacking in any merit whatsoever.

 

My learned brother Agbaje, J.S.C., has dealt comprehensively with all the issues in the appeal. I agree with them and adopt them as mine.

 

Learned counsel to the respondents has admitted the error in the amount of damages awarded to the respondent. The proper amount which should have been awarded having regard to Exh.A was N62,400.00 which is the value of chippings claimed in Exh. A. It was therefore a slip for the Court below to have awarded the sum of N64,000.00. The sum of N64,000 awarded by the Court below is hereby corrected and the sum of N62,400.00 being the value of the chippings is substituted.

 

Judgment delivered by

Kawu. J.S.C.

 

On the 12th day of February, 1990, after hearing the submissions of learned counsel in this appeal, I dismissed the appeal and confirmed the decision of the Court of Appeal which upheld that of the trial court. I then indicated that I would, today, give my reasons for doing so. I will now give those reasons.

 

The respondent in this appeal, as plaintiff, instituted an action against the appellant in the High Court of Okigwe Judicial Division, claiming as follows:-

 

The plaintiff's claim against the defendant is for the sum of N100,000.00 made up as follows:

 

(i)     N72,000.00 being the value of stone chippings removed on or about 9th and 10th December, 1978 by the servants, agents or workmen of the defendant from the land in occupation of the plaintiff, at Isulabo, Uturu, Okigwe within jurisdiction.

(ii)    N20,000.00 being the cost of yams, cassava and other crops destroyed in the plaintiff's farm in the course of the removal of the said chippings, at Isulabo, Uturu aforesaid.

(iii)   N8,000.00 general damages.

 

Pleadings were ordered and exchanged.

 

Briefly stated, the plaintiff's case was that he purchased 2,400 cubic yards of stone chippings at the cost of N62,000.00 from the Femaco Crushing Company and kept all the chippings at his Uturu work site. He was tore-sell the stone chippings to a company, Hispacon Nigeria Ltd., who had requested him to supply the stone. It was his case that the defendant, through its agents, without any lawful authority, removed all the stones from his work site.

 

The defendant did not categorically deny removing some stone chippings from the site. Their case was that some of their employees were in the habit of fraudulently diverting their stone chippings to other people's sites and that the stone chippings removed from the Uturu site were their property, which had been fraudulently, deposited there by their employees.

 

At the trial, the plaintiff gave evidence and called three witnesses in support of his claim. Amongst the witnesses called by the plaintiff was Police Sergeant Ephraim Ejiofor who gave an eye-witness account of how the stones were removed. He was p.w.3 and his evidence is as follows:-

 

I am Police Sergeant attached to Owerri Police Station. I was formerly at Okigwe. While I was at Okigwe on 5/12(77 the MCC through agents reported that they had discovered a place at Uturu where chippings belonging to MCC had been heaped. I took a constable, Oni, and we followed the reporting men, Fidelis and Ferdinand to the site of the plaintiff at Ukwunwangwu at Uturu where I found large quantity of chippings. The MCC came with three trailers and pay-loaders to remove the chippings but I said no in that I must inquire as to who had the chippings. I found out that plaintiff was away from home that day, but the MCC agents removed about nine trips of chippings with the MCC tippers and trailers. The chippings were removed also the next morning and six trips in trailers were made. The MCC made use of the chippings about March, 1978. By that time plaintiff had returned and showed us his documents for the purchase of the chippings, I even went to his vendors Femaco Stone Crushing Industry at Emene, and I found out that the chippings were bought by the plaintiff at Emene. I took samples at Emene and I was convinced that the plaintiff bought the chippings The DPO ordered that the chippings be returned to plaintiff by MCC who said they had used the chippings.

 

Two witnesses gave evidence on behalf of the defendant/company and one of them was the Executive Director of the defendant/company. He was D .W. 1. Throughout his examination-in-chiefs this witness said nothing about the removal of the plaintiff's stone chippings by the defendant. However in his cross-examination he made certain admissions which obviously supported the plaintiff's claim. He testified as follows:-

 

I am not aware that the company took away the plaintiffs chippings, but I learnt that we took away our chippings from a place at Uturu. I learnt that it was 9 tipper loads of maximum of 12 cubic yards each. I do not know plaintiffs site at Uturu. I do not know, the particular site from where the company's tippers took away the chippings. I am here as a representative of the defendant company, Monier Construction Company Nigeria Limited. and I speak here for her. I would be surprised to hear that the police sergeant who investigated this case said that he advised my company in writing to return the crushed stone removed to the plaintiff. We complained only about the failure of the investigating police sergeant to attend the Magistrate Court.

 

The defendant's Chief Security Officer, Mr. Ferdinand Uka also gave evidence. He said he received information that some of their drivers were in the habit of diverting loads of stone chippings belonging to the defendants to other people's sites and that he devised a means of preventing such fraudulent practices. He however admitted that there was a time when his company removed some stone chippings from somebody's site. Under cross-examination, he stated as follows:-

 

I have no documents that cover the chippings removed. I did not go the length of finding out for whom the chippings we removed had been meant. I do not know if the son of the plaintiff was there on the day we were removing the chippings from the Uturu site. In fact nobody had claimed ownership as we were removing the chippings. As Chief Security Officer I did not try to find out who had the site at which the chippings had been dumped. I did not hear that any one had come to claim ownership of the chippings. It was only when we received copy of the plaintiffs claim in this suit that I heard of someone claiming ownership of the chippings."

 

The learned trial Judge, on the evidence before him came to the conclusion that the stone chippings were in possession of the plaintiff when the defendant removed them. He was of the view that in accordance with the provision of S.145 of the Evidence Law, the burden was on the defendant to prove that the plaintiff was not the owner of the stones. In this regard, he observed as follows:-

 

It seems to me that there has been no effective challenge to plaintiff's possession and ownership of the stone chippings found in his premises in December, 1977, and the defendant was therefore wrong in carrying away the said stone chippings, or crushed stone. The evidence of D.W.3 and that D.W.4 has not helped the defendant’s case.

 

He accordingly found for the plaintiff and awarded him "N72,000.00 as the total amount recoverable by him from the defendant in this suit.

 

The defendant was not satisfied with the judgment of the trial court and appealed to the Court of Appeal, Enugu Judicial Division on a number of grounds. On the 21st day of May, 1985, that court, in a lead judgment of Maidama, J.C.A., with which Akpata and Babalakin, JJ.C.A. concurred, allowed the appeal and reduced the award of N72,000.00 to N64,400.00. Maidama, J C. A., in his judgment on the reduction of damages stated as follows:-

 

The next finding challenged by the appellant, is the finding that it was liable to pay to the respondent the sum of N72,000.00 as damages. This amount included the value of the chippings as contained in exhibit A plus the profit the respondent would have made if he had executed the order in exhibit D. It was submitted that there was no justification for the award of this amount because evidence led by the respondent showed that exhibit D was issued in August, 1977 and the removal took place on 16th December, 1977. The order expired in February, 1978 and by that time the respondent was away in Benue State and could not have been prevented from executing the order. He was not therefore entitled to receive the amount shown on exhibit D. The learned trial Judge was therefore in error in awarding

 

I entirely agree with this submission, in my view the respondent could only be entitled to recover the price of the chippings, which according to exhibit A was valued at N64,000.00. In the circumstances this appeal therefore succeeds and it is hereby allowed. The damages awarded by Ikwechegh, J. (as he then was) is hereby set aside and in its place judgment for N64,400.00 as damages is substituted with costs assessed at N250.00 to the appellants.

 

It is against this judgment that the appellants have further appealed to this court.

 

Five grounds of appeal were filed on behalf of the appellant and argued. The first ground is a complaint about the capacity or the competency of the respondent to institute the action. The ground of appeal, without the particulars, reads as follows:-

 

The learned Justices of the Court of Appeal erred in law by making like mistake of law as the trial court did by awarding of N64,000.00 as damages to the plaintiff/respondent who lacks the capacity to sue as he did.

 

The main submission in this ground of appeal is that as the transactions in Exhibit 'A', 'B' and 'D' were entered into by unregistered and unincorporated bodies described as "Messrs. T. Azubuike Bros. Construction Co.", the transactions were unenforceable, and the trial court was therefore wrong in basing its judgment on those exhibits. I see no merit whatsoever in this argument. What was before the court was whether, as the respondent claimed, it was true that he bought some stone chippings, kept them in his possession that subsequently in his absence the appellant unlawfully removed the stone chippings. In this regard the respondent did not sue in the name of any company or business. He instituted the action in his personal capacity and all evidence adduced referred to him in that capacity and not as somebody suing on behalf of a company or a business. Exhibits A, B and D were merely used as proof of the transactions he had with some other bodies in order to establish his ownership of the chippings. In any case there was before the trial court overwhelming evidence, some emanating from the side of the appellant, to show that the stone chippings belonged to him.

 

The complaint in the second ground of appeal also lacks merit. In my view Exhibits 'A', 'B' and 'D' were properly admitted at the trial. The documents were relevant to the matter under consideration and proper foundation was laid in respect of each of them before the application for their admission was made. Furthermore there was no objection to their admissibility at the trial.

 

It was complained in the third ground of appeal that the trial court was wrong when it based its decision on what the respondent's son was alleged to have told the respondent relating to the removal of the stone chippings when the son was not called as a witness.

 

It is true that the respondent did say that it was his son who informed him that his stone chippings were removed by the appellant. This was plainly hearsay evidence and therefore inadmissible. But this was certainly not the basis of the trial court's decision. There was other evidence, including that of p.w.3 set out earlier, on which the trial court based its decision.

 

The complaint in the fourth ground of appeal is about the quantum of damages. It was contended that the award of N64,000.00 to the respondent by the Court of Appeal was based on faulty and wrong principles. There is some substance in this complaint. The value of the stone chippings, according to Exhibit 'A' is N62,400 and not N64,000.00 awarded. It was therefore a slip made by the court below when it awarded N64,000.00 to the respondent.

 

With regard to the last ground of appeal, on the evidence adduced at the trial, lam satisfied that the trial court's findings of fact were justified and the Court of Appeal was right in affirming those findings. In my view nothing has been urged in this appeal to warrant our interfering with the concurrent findings of the two lower courts.

 

It is for the above reasons and for the fuller reasons contained in the lead reasons for judgment of my learned brother, Agbaje, J.S.C., that I dismissed the appellant's appeal on the 12th day of February, 1990.

 

 

Counsel

 

Chief D. C. O. Njemanze

With  Miss D. U. Njemanze

  ........

For the Appellant

Mrs. A. J. Offiah

  ........

For the Respondent