IHENACHO & ANOR v. UZOCHUKWU & ANOR

The respondents as plaintiffs had in the High Court of Justice of Plateau State, holden at Jos, instituted an action against the defendants, who are now the appellants, claiming as follows:-
“(a) Total value of the goods and materials unlawfully removed by the defendants from the 1st plaintiff’s store at 31 Rwang Pam Street, 105 on the orders of the 3rd defendant N80,216.04
(b) General damages and/or exemplary damages for wrongful and forcible ejection N119.783.96 Total N200.000.00”
Pleadings were ordered in the suit and were duly settled, filed and exchanged with the same amended by various orders of the court.
At the subsequent trial, both parties testified on their own behalf and called witnesses.
The straight forward facts of this case are that the 1st plaintiff was at all material times a tenant in respect of the one store and premises situate at No. 31 Rwang Pam Street, Jos which he rented fur the purpose of his business as a general contractor and trader in building materials. He moved into the store in 1970 and paid his rents regularly. The store was stocked with various wares and electrical materials, some of which belonged to his in-law, the 2nd plaintiff. The 1st plaintiff had permitted the 2nd plaintiff to pack his wares and other electrical materials inside his said store.
In 1985, the 1st defendant became the caretaker of the said premises. On the 6th August, 1985, the 1st plaintiff duly paid is rent in respect of the premises for the months of January to July 1985 to the 1st defendant. Receipt, Exhibit C. was issued to the 1st plaintiff or this payment. In July, 1985, prior to the said payment,the 2nd defendant swore to an affidavit in a bid to repossess the said store. On the 26th July, 1985, the 3rd defendant, a Chief Magistrate, purportedly endorsed the affidavit ordering repossession of the store. It would appear that armed with this affidavit which was endorsed as aforesaid without or in excess of jurisdiction, the 1st and 2nd defendants with the 3rd defendant’s orderly and a court bailiff broke into the 1st plaintiff’s store on the 11th September, 1985 and removed all the plaintiffs goods therein.
The defendants produced Exhibit F which they claimed is an inventory of the goods found in the store when it was broken into in the absence of the plaintiffs. The 1st plaintiff was neither served with any notice to quit or the seven days notice of intention to recover possession of the premises by the defendants. No action for the recovery of possession of the premises under the Recovery of Premises Law was filed or instituted by the defendants against the plaintiffs and no order for the recovery of possession thereof was made against the plaintiffs by any court of competent jurisdiction or at all pursuant to the provisions of the Recovery of Premises Law, Cap. 115, Laws of Northern Nigeria, 1963.
Following a letter of demand by the plaintiffs to the defendants for the return of their goods or payment of their value which was ignored, the plaintiffs filed this action claiming the sum of N200,000.00 as general and special damages for detinue and/or conversion as well as forcible ejection.
At the conclusion of hearing, the learned trial Judge Emefo, J. after an exhaustive review of the evidence on the 25th November, 1988 found for the plaintiffs and ordered as follows:-
“There shall therefore be judgment for the plaintiffs against the defendants jointly and severally as follows:-
(a) N80,216.04 – being the total value of the plaintiffs goods and materials wrongfully removed or converted by the defendants.
(b) N4,000.00 – being damages for the wrongful and forcible ejection from the plaintiffs’ store.
assess costs to the plaintiffs at N450.00 as follows:-
N22.00 – being the summons fee.
N50.00 – for filing of motions, subpoena.
N180.00 – for over 18 appearances.
Grand total awarded to the plaintiffs is N84,616.04”
Earlier on in the proceedings, the learned trial Judge had passed strictures against the 3rd defendant, the Chief Magistrate, who purportedly endorsed the defendants affidavits and who testified for the plaintiffs as P.W. 3 and for the defendants as DW 7 as follows:-
“I have to state at once that I was not at all impressed by the evidence of the Chief Magistrate – both as PW 3 and as DW 7. He did not appear to me to be a truthful witness and his demean our in the witness box was most nauseating. He had no confidence in himself and in the testimonies that he was giving because he knew that he was not telling the truth. I reject his testimony – both as PW 3 and as DW 7 and also the statement that he made to the police i.e. “Ext. M”, in connection with the matter.”
He was however obliged, upon a preliminary objection, to strike out the 3rd defendant’s name from the suit on the ground of immunity pursuant to the provisions of section 83(1) of the District Courts Law, Cap. 33. The Laws of Northern Nigeria: 1963 as it was not established that his act, as a result of which this action arose, was done in bad faith. No appeal was filed against this decision of the trial court striking out the name of the 3rd defendant from the suit.
Dissatisfied with the decision of the trial court in favour of the plaintiffs, the 1st and 2nd defendants lodged an appeal against the same to the Court of Appeal, Jos Division which in an unanimous judgment on the 26th day of February, 1990 dismissed their appeal and affirmed the decision of the trial court.
Aggrieved by this decision of the Court of Appeal, the defendants have further appealed to this court. I shall hereinafter refer to the plaintiffs and the defendants in this judgment as the respondents and the appellants respectively.
Three grounds of appeal were filed by the appellants against the said decision of the Court of Appeal. These grounds of appeal, without their particulars complain as follows:-
“1. The learned Justices of the Court of Appeal erred in law when they held:
“…………the 2nd respondent’s assertion that he paid some rents to the 1st appellant for the period he used the shop