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  • U.B.A. Plc. v. Samba Petroleum Co. Ltd
  • 137
  • 2003-01-13
  • ₦ 200
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U.B.A. Plc. v. Samba Petroleum Co. Ltd

UNITED BANK FOR AFRICA PLC

V

1.             SAMBA PETROLEUM CO. LTD.

2.             ALHAJI MOHAMMED TANKO

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA ( Presided and Read the Lead Judgment )

RABIU DANLAMI MUHAMMAD, JCA

JOSEPH JEREMIAH UMOREN, JCA

CA/K/120/2001

TUESDAY, 9TH JULY, 2002

ACTION - Counter-claim  - Nature of  - Whether a defendant can counterclaim solely against another co-defendant

ACTION - Counter-claim - Joinder of parties to - Whether the counterclaimant can join a new party as either plaintiff or defendant to the counter-claim

APPEAL - Final decisions of the High Court - Appeal as of right therefrom -  Whether requires leave

APPEAL - Grounds of appeal - Grounds in an amended notice of appeal Competence of - Appropriate time to raise objection thereto

APPEAL - Issue of nature of action to be brought - Whether a question of fact or one of mixed law and fact

CONTRACT - Enforceability of contract - Parties who are not parties to a contract - Whether can enforce same

CONTRACT - Illegal contracts - When court will prevent enforcement of a contract on account of illegality - Need for the illegality to be in issue

CONTRACT - Illegal contracts - Meaning of

COURT - Court of Appeal - Power of to correct clerical errors in the judgment of trial court - Section 16 of the Court of Appeal Act

COURT - Mere slip or clerical error in judgment of court - Power of to correct same

DAMAGES - Award of damages by trial court - Challenge of - Basis therefor

DAMAGES - General damages - Whether can be awarded arbitrarily  Whether same standard of proof as special damages applies - How to quantify and calculate

DAMAGES - Illegal structures on land - Where destroyed - Whether damages ought to be paid

DAMAGES - Loss of earnings due to trespass to land - Whether an item of special damages - Proof of trespass attracts nominal damages

EVIDENCE - Onus of proof - Principle guiding discharge of in civil cases -  Quality of unchallenged evidence which can discharge same

JUDGMENT AND ORDERS - Judgment of court - Mere slip or clerical error therein - Power of court to correct same

LAND LAW - Certificate of Occupancy - Conditions of grant stipulated therein - Enforceability of against holder and his successors-in-title -  Section 9(4) of the Land Use Act - Whether breach of the conditions renders grant of right of occupancy illegal

LAND LAW - Declaration of title to land - Whether court can still grant under the Land Use Act

LAND LAW - Party claiming benefit of improvements on land on the principle of quic quid plantatur solo solo cedit - Whether proper to also claim for cost of restoring the land to its former state

LAND LAW - Statutory right of occupancy - Entitlement to - Need to prove before award of

LAND LAW - Statutory right of occupancy- Order of entitlement made by court - Whether automatically vests the plaintiff with statutory right of occupancy simpliciter - Need for awardee to still apply to the appropriate authority for grant

LAND LAW - Structures on land - What makes an illegal structure - Need for a structure to comply with the terms of a grant

LAND LAW - Trespass - Loss of earning due to trespass - Whether an item of special damages

LAND LAW - Trespass - Nature of action in trespass to land - Right of person in possession to maintain an action in trespass

LAND LAW - Trespass to land - Proof of without more - Whether attracts nominal damages

MAXIM - Quic quid plantatur solo solo cedit - Application of - Whether a party who claims improvements on land on the basis of this principle can also claim for cost of restoring the land to its former state

PRACTICE AND PROCEDURE - Counter-claim - Whether a defendant can counter-claim solely against a co-defendant - Whether the counter-claimant can join a new party as either plaintiff or defendant to the counter-claim

PRACTICE AND PROCEDURE - Parties - Joinder of necessary parties When court will order

STATUTE - Land Use Act - Order of declaration of title made thereunder -

Whether courts can still grant

WORDS AND PHRASES - ‘Illegal contract’ - Meaning of

Issues:

1.            Whether it is appropriate to commence an action against a codefendant by way of a counter-claim as was done by the 2nd defendant against the 1st defendant.

2.            Whether the trial High Court was in error in granting a relief not sought or in excess of the relief claimed by awarding 1st respondent the relief that it was the rightful and beneficial owner of the filling station ( the res in dispute)  to the exclusion of the 2 nd respondent.

3.            Whether the appellant correctly raised the defence of illegality of user of the land and if in the affirmative whether the award of damages and all other reliefs granted in favour of the plaintiff

was not wrong in law.

4.            Whether the  award of damages in this matter particularly the award of general damages of N3 million in favour of the plaintiff was correct in law

5.            Whether the cross-appellant is entitled to the cost of restoring the filling station to its original plan in addition to the general damages for trespass.

Facts:

The plaintiff/respondent/cross-appellant filed this suit claiming against the 1st defendant/appellant and others for declaration of entitlement to statutory right of occupancy over a piece of land with a filling station; declaration that the defendant’s acts in relation to the filling station in dispute are unlawful and violent interference with 1st plaintiff’s use and enjoyment of the filling station; order setting aside the purported auction sale of the filling station by 1st defendant to the 3rd defendant; order that 3rd defendant delivers immediate possession of the filling station to 1st plaintiff; special damages for restoring the filling station to its originally approved plan, etc., general damages for trespass and injunction.

The 3rd defendant filed a counter-claim against the 1st defendant claiming special and general damages for breach of contract of sale of land (the res in dispute) . At the conclusion of hearing, the learned trial Judge found for the 1st plaintiff and the counter-claimant. In entering judgment for the 1st plaintiff, the learned trial Judge did not grant the 1st relief exactly in terms of its wordings.

Dissatisfied, the 1st defendant filed this appeal, while the 1st plaintiff cross-appealed against the failure of the trial court to award him damages for restoring the filling station to its original plan. Part of the grievances of the 1st defendant/appellant was resolved by the Court of Appeal, considering the propriety or otherwise of a defendant counter-claiming solely against the co-defendant.