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Diya, Fatimilehin & Co. vs. Oguntade

DIYA, FATIMILEHIN & CO.

V

1.      OYEWOLE OGUNTADE

2.      CHIEF (MRS.) YEWANDE ADEGBITE

3.      MATHEW AJANI

4.      J. O. OGUNSOLA

COURT OF APPEAL

( IBADAN DIVISION )

MORONKEJI OMOTAYO ONALAJA, JCA ( Presided )

FRANCIS FEDODE TABAI, JCA ( Read the Lead Judgment )

OLUFUNLOLA OYELOLA ADEKEYE, JCA

CA/I/97/98

THURSDAY, 25TH APRIL, 2002

ACTION - Claims of plaintiff - Duty on defendant to rebut by pleadings or evidence during trial

DAMAGES - Claim for wrongful act of unlawful execution on plaintiff’s premises - Award made for negligence and trespass arising therefrom and another award for libel and slander for selfsame act - Whether amounts to double compensation

DAMAGES - Double compensation - Rule against

DAMAGES - Exception character and nature of

DAMAGES - General damages - Award of by trial Judge - Basis of

DAMAGES - Special damages - Need to plead and strictly prove same

PLEADINGS - Special damages - Need to plead and strictly prove same

PRACTICE AND PROCEDURE - Claims of plaintiff - Duty on defendant to rebut by pleadings or evidence during trial

Issues:

1.            Whether the award of N369,400.00k against the 2nd defendant was justified on the pleadings and the evidence before the court.

2.            Whether having held that the 1st, 3rd and 4th defendants were not liable, the lower court would properly find the 2nd defendant liable.

3.            Whether the plaintiff’s claim for negligence, trespass and libel and slander could on the facts of this case be maintained.

Facts:

The respondent herein as plaintiff at the lower court sought jointly and severally the sum of N239,400 as special and general damages for negligence and trespass as well as N250,000 general damages for libel and slander in the course of their wrongful execution of process on his apartment at No. 38 Dejo Oyelese Street, Bodija Estate, Ibadan.

The 1st defendant did not appear and was not represented during trial. The 2nd defendant was defended but failed to tender any evidence. The 3rd defendant stopped appearing after some time while his counsel withdrew his appearance. Only the 4th defendant filed defence and gave evidence during trial. After conclusion of hearing and review of the evidence adduced by the plaintiff and the 4th defendant, the trial Judge gave judgment against the 2nd defendant only for the sum of N369,400.

Dissatisfied with the said judgment, the present appeal is brought to challenge it.