ALL STATES TRUST BANK PLC v. REGISTERED TRUSTEES OF MISSION HOUSE INTERNATIONAL & ORS (2018)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of February, 2018

CA/MK/159/2015

Before Their Lordships

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria


Between

ALL STATES TRUST BANK PLC
(in liquidation by Nigeria Deposit
Insurance Corporation)  Appellants

AND

1. REGISTERED TRUSTEES OF MISSION HOUSE INTERNATIONAL
2. CADE DEVELOPMENT LIMITED
3. PAUL TYOAPINE TSEGBA  Respondents

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JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice Benue State in Suit No. MHC/143/2001 delivered on June 25, 2004 wherein Judgment was delivered by Eko, J., (as he then was), in favour of the 1st Respondent (as Plaintiff), against the Appellant, and the 2nd and 3rd Respondents, (as Defendants). It is also a sister Appeal to Appeal No. CA/MK/214/2009, both having arisen from the same Judgment of the trial Court, wherein Judgment was delivered by this Court on January 25, 2018.The 1st Respondent had commenced the action which gave rise to this Appeal by a Writ of Summons filed on June 8, 2001, together with a Statement of Claim. Thereafter, with the leave of the trial Court granted on October 31, 2003, it amended the claim by filing an Amended Writ of Summons and Statement of claim dated 20th January, 2003 wherein it claimed against the Defendants as follows:
(a) An unequivocal apology in writing addressed to the plaintiff.
(b) Payment of the sum of Twenty three Million Naira (23, 000, 000.00) only as special and general damages 
for the tort of trespass, destruction of plaintiffs properties and the injuries suffered by the plaintiff.
PARTICULARS OF SPECIAL DAMAGES
(i) N10, 448, 830.00 being the value of the property of the Plaintiff vandalized or damaged/destroyed by the defendants on 12-6-2001 as pleaded hereof.
(ii) N3, 000, 000.00 being raw cash of the book launch referred to in paragraph 12 hereof, kept in the office of the plaintiff and which was lost on 12-6-2011, due to the acts of the defendants.
Total – N13, 448, 830.00
General damages – N 9, 551, 170.00
Grand Total – N23, 000, 000.00
(c) An order of injunction restraining the defendants, their servants, agents and whosoever acting on their behalf or in their interest from further trespassing and/or disturbing or interfering with quiet possession of the plaintiff over property situate at No. 87 Iyorchia Ayu Road Makurdi.

The brief facts leading to this Appeal from the 1st Respondents point of view is that, the 1st Respondent was a yearly tenant of the 3rd Respondent in occupation of a part of the property at No. 87 Iyorchia Ayu Road, Makurdi by virtue of a tenancy agreement executed in 1989 between the 1st Respondent and Estate Agents of the previous owner of the property. In 2001, the 1st Respondent was informed by the previous owner that the property had been sold to the Appellant without having terminated the tenancy of the 1st Respondent. On 11-05-01, the 2nd and 3rd Respondents along with the Appellant, through their agents led by Adonye Roberts, invaded the office of the 1st Respondent and disrupted its activities. Thus, the 1st Respondent filed an action in Court accompanied by applications for interim and interlocutory injunctions, on 08-06-01. The Hearing on the applications was fixed for 14-06-01.
While the suit was still pending in Court to the knowledge of all the parties including the Appellant, yet again the Appellant, acting in concert with the 2nd and 3rd Respondents through their agents invaded the 1st Respondents office on 12-06-01 and forcefully threw out the 1st Respondents properties and, by the use of self help, wrested possession from the 1st Respondent. These actions were video-taped and the Video Cassette was admitted in evidence at the trial Court as Exhibit 1.
The properties of the 1st Respondent listed in Exhibit 2 were totally destroyed in the process.
From the perspective of the Appellant, (then a duly licensed Bank in operation), the facts of the case

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leading to the Appeal are that: it rented the premises in question situate at No. 87 Iyorchia Ayu Road, Makurdi belonging to the 3rd Respondent through the 2nd Respondent (its Managing Director), for a term of five years at the rate of N2, 000, 000.00. The Appellant took over possession of the property when it was handed over to it after the 1st Respondent had vacated the premises. The Appellant denied the allegations of the invasion of the premises and contended that it was not involved in the ejection of the 1st Respondent. The Appellant also contended that it was not aware of any pending suit commenced by the 1st Respondent prior to its taking over possession of the premises vacated by the 1st Respondent.
From the printed Record of Appeal, the case of the 2nd and 3rd Respondents (who were jointly sued with the Appellant), was that the 3rd Respondent acquired the property which was designated for commercial use, from the previous owner.
Records made available to the 2nd and 3rd Respondents at the time of purchase by Njubigbo & Associates (the former Managers of the property) showed that the 1st Respondent owed rent for over one year. The 1st Respondent and all other tenants had therefore been given notices to quit the property and also notified of the change of ownership. The 2nd and 3rd Respondents denied using force or any other illegal means to eject the 1st Respondent; rather they contended that they merely moved the property of the 1st Respondent to two other rooms on the property in furtherance of their prior arrangement with the 1st Respondent, in order to enable them maximize the use of the property which they had just acquired.
Issues having been joined at the trial Court, trial commenced with the 1st Respondent adducing evidence through three witnesses and eight exhibits, which included a Video Tape of the alleged invasion of the premises on 12-06-01. In their defence, the 2nd and 3rd Respondents adduced evidence through two witnesses and two exhibits. The Appellant, on its part, adduced evidence through one witness and one exhibit. Thereafter, parties filed and adopted their respective Written Addresses.
At the conclusion of trial, the learned trial Judge entered Judgment in favour of the 1st Respondent on June 25, 2004, and awarded to it inter alia, the sum of N10, 448, 830.00 (Ten Million, Four Hundred and Forty-Eight Thousand, Eight Hundred and Thirty Naira only) as special damages, and the sum of N1, 000, 000.00 (One Million Naira only) as general damages. Dissatisfied with this decision, the 2nd Respondents filed an appeal on September 10, 2004, while the Appellant filed its own Appeal on November 12, 2015, sequel to the leave granted by this Court.
On 08-11-17, when the Appeal was called up for hearing, D.M. Tsevende Esq., appearing with C.B. Ekechukwu Esq., for the 1st Respondent, argued an objection to the hearing of the Appeal in the Notice of Preliminary Objection filed on 12-10-16 attached to which is a Written Address, upon which he placed reliance. He urged the Court to strike out the Appeal.
Ogechi Ogbonna, Esq., in response, adopted the Written Address of the Appellant filed on 17-10-16 in urging the Court to dismiss the objection and proceed with the determination of the Appeal.
Ruling on the objection was thereafter reserved.
In respect of the substantive Appeal, Ogechi Ogbonna Esq. adopted the Appellants Brief of argument filed on 22-01-16 and the Appellants Reply Brief filed on 03-03-16, both Briefs settled by Ogechi Ogbonna, in urging the Court to allow the Appeal and set aside the Judgment of the trial Court. Reliance was also placed on the List of Additional Authorities filed on 23-10-17.
In like vein, D.M. Tsevende Esq., adopted the Respondents Brief of argument filed on 22-02-16 and settled by J.S. Okutepa, SAN, in urging the Court to dismiss the Appeal.

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The 2nd and 3rd Respondents did not file any Brief of argument even after having been duly served with the Court processes and so did not respond to this Appeal.
In view of the gravity of the nature of the issues raised in the preliminary objection to the hearing of the Appeal, which issues touch on the jurisdiction of the Court to entertain the Appeal, it shall be considered and determined first.
PRELIMINARY OBJECTION
On 12-10-16, the 1st Respondent filed a Notice of preliminary objection wherein she prayed the Court to strike out the Notice of Appeal on the following grounds:
i. By the provisions of Section 243(1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), a person who was not a party in a suit at the High Court can only appeal the decision of the High Court with leave of either the High Court of (sic) Court of Appeal as party interested.
ii. The Nigerian Deposit Insurance Corporation that filed the application for extension of time to appeal and the notice of appeal against the judgment of the Court below was not a party in the suit at the lower Court and or party on record.
iii. Leave was neither sought nor obtained by the said Nigeria Deposit Insurance Corporation to appeal as party interested.
iv. The appellant was granted extension of time to appeal the judgment of the High Court of Benue State but failed to annex to the notice of appeal the enrolled order of the Court of Appeal as required by Order 7 Rule 19(2) of the Court of Appeal Rules 2011.

In arguing the objection in his Written Address, the 1st Respondent contends that the Appeal is grossly incompetent and the Court has no jurisdiction to hear and determine it.
It is her contention that from the Writ of summons before the trial Court and the motion seeking for an extension of time to appeal, NDIC was not a party. However, the Notice of Appeal was filed by Counsel to NDIC and is being prosecuted by NDIC, whereas the NDIC has never sought and obtained leave to appeal as an interested party.
It is argued that for anyone who was not a party at the trial Court to file an appeal against the decision of the Court, he must first obtain leave to be joined as a party interested before he can then seek leave or an extension of time to appeal. Reliance is placed on Section 243(1) (a) of the Constitution, 1999 (as amended); and Chukwu V INEC (2015) All FWLR (Pt. 741) 1531 at 1550-1552, paras B-F. It is contended that in the instant case, the NDIC merely obtained an order for extension of time to appeal without seeking the requisite leave. For this reason, the application was incompetent and the Appeal it gave birth to is equally incompetent. The Court is therefore urged to strike it out on this ground.
The second arm upon which this objection is anchored is that the Notice of Appeal is incompetent for its failure to comply with Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, which provides that
Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.
It is contended that the requirement for annexing the order of the Court enlarging time is mandatory

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and not permissive. Ugwu V Ararume (2007) All FWLR (Pt. 377) 807 at 857, paras C-G, among other decided cases, is relied upon.
It is contended that contrary to the requirement of the Rules, the Appellant attached the proceedings of the trial Court to the Notice of Appeal. Thus, that the failure of the Appellant to attach the Court order rendered the Notice of Appeal, incompetent. The Court is therefore urged to strike it out.
In response to these submissions, the Appellant filed a Written Address on 17-10-16. It is contended therein that the parties before the trial Court are the same as the parties before this Court. It is argued that at the time the suit was filed at the trial Court, the Appellant Bank was a healthy performing Bank. However, at the time of the Appeal, the Bank was in distress and its banking license had been revoked, hence the inclusion of the notice to the public that the Appellant was now under liquidation. This was done by the insertion of the words: in liquidation by the Nigeria Deposit Insurance Corporation. It is therefore submitted that the Appeal was filed by the party to the proceedings at the trial Court as of right, and so does not need the leave of Court.
Also, the case of Chukwu V INEC (supra) relied upon by the 1st Respondent was distinguished from the facts of the instant Appeal, and so this Court was urged to discountenance it for being inapplicable. In addition, it is submitted that an examination of the Records of this Court will reveal that it is the Appellant and not the NDIC that is the Appellant. Additionally, the decisions in NIDB V Rolisco Nig. Ltd (2010) 1 NWLR (Pt. 1175) 387 at 399, paras D-E; & Uduma V Arunsi (2009) 15 NWLR  (Pt. 1170) 310 at 330 are relied on to submit that substantial justice is now preferred to technicality and so the claims of a party shall not be defeated by technical arguments.
It is further submitted that the arguments advanced on the failure of the Appellant to seek leave before this Court is an abuse of the process of Court because the same argument had been made earlier in the Appellants application seeking to file the Appeal and it was overruled by this Court. The Court is therefore urged to dismiss the objection as an abuse of process.
In respect of the second arm of the objection, it is submitted that the objection based on the ground that there was non-compliance with Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, is premised on the form in which the order of Court attached to the Notice of Appeal should take, and not on the substance of the Ruling. It is contended that the Certified True Copy (CTC) of the Ruling annexed to the Notice of Appeal was issued to the Appellant upon its application to the Registry of the Court for a copy of the Court Order to enable the Appellant file the application for an enlargement of time to appeal. Order 7 Rule 10(2) of the Rules relied on simply requires the order of Court, and not the enrolled order, to be annexed to the Notice of appeal. Reliance is placed on NJC V Agumagu(2015) 10 NWLR (Pt. 1467) 365 at 423, paragraphs G-H per Ogbuinya, JCA wherein the definition of order in the Blacks Law Dictionary, Eight Edition, was given as:
2. A written direction or command delivered by Court or Judge
The Court is also urged to take judicial notice of its Records of 12-11-15 which contains the Order of this Court allowing the Appellant 14 days within which to appeal. It is this Ruling that was annexed to the Notice of Appeal filed by the Appellant. It is submitted that the Ruling is an order, command, direction and instruction to the Appellant to comply with the terms therein stated or suffer the consequences of its failure to do so. It is further submitted that substantial compliance with the Rule of Court inures in favour of the Appellant. The Court is therefore urged to dismiss the preliminary

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objection and to proceed with the determination of the Appeal.
Findings  
The two main arms of objection to the hearing of this Appeal as gleaned from the four grounds of objection are:
(a) That no leave of Court was sought by the NDIC under Section 243(1) of the Constitution to appeal against the decision of the trial Court as an interested party; and
(b) That the Order of this Court granting an enlargement of time to appeal was not annexed to the Notice of Appeal as mandatorily required by Order 7 Rule 10(2) of the Court of Appeal Rules, 2011.
Consequently, the 1st Respondents contention is that both the motion seeking an enlargement of time to file an Appeal and the Notice of Appeal were filed by NDIC, who was not a party to the suit at the trial Court. Reliance was placed on the provision of Section 243(1) of the Constitution to contend that leave to appeal as an interested party should have been sought by NDIC before both the motion and the Appeal were filed. Secondly, it is also contended that the Appellant, in filing its Notice of Appeal, did not annex the order enlarging time to appeal in compliance with Order 7 Rule 10(2) of the Rules of Court, 2011.
The starting point in this Ruling must therefore be an examination of the name of the Appellant in the Notice of Appeal which is contained at page 133 of the printed Record of Appeal. It is stated thus:
All States Bank Plc (in liquidation by the Nigerian Deposit Insurance Corporation).
From this, it is evident that the ground upon which this arm of the objection is premised is false. It is manifest that it is All States Bank Plc which, although at this point in time, is in liquidation, with the Liquidator being the Nigeria Deposit Insurance Corporation (NDIC) that filed the Notice of Appeal. To contend that it was NDIC who filed the Appeal is to put a ridiculous spin on the clear meaning of these words, which is not in tandem with the law.
The winding-up of a bank/corporation involves its liquidation so that its assets are distributed to those entitled to receive them. However, liquidation is quite distinguishable from dissolution, which signals the end of the legal existence of a bank/corporation. Thus, the mere revocation of the banking license of a Bank in liquidation, without more, cannot bring an end to the juristic life of a bank/corporation. Even in circumstances where a bank ceases to carry out operations or closes its business, that does not determine the legal existence of the bank or corporation.
The Supreme Court in Oredola Okeya Trading Co. V BCCI (2014) LPELR-22011(SC) 26-27 endorsed the finding of this Court in Cooperative & Commerce Bank (Nig.) Plc V O Silva Wax Int. Ltd & Ors (1999) 7 NWLR (Pt. 609) 97 per M.D. Muhammad, JCA (as he then was) wherein a similar application for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal against the ex parte orders of the Federal High Court was considered. Upon an objection raised to the competence of the orders on the two-fold ground that (i) the Appellants/Applicants license had been revoked by the Central Bank of Nigeria and (ii) that the Federal High Court had since wound-up the Appellant and so the Appellant did not exist at the time the order for extension of time was made, this Court, in upholding the objection, held inter alia thus:
It is my considered view that the revocation of the license of the 1st Respondent by the Central Bank on 16th January, 1998, did not necessarily remove the life, so to say of the 1st Respondent thereby making it incapable of suing or being sued or barring it from

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becoming an appellant or respondent in the appeal process.The revocation of the license could have indicated an ill disposition, an acute and serious ailment. It did not go beyond that to herald and or constitute the death of the 1st Respondent. The bank remained alive possessing its legal personality as sick as it could have been and as indicated by the revocation of its license. The order of winding up by the Federal High Court on 12/3/98, however, changed not only its effectiveness as a bank, as a body corporate, but also brought about the death of the 1st respondent. The appointment of a receiver by the same Court can be likened to naming an undertaker who was not only to prepare for but to ensure the burial of the 1st respondent. In essence the legal personality which 1st respondent possessed by virtue of its being a body corporate came to an end with the issuance of the winding up order of 12/3/98.
I.T. Muhammad, JSC in endorsing this position of the law, stated as follows: in the application before the Court of Appeal, it was found that there was an existing order of winding up of the 1st respondent. In the application now before this Court, there is no that winding up order. Thus, this Court is not dealing with any dead person. The common factor between the two cases is the issue of revocation of the banking license of each of the respective banks That is absolutely the position of the law which I endorse.
Again, the Supreme Court in Oredola Okeya Trading Co. V BCCI (supra) per M.D. Muhammad, JSC at pages 38-39 thereof held, on the juristic status of a Bank in liquidation
My understanding of this section is that the fact of winding-up of a company or the appointment of a liquidator does not by itself result in the death of a corporate body thereby removing its legal personality.
In the instant case, while it is true that the Appellant is in liquidation, as is evident by the status by which it has filed this Appeal, it has neither been suggested much less established that the Appellant has been dissolved/wound-up by any order of a Court.
That is the reason why NDIC is not reflected in the Court process as the Appellant in place of All States Bank Plc. Instead, All States Bank Plc, whose juristic personality is still intact, albeit the Bank is in distress and so in the process of liquidation, is stated as the Appellant.
Section 417 of CAMA and the decisions referred to are clear on the point that a Bank in liquidation maintains its juristic personality. However, the law is that where a party intends to sue such a Bank or corporation in liquidation, it must first seek the leave of Court before it can do so. There is however no corresponding requirement of the law that such a Bank in liquidation having been so sued, is required to also seek the leave of Court before it can file an Appeal against the decision of the trial Court, where dissatisfied. That being the case, it is self-evident that the Appellant has approached this Court clothed in its own juristic personality and therefore as of right against the final decision of the trial Court. Consequently, it did not require to seek the leave of Court to file the Appeal since it was a party to the suit at the trial Court, and no other.
For the sake of emphasis, the NDIC is not and has never been a party to this Appeal. Section 243(1) of the 1999 Constitution is therefore not applicable. I therefore find the first ground of the objection misconceived.
The second ground complains that, in line with Order 7 Rule 10(2) of the Court of Appeal, Rules, 2011, the Appellant failed to annex the order of Court granting an enlargement of time to appeal. Upon due examination of the processes filed by the Appellant (at pages 133-139 of the Record), the Notice of Appeal was filed along with the certified true copy (CTC) of the Ruling of this Court delivered on 12-11-15. Therein contained is the Order of Court enlarging time for the Appellant to file an appeal. For ease of reference, the Ruling annexed to the Notice of Appeal (at page 139 of the Record) states unequivocally thus:

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“Lead Ruling prepared and delivered in the open Court by Jombo- Ofo, JCA. MOTION on Notice dated and filed on 22/12/2014 is granted as per prayer 1 thereof, while prayer 2 withdrawn is struck out. Applicant is allowed 14 days from today within which to filed (sic) and serve its Notice of Appeal.”
Yet again, the Applicant therein is “All States Bank Pic, in liquidation by the Nigeria Deposit Insurance Corporation.”I therefore find that the issue sought to be made out of this Court process amounts to nothing but a storm in a teacup, making a mountain out of a mole-hill, or a distinction without a difference.
It is sufficient that there was substantial compliance with the Rules of Court. The facts before the Court establishes that the Appellant sought and was duly granted an enlargement of time to appeal, and that he proved this by annexing the Ruling of this Court granting such an enlargement. I do agree with the Appellant that the wordings of the said Rule of Court did not specifically require that the form the order should take is an “enrolled order”. To contend such would amount to reading into the Rules what is not contained therein.
I also agree with the Appellant that Courts are no longer swayed by mere technicality. Rather, the inclination and predisposition is towards striving for the ideals of doing substantial justice. See NIDB V Rolisco Nig. Ltd (2009) 15 NWLR (Pt. 1170) 310 at 330, para F.
I find that the Appellant essentially complied with Order 7 Rule 10(2) of the Rules of this Court, 2011, and therefore this ground of objection is also unfounded and groundless.
Thus, for these reasons, the preliminary objection to the hearing of the Appeal is without merit. It is accordingly dismissed.
SUBSTANTIVE APPEAL
The Appellant, in its Brief of argument, distilled six issues from the six Grounds of Appeal, and the 1st Respondent also adopted them in the resolution of the Appeal. That being the case, the issues so crafted shall be used in determining the Appeal. They question as follows:
1. Whether the learned trial Court was right in holding that the originating processes were served upon the Appellant including the pending interlocutory applications before they allegedly forcefully ejected the plaintiff on 12th June, 2001 despite the fact that the records show that the Appellant was only served after 3pm on 12th June, 2001, when possession had already been given to the 1st Defendant by the 2nd and 3rd Defendants. (Ground 1)

2. Whether the learned trial Court was right in admitting the Valuation Report (Exhibit 2) made by PW2 in evidence and to rely upon same to award against the Defendants over the sum of N10.4 Million as special damages, despite the fact that Exhibit 2 was made after Exhibits 5 and 6 were written in anticipation of the Court action instituted by the 1st Respondent. (Ground 2)
3. Whether the learned trial Court was right in holding the Appellant liable to the 1st Respondent despite the fact that there was no evidence linking the Appellant with the purported forceful ejection of the 1st Respondent from 87 Iyorchia Ayu Road Makurdi, on 12th June, 2001. (Ground 3)
4. Whether the learned trial Court was right in holding that the Appellant was not only liable to the claims of the Plaintiff but also instigated or motivated the alleged forceful ejection of the Plaintiff from 87 Iyorchia Ayu Road, Makurdi on 12th June, 2001. (Ground 4)
5. Whether the learned trial Court was right to award damages of N1 Million against the Appellant. (Ground5)
6. Whether the learned trial Court was right to award the sums of N10, 448, 830.00 and N1, 000, 000.00 respectively as special and general damages jointly

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and severally, despite the fact that the 1st Respondent did not pray that the Honourable Court should award the damages jointly and severally. (Ground 6)
Since both parties argued issues 1 and 2 separately, 3, 4 and 5 together, and issue 6 separately, I shall also consider them in that order.
Issue one – Whether the learned trial Court was right in holding that the originating processes were served upon the Appellant, including the pending interlocutory applications, before they allegedly forcefully ejected the Plaintiff on 12th June, 2001, despite the fact that the records show that the Appellant was only served after 3pm on 12th June, 2001, when possession had already been given to the 1st Defendant by the 2nd and 3rd Defendants.
It is the contention of the Appellant that they were not served with any Court processes in respect of Suit No. MHC/143/2001 before the trial Court nor were they aware of the existence of the suit through any other means, before the 2nd and 3rd Respondents handed over possession of No. 87 Iyorchia Ayu Road, Makurdi to her after the ejection of the 1st Respondent. Instead the Appellant contends that it was served the said processes of Court after 3.00pm on June 12, 2001. It is contended that before then, the ejection of the 1st Respondent had already been completed. The proof of service before the learned trial Court attested to this fact and no counter evidence was tendered to contradict this. It is submitted that this constitutes sufficient and conclusive proof of the fact of the time of service of the originating and other Court processes on the Appellant, and also constitutes an admission in line with Section 20 of the Evidence Act.
It is submitted that service is fundamental to any adjudicatory process and confers jurisdiction and competence upon the trial Court. The failure to serve a party goes to the root of the case and entitles the party to have any finding of fact or outcome of such proceedings, set aside. Reliance is placed on SGBN Ltd V Adewunmi (2003) 10 NWLR (Pt. 829) 526 at 539, paras F-H. Thus, it is argued that based on the evidence on Record and the proof of service which showed the actual time of service, the learned trial Court had no jurisdiction over the Appellant prior to the time of service of processes upon it.
Therefore, that the Appellant cannot be held responsible for what took place prior to being served with process. Reliance is placed on Dickson V Oni (2003) 16 NWLR (Pt. 846) 397 at 416, paras B-C, 411, paras E-F.

In respect of the finding of the trial Court that the Appellant, in breach of the doctrine of lis pendens, took over part of No. 87 Iyorchia Ayu Road, Makurdi which was at the material time occupied by the 1st Respondent, it is still submitted that the doctrine can only apply where it is shown that before the alienation, the suit was in full prosecution by showing that service had been effected on the Appellant. It is therefore submitted that this finding and the subsequent orders were in error, and the Court is urged to set it aside. Reliance is placed on Akpan V UBN Plc (2003) 6 NWLR (Pt. 816) 279 at 304 paras C-E.

In response, the 1st Respondent submits that, contrary to the contention of the Appellant, the Appellant as well as the 2nd and 3rd Respondents, had full knowledge of the pendency of the 1st Respondents suit against them which was fixed for hearing of the applications for injunction on 14-06-01. However, they chose to act in sabotage of the power of the trial Court to adjudicate over the subject matter, and forcefully wrested possession from the 1st Respondent by the use of might and self-help on 12-06-01. It was on the basis of the conduct of the Appellant and its allies that this Court, while granting an order of mandatory injunction to restore

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the 1st Respondent to possession pending the hearing of the substantive suit, held in its Ruling now reported as Registered Trustees of Mission House International V All States Trust Bank Plc (2003) FWLR (Pt. 172) 1804 at 1825, paras E-C, inter alia thus:
From the averments reproduced above and contained in the affidavits and counter-affidavits it is clear that as at 12/6/2001 the Appellant was in possession of the land property in question i.e. 87 Iyorchia Ayu Road, Makurdi. It is also beyond any dispute that the Appellant were forcibly evicted out of the premises through self-help by the 2nd Respondent for the benefit of the 1st and 3rd Respondents. It is also not in dispute that as at the time of the Appellants eviction on 12/6/2001 the substantive suit (sic) and two motions were pending in Court (see paragraph 16 of the 2nd and 3rd Respondents counter-affidavit). There is also clear evidence that as at the time the Respondents took possession of the premises forcibly from the Appellant, the latter was in effective and legal possession of same.
Reference was also made to the finding of the trial Court that all the parties, including the Appellant, were aware of the pendency of the suit at the trial Court (page 123 lines 1-3 of the Record). The hearing notice served on the Appellant in proof of his contention that it was only served on 12-06-01 at about 3.00pm was not identified by the Appellant in the Record of Appeal. The Record of Appeal was settled and compiled at the instance of the Appellant. Thus, it is submitted that the only reasonable conclusion to be drawn is that if the Appellant had included the proof of service to the Record of Appeal, it would had been unfavourable to it. The Court is therefore invited to invoke the provision of S. 167(d) of the Evidence Act against the Appellant.
It is further submitted that the Record shows that, while the Appellant and its army of invaders were taking possession from the 1st Respondent, it was brought to their knowledge and notice that the suit and motion were pending; yet they ignored the information and used self-help to push the 1st Respondent out of possession. The Court is therefore urged to resolve this issue in favour of the Respondent.
Findings – 
The Appellants contention under this issue is simply that, contrary to the finding of the learned trial Judge, the Appellant was not served with the Court processes in respect of Suit No. MHC/143/2001 wherein the 1st Respondent sought certain reliefs including an injunction, before possession of the premises was handed over to them by the 2nd and 3rd Respondents. Instead, that the processes were served on them sometime after 3.00pm on June 12, 2001, by which time the 1st Respondent had already been ejected from the premises earlier on the same day. Reference is made to the alleged proof of service before the trial Court. Thus, the argument is basically that the Appellant was unaware of the existence of the suit at the time the property was handed over to it.
The Respondent disputes this and contends that there is no record of such proof of service in the Record of Appeal which was settled and compiled by the Appellant. In addition, that this argument was canvassed before the Court of Appeal, Jos Division in an Appeal between the same parties arising from the Ruling of the lower Court in respect of the applications, and this Court found as a fact that there was service of the Court processes in that regard on the Appellant and 2nd and 3rd Respondents.
The purpose of service of Court processes on the parties to a case is to bring to their notice/attention the pendency of the case, the contents of the case and give them an opportunity to react to the said processes. Thus, the service of Court process is fundamental to the hearing of any suit before the Court.

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It is a well known practice of our Courts that proof of service of all processes, where necessary, are enclosed in the Court file of the suit concerned so that on the date slated for hearing, the Judge, by referring to the file, can easily and readily determine whether there was any such proof of service or not.
In the instant case, it is not the contention of the Appellant that they were not served with the process of Court. Rather, their argument is that although the Court process was served on them on the same day on which the 1st Respondent was ejected, i.e. 12-06-01, it was served at 3.00pm after the ejection had taken place and the 2nd and 3rd Respondents had handed over the premises to them. Since the position of the law is that the question as to whether or not Court processes have been served is a question of fact, it is incumbent upon the person asserting the affirmative to prove by documentary or even oral evidence obtained from the person who effected service.
Counsel for the 1st Respondent has relied on the decision of this Court reported in Regd. Trustees of Missions V All States Trust Bank Plc (supra) where it was held that the Appellant and 2nd & 3rd Respondents were aware of the pendency of the proceedings. Without taking any issue with this finding, since it is trite that this Court cannot sit on appeal over its own decision, the issue raised by the Appellant is not quite the same in this Appeal. Instead, as aforesaid, the issue is whether the Appellant was served with the Court process at precisely 3.00pm, while the ejection of the 1st Respondent from the premises in question took place some hours before, to wit: at 11.00am.
The relevance of the timing cannot be under-played because even though both events took place on the same date, knowledge cannot be imputed of the suit if same was served on the Appellant some hours after the ejection of the 1st Respondent form the premise with the attendant destruction of its property.
As I have already stated, this is a question of fact to be resolved by evidence, oral or documentary. Much as I am not unmindful of the finding of the learned trial Judge at page 123 of the Record that
By 12th June, 2001 this suit was already pending. All the defendants including the 1st Defendant were aware of the pendants list (sic).
The issue is not whether or not the Appellant was aware of the pending proceedings on the 12-06-01 simpliciter. The issue is whether the Appellant was aware of the suit before 3.00pm on that date, during which time the havoc on the premises in question was being wreaked.
There is nothing in the printed Record to dispute the position of the Appellant and to prove that it was served Court process before the time it has stated.
Thus, I am of the respectful view that the burden of proof was on the 1st Respondent to establish such service. I have searched the Record of Appeal and I see no such proof. Based on this, the issue of whether the learned trial Court was right in holding that the originating processes were served on the Appellant prior to the ejection of the 1st Respondent on 12-06-01, is answered in the negative, there being no proof of that. However, the issue of whether, even though not served, the invasion of the premises and destruction of the property of the 1st Respondent was lawful and proper, is another kettle of fish which shall be addressed anon.
Thus, for the reasons adumbrated above, I answer issue one in the negative to the effect that the trial Court was not right when it held that the originating processes and the pending interlocutory applications were served on the Appellant before they allegedly forcefully ejected the Plaintiff on 12th June, 2001. Issue one is resolved in favour of the Appellant.
Issue two – Whether the learned trial Court was right in admitting the Valuation Report (Exhibit 2) made by PW2 in evidence and to rely upon same to award against the Defendants the sum of N10, 448, 830.00 as

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special damages, despite the fact that Exhibit 2 was made after Exhibits 5 and 6 were written in anticipation of the Court action instituted by the 1st Respondent.
It is the contention of the Appellants that Exhibit 2 which the trial Court relied upon to award the sum of N10, 448, 830.00 was made on May 26, 2001, while the Statement of claim was dated May 24, 2001. Therefore, that Exhibit 2 was made in anticipation of proceedings and is inadmissible in law by virtue Section 83(3) of the Evidence Act. Having however been admitted in evidence, it is argued that the trial Court should not have acted on the inadmissible Exhibit in line with Section 251(1) of the Evidence Act.
It is further contended that PW2 while testifying, stated that he visited the 1st Respondents office on 17th and 18th May, 2001 to inspect materials which he used in writing the Valuation Report. This inspection was carried out after the visit of Adonye Roberts (a member of staff of the Appellant) to the premises on 11th May, 2001 and after the 1st Respondent had written Exhibits 5 and 6. Reference is made to Section 83(3) of the Evidence Actwhich provides that evidence made when proceedings are pending and/or anticipated is not allowed. It is therefore submitted that Exhibit 2 was made at the behest of the 1st Respondent by PW2 on 26th May, 2001, when proceedings were already anticipated. This conclusion is drawn from the following: the act of the 1st Respondent during the visit of Adonye Roberts on 11th May, 2001, the 1st Respondents threat to go to Court and also Exhibits 5 and 6, letters written by the 1st Respondent threatening Court action, as well as the fact that the original Statement of claim in the suit is dated 24th May, 2001. Reliance is placed on FBN Plc V Excel Plastic Industry Ltd (2003) 13 NWLR (Pt. 837) 412 at 451 paras A-F; Gwar V Adole (2003) 3 NWLR (Pt. 808) 516 at 543, paras C-E; & Union Bank of Nigeria Limited V Ozigi (1994) 3 NWLR (Pt. 333) 385 at 399, para F. In the latter case, Section 91(3) of the repealed Evidence Act (in pari materia with Section 83(3) Evidence Act, 2011), was considered and interpreted. It is submitted that a person interested is not confined to the maker of the document but to whosoever is interested. It is therefore argued that this includes the PW2 who made Exhibit 2 at the behest of the 1st Respondent. It is further contended that since Exhibit 2 is inadmissible, the oral evidence of PW2 who prepared Exhibit 2, is also inadmissible
While conceding that by Section 251(1) of the Evidence Act, the mere wrongful admission or rejection of evidence shall not be a ground for setting aside such a decision provided there are other pieces of evidence on record to sustain the decision; it is contended that the decision of the trial Court, including the extent of loss and its value, would not have been adverse to the Appellant if Exhibit 2 as well as the evidence of PW2 on the said Exhibit, were not admitted in evidence and relied upon by the trial Court (page 129 of the Record).
In respect of the failure of the Appellant to object to the admissibility of Exhibit 2, it is submitted that parties cannot by consent concede to the admissibility of inadmissible evidence. Reliance is placed on Kabo Air Ltd V INCO Beverages Ltd (2003) 6 NWLR (Pt. 816) 323 at 339, paras D-E. The Court is therefore urged to expunge Exhibit 2 as well as the testimony of PW2, and set-aside the damages awarded based on these pieces of evidence.
In response, it is contended for the 1st Respondent that Ground two of the Grounds of Appeal from which this has been formulated, is incompetent in view of the fact that it is an entirely new issue for which the leave of Court has not been sought and obtained. Throughout the proceedings before the trial Court, the question of the inadmissibility of Exhibit 2 as a document made while litigation was pending or anticipated, was never raised and considered by the trial Court. Also, there was no objection to the admissibility of the document. The issue was thereafter not raised in Counsels address, and even if it was, (which is not conceded), it was not considered and pronounced upon in the Judgment. Since there was therefore no objection to the document, it is too late in the day to raise it before this Court without leave. It is further submitted that a ground of appeal which does not emanate from the Judgment

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of the Court appealed against is incompetent and liable to be struck out. In like vein, any issue formulated from an incompetent ground of appeal is also incompetent and liable to be struck out. Reliance is placed on Asogwa V PDP (2013) 7 NWLR (Pt. 1353) 207 at 251-252, paras H-A. In the circumstances, the Court is urged to strike out Ground 2, as well as issue 2 formulated therefrom, for being incompetent.
It is further submitted that, assuming without conceding that the Appellants Ground two and issue two derived therefrom are competent, a person is interested within the meaning of S. 83(3) of the Evidence Act if he has personal or pecuniary interest in the outcome of the proceedings. However, where the interest of the maker of a document is official, professional, intellectual or sympathetic, the provisions of S. 83(3) of the Evidence Actdo not apply. Reliance is placed on CPC V Ombugadu (2013) 18 NWLR (Pt. 1385) 66 at 124, paras E-F, & 149-150, paras C-C; NBC Plc V Ubani (2014) All FWLR (Pt. 718) 803 at 829, paras D-G; & Susano Pharmaceutical Ltd V Sol Pharmaceutical Ltd (2000) FQLE (Pt. 10) 1595 at 1604; AC (OAO) Nig Ltd V Umanah (2013) 4 NWLR (Pt. 1344) 323 at 346-347, paras E-H; Yau V Dikwa (2001) 8 NWLR (Pt. 714) 127 at 153-154, paras F-E; Igbinovia V Agboifo(2002) FWLR (Pt. 103) 505 at 517, paras C-D.

It is argued that from the circumstances of this case, PW2, the maker of Exhibit 2, had no interest in the outcome of the 1st Respondents suit in view of the fact that he is an expert or professional who prepared Exhibit 2 in that capacity when his professional services were retained by the 1st Respondent herein. Thus, the contention that Exhibit 2 is inadmissible is a gross misconception of the law. The Court is therefore urged resolve this issue against the Appellant.
In a Reply on point of law, the Appellant submits that the trial Court had the obligation to expunge and discountenance inadmissible evidence wrongly admitted in evidence. Having not done so, this Court can eminently do so relying on the plethora of powers including, Section 15 of the Court of Appeal Act.
Findings 
There are two parts to this issue, namely: (i) whether it was right for the trial Court to have admitted the Valuation Report in evidence as Exhibit 2, when it was made in anticipation of the Court action instituted by the 1st Respondent; and (ii) whether the trial Court was right to rely on it to make the award of special damages to the tune of N10, 448, 830.00.
In respect of the first part, Exhibit 2 is the Valuation Report on the assets of the 1st Respondent. It was prepared by PW2, an Estate Surveyor and Valuer who was consulted by the 1st Respondent to value its assets. The Report contains the values of the various assets of the 1st Respondent totaling the sum of N10, 448, 830.00, and it was admitted in Court without objection.
On the inadmissibility of Exhibit 2 on the ground that it was prepared in anticipation/contemplation of the suit, the provision of Section 91(3) of the Evidence Act, now Section 83(3) of the Evidence Act, 2011 are pertinent. It provides
Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.
The Supreme Court in Owena Bank Plc V Olatunji (2002) 12 NWLR (Pt. 781) 259 at 331-333 paras D-A, interpreted this provision inter alia thus:
I dont agree that the term a person interested extends to include an independent contractor and an outsider who made the documents as in the present case.

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To hold otherwise will mean that a plaintiff who finds himself in a situation similar to that of the 1st Respondent cannot establish the current prices of the items wrongly detained after institution of the action-unless may be he purchases them and obtained receipts (but will the receipts not be issued after the institution of the proceedings?) I therefore agree with the learned trial Judge when he found at page 372 of the record thus:
Exhibit P10, P12, P13, P15-P17 were tendered by different experts. The facts of this case have not disclosed that any of the witnesses who tendered the exhibits for the plaintiff had a personal interest in the result of the litigation. Exhibits P10, P12, and P15-17 are therefore admissible.

At page 75 of the Record of Appeal, the PW2 in his evidence-in-chief testified as follows
I am an Associate member of Nigerian Institution of Estate Surveyors and Valuers. I am a registered Surveyor and Valuer with the Nigerian Institution of Estate Surveyors and Valuers. I hold BSC in Estate Management. I have heard of the organization called Mission House.
In May 2001 I did work for the plaintiff. It was valuation of their assets that I did. I was consulted to do the work. I went in and I did the inspection of the properties on ground. Thereafter, I went to my office to do the calculations. I carried out the valuation.
From the above evidence on Record, the credentials and capacity of the PW2 are on display and they were not disputed by the 1st Respondent. PW2 was visibly consulted as an expert to value the assets of the 1st Respondent and he did so as an expert, producing Exhibit 2 in the process. His report is therefore not caught by Section 91(3), as he had no personal interest that could have swayed or tempted him from the truth as he saw it. No evidence was adduced or elicited from him under cross-examination that could suggest any interest beyond his professional expertise. The application of Section 91(3) is self-limiting to only statements made by a person interested. Therefore, in order to exclude Exhibit 2 from evidence and/or consideration, it was incumbent on the Appellant to prove that it was made by such a person interested. The evidence adduced before the trial Court however only goes to confirm that he was a professional, an expert in his field whose services were employed to value the assets of the 1st Respondent and produce a report. No doubt he was a disinterested and neutral witness whose evidence was not caught by Section 91(3) of the Evidence Act, 1990, (now Section 8(3) of the Evidence Act, 2011.
In Peterside V Wabara (2011) 6 NWLR (Pt. 1243) 328 at 337, Ogunwumiju, JCA stated as follows
The attitude of the Court is settled that a Surveyor, like an expert in any other field of knowledge is not an interested person in respect of the admissibility of the document made by him during the pendency of the action.
See also NBC Plc V Ubani (2014) 4 NWLR (Pt. 1398) 421; CPC V Ombugadu (2013) 18 NWLR (Pt. 1385) 66; Apena V Aiyetobi (1989) 1 NWLR (Pt. 95) 85; & Evon V Nonle (1949) 1 KB 222 at 225.

Therefore, the contention of learned Counsel for the Appellant that Exhibit 2 was inadmissible on account of the fact that it was made by a person interested at the time proceedings were being anticipated is baseless. The submission is therefore discountenanced and rejected.
The reliance by the trial Court on Exhibit 2 to make the award of special damages claimed is however another issue completely. This is because Exhibit 2 was a piece of documentary hearsay as it shall be revealed anon.
Exhibit 2, as aforesaid, is the Valuation Report on the assets of the 1st Respondent prepared by PW2, an Estate Surveyor and Valuer who was consulted by the 1st Respondent to value its assets. The report contains the value of the various assets of the 1st Respondent totaling N10, 448, 830.00. When cross-examined as to his source of the unit prices of the assets, he stated as follows at pages 78-79 of the Record:
It is the open market price as at the time. We went to the market to ascertain the current

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price of some of the assets. We obtained some receipts but not all
For some items, I was shown purchase receipts. Those I did not see purchase receipt I went to open market to know their prices. I did not fix the prices I had the list before I went to the open market to obtain their market values.
It is evident from this that the values or the prices of the items in Exhibit 2 were obtained by the PW2 from the open market. He also obtained some from receipts given to him which were not tendered in evidence. The prices or values were therefore not matters within his personal knowledge neither are they matters of common knowledge. They were derived from sources outside the PW2 and the persons who constituted these sources did not testify nor were the receipts tendered in evidence. The values or prices of the items in Exhibit 2 were therefore nothing but hearsay, specifically documentary hearsay since they were recorded in the Report to establish their truth. See Nya V Edem (2005) 4 NWLR (Pt. 915) 345 at 369-370; Jolayemi V Alaoye (2004) 12 NWLR (Pt. 887) 322 at 342; & Subramanian V Public Prosecutor (1965) 1 WLR 965.
In Uwa Printers (Nig) Ltd V Investment Trust Co. Ltd (1988) 5 NWLR (Pt. 92) 110 121-122, the Supreme Court per Wali, JSC stated as follows
An expert may give his opinion upon facts which are either admitted or proved by himself, or other witnesses in his hearing at the trial or are matters of common knowledge. But where the opinion is based on report of facts, these facts, unless they are within his personal knowledge, must be proved independently, that is by calling witnesses who are personally concerned in the transaction
Exhibit 29 was therefore based on hearsay evidence which was reduced into writing and the learned trial Judge should have attached no weight to it, much less rely on same to make the fantastic award of N645, 676.08 for loss of profits. The damage awarded is merely speculative.

It therefore follows that so long as PW2 obtained the values or prices in Exhibit 2 from the open market, the persons/traders who gave him the prices were not called to testify to such and the receipts from which some of the values were derived were not tendered, the values or prices in Exhibit 2 were hearsay evidence or documentary hearsay. The trial Court ought not to have relied on them to award the sum of N10, 448, 830.00 as special damages. In this regard, it is immaterial that no objection was raised to the admissibility of Exhibit 2 in evidence for acquiescence does not change the character of hearsay evidence.
On a final note, the objection raised to Ground two and issue two distilled therefrom during arguments canvassed under this issue, is not well-taken. Such an objection should have been raised via a motion on notice and not suddenly by ambush. Nevertheless, in view of my findings in respect of the said Exhibit, the issue of its admissibility or otherwise has become both superfluous and a non-issue.
As a result, on the basis of all my findings under this issue, I hold that while the trial Court acted rightly in admitting the Valuation Report, Exhibit 2, in evidence, it acted in error when it relied on same to make the award of special damages to the tune of N10, 448, 830.00 to the 1st Respondent. I therefore enter a negative answer to the issue on the basis that the values or prices in Exhibit 2 amounted to hearsay evidence. I resolve issue two in part in favour of the Appellant.
Issues three, four and five
3. Whether the learned trial Court was right in holding the Appellant liable to the 1st Respondent despite the fact that there was no evidence linking the Appellant with the purported forceful ejection of the Plaintiff/Respondent from No. 87 Iyorchia Ayu Road, Makurdi on 12th June, 2001.

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4. Whether the learned trial Court was right in holding that the Appellant was not only liable to the claims of the Plaintiff but also instigated or motivated the alleged forceful ejection of the Plaintiff from No. 87 Iyorchia Ayu Road, Makurdi on 12th June, 2001, when there was no evidence on the record to support that finding.
5. Whether the sum of N1 million awarded against the 1st Defendant as damages was not excessive.

In arguing these issues, learned Counsel for the Appellant re-hashed the evidence of the witnesses of both parties before the trial Court. Based on the evidence, it is contended that the 1st Respondent admitted that Mr. Adonye Roberts only visited the office premises with workmen on May 11, 2001 and thereafter left after he was told that the 1st Respondent had not been served with a quit notice. No destruction or eviction took place on that day.
In respect of the Exhibit 1 (the Video Cassette), PW1 testified that the ejection and destruction of the assets of the 1st Respondent on June 12, 2001 were recorded by Video. The video recording was admitted as Exhibit 1 and was played in the open Court to show the destruction of the assets of the 1st Respondent, which assets were as stated in the Valuation Report, Exhibit 2. However, the maker of Exhibit 1 did not give evidence nor was the instrument (including the camera/negative/device) from which Exhibit 1 was made/produced/recorded, tendered in evidence. Counsel therefore submits that this makes Exhibit 1 inadmissible evidence under the law. Reliance is placed on Sections 258(d), 37 and 38 of the Evidence Act, 2011 and JAMB V Orji (2008) 2 NWLR (Pt. 1072) 552 at 549-570, paras H-B.

It is further submitted that, although Exhibit 1 was admitted without objection, it remains hearsay evidence and inadmissible in law. Also, that the failure of the 1st Respondent to produce and tender the instrument used to produce Exhibit 1 or to call the Camera-man amounts to wrongful withholding of evidence and works against the 1st Respondent. Section 167(d) Evidence Act, 2011 and John Holt Ltd V Owoniboys Technical Services Ltd (1995) 4 NWLR (Pt. 391) 534 at 547, para H are relied on.
Furthermore, it is submitted that DW3, (Julius Atorough), did not feature in the Video and he denied being having anything to do with the ejection of the 1st Respondent and the destruction of the 1st Respondents property. Instead, by his evidence, at the time the eviction of the 1st Respondent took place, he was in Abuja on an official assignment, having left Makurdi on June 10, 2001. He was not cross-examined on this and so the evidence is deemed admitted. Adesule v Mayowa (2011) 13 NWLR part 1263 page 135 at page 170 paragraphs E-F is relied on.
Upon his return to Makurdi on June 12, 2001, he was subsequently given possession by the 2nd and 3rd Respondents on June 13, 2001. It is also contended that the 1st Respondent admitted that Adonye Roberts visited the premises with workmen on May 11, 2001, but left when he was told that the 1st Respondent had not been given a proper notice to quit. Subsequently, no evidence was led to show that the 1st Respondent suffered any damages from the visit of Adonye Roberts. It is therefore contended that there was no evidence linking DW3 to the eviction of June 12, 2001. Rather, the evidence of the 2nd and 3rd Respondents was that they handed over possession to the Appellant.
It is further submitted that the essence of damages is to restore the injured party to the position which he was before the injury, as far as money can do so; and not to compensate him for a wrong that was never done. Such damages are awarded after the claimant has proved to the extent stipulated by law in Sections 131, 133 of the Evidence Act that he suffered injury from the conduct of the party found guilty. Nicon

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Hotels Ltd v Nene Dental Clinics Ltd (2007) 13 NWLR part 1051 page 237 at page 270 paragraphs E is relied on. It is contended that the evidence of DW1 and DW2 is that they moved the property of the 1st Respondent in furtherance of their prior agreement, and then gave the Appellant possession. It is argued that the alibi of DW3 that he was in Abuja on official assignment on June 10, 2001 and only returned to Makurdi in the evening of June 12, 2001 was not countered. The video recording by the 1st Respondent did not show the physical or audio presence of DW3 and no further evidence was led by the 1st Respondent. It is therefore submitted that the finding of the learned trial Court that the Appellant instigated and was involved in the forceful ejection of 1st Respondent and the damages awarded cannot be sustained in law.
Additionally, it is submitted that the destruction of the property in issue is a criminal allegation raised in a civil matter which has to be proved beyond reasonable doubt in line with Section 135 Evidence Act. It is argued that the evidence adduced by the 1st Respondent and relied upon to give a verdict against the Appellant do not satisfy the burden of proof of the issues in controversy and cannot sustain the verdict against the Appellant. Reliance is placed on UTC Nig. Ltd V MIA Ltd (2003) 13 NWLR (Pt. 837) 291 at 304, para C; Emiowe V State (2001) 1 NWLR( Pt. 641) 408 at 422 para D; & Abacha V State(2002) 11 NWLR (Pt. 779) 437 at 497, paras H-B.

In response, it is the contention of the 1st Respondent that there is sufficient evidence on Record which the learned trial Judge relied upon in coming to the conclusion that the Appellant was involved in the forceful and unlawful ejection of the 1st Respondent from No. 87 Iyorchia Ayu Road Makurdi by use of self-help. It is submitted that the Appellants agents led by Adonye Roberts trespassed into 1st Respondents offices on 11-05-01. The Appellant admitted this fact but contended that the Appellants invasion of 11-05-01 did not result in damage and that it was not linked to the events of 12-06-01, as the Adonye Roberts-led team left the 1st Respondents offices after they learnt that the 1st Respondent had not been served a quit notice. However, contrary to the contention of the Appellant, the learned trial Judge (at pages 127 lines 22-23 of the Record) found a link between the visit of Adonye Roberts of 11-05-01 and the unlawful ejection of 12-06-01.
The evaluation of evidence fixed DW3 on the scene of the forceful ejection and therefore, his purported alibi failed. The learned trial Judge disbelieved the evidence of DW3 and found him to be an unreliable witness (pages & 127 of the Record). There is no appeal against this finding and therefore it is subsisting. It was based on the critical assessment of the evidence that the learned trial Judge found the evidence of DW3 unreliable. Instead, he accepted the evidence of the 1st Respondents witnesses. It is therefore submitted that with the graphic and painstaking evaluation of evidence by the learned trial Judge, the contention of the Appellant that it was not involved in the ejection of the 1st Respondent, is baseless.
In respect of the contention of the Appellant that Exhibit 1 is inadmissible, it is submitted that there is no ground of appeal challenging the admissibility of Exhibit 1. The Appellant having not filed any ground of appeal or formulated any issue as regards the admissibility or otherwise of Exhibit 1, cannot challenge the admissibility of that document in its Brief of argument. The Court is therefore urged to discountenance arguments of the Appellant on this point. Adhekegba V Minister of Defence (2013) 17 NWLR (Pt. 1382) 126 at 145, paras F-G is relied on.
Secondly, it is contended that Exhibit 1 was admitted in evidence without objection from the Appellant or from any of the other parties. Thus, the Appellant cannot raise the objection here, as it is too late to do so. In addition, the contention that Exhibit 1 was tendered without a proper foundation, even if correct, cannot render it inadmissible in law. The law is that, where inadmissible evidence is

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admitted in evidence, it must be expunged, but where admissible evidence is admitted without meeting all the requirements for its admissibility, such evidence cannot be discountenanced merely on that account. It is submitted that Exhibit 1, being a Video Tape, is admissible in evidence and since no objection was taken against its admissibility, it is too late to take that objection. Obata V Oyebokun (2014) All FWLR (Pt. 754) 110 at 160; & Omega Bank (Nig) Plc V OBC Ltd (2005) 8 NWLR (Pt. 928) 547 at 577-578, paras F-A are relied on.
In respect of the submission that the 1st Respondent needed to prove its case beyond reasonable doubt, again the issue was never raised and canvassed before the trial Court nor ruled upon. Thus, it constitutes a new issue for which the leave of this Court must be sought and obtained before it can be raised. The Appellant, having not obtained the leave of this Court, cannot raise it. The Court is therefore urged to discountenance it. Omega Bank (Nig) Plc V OBC Ltd (2005) 8 NWLR (Pt. 928) 547 at 577-578, paras H-A is relied on.
However, assuming without conceding that the issue was properly raised, the contention of the Appellant is still bound to fail because it is only when an allegation of crime is directly in issue that the standard of proof is beyond reasonable doubt.
Thus, where as in this case, the substantive claim is civil; the litigant is entitled to succeed in his civil claim if he proves the civil allegations, even when the criminal allegations are not proved beyond reasonable doubt. Agagu V Mimiko (2009) 7 NWLR (Pt. 1140) 223 at 401, paras F-G; ASESA V Ekwenem (2009) 13 NWLR (Pt. 1158) 410 at 430-432, paras F-F are relied on. It is submitted that the decisions in these cases apply with equal force to the facts of this Appeal where the Appellants properties were destroyed due to the acts of the Appellant and his allies. The Court is therefore urged to resolve issues three, four and five against the Appellant.
In a reply on point of law, the Appellant submits that the Record of the trial Court is binding upon the Court and the parties. Furthermore, that the submissions of Counsel cannot take place of evidence and admissions made by a party against its interest, which are contained in the Record of the Court. In addition, that the law does not allow a Court the liberty to sponsor evidence, especially where such evidence would be contrary to the admissions made before the Court.
Any conclusion made by a Court in breach of admissions against interest, would culminate into a perverse decision, which is a ground for intervention by this Court. Reliance is placed on Sapo V Sunmonu (2010) 11 NWLR (Pt. 1205) 374 at 395, para C per Ogbuagu, JSC; & Gbadamosi V Tolani (2011) 5 NWLR (Pt. 1240) 352 at 369, para B.

On the submissions pertaining to the stated role of Adonye Robert, it is submitted that a Court cannot pick and choose evidence from the contradictory evidence led by the 1st Respondent. Reliance is placed on Doma V INEC(2012) 13 NWLR 297 at 322-323, paras G-B.
Findings –
Issues three and four dwell on whether the learned trial Court was right to have held that the Appellant instigated/motivated the forceful ejection of the 1st Respondent from the premises in question and therefore that the Appellant was liable, when there was no evidence linking the Appellant with the said ejection on June 12, 2001. In order to ascertain the veracity or otherwise of the submissions of the Appellant under these issues, it is imperative to examine the evidence of the PW1 and PW3, vis–vis the evidence of DW3, the Manager of the Appellant.
PW1s evidence is contained at pages 69-71 of the Record. The relevant portions are set out

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hereunder:
I am a trustee of plaintiff On 12.6.2001 I was in my office at no. 7 new Bridge Road Makurdi when a group of young men, employers of plaintiff rushed to inform me that the premises of the plaintiff was been torn apart. I rushed to the venue to see for myself. I was in company of J.S. Okutepa our lawyer. We went together. What I saw was terrifying and horrifying. A group of vicious looking young men has already ripped the best part of the premises and were still in the process of hearing (sic) the offices apart, destroying the property and nothing could restrain them. Indeed the place was reminiscent of the devastation of a cyclone
I called a video camera man to capture the proceedings or the actions of the young men The camera man came and the activities were duly covered on camera. The camera man did the job. He later gave me the video cassette.

At this stage, the Video Cassette was tendered in evidence, admitted and marked Exhibit 1 without any objection from either the Appellants Counsel or the 2nd and 3rd Respondents Counsel. The video was played in Court, and in continuing his evidence at page 71, the PW1 stated as follows:
The office was scattered. There was nothing left of the office. The 1st defendant was fully present. Their car and personnel were around. The date of recording is 12.6.2001 The destructions were at the instance of Architect Tsegba (2nd defendant) and the Manager of 1st defendant.
Under cross-examination by the Counsel to the Appellant, PW1 testified pointedly as follows (at page 72 of the Record)-
I know Julius Atorough is the manager of 1st defendant. I know him in person. He was at the scene on 12.6.2001. I spoke with him physically. I talked to him. He told me that 1st defendant was well in a position to acquire that property, demolish it at will and set shop elsewhere without feeling a pinch of any loss. That is the substance of what he told me. He told me that he was involved in the destruction and that the boys involved were his agents. I do not know if Julius Atorough was captured in the video clip. It is not true that Julius Atorough was not physically present at the scene on 12.6.2001. 
His ghost may be in Abuja. He was here in person
On the part of the PW3, his testimony concerning the Appellant (as 1st Defendant before the trial Court) in his evidence-in-chief at page 78 of the Record was inter alia thus
I was in the office on 11.5.2001. On that day the workmen of defendants numbering between 12 and 18 in a rowdy manner came and stated that they had orders to throw out our properties and renovate the premises for 1st defendant. I was not in when they come (sic). I came in when they were attempting to move thing (sic) out. I threatened that if they did not leave the premises immediately I would bring in the police and get to the Court. They were led by Adonye Robert a staff of 1st defendant. When he discovered that we had not been given any legal notice he asked his workmen to move away.

Under cross-examination by Counsel to the 1st Defendant (now Appellant) at page 81 of the Record, PW3 reiterated this evidence. He was not present at the premises on 12.6.2001 when the destruction took place and he confirmed that he did not see Julius Atorough in the video clip.
It is interesting that at page 82 of the Record, he said this of Adonye Robert
Apart from 12.5.2001, I saw Adonye Robert a few times thereafter. He had washed his hands from the matter because we are a Christian organization. 
The Appellant had an opportunity to tell its own side of the story through the DW3, Julius Atorough, its Manager at the Makurdi Branch. His version of events is at pages 94-95 of the Record and the

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relevant portions to this issue are as follows
On 12.6.2001, 1st defendant did not send anybody to wrest possession from plaintiff. I went to Abuja for official duties on 10.6.2001. I returned in the evening of 12.6.2001 at about 5.00pm. On my return I noticed that plaintiff had moved their things down stars (sic) we were put in possession of the offices occupied by plaintiff on 13.6.2001 by 2nd defendant
I know PW1, I did not speak with him in the morning of 12.6.2001 until the evening of 12.6.2001 I had never met PW1 in my life. When I returned from Abuja he drove into the office and introduced himself to me as Mr. S.J.I. Akure. He asked me why 1st defendant removed the things of the plaintiff from the premises?

I told him that 1st defendant did not move the things of plaintiff from that place.
Under cross-examination at (page 95 of the Record), the DW3 prevaricated over whether when he returned from Abuja to Makurdi on 12.6.2001, he took possession of the premises on the same date or on 13.6.2001, especially when he was confronted with his affidavit deposed to in sister proceedings before this Court stating that he took possession on 12.6.2001. Again, he was unable to state with certainty whether Adonye Roberts, also a staff of the Appellant was in Makurdi on 11.5.2001 (page 96 of the Record).
Thereafter, at the close of evidence and addresses of Counsel, the learned trial Judge delivered his Judgment. His evaluation of the evidence of the witnesses on the part played by the Appellant through its staff in the whole saga, is very telling. At pages 124-125 of the Record, he says as follows
The 1st defendant had raised the issue that he was neither aware of, nor had any hand in the eviction of the plaintiff on 12th June, 2001. The DW3 is the 1st defendants manager in the Makurdi office The PW1 saw the DW3 on 12th June, 2001 at the premises of no. 87 Iyorchia Ayu road will (sic) thugs including DW1 and DW2 were tearing down the partitions in the plaintiffs offices and ripping them as well as vandalizing the documents office equipment and other valuables there. The DW3 made half-hearted attempts to deny that the 1st defendant took possession of the offices wrested from the plaintiff on 13th June, 2001. He was made to swallow his denials under cross-examination by J.S. Okutepa of counsel for plaintiff. The DW3 confronted with previous affidavit in this case, after profuse blinking and stammering had stated unenthusiasitically that in the previous affidavit he had served (said) that the representative of the landlord gave me (sic) possession of the left wind (sic) of the first floor on 12.6.2001. The affidavit was sworn to at the court of Appeal.
Having evaluated the evidence, the observation of the learned trial Judge on the veracity or otherwise of the witnesses (still at page 125 of the Record is, to say the least scathing, in the following words 
The DW3 is generally not disposed to telling the truth of the matter.

He had earlier emphatically stated that they were put in possession on 13th June, 2001. I watched him. He was flippant.
Between the pw1 and the Dw3, the Pw1 is a more stable and reliable witness. The evidence of the pw1 was not discredited on the issue whether at the material time on 12 June, 2001 the Dw3 as agent of the 1st

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defendant, was present. The pw1 had fixed the Dw3 to the scene of the horrific desecration and destruction of the plaintiffs office apartment by thugs rented by the defendants for that purpose. He was emphatic that he saw the Dw3 and spoke with him
The Dw3 had pleaded alibi. He said at the material time he was in Abuja and he returned at about 5.00pm on 12th June, 2001. No other evidence was called to establish this alibi. It was in the process of cross-examination to test his veracity on this same alibi that he confirmed his prevarication when he was shown the affidavit he had earlier deposed to at the Court of Appeal. The Dw3 is not a reliable witness.
In rounding up his findings on the evidence, the learned trial Judge found as follows inter alia at page 127 of the Record Adonye Roberts did not testify. The Dw3, the only witness called by 1st defendant, did not uttered no word on the indictment of the 1st defendant through Adonye Roberts over the May 11, 2001 invasion of the plaintiffs office Dw3 is generally in his character disposed to lie telling. He is unreliable.
The learned trial Judge therefore found as follows (on the same page)
Having said all these, it is my finding that on 11th May, 2001, the 1st defendant organized the invasion of plaintiffs office with armed thugs not only to disrupt the activities of the plaintiff that day but also to coerce the plaintiff to give up the tenancy. The invasion was vicious and malicious. I also find on the available evidence that May 11, 2001 invasion was a preamble or precursor to the more organized ruthlessness unleashed on the plaintiff on 12th June, 2001. The two acts of trespass whereby hooligans and hoodlums were freely deployed are related. The defendants jointly and severally are liable for trespass to the plaintiff on both occasions.

The above are the observations and findings of the learned trial Judge who had the opportunity to hear the evidence first-hand and to watch the demeanor of the witnesses as they testified. His assessment on the veracity or otherwise of the witnesses before him on the facts cannot be impugned by an appellate Court unless it can be shown that such observations were not based on the evidence, and therefore, are perverse. I have tried to marry the testimonies of the PW1, PW3 and DW3 referred to vis–vis the findings of the learned trial Judge, and I am of the view that they are largely based on the evidence before the Court. I therefore decline the invitation to disturb these findings of fact.
The law is trite that findings of fact and ascription of probative value to evidence are primarily that of the trial Court which had the advantage of seeing and hearing the witnesses and also watching their demeanor. An appellate Court is wary of interfering, and will only interfere in exceptional circumstances where there are special circumstances justifying such or where the findings are perverse.
See AG Kwara State V Ariwajoye I (2000) LPELR-(CA) 33, paras C-D per Onnoghen, JCA (as he then was); Longe V FBN Plc (2006) LPELR-7682(CA) 32-33, paras F-A per Salami, JCA; Lagga V Sarhuna (2008) LPELR-1740(SC) 24-25, paras F-B; & Yusuf V Adegoke (2007) LPELR-3534(SC) 25, paras B-C. 
I hold that the findings of facts and conclusions arrived at are justified by the evidence led. I am therefore loathe to interfere with same.
Another issue raised by the Appellant is that the destruction of the property in issue is a criminal allegation raised in a civil matter which has to be proved beyond reasonable doubt in line with Section

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135 Evidence Act. It is argued that the evidence adduced by the 1st Respondent and relied upon to give a verdict against the Appellant did not satisfy this burden of proof. The fact of the destruction of the property of the 1st Respondent is clearly brought in, in order to prove the allegation of trespass on the premises occupied and in possession of the 1st Respondent. It does not take centre stage but is an off-shoot of the allegations of trespass. The Appellants did not stand trial for mischief or malicious destruction of property, but for trespassing on property in the possession of the 1st Respondents and forcefully wresting the property from them.
The destruction of 1st Respondents property was a by-product of the trespass and so was secondary.
It is trite that it is only when an allegation of a crime is a fact directly in issue in a civil proceeding that the standard of proof required to succeed is that beyond reasonable doubt. Where the allegation of crime is not the basis for the civil matter, the plaintiff is required to prove his case as in a normal civil matter. See Okpoko Community Bank Ltd V Igwe (2012) LPELR-19943(CA) 24-25, paras E-A per Okoro, JCA (as he then was); Koiki V Magnusson (1999) 8 NWLR (Pt. 615) 492; Folami V Cole (1990) 2 NWLR (Pt. 133) 445.

On the contention of the Appellant that Exhibit 1, the Video Tape of the invasion of 12-06-01, is inadmissible, I agree with the 1st Respondent that there is no ground of appeal challenging its admissibility. That being the case, no issue has been distilled on the admissibility or otherwise of Exhibit 1. The arguments thereon are therefore discountenanced. See Adhekegba V Minister of Defence (2013) 17 NWLR (Pt. 1382) 126 at 145, paras F-G.
However, in the event that I am wrong, at page 70 of the Record, Exhibit 1 (the Video Tape) was tendered and played back in Court without objection from the Appellants Counsel, which can be interpreted to mean consent. Where an exhibit is not admissible in law and Counsel stands by and allows same to be admitted without objection, it will be acted upon by the Court and the opposing party cannot complain later of its admission. See Obata V Oyebokun (2014) All FWLR (Pt. 754) 110 at 160; Adeleke V State (2013) 16 NWLR (Pt. 1381) 556; Omega Bank (Nig) Plc V OBC Ltd (2005) 8 NWLR (Pt. 928) 547 at 577-578, paras F-A; & Etim V Ekpe (1983) SCNLR 20.
It is too late in the day for the Appellants to complain against the admissibility of Exhibit 1 and its use by the trial Court. Based on all the above findings, issues three and four are resolved in favour of the 1st Respondent.
Issue five in this cluster of issues, questions whether the sum of N1Million awarded against the 1st Defendant (now Appellant) as general damages was not excessive. The law is settled that general damages are awarded for such losses which flow naturally from the act of the defendant. The law implies it in every breach and in every violation of a legal right.
It is quantified by relying on what would be the opinion and judgment of a reasonable man in the circumstances of the case. See Amaye V Associated Regd. Engineering Contractors Ltd (1990) 6 SCNJ 199; Beecham Group Ltd V Esdee Food Products Nig. Ltd (1985) 3 NWLR (Pt. 11) 112.

The trial Court awarded the sum of N1, 000, 000.00 as general damages for the invasion of the 1st Respondents premises. In so doing, the trial Court took into consideration certain factors, amongst which are –
(i) That it declined to order the reinstatement of the 1st Respondent to the premises, and therefore the 1st Respondent has to procure another suitable office accommodation;
(ii) The Appellant in conjunction with the 2nd and 3rd Respondents resorted to lawlessness, which is frowned upon by the Courts; and
(iii) It is not the law that a landlord has an unbridled right to invade a premises in the lawful occupation of a tenant, more so when his intention was to recover possession.

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Thus, in making the award, the trial Court was also concerned with teaching the Landlord a lesson that taking the law into his hands and resorting to self-help does not pay.
Clearly this is what the Appellant in conjunction with the 2nd and 3rd Respondents did. Their conduct was therefore sufficiently grievous to warrant the award of N1, 000, 000.00 as general damages. To have awarded a minimal amount would have only amounted to a slap on the wrist.
Finally, it is the law that an appellate Court will not interfere with an award of damages unless
(a) The trial Court proceeded on a wrong principle of law, or misapprehension of facts; or
(b) The amount awarded is so high or so low as to make it entirely erroneous estimate of damages to which the claimant is entitled.
See B.B. Apugo & Sons Ltd V OHMB (2016) 13 NWLR (Pt. 1529) 206. It has not been shown that any of the above situations has arisen in this case. I therefore decline the invitation to interfere with the award of N1000, 000.00 as general damages.
Consequently, based on all the aforesaid findings, I resolve issue 5 also in favour of the 1st Respondent.
Issue six – Whether the learned trial Court was right in law to award damages against the Appellant, the 2nd and 3rd Respondents jointly and severally, contrary to the relief sought by the 1st Respondent.
It is the contention of the Appellant that in both the Writ of Summons and the Statement of Claim, the 1st Respondent did not pray that the trial Court should declare that the damages claimed be paid by the Defendants jointly and severally; yet the trial Court ordered that the Defendants should pay the sums of N10, 448, 830.00 and N1, 000,000.00 jointly and severally. The claims against all the Defendants at the trial Court were joint, and not joint and several. It is therefore contended that the trial Court acted contrary to the law by making another case for the 1st Respondent, and relying on same to award damages in favour of the 1st Respondent.
It is further submitted that a Court has no power to grant a relief not specifically claimed by the parties, nor to make a case for such party and then proceed to award damages based on that. Reliance is placed on Sapo V Sunmonu (2010) 11 NWLR (Pt. 1205) 374 at 395 para C; Omoniyi V Alabi (2006) 6 NWLR (Pt. 870) 551 at 573 paras A-C; Orji V Ugochukwu (2009) 14 NWLR (Pt. 1161) 207 at 306-307 paras D-H; Osadim V Tawo (2010) 6 NWLR (Pt. 1189) 155 at 182, paras C-D; & International Messengers Nig. Ltd V Nwachukwu (2004) 13 NWLR (Pt. 891) 543 at 565- 566, paras G-A. 
The decision of the trial Court to award a relief not claimed by the parties has breached the right to fair hearing of the Appellant as provided by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, the Appellant submits. In the event of an unfavourable Judgment, the Appellant and each Defendant would have equally and proportionately shared the incidence of the Judgment.
It is also submitted that the order made by the trial Court cannot be justified as a consequential order. For such to be deemed a consequential order, the award must not be merely incidental, but must flow directly, naturally and consequent upon the award, and thus give effect to the Judgment already given. It should not impose an extra burden against the subject of the order, and it should not grant a fresh, unclaimed and unproven relief. Haruna V Modibbo (2004) 16 NWLR (Pt. 900) 487 at 565, para B is relied on. It is contended that the damages awarded jointly and severally was not a consequential award, but an unsolicited award entirely different from the claim made by

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the 1st Respondent.
It is further canvassed that, due to the unsolicited relief granted by the trial Court, the 1st Respondent proceeded against the Appellant, which led to the Judgment sum of N11, 448, 830.00 being deposited by the Appellant into an interest yielding account maintained by this Court at First Bank of Nigeria Plc (Jos Main Branch). This placed the Appellant (a Bank distressed and in liquidation) in great peril by making the Appellant assume an additional liability of over 66.67% of the Judgment sum and debt which the Appellant would not have been responsible for had the trial Court simply granted the relief as prayed by the 1st Respondent. This has also denied the liquidator of the Appellant of some funds that could be used to first settle depositors of funds in the Appellant in full as stipulated by Section 54 Banks & Other Financial Institutions Act (BOFIA).
The Court is therefore urged to allow this Appeal, set-aside the Judgment, and order that the Judgment sum already paid by the Appellant into an interest yielding account maintained by the Court, together with the accrued interest should be returned to the Nigeria Deposit Insurance Corporation (NDIC), the liquidator and agent of the Appellant.
In the alternative, it is submitted that the only order to be made, in the peculiar circumstances of this Appeal, is that the Judgment sum deposited by the Appellant and in the custody of this Court be refunded to the NDIC, whilst the 1st Respondent should file its claim against the Appellant to the NDIC, Liquidator of the Appellant. The Appellant is under liquidation and the rules of insolvency and priority of payment of debts of a company in liquidation apply to any debts owed by the Appellant. Reference is made to Sections 414, 418, 494, 500, 501 of the Companies & Allied Matters Act (CAMA), & 1990, Section 54 of the Banks & Other Financial Institutions Act (BOFIA). The Court is urged to grant the reliefs sought by the Appellant.
In response, the Respondents submit that the contention of the Appellant is misplaced as the learned trial Judge did not grant any relief not sought for by the 1st Respondent. Instead, the sum awarded was less than the sum of N23,000,000.00 claimed by the Appellant. The fact that the words jointly and severally were not used in the Writ of summons and Statement of claim does not mean that the 1st Respondent was granted a relief it did not claim. Contrary to the contention of the Appellant, the 1st Respondent did not use the word jointly in the Statement of claim as the Appellant. The award was proper as the trial Court found the case against the Appellant, 2nd and 3rd Respondents proved, and that they had acted together and in pursuance of the same cause namely, to eject the 1st Respondent by the use of self-help which led to the damage sustained. Thus, it is submitted that the learned trial Judge rightly awarded damages against them jointly and severally.
It is further submitted that the contention that the claim was joint and that in the case of an unfavourable Judgment, the Appellant and each Defendant would have equally and proportionately shared the incidence of liability, is untenable and is not a good reason for interfering with the Judgment of the trial Court. This is because even where liability is joint, the Judgment Creditor is at liberty to proceed against only one out of the liable parties and it is left for them to consider the question of contributing among themselves to meet the incidence of the claim or Judgment. Reliance is placed on Iyere V BFFM Ltd (2008) 18 NWLR (Pt. 1119) 300 at 336, paras E-G; Ifeanyi Chukwu Ltd V Soleh Bonneh Ltd (2000) FWLR (Pt. 27) 2046, paras A-C.

In the instant case, the 1st Respondent having sued the Defendants at the trial Court jointly is entitled to recover the Judgment sum against any of them. No miscarriage of justice has been done to the Appellant as it is at liberty to proceed against the 2nd and 3rd Respondent to recover whatever it

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feels is the liability/contribution of the 2nd and 3rd Respondents as joint tortfeasors. The Court is therefore urged to resolve this issue against the Appellant.
In a reply on points of law, the Appellant submits that the expression of one thing excludes any other implication.SEC V Kasunmu (2009) 10 NWLR (Pt. 1150) 509 at 537, para D; Owena Bank of Nigeria Plc V Olatunji (2002) 13 NWLR (Pt. 781) 259 at 349 paras G are relied on. Thus, that a Court lacks jurisdiction, in such circumstances, to award a relief in the manner not specifically prayed for. It is submitted that any Court that does the contrary, has breached the right to fair hearing of the litigants before such a Court. Section 36 of the 1999 Constitution (as amended) and Orji V Ugochukwu (2009) 14 NWLR (Pt. 1161) 207 at 307, paras D-H are relied on. The Court is again urged to allow the Appeal and grant the reliefs sought by the Appellant.
Findings 
I have carefully considered the submissions of learned Counsel for the Appellant and the 1st Respondent. I agree with a part of the sumptuous submissions of learned Counsel for the Appellant that the 1st Respondent in its Statement of Claim did not claim against the Appellant and the 2nd & 3rd Respondents jointly and severally. However, it was evident from the available evidence before the trial Court that the Defendants before it acted in concert to trespass into the premises of the 1st Respondent and unlawfully cause damage to the property in question. The 1st Respondents claim was therefore made against all three Defendants, even though the words jointly and severally were not used. In these circumstances, the law allows the trial Court to invoke the doctrine of consequential order in order to make an award that would effectively cover the circumstances exposed by the evidence and which flows naturally therefrom.
A consequential order is an order founded on the claim of the successful party. A consequential order is also an order which flows necessarily, naturally, directly and consequentially from a decision or Judgment delivered by a Court in a cause or matter. It arises logically and inevitably by reason of the fact that the order in question is perforce obviously and patently consequent upon the decision given by the Court, and did not need to be specifically claimed as a distinct or separate head or item of relief.
It is pertinent to also state that the purpose of a consequential order is to give effect to the decision or Judgment of the Court, but not by granting an entirely new, unclaimed and/or improper relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it within the contemplation of the parties that such relief would be the subject of a formal order particularly when the recipient has not established it.
See Fayemi V Awe (2009) LPELR-9210(CA) 30-31, paras E-D; Awoniyi V Regd. Trustees of AMORC (2000) 10 NWLR (Pt. 676) 522 at 550; Liman V Mohammed (1999) 9 NWLR (Pt. 617) 116; Akinbobola V Plisson Fisko Nig. Ltd (1991) 1 NWLR (Pt. 167) 270.
In view of the foregoing principles, there is a basis for the seemingly vexed award of damages to be paid jointly and severally, against which the Appellant has vociferously argued that it ought not to have been granted by the trial Court. In the instant case, the entire claim of special and general damages was vigorously fought by the parties and the trial Court found that the 1st Respondent established its entitlement to the award of special and general damages. The 1st Respondent, having proved that the injuries inflicted on it and its properties by the forceful ejection from the premises were caused by the joint acts of the Appellant in conjunction with the 2nd and 3rd Respondents, the order for the award of damages to be paid jointly and severally was in alignment with the original reliefs claimed. In effect it is an order which flows consequentially, naturally and directly from the Judgment of the trial Court.

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However, this Court has already found that the claim for special damages was not proved, while the claim for general damages was proved.
In respect of the extensive submissions on the reliefs sought in the Appeal for the return of the Judgment sum to the NDIC, etc, I agree with the submission of the 1st Respondent that Appeals are argued on the issues formulated for the determination of the Appeal; while issues for determination are distilled from the grounds of appeal. Thus, any argument outside the issue formulated for determination goes to no issue and is bound to be struck out or discountenanced. See Awojobi V INEC (2012) 8 NWLR (Pt. 1303) 528 at 547, para A.
Thus, paragraphs 4.4.15 to 4.4.35 of the Appellant’s Brief of argument wherein arguments were preferred for the return of the Judgment debt paid by it into Court, has no nexus to issue six or to any of the issues formulated by the Appellant for the determination of this Appeal in this Appeal. The arguments in these paragraphs are therefore discountenanced as being unrelated to the issue under consideration and irrelevant to the issues for determination in this Appeal.
I therefore answer issue six in the affirmative in favour of the 1st Respondent.
In the final analysis, the Appeal succeeds in part and is therefore allowed in part.
Accordingly, it is hereby ORDERED that the sum of N10, 448, 830.00 (Ten Million, Four Hundred and Forty-Eight Thousand, Eight Hundred and Thirty Naira only) awarded as special damages to the 1st Respondent against the Appellant is set aside, as same was not proved by credible evidence acceptable in law, having been based on hearsay evidence.
However, the other decisions of the trial Court, inclusive of the award of the sum of N1, 000, 000.00 (One Million Naira only) jointly and severally to the 1st Respondent as general damages for trespass, is affirmed.
Parties are ordered to bear their costs.
ONYEKACHI AJA OTISI, J.C.A.: I had the benefit of reading in advance, a draft copy of the lead Judgment in this appeal just delivered by my learned Brother, Jummai Hannatu Sankey, JCA, in which this appeal was allowed in part. I agree with and adopt as mine the resolution of the issues arising for determination herein. I will only add few comments for emphasis.
As between a landlord and his tenant, a resort to self-help is always frowned upon. A tenant in arrears of rent or other breaches of his tenancy agreement cannot be forcibly ejected from the landlord’s premises without a Court order. See also the provisions of Section 65 of the Landlord and Tenant Law of Benue State. In Eliochin (Nigeria) Ltd v Mbadiwe (1986) 1 NWLR (PT. 14) 47, 1986 ALL NLR VOL. I PART I. page I at II, (1986) LPELR-1119(SC), Aniagolu JSC at page 60-61 (page 18 of the E-Report) cautioned:
“The laws of all civilized Nations have always frowned at self help if for no other reason than that they engender breaches of peace. It is not doubt annoying, and more often than not, frustrating, for a landlord to watch helplessly his property in the hands of an intransigent tenant who is paying too little for his holding, or keeps the premises untidy, or is irregular in his payment of rents or is otherwise an unsuitable tenant for the property. The temptation is very strong for the landlord to simply walk into the property and retake immediate possession. But that is precisely what the law forbids.”
See also: Adekunle v Adegboye (1992) 2 NWLR (PT. 223) 305 at 322.
It is trite law that trespass is a violation of possession rights. An action in trespass protects possession rather than ownership. A tenant has exclusive possession of the premises demised to him. A tenant in possession can therefore maintain an action in trespass against the landlord. See: Prof. Emeka Chianu on Law of Landlord and Tenant, 2004 Reprint at pages 56, 68. In Eliochin (Nigeria) Ltd v Mbadiwe (1986) 1 NWLR (PT. 14) 47, Obaseki JSC at

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page 66 (page 31 of the E-Report) said:
“Where the landlord brushes aside the necessity to obtain an order of Court for possession and jettisons the rule of law, enters the premises and takes possession, he has invaded and committed an infraction of the rights of the tenant and renders himself liable in trespass.”
See also: Ude v Nwara (1993) 2 SCNJ 47; Akinkugbe v Ewulum Holdings Nigeria Ltd (2008) 34 NSCQR (Pt. 11) 780, (2008) LPELR-346(SC); UBN Plc v Ajabule (2011) LPELR-8239(SC). The forceful ejection of the 1st Respondent was in breach of its possessory rights. Trespass being actionable per se, damages awarded jointly and severally against the Appellant and the 2nd and 3rd Respondents for trespass cannot be faulted.
For these reasons and for the more comprehensive reasons given by my learned Brother, I also allow the appeal in part and abide by the orders made in the lead Judgment.
JOSEPH EYO EKANEM, J.C.A.: I read before now the judgment which has just been delivered by my learned brother, Sankey, JCA. I agree with the reasoning and conclusion therein which I adopt as my own.
I also allow the appeal in part and abide by the consequential orders made in the lead judgment.

Appearances

Ogechi Ogbonna, Esq. For Appellant

AND

D.M. Tsevende, Esq. with him, C.B. Ekechukwu, Esq. For Respondent

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