UNION BANK OF NIGERIA PLC V. UWA PRINTERS NIGERIA LTD. & ORS.
(2010)LCN/3862(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of June, 2010
CA/C/174/2008
RATIO
AGENCY: DUTY OF AN AGENT
An agent acts for the benefit of the Principal and not to his detriment. PER KUMAI BAYANG AKAAHS, J.C.A.
INJUNCTION: IMPORT OF INTERIM INJUNCTION
in KOTOYE v. C.B.N. (1989) 1 N.S.C.C 238. Nnaemeka-Agu, JSC took time to explain the import of interim injunction in contradistinction to an interlocutory injunction when he said at page 250:-
“An applicant for a non-permanent injunction may bring the – application ex parte, that is without notice to the other side or with notice to the other side as appropriate. By their very nature injunctions granted on ex parte applications can only be properly interim in nature. They are made, without notice to the other side, to keep matters in status quo to a named date, usually not more than a few days, or until the respondent has been put on notice. The rationale of an order made on such an application is that delay to be caused by proceeding in the ordinary way by putting the other side on notice would or might cause such an irretrievable or serious mischief. Such injunctions are for cases of real urgency.” PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JAAFARU MIKAILU Justice of The Court of Appeal of Nigeria
NWALI S. NGWUTA Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIGERIA PLC. – Appellant(s)
AND
1. UWA PRINTERS NIGERIA LTD
2. SUNDAY JOSEPH UDO
3. EMMANUEL UMOREN ESQ. – Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State, Eket Judicial Division presided over by Udoh J. which found for the Plaintiffs in an action arising from abuse of judicial process and damages resulting from negligence, unlawful seizure and disposal of property during the pendency of an action between the parties and awarded a total of N515,500,000.00 as special and general damages and a further sum of N40,000.00 as costs.
The facts leading to this appeal may be stated as follows:
In 1992, the 1st Respondent applied and obtained a loan facility of N2.9 million from Union Bank of Nigeria, Eket Branch. Out of this amount, the Bank released N1,649,300.00 by direct disbursements to the Nigerian Newsprint Manufacturing Company (NNMC), Oku Iboku, for the procurement of newsprint materials. The loan transaction was reduced into an All Asset Legal Mortgage Debenture dated 28th July, 1992 which was tendered as Exh. 11. Following failure by the 1st Respondent to service the loan facility as a result of its inability to produce school stationeries for lack of raw materials, the Bank in exercise of its rights under the Mortgage Debenture appointed a receiver to sell the mortgaged property and realise the debt. The receiver applied by motion ex-parte and the Commissioner of Police Akwa Ibom State was ordered to provide Police protection which enabled the receiver to move the mortgaged assets of the Plaintiff from site at Km 3, Oron Rd., Eket to Union Bank Regional Office in Port Harcourt, Rivers State. Having successfully challenged the Exparte on appeal in appeal No.CA/C/238/98 in which judgment was delivered on 6/7/2000, the Plaintiff took out a fresh action in the Akwa Ibom State High Court, Uyo Judicial Division in Suit No. HEK/139/2002 and endorsed on the Writ is a claim that –
“The plaintiffs’ claim against the Defendants jointly and severally is a Declaration that the purported removal of Plaintiffs property for safekeeping through a Court Order and thereafter selling same is null and void.
2. An order directing the defendants to return all the plaintiffs properties removed, vide Court Order, back to the plaintiffs or pay the sum of N615,500,000.00 (Six Hundred and Fifteen Million, Five Hundred Thousand Naira Only) as Special and General damages.”
The amount was broken down as follows:
Special Damages – N215,500,000.00
General Damages – N400,000,000.00
= = = = = = = = =
Total = N615,000,000.00
This led to the judgment in favour of the 1st and 2nd plaintiffs and the award of N515,000,000.00 which led to this appeal.
The Amended Notice of Appeal contained ten grounds of appeal from which the following six issues were distilled for consideration:
1. Whether the learned trial Judge had jurisdiction to entertain the matter
2. Whether this suit was not an abuse of the judicial process.
3. Whether having regard to the defence the learned trial Judge was right in holding the defendant liable to the claims of the plaintiffs as conceived and canvassed.
4. Whether the learned trial judge considered the case of the defendant before coming into his decision and if not whether same did not occasion a miscarriage of justice.
5. Whether the learned trial judge was right in the special and general damages he awarded having regards to the evidence adduced before him.
6. Whether the 2nd plaintiff (2nd Respondent) was entitled to judgment in this case.
While adopting the issues as raised in the Appellants brief the 1st and 2nd Respondents objected to the appeal and filed a Notice of Preliminary Objection that the appeal is incompetent and should be dismissed on the following grounds:
1. The grounds of appeal are not arguable. The grounds of appeal (as amended) in the notice of appeal disclose no arguable grounds of appeal.
2. The appellants are stopped at law from setting up their own wrong as grounds of appeal.
The learned trial Judge erred in law when he held that the Plaintiffs were not challenging the action of the 2nd Defendants per se as Receiver which error influenced his wrongful assumption of jurisdiction over the matter.
3. The appellants are stopped by issue estoppel from bringing this appeal on the grounds and issues canvassed.
4. The grounds of appeal are vague, nebulous and general in terms and are argumentative.
The grounds in the Amended Notice of Appeal without their particulars state as follows:
1. The judgment of the lower court is against the weight of evidence.
2. The learned trial judge erred in law when he held that this suit was not an abuse of the court process and thereby wrongfully failed to dismiss same.
3. The learned trial judge erred in law when he held the 1st defendant liable and awarded the damages simply because the ex parte order secure by the 2nd defendant in Suit No. HU/MISC.142/96 had been set aside by the Court of Appeal, and on the undertaking as to damages he gave in the matter without considering the defence of the defendants which error thereby occasioned a miscarriage of justice.
4. The learned trial judge erred in law when he held that the plaintiffs were not challenging the action of the 2nd Defendants per se as Receiver which error influenced his wrongful assumption of jurisdiction over the matter.
5. The learned trial Judge erred in law when he held that the Defendants were liable to the Plaintiffs both contractually and in negligence for selling the items since the Court of Appeal had set aside the ex-parte order in Suit No. HU/MISC.142/96 and proceeded to award the damages in the case.
6. The learned trial Judge erred in law when in upholding the claims of the Plaintiffs and awarding the damages, he failed to give any consideration to the defence put up and evidence of the Defendants which failure breached the rule of fair hearing and occasioned a miscarriage of justice.
7. The learned trial Judge erred in law in awarding the special and general damages of N515,500,000.00 (Five Hundred and fifteen million, five hundred thousand Naira) and cost of N40.000.00 (Forty Thousand Naira) to the Plaintiffs.
8 The learned trial Judge erred in law when he relied on the case of TRADE BANK PLC v BENILUX (NIG) LTD. in holding that the matter involved a customer banker relationship and wrongfully concluded on that basis that he had jurisdiction.
9. The learned trial Judge erred in law when he held the 1st defendant liable that 2nd defendant was agent of 1st defendant.
10. The learned trial Judge erred in law when he gave judgment in favour of 2nd Plaintiff.
Looking at the grounds of appeal reproduced above I do not agree with the submissions made by Chief Assam, SAN, that the appeal is not predicated on the judgment appealed against or that the appellants need leave to appeal on issues of mixed law and fact, the appeal emanating from a decision of the Akwa Ibom State High Court sitting at first instance. See: Section 241 (1)(a) Constitution of the Federal Republic of Nigeria 1999. See also S.P.D.C (NIG) LTD v. KALAD LTD. (2003) ALL FWLR (Pt. 263) 675; INYANG v. EBONG (2002) ALL FWLR (Pt.125) 703. I overrule the preliminary objection and it is accordingly struck out. All the grounds of appeal in the amended Notice of Appeal are competent.
Although the appellant framed six issues for determination which were distilled from ten grounds of appeal contained in the amended notice, two main issues arise for consideration in the appeal namely:
1. Whether the learned trial Judge had jurisdiction to entertain the matter. The issue of the suit being an abuse of judicial process and the liability of the 1st defendant would come under jurisdiction.
2. The award of special and general damages.
The 6th issue is of no consequence since its decision one way or the other will not alter the final outcome of the appeal.
Mr. Inyang, learned counsel for the appellants submitted on Issue 1, that it was the wrongful reliance by the learned trial Judge on the case of TRADE BANK PLC v. BENILUX (NIG) LTD. (2003) FWLR (Pt.162) 1871 SC that made him assume jurisdiction in the matter. He argued that since the complaint was against the removal of the assets of the 1st Respondent by a Receiver appointed by the Appellant, pursuant to the powers granted by the Mortgage Debenture, the appropriate forum for redress is the Federal High Court and not the State High Court. He argued that when the Receiver took possession of the mortgaged assets, the Respondents as Plaintiffs proceeded to amend their pleadings in the Federal High Court in Suit No. FHC.CA./CS/8/97 to plead the complaint of removal and sale of the items and then claimed special and general damages and submitted that the Federal High Court was the appropriate forum to deliberate and decide on the complaint. He further submitted that the State High Court had no jurisdiction to hear the matter. It is the contention of learned counsel that initiating another suit in the State High Court while Suit No. FHC/CA/CS/8/97 was pending before the Federal High Court was an abuse of the judicial process since it is not legally permissible for a party to initiate and prosecute two suits in two different courts claiming the same reliefs on the same subject matter. Reliance was placed on the following cases: NIMB Ltd v. UBN Ltd. (2004) All FWLR (Pt.209) 1126, HARRIMAN v. HARRIMAN (1989) 5 NWLR (Pt.119) 6; OGOEJEOFO v. OGOEJEOFO (2006) ALL FWLR (Pt.301) 1792. Learned counsel proceeded to urge this court to find and hold that the mortgage items, the subject of Exhibit 11 were properties which were lawfully removed by the Receiver in discharge of his duty upon appointment for the benefit of the appointor. He submitted that where a party performs a legal act, such cannot be a case for award of damage and the 1st respondent being a party to the mortgage is bound by the terms of the mortgage. He said that by the provision of Exhibit 11 the Receiver is an agent of the 1st Respondent and the action by the Receiver in taking the items out of the possession of the 1st Respondent did not breach any contractual obligation nor incurred any tortuous liability. It was therefore wrong for the learned trial judge to have found the 3rd respondent to be the agent of the Appellant and the latter liable. He urged the court to resolve the issues against the respondents.
Chief Assam, learned Senior Counsel for the Respondents traced the history of the proceedings culminating in appeal No.CA/C/238/98 and the institution of Suit No. HEK/134/2002 which led to this appeal and argued that if the Appellants needed to remove the property to secure it, they could have moved it to the premises of the court and the motion to remove the property could well and better have been made at the Federal High Court with the Respondents put on notice to present their case. He submitted that the Respondents were entitled under the doctrine of lis pendens and the provisions of Section 33 of the Constitution to bring this action challenging the order made in their absence that enabled the appellants to remove the property. Having by their own act prevented the Federal High Court from determining the issues joined as to the validity of the appointment of a Receiver and whether or not there had been a foreclosure, the appellants cannot assume the position of the court by acting on the validity of the receiver and the Mortgage Deed. He said it is a cardinal principle of our jurisprudence that the courts will not allow any man to take benefit from his own wrongful action and submitted that it is the appellants who are guilty of abuse of judicial process.
The Plaintiff now 1st Respondent commenced Suit No.FHC/CA/M16/96 on 25/4/96 by Originating Summons against the Union Bank of Nigeria and one Emmanuel Umoren who was appointed a Receiver and prayed for the following reliefs:
1. A declaration that the security has not become enforceable at the time the first defendant purported to exercise its power of appointing a Receiver under the Mortgage Deed of 29 April, 1992 as the conditions precedent to the exercise of such powers had not been complied with.
2. An order setting aside the appointment of the 2nd defendant as Receiver in respect of Plaintiffs security.
3. A perpetual injunction restraining the defendants by themselves their servants and or agents or otherwise whosoever from entering on the mortgaged premises and or property or selling or attempting to sell either by private treaty or public auction or advertising for sale of the plaintiff’s assets/property mentioned in the schedule to the mortgage particularly the factory and improvements therein situate at Kilometer 3 Ikot Ibiok, Eket Local Government Area in Akwa Ibom State or using the Nigeria Police to prevent the plaintiff from entering the premises/factory situate at Kilometer 3 Eket/Oron Road, Ikot Ibiok, Eket Local Government Area (See page 266 of the Record marked Exhibit “A”).
While the matter was pending before the Federal High Court Calabar, Mr. Emmanuel Umoren, the Receiver appointed by Union Bank Plc filed an originating ex parte application in the Akwa Ibom State High Court, Uyo dated 7/9/96 in Suit No. HU/MISC.142/96 praying for
“(a) An Order directing the Commissioner of Police, Akwa Ibom State to provide Police protection to enable the Applicant to move the Mortgaged Assets of the Respondent’s Company from site at KM 3 Oron Road Eket to the Union Bank Regional Office at Port Harcourt, Rivers State.” (See page 97 of the Record marked Exh. “A”).
On 12/9/96 the ex parte application was moved and in granting the prayer the learned trial Judge Bassey J. made the following order.
“The Commissioner of Police, Akwa Ibom State is hereby ordered to provide Police protection to enable the applicant herein- Emmanuel Umoren to move the mortgaged assets of the respondents from site at Kilometer 3, Oron Road, Eket to Union Bank Regional Office at Port Harcourt Rivers State (see page 156 of Exh. “A”).
It would appear that when the Respondents became aware that the ex parte order had been granted for the removal of the plant/machinery and the action of the Police in preventing the Respondents from entering the premises of the factory, they filed another action before the Federal High Court in Suit No.FHC/CA/CS/8/97. An application was later made by the appellants for the consolidation of Suit No. FHC/CA/M16/96 and FHC/CA/CS/8/97. In addition the Respondents filed an application on 27/9/96 praying for the following:
“1. An order discharging the order of this Honourable Court made upon a Motion ex parte on the 12th day of September, 1996 in Suit No.HU/MISC.142/96 ordering the Commissioner of Police, Akwa Ibom State to provide Police protection to enable the applicant in that motion who is named herein as Applicant/Respondent-Emmanuel Umoren to move the Mortgaged Assets of the Respondents from site at Kilometer 3, Oron Road, Eket to Union Bank Regional Office at Port Harcourt, Rivers State.
2. An order striking out Suit No. HU/MISC.142/96 for being incompetent and an abuse of the Court/Judicial process” (see pages 158 – 159 of the Record of Appeal).”
The application was refused on 22/2/98 culminating in appeal No.CA/C/238/98 wherein this court (coram Edozie, JCA (as he then was) together with Opene and Ekpe JJCA) allowed the appeal and set aside the ex parte order made by Bassey J. in their judgment delivered on 6/7/2000. This paved the way for the plaintiffs now respondents to commence a fresh action in Suit No.HEK/139/2002 wherein they sought for return of all the properties of the Plaintiff removed vide an Order of Uyo High Court dated 12th September, 1996, install, test-run and commission the machines. They asked for general damages of N400,000,000.00 (Four Hundred Million Naira) as undertaken by the defendants, alternatively the sum of N215,500,000.00 (Two hundred and fifteen million, five hundred thousand naira) being the current value of the properties of the Plaintiff removed by the defendants, and N4400,000,000.00 as General Damages.
In his judgment delivered on 10/6/08, the learned trial Judge, Udoh J. after setting out paragraph 20 of the Statement of Claim found that the Plaintiffs were not challenging the appointment or action of the 2nd Defendant as RECEIVER PER SE and upheld the submission of learned counsel to the Plaintiffs that the submission of learned counsel for the Defendants in that regard is misconceived.
I agree with the finding of the learned trial Judge that the actions by the appellants were not those of a receiver per se. At the time the ex parte order was granted, the validity of the receiver’s appointment was sub judice. It is the Appellant’s case that immediately the Receiver was appointed, the 1st Respondent lost any right over the mortgaged assets and so did not lose or suffer any damage as a result of either the ex parte order or the removal of the items. If they needed to remove the property in order to secure it, the motion could well have been made at the Federal High Court and on notice so that the 1st Respondent would answer to its activities which threatened the safety of the assets under mortgage. Learned Senior Counsel for the respondents argued and I agree with him that if the Appellants had been so confident of the validity of the appointment of the receiver, the Mortgage Deed why did he not wait for the Federal High Court to determine the action in Suit FHC/CA/M16/96. Having by their own act prevented the Federal High Court from determining the issues joined as to the validity of the appointment and as to whether or not the Mortgage was foreclosed, the appellants cannot assume the position of the court by ruling and acting on their own that the appointment was valid. The Respondents in this case were very alive to their rights and pursued them diligently at the Federal High Court by challenging the appointment of the Receiver and his authority to act on the Mortgage Deed. Contrary to what the doctrine of lis pendens requires of parties, the Appellant went behind to destroy the res and by securing the ex parte order from the Akwa Ibom State High Court, it is the appellants that are guilty of abuse of judicial process.
The appointment of Emmanuel Umoren as Receiver which was made by the 1st Appellant was not made for the benefit of the 1st Respondent but it was to secure the interest of the 1st Appellant and both of them were acting in cahoots. I therefore cannot fathom how the action of the Receiver in obtaining the ex parte order to uproot the Plant and machinery from the factory could be said to be to the benefit of the 1st Respondent and for that matter make the Receiver the agent of the 1st Respondent. An agent acts for the benefit of the Principal and not to his detriment.
The learned trial Judge lent himself as a willing tool to grant the ex parte order on unverified and highly contentious claims the veracity of which could be settled only by giving the other side a hearing. The appellant also acted mala fide by hiding under the obnoxious order to commit havoc to uproot the plant and machinery in the Respondent’s factory and thereafter selling them off. The same court which had been hand in gloves with the Receiver in quickly granting the order did not see the necessity of timeously hearing the application to set aside the order. The motion was not finally disposed of until 1 year 4 months had lapsed from the date the order was granted. What makes it worse was that there was no pending suit upon which the ex parts application was made. This is contrary to the principles that were enunciated in KOTOYE v. C.B.N. (1989) 1 N.S.C.C 238. Nnaemeka-Agu, JSC took time to explain the import of interim injunction in contradistinction to an interlocutory injunction when he said at page 250:-
“An applicant for a non-permanent injunction may bring the – application ex parte, that is without notice to the other side or with notice to the other side as appropriate. By their very nature injunctions granted on ex parte applications can only be properly interim in nature. They are made, without notice to the other side, to keep matters in status quo to a named date, usually not more than a few days, or until the respondent has been put on notice. The rationale of an order made on such an application is that delay to be caused by proceeding in the ordinary way by putting the other side on notice would or might cause such an irretrievable or serious mischief. Such injunctions are for cases of real urgency.”
The order made by the learned trial Judge in HU/MISC.142/96 was not even an interim order but was a final or absolute order. This rendered the respondents’ right to fair hearing completely useless. If indeed the 1st appellant “received discreet information about the subterranean activities of 1st Respondent, which threatened and endangered the safety of the assets under mortgage,” resorting to securing the order of 12/9/96 amounted to self help measures notwithstanding that it was a court of law that granted the order. The Supreme Court condemned such an action in OJUKWU v. GOVERNOR OF LAGOS STATE (1985) 3 NWLR (Pt. 26) 39. Irksome as Suit FHC/CA/M16/96 would appear to the 1st Appellant, it had no option but to patiently wait for the disposal of that case before proceeding to dispose of the property covered by the Mortgage Debenture. To secure the property of the Mortgage Debenture it could have brought an application barring the 1st Respondent or its employees from entering the factory until the determination of Suit No.FHC/CA/M16/96. I think the real intention of the 1st Respondent in Securing the order and proceeding to sell off the property was to preempt the outcome of Suit No. FHC/CA/M 16/96 by destroying the res. Since respite came the way of the Respondents after the Court of Appeal in CA/C/238/98 set aside the ex parte order which the Appellants obtained in the non existent Suit HU/MISC142/96, they are right to invoke the jurisdiction of the Akwa Ibom State High Court to ventilate their claim in Suit No.HEK/139/2002. Having scuttled the consolidated Suit FHC/CA/CS/8/97 by selling off the plant and machinery which were removed from the mortgaged premises while the challenge on the appointment of the receiver and the validity of the Mortgage Debenture were subsisting, it does not lie in the mouth of the appellants to say that it is the Federal High Court and not the Akwa Ibom State High Court that could hear the suit on the return of the machinery removed or payment of damages in lieu. It was convenient for the appellants to truncate Suit No. FHC/CA/M 16/96 by initiating Suit HU/MISC.142/96 which granted the order but when it came to facing the consequences of their illegal action in uprooting the plant and machinery from the factory and disposing of the items, they suddenly realized that the State High Court did not have jurisdiction to entertain the claim based on a tortuous liability. I am therefore in total agreement with learned Senior Counsel for the Respondents that the appellants cannot profit by their own wrongdoing. See: FBN PLC v MAY MED.CLINICS (1996) 9 NWLR (Pt.471)195; JACOB DIKE v AGU OKORIE (1990) 5 NWLR (Pt.151) 148; AKWIWU v. THE PRINCIPAL LOTTERY OFFICER, MIDWESTERN STATE & ANOR (1972) 1 ALL NLR (Pt.1) 229; OLUWOLE v. SALAMI (1985) 2 NWLR (Pt.7) 282; OJEGBE & ORS. v. OKWARANYA & ORS. (1962) 2 ALL NLR 598. I resolve issues 1, 2, 3 and 4 against the Appellants.
Learned counsel for the Appellants argued that the award of N515,500,000.00 as special and general damages was clearly erroneous having regards to the evidence before the court. He said that at the time the Appellant appointed the 3rd Respondent as Receiver the business of the 1st Respondent had collapsed and no business was being carried out. He submitted that on the evidence before the court, the award of N300 million naira as damages was clearly untenable and cannot be justified having regards to the evidence and case made out by the appellants. As there was no iota of evidence to support the existence of any business activity in the factory, the removal of the items in the first place did not occasion any loss of business. He argued that the trial Judge did not demonstrate the basis of the award of general damages. In the absence of any supporting evidence, the award of N300 million general damages was arbitrary and was therefore wrong exercise of judicial discretion. He further argued that having awarded all the head of special damages the award of N300 million in the circumstances amounted to double compensation. He therefore urged this court to set aside the award of general damages. Learned counsel also attacked the award of special damages as erroneous since the evidence led in proof of that item of claim was not credible and Exh. ‘3’ relied upon by the trial court was evidentially valueless.
Learned Senior Counsel for the Respondent while agreeing with the legal proposition that a court has a duty to act only on the strength and materials and credible evidence before it, submitted that the court below acted on credible evidence before it. The evidence adduced by the Respondents was not challenged or controverted at all on the special and general damages suffered by the respondents. He said that the court reduced the claim for general damages from N400,000,000.00 to N300,000,000.00. He said there was evidence that the Respondent had secured another financier to give it money to resume production just before the appellants struck. The appellants showed extreme bad faith and malice against the respondents when they resorted to an inexcusable perversion of the judicial process when faced with an unanswerable judicial challenge and this was a reckless infraction that calls for strong judicial sanction by way of exemplary and punitive damages.
In considering the issue of special and general damages, the learned trial judge found the defendants liable to the plaintiffs both contractually and in negligence by virtue of their commitment to pay damages if their action in Suit No. HU/MISC.142/96 turns out to be a nullity. He relied on Exh. ‘3’ to find that the claim for special damages had been proved since there was no challenge of the document nor was it contradicted.
The learned trial Judge awarded N215,000,000.00 as special damages based on Exh. ‘3’ because the document was not challenged or contradicted. Exhibits 3, 4 and 5 were tendered without any objection. The appellants did not tender any contrary evidence. Learned counsel has sought to impugn the award of special damages, arguing that the evidence is not credible. There was no challenge to Exhs. 3, 4 and 5. The case of CHITEX INDUSTRIES LTD. v OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) ALL FWLR (Pt. 276) 619 SC cited by learned counsel on the proposition that where a document is challenged and impugned as unauthentic, the maker of the document should be called to support the document otherwise no weight should be attached to it is inapplicable in this case. It is only on appeal that the document is being impugned in the address of counsel. The address of counsel cannot take the place of evidence. The award of special damages was properly made out and I hereby affirm it.
The same however cannot be said for the award of general damages. The learned trial Judge did not give reasons why he awarded N300,000,000.00 as general damages. The award of N300,000,000.00 as general damages was whimsically made more so since the Plaintiffs were fully compensated by the award of special damages. The Plaintiffs had in a letter dated 14th December, 1993 applied for an additional loan of N36 million to import raw materials in order to improve their production (see p.270 of Record marked Exh. ‘A’). This is a clear indication that the factory was not producing stationery due to lack of newsprint at the time the appellants demanded for the re-payment of the loan which at that time stood at N4.750 million. I am in full agreement with the submission made by learned counsel that the award of N300,000,000.00 general damages in addition to the N215,000,000.00 special damages amounted to double compensation. See: ADODO v ISMAILA (1998) 11 MWLR (Pt.573) 214. The action of the Receiver in uprooting the plant and machinery and selling them off during the pendency of Suit No.FHC/CA/CS/8/97 which was consolidated with Suit No. FHC/CA/M16/96 is no doubt reprehensible conduct that must be condemned in the strongest terms. The award of damages principally is for the purpose of compensation summed up in the maxim restitute in integrum and they are not meant to be exemplary or punitive unless they are demanded and the conditions for the award are satisfied.
The fact that the Receiver undertook to pay damages if his action failed is no justification for the award or that the demand for N400,000,000.00 was reduced to N300,000,000.00. I consider the award of N300,000,000.00 as general damages to be outrageous and an appellate court will be entitled to interfere with the said award by the trial court. See: OGBEIDE v OSIFO (2007) 3 NWLR (Pt. 1022) 423. The award for general damages is hereby set aside.
The appeal partially succeeds on the issue of general damages and it is allowed on that score. The appeal on jurisdiction and abuse of judicial process is dismissed. I make a consequential order that the Respondents are entitled to payment of N215,000,000,00 less N4.750 million which they had admitted owing to the Appellants in 1995. Notwithstanding that the appeal is allowed partly I will not award costs against the Respondents. Each party to bear its own costs.
JAAFARU MIKA’ILU. J.C.A.: I have read in draft the lead judgment of my learned brother Kumai Bayang Akaahs, JCA. I agree with the reasons given in it and the conclusion reached.
I therefore agree that the appeal partially succeeds on the issue of general damages and it is allowed in that regard. The appeal on jurisdiction and abuse of judicial process is dismissed. I make the same consequential order as in the lead judgment. Parties to bear their costs.
NWALI SYLVESTER NGWUTA, J.C.A.: I read in draft the lead judgment just delivered by my learned brother Akaahs, JCA and I agree that the appeal partially succeeds. I also allow the appeal on general damages and dismiss the appeal on jurisdiction and abuse of judicial process.
I adopt the consequential orders.
Appearances
Patrick OfemFor Appellant
AND
Chief Assam E. Assam, SAN, with Jackson InyangFor Respondent
