WESTERN ATLAS INTERNATIONAL (NIG) LTD. v. MR. REVELATION ONU & ANOR.
(2010)LCN/4053(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of November, 2010
CA/PH/313/2006
RATIO
REPLY BRIEF: FUNCTION OF A REPLY BRIEF
The function of a reply brief is to refute the new issues arguments in the respondents’ brief. A reply brief is necessary only when a new issue of law or argument is raised in the respondent’s brief which requires a reply by the appellant. A reply brief is not meant to re-argue or fine tune an appellant’s case, see Mini Lodge Ltd v. Ngei (2010) 41 NSCQR 1 at 44-45 per Adekeye, JSC. PER ISTIFANUS THOMAS, J.C.A.
GENERAL DAMAGES: WHETHER A CLAIM FOR GENERAL DAMAGES NEEDS TO BE PARTICULARLY PLEADED OR EVEN PROVED BEFORE IT CAN BE AWARDED
It is the principle of law that, the award of general damages does not necessarily need to flow from what is pleaded or proved. It is always presumed by law and is always awarded at the discretion of the trial court. General damages can properly be awarded by reference to its nature that has affected the claimant, moreso, the victim or claimant who also claimed special damages had lost. General damages are normally awarded to assuage a claimant’s loss which flows naturally from the defendant’s, act which is tort. A claim for general damages need not to be particularly pleaded or even proved. It arises from inference of law and even at the instance of repetition, it need not be proved by evidence. It is sufficient if the claimant has generally averred in the statement of claim. see the cases of Odulaji v. Haddad (1973) 11 sc 351; Storms v. Bruks, Aktie Bologun v. Hutchinson (1905) A.C. 515 and Kopek v. Ekisola (2010) 41 NSCQR 552 at 582 where Oguntade, JSC stated as follows:- “This court discussed the nature of the distinction between special and general damages thus; we are in no doubt that the distinction between proofs of general damages as opposed to special damage is a matter of law. This distinction is manifest from the following two English decision Stroms v. Hutchinson (supra) and (b) British Transport Comm. v. Gourley (1956) A-C 185. —– General damages —— are such as the law will presume to be the direct natural probable consequence of the act complained of. Special damages on the other hand are such as the law will not infer from the nature of act. They do not follow in the ordinary course. In an action for personal injuries, the damages are always divided into two main parts. First, there is what is referred to as special damage which has to be pleaded and proved. This consists of out of pocket expenses and loss of earning incurred down to the date of trial and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not generally pleaded. This includes compensation for pain and suffering and the like…..” PER ISTIFANUS THOMAS, J.C.A.
JUSTICES
MUSA DATTIJJO MUHAMMAD Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria
Between
WESTERN ATLAS INTERNATIONAL (NIG) LTD. – Appellant(s)
AND
1. MR. REVELATION ONU
2. MR. BELIEVING ADUYE
(For themselves and as representing the Ishakpan Family of Nnanbiri Zarama, Yenagoa LGA Bayelsa State) – Respondent(s)
ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of okechukwu .J Okeke, judge of the Federal High court, Yenagoa, Bayelsa State, delivered on 22nd December, 2005 in suit No.FHC/YNG/SC/448/2007 .
The present respondents as plaintiffs in a representative action, claimed against the present appellant who was then the defendant for the sum of N10,000.000 (Ten Million Naira) as special and general damages. The sum, of N7 million, was for the 28 mud-fish ponds containing 2000 fish per each pond, appeasement of Prawo Lake and Prawo Juju, as well as loss of source of drinking water. The respondent’s alleged damages were due to the numerous shooting of dynamites in their lake, ponds and their shrine from which the gods were annoyed or disturbed and they caused deaths to many members of the respondent’s family.
During the proceedings at the trial court, the respondents called one witness while the appellant did not call any witness to support their statement of defence. After hearing the party’s submissions, the trial court granted the respondents N3, million general damages, but dismissed the special damages.
Dissatisfied with the award of general damages against the defendant/appellant, it filled a notice of appeal on 9th January, 2006 containing four grounds of appeal. The grounds of appeal shorn of their particulars are as follows:-
“Ground one:
The trial court acted under a mistake of law in awarding general damages to the respondents and thereby caused in justice to the appellant injustice.
Ground Two:
The quantum of damages awarded as general damages is manifestly excessive.
Ground Three:
The trial court erred in law in holding that the failure of the appellant to lead evidence in rebuttal of the purported admission of liability in Exhibit “C” dated 22nd Sept, 1997 is fatal to the appellant’s defence.
Ground Four:
Error in Law. The respondents have no common grievance on which to found a representative action.”
During the proceedings in this appellate court, both parties were given extension, of time to file and serve their respective briefs of judgment. The appellant filed its brief containing four issues for determination. They read as follows:
“i. whether the respondents proved any damages which can be resumed to be the direct, natural and probable result of the explosion of dynamites by the appellant?
ii. whether Exhibit c’ amounts to a clear and unequivocal admission of liability for all the alleged damages to the mud fish ponds and fishes, Prawor Lake and prawor Juju shrine and jujus and the alleged ailments and deaths,?
iii. Assuming, without conceding, that the respondents proved any damage, is the quantum of general damages awarded justified?
iv. whether the respondents have a common interest and common grievance in the cause of action?”.
On the part of the respondent’s brief of argument, they raised 3 issues for determination as follows:-
“3:02 – whether the award of general damages is based on or flows from proof of the same?
3:03 – whether the award of general damages is an exercise in judicial discretion and whether the trial court exercised its, discretion judicially and judiciously?
3:04 – whether the issues set out in paragraphs 4(i), (ii) and (iv) as issues for determination in the appellants brief of argument are relevant in the determination of the appear against the award of general damages?,,
After having been served with the respondent’s brief, the appellant filed a reply brief. In my considered opinion, the reply brief is a mere repetition of appellants brief as the respondents did not raise any new issue to warrant a reply brief. The function of a reply brief is to refute the new issues arguments in the respondents’ brief. A reply brief is necessary only when a new issue of law or argument is raised in the respondent’s brief which requires a reply by the appellant. A reply brief is not meant to re-argue or fine tune an appellant’s case, see Mini Lodge Ltd v. Ngei (2010) 41 NSCQR 1 at 44-45 per Adekeye, JSC.
The appellant’s reply brief therefore, is of no moment.
I have carefully considered the party’s respective issues for determination. The appellant’s issues 1 and 2 are completely off the basis of the appeal which is specifically against the award of general damages. Appellant’s issues 1 and 2 are referring to the plaintiff/respondents pleadings and argument on the claim for special damages. It is no more in dispute that, the claim for special damages was dismissed and no any party has appealed against it, and therefore, on what ground could the appellant argue the pleadings and evidence on special damages? I had much earlier, reproduced the appellant’s grounds of appeal shorn of their particulars. But a further perusal of particulars in grounds 1 and 2 will show that the appellant is referring to the special and general damages pleaded argued and the findings of the trial court. Typical wrong approaches in the appellant’s particulars in ground 2 are as follows:-
PARTICULARS OF ERROR
i. The respondents claimed both special and general damages.
ii. The trial court held, correctly in our humble opinion, that the claims under special damages were not specifically pleaded and not proved.
iii. The trial court, however, proceeded to award the entire amount of N3 million claimed under general damages without relating to any particular damages presumed in the direct, natural and probable result of the act complained of.”
I entirely agree with the contention of the respondents in their brief of argument as contained on page 4 there of.
Their assertion is that, “with respect, appellant’s issues I and II relate to the particularization and quantum of evidence required to prove and sustain action for special damages. Such evidence whether oral or documentary (as in Exhibit “C” at page II of the records) pertains to the claim for specific damages, which are to be specifically pleaded and proved.
They are of no consequence and do not pertain to general damages which need not be pleaded or proved. The above submission of the respondents can not be faulted. The appellants issues I and II, are not only clumsy, badly and awkward, they are irrelevant and therefore completely ignored. It is the principle of law that, the award of general damages does not necessarily need to flow from what is pleaded or proved. It is always presumed by law and is always awarded at the discretion of the trial court.
General damages can properly be awarded by reference to its nature that has affected the claimant, moreso, the victim or claimant who also claimed special damages had lost. General damages are normally awarded to assuage a claimant’s loss which flows naturally from the defendant’s, act which is tort. A claimant for general damages need not to be particularly pleaded or even proved. It arises from inference of law and even at the instance of repetition, it need not be proved by evidence. It is sufficient if the claimant has generally averred in the statement of claim, see the cases of Odulaji v. Haddad (1973) 11 sc 351; Storms v. Bruks, Aktie Bologun v. Hutchinson (1905) A.C. 515 and Kopek v. Ekisola (2010) 41 NSCQR 552 at 582 where Oguntade, JSC stated as follows:-
“This court discussed the nature of the distinction between special and general damages thus; we are in no doubt that the distinction between proofs of general damages as opposed to special damage is a matter of law. This distinction is manifest from the following two English decision Stroms v. Hutchinson (supra) and (b) British Transport Comm. v. Gourley (1956) A-C 185. —– General damages —— are such as the law will presume to be the direct natural probable consequence of the act complained of. Special damages on the other hand are such as the law will not infer from the nature of act. They do not follow in the ordinary course. In an action for personal injuries, the damages are always divided into two main parts. First, there is what is referred to as special damage which has to be pleaded and proved. This consists of out of pocket expenses and loss of earning incurred down to the date of trial and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not generally pleaded. This includes compensation for pain and suffering and the like…..”
The appellants issue No.3 is that assuming, without conceding, that the respondents proved any damage, is the quantum of general damages justified? Counsel for the appellant referred to the respondents letter dated 18th April, 1997 which was admitted and marked Exhibit A at the trial court, and it showed that the respondents claimed N2.5 million for the appeasement of their gods by sacrificing and as general damages, and that it was increased to N3 -8 million based on alleged valuation report which was not pleaded. The appellant has conceded that the only reasonable general damages should have been N1.2 million having regard to the respondents claim in Exhibit C.
Appellant then has asked the court to hold that the award of general damages of N3 million was excessive.
In opposing the appellant’s issue 3, the respondents have argued that, the awards of general damages, is essentially, that of the trial court’s exercise of discretion and being discretion, the appellate court must ordinarily be circumspect in appellant’s invitation to interfere with the amount awarded. Respondents counsel has submitted that, it is not for the appellate court to interfere, because the trial judge acted judiciously and judicially and that the trial judge did not violate any principles upon which the damages are awarded. That the trial judge did not act under a mistake of law; nor did act in disregard of principles or law.
That the trial judge did not act under a misapprehension of facts and did not take irrelevant matter into consideration or failed to take account of relevant matters. The respondents referred to and relied on the case of Federal Mortgage Finance Ltd v. Ekpo (2005) ALL FWLR (Pt.248) 1667, 1692 and urged the court to resolve the appellant’s issue No.3 in favour of the respondents and against the appellant.
I have carefully considered the judgment of the trial Judge, especially at page 79 lines 6-14; page 80 lines 18-23 of the record, where his Lordships rightly reasoned as follows: page 79 lines 7 14-
“The wordings of the body of Exhibit “C” are clear and unambiguous. The wordings constitute an admission of liability for the damage caused to the plaintiffs. If the defendant had intended to seriously dispute Exhibit “c”, it would have called the author of Exhibit “C” or any other staff to lead evidence to dispute Exhibit “C.”
The defendant having failed to do so, the court has no difficulty in accepting Exhibit C as an admission of responsibility by the defendant to the damage it caused the plaintiffs when it repeatedly shot and exploded dynamites into the plaintiff’s land and Prawor Lake”.
At page 80 lines 11-18 of the record, his Lordship added, which I accept as the truth as follows:
“… There is evidence that the repeated shooting and explosion of dynamites by the defendant into the plaintiffs land and Prawor Lake, caused the destruction of the plaintiffs 28 mud, fish ponds each containing 2000 fishes.
There is also the unchallenged evidence that the plaintiffs only source of drinking water was polluted that members of the plaintiffs family suffered strange diseases as a resulted of the pollution and desceretion of there Prawor juju which led to the death of many members of the family. The defendant (appellants) in Exhibit “C” accepted responsibility for the damages coursed the plaintiff”.
Still at page 80 lines 18-23 of the record, his Lordship concluded as follows:-
“One has to bear in mind that the defendant advanced no evidence to explain what steps, if any it took in course of its operations to prevent the damages and losses to the plaintiffs.
This attitude show that the defendant has no regards whatsoever for the lives and proportion of the inhabitants of the area where it operates…..”
Based on the above findings and conclusions in the trial judges judgment, I am satisfied that the awarded general damages in the sum of N3 million naira was to assuage the colossal loss which flowed naturally from the appellants act on the respondents Prawor lake, numerous fish ponds, the desecration of their traditional shrines on whom they believed and the pollution of their only source of drinking water as averred and testified upon. In fact, the trial judge could have awarded the general damages even if it was not pleaded or proved, see the case of U.A.C. of Nig Plc v. Prince O.O. Sobodu (2006) ALL FWLR (Pt.329) 877 and E16 Petroleum Nig. Ltd v. Umah (2006) ALL FWQLR (Pt.343) 1761. The award of general damages in the instance appeal, was to compensate for the injury which is presumed by the law to flow from the appellants act by explosion and detonating dynamites in carrying out its seismic operations, moreso, the appellants did not deny its seismic operations.
The appellant’s issue 3 is therefore resolved against the appellants and in favour of the respondents because the award of general damages was the lawful discretion of the trial judge and it was judiciously and judicially done in good faith.
In regard to appellants’ issue number 4 the ground 4 and its issue were never considered at the trial court.
Ground 4 and issue 4 are therefore new issues that require leave of the appellate court to file the ground and argue the issue. The appellant did not ask for leave, let alone granted to raise the new issue. The ground 4 and the issue 4 are therefore struck out, This is necessary because it is settled law and rule of practice that a court will not deal with any issue which is not properly before it. See: Ebba v. Ogodo (1984) 1 SCNLR 372 at 385.
In the final analysis, the appeal has no merit and is dismissed by me. Costs of N50.000.00 in favour of the respondents and against the appellant. I affirm the decision of the trial court in awarding the general damages.
M. DATTIJO MUHAMMAD, J.C.A (OFR): I had a preview of the lead judgment just delivered by my learned brother Thomas JCA, and entirely agree with him that the appeal is meritoriously. For all the reasons advanced in the lead judgment I also allow the appeal. I abide by the consequential orders made by his lordship including those on costs.
T. O. AWOTOYE, J.C.A.: The judgment delivered by my learned brother THOMAS JCA, was made available to me in draft and I am in complete agreement with his reasoning and conclusion
The appeal lacks merit. Accordingly I would also dismiss this appeal and hereby dismiss it with N50,000.00 cost in favour of the Respondent.
Appearances
Mr. J. Flag Amachrere (KSC)For Appellant
AND
Mr. Ejike G. IwedibaFor Respondent
