TAO AND SONS INDUSTRIES LIMITED V. GOVERNOR OF OYO STATE & ANOR
(2010)LCN/4070(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of November, 2010
CA/I/240/2006
RATIO
AWARD OF DAMAGES: WHAT IS THE PRIMARY OBJECT OF AN AWARD OF DAMAGES
The object of an award of damages was enunciated by the Supreme Court in: Eliochin V. Mbadiwe (1986) 1 NWLR (14) 47 at 65 per Obaseki, JSC thus: “The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible object in to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names, to wit: exemplary damages, punitive damages, vindictive damages, even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.” PER KUDIRAT M. O. KEKERE-EKUN, J.C.A.
GENERAL DAMAGES : WHAT GENERAL DAMAGES ENTAILS
General damages have also been held to be such as the law would presume to be the direct, natural or probable consequence of the act complained of. The court could make an award of general damages even if it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man. See: Joseph V. Abubakar (2002) 5 NWLR (759) 185 @ 207 p – E. PER KUDIRAT M. O. KEKERE-EKUN, J.C.A.
BURDEN OF PROOF: WHETHER HE WHO ASSERTS MUST PROVE
The law is that he who asserts must prove. See Sections 136 and 137 of the Evidence Act. PER KUDIRAT M. O. KEKERE-EKUN, J.C.A.
EFFECT OF AN EVIDENCE IN SUPPORT OF AN UNPLEADED FACT
I agree with learned counsel for the respondents that the evidence in this regard went to no issue as no reference was made to this fact in the appellant’s pleading. See: Jolayemi V. Alaoye (2004) 12 NWLR (887) 322; Owoade V. Onitola (1988) 2 NWLR (77) 413. PER KUDIRAT M. O. KEKERE-EKUN, J.C.A.
WHAT IS THE REMEDY FOR THE BREACH OF THE RIGHT TO FAIR HEARING
I agree with learned counsel for the respondents that the remedy for the breach of the right to fair hearing is the nullification of the proceedings wherein the breach occurred. See: Adigun V. A. G. Oyo State (1987) 1 NWLR (53) 678 at 745 A-F. PER KUDIRAT M. O. KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
TAO AND SONS INDUSTRIES LIMITED Appellant(s)
AND
1. GOVERNOR OF OYO STATE
2. ATTORNEY GENERAL OF OYO STATE Respondent(s)
KUDIRAT M. O. KEKERE-EKUN, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the High Court Oyo State, Ibadan Judicial Division, delivered on 28/3/06 wherein the court refused the appellant’s claim for damages.
The facts that gave rise to this appeal are as follows: The appellant is a limited liability company that undertakes engineering construction work. It was awarded a contract in respect of the Ago-Amodu Water Supply Scheme by the Oyo State Water Corporation on behalf of the Oyo State Government. Sometime in 1994, the Oyo State Government set up an administrative panel of enquiry to look into the report of the audit management team on the Water Corporation as a result of allegations of fraudulent practices at the Corporation. The 1st and 2nd defendants in the suit were members of the panel. The 3rd defendant (now 1st respondent) was the Governor of Oyo State while the 4th defendant (now 2nd respondent) was the, Attorney General of the State. The appellant was never invited to appear before the panel nor confronted with any allegation. However at the conclusion of its investigations in 1995 the panel recommended that the appellant be blacklisted from undertaking any jobs for the Oyo State Government. It was the appellant’s case before the trial court that the recommendation was broadcast on State television and published in the Daily Sketch Newspaper owned by the Oyo State Government. It maintained that as a result of the decision it had suffered damages, as it had not been patronised by the Oyo State Government or other customers since then.
The case of the defendants was that the report of the panel was submitted to the 1st respondent as a confidential matter and that no white paper had been issued on it. They also contended that the appellant had not suffered any damage, as it continued to enjoy patronage from its various clients.
The appellant instituted an action before the High Court of Oyo State seeking a declaration that its indictment by the administrative panel without a hearing was wrongful, irregular and against the principles of natural justice. It urged the court to declare the indictment null and void, It also claimed N300 million as general damages.
In its judgment delivered on 28/3/06 the trial court upheld the first leg of the appellant’s claims by declaring the indictment and/or condemnation of the appellant as contained in the panel’s report null and void. The court however refused the claim for damages on the ground that the appellant’s cause of action had not accrued since the Oyo State Government had not indicated acceptance of the report by issuing a white paper.
The appellant was dissatisfied with this decision and filed a notice of appeal on 20/6/06 containing three grounds of appeal. Pursuant to an order of this court granted on 20/5/08 the appellant filed an amended notice of appeal containing two grounds of appeal. In compliance with the rules of this court, the parties filed and exchanged their respective briefs of argument. At the hearing of the appeal on 7/10/10. Bode Elemide Esq. leading J.T. Akintola for the appellant adopted and relied on the appellant’s brief dated 16/7/08 filed on 17/7/08. It was deemed properly filed by an order of this court dated 13/1/09. He urged the court to allow the appeal. Mrs. F.B. Segun Olakojo, Director Civil Litigation and Advisory Services II, Ministry of Justice, Oyo State leading Miss Adewunmi Oyeniran, Legal Officer, for the respondents adopted and relied on the respondents’ brief dated 4/9/09 and filed on 15/9/09. It was deemed properly filed by an order of this court dated 9/12/09. She urged the court to dismiss the appeal and affirm the judgment of the trial court.
The appellant distilled the following two issues for determination:
1. Whether it is only by the issuance of a white paper that respondents can be deemed to have accepted the report of a panel of inquiry or by other means such as its action or utterances or sponsored publications or whether in this suit, acceptance of the report was of any moment.
2. Whether or not in view of the evidence and general circumstances of this case and the finding that there was breach of the fundamental human rights of the appellant, the learned trial Judge was right in not awarding it damages, general or aggravated.
The respondents formulated only one issue for determination:
“Whether the trial Judge was right in refusing the plaintiff’s claim for damages?”
I adopt the sole issue formulated by the respondents, which is succinct and would, in my view, adequately resolve the issues in contention in this appeal.
In arguing this appeal, learned counsel for the appellant challenged the reliance by the learned trial Judge on the case of Abdullahi V. Hashidu (1999) 4 NWLR (600) 638 @ 646 C – D and his holding that the only means by which the Oyo State Government could signify its acceptance of the panel’s report was through the issuance of a white paper. He submitted that the court in Hashidu’s case did not decide that the issuance of a white paper was the only mode of accepting the recommendation of a panel of inquiry. He contended that the court merely observed that in the normal course of governance the issuance of a white paper is the means by which Federal, State or Local governments manifest acceptance of a report or inquiry. He argued further that in any event, the claim, which was an attack on the report, was not dependent on a formal acceptance thereof by a white paper. He submitted that the lower court having found that the indictment was null and void, the issuance or non-issuance of a white paper was of no moment.
He submitted that the case of Cookey V Fombo 22 NSCQR 411; also reported in (2005) 15 NWLR (947) 182 also relied upon by the learned trial Judge is distinguishable from the facts of this case because in that case the plaintiff sought to rely on the recommendation of the Major David Mark Implementation Committee on Abandoned Properties as the basis for a claim against a third party. He noted that the Supreme Court held in that case that without the issuance of a white paper, the recommendation of the committee could not confer a right of ownership of the property on the plaintiff/1st Respondent.
He submitted that in the instant case the appellant’s claim was not against a third party but against the “architects of the panel” for the deprivation of its fundamental rights. He submitted that since the recommendation of the panel gave rise to a cause of action leading to a finding that the report of the panel was null and void, the same recommendation gave the appellant a cause of action to be compensated in damages for the said breach of its constitutional rights. He submitted that the panel deliberated on the report on 20/9/95 and that the panel’s decision was relayed on the respondents, radio/television station, Broadcasting Corporation of Oyo State (BCOS) and also published in the Daily Sketch Newspaper owned by the respondents on 21/9/95. He urged the court to hold that the appellant’s claim was not dependent on any white paper but was based on the breach of its constitutional right to fair hearing.
Learned counsel, submitted that the finding of the learned trial Judge that no cause of action accrued to the appellant in respect of the blacklisting, which it held had not been carried out is not borne out by the record. He referred to the evidence of PW1 at page 126 of the record where he stated:
“The plaintiff has been seriously affected adversely by the indictment, as a result of the broadcast of the indictment on electronic media, precisely BCOS television and publication in the Daily Sketch Newspapers, the image of the plaintiff has been damaged both nationally and internationally. All those contracts that were tendered for by the plaintiff before the indictment that was not yet awarded and those that were tendered for after the indictment were adversely affected.”
He submitted that the appellant was entitled to damages having regard to this evidence and the fact that the 1st, 2nd, 3rd and 4th defendants in their Amended Statement of Defence admitted that “the 1st defendant recommended that the plaintiff should be blacklisted.” He submitted that the appellant testified that as a result of the breach of its fundamental right to fair hearing there was resultant damage. He maintained that the appellant’s evidence was uncontroverted. He submitted that the remedy for the breach is damages. He relied on: Annamunthodo V Oilfields Workers Trade Union (1961) AC 945 @ 954.
Learned counsel submitted further that the publication in the electronic and print media is libelous and therefore actionable per se. He submitted that in the instant case the appellant is entitled to exemplary/aggravated damages. He relied on: Shugaba V. Minister of Internal Affairs (1981) 2 NCLR 459 @ 460; (1982) 3 NCLR 916; Ozulonye V. The State (1983) 4 NCLR 204. He submitted that damages could be awarded even when not expressly asked for. He submitted that the appellant was entitled to aggravated damages for damage to its dignity and pride. He relied on: Rookes V. Bernard (1964) AC 1129; Eliochin (Nig.) Ltd. V Mbadiwe (1985) 1 NWLR (14) 47; A.O. Odiba & Anor. V Akaazue Muemue (1999) 6 SC (Pt. 1) 157 @ 170 – 171. He urged this court to make a finding on the quantum of damages in view of the failure of the lower court to do so.
In reaction to the submissions of learned counsel for the appellant, learned counsel for the respondent submitted that the lower court was correct when it refused the appellant’s claim for damages because, on the authority of Abdullahi V. Hashidu (supra) a cause of action could not be founded upon an ordinary recommendation. He submitted that the 3rd defendant (1st respondent herein) could not act on the recommendation of the panel until it had been accepted. He submitted further that government could not accept a recommendation until it is published in a white paper and gazetted. He observed that in the instant case it was not in dispute that the recommendation had not been published in any white paper. He submitted that since the 1st respondent had not acted on the recommendation the appellant had no right to damages. He referred to the case of Udoh V. Abere & Ors. (2001) SCM 100 at 106 where the Supreme Court defined a cause of action as including all those things necessary to give a right of action and every material fact which is material to be proved to entitle the plaintiff to succeed. And further that a cause of action arises as soon as the combination of the circumstances mentioned above accrued or happened and it is the act on the part of the defendant, which gives the plaintiff his cause of complaint.
Learned counsel contended that the material fact that would have given the appellant a right of action to claim damages is the 1st respondent’s acceptance of the panel’s recommendation. He submitted that, as acceptance of the report was not proved, the appellant was not entitled to damages; He submitted that the only remedy available to the appellant for the panel’s failure to observe the principles of natural justice was the nullification of the proceedings, which recommended the indictment of the appellant.
On the contention of learned counsel for the appellant that the appellant’s claim was not dependent on the issuance of a white paper, learned counsel submitted that the report of the panel could not stand independently of the 1st respondent’s acceptance thereof because the panel did not act on its own but on the directive of the 1st respondent. He submitted that the panel’s report remained a recommendation without the force of law and argued that the reliance of the lower court on the decision in Cookey V. Fombo (supra) was in order.
He noted that the appellant failed to controvert the respondents’ assertion at the trial that the publication of the outcome of the panel’s deliberations in the Daily Sketch Newspaper was not at their instance. As regards learned counsel’s contention that the learned trial Judge failed to make any finding in respect of the broadcast of the panel’s recommendation by BCOS, he submitted that the issue of the alleged broadcast was not pleaded and therefore goes to no issue, He argued that the learned trial Judge rightly discountenanced it. He relied on: Jolayemi V. Alaoye (2004) ALL FWLR (217) 584 @ 586; also found in (2004) 12 NWLR (887) 322; N.N.B. Plc. Vs Denclag appellant for the panel’s failure to observe the principles of natural justice was the nullification of the proceedings, which recommended the indictment of the appellant.
On the contention of learned counsel for the appellant that the appellant’s claim was not dependent on the issuance of a white paper, learned counsel submitted that the report of the panel could not stand independently of the 1st respondent’s acceptance thereof because the panel did not act on its own but on the directive of the 1st respondent. He submitted that the panel’s report remained a recommendation without the force of law and argued that the reliance of the lower court on the decision in Cookey V. Fombo (supra) was in order.
He noted that the appellant failed to controvert the respondents’ assertion at the trial that the publication of the outcome of the panel’s deliberations in the Daily Sketch Newspaper was not at their instance. As regards learned counsel’s contention that the learned trial Judge failed to make any finding, in respect of the broadcast of the panel’s recommendation by BCOS, he submitted that the issue of the alleged broadcast was not pleaded and therefore goes to no issue. He argued that the learned trial Judge rightly discountenanced it. He relied on: Jolayemi V. Alaoye (2004) ALL FWLR (217) 584 @ 586: also found in (2004) 12 NWLR (887) 322; N.N.B. Plc. V. Denclag (2004) ALL FWLR (228) 604 @ 614. He noted that the Broadcasting Corporation of Oyo State, a necessary party, was not a party to the suit. He referred to the respondents’ pleading and submitted that nowhere in the pleading did the respondents admit blacklisting the appellant. He submitted that they only admitted that the appellant was recommended for blacklisting which recommendation had not been accepted. He submitted that the lower court was right to hold that the appellant had not been blacklisted.
With regard to the submission that the publication of the panel’s recommendation in the Daily Sketch Newspaper amounted to libel, which is actionable per se, learned counsel submitted that the appellant’s action at the lower court was not for damages for libel. He submitted further that there was no evidence of libel committed by the panel or by the 1st respondent.
On the remedy available to the appellant for the breach of its fundamental rights, learned counsel submitted that the appellant failed to establish any wrongful act against it by the respondents apart from the breach of its right to fair hearing and was therefore not entitled to damages’ He argued that all the appellant was entitled to was the nullification of the proceedings wherein its fundamental rights were breached. He relied on: Orugbo V. Una (2002) 16 NWLR (792) 175 @ 199 A-D; Iroko V. Uka (2002) NWLR (786) 195 @ 225 G – H; Joseph Vs Abubakar (2002) 5 NWLR (759) 185 @ 206 – 207 H – C. He submitted finally that the respondents tendered Exhibits J1 – JB to challenge the appellant’s claim that it lost the patronage of its clients. He urged the court to resolve the sole issue for determination in the respondents’ favour.
The sole issue in contention in this appeal is whether the appellant is entitled to an award of general damages for the breach of its fundamental rights. At page 7 paragraph 5.06 of his brief, learned counsel for the appellant submitted that the infringement of the appellant’s fundamental rights ought to attract exemplary or aggravated damages. With respect to learned counsel, this submission is different from the case made by the appellant at the trial court. By an order of court granted on 20/1/06 the appellant (as plaintiff at the lower court) was granted leave to amend paragraph 30 (b) of its further amended statement of claim by removing “exemplary and/or aggravated damages” and substitute therewith “general damages.” The appellant is not at liberty to make a different case on appeal from the one made at the trial court. The submissions regarding exemplary or aggravated damages are accordingly discountenanced.
The object of an award of damages was enunciated by the Supreme Court in: Eliochin V. Mbadiwe (1986) 1 NWLR (14) 47 at 65 per Obaseki, JSC thus:
“The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible object in to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names, to wit: exemplary damages, punitive damages, vindictive damages, even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.”
General damages have also been held to be such as the law would presume to be the direct, natural or probable consequence of the act complained of. The court could make an award of general damages even if it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man. See: Joseph V. Abubakar (2002) 5 NWLR (759) 185 @ 207 p – E.
The appellant’s complaint was that the panel of inquiry set up to investigate the activities of the Oyo State Water Corporation breached its fundamental rights by indicting it and recommending that it be blacklisted without affording it a hearing. The learned trial Judge found in its favour in this null and void. The appellant however contends that it is entitled to an award of damages in addition to the nullification of the report. The basis for the claim for damages is to be found in paragraphs 14, 14 (a), 16 and 16 (a) of the Further Amended Statement of Claim dated 14/8/03 filed pursuant to order of court dated 20/1/6 at pages 253 – 256 of the record. The appellant pleaded as follows:
14. “The 3rd defendant without any verification on or about 3rd September 1995 condemned the plaintiff and purported to blacklist the plaintiff from taking works from Oyo State Government.
14. (a) The plaintiff would rely on the Daily Sketch publication of 21st September 1995 where the td defendant’s decision to blacklist the plaintiff was published.
16. The plaintiff has as a result sufferer/damages, as it has not been patronized by the Oyo State Government and other clients.
16. (a) The plaintiff would at the trial rely inter alia on letters from other clients in proof of the averments in paragraph 16 supra.” (Emphasis mine)
The Privy Council in Annamunthodo V. Oilfields Workers Union (1961) AC 954 @ 945, cited by learned counsel for the appellant and which is of persuasive authority held that while it is a prejudice to any man to be denied justice, he would not be entitled to damages if he suffered none. The court held that his remedy would be to ask for the decision against him to be set aside’ See also: Orugbo V. Una (2002) 16 NWLR (792) 175 at 199 B-D. Based on the averments reproduced above, the appellant had a duty to prove the damage suffered as pleaded.
It is the appellant’s contention that he was blacklisted by the 1st respondent pursuant to the recommendation of the panel of inquiry, which it set up and that it consequently lost patronage of the 1st respondent and other clients and thereby suffered damage. The learned trial Judge rejected this contention on the ground that the only means by which the 1st respondent could have indicated its acceptance of the panel’s recommendation was through the issuance of a white paper.
The appellant contends that publication of the panel’s decision in the Daily Sketch Newspaper, owned by the respondents, was proof of its acceptance of the recommendation. He also argued that in the circumstances of this case, the claim for damages was not dependent upon the issuance of a white paper.
The view expressed by this court in Abdullahi V. Hashidu (supra) at page 646 C – D is clear and straightforward. His Lordship Pats-Acholonu, JCA (as he then was) stated:
“In the normal course of governance, the government, be it Federal, State or Local manifests its acceptance of a report or inquiry by way of publication of a white paper which tells the world the reaction of the government to the inquiry.”
The Supreme Court acknowledged the significance of a white paper in the case of Cookey Vs Fombo (supra) when it held that the 1st respondent could not found an action against a third party on the recommendation of a panel of inquiry that had not been published in a white paper. Learned counsel for the appellant tried to distinguish both cases from the circumstances of this case. With due respect to learned counsel, he seems to have laboured to make a distinction without a difference.
It cannot be in doubt that where a government sets up a panel of inquiry, there must be some overt act by the government to signify its acceptance or rejection of the panel’s recommendations. The usual way of doing so is by the issuance of a white paper. The white paper is notice to the whole world of the position taken by the government on the relevant report.
It is not in dispute that the 1st respondent neither issued nor published a white paper in this case. It was for the appellant to satisfy the court by credible evidence that indeed the 1st respondent had officially accepted and acted upon the recommendation.
Could publication of the panel’s decision in the Daily Sketch Newspapers be deemed to be the official acceptance of the report by the 1st respondent? At the trial the respondents testified that the publication was not at their instance. The appellant failed to adduce any evidence to prove otherwise.
The law is that he who asserts must prove. See Sections 136 and 137 of the Evidence Act.
Learned counsel also referred to the broadcast of the panel’s recommendation on the Broadcasting Corporation of Oyo State (BCOS) television station. I agree with learned counsel for the respondents that the evidence in this regard went to no issue as no reference was made to this fact in the appellant’s pleading. See: Jolayemi V. Alaoye (2004) 12 NWLR (887) 322; Owoade V. Onitola (1988) 2 NWLR (77) 413. It is also instructive that while BCOS was originally a party to the suit but later struck out, the Daily Sketch Newspapers was never made a party. These two organisations being separate legal entities ought to have been joined in the suit, as the appellant was relying on their acts to found his claim for damages.
Learned counsel for the appellant has also argued that the publication of the recommendations by the Daily Sketch Newspapers and BCOS were libelous and had injured the appellant’s dignity and pride. The appellant did not institute an action for libel against the Daily Sketch Newspapers and/or BCOS, The contention that the appellant suffered injury to its pride as a result of the acts of parties not joined in the suit therefore goes to no issue.
With regard to the contention that the appellant lost patronage due to being blacklisted by the respondents, the appellant having failed to prove that the respondents acted on the panel’s report and did in fact blacklist the company, the claim for loss of patronage could not stand. Moreover, the respondents were able to tender evidence in rebuttal through Exhibits J and J1 – J8 showing that the appellant had changed its name to TS Engineering Co. Ltd. and had since been receiving patronage from its clients. The Appellant did not rebut this evidence. In my respectful view the assertion that the appellant lost contracts that it would otherwise have secured from the 1st respondent is speculative.
I agree with learned counsel for the respondents that the remedy for the breach of the right to fair hearing is the nullification of the proceedings wherein the breach occurred. See: Adigun V. A. G. Oyo State (1987) 1 NWLR (53) 678 at 745 A-F. The Appellant had been granted his remedy by the trial court. Where the plaintiff seeks compensatory damages in addition to nullification of the proceedings as in the instant case, he has a duty to prove his entitlement thereto. The appellant failed to do so. It has failed to satisfy this court that the decision of the lower court ought to be interfered with. I decline to do so.
In conclusion the appeal lacks merit and is hereby dismissed. The Judgment of the High Court of Oyo State, Ibadan Judicial Division in suit No. I/1423/95 delivered on 28/3/06 is hereby affirmed. The parties shall bear their respective costs in this appeal.
MODUPE FASANMI, J.C.A: I had the advantage of reading in advance the lead judgment of my learned brother K. M. O. Kekere-Ekun J.C.A.
I agree entirely with the reasoning and conclusion reached therein.
The appeal lacks merit and it is accordingly dismissed by me. I also abide with the consequential order made.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I was privileged to peruse in draft the lucid judgment just pronounced by my learned brother, Kekere-Ekun, J.C.A. I entirely agree with the judgment. The primary complaint of the appellant in the court below was the denial of fair hearing by the 1st – 2nd respondents’ administrative panel of inquiry set by the 3rd respondent. The court below agreed with her and quashed the administrative panel’s report’ it followed the Supreme Court case of Adigun V. A. G. Oyo State (1987) 1 NWLR (Pt.53) 678, to nullify the panel’s report simpliciter.
The appellant argued that she was entitled to N300 million general damages for the adjudged breach of her right to fair hearing against the respondents, She placed heavy reliance on the Privy Council case of Annamunthodo V. Oilfields Workers’ Trade Union (1961) 3 All E.R. 621, in her argument. The case was referred to in Adigun (supra), where Karibi – Whyte, J.S.C., (in the lead judgment) adopted part of the reasoning of Lord Denning that the breach of the right to fair hearing was a denial of justice and prejudicial in itself to warrant the nullification of the proceedings of the administrative body.
Annamunthodo (supra) did not request for damages, Lord denning acknowledged so at page 625 of the law report:
“But he gave no evidence that he had suffered any damage from it.”
But Lord Denning went on to express the opinion that:
“He (Annamunthodo) will not, of course, be entitled to damages if he suffered none” (see page 625 of the same law report).”
The above opinion was clearly obiter. It cannot be binding on the court below. Moreover, it is a foreign decision with persuasive power only – see Eliochin (Nigeria) Ltd. and Others V. Victor Ngozi Mbadiwe (1986) 1 NWLR (Pt. 14) 47 at 61:
“The Court of Appeal appeared to have treated Rookes V. Barnard as having a binding force on the Courts of this Country. But that is not so. It does not bind the Courts of this Country; it has only persuasive authority. There can be little doubt that since the abolition of the privy Council from the hierarchy of our Courts and the enactment of our Republican Constitution in 1963, English Courts, decisions are no more binding, but have persuasive, even if, essential value.”
In my considered view, the court below was right to decline adherence to Annamunthodo (supra) for the above given reasons. I see no basis to be persuaded by Annamunthodo (supra) accordingly. The quashing of the panel’s report following Adigun (supra) by the court below satisfied the dictates of justice of the case.
Also, the appellant did not prove the nexus the denial of fair hearing by the administrative panel had with her contractual benefits with the respondents. Her claim for damages was, therefore, speculative. It was not even proven as required by law, as loss of profits from future contracts sound in special damages which must be particularised in the statement of claim and strictly proved, which was not met by her in the case, where she pleaded general damages instead of special damages.
For the more detailed reasons contained in the judgment of my learned brother, Kekere-Ekun, J.C.A., I would, also, dismiss the appeal and abide by the consequential orders in the said judgment.
Appearances
BODE ELEMIDE with T.T. AKINOLAFor Appellant
AND
MRS. F.B. SEGUN OLAKOJO, Director Civil Litigation and Advisory Service II, Ministry of Justice, Oyo State with MISS ADEWUNMI OYENIRAN, Legal OfficerFor Respondent
