ESSIEN IBOK v. SPRING BANK PLC
(2012)LCN/5260(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of March, 2012
CA/C/149/2007
RATIO
DAMAGES: THE POSITION OF THE LAW ON THE MEANING AND ESSENCE OF GENERAL DAMAGES
The law is settled that general damages need not be pleaded, quantified or specifically denied yet they would, depending on the circumstances of each case, be awarded to a successful party. See Osuji vs Isiocha (19S9) 6 SCNJ 227. But they are to be averred in the pleadings. See Incar Motors vs Benson (1971) 3 SC 117; Hanseatic Interprises Ltd. vs Usang (2003) FWLR (pt.149) 1563 at 1590 paragraph “G-H”. The often cited case is Prehn vs Royal Bank of Liverpool (1370) L.R5 Ex.92 99-100 where Martin B. stated that: ”General damages… are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man…”
The learned authors of MCGregor On Damages, 14th edition page 14 paragraph 17 further explained that: “…This type of general damage is usually concerned with non-pecuniary losses, which are difficult to estimate, the principal examples being the injury to reputation in defamation and the pain and suffering in cases of personal injury. Pecuniary loss is also occasionally general damage within this meaning, both in tort and in contract. In tort there is the loss of business profits caused by the defendant’s inducement of breach of contract or passing off, while in contract there is the injury to credit and reputation caused by the defendant’s failure to pay the plaintiffs cheques or honour his draft, pecuniary losses which it is difficult to estimate at all accuracy.” Occasion may arise where a wrong has been established by the plaintiff and there ought to be a remedy dictated by the circumstances of the case but which is difficult to quantify or assess. In Stroms Bruks Aktie Bolag vs Hutchinson (1905) A.C. 5.5 Lord Macnaghten held at page 525-526 that: ”’General damages’ … are such as the law will presume to be the direct natural or probable consequence of the action complained of…” In either of these circumstances a plaintiff may be entitled to general damages. But it is not proper to award general damages where the losses suffered are capable of quantification by evidence of cost of repairs or replacement. See Badmus & Anor v. Abegunde (1999) 7 SCNJ 96 at 104-105; Nwobosi vs ACB (1995) 6 NWLR (Pt.404) 653 at 680; Union Bank of Nig. Ltd vs Odusote Bookstores Ltd. (1995) 9 MLR (Pt.421) 558 at 586. However, in S.D Lar vs Stirling Astaldi (Nig.) Ltd. (1977) 11-12 SC 42 the Supreme Court warned that it would be unwise for a plaintiff to rely too heavily on inferences and presumptions in claiming general damages rather than special damages in the following language at p.51: “To our mind, general damages are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. (See Prehn vs Royal Bank of Liverpool (1570) LR 5 Exch.92 as per Martin B. at pages 99-100). It may however be unwise for a plaintiff to rely too heavily on inferences and presumptions of damages, for a failure to produce any evidence at all may result in an award of small or even nominal damages. This is because the proper approach in such circumstances is to regard an injuria or wrong as entitling the plaintiff to a judgment for damages in his favour even without loss or damage, but where there is no loss or damage such judgment will be for nominal damages only. In the particular circumstances of this case we think the learned trial Judge was also in error in not making any award with respect to the plaintiff/appellant’s claim for general damages.” JOSEPH TINE TUR, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
ESSIEN IBOK
(Trading under the name and style of ESANIEL TRADING CO.) Appellant(s)
AND
SPRING BANK PLC Respondent(s)
JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment): Mr. Essien Ibok (Trading under the name and style of ESANIEL TRADING CO.) of No.123 Mayne Avenue Calabar, cross River State was a customer of Citizens International Bank Ltd Calabar, cross River state (now spring Bank Plc by merger). Mr. Ibok approached the Bank in September, 2001 for an overdraft facility of N106,000.00 (One hundred and six thousand Naira) to enable him purchase gas and supply to Metropolitan Hotel Calabar, cross River State for profit. This was granted. In the course of time officials of the Bank alleged that Mr. Ibok defaulted in repayments.
After repeated demands the Bank’s officials trespassed into Mr. Ibok’s premises in his absence and carted away certain items to hold them as a lien. The matter was reported to the police and subsequently the Magistrate court in Calabar, cross River State, orders by the police and the Magistrate to return the items yielded no result hence Mr. Essien Ibok instituted an action in the High court of Justice, Calabar against the Bank on 18-02-2002 seeking redress. Pleadings were filed and exchanged. Paragraph 12 of the statement of claim avers as follows:
”12. The plaintiff avers that the defendant-trespassed on his business premises at No. 123 Mayne Avenue, Calabar and illegally carted away the following items and their cost are as follows:
1. 9 filled gas of Gas Cylinders 5kg N31,500.00,
2. 18 filled gas of Gas Cylinders 12.5kg N99,000.00
3. 2 filled gas of Gas Cylinders 25kg N24,000.00
4. 16 filled gas of Gas Cylinders 50kg N368,000.00
5. 115 metres of gas rubber hose 3 N40,250.00
6. 2 Gas Regulators R-18 N2,000.00
7. 2 West point Gas Cookers N170,000.00
8. 60 Pieces of sealed gas nuzzles
Total: N775,550.00
The total cost of the items tooked by the defendant for no just reason is N775,500.00. Plaintiff shall rely on purchase receipts of the items.”
The plaintiff pleaded in paragraph 29 of the statement of claim thus:
”29. The Plaintiff has been damaged by defendants act and also denied the profit he would have made from the business.
WHEREFORE plaintiff claims from the defendant as follows:
(1) A declaration that the defendant’s trespass on the plaintiff’s premises and property at No.123 Mayne Avenue, Calabar without plaintiff’s authority or consent is wrong, illegal and unlawful.
(2) AN ORDER for the defendant to return to plaintiff his property (Cylinders and other items) removed from No.123 Mayne Avenue, Calabar in good condition or payment of the sum of N775,500.00 being the cost of the property removed and detained by defendant.
(3) N10 Million General damages for loss of earning, emotional and Psychological stress associated with the trespass.”
The Bank’s defence was that on the day the officials entered the plaintiff’s premises an inventory of the items removed was endorsed by the Plaintiffs sales boy. They plead the items in paragraph 28 of the statement of Defence as follows:
”28. The defendant avers in reply to paragraph 12 that the items listed hereunder are not the correct list of items removed from the premises rather the items removed are as follows:
1. 1 50kg with gas -1
2. 1 45kg filled with gas – 1
3. 14 12.5kg filled with gas
4. 1 7kg with burner filled with gas – 1
5. 1 5kg burner filled with gas
6. 4 45kg empty cylinders – 2
7. 1 18kg empty cylinder – 2
8. 1 25kg empty cylinder – 2
9. 15 12.5kg empty cylinders – 2
10. 6 7kg cylinders – 2
11. 5 110 gas hose.
And the endorsed paper by the plaintiff’s boy is hereby pleaded.”
The defendant denied liability and by way of counter-claim pleaded in paragraph 48 that the plaintiff had perpetrated a fraud by false pretence to obtain funds from the Bank.
The matter proceeded to trial. The plaintiff relied on oral and documentary exhibits ”A”- ”H”. The plaintiff denied having any sales boy in his business premises as alleged by the defendant. The defendant testified through Tom Inyang Akpan without calling the sales boy who allegedly appended his signature to the inventory of the items (Exhibit ”M”) removed from the premises. Learned Counsel addressed the Court. On 13th day of February, 2007 His Lordship held at page 92 of the judgment as follows:
“On Exhibit ”M” I see one signature which defendant says was signed by plaintiff’s sales boy on the day. An inventory if this nature should normally have the signature of the owner of the goods and that of the person removing them to show that both parties are “ad idem” as to its contents. In this case there is no name against the signature to indicate who signed it.
The signature of the said sales boy was not proved before me to show that he signed the one on Exhibit ”M” . This Exhibit is therefore at large without any evidential value. ”
By the above holding Exhibit ”M” tendered as an inventory of the goods carted away by the defendant from the plaintiff’s premises was held not to be of any evidential value having not been signed by the alleged sales boy of the plaintiff/Respondent. See omega Bank Nig. Plc vs O.B.C. Ltd (2005) All FWLR (Pt.249) 1964; Attorney-General of Abia state vs Agbaranya (1999) 6 NWLR (pt.607) 362 at 371 and Ojo vs Adejobi (1978) 16 NSCC 165.
Exhibit ”M” constituted a document with a spurious origin. See Garuba vs Kwara Investment Co. Ltd. (2005) All FWLR (pt.252) 469 at 478-479; Zein vs Geidam (2004) All FWLR (pt.237) 457 at 482 paragraph “C-D” and Kareem vs Ogunde (1972) 1 SC 109. The effect is to leave unchallenged the facts pleaded in paragraphs 12 and 29 of the plaintiffs statement of claim. Secondly, it is to show that there was no documentary evidence to prove the averments in paragraph 28 of the statement of defence. In making an award the learned trial judge held at page 94 lines 4-7 of the printed record as follows:
“I refuse to award the plaintiffs claim for 60 pieces of sealed gas nozzles because no reason was offered for its omission in the plaintiffs report to the police and the Magistrate Court order (Exhibit “J”). I was not told there was more than one raid of plaintiff’s shop by defendant. For those reasons that claim is refused.”
The learned trial judge awarded special damages of N533,750.00 and N100,000.00 general damages ”for the trespass to his property and goods against the defendant.” (See page 95 lines 6 of the printed record). His Lordship further assessed the cost of the action at N5,000.00 in favour of the plaintiff. Being aggrieved the plaintiff lodged an appeal to this Court on 09-05-2007 predicated on two grounds of appeal. The appellant’s brief filed on 09-10-2007 identified two issues for determination to wit:
“1. Whether the trial Court was right to reduce the special damages claimed by the appellant in the suit to a lesser amount when he (appellant) had proved the said special damages through evidence which the Respondent did not deny.
2. Whether the sum of N100,000.00 (One hundred thousand Naira) awarded as general damages was not too low considering the value of naira and the circumstances of the case.”
ISSUE ONE:
On issue one learned counsel to the appellant argued that the evidence as to the items removed from the premises being unchallenged, the appellant was entitled to the entire sum of N775,550.00 claimed. That the claims were proved by the production of payment or purchase receipts, citing U.T.B. Ozoemena (2007) All FWLR (pt.358) 1014 and Eluwewe Elder Dempster Agencies Ltd. (1976)6 U.I.L.R. (pt.2) 225.
ISSUE TWO:
Counsel submitted on issue two that considering the facts and circumstances of the trespass, bearing in mind the depreciating value of the Naira, N100,000.00 as general damages was inadequate hence this court should invoke the provisions of Section 16 of the court of Appeal Act, 1976 to increase the general damages.
The learned counsel to the Respondent identified the following issues for determination, in the brief filed on 03-02-2012, namely:
“1. Whether the learned trial judge was right in refusing the award of the plaintiff’s claim of N170,000.00 (one hundred and seventy thousand Naira) and N40,000.00 (Forty Thousand Naira) only for 2 west point Gas cylinder and 60 pieces of sealed gas nuzzles, respectively, same not having been mentioned in the list of items earlier given to the police.
2. Whether the learned trial judge was right in awarding N100,000.00 (one hundred thousand Naira) only as general damages in favour of the Appellant even in the absence of any evidence as to the earnings of the appellant placed before the court below with which to assess his loss.”
ISSUE ONE:
Learned Counsel argued that the burden placed on the appellant to specifically prove special damages is not lessened by non-denial of the averment by the Respondent, citing Iwueke vs Imo Broadcasting Corp. (2006) 1 MJSC 108 at 114 and Gonzee Nig. Ltd. vs N.E.R.D.C (2005) All FWLR (Pt.274) 235 at 238. That for this Court to interfere with the award of damages it must be shown that the trial judge acted on wrong principles of law or that the amount awarded was so manifestly too low or high as to make it an erroneous estimate of the damage to which the plaintiff is entitled, citing S.P.D.C. Nig. Ltd. vs Ntiero VII (205) All FWLR (Pt.265) 990 at 994. Learned Counsel urged that this Court should not interfere with the award of special damage made by the learned trial judge.
ISSUE TWO:
Learned Counsel, relying on U.A.C. (Nig.) Plc vs Sobodu (2006) All FWLR (Pt.329) 877 at 800-801 and Federal Mortgage Finance Ltd. vs Ekpo (2005) All FWLR (Pt.248) 1667 at 1670 urged that general damages being a matter for the exercise of the discretion of the trial judge should not be interfered with as no circumstances were shown to warrant such an exercise.
There is no doubt that the forceful entry into No.123 Mayne Avenue, Calabar, Cross River State to cart away the appellant’s properties as pleaded and proved at the trial constituted the tort of trespass to the premises and the goods of the appellant for which he was not only entitled to special damages where pleaded and proved but to general damages. On the 10th day of February, 2005 the appellant testified as PW1 thus:
“Defendants removed 9 No. 5kg Cylinders filled with
gas costing N81,500.00, 18 No. of 12-5kg cylinders
filled with gas value N99,000.00, 2 No- 25kg cylinders
filled with gas value N24,000.00, 16 No. 50kg cylinders
filled with gas value N368,000.00, 115 metres length of
gas hose N40,250.00, 2 gas regulators costing
N2,000.00, 2 west point gas cookers value
N170,000.00,60 pieces of sealed gas nozzles
N40,000.00. Total value of items removed N775,550.
Defendant removed all the above items to their bank at Calabar which I saw later.
I locked the gate leading to where I stored the gas when I left my shop.”
See page 54 lines 9-17 of the printed record.
No where did the Respondent’s learned Counsel cross-examine the appellant in the witness box to disparage the above evidence which I find supports paragraphs 12 and 29 of the statement of claim. See Akinbiyi vs Anike (1959) WRNLR 16; Nwankwere Vs Adewunmi (1963) WRNLR 298 at 302; Amadi vs Nwosu (1992) 6 SCNJ 59 at 71 and Ajao vs Ajao (1986) 5 NWLR (Pt.45) 802.
The appellant showed the items carted away and how their value or costs were arrived at. See Imana vs Robinson (1979) 3-4 SC 1 at 23; Obembe vs Wemabod Estate Ltd. (1977) 5 SC 115 at 139 and Boshali vs Allied Commercial Exporters Ltd. (1961) 1 All NLR 917. Belief or disbelief of a witness is immaterial when there is only one version of credible evidence relating to a material point in contest. See Modupe vs The State (19SS) 9 SCNJ 1; Obanor vs Obanor (1976) 2 SC 1 at 4-6; Oguma Associated Co. Ltd. vs IBWA Ltd. (1988) 3 SCNJ 13 and Ijebu Ode Local Government vs Balogun (1991) 1 SCNJ 1 at 18.
To impeach the credit of the appellant the learned Counsel to the Respondent should have confronted him with contrary evidence namely, Exhibit ”J” as he testified in the witness box so as to allow him to explain any discrepancy with paragraph 12 of the statement of claim. That was not to be in this case. See Nwobodo vs Onoh (1984) 1 SCNLR 1 at 88. I hold that the learned trial judge erred to have descended into the arena to disbelieve the evidence of the appellant by denying him the sum of N775,550.00 (Seven Hundred and Seventy-five thousand, five hundred and fifty Naira) claimed and proved at the trial. The appellant is entitled to this head of claim.
ISSUE TWO:
The law is settled that general damages need not be pleaded, quantified or specifically denied yet they would, depending on the circumstances of each case, be awarded to a successful party. See Osuji vs Isiocha (19S9) 6 SCNJ 227. But they are to be averred in the pleadings. See Incar Motors vs Benson (1971) 3 SC 117; Hanseatic Interprises Ltd. vs Usang (2003) FWLR (pt.149) 1563 at 1590 paragraph “G-H”. The often cited case is Prehn vs Royal Bank of Liverpool (1370) L.R5 Ex.92 99-100 where Martin B. stated that:
”General damages… are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man…”
The learned authors of MCGregor On Damages, 14th edition page 14 paragraph 17 further explained that:
“…This type of general damage is usually concerned with non-pecuniary losses, which are difficult to estimate, the principal examples being the injury to reputation in defamation and the pain and suffering in cases of personal injury. Pecuniary loss is also occasionally general damage within this meaning, both in tort and in contract. In tort there is the toss if business profits caused by the defendant’s inducement of breach of contract or passing off, while in contract there is the injury to credit and reputation caused by the defendant’s failure to pay the plaintiffs cheques or honour his draft, pecuniary losses which it is difficult to estimate at all accuracy.”
Occasion may arise where a wrong has been established by the plaintiff and there ought to be a remedy dictated by the circumstances of the case but which is difficult to quantify or assess. In Stroms Bruks Aktie Bolag vs Hutchinson (1905) A.C. 5.5 Lord Macnaghten held at page 525-526 that:
”’General damages’ … are such as the law will presume to be the direct natural or probable consequence of the action complained of…”
In either of these circumstances a plaintiff may be entitled to general damages. But it is not proper to award general damages where the losses suffered are capable of quantification by evidence of cost of repairs or replacement. See Badmus & Anor v. Abegunde (1999) 7 SCNJ 96 at 104-105; Nwobosi vs ACB (1995) 6 NWLR (Pt.404) 653 at 680; Union Bank of Nig. Ltd vs Odusote Bookstores Ltd. (1995) 9 MLR (Pt.421) 558 at 586. However, in S.D Lar vs Stirling Astaldi (Nig.) Ltd. (1977) 11-12 SC 42 the Supreme Court warned that it would be unwise for a plaintiff to rely too heavily on inferences and presumptions in claiming general damages rather than special damages in the following language at p.51:
“To our mind, general damages are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. (See Prehn vs Royal Bank of Liverpool (1570) LR 5 Exch.92 as per Martin B. at pages 99-100). It may however be unwise for a plaintiff to rely too heavily on inferences and presumptions of damages, for a failure to produce any evidence at all may result in an award of small or even nominal damages. This is because the proper approach in such circumstances is to regard an injuria or wrong as entitling the plaintiff to a judgment for damages in his favour even without loss or damage, but where there is no loss or damage such judgment will be for nominal damages only. In the particular circumstances of this case we think the learned trial Judge was also in error in not making any award with respect to the plaintiff/appellant’s claim for general damages.”
“There is no dispute that an appellate Court may in certain circumstances interfere with damages awarded to a successful party at the trial. This was made clear by the Supreme Court in Obere vs Board of Management Eku Baptist Hospital (1973) 1 LRN 246 where Fatayi-Williams, JSC (as he then was) held at page 251 as follows:
“…In our view, this Court has the power, and indeed the duty, to interfere with the award provided certain principles are complied with: See Zik’s Press Ltd vs Ikoku (1951) 13 WACA 188 at 189.
The principles upon which an appellate Court will act in reviewing an award of damages are now well settled and can be summarized as follows: An appellate Court is not justified in substituting a figure of its own for that awarded by a lower Court simply because it would have awarded a different figure if it had tried the case at first instance. Before the appellate Court con properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of low such ns taking into account some irrelevant factor or leaving out of account some relevant factor, or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damage: see Flint vs Lovell (1935) 1 KB 354 at 360; Agabi vs Otobusin (1961) 1 All NLR 299 at 300; Khawam vs K Chellaram & Sons (Nig.) Ltd (1964) 1 WLR 711 at 714; Shodipo & Co. Ltd vs Daily Times of Nigeria Ltd (1972) 1 All NLR 406 at 411 – 412; and His Highness Uyo 1 vs Nigerian National press Ltd. (1974) 6 SC 103 at 105-106.”
The appellant claimed a lump sum of N100,000.00 General Damages ”for loss of earning; emotional and psychological stress associated with the trespass” in paragraph 29(3) of the statement.
Loss of earnings or anticipated profits are in the nature of special damages and have to be specifically pleaded and proved at the trial. See Odumosu vs ACB (1976) 11 SC 55; Uwa vs ITC (1988) 12 SC (Pt.2) 102 at 122-123 and Attorney-General of Oyo State vs Fairlakes Hotel (1989) 12 SCNJ 1 at 22. The appellant was not entitled to an award of general damages for loss of earnings sounding in special damages. We axe left with the claim for “emotional and psychological stress associated with the trespass”. In MCGregor on Damages supra page 44 paragraph 63 the learned authors have stated that:
”… Occasionally, in trespass to property there has been an award for injury to feelings;…”
see Owen and smith vs Reo Motors (1934) 151 L-T. 274. In my judgment the award of N100,000.00 (one Hundred Thousand Naira) general damages was adequate in the given circumstances.
The appellant has not shown why the award should be interfered with. Accordingly, issue two is resolved against the appellant.
On the whole the appeal has succeeded on issue one. The appellant is entitled to the lump sum of Seven Hundred and Seventy-five thousand, five hundred and fifty Naira (N775,550.00) special damages. Cost assessed at N20,000.00 in favour of the appellant.
The appeal on issue two fails and the award of N100, 000.00 by the learned trial Judge in favour of the appellant is affirmed.
MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Joseph Tine Turo JCA, had fully considered the two issues that arise for decision in the draft of the lead judgment written by him, a copy of which I read before today. I am in agreement with the conclusions on the issues for the reasons set out therein and join in resolving the Issue I in favour of the Appellant and finding no merit
in the submissions for the Appellant in respect of Issue 2.
I abide by the consequential orders contained in the lead judgment.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I agree with the reasons and final conclusions contained therein. Special damages as the name depicts are damages which the law does not infer from the nature of an act, but which are exceptional in character. Special Damages denote those pecuniary losses, which have crystallized in terms of cash and value before the trial in court. See Garba vs. Kur (2003) 11 NWLR pt 851 page 280 Ijebu-Ode Local Government Vs. Adedeji Balogun & Co. (1991) 1 NWLR pt 166 page 156.
Special Damages must be specifically pleaded and strictly proved. Also where there are various items claimed under special damages, the plaintiff is entitled to those items he can prove. Badmus vs. Abegunde (2001) 3 WRN page 40.
In the instant case, the Plaintiff/Appellant had various items pleaded and claimed. He also produced purchase receipts evidencing the cost of the items. This the Defendant/Respondent did not rebut.
It is a settled principle of law that special damages must not only be specifically pleaded but must also be strictly proved with credible evidence. See Garba vs. Kur (supra). Osuji vs. Isiocha (1989) 5 NWLR pt 111 page 623, Achaji Otaru & Sons Ltd vs. Idris (1999) 6 NWLR pt 606 page 330.
General damages on the other hand, as its name implies are damages which the law implies or presumes to have accrued from the wrong complained of. It is presumed to flow from the immediate, direct and proximate result of the wrong complained of. It is the duty of the court to exercise its discretion in calculating what sum of money will be reasonable in the circumstances of the case. Garba Vs. Kur (supra) Osuji vs. Isiocha (supra) Ijebu-ode Local Government vs. Adedeji Balogun (supra).
General damages is an award made at the discretion of the court, but has to be exercised judiciously and judicially. Garba vs. Kur (supra) General damages awarded by the trial Judge was inferred from the injury or discomfort suffered by the Appellant because of the illegal carting away of his moveable property by the Respondent.
For this and the more robust exposition of the law in the lead judgment, I also must allow this appeal. I also abide by all the consequential orders in the lead judgment.
Appearances
A.U. Akpan with H.N. UsimFor Appellant
AND
E.A. AchatenFor Respondent
