AFRILEC LTD & ORS. v. CHARLES LEE
(2012)LCN/5286(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of April, 2012
CA/L/629/2005
RATIO
CLAIM: NATURE OF A COUNTER-CLAIM
In the case of Oragbade vs. Onitiju (1962) 1 All NLR 33 at 36, Bairanian JSC (as he then was) stated:
“In substance a counter claim is a cross action”
The Supreme Court in the case of Ige vs. Farinde (1994) 98 SCNJ (Pt.2) 284 at 305 again stated:
“A counter claim is not merely a defence to the plaintiffs claim. Instead of suing separately the defendant may insert his claim into the plaintiffs suit under the label of counter-claim if it is a kind which by law he is entitled to raise and have disposed of in the plaintiff suit. See: Oyegbola vs. Esso West Africa Incorporated (1966) 7 All NLR 170 at 171”.
Again the Supreme Court in Ogbonna vs. A.G. Imo State (1992) 1 NWLR (Pt. 647) 675 stated:
“A counter-claim is to all intents and purposes a separate action, although the defendant for convenience and speed, usually joins it with the defence.”
From the above therefore the Supreme Court made it very clear that, a defendant, who has a cause of action against the plaintiff, may initiate proceedings for it in the very action brought by the plaintiff by raising that cause of action as a counter-claim. The defendant does this as an alternative to suing the plaintiff in a separate and independent action for the claim. PER SIDI DAUDA BAGE, J.C.A.
CLAIM: REQUIREMENT OF CLAIMANT IN REGARD TO CLAIMS
The law requires such claimant to establish credible evidence to those particularized claim to give them life. No such evidence is before this court on the claimed special damages. PER SIDI DAUDA BAGE, J.C.A.
TORT: DEFINITION OF FALSE IMPRISONMENT
The definition of false imprisonment from the learned authors of Clerk & Lindsell on Torts, 14th Edition at page 681 is quite apt in the resolution of this head of claim. The tort of false imprisonment is defined as follows:-
“A false imprisonment is complete deprivation of liberty for anytime however short, without lawful cause. Imprisonment is no other thing but the restraint of s man’s liberty whether it be in the open field, or in the stocks or in the cage in the street, or in a man’s own house, as well as in the common goolie; and in all the places the party so restrained is said to be prisoner so long as he both not his liberty freely to go at all times to all places whither he will without bail or main praise or otherwise. The Prisoner may be confined within a definite space by being put under lock and key or his movements may simply be constrained by the will of another”. PER SIDI DAUDA BAGE, J.C.A.
DAMAGES: ATTITUDE OF THE APPELLATE COURT TO ASSESSMENT AND AWARD OF DAMAGES BY TRIAL COURT
Also on the appellate court’s attitude to assessment and award of damages by trial court. The law is that an appellate court would not interfere with the award of damages by a lower court unless it has acted on wrong principles and the award constitutes an entirely erroneous estimate. PER SIDI DAUDA BAGE, J.C.A.
EVIDENCE: BURDEN OF PROOF IN CIVIL CASES
It is trite that civil cases are decided on the balance of probabilities. This means that the burden is on the Plaintiff to prove his case, and when the Defendant adduces evidence, the case is then decided on the balance of probabilities. The two sides of the evidence are now put in an imaginary scale and the party in whose favour the scale tilts, will have Judgment entered in his favour. See Benneth Ude Agu v. Maxwell Nnada (2002) 18 NWLR (Pt.798); (2002) 12 SC (pt.1) 173; Mogaji v. Odofin (1978) 4 SC 91; Kaiyaoja v. Egunla (1974) 12 SC 55 and Onuwama v. Ezeokoli (2002) 5 NWLR (pt.760) 353. PER JOHN INYANG OKORO, J.C.A.
JUSTICES:
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
AFRILEC LTD & ORS. – Appellant(s)
AND
CHARLES LEE – Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Honourable Justice S. O. Ishola sitting at the High Court of Lagos State No.26, Ikeja Judicial Division delivered on the 16th day of September, 2005.
The facts that led to this appeal are as follows:
The Respondent herein was jointly employed by the 1st and 2nd Appellants as Project Manager between 1999 and 31st December, 2001 to oversee the construction of a soap factory contracted to the 1st and 2nd Appellants by Unilever Nigeria Plc, by virtue of a memorandum of understanding dated L3th September, 2001 Exhibit ‘A’. The Respondent undertook to supervise the execution of ‘UNILEVER SOAPS PROJECT’ for and on behalf of the Appellants and the Appellants on their own part undertook to pay N8,000,000.00 (Eight Million Naira) in six (6) instalments.
The Appellants paid the first five instalments, but did not pay the Respondent the sum of N1,250,000.00 covering the last stage of the contract of employment, contending that the Respondent breached the contract. The Respondent firstly lodged a complaint to the police, and later entered a suit at the trial court in which a claim of N1,250,000.00 was made. He commenced the suit by a specially endorsed writ of summons dated 8th May, 2002 accompanied with a statement of claim of the same date and filed on 18th June, 2002.
“The claim of the Claimant against the Defendants jointly and or severally is the sum of N1,250,000.00 (One Million Two Hundred and Fifty Thousand Naira) being damages for breach of contract of employment/service in respect of the supervision by the Claimant for and on behalf of the Defendants of the Unilever soaps project. The Claimant also claims interest at 21% per annum from 7th January 2002, until the whole amount is liquidated.
Issues were joined by the parties and after a full trial, the trial court entered judgment in favour of the Respondent in the sum of N1,250,000.00 (One Million Two Hundred and Fifty Thousand Naira only). The 1st, 2nd and 3rd Defendants now Appellants being dissatisfied with the judgment brought this appeal.
The Appellants’ brief dated and filed 24th of April 2007, was deemed properly filed on the 3rd of November, 2010.
The Respondent’s brief dated the 3rd of November 2010, was filed on the 18th of November, 2010.
Appellants’ counsel Theophilus Ochonogor, Esq. identified three (3) issues for determination as follows:-
(1) Whether the learned trial Judge was right when his lordship held that the Respondent was entitled to the sum of N1,250,000.00 (One Million Two Hundred and Fifty Thousand Naira only) claimed. (Ground 1-Vl of the Amended Notice of Appeal).
(2) Whether the learned trial Judge was right when his lordship held that the Appellants did not strictly prove their special damages and thereby dismissing their counter-claim for special damages (Grounds VII-IX of the Amended Notice of Appeal).
(3) Whether the learned trial Judge was right when his lordship held that the Respondent was not liable for false imprisonment of the 3rd Appellant and thereby dismissed the 3rd Appellant’s counter-claim for general damages (Ground X of the Amended Notice of Appeal).
On the other hand, Respondent’s counsel Alaba Okupe distilled two (2) issues for determination as follows:-
(1) Whether the learned trial Judge was correct in awarding judgment to the Respondent in the sum of N1,250,000.00 with interest at 21% per annum from 1st January, 2002 until 16th September, 2005 until the amount is liquidated.
(2) Whether the learned trial Judge was correct in holding that the Appellants did not establish their counter-claim for special and general damages totaling N10,096,602.52.
I will adopt the Respondent’s issue, as captured the Appellants’ issue no. 2 has aptly captured the Appellants’ issue nos. 2 and 3.
Issue One
This issue covered the Appellants’ issue no.1 and the Respondent’s issue no.1 as well.
Learned counsel to the Appellants submitted that, the contract of employment between the Appellants and the Respondent was principally governed by the Memorandum of Understanding dated 13th September, 2001 which was admitted in evidence as Exhibit ‘A’ and is at pages 50-51 of the Records. Under Exhibit ‘A’ part of the Respondent’s obligations was to “continue to work with full diligence on tasks assigned to him by the first party, with particulars stress on UNILEVER’S SOUP PROJECT”. See clause 3.
Counsel submitted further that under clause 7 of Exhibit ‘A’ the Respondent was under an obligation to “devote all his time exclusively to the Unilever’s soaps project” and “to supervise the work on this project to full time basis”. The Respondent abandoned his job during the month of December, 2001. All three defence witnesses testified that the Respondent abandoned his job in December, 2001. Although both DW1 and DW2 were not based on the project site at Agbara, they testified that they visited the site regularly. However, DW3 was based on the site and shared the same office with the Respondent.
Counsel further submitted that from the evidence given by the Respondent himself is that he was in the Appellants employment between 1999 and 2001. No further proof is therefore required to show that BREN WILLIAMS NIG. LTD which was incorporated in 2001 while the Respondent was in the Appellants employment. This court should infer from the Respondent’s testimony that while in the employment of the Appellants, the Respondent was running his own company as a result of which he had divided attention which also adversely affected his loyalty and commitment to the Appellants. See the case of Olale vs. Ekwelendu (1989) 7 SC (Pt.11) 62 at 82.
It was further submitted that Exhibits ‘F’, ‘G’ and ‘H’ are not conclusive proof that the Respondent was diligent and was not negligent as found by the trial court. Considering the fact that the Respondent had been on the job since the commencement of the project and that it was envisaged that the project could be concluded within two months, the Appellants were entitled to overlook the shortcomings of the Respondent and take the risk of extending the contract for the purpose of continuity.
It was further submitted that the allegations leveled against the Respondent for which he was not paid for the last stage of the contract were not mere lame excuses as held by the learned trial Judge but were proved at the trial. An employee is not paid merely by efflusion of time but by performance of his contract. In the circumstances, the Respondent was not entitled to the sum of N1,250,000.00 claimed.
On the other hand, the Respondent’s counsel submitted that parties and the courts are bound by the pleadings of the parties, and no party is allowed to present a case contrary to the pleadings. See Adetoun Olodeji (Nig) Ltd vs. Nigerian Breweries Plc (2007) 3 MJSC pp 29, 54A Averments in pleadings on which no evidence is adduced are deemed to have been abandoned. See Ifeta vs. Shell Petroleum Dev. Co. (Nig.) Ltd (2006) 7 MJSC pp 121, 129C-E
It is further argued that evidence at variance with the averment in pleadings goes to no issue see: Emegolkwe vs. Okadigbo (173) 7 NWLR page 192 – 19. It is the court of first instance that sees witnesses and evaluate evidence. An appeal court does not enquire into disputes but into the ways the disputes had been tried and settled. A finding is perverse when it grants counter to the evidence and pleadings. Onu & 5 Ors vs. Idu & 5 Ors (2006) 9 MJSC Page 799, 21. In every case there is always the main issue around which other related and subsidiary issues may revolve. See Ehimore & Anor vs. Emhonyan (1985) 1 NWLR (pt 2) 117 at 183. It is trite law that civil cases are decided on the balance of probabilities see: Ezemba vs. Ibeneme & Anor (2004) 70 MJSC Page 54 and 79.
It was further submitted by the learned counsel that appellants in their bid to shy away from their contractual obligations under Exhibit ‘A’ the respondent was to provide sketches and drawings for the project, whilst they also pleaded under paragraph 6(1)(c) of their defence that by the schedule of required sketches/drawings dated 15/10/2001 the respondents did not provide such drawings/sketches. The appellants did not tender the said schedule as an Exhibit to show the lower court that the respondents failed to work with full diligence on tasks assigned to him. There is a presumption under Section 149(d) of the Evidence Act 1990 “that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.”
It was further submitted that, Exhibits ‘F’, ‘G’ and ‘H’ at pages 65,66,67 of the Record goes contrary to the appellants assertion that the respondents did not perform his obligations diligently. A reasonable person would ask why the appellants were offering to renew respondents’ contract as at 19-12-2001 at the higher rate of N750,000 per month instead of N666,666:66 per month. If the respondents (1) was not diligent; (2) was absent from project site throughout December 2001; (3) did not provide sketches/drawings as requested by the appellants.
The main crux of this appeal resides on the content of Exhibit ‘A’, the memorandum of understanding entered by the contending parties to this appeal. The respondents herein was jointly employed by the 1st & 2nd appellants as project Manager between 1999 and December 31st 2001 to oversee the construction of a soap factory contracted to the 1st & 2nd appellants by Unilever Nig. Plc. Under the MOU, the respondents employment continuing from 1/12/2000 to 31/12/2001 attracted a fixed remuneration of N8,000,000 payable in six stages. Under clauses 3 and 7 respectively of Exhibit ‘A’ it provides that the respondents “will continue to work with full diligence on tasks assigned to him by the first party” and that he shall devote all his time exclusively to Unilever’s soap project and its ramifications. “In carrying out his assignment, the respondent was given the task to produce engineering drawings and sketches for the project which he failed or required to do. He also caused the appellants financial losses and abandoned his job towards the end of the contract of employment. The appellants had to employ another engineer who carried on from where the respondent stopped. The appellant did not pay the respondent the sum of N1,250,000.00 covering the last stage of the contract of employment, contending that the respondent breached the contract.
The respondent maintained he did not breach the contract. He placed reliance on Exhibits ‘F’ ‘G’ & ‘H’ at pages 65, 66, 67 of the records. He maintained that contrary to the assertion of the appellants he performed his duties diligently. If he had not, a reasonable person would ask why the appellants were offering to renew his contract as at 19/12/2001 at a higher rate of N750,000 per month instead of N666,666.66 per month, if he was not (1) diligent, (2) was absent from the project throughout December, 2001; (3) did not provide sketches/drawings as allegedly requested by the appellants.
From the above, it is brought to the glare that, what is between the contending parties in this appeal, is a contract of employment. The said contract reduced into a MOU, and admitted as Exhibit A at the trial court. The duty placed upon the courts both at the trial level and the appellate, is to give construction to the terms of the contract. It is not the duty of the courts to add or subtract from, or import provisions into agreement between parties where parties resort to court and not to self help, the court is to enforce the agreement between them. The law is settled on construction of terms of a contract. See in Niger Dams Authority vs. Lijade (1973) 5 SC 207, where in the Supreme Court held:
“It is on elementary principle of Law that where parties are ad idem on the terms of a contract, the function of the court is to give effect to the terms without much ado. This is because the court must, in the construction of the terms of a contract give effect to the intention of the parties.”
Also on this, see: Mobil vs. Johnson (1961) 1 SCNLR 757; (1961) 1 NLR 93; U.B.N Ltd vs. B. U. Umeh & Sons Ltd (1996) 1 NWLR (pt.426) 565 at 605.
It is also settled that a trial court being a stranger to an agreement entered into by parties to it, should not add or subtract from it or import any provision into it. See: Nimanteks Associates vs. Marco Construction Co. Ltd (1991) 2 NWLR (pt 174) 411; Oyeneyin vs. Akinkugbe (2001) 7 NWLR (pt 693) 40 at 57.
It is again settled law that, the court of trial is enjoined to enforce agreements between the parties and not to speculate or question the reason for their entering into any agreement, unless such agreement is illegal for contrary to public policy. See: Oyeneyin vs. Akinkugbe (2001) 1 NWLR (pt.693) 40 at 57.
The main contention of the appellants against the respondents in the execution of the MOU, Exhibit ‘A’ is that of part performance. They withheld the last segment of the agreed payment to the respondent for the failure to meet up with clause 3 and 7 of Exhibit ‘A’. The reasons for the action included the failure to submit sketches and drawings on demand, and his absenteeism from the site for the whole of the month of December, while Exhibit ‘A’ the contract, envisaged a full time engagement. The perception of the appellants is that, part performance of an entire contract does not entitle the performer to any payment. The appellants then assumed the position of the accusers, and the executors for the perceived breach of the contract.
In other words the appellants resorted to self help, in the enforcement of their agreement with the respondent. That was a wrong approach. The correct position of the law on the question of whether a contract is entire or divisible, is one of construction, which earlier on in this judgment is stated to be the exclusive preserve of the court. The Supreme Court in the case of Thomas Alphin & Co. Ltd. vs. Northern Nigeria Development Corporation (1972) 7 All NLR (Pt.2) 476 stated:
“Part performance of an entire contract does not entitle the performer to day payment, and the question whether a contract is entire or divisible is one of construction.”
The trial court which had the benefit of evaluating both the documentary and oral evidence of the parties to this agreement, stated at page 148 of the records in its judgment, as follows:
“I therefore find that all allegations leveled against the Claimant are lame excuses which the Defendants have invented in order to avoid paying the Claimant the balance of his contract fee which is N7,250,000.00. All these allegations are baseless in law because they are not substantiated. The Claimant is entitled to his balance of contract fee of N7,250,000.00 which the Defendants are still holding”.
From the processes filed before this court, the Appellants have proffered the same arguments as they did in the trial court for their refusal to pay the Respondent his balance. They hinged their arguments on the Respondent’s failure or refusal to produce drawings for the project, and abandonment of his job the month of December, 2001.
The Respondent countered this argument by the production of Exhibits F, G & H at pages 65, 66 and 67 of the Record. His position is that, if as at 19-12 – 2001 the Appellants were offering to renew his contract at a higher rate from N666,656:66 to N750,000 per month could he then be regarded as not been diligent with his work, absented himself from project site throughout December, or did failed to provide sketches and drawings as requested by the Appellants.
From the facts before this court, the two (2) arguments were placed before the trial court, and in its duty to construct the agreement between the two contending parties, at pages 147-148 of the Records stated:-
“I have gone through Exhibit ‘A’ and I have found that it does not contain any clause or paragraph saying that it is the project manager that should produce sketches and drawings… The Claimant was therefore not under obligation to produce the sketches/diskettes. It is true the Claimant was under obligation to work with full diligence on tasks assigned to him by the Defendants. I do however disagree with Defendants’ counsel that this task includes the production of Drawings/Diskettes…”
This court has nothing before it, to warrant departure from the position of the trial court, in its construction to Exhibit ‘A’, the Memorandum of understanding between the parties. It is satisfied that the Appellants failed to honour their contractual obligation to the Respondent, by paying the last segment of his contract fees with them, amounting to N1,250,000:00. Issue No. 1 is resolved against the Appellants, and in favour of the Respondent.
On issue two (2), whether the learned trial Judge was correct in holding that the Appellants did not establish their counter-claim for special and general damages totaling N10,096,602:52. The argument of the Appellants on their issues two, and three will be considered together before that of the Respondent.
The Appellants in arguing their issue two brought in their counterclaim for special damages against the Respondent as follows:-
(1) The sum of N960,000.00 being the cost of offloading 33 containers belonging to the clients on the instruction of the Claimant when the Claimant knew that the 1st Defendant had no obligation to offload the said containers;
(2) The sum of N577,601.52 being the loss occasioned the 1st Defendant by the use of 150mm pipelines requested by the client;
(3) The sum of N759,000:00 being the loss occasioned to the 1st Defendant by the Claimant when he used 80mm stainless steel pipeline instead of 80mm carbon steel pipeline requested by the client;
(4) The sum of N400,000:00 being the loss occasioned the Employment of Engineer Tony Eneanya complete the job abandoned by the Claimant;
(5) The sum of N400,000:00 being the loss incurred on withholding tax on the contract sum of N8million.
Learned counsel submitted that the law is now well settled that special damages must be strictly proved. See: U.B.A. Plc vs. Ogunsanya (2003) 8 NWLR (Pt. 821) 111 at 728; Salaudeen vs. Oladele (2003) 3 NWLR (Pt.806) 29 at 46-47; West African Shipping Agency Nigeria Ltd vs. Alh. M. Kalu (1978) 3 SC 21.
Learned counsel further submitted that with respect to special damages of N960,000, N577,601.52 and N759,000 counter claimed by the Appellants the Respondent both in his pleadings and at trial never faulted the figures arrived at by the Appellants.
On issue No. 3. General damages the learned counsel submitted that the 3rd Appellant counter-claimed against the Respondent the sum of N3million as general damages for false imprisonment between the hours of 5pm and 9.30pm of 1/2/02 at the interrogation room of the General Investigation Department of Nigeria Police, Ikeja.
Learned counsel further submitted that the Respondent’s action to the police did more than “make a report to the police”. See: Mandilas & Karaberis Ltd vs. V. Apena (1969) NSCC 372 at 375; Mclaren vs. Jennings (2003) 3 NWLR (Pt.808) 470; Ejiofor vs. Okeke (2000) 7 NWLR (Pt.665) 969 at 380; Olale vs. Ekwelendu (1989) 7 SC (Pt.11) 62 at 82; Abdullahi vs. Raji (1998) 7 NWLR (Pt. 543) 487 at 492.
The Respondent on the other hand submitted that, it is trite law that, in determining damages (compensation) a Judge must make his assessment on the evidence before him and not make guesses based on matters upon which he has not received specific evidence. Being special damages, these items must be strictly proved. See: Dumez (Nig) Ltd vs. Ogboli (1972) 3 SC pp 205, 274, 275.
Learned counsel submitted further that by virtue of paragraph 11 of the Appellants’ counter-claim under items 1, 2, 3, 4 and 5, the Appellants gave particulars of their counter-claim for special damages. The Appellants under item 5 pleaded the expert report of SHELTER COST ASSOCIATES, Quantity surveyors and project management consultant and the receipts for materials purchased and supplied for the project. The Appellants however did not lead evidence in support of any of these averments; such averments should be deemed as having been abandoned. See: Gamborumo & 3 Ors. vs. Borno (1997) 3 NWLR (Pt. 495) 530 at pp 535 & 543.
Learned counsel further submitted that the evidence of DW1 and DW2 are completely unsubstantiated and contradictory that cannot support the claim for special damages.
Learned counsel submitted further that the counter-claim for N3million damages for false imprisonment of the 3rd Appellant between 5pm – 9.30pm on 1/2/2002 in the interrogation room of General Investigation Department of Nigeria Police Ikeja, no shred of evidence was led to show that the Respondent falsely imprisoned the 3rd Appellant at all.
Let me start by considering the Appellants’ counter claimed special damages against the Respondent. Also the general damages for unlawful imprisonment claimed. The two claims were brought under the heading “Counter claim”. The claims were made grounds in the Notice of Appeal filed as grounds 3, 4 and 5. The Appellants in their brief of argument, also argued the claimed special damages against the Respondent as issue No. 2. The claim for general damages for false imprisonment against the 3rd Appellant was argued as issue no. 3. Both the main appeal and the counter claim were argued together as one suit. This is not in accord with the law on such claims. What then is the nature of a counter claim?
In the case of Oragbade vs. Onitiju (1962) 1 All NLR 33 at 36, Bairanian JSC (as he then was) stated:
“In substance a counter claim is a cross action”
The Supreme Court in the case of Ige vs. Farinde (1994) 98 SCNJ (Pt.2) 284 at 305 again stated:
“A counter claim is not merely a defence to the plaintiffs claim. Instead of suing separately the defendant may insert his claim into the plaintiffs suit under the label of counter-claim if it is a kind which by law he is entitled to raise and have disposed of in the plaintiff suit. See: Oyegbola vs. Esso West Africa Incorporated (1966) 7 All NLR 170 at 171”.
Again the Supreme Court in Ogbonna vs. A.G. Imo State (1992) 1 NWLR (Pt. 647) 675 stated:
“A counter-claim is to all intents and purposes a separate action, although the defendant for convenience and speed, usually joins it with the defence.”
From the above therefore the Supreme Court made it very clear that, a defendant, who has a cause of action against the plaintiff, may initiate proceedings for it in the very action brought by the plaintiff by raising that cause of action as a counter-claim. The defendant does this as an alternative to suing the plaintiff in a separate and independent action for the claim.
In the instant appeal, both the main appeal and the counter-claim were argued together as one action, not as separate cause of action as provided by law. What has added complexity to it is that, the Respondent did not raise a preliminary objection to the anomaly, but instead joined issues with the Appellants by filing his reply to the counter-claim. This court will therefore proceed to consider the Appellants’ counter-claim in this appeal, in the manner in which it was brought.
With respect to special damages, the law requires that a claim for it must be specifically pleaded and strictly proved. In other words the plaintiff should sufficiently particularize it to enable the court decides whether all or part of it can be granted and should establish his entitlement to special damages claimed by credible evidence. See: Neka BBB MFG Co. Ltd. vs. ACB Ltd (2004) 2 NWLR (Pt. 858) 521 at 557; Joseph vs. Abubakar (2002) FWLR (Pt.19) 1525 at 1542; Okoronko vs. Chukwueke (1992) 7 NWLR (Pt. 216) 175.
From the brief of argument before this court, and the arguments proffered on issue no. 2 by the learned counsel to Appellants, the counter-claimed special damages against the Respondent were particularized from 1-5. This is however the first stage to enable the court to decide to grant all or part of the claim. The law requires such claimant to establish credible evidence to those particularized claim to give them life. No such evidence is before this court on the claimed special damages. This court therefore is in full agreement with the submission of the learned counsel to the Respondent in reply to the counter claimed special damages of the Appellants at page 12 of their brief, paragraph 5.3, wherein it is stated:-
“By virtue of paragraph 77 of the Appellants’ counter-claim under items 1.2.3.4.5, the Appellants gave particulars of their counterclaim for special damages and averred inter alia as follows: (see pages 77, 72 and 73 of the Record):
“The defendant shall rely on the expert report at trial in proof of their claim for special damages, The Defendants further plead every receipt for the material purchased and supplied for the project and shall also rely on same as proof of their claim for special damages.”
The Appellants under item 5 pleaded the expert report of SHELTER COST ASSOCTATES, Quantity Surveyors and project management consultant and the receipts for materials purchased and supplied for the project. It is noteworthy that Appellants did not lead evidence in support of any of these averments, and as already submitted supra, such averments should be deemed as having been abandoned. See pages 149, 150 of the Records.”
In the absence of any credible evidence before this court in support of the claimed special damages, the findings of the trial court on it, cannot be disturbed.
On the issue of the counter-claim of the 3rd Appellant for the sum of N3million as general damages for false imprisonment between the hours of 5pm to 9.30pm of 1/2/02 at the interrogation room of the General Investigation Department of Nigeria Police, Ikeja. The Claimant (Respondent) told the police that he the 3rd Appellant got Nl.25million from him under false pretences and also an attempt to assassinate him. This was corroborated by the evidence of (DW2) his wife.
The definition of false imprisonment from the learned authors of Clerk & Lindsell on Torts, 14th Edition at page 681 is quite apt in the resolution of this head of claim. The tort of false imprisonment is defined as follows:-
“A false imprisonment is complete deprivation of liberty for anytime however short, without lawful cause. Imprisonment is no other thing but the restraint of s man’s liberty whether it be in the open field, or in the stocks or in the cage in the street, or in a man’s own house, as well as in the common goolie; and in all the places the party so restrained is said to be prisoner so long as he both not his liberty freely to go at all times to all places whither he will without bail or main praise or otherwise. The Prisoner may be confined within a definite space by being put under lock and key or his movements may simply be constrained by the will of another”.
The Respondent in his evidence said he lodged a complaint with the police because he had reasonable and probable cause to do so and that he did so in the belief that he was taking necessary steps to protect lives of both his wife and himself and thereby discharged a public duty.
The trial Judge in his judgment at page 151 of the Records stated:-
“The law will support a person who had good reasons to make a report to the police an offence so long as he wants them to use their own discretion in taking further steps……”
“An action for false imprisonment will not lie against an individual who merely gave information to the police on their initiative to arrest a suspect. There is therefore no shred of evidence adduced by the defendant to show that the Claimant initiated the false imprisonment of the 3rd defendant” .
This court is in agreement with the learned trial Judge’s decision above on the false imprisonment that the Respondent had not, and did not, initiate a false imprisonment against the Appellants. The resolution of this court to issue no. L has a direct effect on this subject. There was indeed a lawful cause which triggered the Respondent’s complaint against the 3rd Appellant to the police. The denial, or the refusal of the Appellants to keep to the terms of their agreement to Exhibit ‘A’ the Memorandum of Understanding with the Respondent. The unilateral action or the use of self help by Appellants provided the fertile ground for the Respondent going to the police. The Respondent
added in his evidence also the threat of safety of his family from the Appellants. The police from the evidence before this court, based on the complaint, effected the interrogation in the discharge of their lawful duties. No claim whatsoever was laid by the Appellants against the police for the hours of interrogation, which liability is now transferred back to the Respondent.
The trial court had the singular privilege of hearing the evidence, evaluating same, and studying the demeanours of the witnesses. There is nothing before this court, to show that it acted wrongly in the discharge of these duties to warrant the interference by this court.
See: Mogaji vs. Odofin (1978) 4 SC 97; Ebba vs. Ogodo (1984) 7 SCNLR 372; Lawal vs. Dawodu (1972) All NLR (Pt. 2) 270 at 286; Audu vs. Okehe (1998) 3 NWLR (Pt.541) 373 at 384.
Also on the appellate court’s attitude to assessment and award of damages by trial court. The law is that an appellate court would not interfere with the award of damages by a lower court unless it has acted on wrong principles and the award constitutes an entirely erroneous estimate. In the instant appeal there is nothing to show that the trial court acted on a wrong principle in its refusal to award the general damages of N3million claimed by the Respondent. This court again will not disturb the finding of the trial court on this.
On the whole therefore, issue no. 2 is resolved by this court against the Appellants and in favour of the Respondent.
In the final analysis, this appeal is unmeritorious, and is hereby dismissed by this court.
The judgment of Ishola J, of the High Court of Lagos State, Ikeja Judicial Division in Suit No. ID/1028/02, delivered on the 16th of September 2005, is hereby affirmed by this court.
Costs of N50,000.00 against the Appellants and in favour of the Respondent.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother DAUDA SIDI BAGE, JCA and lam in complete agreement with his reasoning and conclusion that the appeal is wholly without merit and should be dismissed. I will add a few words.
A clear reading of the record of proceeding shows that the Respondent as Claimant at the trial court indeed adduced evidence to prove his claim that he was entitled to the balance of the sum due under the contract as evidenced by the memorandum of understanding Exhibit A. Whereas the Appellants were not able to discharge the onus of proof which had shifted to them during the course of the trial to prove that the Respondent had not been diligent and was in fact negligent in the discharge of his duties under Exhibit A.
Secondly, the Appellants failed totally to adduce any evidence in support of the counter claim. Pleadings no matter how well couched do not constitute evidence. Parties still need to adduce cogent and credible evidence in proof of their cases. The appeal is without merit and is hereby dismissed. I abide by all consequential orders in the lead judgment.
JOHN INYANG OKORO, J.C.A.: I read before now the Judgment of my learned brother, Bage, JCA just delivered and I agree that this appeal lacks merit and ought to be dismissed. The failure of the Appellants to pay the Respondent his final entitlement of N1,250,000.00 is said to be as a result of the Respondent’s failure or refusal to produce drawings for the project and abandonment of his job for the month of December, 2001 . However, the production of Exhibits F, G and H by the Respondent show a contrary position. The question is, if the Respondent refused to do his work .and also absconded in December, 2001, how come that the Appellants made Exhibits F and H on 19th December, 2001. Exhibits F, G and H are documents showing preliminary negotiations between the Appellants and the Respondent for which the Respondent was offered a fresh contract for the sum of N750,000.00 per month.
It is trite that civil cases are decided on the balance of probabilities. This means that the burden is on the Plaintiff to prove his case, and when the Defendant adduces evidence, the case is then decided on the balance of probabilities. The two sides of the evidence are now put in an imaginary scale and the party in whose favour the scale tilts, will have Judgment entered in his favour. See Benneth Ude Agu v. Maxwell Nnada (2002) 18 NWLR (Pt.798); (2002) 12 SC (pt.1) 173; Mogaji v. Odofin (1978) 4 SC 91; Kaiyaoja v. Egunla (1974) 12 SC 55 and Onuwama v. Ezeokoli (2002) 5 NWLR (pt.760) 353.
It is my view that based on the evidence before the trial court on this issue, the scale of justice in fact tilts in favour of the Respondent. Having regard to the above reason and the fuller ones contained in the lead Judgment of my learned brother, Bage, JCA, I agree that this appeal lacks merit and is hereby dismissed by me. I abide by all the consequential orders made in the lead Judgment, that relating to costs, inclusive.
Appearances
Theophilus Ochonogor For Appellant
AND
Alaba Okupe M. A. For Respondent
