AFRICAN PETROLEUM PLC. V. DAVID ABRORISADE & ANOR (2013)

AFRICAN PETROLEUM PLC. V. DAVID ABRORISADE & ANOR

(2013)LCN/5869(CA)

In The Court of Appeal of Nigeria

On Friday, the 25th day of January, 2013

CA/K/282/2009

RATIO

APPEAL: GROUNDS OF APPEAL: A GROUND OF APPEAL FROM WHICH NO ISSUE HAS BEEN DISTILLED IS DEEMED TO HAVE BEEN ABANDONED

The law is that a ground of appeal from which no issue has been distilled for determination is deemed to have been abandoned. See the case of DAKOLO V. ROWANE DAKOLO (2011) 6 NWLR (Pt. 1272) 22; INEC v. NYAKO (2011) 2 NWLR (Pt. 1262) 439; OHAKA V. EZE (2010) ALL FWLR (Pt. 525) 380.PER ITA G. MBABA, J.C.A

COURT: WHETHER A COURT CAN MAKE AN AWARD OR GRANT A RELIEF OUTSIDE OF WHAT WAS CLAIMED IN THE PLEADINGS
It is the law as submitted by learned Counsel for the Appellant that a court is barred from making award or granting a relief, outside what was claimed in the pleadings and proved by evidence at trial. This is because, being regulated by laws and principles relating to pleadings, and due to the need to be disciplined, predictable and act on evidence before it, the court cannot afford to stray to play the comic role of a “Father Christmas”, who doles out gifts, unsolicited, to whoever he delights to please. See ABENGA V. BENUE STATE JUDICIAL SERVICE COMMISSION (2005) ALL FWLR (Pt. 321) 1327 AT 1337, where this court held as follows;
“It is trite that Courts do not grant relief not asked by the parties. A Court should not and ought not to make a case for the parties different from that put up by parties in their pleadings. A Court has no power to award to a Party what he did not claim. A Court may award less and not more than what the parties have claimed. A fortiori, the Court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a Court of Law is not a charitable institution. Its duty, in civil cases is to render unto every one, according to his proven claim” (Per Mohammed JCA)See also ZOBAMS COMPANY NIG. LTD. V. TOFA GENERAL ENTERPRISES LTD. (2006) ALL FWLR (Pt. 317) 515 at 525 – 526.PER ITA G. MBABA, J.C.A

COURT: EVERY COURT HAS THE INHERENT POWER TO MAKE ORDERS CONSIDERED CONSEQUENTIAL EVIDENCE BEFORE IT
However, every court has inherent powers to make orders considered to be consequential to and arising from the evidence before it, needed to give effect to it decision in a given judgment. ERISI V. IDIKA (1987) 3 NWLR (Pt. 66) 503,
In the case of AMAECHI V. INEC (2008) 5 NWLR (Pt. 1080) 227, the Supreme Court held:
“It is the law even where a person has not specifically asked for a relief from a court, the court has the power to grant such a relief as a consequential order. A consequential order must be one made giving effect to the judgment which it follows. It is not an order made subsequent to a judgment which derails from the extraneous judgment or contains matters. It is settled law that court can order an injunction even if it is not specifically claimed but appears incidentally necessary to protect established rights. See ATOLAGBE V. SHORUN (1985) 4 SC (Pt. 1) 250; 1985 1 NWLR (Pt. 2) 360; OKUPE V. FBIR (1974) 1 NWLR 422; LIMAN V. MOHAMMED (1999) 9 NWLR (Pt. 617) 116.”PER ITA G. MBABA, J.C.A

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ITA GEROGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

AFRICAN PETROLEUM PLC. Appellant(s)

AND

1. DAVID ABRORISADE
2. A.B. COMMIX NIGERIA LTD. Respondent(s)

ITA G. MBABA, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Kaduna State High Court in suit No. KD/Z/78/1999, delivered on 9th April, 2009 by Hon. Justice Mairo L. Mohammed, wherein the learned trial judge entered judgment for the Respondents who were plaintiffs in the suit, that the Appellant was in breach of the lease agreement with the Respondents by not building a petrol filling station on the leased land; that the breach resulted to trespass on the land by strangers.
The claim at the trial court, as per the endorsement on the writ of summons was for:
“(I) The sum of fifty million Naira only (N50, 000,000.00) as general Damages for breach of the sublease Agreement and compensation for loss of his (sic) plot as a result of the Defendant’s deliberate careless and callous conduct.
(II) An order that the Defendant should pay the plaintiffs the sum of N150, 000.00 being revised rent for three years between August, 1996 – August, 1999.
(III) Such further or other orders as the Honourable Court may deem fit to make.”
Of course, the Appellant had counter claimed, blaming the Respondents for Appellant’s failure to take possession of the land.
Appellant filed the Notice and grounds of Appeal on 22nd May, 2009, but later obtained the leave of this court to file Amended Notice of Appeal on 19th January, 2011 wherein he disclosed 4 grounds of appeal, as follows:-
“GROUND ONE
That the learned trial judge erred in law when he found the Appellant liable in damages to the Respondents upon a voidable contract of lease of a piece of land for which the lease agreement was not registered in accordance with the provisions of the law.
PARTICULARS
The facts before the Lower Court revealed that it was the duty of the Respondents to stamp and register the lease agreement (the basis of the contract) with the ministry of Lands and surveys, Kaduna, which they failed to do as required by the Instrument Registration Law of Kaduna State.
GROUND TWO
That the trial judge erred in law when he Ordered the Appellant to release Certificate of Occupancy No. 7936 deposited by the Respondents for payment made to them for fifteen (15) yeans over the subleased land contrary to their claim.
PARTICULARS
(I) It is clear from writ of summon, statement of claim and their witnesses oral testimony adduced at the Lower Court that the Respondents never claimed for release of the Certificate of Occupancy deposited as security but the trial judge went on a voyage of discovery to order for release of same.
(II) The position of law is that a court cannot award a relief or grant a prayer that is not sought by parties in the suit.
GROUND THREE
That the trial judge misdirected himself when he awarded an excessive sum of N1, 000,000.00 (One million naira only) as damages against the Appellant in favour of the Respondents as compensation for the loss they suffered arising from the Appellant’s breach of the sublease Agreement by not building a petrol filling station on the leased land.
PARTICULARS
(I) The trial judge found that Exhibit “10” which is the basis for the claim of N50,000,000.00 (fifty million naira only) by the Respondents was prepared by PW3 for the Plaintiffs, for their own use and at their own request without any reference to, knowledge or consent of the Appellant and therefore it is not bound by same.
(II) The trial judge also found based on uncontroverted evidence that the Respondents reside in Zaria, the leased land in Zaria and therefore the Respondents should have done more by protecting the leased land from strangers and trespassers instead of relying on Exhibit “8” which was not proved to have been delivered to the Appellant, knowing very well that title in the land still resides in them.
(III) The trial judge, having found that the Respondents Exhibited nonchalant attitude towards the protection of the leased land for which title shall revert to them ought not to have awarded any damages in their favour.
GROUND FOUR
(I) That the decision is against the weight of evidence.”
From the Grounds of Appeal, Appellant distilled two issues for determination as follows:
“(1) Whether the Lower Court was right when it awarded a relief that was not sought by parties when it ordered the Appellant to release Certificate of Occupancy No. 7926 to the Respondents contrary to their claim?
(2) Whether the award of N1, 000, 000.00 (one million naira only) to the Respondents by the Lower Court as general damages for breach of contract is not speculative, sentimental, excessive and punitive in view of its findings”
Appellant did not marry any of the issues to any of the grounds of appeal, thereby saddling us with the additional burden of reading through the records, the Amended Notice of Appeal and the Brief to see which issue should relate to which ground of appeal. This is not proper as the duty is that of the counsel either of the Appellant or Respondent, to relate the issue formulated in appeal to specific ground(s) of appeal.
The rule is that only one issue can be distilled from a ground (or grounds) of appeal and no more! See the case of Afribank Nig. Plc. V. Yelwa (2011) All F.W.L.R. (Pt. 585) 299 at 309 – 310. Nwaigwe V. Okeke (2008) All F.W.L.R. (Pt. 431) 843; Oseni V. Bajulu (2010) All F.W.L.R. (Pt. 511) 913.
The Respondents filed their Brief on 13th August, 2012 and the same was deemed duly filed on 2nd October, 2012. They adopted the two issues distilled by the Appellant for the determination of the appeal, and in their arguments, related the 1st issue to Amended Ground 2 of the Appeal and the 2nd issue to the Amended Ground 3 of the Appeal.
A brief facts of the case at the Lower Court shows that in 1981 Appellant entered into a lease agreement with the Respondents over a piece of land in Ungwa Dankali Village, located on Zaria – Kano Express Way, Zaria, for a period of thirty (30) years, at a yearly rent of N5, 575.00, for the first 15 years, A tenancy Agreement (Exhibit 11) was executed therefor. The leased land was to be used to build a petrol filling station, which was to revert to the 2nd Respondent at the end of the lease. By the Exhibit 2, the Respondent were to apply to obtain the consent of the Governor Kaduna State to lease the land to the Appellant.
Appellant claimed that the Respondent failed to obtain the said consent for them (Appellant), which made the Appellant unable to take possession of the land and construct the petrol filling station within the 15 years of the lease. However, the Respondents said they had applied for and obtained the consent of the Governor for the Appellant as per Exhibits 3 and 3a; that the sublease Agreement was to be registered and stamped, but based on the complaint of the Appellant of the delay in registering and stamping the Agreement, and the request to have the sublease Agreement so that the Appellant could process it in good time, the Respondents sent three copies of the sublease Agreement to the Appellant and the Appellant took precession of same.
Despite the sublease, approval or consent of Governor and promise of the Appellant to process the registration and stamping of sublease agreement, Appellant failed to build the petrol filling station.
The Respondents (as plaintiffs) therefore took the action against the Appellant for breach of contract and claimed compensation for loss of the plots of land. Appellants counter claimed for damages, holding the Respondents responsible for the breach of the sublease.
The Lower Court had held for the Respondents and dismissed the counter claim,
This appeal was heard on 14th January, 2013, when the learned counsel on both sides adopted their briefs and urged us, accordingly.
Arguing Issue 1, learned counsel for the Appellant, Abdul-azeez Malik Esq., said that from the totality of the processes filed at the Lower Court by the Respondents, the claim for return of certificate of Occupancy was never sought for, neither did it form part of the relief in the writ of summons, nor in the statement of claim; and it was not in the evidence adduced or in the final address; that it was only in the judgment that the trial judge said:
“The Defendant is to release to the plaintiffs their C of O which it collected as security when it paid 15 years rent advance to the plaintiffs”
(See page 181 of the Records)
Counsel submitted that it is forbidden for Courts to grant relief that is not sought by parties. He relied on the authority of Joseph Hemen Abenga V. Benue State Judicial Commission (2006) ALL FWLR (Pt. 321) 1327 where this court held;
“It is trite that Courts do not grant relief not asked by the parties. A Court should not and ought not to make a case for the parties different from that put up by parties in their pleadings. A Court has no power to award to a party what he did not claim. A Court may award less and not more than what the Parties have claimed. A fortiori, the Court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a Court of Law is not a charitable institution. Its duty’ in civil cases is to render unto every one, according to his proven claim” (Per Mohammed JCA)
Counsel urged us to rely on that authority and set aside the decision of the Lower Court, especially as the Appellant had a counter claim against the Respondents. He also relied on the case of Zobams Company Nig. Ltd. V. Tofa General Enterprises Ltd. (2006) All FWLR (Pt. 317) 515 at 525 – 526.
Finally, Counsel said that a relief to return certificate of Occupancy cannot be sought under the omnibus prayer, as it should be specifically pleaded.
On issue 2, Counsel submitted that for a Court to consider and award general damages for or against any party arising from a breach of contract, such an award must be specifically provided for by the terms of the contract; that it was not revealed anywhere in the pleadings and evidence of the Respondents that they would be entitled to award of damages in the event of breach of contract in Exhibit II.
Counsel further submitted that the award of One Million Naira (N1, 000, 000.00) in favour of the Respondents as general damages is punitive, sentimental and excessive, having regards to the evidence adduced. He referred us to the Supreme Court case of G. Chitex Industries Ltd. V. Oceanic Bank International Nig. Ltd. (2005) All FWLR (Pt. 276) 610 at 623, where it was held:
“When considering damages arising from the breach of contract, there is no room for damages which are merely speculative or sentimental, unless these are specifically provided for by express terms of the contract. In the instant case, the Appellant’s claim of N3, 500,000.00 (three million five hundred thousand naira only) for loss of credit facilities, goodwill, profit and future prospects not having been specifically spelt out at the time of the contract, is merely sentimental and speculative. There was no mention of any loss of credit facility, goodwill, profit and future prospects at the time of the contract. The loss, if any, was thus, not within contemplation”
Relying on that authority, and on the evidence of PW1 (Respondents) at page 130 of the Records, counsel said the evidence in support of the general damages was a mere speculation; that the trial court was sentimental in its decision to award the 1 million naira general damages; that the award was contrary to the finding of the trial court in page 179 of the Record, which was
“it is also in evidence that plaintiffs resides (sic) in Zaria the leased land in Zaria and the plaintiffs still have interest in the leased land as they have title of the leased land and the leased land is to revert back to them at expiry of the sublease.”
Counsel further queried whether the damages claimed by the Respondents, and what were awarded were not too remote as it was not the direct consequences of the said default as concluded by the Lower Court. He proceeded to answer in the positive, saying that the endence of PW1, as well as the records were clear that the Respondents had two plots of land one covered by Local Government certificate and the other (leased to the Appellants) covered by statutory certificate; that it was on Record that the Respondents initiated an action against Zaria Local Government and were paid damages for trespass on the other plot by strangers, who were believed to have done so on the authority of the Local Government; that the Respondents should have taken due steps to sue the trespassers on the leased land in order to avoid any loss, knowing that the leased land would revert to them at the end of the contract of lease.
Counsel submitted that it is trite that where a plaintiff fails to take all reasonable steps to mitigate or avoid the loss which he has sustained, consequent upon the defendant’s wrong, and if he fails to do so, he cannot claim damages for any loss which he ought to have reasonably avoided. Counsel relied on HALSBURY’S LAWS OF ENGLAND, 4 Edition, Vol. 12(1) paragraph 1041 r 1042 and on the case of R.C.C. Ltd. V. R.P.C. Ltd (2006) All FWLR (Pt. 265) 1020 at 1041 – 1046.
He urged us to hold for the Appellant and set aside the award of one million naira to the Respondents, saying that the award by Lower Court was unconscionable, skewed and exploitative. He relied on the holding of Akaahs JCA (as he then was) in the NITEL PLC V. GAMBO A. MARK AYU (2008) ALL FWLR (Pt. 411) 904 at 922, where he said:
“The award of damages should not be wind – fall or an amount doled out as a charity. It should not make the plaintiff opulent in an out of tuned fashion.”
He urged us to allow the appeal,
The Respondents’ counsel, Gabriel Didam Esq. (who settled the brief of the Respondents), oh issue 1, conceded that a court can only grant a substantial relief asked for by the plaintiff, but submitted that a court of law is competent and has jurisdiction to grant consequential orders. He submitted that the Respondents’ reliefs, as per the writ of summons and the statement of claim, were for general damages, compensation and arrears of rent, as well as an omnibus prayer, as the 3rd Relief; that the Respondents’ case was that they had lost their land (site for the petrol station) due to illegal activities of trespassers while the Appellant was supposed to be in possession; that they asked for general damages to compensate them for the loss they suffered as a result of the Appellant’s negligent conduct; that the trial judge, on page 178 of the Records, found that the Appellant had breached the sublease Agreement by not building the filling station, and by its negligent conduct, 3rd parties or strangers trespassed into and took over the plaintiffs’ land; that the court also found that the Appellants (sic) (meant to say Respondents) were entitled to a right of reversion; that, however, in assessing the damages to be awarded the trial court held that Appellants (sic) (meant to say Respondents) ought to have mitigate their loss by stopping the trespass by strangers (see page 179). He said that the court also held that the land was not totally lost, as Appellants (sic) (meant to say Respondents) can redeem same by seeking redress against the trespassers after retrieving their Certificate of Occupancy (page 180)
Counsel also referred to page 177, where he said the trial court had found that the Respondents had asked the Appellant to return the said certificate of occupancy in a bid to determine the sublease agreement, but the Appellant refused to release same. He relied on page 177 and on Exhibit 7.
Counsel submitted that the trial judge was right to order the return of the Certificate of Occupancy, on finding that the Appellant had adamantly held onto the said Certificate; that there was no appeal against that finding; he submitted that the court can grant a consequential order to give effect to its judgment; that it was only logical for that order to be made, in view of the findings that the land was still redeemable on the retrieval of the Certificate of Occupancy from the Appellant. Counsel further argued that the Respondents could not have asked for the return of the Certificate as they had asked for compensation for loss of their land and the petrol station, but the trial court thought otherwise,
He submitted that a consequential order need not be claimed by a party to be granted, as it is granted at the discretion of court, based on evidence and the circumstance of each case. He relied on the case of EMMA MADUABU V. ONYIMBAH E.C. RAY (2006) ALL FWLR (Pt, 300) 1671 at 1740; he asserted that consequential order must be made to give effect to judgment made. He relied on the case of OSUJI V. EKEOCHA (2009) ALL FWLR (Pt. 490) 614 at 647; AMAECHI V. INEC (2008) ALL FWLR (Pt. 407) 1 at 119; SAVANNAH BANK PLC V. CBN (2009) ALL FWLR (Pt. 481) 939 at 1007.
Finally, on that point, counsel submitted that consequential orders are made for the just determination of a case, and in the interest of justice; that the trial Court was perfectly in order by making the order to return the Certificate of Occupancy to the Respondents; that the Appellant cannot be heard to complain about this, having not appealed against this particular finding of court. He relied on the case of OGUNLEYE V. OKE (2009) ALL FWLR (Pt. 409) 552 at 590 – 591.
He urged us to resolve the issue against the Appellant.
On issue 2, Respondents’ Counsel submitted that Appellant was not appealing against the finding that the sublease Agreement was breached by them, having abandoned the Amended Ground one of the appeal, which attacked the sublease by not framing any issue from it, or any argument on it. He said that Exhibits 2 and 11 embodied the sublease Agreement entered into by the parties for the sole purpose of constructing a petrol filling station on the leased land by the Appellant, and to manage same for 30 years and thereafter the land and development would revert to the 2nd Respondent. He relied on paragraph 2(iii) on page 3 of the Exhibit 11.
Counsel said that the Appellant had breached the agreement reached, by failing to build the petrol filling station, alleging that the Respondents failed to obtain consent of Government to sublet and to register and stamp Exhibit 11; Counsel said that allegation only showed the bad faith of the Appellant as such claims were lies. He relied on Exhibit 3 (Application for the consent to sublet) and Exhibit 4 (the consent obtained) for the sublease, to debunk the allegation of the Appellant.
On the failure to register and stamp the Exhibit 11, the Respondents submitted that by Exhibit 4 (paragraph 3 thereof) the Appellant had requested to have the sublease Agreement back, and had promised and assured the Respondents that it (Appellant) would process the document in good time; that by Exhibit 6, Appellant admitted taking possession of 3 copies of the sublease; that it was very clear from Exhibit 4 and 6, that Appellant later undertook to register and stamp Exhibit 11, thereby relieving the Respondents of that Responsibility.
Therefore, Counsel submitted, it was not open to the Appellant to complain of non registration and stamping of the Exhibit as the reason it could not take possession of the land to fulfill its obligation of building the petrol station as agreed.
Counsel further submitted that an attempt by the Respondents to terminate the sublease Agreement was resisted by the Appellant on the ground that the Respondents were not entitled to demand for the return of the Certificate of Occupancy, because the signed lease Agreement was binding. He relied on Exhibit 7 and said that when the Respondents noticed the trespass on their land sublet to the Appellant, they wrote Exhibit 8 (through their Counsel) to the Appellant, demanding for the outstanding rent and for stoppage of the illegal activities/development on the land, but Appellant ignored them and refused to reply to the letter, Counsel submitted that it was the breach of the contract and the negligent conduct by the Appellant that led to the trespass on the land by strangers, as found out by the trial court.
Counsel relied in the evidence of the Respondents, as per PW1 and PW3 and Exhibit 10 (Bill of quantities on the estimated cost of the petrol filling station) to justify their claim for N50, 375, 000.00 as damages, but said that the trial judge awarded only 1 million naira which he said was even too low.
Respondents’ counsel tried to complain against the award of the one million naira to them despite, according to him, the fact that their claim and evidence were not challenged. But such complaint by the Respondents cannot be entertained as it has no basis in this appeal, the Respondents having not cross appealed against the judgment!
Counsel further argued that the award was not excessive, sentimental or speculative; that it was not even enough to compensate the Respondents to reasonably restore them to the position of no breach. He added that the claim of the Respondents was not on loss of credit facility, goodwill, profit and/or future prospect, as applied in the case of CHITEX INDUSTRIES LTD. V. OCCANIC BANK (SPRA) relied upon by the Appellant. Counsel also referred us to the evidence of PW2 on pages 144 – 146, and said that the same remained unchallenged and unshaken; that the land over which the Respondents sued the Zaria Local Government and were paid N700, 000.00 compensation was different from the land sublet to the Appellant, the subject matter of this suit and of statutory Right of Occupancy No. 7926. He said that the land remained in possession of the Appellant after the making of Exhibit 11; that if the Appellant had constructed the petrol filling station on the land, there would not have been any trespass by strangers.
He urged us to resolve the issue against the Appellant and dismiss the Appeal.
RESOLUTION OF ISSUES
I had earlier held that the Appellant did not relate their issues to the grounds of appeal. The Respondents however stepped in to save the situation and spared the court the troubles of roaming through the folio, and speculating as to which issue related to which ground of appeal, when they related the issues to grounds of appeal. The two issues raised by the Appellants were, therefore, distilled from the 2nd and 3rd grounds of Appeal, respectively.
In keeping with the rules governing formulation of grounds of appeal and issues therefrom, the 1st and 4th grounds of Appeal in the amended Notice of Appeal filed by the Appellant on 19th January, 2011 are therefore deemed abandoned, as no issue was formulated on them for determination. The law is that a ground of appeal from which no issue has been distilled for determination is deemed to have been abandoned. See the case of DAKOLO V. ROWANE DAKOLO (2011) 6 NWLR (Pt. 1272) 22; INEC v. NYAKO (2011) 2 NWLR (Pt. 1262) 439; OHAKA V. EZE (2010) ALL FWLR (Pt. 525) 380.
Appellant’s grounds 1 and 4 are therefore, hereby struck out.
In his issue 1, Appellant queried, whether the Lower Court was right when it awarded a relief that was not sought by parties, when it ordered the Appellant to release Certificate of Occupancy No. 7926 to the Respondents contrary to their claim. Appellant argued that that was not one of the reliefs sought by the Respondents, and submitted that the court cannot give what was not prayed for by a party and cannot make a case for a party.
The Respondents’ reply was that the order to return the Certificate of Occupancy to the Respondents was consequential order, which a court has power to make, and should make, to give effect to its decision. Respondents further added that the issue of the Certificate of Occupancy arose in the evidence and that it was logical to order the return of same to the Respondents, upon it becoming clear that the Respondents were entitled to revertal rights over the land, after the court’s finding that Appellant had breach the contract of sublease of the land.
Of course, the Appellant’s position is that such order, to return the Certificate of Occupancy to the Respondents, cannot be a consequential order as it cannot be sought under an omnibus prayer, but should be specifically claimed and pleaded.
It is the law as submitted by learned Counsel for the Appellant that a court is barred from making award or granting a relief, outside what was claimed in the pleadings and proved by evidence at trial. This is because, being regulated by laws and principles relating to pleadings, and due to the need to be disciplined, predictable and act on evidence before it, the court cannot afford to stray to play the comic role of a “Father Christmas”, who doles out gifts, unsolicited, to whoever he delights to please. See ABENGA V. BENUE STATE JUDICIAL SERVICE COMMISSION (2005) ALL FWLR (Pt. 321) 1327 AT 1337, where this court held as follows;
“It is trite that Courts do not grant relief not asked by the parties. A Court should not and ought not to make a case for the parties different from that put up by parties in their pleadings. A Court has no power to award to a Party what he did not claim. A Court may award less and not more than what the parties have claimed. A fortiori, the Court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a Court of Law is not a charitable institution. Its duty, in civil cases is to render unto every one, according to his proven claim” (Per Mohammed JCA)
See also ZOBAMS COMPANY NIG. LTD. V. TOFA GENERAL ENTERPRISES LTD. (2006) ALL FWLR (Pt. 317) 515 at 525 – 526.
However, every court has inherent powers to make orders considered to be consequential to and arising from the evidence before it, needed to give effect to it decision in a given judgment. ERISI V. IDIKA (1987) 3 NWLR (Pt. 66) 503,
In the case of AMAECHI V. INEC (2008) 5 NWLR (Pt. 1080) 227, the Supreme Court held:
“It is the law even where a person has not specifically asked for a relief from a court, the court has the power to grant such a relief as a consequential order. A consequential order must be one made giving effect to the judgment which it follows. It is not an order made subsequent to a judgment which derails from the extraneous judgment or contains matters. It is settled law that court can order an injunction even if it is not specifically claimed but appears incidentally necessary to protect established rights. See ATOLAGBE V. SHORUN (1985) 4 SC (Pt. 1) 250; 1985 1 NWLR (Pt. 2) 360; OKUPE V. FBIR (1974) 1 NWLR 422; LIMAN V. MOHAMMED (1999) 9 NWLR (Pt. 617) 116.”
The Respondents have argued that the order made by the learned trial court was consequential, and meant to give effect to the judgment of the court. Was that so?
The Respondents had referred us to page 178 of the Record of Appeal, where the learned trial judge found that the Appellant had breached the sublease Agreement; and that the Respondents would be entitled to a right of reversion of the land at the end of the sublease. Those findings remain unassailed as Appellant never appealed against them (findings of the trial court).
There was evidence that the Respondents had obtained the consent of the Governor to donate the Certificate of Occupancy to the Appellant for the purpose of the lease agreement. Evidence on both sides pointed to this, as canvassed by the Respondents. The learned trial court also made a finding to the effect that:
“In view of the behaviour of the defendant, the plaintiffs asked for a return of their Certificate of Occupancy in an attempt to determine the sublease agreement but the defendant refused to release same, insisting that the sublease agreement entered into by the parties was subsisting and binding. I refer to exhibit 7 from the defendant to the plaintiffs” (see page 177 of the Records)
Again, this finding was not challenged by the Appellant as there is no appeal on it.
It is therefore obvious that upon the trial court holding that the Appellant had breached the sublease Agreement, which meant that the Respondents were entitled to right of reversion over the land, the reasonable thing for the trial court to do was to order the return of the Certificate of Occupancy which had earlier been donated to the Appellant by the Respondents, as the basis of the surrender of the Certificate of Occupancy to the Appellant had been removed. That order was therefore consequential and necessary to give effect to the judgment of the Lower Court.
I therefore resolve issue 1 against the Appellant.
Issue two was:
“Whether the award of N1, 000, 000,00 (One Million Naira Only) to the Respondents by the Lower Court as general damages for breach of contract was not speculative, sentimental, excessive and punitive in view of its findings”
Appellant had answered this in the positive, maintaining that the award was not specifically provided for in the contract; that for a court to consider and award general damages for or against any party arising from a breach of contract such an award must be specifically provided for by the terms of the contract. He relied on the case of G. CHITEX INDUSTRIES LTD. V. OCEANIC BANK INTERNATIONAL (NIG.) LTD. (2005) ALL FWLR (Pt. 276) 610 to say that the award made by the Lower Court was speculatory, sentimental, excessive and punitive.
To this, the Respondent argued that the 1 million Naira granted was even too low and not compensatory enough as they had sought N50, 000, 000.00 general damages; that the trial court did not even consider the loss of the petrol filling station by them (Respondents), which was assessed at over N50, 000, 000.00 by a Quantity Surveyor; that the award was restricted to the loss of the land and the breach of the agreement; that the case of G. CHITEX IND. LTD. V. OCEANIC INT. BANK (SUPRA) was not applicable as the Respondents’ claim was not for loss of profit, credit facility, goodwill and future prospects.
Before making the award of 1 million naira to Respondents, the learned trial judge relied on the case of NITEL PLC V. AYU (2008) ALL FWLR (Pt. 411) 904 at 922. Paragraphs B – C which said:
“Plaintiff should be awarded only such damages as will fairly compensate him for the loss that he has actually sustained. The award should not be a wind fall or an amount doled out as charity, it should not make the plaintiff opulent in an out of tune fashion” (page 180 of the Record)
He then pronounced the judgment as follows:
“This court therefore enters judgment for the plaintiffs against the defendant, and order as follows:
(1) the defendant is to pay the plaintiffs the sum of N1, 000, 000,00 as general damages for breach of the sublease agreement and compensation for the loss of their plot as a result of the defendant’s deliberate, careless and callous conduct.
(2) Defendant is to pay the plaintiffs rent for 3 years from 1996 – 1999 at the rate of N5, 572.00 making total sum of N14 725.00 as parties have not agreed on a reviewed rent to be paid.
(3) The defendant is to release to the plaintiffs their Certificate of Occupancy which it collected as security when it paid 15 years rent advance to the plaintiffs.”
That shows that the trial judge was clear in his mind what the N1, 000, 000.00 general damage was meant to assuage, namely:
“For breach of the sublease agreement and compensation for the loss of their plot of land as a result of the defendant’s deliberate, careless and callous conduct”
Of course, the Appellant did not appeal against the findings of the Lower Court that it (Appellant) had breached the contract of the sublease, deliberately, carelessly and callously, by failing to build the petrol filling station as agreed by the parties in Exhibit 11. And, having abandoned the 1st and 4th grounds of appeal, the Appellant was no longer questioning the evidence of the Respondents and how the trial court arrived at that decision – that Appellant had breached the sublease agreement, entitling the Respondents to the compensation.
There is nothing in the decision of the trial court to show or suggest that the award of 1 million Naira to the Respondents, as general damage, was founded on speculation, sentiment, loss of credit facility or profit. It cannot also be said to be excessive or punitive in the circumstances.
Issue relating to award of general damages has always been left in the exclusive discretion/province of the trial judge, who heard the case and assessed the mannerism of the parties and witnesses, and also considered the claims before the court. An appellate court is not permitted to interfere with the award made by the trial court, except the same was not done judicially and judiciously, taking into consideration the acceptable parameters for assessing award of general damages.
In the case of NIGERIAN BOTTLING COMPANY PLC V. OKAFOR (2012) ALL FWLR (Pt. 647) 766 at 779, this court (per EKO JCA) held:
“where a trial court, in its discretion, has proceeded to award damages, the appellate court is reluctant to exercise such power and will not do so unless it is established that the trial court proceeded upon a wrong principle of law or that the award was clearly an erroneous estimate. The Court of Appeal will not intervene merely because it might feel disinclined to agree with the amount awarded as amount which it might itself have awarded….”
See also the case of H.A.S. NIG. LTD. V. KEAZOR (2011) 13 NWLR (Pt 1264) 3201 and OCEANIC SECURITIES INTERNATIONAL LTD V. BALOGUN (2012) ALL FWLR (Pt. 643) 1880 at 1908 to 1909, where it was held:
“The appellate court cannot interfere in the award of damages made by a trial court except:
(a) The Lower Court acted under a wrong principle of law, or
(b) Acted in disregard of applicable principles of law
(c) Was in misapprehension of facts, or
(d) Took into consideration irrelevant matters and disregarded relevant matters while considering the award, or
(e) Where injustice will result if the appellate court does not act, or
(f) The amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages….
(OYENEYIN V. AKINKUNGBE (2010) 1 SCNJ 101; U.B.N. V. ODUSOTE BOOK STORES LTD. (1995) 9 NWLR (Pt. 421) 558; SOLANKE V. ATIBOLA (1969) 1 NMLR 253 REFERRED TO) (PP. 1908 – 1909, PARAS. F – A)”
I have not been able to fault the award of N1, 000,000.00 by the trial court to the Respondents, on the alleged claims of being speculative, sentimental, excessive and/or punitive or at all. That allegation has not been established and is not borne out in the evidence.
I therefore resolve this issue against the Appellant and, on the whole, hold that the appeal is without merit and liable to be dismissed. It is accordingly dismissed, as I affirm the judgment of the trial Court. Appellant shall pay the cost of this appeal assessed at N30, 000.00 (thirty thousand naira), to the Respondents.

ABDU ABOKI, J.C.A: I have the privilege of reading before now the lead judgment of my learned brother ITA G. MBABA JCA which has just been delivered. I would like to make some contribution for the purpose of emphasis on certain issues raised in this appeal.
It has been argued on behalf of the appellant that the award made by the lower Court was not specifically provided for in the contract, and that for a Court to consider and award general damages for or against any party arising from a breach of contract, such an award must be specifically provided for by the terms of the contracts. The Court was referred to the case of G. Chitex Industries Ltd v. Oceanic Bank International (Nig) Ltd (2005) All FWLR (pt. 276) 610.
Learned counsel to the appellant submitted that the award made by the lower Court was speculative, sentimental, excessive and punitive
The respondents before the lower Court claimed N50, 000,000.00 as general damages but were only awarded the sum of N1, 000,000.00. Learned counsel to the respondents had contended that the N1, 000,000.00 awarded by the lower court was too low and not compensatory enough. He argued that the lower Court did not even consider the loss of the petrol filling station by the respondents which was assessed by a Quantity Surveyor at N50, 000,000.00. He further argued that the award was restricted to the loss of land and breach of agreement. Learned counsel argued that the case of G. Chitex Industries Ltd v. Occeanic Bank International (Nig) Ltd (2005) All FWLR (pt. 276) 610 referred to by learned counsel to the appellant is not on all four with the present case. He maintained that that case relates to claimed for loss of profit, credit facility, goodwill and future prospects, where as this case relates to a breach of lease agreement with the respondents that has resulted in trespass on the land by strangers.
General Damages unlike specific damages are not quantifiable, it is purely at the discretion of the trial Court which heard all the parties and is in a better position to easily determined what would amount to a reasonable compensation to a party entitle to such an award. See Framo Nig. Ltd. v. Shaibu Dawodu (1993) 3 NWLR (pt. 281) 372.

The discretionary power of the trial Court must be exercise judicially and judiciously. The trial Court in making its award, must consider the surrounding circumstances of the case before it. See Salau v. Araba (2004) All FWLR (pt. 204) page 88.
The trial Court must also take judicial notice of the decline in the purchasing power of the naira over the years and the economic reality of the country, while making an award. See ASESA v. Ekweme (2001) 10 NWLR (pt. 720) page 97.
It is most improper for a Court to grant an award greater than what has been claimed in the writs of summons or the statement of claim. However, under certain circumstance the Court may award less amount than what was claimed. See NCHC Ltd v. Owoyele (1988) 4 NWLR (pt. 90) 588,
Ekpenyong v. Nyong (1975) 2 SC 71 at 80, SCOA v. Abumchukwu (1979) 4 SC 51.

Where the claimed in damages is for total destruction of property the measure of damages will be the value of the property at the time of its destruction. See:
ASESA v. Ewenem (2001) FWLR (pt. 51) 2034;
Shell Petroleum Dev. Coy of Nig. Ltd v. Ambah (1999) 2 SCNJ 152.
An appellate court will not interfere with an award made by a lower Court unless:
(a). The trial Court acted under a mistake of law.
(b). The Court has acted in disregard of principles.
(c). The trial court has acted under misapprehension of facts.
(d). The trial court has taken into account irrelevant matters or failed to take into account relevant matters.
(e). where injustice will result if the appeal court does not interfere.
(f). where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damage. See
Aniekan Amos Peters V. Asst, Insp. General of Police (2001) FWLR (pt. 49) page 1449.
Umoetuk v. Union Bank Plc (2001) FWLR (pt. 81) 1849.
Nwobodo v. A.C.B Ltd. (1998) 6 NWLR (pt. 464) 658.
Obi Okudo v. I.G.P & others (1998) 1 NWLR (pt. 533) 336.
Odogu v. A. G. Federation (1996) 6 NWLR (pt. 450) 508.
U.B.N Ltd. v. Odusote (1995) 9 NWLR (pt. 421) 558.
Ziks Pres Ltd. v. Ikoku 13 WACA 188.
Where a party seeks to attack an award of general damages made by a trial court at the appellate court, such a party must satisfy the appellate Court that the trial Court had violated the general principles laid down for the grant of such an award. It is only then that an appellate Court can step in, to interfere with the award.
In the instant case the lower Court was not in breach of any of the principles laid down for the award of general damages. In fact the lower court awarded N1, 000,000.00 to the respondent instead of the N50, 000,000.00 they claimed. The amount awarded by the lower Court is far less than the amount claimed. The lower Court give its reasons for making the award of N1, 000,000.00 thus:
“…For breach of the sublease agreement and compensation for the loss of their plot of land as a result of the defendants deliberate, careless and callous conduct… ”
The appellant had not made any useful case to support its suggestion that the N1, 000,000.00 general damages awarded by the lower Court was found on speculation, sentiments, loss of credit facilities or profit or that it is excessive or punitive and has also not given any cogent reasons or facts as to why this Court should interfere with the award of general damages made by the lower Court.
It is for these reasons and the fuller reasons advanced in the lead judgment that I also hold that there is no merit in this appeal. I abide by the consequential orders contained in the lead judgment.

HABEEB A.O. ABIRU, J.C.A: I have had the privilege of reading in draft before now the lead judgment just delivered by my learned brother, Mbaba, JCA. His Lordship has meticulously considered and ably resolved the issues in contention in this appeal. I agree with the reasoning and conclusions. I only want to add some comments for emphasis.
The facts of this case and the issues for determination in this appeal were ably set out in the lead judgment. The claims of the Respondents, as plaintiffs, before the lower Court against the Appellant, as defendant, were for:
i. The sum of fifty Million Naira only (N50, 000,000.00) as general damages for breach of the Sublease Agreement and compensation for loss of his (sic) plot as a result of the Defendant’s deliberate careless and callous conduct.
ii. An order that the Defendant should pay the Plaintiffs the sum of N150, 000.00 being revised rent for three years between August 1996 – August 1999.
iii. Such further or other orders as the Honorable Court may deem fit to make.
These claims were predicated on an allegation of breach of contract i.e. breach of a Sublease Agreement entered into between the parties sometime in 1981 over a piece or Parcel of land lying and being in Ungwa Dankali Village and located on Zaria – Kano Expressway Zaria. It was not in contest between the parties that the Sublease Agreement was valid and subsisting. The law is that where there is a contract that is both valid and enforceable and one of the parties thereto defaults in the performance of the contract, the other party has one of two options opened to him and these are: to regard the contract as still subsisting and sue for specific performance of the contract or for an injunction where the obligation is a negative one; or to regard the contract at an end and sue for damages for the breach of it – Anaeze V. Anyaso (1993) 5 NWLR (Pt 291) 1, Liman V. Mohammed (1999) 9 NWLR (Pt 617) 116, Mmegwa V. Texaco (Nig) Ltd. (2005) 18 NWLR (Pt 957) 279, Chabasaya V. Anwasi (2010) 10 NWLR (pt. 1201) 163. The Respondents herein adopted the second option and sued for damages for breach of contract.
It was also not in contest that the Respondents were the holders of a certificate of occupancy evidencing their ownership of the said piece or parcel of land, the subject matter of the Sublease Agreement, and that when the Appellants made an advance Payment of rents for fifteen years on the Sublease Agreement, the Respondents handed over the certificate of occupancy to the Appellant as security, for re-assurance Purposes. The substance of the Sublease Agreement was that the Appellant would erect a petrol station on the parcel of land and use same for a period of thirty years paying rents to the Respondents during the period and after which the land and structure thereon would revert to the Respondents. This action was commenced after over fifteen years of the Sublease Agreement without the Appellants having done anything on the land. In the judgment on appeal, the learned trial Judge found thus:
“The plaintiffs have therefore established their claim against the defendant that there exist a valid sublease agreement which the defendant breached by not building a filling station on the leased land and this breach and or neglect on the part of the defendant resulted in third party or strangers trespassing into or taking over the plaintiffs land by building illegal structures on same.” (See page 178 of the records)
The learned Trial Judge also found that the Appellant had refused to return the certificate of occupancy of the Respondents insisting that the Sublease Agreement was still subsisting and binding despite repeated demands. The Appellant did not contest any of these findings on this appeal. The learned Trial Judge proceeded therefrom to award damages against the Appellant for breach of contract and made an order directing the Appellant to return the certificate of occupancy to the Respondents.
The first complaint of the Appellant on this appeal is that by making an order directing the return of the certificate of occupancy to the Respondents, the learned Trial Judge granted a prayer not sought by the Respondents; that the prayer was not one of the claims prayed for by the Respondents in their reliefs before the lower Court. Counsel to the Respondents conceded that they did not specifically pray for an order directing the Appellant to return the certificate of occupancy to the Respondents but submitted that the essence of the order was to give effect to the holding of the lower Court that the Appellant was in breach of the Sublease Agreement and as such it properly qualified as a consequential order that the learned Trial Judge was empowered to make.
It is not in doubt that a court possesses the residual power and jurisdiction to grant consequential orders. The question is – what qualifies as a consequential order? In Inakoju V. Adeleke (2007) 4 NWLR (pt 1025) 423, the Supreme Court stated that a consequential order is one giving effect to a judgment or one directly traceable to or flowing from the judgment or order duly prayed for. The Court stated that it is essentially an order which would make the principal order effectual and effective or which necessarily flows as being incidental to the principal order. In other words, it is an order that has a bearing on the main relief or reliefs claimed by a parry. In Eagle Super Sack (Nig) Ltd V. African Continental Bank Plc (2006) 19 NWLR (Pt 1013) 20, the Supreme Court again stated that a consequential order is an order that follows as a result of an earlier order, which can be referred to for the purpose as the main order and it is appurtenant to the main order. In Ladoke Akintola University of Technology V. Ogunwobi (2006) 4 NWLR (Pt 971) 569, the Court of Appeal stated further that a consequential order is an order which flows necessarily, naturally, directly and consequentially from a decision or judgment delivered by a court in a cause or matter. The Court said that it is an order that arises logically and inevitably by reason of the fact that it is perforce obvious and patently consequent upon the decision given by the court.
The next question is – whether the order of the learned Trial Judge directing the Appellant to return the certificate of occupancy to the Respondents necessarily, naturally, directly and consequentially flowed from the decision of the Court that the Appellant was in breach of the Sublease Agreement? And the simple answer is, yes. It is obvious that the nature of the breach of the Sublease Agreement committed by the Appellant, as found by the learned trial Judge, was one that went to the root of the agreement and deprived the Respondents of substantially the whole benefit which it was intended that they should obtain from the agreement. The legal effect of such a fundamental breach, as found by the lower court, coupled with the award of damages therefor is that the Sublease Agreement had been discharged; the obligations of the parries under the agreement determined and the agreement ceased to have legal efficacy – Haido v. Usman (2004) 3 NWLR (pt 859) 65, Obajimi v. Adedili (2008) 3 NWLR (pt. 1073) 1, Nwaolisah v. Nwabufoh (2011) 14 NWLR (pt 1268) 600. This being so, it is only logical, and a necessary consequence flowing therefrom, that the certificate of occupancy handed to the Appellant in furtherance of the Sublease Agreement be returned to the Respondents.
It must be said that the altitude of the Appellant on this appeal is rather strange. The Appellant did not challenge the finding of the lower Court that it was in breach of the sublease Agreement but it is complaining about the order made to give effect to the said finding. In other words, the Appellant is not contesting that the sublease Agreement was discharged and that the obligations of the parties under the agreement were determined but it wants to retain the certificate of occupancy of the Respondents over the parcel of land covered by the Sublease Agreement. The question to be asked is — for what purpose? What will the Appellant gain if this Court were to have resolved the first issue for determination in this appear in its favour? Absolutely nothing! It is obvious that the contention of counsel on this first issue for determination was either motivated by ego or the Counsel to the Appellant did not think through the contention. Either way, it cannot be a good reason to pursue an appeal. Every appeal must have an effective and effectual end goal in sight, otherwise it is a useless and an unnecessary waste of scarce judicial time.
The second complaint of the Appellant on this appeal is against the award of N1, 000,000.00 by the lower court as damages for the breach of the sublease Agreement. The Appellant says that the amount was speculative, sentimental, excessive and punitive in the circumstances of this case. I am in total agreement with the stance of my Lord, Mbaba, JCA, in lead judgment that the Appellant did not present this Court with any reason to interfere with the sum awarded by the lower court. It is not the habit of an appellate court to interfere with the award of damages made by a lower court just for the sake of interference Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt 1238) 512 and Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR (Pt 1256) 574.
It is for these reasons, and the more detailed reasons contained in the lead judgment, that I also dismiss this appeal and affirm the judgment of the lower Court. I abide the consequential orders in the lead judgment.