ABDUL LASISI AYANGOKE & ANOR v. KEYSTONE BANK LIMITED (2013)

ABDUL LASISI AYANGOKE & ANOR v. KEYSTONE BANK LIMITED

(2013)LCN/6561(CA)

In The Court of Appeal of Nigeria

On Monday, the 2nd day of December, 2013

CA/K/294/2006

RATIO

JURISDICTION OF THE FEDERAL HIGH COURT

Jurisdiction is donated by statute to a court, and to determine whether the Federal High Court has jurisdiction to hear a particular case, reference is always had to the parties and the subject matter of the claim of the Plaintiff. This is because, being a specialized court, the jurisdiction of the Federal High Court revolve around matters relating to the Federal Government and/or its agencies, especially touching on pecuniary interests of the same. See the case of ABIEC v. KANU (2013) 13 NWLR (PT.1370) 69; UMARU v. ALIYU (2011) 5 NWLR (PT.1241) 600; SLB CONSORTIUM v. NNPC (2011) 9 NWLR (PT. 1252) 317; NNPC v. ORHIOWASELE (2013) 13 NWLR (PT. 137) 211. Per ITA G. MBABA, J.C.A.

WHETHER AN ISSUE CAN BE RAISED OUTSIDE THE DECISION OF THE LOWER COURT ON APPEAL

By law, no party is permitted to raise any issue on appeal, outside the decision considered or contemplated in the judgment appealed against. See the case of OSSAI v. FRN (supra); SHETTIMA v. GONI (supra); OSADARE v. LIQUIDATOR N.P.M. LTD (supra).
Moreover, both the parties and the appellate Court are bound by the Records of Appeal, duly compiled and transmitted from the Lower Court, for the consideration of the appeal, when it comes to what transpired at the Lower Court. See the case of OROK v. OROK (2013) LPELR-20377(CA); GARBA v. OMOKHODION (2011) 15 NWLR (Pt. 1269) 145 at 180, where the Supreme Court said:
“A record of appeal proceeding, having been duly compiled and transmitted has to be authenticated and certified as prescribed by Law. Records of appeal is binding on the Court, the parties and their Counsel … As such no Court has the jurisdiction to go outside the records to draw conclusions which are not supported by the Court.” Per ITA G. MBABA, J.C.A.

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA G. MBABA Justice of The Court of Appeal of Nigeria

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

Between

1. ABDUL LASISI AYANGOKE
2. SAMUEL AYANTUNDE Appellant(s)

AND

KEYSTONE BANK LTD Respondent(s)

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the final decision of the Kaduna State High Court in suit No. KDH/KAD/292/2001, delivered by Hon. Justice Zailani on 26/7/2005, whereof his lordship granted an award of only N100,000.00 in favour of the Appellants against the Respondent. Appellant being dissatisfied with the judgment, particularly, the award, filed this appeal on 8/10/05, as per the Notice of appeal on pages 40 to 41 of the Records, disclosing 3 grounds of appeal. Appellants later filed amended Notice of Appeal with the leave of this court, on 22/05/13, with the following 3 grounds of appeal;
“GROUND ONE: ERROR IN LAW
The Honourable Judge erred in law when he awarded only N100,000.00 as general damages when circumstance of the case warrant more.

PARTICULARS OF ERROR
a) The Appellants witness one and two stated what their business had suffered a set back.
b) The evidence of PW1 and 2 was not challenged by the Respondent.
c) The trial court rightly held that the act of the Respondent was wrong.

GROUND TWO: ERROR IN LAW
The Honourable Judge erred in law when he failed to grant the Appellant’s reliefs 2 and 3 in paragraph 15 of the amended statement of claim when the entire Appellant’s witnesses had proved their case on the balance of probabilities.

PARTICULARS OF ERROR
a) The Appellant’s PW1 and PW2 testified without any challenge to their testimonies.
b) The Respondent could not dislodge the evidence of Appellants witnesses.
c) By the evidence of the Appellant’s witnesses, the Appellants are entitled to general damages in paragraph 15 of the amend statement of claim.
d) The trial court granted only relief 1 in paragraph 15 of the amended statement of claim.

GROUND THREE
The judgment is against the weight of evidence.”

They sought a review, upward, of the award of N100,000.00; the award as general damages in the judgment of the trial court and to grant reliefs 2 and 3 in paragraph 15 of the amended statement of claim.

Appellants filed their Amended Brief of argument on 15/1/2013, with the leave of court and distilled a lone issue for determination, thus:
“Whether the award of N100,000.00 was adequate as damages in the circumstances of this case.”

The Respondent filed Amended Respondent’s Brief on 4/10/12 and adopted the Issue for determination by the Appellants for the determination of the appeal.

The Respondent also appealed, as per their Appellant’s Notice of Appeal filed on 6/10/2005 (pages 42-46 of the Records), disclosing seven (7) grounds of Appeal.

The Respondent was the actual loser of the case at the Lower Court but because Appellants’ notice of appeal appeared to be the first in time, the Respondent’s appeal was treated as Cross-appeal. The Respondent obtained the leave of Court to file Amended Notice of Cross-appeal, as follows:
“GROUND ONE
The Honourable trial court erred in law when it failed to consider and pronounce upon the issue of its jurisdiction to entertain the Cross-Respondents’ action and that occasioned a miscarriage of justice.

PARTICULARS
i. In paragraph 15 of the amended Statement of claim, the Cross-Respondents averred that “the publication and advert amount to infringement and assault on the Plaintiffs’ intellectual property and personality………”
ii. Counsel to the Cross-Appellant had, in his address before the trial court raised the issue of the jurisdiction of that court to entertain the action relating to infringement of intellectual property.
iii. Counsel to the Cross-Respondents responded to the issue.
iv. In its judgment, the trial court neither considered nor pronounced upon the issue of its jurisdiction raised by the Cross-Appellant’s counsel and responded to by the Cross-respondents’ counsel in their respective addresses.
v. Since the issue touches the jurisdiction of the trial court, it was/is a fundamental question which the trial court ought to resolve.

GROUND TWO
The Honourable trial court lacked the jurisdiction to entertain the Cross-Respondents’ action as constituted.

PARTICULARS
i. The pivot of the Cross-respondents’ action is that the alleged acts of the Cross-Appellant amounted to infringement and assault on their intellectual property and personality.
ii. Actions or complaints relating to infringement of intellectual property are actions or complaints connected or associated with copyright, patent etc.
iii. Actions or complaints relating to an infringement of intellectual property are within the exclusive jurisdiction of the Federal High Court.

GROUND THREE
The Honourable trial court erred in law when it awarded N100,000.00 as damages to the Cross-Respondents when there was nothing before the court to back the award.

PARTICULARS
i. The monetary claims of the Cross-Respondents were:
a. compensation in the sum of N1,500,000.00 “jointly and severally” to be paid by the cross-Appellant to the Cross- Respondents for the publication.
b. N400,000.00 “jointly and generally” for the cost of litigation and for shock, embarrassment and injury….
ii. The Cross-Respondents neither pleaded nor proved the nature of the compensation they sought.
iii. The trial court found that evidence adduced by the Cross-Respondents on the damages that they suffered as a result of the loss of patronage and other losses related to special damages which they had failed to prove.
iv. The Cross-Respondents did not adduce evidence to show that they suffered other forms of damages, other than special damages, as a result of the Cross-Appellant’s alleged action in order to assist the court in assessing appropriate damages.
v. The trial court did not state how it assessed what it awarded to the cross-Respondents as damages.
vi. The award of N100,000.00 as damages to the Cross-Respondents was extraneous to the evidence before the trial court.

GROUND FOUR
The Houourable trial court erred in law by entering judgment against the Cross-Appellant and for the Cross-Respondents when the Cross-Respondents had failed to discharge the burden of proof placed upon them.

PARTICULARS
i. Evidence adduced before the trial court did not show that the Cross-Appellant’s calendar 2000 was used for advert.
ii. The Cross-Respondents did not prove that the Cross Appellant made profit as a result of the use of the Cross-Respondent’s photograph in the 2000 calendar.
iii. The Cross-Appellant did not snap the Cross-Respondents.
iv. There was evidence that the Cross-Respondents posed for the shot, and DW2 who snapped them did so with their consent and knowledge.

GROUND FIVE
The judgment is against the weight of evidence adduced before the Honourable trial court.

GROUND SIX
The Honourable trial court erred in law when it overruled the objection of the Cross-Appellant on the admissibility of exhibit P.1, and went ahead to rely on the exhibit in arriving at its decision thereby occasioning a miscarriage of justice.

PARTICULARS
i. Exhibit P.1 is the photograph of the Cross- Respondents allegedly snapped by the Cross-Appellant.
ii. The Cross-Appellant was not given any opportunity to inspect the photograph before it was tendered.
iii. The Cross- Appellant did not agree to the admission of the photograph.
iv. In tendering the photograph, and in admitting it in evidence, the Cross-Respondents and the court failed to satisfy the provisions of the High Court (Civil Procedure) Rules of Kaduna State.
v. The Cross-Respondents did not show that the original of exhibit P.1 (i.e. the negative) was in the possession or control of the Cross-Appellant or its agent so as to make the exhibit admissible as secondary evidence.

GROUND SEVEN
The entire proceedings, including the judgment, of the Honourable trial court are invalid or amount to a nullity having been conducted and/or delivered in contravention of the High Court (Civil Procedure) Rules of Kaduna State and the Constitution of the Federal Republic of Nigeria, 1999.

PARTICULAR
i. Throughout the proceedings, including the taking of evidence of all the witnesses and judgment, the Honourable Judge sat in his Chambers,
ii. On 26th July 2005 when the Honourable trial court delivered its judgment in this case, the Presiding Honourable Judge sat and delivered the judgment in his Chambers.
iii. The Chambers of the Honourable Judge is not an ‘open court’.
iv. There was no direction whatsoever for not delivering the judgment in open court.”

The Respondent/Cross-Appellant obtained the leave of this court to file Amended Cross-Appellant’s Brief, which was filed on 4/10/12, and Amended Cross-Appellant’s Reply Brief also on 4/10/12, Cross-Appellant distilled 4 issues for the determination of the Cross-Appeal as follows:
1) “Whether the lower court had the jurisdiction to entertain the action of the Cross-Respondent as constituted (Ground 2).
2) Whether, in the circumstances of the case before it, it was not wrong for the lower court not to resolve the question of its jurisdiction to entertain the action of the Cross-Respondent.
(Ground 1)
3) Whether the Cross-Respondents were entitled to judgment and the award of the sum of N100,000.00 as damages (Grounds 3, 4 and 5)
4) Whether the entire proceedings of the lower court, including the judgment, amount to a nullity, (Ground 7)”

The Cross-Respondent filed a preliminary objection to the Cross-Appeal on 15/01/13, picking quarrel with grounds 1 to 5 and 7 of the Amended Notice of Cross-Appeal; that they were incompetent, for offending Order 3 rule 2 (2), (3) and (4) of Court of Appeal Rules 2002 (now Order 6 Rule 2 (2) and (3) of the 2011 Rules). They also filed their Cross-Respondents’ Brief on 15/01/13, wherein they argued the preliminary objection on pages 2 to 9.

On the Cross-Appeal, the Cross-Respondent, formulated 2 Issues for determination:
1) Whether issue of jurisdiction was joined by the parties for the lower court’s consideration.
2) Whether the trial court was right to have given judgment in favour of the Cross-Respondents.”

Of course, the Cross-Appellant filed an Amended Cross-Appellant’s Reply Brief on 4/01/12, wherein the preliminary objection was tackled as well as other Issues of law envisaged in the Cross-Respondents’ Brief. The appeal was heard on 4/10/13 when parties adopted their said briefs.

On the main Appeal, the Appellant’s Counsel, O. J. Opawale Esq., who settled the brief, submitted that the trial court had rightly declared that the acts of the Respondent in publishing the Appellants picture was wrong having done so without their (Appellants’) consent; but that the Court was wrong when it held that the claim for the sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) for the publication and N400,000 (Four Hundred Thousand Naira) cost for the litigation, shock, embarrassment and injury suffered were specific damages and, needed be specifically particularized and so refused to grant same.

Counsel therefore queried – whether the other two reliefs in paragraph 15 (2) and (3) are all general damages or special damages. He then proceeded to argue to show the distinction between general damages and special damages and the applicable rules or principles in assessment of damages in respect of each of the two. He submitted that general damages are implied by law and need not be specifically pleaded or proved by evidence, unlike special damages which requires the exact opposite and must be strictly proved. He relied on the case of INCAR MOTORS v. BENSON (1975) 3 S.C. 117; SHELL PETROLEUM v. TEBO vii (2005) 4 SCNJ 39

Counsel submitted that the lower court erred in refusing to grant the sum claimed by the Appellants when all were general damages and declaratory: He relied on the case of CALABAR EAST CO-OPERATIVE v. IKOT (1999) 12 SCNJ 321 at 335; He said that the N100,000.00 awarded as general damages was ridiculously low and should be reviewed upwards; that the trial court did not give the breakdown of how he arrived at the final figure of N100,000.00 as against the intendment of the decision in NEPA v. INAMETI (2002) FWLR (PT. 130) 1695 at 1723-1724; EKPENYONG v. NYANG (1975) 2 S.C.; ADEMOLA v. SHODIPO (1989) 5 NWLR (PT. 121) 239.

He argued that Appellants had averred, specifically, as to the nature of the publication made without their consent, loss and reduction of their customers, boosting of the Defendants Business, circulation of the calendars in various towns, embarrassment and shock and the refusal of the Respondent to apologize or to show remorse to the Appellants; that evidence was led to prove, strictly, the said averments, without contradiction or challenge by the Respondent; that there was enough proof of injury suffered by the reasonable damages.

He urged us to re-evaluate the evidence on the injury suffered and hold that the award of N100,000.00 by the trial court was too low and to review it upward, pursuant to Section 16 of the Court of Appeal Act, LFN 2004. He also relied on the case ADIKE v. OBIARA (2002) FWLR (PT. 131) 1907; FIRST BANK OF NIG. PLC. v. EXCEL PLASTIC (2004) FWLT (PT. 160) 1624 at 1656.

The Respondent’s Counsel, WOLE AGUNBIADE ESQ, in his response, submitted that Appellants’ submission as regards the failure of the trial court to grant the prayers in paragraph 15(2) and (3) of their Amended statement of claim was of no moment; as the lone issue formulated for the determination of the appeal is confined to the inadequacy of the sum of N100,000.00 awarded to them as general damages; that all the argument of the Appellants ought to flow from the issue formulated. He relied on the case of OKOTIE-EBOH v. MANAGER & 2 ORS. (2004) 18 NWLR (PT.905) 242 at 283.

Counsel added that the contention by the Appellants that the trial court ought to have granted their claims (the sum of N1.5 Million and N400,000.00 respectively), and all the submissions relating to the definitions of general and special damages are therefore outside the ambit of the lone issue for determination of this appeal. He urged us to strike out paragraphs 4.07, 4.08, 4.09, 4.11, 4.12, 4.15, 4.16, 4.17, 4.18 and 4.22 of the Appellants’ brief as they deal with matters outside the ambit of the issue for determination of the appeal.

On the issue of adequacy of the N100,000.00 awarded as general damages, counsel submitted that it is trite that the quantum of general damages is always at the discretion of trial court and the Appellate court is often slow to interfere with the exercise of such discretion except upon substantial and compelling reasons. He relied on UNION BANK OF NIGERIA LTD v. ODUSOTE BOOKS-STORES LTD (1995) 12 SCNJ 175 at 202.

Counsel submitted that the Appellants have failed to show that the award of N100,000.00 was based on a wrong finding or that the award was unreasonable in comparison with the greatest possible loss, which resulted from the use of their photographs in the Respondents 2000 calendar; that the trial court had rightly found that the appellants had not shown how their business was affected after the publication or what it was before their publication; that Appellants have failed to specify with particularity why the award of N100,000.00 was low and how it should be enhanced.

He argued that having regard to the principles of law on the award of general damages and the evidence adduced, the award of N100,000.00 general damages was not inadequate, as the Appellants were to be awarded such sum as would fairly compensate them for the actual loss, injury or damages, sustained by them. He urged us not to interfere with the award made by the lower court, and relied on the case of DAHIRU & ANOR. v. KAMALE (2005) 9 NWLR (PT. 929) 8 at 55. He urged us to dismiss the appeal.

RESOLUTION OF THE ISSUE
A Brief facts of the case before the trial court shows that Appellants and two other persons, were drummers, and the respondent had caused their pictures to be snapped and published in its 2000 calendar (EXHIBIT P1), without the consent and authority of the Appellants and the said calendar was meant to advertise and promote the banking business of the Respondent. The calendar was distributed to the Respondent’s numerous customers in Lagos, Kano, Kaduna, Ibadan and other places.

Appellants brought the action, as per the paragraph 15(2) and (3) of the Amended statement of claim, claiming a declaration that the snap and publication of their photographs in form of advertisement on the calendar, without their knowledge and consent was wrong and damnable, N1.5 Million, jointly and severally, for the publication and N400,000.00 as cost of litigation and for shock, embarrassment and injury suffered by them jointly as a result of the said publication.

Of course, the lower court awarded N100,000.00 to Appellants for the wrongful use of their pictures without their consent.

The Respondent’s Counsel was right in his observation that Appellants’ argument relating to the failure of the Court below to grant their prayers in paragraph 15 (2) and (3) of the Amended statement of claim and the issue whether or not the same were special or general damages are clearly outside the scope of the issue for determination of this appeal.
The lone issue distilled from the three grounds of appeal was “whether the award of N100,000.00 was adequate as general damages in the circumstances of the case.”

I think Appellants, therefore, misfired, when they argued in paragraph 4.10 of the Amended Brief that the issue was on whether their other two reliefs in paragraph 15 (2) and (3) were all general or special damages, that is, the claim for N1.5 Million for publication and N400,000.00 for cost of litigation, shock, embarrassment and injury suffered. In their Amended statement of claim, Appellant had claimed as follows (pages 15 and 16 of the Records):
“1. A declaration that the snapped publication and circulation of the Defendant’s photograph in form of advertisement on the Plaintiffs’ year 2000 calendar without the Plaintiffs’ knowledge, consent and/or compensation was wrong and damnable.
2. A compensation in the sum of N1,500.000.00 (One Million, Five Hundred Naira) jointly and severally to be paid by the Defendant to the Plaintiffs for the said publication.
3. AN ORDER compelling the Defendant to pay the sum of N400,000.00 (Four Hundred Thousand Naira) to the Plaintiffs jointly and generally for the cost of this litigation and for shock, embarrassment and injury suffered by them jointly as a result of the said publication.
AND for such other orders that the Court might deem it necessary to make in the circumstances of this case.”

The rules governing arguments of appeals is trite, that appeals are argued on issue(s) formulated on the ground(s) of appeal and appellant is not permitted to wonder outside the confines of the issue(s) so distilled in arguing the appeal. See the case of OSSAI FRN (2012) LPELR-19669 (CA); (2013) 13 WRN 87, where we held:
“The law is trite that appeal – the ground(s) thereof and the issue(s) there-from must be founded on a valid complaint, arising from the judgment on appeal… a valid complaint in an appeal must arise from the judgment appealed against, challenging a live issue or ratio decidendi in the judgment of the Lower Court.” See the case of SHETTIMA v. GONI (2011) 18 NWLR (Pt. 1297) 413 at 440.
Of course, appeals are argued on the issue(s) formulated from the grounds of appeal. And where no issue is formulated on a given ground of appeal, the said ground is deemed to have been abandoned. See the case of OSADARE AND ORS v. LIQUIDATOR NIGERIA PAPER MILLS LTD. & ANOR (2011) LPELR-CA/IL/91/2009; (2012) ALL FWLR (Pt. 652) 1784; SHETTIMA v. GONI (2011) 18 NWLR (Pt. 1279) 413.

The 2nd ground of appeal by the Appellant had complained against the failure of the trial Court to grant the Appellants’ reliefs 2 and 3 in paragraph 15 of the Amended statement of claim, which Appellants also failed to categorise either as general or special damages. But they failed to distill any issue from the said ground of appeal. The same therefore ceased to form the issue for consideration in this appeal.

Issues relating to the determination of the quantum of general damages is always within the confines of the discretion of the trial Court, which had access to all the necessary parameters used to determine the case. The Appellate Court has no power to interfere or to impose its own mind, even if it thinks it would have decided it differently. An appellate Court can not interfere with the award made by the trial Court, unless,
(1) where the trial Court acted under a mistake of law or
(2) acted under a misapprehension of facts or
(3) acted in disregard of principles or
(4) took into account irrelevant matters or failed to take into account relevant matters
(5) where injustice would result, if the appellate Court does not interfere
(6) where the amount is exceedingly high or ridiculously low;
(7) where the award has failed to take into consideration the value of the Naira. See the case of ST.B LTD v. ANUMNU (2008) ALL FWLR (Pt. 399) 409 at 430; UBA LTD v. ODUSOTE BOOKSHOP LTD (supra); UWA PRINTERS NIG. LTD v. INVESTMENT TRUST Co. LTD. (1988) NWLR (Pt. 92) 110.

Appellants argument has not established any of the above circumstances, to justify an interference with the discretion of the learned trial judge, as they (Appellants) merely said that the award of one Hundred Thousand Naira (N100,000.00) as general damages was ridiculously low, without supplying the particulars to substantiate the same and/or to impeach the exercise of the discretion by the trial Court.

It was the findings of the Lower Court that the plaintiffs did not prove their allegation of losing clients and patronage because of the publication by the Respondent. The Court said:
“The plaintiffs, however, have not led evidence to support the special claim, in fact, they made general averments without particulars to support them. They also gave evidence to the effect that they lost patronage as people considered them rich … The result is that one is not sure which of the category of the plaintiffs’ claims should the N1.5 Million compensation fall within – special or general damages? Or what part of the claim is general or special? (page 38 of the Record)

The Court said further:
“In fact, closely considered, the plaintiffs evidence cannot support any claim of special damages. PW1, inter alia, testified that despite the use of their photograph, they still perform at ceremonies and make money. This was partly confirmed by PW2 when he testified that they attend ceremonies.
The plaintiffs have not shown how their business was before and how it was affected after the publication.” (pages 38 – 39 of the Records).

With such findings, which have not been specifically appealed against, there is no way of faulting the award of N100,000.00 made by learned trial Court to the Appellants, as that informed the discretion of the trial Court, in the circumstances of the case, There is nothing to show that that discretion by the trial Court was not exercised properly.

I therefore resolve the issue against the Appellants and hold that the Appeal is lacking in merit and ought to be dismissed. It is accordingly dismissed, with N30,000.00 cost against the Appellants to the Respondent.

CROSS-APPEAL
The Cross Respondent had filed a Notice of Preliminary Objection to challenge the competence of the grounds of the Cross-Appeal, on the following grounds:
“1. That grounds 1, 2, 3, 4, 5 and 7 of the Notice of Amended Cross-Appeal are incompetent in law while ground 6 for abandonment as they all offend order 3 Rule 2 (2), (3) and (4) of court of Appeal Rule 9 (sic) 2002 (now order 6 Rule 2 (2) and (3) court of Appeal Rule 2011) and therefore should be struck out.
2. That grounds 1, 2, 3, 4 and 7 are repetitive, narrative, argumentative, highly conclusive and therefore vague and ought to be discountenanced and all the grounds are not in compliance with order 6 Rule 3 of the Court of Appeal Rule 2011.
3. That grounds 1, 2 and 7 create confusion because of their vagueness and lack of precision and clarity as they did not disclose any reasonable ground nor, state the sections of the law or particular rules which were contradicted.
4. That grounds 1 and 2 does (sic) not form an issue before the trial Court for consideration as no decision or judgment of the trial Court was based on it and the issue formulated from ground 7 is not borne out of the record of proceedings.”

The Cross-Respondent had advanced arguments in support of the Preliminary Objection in pages 2 to 8 of the Amended Cross-Respondents’ Brief and the Cross-Appellant had replied to same, as per the Amended Cross-Appellant’s Reply Brief, filed on 4/10/12.

Counsel for Cross-Appellant admitted abandoning ground 6 of the Cross-Appeal, but stated that abandonment of a ground of appeal is not an issue for filing a Notice of Preliminary Objection. I agree with the learned counsel for the Cross-Appellant that abandonment of a ground of appeal, or failure to distill an issue for determination from it is not a matter for filing a notice of preliminary objection, as the Respondent can always draw the attention of the court to the fact of such abandonment in the respondent’s brief or orally, while arguing the appeal, or the court, on its own, can pronounce on such abandonment and strike out the abandoned ground(s) See the case of NIGERIAN POSTAL SERVICES v. IRBOK NIGERIA LTD (2006) 8 NWLR (PT.982) 323 at 335.

I have also perused the grounds 1, 2, 3, 4, 5 and 7 of the Cross-Appeal on which the preliminary objection predicates. Apart from the fact that grounds 1 and 2 appear to be repetitive of the complaints therein, that is, issue of jurisdiction, and grounds 3 and 4 too are repetitive of the complaint of alleged lack of basis for the N100,000.00 general damages awarded, 1 cannot find any reason to support the other complaints of the Cross-Respondents against the grounds 1, 2, 3, 4 and 5 of the Appeal.
Of course, I do not think repetition of the complaints in grounds of appeal can constitute sufficient reason(s) to strike out such grounds of appeal, since appeals are argued, not on the grounds, but on the issues distilled from the grounds. See the case of OSADARE v. LIQUIDATOR NIGERIA PAPER MILL LTD. (supra). And it is easy to collapse the repeated grounds of appeal into one issue for the argument of the appeal, just as the Cross Appellant has done is this Cross-Appeal by formulating issue 1 from the 1st and 2nd grounds of appeal and issue 2 from grounds 3, 4 and 5.
I hold that the said grounds 1, 2, 3, 4 and 5 are properly raised, the repetitions, notwithstanding.

Ground 7 alleges that the entire proceedings, including the Judgment of the trial court are invalid and amount to nullity having been conducted and/or delivered in contravention of the High Court (Civil Procedure) Rules of Kaduna State and the 1999 Constitution. The particulars of the ground of appeal allege that the entire trial (taking of evidence and judgment) took place in the Chambers of the Judge, not in the ‘open court’. With such particulars, I do not see how that ground of appeal can be said to be vague or lacking in precision and clarity. The issue of the trial offending the Constitution or the Court Rules, I think, cannot be taken under preliminary objection.

I think it will be in the interest of justice to hear the Cross-appeal on the merits. Accordingly, I dismiss the Preliminary Objection.

Arguing the Cross-Appeal, issue one thereof, the Cross-Appellant submitted that since the fulcrum of the case of the Cross-Respondent, as highlighted in paragraph 15 of the Amended statement of claim, was that the publication of their photographs amounted to an infringement and assault on their intellectual property and personality, the trial Court had no jurisdiction to entertain the action. Counsel relied on the Black Law Dictionary 8th Edition page 824 for the definition of the word intellectual property. He also relied on Osborn’s Concise Law Dictionary, 8th Edition page 181.

He submitted that the Federal High Court has exclusive jurisdiction to entertain any matter connected with intellectual property, relying on section 251 (1) (f) of the 1999 Constitution. He also relied on section 4 (3) of the 1999 Constitution, saying that intellectual property is a matter within the Exclusive Legislative List and, consequently, only the National Assembly can legislate on it. He relied on the case of AYMAN ENTERPRISES LTD v. AKUMA INDUSTRIES LTD & ORS (2003) 12 NWLR (Pt. 836) 22 at 44 – 45; PETROJESSICA ENTERPRISES LTD v. LEVENTIS TECHNICAL Co. LTD. (1992) 6 SCNJ (Pt. 1) 154.

On issue 2, the Cross-Appellant submitted that it was incumbent upon the Lower Court to resolve the question of jurisdiction to entertain the action. He cited authorities including NDUKA v. EZENWWAKU & ORS (2001) 6 NWLR (Pt. 709) 494; UBN v. NWAOKOLO (1995) 4 SCNJ 93; IROLO & ORS v. UKA & ANOR (2002) 14 NWLR (Pt. 786) 195 at 225.

On issue 3, the Cross-Appellant’s Counsel submitted that Cross-Respondents were not entitled to judgment and the award of the N100,000.00 as damages; that the trial Court found that the evidence of DW2 was acceptable and that DW2 snapped the Cross-Respondents with their consent; further more, that the trial Court found that the Cross-Respondents did not lead evidence to support their claim for special damages, that is, loss of patronage and business as a result of the publication by the Cross-Appellant; that having found no basis to award special damages, the Lower Court ought not to have awarded the general damage, especially as the Court did not find that any of the claims of the Cross-Respondents fell under general damages. He relied on the case of SHELL PETROLEUM DEV. CO. LTD. v. CHIEF G.B.A. TIEBO VII & ORS (2005) 9 NWLR (Pt. 931) 439 at 470, where Oguntade, J.S.C. held:
“The issue in this appeal is whether a Court can award general damages in place of Special damages. The answer is ‘no’. Where a plaintiff is unable to prove special damages, his case crumbles and a trial judge cannot compensate him by way of general damages. This is because he has not proved the special damages he claimed.”
See also ROCKONOH PROPERTY CO. LTD. v. NITEL PLC (2001) 14 NWLR (Pt. 733) 468 at 510.

Counsel further submitted that the trial Court, having not found that the Cross-Respondents had proved that they suffered any injury as a natural consequence of the use of their photograph by the Cross-Appellant, it lacked the basis to award general damages in the case.

Counsel argued that the Cross-Respondents did not make any claim for the failure of the Cross-Appellant to contact them (Cross-Respondents) before the use of their photographs to publish the calendar and so it was in appropriate to award the general damages on that basis; that the Cross-Respondents did not claim general damages. He relied on YAHAYA v. CHUKWURA (2002) 3 NWLR (Pt. 753) 20 at 39.

On issue 7, the Counsel for Cross-Appellant submitted that where proceedings are conducted in chambers, not in the open Court, the whole proceedings become a nullity; also that the delivery of judgment in the chambers vitiates the entire proceedings. He relied on the case of OVIASU v. AVIASU (1973) 1 ALL NLR (Pt. 2) 75; NAB LTD v. COMEX (1999) 6 NWLR (Pt. 608) 648; SALAWU v. ADZA (1997) 11 NWLR (Pt. 527) 14. Counsel also relied on section 36 (1) (3) of the 1999 Constitution on the need to take Court proceedings and judgment in the open Court, or in the public. He also found Support in Order 47 Rule 2 of the Kaduna State High Court (Civil Procedure) Rules, 1987. He urged us to hold that the entire proceeding and judgment were a nullity, having not been conducted in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and the Kaduna State High Court (Civil Procedure) Rules 1987. He relied on NIGERIA ABAB BANK LTD v. BAIN ENGINEERING NIGERIA LTD (1995) 9 SCNJ 147 AT 156.

Counsel urged us to resolve the issues in favour of the Cross-Appellants and allow the Cross-Appeal.

Arguing their issue one, the Cross-Respondents’ Counsel submitted that, though they had pleaded in paragraph 15 of the Amended statement of claim that
“The said publication and advert amount to infringement and assault on Plaintiffs’ intellectual property and personality since they were not compensated and were not consulted.”

No evidence was led on the pleading, and that issues were not joined on that point. He argued that any paragraph of pleadings on which no evidence is led goes to no issue as such averment is deemed abandoned.

On the issue of the proceeding and judgment being conducted in the Chambers of the learned trial judge, counsel for the Cross-respondent submitted that there is no support for that claim in the Records of Appeal and that there is nothing to show that the judgment has occasioned any miscarriage of justice. He relied on the case of IROKO v. UKA (2002) 12 NWLR (PT. 786) 195 at 225.

On Issue 2, the Cross-Respondents’ Counsel submitted that the evidence by the Cross-Respondents that Cross-Appellant made the publication without their (Cross-Respondents) approval or consent, was accepted by the trial court. He reproduced the relevant evidence of PW1 and PW2 on the point and said that Cross-Respondents’ claim were all in general damages; he added that general damages are implied by law and need not be specifically pleaded or proved by evidence. He relied on the case of HARSAALIC IND. LTD v. USANG (2003) FWLR (PT.149) 1563, where it was held:
“It is trite law that general damage is implied by law and need not be specifically pleaded. General damages is such a loss which flows naturally from the defendant’s act. It arises by inference of law and need not be proved by evidence. It suffices if it is generally averred. INCAR MOTORS v. BENSON (1975) 3 S.C. 177.”

Counsel urged us to resolve the issues against the Cross-Appellant and dismiss the Cross-Appeal.

RESOLUTION OF THE CROSS-APPEAL
The 1st and 2nd Issues for determination by the Cross-Appellant are actually related, being complaint touching on the jurisdiction of the trial court to entertain the suit and the need to have disposed of issue challenging its jurisdiction the moment it was raised. I shall therefore take them together.

Cross-Appellant’s main contention on the issue of jurisdiction was that, because paragraph 15 of the amended statement of claim alleged that “the publication and advert amounted to infringement and assault on the plaintiffs’ intellectual property…,” the same made the case to be a matter within the exclusive jurisdiction of the Federal High Court, going by Section 251(1) (f) and Section 4 (3) of the 1991 Constitution of the Federal Republic of Nigeria. Though the Cross-Respondents were not forthcoming with any tangible answer to this issue, I do not think the Cross-Appellant really wanted to be taken seriously by that argument, which simply lifted a paragraph of the Cross-Respondents’ pleading and attempted to make a case out of it for the Cross-Respondents, to deny the trial court jurisdiction to hear the case.

In the case of LADO v. CPC (2011) 18 NWLR (PT.1279) 689 at 736, the Supreme Court said:
“It is the claim of a Plaintiff as evidenced in the writ of summons and statement of claim that determines the jurisdiction of the Court. Where, however from the totality of the pleadings of both parties and the evidence adduced to establish same, it becomes obvious that the court has no jurisdiction with regards to the subject matter of dispute or that the claim in reality, cannot come within the statutory jurisdiction of the court, the court will take into account the totality of the facts pleaded by the parties and evidence adduced to establish the same in determining whether the court had jurisdiction or not. The question becomes: from the issues as joined in the pleadings, does the court have jurisdiction?

The Cross-Respondents’ case, as seen from the Amended statement claims (earlier reproduced in this judgment), was not one for determination of intellectual property or property right, but a simple claim of damages for wrongful publication and use of their photographs by the Cross-Appellant, without due permission or authority, and none of the parties is the Federal Government of Nigeria or any of its agencies. I do not see how the matter should concern the Federal High Court that is why I think the Cross-Appellant was not serious in raising that issue.

It is, however, the requirement of law that once issue of jurisdiction is raised, the Court has a duty to consider it and dispose of same, as the entire hearing can amount to an effort in futility, if ignored. See NNPC v. ORHIOWASELE (2013) 13 NWLR (PT. 1371) 211 at 224; ADESEUN v. ILAKA (2012) 9 WRN 133; ECOBANK NIG. PLC v. INTERCONTINENTAL BANK PLC (2012) 5 NWLR (PT. 1293) 219 at 234.

On Issue 3, whether the Cross-Respondents were entitled to judgment and the award of N100,000.00 as damages, the Cross-Appellant’s Counsel had argued that the Cross-Respondents were not able to sustain the claim for special damages, and, by their pleading, did not specify any claim as general damages; that the court even made findings to that effect, thus it was wrong to award N100,000.00 to the Plaintiffs as general damages, when the claim for special damages had failed. He relied on the case of SHELL P.D.C. LTD. v. TIEBO VII (Supra).

I think it is a wrong appreciation of the case of SHELL P.D.C. LTD. v. TIEBO VII [Supra], to argue that a claim for general damages cannot succeed simply because that of special damage failed. There are different standards and principles for establishing each of the two claims. While special damages must be, specifically, pleaded and strictly proved, it is not so with general damages which is implied and need not even be pleaded, nor proved, and can be awarded, once seen as flowing naturally from the decision of the Court, or consequential to the decision. See the case of INCAR MOTORS v. BENSON (1975) 3 S.C. 177; HARSAALIC IND. LTD. v. USANG (2003) FWLR (Pt. 139) 1563 and UBN PLC v. ATABULE (2012) 7 WRN at 19-20, where the Supreme Court said:
“It is settled law that general damages are always made as a claim at large. The quantum need not be pleaded and proved. The award is quantified by what in the opinion of a reasonable person, is considered adequate loss or inconvenience which flows naturally, as generally presumed by law from the act or conduct of the defendant. It does not depend upon calculation made and figure arrived at from specific items. See ODULAJA v. HADDAD (1973) 11 S.C. 357; (1973) 8 NSCC 616; (1973) 1 ALL NLR 191; LAR v. STIRLING ASTALDI LTD (1977) 11-12 S.C. 53 AND OSUJI v. ISIOCHA (1989) 3 NWLR (Pt. 111) 623; (1989) 6 S.C. (Pt.11) 59”

Though the learned trial judge had held that the plaintiffs were not able to support their claim for special damages, and one was not sure which category their claim for N1.5 Million belonged – special or general damages, that could not vitiate the award of N100,000.00 as general damages to them, upon the Court finding that the Cross-Appellant was liable for publishing and using the pictures of the plaintiffs (Cross-Respondents) in Cross-Appellant’s 2000 calendar, without the consent of the Cross-Respondents, who had a right to be contacted to give consent to the use of their photographs.

I think such award flowed naturally, and did not require to have been pleaded and proved, specifically, as one would a special damage. The quantum, too, was at the discretion of the trial Court.

On the 4th issue which alleged that the proceedings and the judgment of the trial Court were a nullity, because they were conducted in the judge’s chambers, not in the open Court, as required by the Constitution, learned Counsel for the Cross-Respondents had submitted that the Cross-Appellant has not shown anything on the Records of Appeal to support that allegation – that the proceedings were taken in chambers, or that the judgment has occasioned any miscarriage of justice.

As rightly argued by the learned Counsel for the Cross-Respondents, I have closely studied the Records of Appeal, particularly, pages 23 to 34, which carry the proceedings at the hearing of the suit and the address of Counsel as well as pages 35 to 39 which was the judgment thereof, I have not seen anything to suggest that the proceedings of the Court were conducted in the chambers of the judge and not in the open Court.

It is difficult to understand how and why the Cross-Appellant came up with such unfounded allegation, which is completely outside the scope of the judgment appealed against, as the issue was never raised at the trial Court and so was never considered in the judgment.

As it is, the Cross-Appellant, who caused the Records of Appeal to be transmitted to this Court for the appeal, has not faulted any part of it by raising any error or omission and so cannot be allowed to import an issue, extraneous to the Records, into its argument of the appeal.

I therefore resolve all the issues in the Cross-appeal against the Cross-Appellant and hold that the Cross-Appeal is without merit and ought to be dismissed. It is accordingly dismissed with Thirty Thousand Naira (N30,000.00) cost to the Cross-Respondents.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read in advance the judgment of my learned brother Mbaba, J.C.A., in the main appeal and cross-appeal filed by the parties herein. I agree that the main appeal and the cross-appeal are lacking in merits and ought to be dismissed. Accordingly, the same are hereby dismissed by me and I abide by the order as to costs made in respect of them.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ita Mbaba, J.C.A. His Lordship has ably considered and resolved the issues in contention in this appeal and cross-appeal. I agree with the reasoning and abide the conclusions reached therein. I have nothing more to add.

Appearances

O. J. Opawale Esq., with him Vincent Soligbo Esq., for the Appellants/Cross-Respondent.For Appellant

AND

Wole Agunbiade Esq., with him Y. E. Ugo – Okoro Esq., and A. A. Salisu Esq., for the Respondents/Cross-AppellantFor Respondent