AHILE SEKAV DANIEL v. AKPERAN ORSHI COLLEGE OF AGRICULTURE, YANDEV
(2018)LCN/12134(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of November, 2018
CA/MK/165/2017
RATIO
DAMAGES: SPECIAL DAMAGES
“Now, it is the law that special damages are such that the law will not presume to flow or infer from the nature of the act or breach of duty complained of by the plaintiff as a matter of course. They are exceptional in their character and connote special items of loss which the plaintiff alleges are the result of the defendant’s act of breach of duty complained of. Unlike general damages, special damages must be claimed specifically and strictly proved and the Court is not entitled to make its own estimate of same. The rule with regard to the award of special damages is that the burden of proof is on the claimant to prove strictly that he did suffer such special damages claimed. What is required is that the claimant should establish his entitlement to the special damages claimed by credible evidence of such a character as would establish that he indeed is entitled to an award under that head. See Ado v. Commissioner of Works, Benue State (2007) 15 NWLR (Pt. 1058) 429 at 440-441; Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (Pt. 6580) 668; & UBA Plc v. Ekanem (2010) 2 NWLR (Pt. 1177) 181 at 196. Thus, where damages are claimed in an action, there must be evidence in proof of such damages, whether special or general, to entitle the claimant to the award being claimed.” PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
AHILE SEKAV DANIEL Appellant(s)
AND
AKPERAN ORSHI COLLEGE OF
AGRICULTURE, YANDEV Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A.(Delivering the Leading Judgment):
This Appeal is against the Judgment of the High Court of Justice, Benue State sitting in Gboko, Coram: Kwaghar, J.
The Appellant (as Plaintiff before the trial Court) filed an action against the Respondent and its Rector (as Defendants) claiming the following:
(a) That his HND/Statement of Result and Certificate be released to him, just like his mates.
(b) An order of award of the sum of 5, 000, 000.00 (Five Million Naira) only as specific damages.
(c) An order of award of N50,000,000.00 (Fifty Million Naira) only as general damages jointly and severally against the 1st and 2nd defendants.
The Defendants denied the claim and parties duly filed their pleadings. At the trial, the Appellant testified in proof of his claim while the Defendants adduced evidence through three witnesses. At the close of trial and the final addresses of Counsel representing both parties, the learned trial Judge struck out the name of the 2nd Defendant. He also entered Judgment in favour of Appellant in terms of his first relief only. No findings were made in respect of the second and third reliefs sought by the Appellant for special and general damages. Dissatisfied by the absence of a finding on the issue of damages claimed, the Appellant filed this Appeal.
The brief facts leading to the Appeal were that the Appellant, a student in the Respondent institution sat for his final exams sometime in 2009. During the conduct of one of the examinations, he was accused of exam malpractice, and so the Respondent refused to release his HND/Statement of Result and Certificate. The Appellant denied this allegation and after failed attempts to get his results, filed the action before the High Court seeking an order for the release of his results as well as special and general damages. The trial Court in its considered view found merit in the Appellant’s case and entered judgment in his favour ordering that the Appellant’s HND/Statement of Result and Certificate be released to him by the Respondent, without more. Being dissatisfied, the Appellant filed this Appeal contending that the failure of the trial Court to consider his reliefs on special and general damages and make a pronouncement one way or another amounted to grave error on the part of the trial Court.
At the hearing of the Appeal on 24-09-18, B.I. Nonso Esq. adopted the Appellant’s Brief of argument filed on 14-07-17, deemed filed on 17-04-18 and settled by B.I. Nonso Esq. in urging the Court to allow the Appeal.
M.T. Fiase Esq., Principal State Counsel, Benue State Ministry of Justice, also adopted the Respondent’s Brief of argument filed on 24-01-18, deemed duly filed on 17-04-18 and settled by M.T. Fiase Esq. in urging the Court to dismiss the Appeal.
The Appellant distilled one sole issue for determination from the lone ground of appeal and the Respondent adopted same. It shall therefore be used in the determination of this Appeal. It states thus:
Whether or not the trial High Court was right in failing to decide on reliefs (b)and (c) of the reliefs sought at the trial.
The Appellant contends that the act of the lower Court in pronouncing on relief (a) only to the exclusion of reliefs (b) and (c) occasioned a miscarriage of justice. The said reliefs were part of the statement of claim and were also contained in the Plaintiff’s statement on oath filed and adopted by him. It is submitted that in line with the decision of the Supreme Court in State V Ajie (2000) 7 SCNJ 1 and Brawal Shipping V Onwadike Co. Ltd (2000) 6 SCNJ 1, it is the duty of the Court to resolve all issues contained in every case before it to arrive at a just determination of the case. In cases where damages are to be assessed, the Court is enjoined to always make a pronouncement even where the action fails or where the decision goes against the party claiming damages in order to save the need to send the case back for assessment of damages, in the event of the action succeeding on appeal. Relying on Gbadamosi V Dairo (2007) All FWLR (Pt. 357) at 812, it is submitted that a miscarriage of justice is occasioned where the decision of a Court is inconsistent or prejudicial to the right of parties. The Appellant submits that he proved his case on a preponderance of evidence and was therefore entitled to all the reliefs sought in his claim. He urged the Court to so hold in allowing the Appeal.
In response, the Respondent is in consonance with the Appellant that a Court of law must consider all material aspects of a case validly placed before it and pronounce on all issues before it for determination. Reliance is placed on Wilson v. Oshin (2000) 2 SCNQR 1215; Brawal Shipping (Nig) Ltd v. FI Onwadike & Co. Ltd (2000) SCNQR 1379. Counsel readily admits that the trial Court was wrong in failing in its duty to consider the evidence placed before it by the parties, evaluate it, make findings thereon and decide on the evidence appropriately regarding special and general damages. Relying onAlabi v. State (2006) 4 FWLR (Pt. 336) 6190 at 6206, he submits that where a trial Court fails to evaluate pieces of evidence, the appellate Court assumes the mandate and takes on the mantle to consider, evaluate makes findings and decide on the said evidence.
It is therefore submitted that since the trial Court failed to evaluate all the evidence placed before it and concentrated only on the first leg of the claim seeking the release of the Appellant’s HND/Statement of Result and Certificate, this Court can evaluate the evidence placed before the trial Court on the items of special and general damages claimed by the Appellant against the Respondent at the lower Court. Iko v. State (2001) 7 NSCQR 277 at 303-304 is relied on. He therefore invited the Court to evaluate the evidence placed before the trial Court at pages 1 to 12 and 64 to 66 of the Record of Appeal especially on damages, and to assess the damages to be awarded accordingly.
In this regard, Counsel however submits that such an assessment will reveal that Appellant did not proffer credible evidence in proof of those heads of claim to warrant an award of the damages claimed. It is argued that the Appellant alleged that he suffered untold hardship as a result of non-release of his certificate, without more. He did not demonstrate how the non-release of the certificate occasioned untold hardship to him. It has not been shown by the Appellant that he was denied job opportunities as a result of non-release of the certificate, nor has he proved that his mates got jobs to his exclusion due to non-release of the certificate. Thus, the untold hardship which the Appellant alleged he suffered remains a fiction and a mystery. It is therefore submitted that there is no basis for an award of special and general damages to the Appellant as claimed as the Appellant woefully failed to prove same. The Court is therefore urged to hold accordingly and to dismiss this Appeal with costs.
Findings
The facts of the case are as stated by both parties. The learned trial Judge found in favour of the Appellant in respect of his first head of claim, to wit: the release of his HND/Statement of result by the Respondent. There is no dispute in respect of this award. Again, the parties are ad idem on the fact (which is evident from the Record) that the learned trial Judge failed and/or omitted to make any pronouncement one way or another on the second and third heads of claim for special and general damages. This is wrong and both parties are once again agreed on this. It is the indubitable duty of a trial Court to pronounce on all issues placed before it for determination. When it fails to do so, it fails in its duty and such may lead to a miscarriage of justice. Thus, where the claim of a Plaintiff is premised on damages, this Court has stated in several decisions that it is the duty of that Court to assess damages awardable, even if its decision goes against the Plaintiff. Where the trial Court fails to do so, this Court and indeed any appellate Court by virtue of the general power conferred upon it by the enabling law creating it, is in a position to step into the shoes of the trial Court and assess the damages awardable.
In the same vein, where a trial Court fails to properly evaluate the evidence placed before it, an appellate Court is in as a good position as the trial Court to consider and draw legitimate conclusions therefrom. See Iyere v. BFFM Ltd (2009) 168 LRCN 143 at 189; Kimdey v. Military Governor of Gongola State (1988) 2 NWLR (Pt. 77) 445; &Olujinle V Adeagbo (1988) 2 NWLR (Pt. 75) 238.
Section 15 of the Court of Appeal Act, 2004 provides:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the full proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to be re-heard by the Court of competent jurisdiction.”
This provision has been interpreted by the Apex Court and this Court in quite a few decisions including: AG Kwara State v. Lawal (2017) LPELR-4234(SC) at 25-27; Ezeigwe V Ezeigwe (2010) 4 NWLR (Pt. 183) 159. It is now settled that for the provision to apply, the following conditions must exist, to wit:
(a) That the lower Court must have legal power to adjudicate in the matter before the appellate Court can entertain it;
(b) That the real issue raised by the Appellant at the lower Court must be seen to be capable of being distilled from the grounds of Appeal;
(c) That all necessary materials must be available to the Court for consideration;
(d) That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and
(e) That the injustice or hardship which will follow if the case remitted to the Court below must be clearly manifest.
In the special circumstances of this case, it would appear that conditions stated in paragraphs (c) (d) and (e) exist to warrant the intervention of this Court to do that which the lower Court failed and/or omitted to do. The Appellant herein had clearly from the onset made a claim for special and general damages against the Respondent for its failure and/or refusal to release its HND results after he had dutifully sat for the examination. The Court assessed the evidence proffered by the Appellant and held that the Appellant was entitled to this relief and so ordered the Respondent to release the results to him. However for some reason not readily apparent from the printed Record of Appeal, no mention was made one way or another on the issue of damages claimed. While the Appellant has now called on the Court to go ahead and award the damages claimed, the Respondent has also urged the Court to step into the shoes of the lower Court to assess the evidence offered in this regard and refuse to award the damages claimed.
Upon a proper scrutiny of the facts presented, I am equally satisfied that the proper environment has been created to warrant the intervention of the Court as it is so empowered under Section 15 of the Appeal Act, to do justice to the parties without the need to remit the case to the lower Court. This is because the materials necessary for this have been placed before the Court in evidence and it would only entail delay and hardship to send the case back merely for an assessment and pronouncement on the issue of damages, the main claim having already been granted.
In the instant case, the Appellant claimed both special and general damages. The primary object of an award of damages is to compensate the plaintiff for the harm done to him. A possible secondary object is to punish the defendant for his conduct in inflicting that harm. See British Airways V Atoyebi (2014) LPELR-23120(SC) 38-39; Odiba v. Azege (1998) 9 NWLR (Pt. 566) 370 at 382; & Eliochin (Nig) Ltd v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 at 65. The rationale behind the compensatory theory is found in the maxim restitution in integrum, in other words to restore the injured party to the position he/she was prior to the injury. See Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512.
Now, it is the law that special damages are such that the law will not presume to flow or infer from the nature of the act or breach of duty complained of by the plaintiff as a matter of course. They are exceptional in their character and connote special items of loss which the plaintiff alleges are the result of the defendant’s act of breach of duty complained of. Unlike general damages, special damages must be claimed specifically and strictly proved and the Court is not entitled to make its own estimate of same. The rule with regard to the award of special damages is that the burden of proof is on the claimant to prove strictly that he did suffer such special damages claimed. What is required is that the claimant should establish his entitlement to the special damages claimed by credible evidence of such a character as would establish that he indeed is entitled to an award under that head. See Ado v. Commissioner of Works, Benue State (2007) 15 NWLR (Pt. 1058) 429 at 440-441; Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (Pt. 6580) 668; & UBA Plc v. Ekanem (2010) 2 NWLR (Pt. 1177) 181 at 196. Thus, where damages are claimed in an action, there must be evidence in proof of such damages, whether special or general, to entitle the claimant to the award being claimed.
In the instant case, the Appellant claimed the sum of N5, 000, 000.00 (Five Million Naira) from the Respondent as special damages for her failure to release his HND results. However, try as I did, I was unable to find anywhere in the Record where evidence was adduced to justify or substantiate this head of claim. It is simply non-existent. Thus, this cannot be presumed but must be strictly proved. I therefore agree with the Respondent that the Appellant cannot be entitled to this head of claim.
However, on the claim for general damages, the Appellant claimed the sum of N50, 000, 000.00 (Fifty Million Naira). It is the law that general damages such as the law will presume to be the natural or probable consequence of the defendant’s act need not be specifically pleaded. It arises by inference of law and need not therefore be proved by evidence and may be averred generally. This is quite unlike special damages, as stated above, which will not be presumed but specifically pleaded and strictly proved. See FBN Plc V Assoc. Motors Co. Ltd (1998) 10 NWLR (Pt. 570) 441 at 465-466.
As aforesaid, the Appellant claimed the sum of N50,000, 000.00 (Fifty Million Naira) as general damages in addition to the award of special damages. This nature of damages are such that the law would presume to be the direct, natural and probable consequence of the act complained of and need not be strictly proved.
An award of general damages is within the discretion of the Court. However, an appellate Court would not usually interfere with a previous award unless satisfied that ?
(a) A trial Court acted under a mistake of law; or
(b) Where the trial Court acted in disregard of some principle of law; or
(c) Where it acted under a misapprehension of facts; or
(d) Where it has taken into account irrelevant matters or failed to take into account relevant matters; or
(e) Where injustice would result if the appellate Court does not interfere; or
(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 Acme Builders Ltd V Kaduna State Water Board (1999) 2 NWLR (Pt. 590) 288.
From the Record of the lower Court, the basis upon which the Appellant claimed the sum of N50, 000, 000.00 (Fifty Million Naira) as general damages was that he has suffered untold hardships as a result of the non-release of his certificate. I am in agreement with the Respondent however that the nature of these hardships was not articulated either in his pleadings or his evidence before the Court. Thus, standing in the shoes of the trial Court with no further evidence of the nature of these hardships suffered, whether mental anguish, emotional or physical, what this Court is permitted to presume is only the direct, natural and probable consequence of the act complained of.
Thus, it only aligns with logic and common sense that the failure of the Respondent to release the Appellant’s HND results from the 4th December, 2009 when he completed his course of study and was issued with a testimonial to that effect by the Respondent until he filed the action on 31st May, 2012 and until Judgment was subsequently delivered by the lower Court on 14th December, 2016 must have resulted in delaying, stalling and/or holding up his progress in proceeding for the mandatory one year National Youth Service (NYSC) program, seeking for a job and/or furthering his educational pursuits. By reason of the inconvenience suffered by the Appellant in putting his life on hold since 2009, the Appellant is entitled to be compensated for the wanton and unjustifiable act of the Respondent, which was declared to be unwarranted by the lower Court. In this regard therefore, I assess the damages suffered by the Appellant in the sum of N1,000,000.00 (One Million Naira) only. I therefore resolve the sole issue for determination in favour of the Appellant.
Accordingly, the Appeal succeeds and is allowed.
Consequently, I award the sum of N1,000,000.00 (One Million Naira) only as general damages to the Appellant.
I also award the sum of N100, 000.00 (One Hundred Thousand Naira) only as the costs of this action to the Appellant against the Respondent.
ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, Jummai Hannatu Sankey, JCA, made available to me before now the draft copy of the Judgment just delivered in which this appeal has been allowed. I agree with, and adopt as mine, the comprehensive resolution of the issues raised therein. I will only make few comments in support.
The provisions of Section 15 of the Court of Appeal Act, 2004 empower this Court to step in to rehear the case in whole or in part or and do justice in a case without the need to remit the case to the lower Court. Conditions that must exist for such exercise of such power by this Court have been well articulated to be when:
(a) The lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it;
(b) The real issue raised by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal;
(c) The all necessary materials must be available to the Court for consideration;
(d) The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and,
(e) The injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.
See Ezeigwe v. Nwawulu (2010) LPELR-1201(SC); Harka Air Services (Nig) Ltd v. Keazor (2011) LPELR-1353(SC).
The materials necessary for this Court to act on and do justice in the matter were placed before the Court. There is no doubt that the action of the Respondent occasioned untold hardship on the Appellant. The trial Court ought not to have ignored his claim for damages.
For this reason and for the more comprehensive reasons given in the lead Judgment, I also allow this appeal and abide by the orders made in the lead Judgment, including the order as to costs.
JOSEPH EYO EKANEM, J.C.A.: I had the privilege to read in advance the lead judgment of my learned brother, Sankey, JCA, which has just been delivered. His Lordship has dealt extensively with the issue submitted for determination. I agree with the reasoning contained in the judgment and the conclusion arrived therein.
For the detailed reasoning contained in the lead judgment, I hold that the appeal succeeds and is allowed.
I abide by the order as to damages and costs contained in the lead judgment.
Appearances:
B.I. Nonso, Esq.For Appellant(s)
M.T. Fiase Esq., Principal State Counsel, Benue State Ministry of JusticeFor Respondent(s)
