ABUJA CAPITAL MOTORS LTD. v. ALHAJI ABDULHAZEZ BELLO ALIYU
(2017)LCN/10130(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of June, 2017
CA/A/398/2010
RATIO
ADMITTED FACTS: THE POSITION OF THE LAW WHERE NO STATEMENT OF DEFENCE IS FILED IN ANSWER TO STATEMENT OF CLAIM
The law is trite that where no statement of defence is filed in answer to statement of claim, then by the ordinary rules of pleadings, the allegations in the statement of claim are deemed as admitted; as they stand unchallenged. So long as the claim discloses a cause of action, the plaintiff may be entitled to judgment, normally, without the need to prove his case by calling evidence. This however depends on the nature of the case, particularly on whether his claim is for liquidated demand or unliquidated damages. PER TINUADE AKOMOLAFE-WILSON, J.C.A.
LIQUIDATED MONEY DEMAND: MEANING AND NATURE OF LIQUIDATED MONEY DEMAND
The term “liquidated money demand” has been a subject of several judicial decisions. The term liquidated money demand simply means the demand for a specific or ascertainable amount of money which can easily be arithmetically determined without any controversy. See Maja v. Samouris (2002) 7 NWLR (Pt.765);Akpan v. Akwa Ibom Property & Investment Company Ltd. (2013) LPELR 20753 (SC), (2013) 12 NWLR (Pt.1368) 377 at 400, the Supreme Court defined it succinctly thus-
“Liquidated money demand means a debt or other specific sum of money usually due and payable, which amount must have already been ascertained or capable of being ascertained as a mere matter of arithmetic without any other further investigation. Therefore, whenever the amount being claimed by a plaintiff can be ascertained by calculation or fixed by any scale or charges or other positive data; it is said to be liquidated. Similarly, where the parties to a contract as part of the terms of their agreement fix the amount payable on the default of one of them or in the event of breach by way of damages such sum of money is classified as liquidated damages.”
In U.P.S. Ltd v. Ufot (2006) 2 NWLR (pt. 963) 1 at p.7 the Court defined it succinctly thus –
“A liquidated damage is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a matter of arithmetic without any other or further investigation. Wherever, therefore the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be liquidated or made clear.” PER TINUADE AKOMOLAFE-WILSON, J.C.A.
UNLIQUIDATED DAMAGES: MEANING OF UNLIQUIDATED DAMAGES; WHETHER AN UNLIQUIDATED DAMAGES WILL BECOME LIQUIDATED WHERE THE PLAINTIFF PUTS A FIGURE ON IT
The law is trite that when the amount to be recovered is uncertain but depends on the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate, the damages are said to be unliquidated. See Odgers on the Common Law (1927) 3rd Edition, Vol. 2, p.654; Iwueke v. Imo Broadcasting Corporation (2005) 17 NWLR (Pt.955) 44 at 485; Alhaji Ali Muktar Sheshe v. Alhaji Hassan Ibrahim (2019) LPELR – 22607 (CA). A claim for unliquidated damages does not become liquidated merely because the plaintiff puts a figure on it. A liquidated amount must be one that can clearly be ascertained by calculation. See Odume v. Nnachi (1964) 1 All NLR 329. This has in fact been conceded by the learned counsel for the respondent in his brief of argument. (See paragraph 5.11)
LIQUIDATED MONEY DEMAND: WHETHER THE CLAIMANT NEED SUBSTANTIATE HIS CASE WITH EVIDENCE WHERE THE NECESSARY PARTICULARS CONCERNING THE LIQUIDATED DEMAND ARE BEFORE THE COURT
By the provision of Order 25 Rule 1(1), which relates to entering judgment for liquidated sum in default of pleadings, the claimant need not lead evidence to substantiate his claim. Failure of the respondent to file a defence within the stipulated period under the law is an automatic admission of the plaintiff’s claim.
The claimant need not go the extra mile of leading oral evidence to prove his case once the necessary particulars concerning the liquidated demand are before the Court; the Court will enter final judgment for the amount claimed. See G.M.ON. & S. CO. Ltd. v. Akputa (2010) 9 NWLR (Pt.1200) 443 SC; N.A.C.B. Ltd. v. Achagwa (2010) 11 NWLR (Pt.1205) 339 CA. PER TINUADE AKOMOLAFE-WILSON, J.C.A.
SETTING ASIDE OF JUDGMENT: THE ATTITUDE OF THE APPELLATE COURT WHERE A COURT GIVES A JUDGMENT ON A WRONG PRINCIPLE OF LAW
Where a Court gives a judgment on a wrong principle of law, the decision is liable to be set aside by the appellate Court. See Vanguard Media Ltd. v. Olafisoye (2011) 14 NWLR (Pt.1267) 207 CA; Makinde v. Omaghami (2011) 5 NWLR (Pt. 1240) 249 C.A; Danjuma v. Terengi (2011) 6 NWLR (Pt.1244) 546 C.A. PER TINUADE AKOMOLAFE-WILSON, J.C.A.
GENERAL DAMAGES: MEANING OF GENERAL DAMAGES; THE DUTY OF THE COURT WITH RESPECT TO AWARD OF GENERAL DAMAGES
The law is trite that general damages are losses which flow naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally assumed by law and its quantification is at the discretion of the court. See Bello v. A.G. Oyo State (1986) 5 NWLR (Pt.450 828; Kopek Const. Ltd. v. Ekisola (2010) 3 NWLR (Pt.1183) 618 S.C.; Adim v. N.B.C. Ltd (2010) 3 NWLR (Pt.1200) 543 S.C.
Where the issue of liability is established, a trial Court is entitled to make its own assessment of the quantum of such general-damages. Such general damages will only be altered or varied if they were shown to be an entirely erroneous estimate of the damages to which the plaintiff is entitled. See Beta Glass Plc. V. Epaco Holdings Ltd (2011) 4 NWLR (Pt.1237) 223; Johnson Wax (Nig) Ltd. v. Sann (2010) 3 NWLR (Pt.1181) 235. In the instant case, the averment in paragraph 7 of the statement of claim that the respondents vehicle was kept in custody of the appellant for over three years is deemed proved for default in pleadings. The respondent in my view is entitled to the award of general damages for losses which generally flow from the act of the appellant. However, the discretion of the Court in quantifying the amount to be awarded must be exercised judiciously and judicially.PER TINUADE AKOMOLAFE-WILSON, J.C.A.
ASSESSMENT OF DAMAGES: THE GUIDING PRINCIPLES FOR THE ASSESSMENT OF DAMAGES FROM BREACH OF CONTRACT
Generally, the amount of damages to be paid to a person for breach of contract is the amount it will entail to put that person in the position he would have been if there has not been any breach of the contract. In other words, the plaintiff is only entitled to damages naturally flowing or resulting from the breach. The Courts of law when considering damages for breach of contract are not required to award damages which are speculative or sentimental unless these are expressly provided by the express terms of the contract. See G. Chitex Industries Ltd. v. Oceanic Bank International Ltd. (2005) 14 NWLR (Pt. 945) 932 at 410. It must not be on the basis of conjecture or sentiment. The circumstances of the act of the defendant which caused the plaintiff loss or injury must be examined before general damages be assessed and awarded. It must not be arbitrary. PER TINUADE AKOMOLAFE-WILSON, J.C.A.
INTERFERENCE WITH THE AWARD OF DAMAGES: INSTANCES WHERE AN APPELLATE COURT WILL ALTER THE AWARD OF DAMAGES MADE BY THE TRIAL COURT
An appellate Court will alter an award for damages where the amount is manifestly too high or manifestly too low or the judge acted upon some wrong principle of law in making the award. – Bello v. Pategi (2000) 8 NWLR (Pt.167); SPDC (Nig.) v. Tiebo VII (2005) 9 NWLR (Pt.931) 439. The award of N20,000,000.00 was on the wrong premise that it was a claim for liquidated demand of money in consonance with Order 25 Rule 1(1) of the FCT High Court Rules, 2004. This was under a wrong principle of law. If the amount is assumed to be for general damages as argued by the respondent, it is manifestly unreasonably too high. There can be no justification for awarding a huge sum of twenty million naira as general damages, not proved special damages; the appellant to repair and deliver the respondent’s vehicle kept for over 3 years by the appellant. The sum award to the respondent as damages is like “a windfall with no basis whatsoever. See Ifeta v. S.P.D.C. (Nig.) Ltd. (2006) 8 NWLR (Pt.983) 585 at 615. PER TINUADE AKOMOLAFE-WILSON, J.C.A.
JUSTICES:
ABDU ABOKI Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
Between
ABUJA CAPITAL MOTORS LTD. – Appellant(s)
AND
ALHAJI ABDULHAZEZ BELLO ALIYU – Respondent(s)
TINUADE AKOMOLAFE-WILSON, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja delivered on the 31st of July, 2006.
The appellant, being dissatisfied with the judgment and out of time to appeal applied to this Court for enlargement of time to appeal which was granted on 1st June, 2010. On 14th June 2010, the appellant filed a Notice of Appeal containing four grounds, reproduced hereunder, shorn of their particulars –
GROUND A
The learned trial Court erred in law by awarding N20 Million being general damages and compensation for the loss of the use of the vehicle for the period of 3 years to the plaintiff/respondent as per his claim in the writ without taking evidence.
GROUND B
The learned trial Judge erred in law in awarding special damages when the plaintiff did not specifically plead and strictly prove same.
GROUND C
The learned trial Court erred in law when he did not give basis for the assessment of N20 million awarded as damages in favour of the plaintiff/respondent.
GROUND D
The award of N20 million damages
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by the trial Court is excessive. Additional Grounds of Appeal will be filed on the receipt of the record of appeal.
Upon these grounds, the appellant distilled three issues for determination in its brief of argument which were adopted by the respondent in his brief of argument to wit:-
(i) Whether in view of the respondent’s claim for compensation for loss of use of his vehicle, he ought to have specifically pleaded, particularized and strictly proved his claim (Ground B).
(ii) Whether the learned trial judge was right in not taking evidence before the award of N20 million as compensation in favour of the respondent for the loss of use of his car for a period of 3 years (Ground A)
(iii) Whether the learned trial Judge was right in not giving the basis for the assessment of N20 million damages awarded in favour of the respondent (Grounds C and D)
Appellant also filed a reply brief to the respondent’s brief of argument which generally in my view was an amplification of the appellant’s brief of argument.
ISSUE ONE
Whether in view of the respondent’s claim for compensation for loss of use of his vehicle, he ought to have
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specifically pleaded, particularized and strictly proved his claim (Ground B).
It is submitted for the appellant that from the pleadings of the respondent in the trial Court, his claim is for the sum of N3 million for loss of use of his vehicle. A claim for “loss of use”, he argued is a claim for special damages which must be specifically pleaded and strictly proved. He placed reliance on the cases of Umoetuk v. UBN PLC (2002) 3 NWLR (Pt.755) pg. 666; A.N.T.S. v. Atoloye (1993) 6 NWLR (Pt.298) pg. 257, para H; Okeji v. Olokoba (2000) 4 NWLR (Pt.654) pg. 531, para H. A.; Ayoke v. Bello (1992) 1 NWLR (Pt.218) pg. 403 para F; Gbolade v. Oladejo (1994) 1 NWLR (Pt. 362) 281; Obasuyi v. Business Ventures Ltd. (1995) 7 NWLR (Pt.406) 184; N.B.C.I. v. Alfijir Ltd. (1993) 4 NWLR (Pt. 287) pg.346; Ibeanu v. Ogbeide (1994) 7 NWLR (Pt.359) 697.
Responding, the learned counsel for the respondent argued that the appellant took narrow cognizance of relief (c) of the respondents claim and thereby anchored his argument on a wrong premise, reaching an erroneous conclusion that the relief therein falls under the ambit of special damages. The Court was referred to the
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case Gaki v. Seirafra (Nig) Ltd. (2008) 2 NWLR (Pt.1070) 1 at p. 19, on definitions of general and special damages to substantiate this submission. According to counsel, the word “and” in relief “C” is disjunctive showing that it contains two separate claims for “general damages” and compensation for loss of use of vehicle for 3 years hence the principle of severance as enunciated in the case of Military Governor of Imo State & Anor. v. Nwauwa (1997) 2 NWLR (Pt.490) 675 at 694 ought to be applied to hold that this case borders on general damages which is a loss which flows naturally from the appellant’s act and its quantum need not be pleaded nor proved but generally assumed by law. Learned counsel distinguished the case of Gbolade v. Oladejo (supra) cited by the appellant as inapplicable.
ISSUE TWO
Whether the learned trial judge was right in not taking evidence before the award of N20 million as compensation in favour of the respondent for the loss of use of his car for a period of 3 years (Ground A).
It is the contention of the learned counsel for the appellant that the application of Order 25 Rule 1 of the FCT High Court Civil Procedure
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Rules which was the basis for judgment, does not preclude the Court for taking evidence of the respondent to prove his claim for special damages, as the claim of the respondent is for liquidated damages; notwithstanding the fact that failure to file defence is tantamount to admission of claim. He called in aid the cases ofIwueke v. IBC (2005) 17 NWLR (Pt.955) 479-480; U.P.S. v. Ufot (2006) 2 NWLR (Pt.963) 27; Jonason Triangles Ltd. v. C.M. & Partners Ltd. (1999) 1 NWLR (Pt. 588) 567; Abiara v. Reg. T.M.C.N. (2009) 11 NWLR (Pt.1045) 298.
On his part, the learned counsel for the respondent; emphasizing that the judgment appealed is not for liquidated amount; noted that the respondent wrongly quoted Order 25 Rule 1(1), also cited by the trial Court for giving judgment in default instead of Order 25 Rule 7(1) of the High Court of Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004. Citing F.R.I.N. v. Gold (2007) 11 NWLR (Pt. 1044) 1 at 26, he submitted that wrong reference to a rule of law or statute cannot deny a party the relief he seek from the Court. The case of Iwueke v. I.B.C. (supra) cited by the appellant, he argued, is inapplicable
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because the respondent’s case is not on unliquidated damage but for general damages which called for the discretion of the Court. He relied on N.N.B. PLC v. Denclog Ltd. (2005) 4 NWLR (Pt.955) 479 at 606.
ISSUE 3
Whether the learned trial judge was right in not giving the basis for the assessment of N20 million damages awarded in favour of the respondent (Grounds C and D)
It was submitted for the appellant that award of general damages is supposed to be based on assessment of the Court, supported by credible evidence before the Court; placing reliance on NICON Hotels Ltd. v. N.D.C. Ltd. (2007) 13 NWLR (Pt. 1051) 271-272.
As for the respondent, it is his contention that the award of damages is discretionary which ought not to be interfered with on appeal as enunciated in the case ofUAC (Nig.) PLC v. Sobodu (2007) 6 NWLR (Pt. 1030) 368 at 392-393. In conclusion, though without conceding, he submitted that assuming the amount of general damages awarded is excessive, this Court is empowered by law to review same to meet the justice of the case but not to dismiss the award in its entirety. He however urged the Court to dismiss the appeal in
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its entirety.
All the three issues formulated by the parties can easily be accommodated under issue 3, having regard to the grounds of the appeal filed by the appellant.
ISSUE 3
Whether the learned trial Judge was right in not giving the basis for the assessment of N20 million damages awarded in favour of the respondent (Grounds C and D)
At this juncture,. it is necessary to relate the facts of this case which culminated into this appeal.
The appellant/company carried on business as car repairers with specialty on Mercedes Benz. The respondent was its customer. On or about 17th April, 2002, the respondent took his Mercedes Benz 600 SEL to the appellant for repairs. The respondent paid the sum of N150,000.00 as deposit for the repairs, later, on recommendation of the appellant, the respondent bought engine and some other spare parts and accessories for the repair of the vehicle. After about three years when the appellant failed to repair and deliver the vehicle; the respondent, as plaintiff in the High Court of Federal Capital Territory filed an action by a Writ of Summons dated 16th August, 2005; claiming the following reliefs:-<br< p=””>
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“(a) A release of Mercedes Benz 600 SEL with Registration No. AL 927 KMC, the new Engine and other spare parts and accessories purchased by the plaintiff for the repairs of the vehicle.
(b) The sum of N150,000.00 (One hundred and fifty thousand naira) paid as deposit, plus interest thereon at the rate of 35% from the 17th April, 2002 until judgment and thereafter at 10% until the sum is fully paid.
(c) Payment of the sum of N20,000,000.00 (Twenty million naira) being general damages and compensation for the loss of the use of the vehicle for the period of 3 years.
(d) The cost of this action.”
The writ of summons and other processes of Court were duly served on the appellant. Despite the service of hearing notices on the appellant, it failed to enter appearance or file a statement of defence. Subsequently the respondent filed an application for judgment in default of pleadings which was also duly served on the appellant who still failed to respond to the application, hence on 31st July, 2006, judgment was delivered “in favour of the plaintiff per his claims in the writ and against the defendant in default of defence as prayed…
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(Page 37 of Record of Appeal)
A scrutiny of the grounds of appeal vis a vis the judgment of the trial court shows clearly that there is no appeal against reliefs ‘a’, ‘b’ and ‘d’ of the respondent’s claim against the appellant thereby leaving only relief C which is the payment of “N20,000,000.00 being general damages and compensation for the loss of the use of the vehicle for the period of 3 years.”
The question now is having regard to the circumstances of this case, the facts of which have briefly been stated above, was the learned trial judge right to have awarded the said amount of twenty million naira as claimed without giving any basis for the said award? It is not disputed that the judgment of the trial Court was given in default of defence. The entire decision of the Court tersely stated thus –
“I have carefully considered the motion on notice and which was served on the respondent for hearing against today. There is no counter affidavit from the respondent.
And having carefully considered the substance of the application. It is clear to me that the writ of claim by the plaintiff was served on the respondent since the
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month of October, 2005, and by the Rule of this Court, the defendant/respondent were expected to have filed their statement of defence within 14 days after receipt of the Court process up to this point in time there is nothing in the nature of pleading in defence of the claim on the part of the defendant, and even with regard to this motion, there is neither a counter affidavit nor any message to explain creditably the absent of the defendant/respondent.
The attitude of the Defendant/respondent in my view constitute a clear case for entering judgment in default of defence. Accordingly I hereby enter judgment in favour of the plaintiff per his claim in the writ and against the defendant in default of defence as prayed by Mr. Makenti the learned counsel for the plaintiff.
(Page 37 of Record of Appeal)
Judgment was thus delivered in favour of the respondent in this appeal by the Lower Court entirely as per his claims, without taking evidence and without any assessment of the damages.
The law is trite that where no statement of defence is filed in answer to statement of claim, then by the ordinary rules of pleadings, the allegations in
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the statement of claim are deemed as admitted; as they stand unchallenged. So long as the claim discloses a cause of action, the plaintiff may be entitled to judgment, normally, without the need to prove his case by calling evidence. This however depends on the nature of the case, particularly on whether his claim is for liquidated demand or unliquidated damages. Now, the application filed by Mr. Makenti, of learned counsel to the respondent at the trial Court upon which the Court gave judgment was brought under Order 25 Rule (1) of the High Court of Federal Capital Territory, Abuja Civil Procedure Rules, 2004; a provision of the Court for claim for debt or liquidated demand. It states –
“Where a plaintiffs claim is only for a debt or liquidated money demanded and the defendant does not within the mode and time allowed by these rules files a defence the plaintiff may at the expiration of such time apply judgment for final for the amount claimed with costs.
The term “liquidated money demand” has been a subject of several judicial decisions. The term liquidated money demand simply means the demand for a specific or ascertainable amount of
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money which can easily be arithmetically determined without any controversy. See Maja v. Samouris (2002) 7 NWLR (Pt.765);Akpan v. Akwa Ibom Property & Investment Company Ltd. (2013) LPELR 20753 (SC), (2013) 12 NWLR (Pt.1368) 377 at 400, the Supreme Court defined it succinctly thus-
“Liquidated money demand means a debt or other specific sum of money usually due and payable, which amount must have already been ascertained or capable of being ascertained as a mere matter of arithmetic without any other further investigation. Therefore, whenever the amount being claimed by a plaintiff can be ascertained by calculation or fixed by any scale or charges or other positive data; it is said to be liquidated. Similarly, where the parties to a contract as part of the terms of their agreement fix the amount payable on the default of one of them or in the event of breach by way of damages such sum of money is classified as liquidated damages.”
In U.P.S. Ltd v. Ufot (2006) 2 NWLR (pt. 963) 1 at p.7 the Court defined it succinctly thus –
“A liquidated damage is a debt or other specific sum of money usually due and payable and its amount must be
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already ascertained or capable of being ascertained as a matter of arithmetic without any other or further investigation. Wherever, therefore the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be liquidated or made clear.”
The first part of relief C of the respondents claim; for the sum of “Twenty million naira being general damages and compensation for the loss of the use of the vehicle for the period of 3 years;” the amount of which was not computed cannot by any stretch of imagination be a claim for liquidated money demand. The law is trite that when the amount to be recovered is uncertain but depends on the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate, the damages are said to be unliquidated. See Odgers on the Common Law (1927) 3rd Edition, Vol. 2, p.654; Iwueke v. Imo Broadcasting Corporation (2005) 17 NWLR (Pt.955) 44 at 485; Alhaji Ali Muktar Sheshe v. Alhaji Hassan Ibrahim (2019) LPELR – 22607 (CA). A claim for unliquidated damages does not become liquidated merely because
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the plaintiff puts a figure on it. A liquidated amount must be one that can clearly be ascertained by calculation. See Odume v. Nnachi (1964) 1 All NLR 329. This has in fact been conceded by the learned counsel for the respondent in his brief of argument. (See paragraph 5.11)
By the provision of Order 25 Rule 1(1), which relates to entering judgment for liquidated sum in default of pleadings, the claimant need not lead evidence to substantiate his claim. Failure of the respondent to file a defence within the stipulated period under the law is an automatic admission of the plaintiff’s claim.
The claimant need not go the extra mile of leading oral evidence to prove his case once the necessary particulars concerning the liquidated demand are before the Court; the Court will enter final judgment for the amount claimed. See G.M.ON. & S. CO. Ltd. v. Akputa (2010) 9 NWLR (Pt.1200) 443 SC; N.A.C.B. Ltd. v. Achagwa (2010) 11 NWLR (Pt.1205) 339 CA.
In the instant case, from the ruling of the learned trial Judge, already quoted above, it is obvious that the learned trial Judge acted under the rule of Court upon which the application for judgment in
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default was filed by the respondent without any consideration to the nature of the claim sought by the respondent. No doubt relief (b) for the sum of N150,000.00 as the deposit paid to the appellant, the cheque of which was attached to the respondent’s statement of oath (page 8 record) is clearly a claim for liquidated amount as envisaged under Rule 1(1) of Order 25 of the Court Rules. This cannot be said of reliefs (a), (c) and (d) in which the amount claimed is not specific or assessed. The respondent’s case in relief (c), having being devoid of any particulars to support his claim was presented as one for unliquidated damages.
The law is trite that in a claim for unliquidated damages, where a defendant fails or neglects to deliver a defence the Court cannot enter judgment on the claim based on a relief for payment of unliqudated damages without taking evidence for the amount of damages as may be proved and assessed. The plaintiff must lead evidence as to damages and the quantum suffered by him. See Iwueke v. I.B.C. (supra); U.P.S. v. Ufot (supra). The law is that in an action, a claim for damages is always deemed to be in issue. That being the case any
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allegation as to amount of damages so suffered is deemed to be traversed, unless of course, specifically admitted. See Osuji v. Isiocha (1989) 3 NWLR (Pt.111) 623, Produce Marketing Board v. Adewunmi (1972) 11 SC 111. It follows therefore that though for the purpose of a proceeding for judgment in default of pleadings the defendant…. is deemed to have admitted the facts as pleaded in a statement of claim, such implied admission does not extend to averments in respect of damages. This clearly constitutes an exception to the general rule that for purposes of application for judgment in default of pleadings the defendant is deemed to have admitted the facts as pleaded in the statement of claim” per Onnoghen, JSC in Iwueke v. I.B.C. (supra) at p. 474.
In the instant case, no evidence was led to substantiate the award of twenty million naira to the respondent. The resultant effect is that the learned trial Judge erroneously applied a wrong principle of law to enter judgment for the respondent as per his claim, especially in respect of relief (C) in which there was no assessment whatsoever upon which the sum of N20,000,000.00 was awarded. Judgment was given
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to the respondent as per his claim as if the claim was for liquidated sum of money without giving evidence or any assessment of the sum as envisaged under Order 25 Rule 1(1), quoted by the respondent’s counsel in the Lower Court. Where a Court gives a judgment on a wrong principle of law, the decision is liable to be set aside by the appellate Court.
See Vanguard Media Ltd. v. Olafisoye (2011) 14 NWLR (Pt.1267) 207 CA; Makinde v. Omaghami (2011) 5 NWLR (Pt. 1240) 249 C.A; Danjuma v. Terengi (2011) 6 NWLR (Pt.1244) 546 C.A.
Mr. Zubairu, of learned counsel to the respondent has submitted that the Court erroneously relied on the rule of law under which the application for default judgment was given, and quoted the principle of law that a party cannot be denied any relief to which he is entitled merely because he sought same under a rule of law. This principle is not applicable in this case. In my view, having regard to the circumstances of this case, the Court has employed the wrong principle of law to erroneously award damages to the respondent which he is not entitled to.
In supporting the decision of the Court, the respondent’s counsel has
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submitted that the correct rule of the trial Court that deals with judgment in default of pleadings just as in the instant appeal is Order 25 Rule 7(1) which provides –
“Where the plaintiff’s claim against a defendant or defendants is not described nor mentioned in Rules 2 to 5 and the defendant or all defendants (where there are more than one) fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed for service of the defence, apply to a Court for judgment and on the hearing of the application, the Court shall given such judgment as the plaintiff appears entitled to on his statement of claim.” (Underlining supplied for emphasis)
A careful reading of relief (C) shows that the request for payment of the sum of twenty million is for both general damages and compensation for the loss of the use of the vehicle for the period of three years. The word “and” herein is conjunctive. Assuming therefore that the respondent’s case was stated to have been brought under Rule 7(1) of Order 25, the question is whether it can be said that the Court gave judgment to the plaintiff (respondent) as he appeared entitled to on
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his statement of claim. The principal claim or the respondent is for loss of use of his vehicle as averred in paragraph 9 of his statement of claim
“The plaintiff has as a result of the breach by the defendant, suffered loss and damages in that the plaintiff had to seek for an alternative means of transportation for the purposes of carrying out his business. Also by keeping the plaintiff’s vehicle for over 3 years without being put to use, other parts of the vehicle would necessarily require servicing due to rusts and Engine sludge due to long period of inactivity and this too will entail extra cost from plaintiff.” (See page 4 of Record of Appeal)
A claim for loss of use is a claim for special damages.
The Supreme Court expatiated on the meaning of “loss of use” in the case of Gbolade v. Oladejo (1994) I NWLR (Pt. 362) 281 at 295 thus –
“The term ‘loss of use’ is a claim for special damages. It imports a consideration of the amount disbursed or expended by the plaintiff as a result of the defendants act. Therefore, it ought to be capable of exact qualification. In the instant case, it imports consideration of the amount disbursed
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by the respondent on alternative means of transportation when he did not have the use of his motorcycle as a result of the damage caused by the 1st defendant. Accordingly since the respondent did not prove his claim under that head, it ought to have been refused.”
In the instant case, the claim of the respondent for N20,000,000.00 as compensation for loss of use of the respondent’s vehicle for the period of 3 years is a claim for special damages. Special damages must be proved strictly; with exactitude. It is not a claim which can be dumped on the Court as a liquidated claim. For a claim of special damages to succeed, it must be specifically pleaded and proved strictly as the Court is not entitled to make its own estimates on such an issue without such proof. The evidence proffered must be qualitative and credible and must lend itself to quantification. See O.M.T. Co. Ltd. v. Imafidon (2012) 4 NWLR (Pt. 1290) 323; Tsokwa Motors Nig. Ltd. v. UBA Plc (2008) 2 NWLR (Pt. 1071) 347; Emirate Airline v. Ngonadi (No. 2) (2014) 9 NWLR (Pt. 1413) 506 at 545-546; Unilorin Teaching Hospital v. Abegunde (2015) 3 NWLR (Pt.1447) 421 at 524.
In this case there
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was no specific pleading as to the means of alternative transportation used by the respondent during the period the vehicle was with the respondent, nor the amount of money spent in using the alternative transportation. Worse still, the respondent did not even adopt his witness statement on oath, meaning that no evidence was given whatsoever in respect of his case. There was no document or receipt attached to his statement on oath to show the amount of money being spent daily during the period the vehicle was with the appellant. The respondent’s claim for twenty million naira for compensation for loss of the use of the vehicle for the period of three years was therefore totally bereft of any pleading or proof whatsoever. In a claim for loss of use, as in the instant case, where the plaintiff fails to specifically plead the loss of use or strictly prove same, the claim must fail – Okeji v. Olokoba (supra); Eseigbe v. Agholor (1993) 9 NWLR (Pt.316) 128. The respondent’s claim for compensation of N20,000,000.00 for loss of the use of his vehicle fails and it is hereby dismissed.
The second aspect of the claim is general damages. The law is trite that general
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damages are losses which flow naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally assumed by law and its quantification is at the discretion of the court. See Bello v. A.G. Oyo State (1986) 5 NWLR (Pt.450 828; Kopek Const. Ltd. v. Ekisola (2010) 3 NWLR (Pt.1183) 618 S.C.; Adim v. N.B.C. Ltd (2010) 3 NWLR (Pt.1200) 543 S.C.
Where the issue of liability is established, a trial Court is entitled to make its own assessment of the quantum of such general-damages. Such general damages will only be altered or varied if they were shown to be an entirely erroneous estimate of the damages to which the plaintiff is entitled. See Beta Glass Plc. V. Epaco Holdings Ltd (2011) 4 NWLR (Pt.1237) 223; Johnson Wax (Nig) Ltd. v. Sann (2010) 3 NWLR (Pt.1181) 235. In the instant case, the averment in paragraph 7 of the statement of claim that the respondents vehicle was kept in custody of the appellant for over three years is deemed proved for default in pleadings. The respondent in my view is entitled to the award of general damages for losses which generally flow from the act of the appellant. However, the discretion
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of the Court in quantifying the amount to be awarded must be exercised judiciously and judicially.
Generally, the amount of damages to be paid to a person for breach of contract is the amount it will entail to put that person in the position he would have been if there has not been any breach of the contract. In other words, the plaintiff is only entitled to damages naturally flowing or resulting from the breach. The Courts of law when considering damages for breach of contract are not required to award damages which are speculative or sentimental unless these are expressly provided by the express terms of the contract. See G. Chitex Industries Ltd. v. Oceanic Bank International Ltd. (2005) 14 NWLR (Pt. 945) 932 at 410. It must not be on the basis of conjecture or sentiment. The circumstances of the act of the defendant which caused the plaintiff loss or injury must be examined before general damages be assessed and awarded. It must not be arbitrary. In the instant case, the award of N20 million naira as general damages as a result of breach of the appellant to repair his Mercedes Benz 600 SEL for over three years the vehicle was in the custody of the
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appellant in my view is unreasonably too high. An appellate Court will alter an award for damages where the amount is manifestly too high or manifestly too low or the judge acted upon some wrong principle of law in making the award. – Bello v. Pategi (2000) 8 NWLR (Pt.167); SPDC (Nig.) v. Tiebo VII (2005) 9 NWLR (Pt.931) 439.
The award of N20,000,000.00 was on the wrong premise that it was a claim for liquidated demand of money in consonance with Order 25 Rule 1(1) of the FCT High Court Rules, 2004. This was under a wrong principle of law. If the amount is assumed to be for general damages as argued by the respondent, it is manifestly unreasonably too high. There can be no justification for awarding a huge sum of twenty million naira as general damages, not proved special damages; the appellant to repair and deliver the respondent’s vehicle kept for over 3 years by the appellant. The sum award to the respondent as damages is like “a windfall with no basis whatsoever. See Ifeta v. S.P.D.C. (Nig.) Ltd. (2006) 8 NWLR (Pt.983) 585 at 615. The award of N20,000,000.00 (Twenty million naira) is hereby set aside.
The principle of assessment of damages
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for breach of contract generally is restituo in integram – that is, the plaintiff should be restored, as for such as money can do it, into the correct position he would have been if the breach had not occurred. In the instant case, it is for the inconvenience of depriving the respondent the use of his vehicle by the breach of contract arising from failure to repair the vehicle for over 3 years. I therefore award the sum of N900,000.00 as general damages for the breach of contract by the appellant to repair and deliver the respondent’s vehicle to him.
In the sum, this appeal succeeds partially but substantially.
There shall be no order as to costs.
ABDU ABOKI, J.C.A.: I had the opportunity to read before now, the lead judgment just delivered by my Learned Brother Tinuade Akomolafe-Wilson JCA.
I am in complete agreement with his reasoning and conclusions.
I also adjudge this appeal to be meritorious and it is hereby allowed.
TANI YUSUF HASSAN, J.C.A.: I read in draft the judgment just delivered by my learned brother, Tinuade Akomolafe – Wilson, JCA,
I agree with the reasoning
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and conclusion reached.
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Appearances:
Emmanuel I. Utomi. With him, Miss Esther N. Anso For Appellant(s)
A. D. Zubatru. With him, A.M.E. Hailey and S. Mohammed For Respondent(s)
Appearances
Emmanuel I. Utomi. With him, Miss Esther N. Anso For Appellant
AND
A. D. Zubatru. With him, A.M.E. Hailey and S. Mohammed For Respondent
