ACCESS BANK v. MANN (2021)

ACCESS BANK v. MANN

(2021)LCN/14979(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, January 27, 2021

CA/A/127/2018

RATIO

TORT: NATURE OF NEGLIGENCE

Negligence is tort that deals with a breach of duty to take care. “Negligence” is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is a conduct which falls below the standard by law for the protection of others against unreasonable risk or harm. It is also a breach of duty of care which causes a loss. It is strictly a question of fact which must be decided in the light of its own facts. What amounts to negligence depends on the facts of each case. See Salako v. State (2007) LPELR – 4569 (CA), Odinaka v. Moghalu(1992) LPELR – 2222 (SC) lghreriniovo v. S.C.C. Nig. Ltd & Ors. (2013) LPELR – 20336 (SC). PER STEPHEN JONAH ADAH, J.C.A.
DAMAGES: POSITION OF THE LAW ON AWARD OF GENERAL DAMAGES

When it comes to award of general damages the law requires that the award will be able to assuage the loss which flows naturally from the act of the defendant.
It is trite law that general damages assuage such a loss which flows naturally from the act of the defendant. General damages is such that the law presumes to be the direct and probable consequence of the act complained of. It is also trite law, that general damages are regarded as damages at large as such a judge/Tribunal can award it simply by taking into consideration of the motive and conduct of the defendant where they aggravate the injury done to the plaintiff. Unlike special damages which must be specifically pleaded and strictly proved, general damages need not be specifically pleaded or proved by evidence. This is because a Court can simply infer the damages and make such award of general damages once it is generally averred. PER STEPHEN JONAH ADAH, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

ACCESS BANK PLC APPELANT(S)

And

NIMA SALMAN MANN RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on the 11th day of December, 2017, coram: Chizoba N. Oji, J.

The Plaintiff now the Respondent commenced this suit by a Writ of Summons and Statement of Claim filed on 27th April, 2015, and claimed against the Defendant now Appellant the following reliefs:
1. A DECLARATION that the loss of the plaintiff’s investments/funds at the Defendant bank was/is a result of inexplicable and un-condonable negligence of the defendant.
2. A DECLARATION that the plaintiff is entitled to her full investments and interest thereof together with damages.
3. AN ORDER of the Honourable Court directing the Defendant to pay the plaintiff forthwith the following sums of money.
(i) N880,000,000 (Eight Hundred and Eight Thousand Naira) only being the plaintiff’s principal sum on her first investment with the Defendant.
(ii) N10,849.2 (Ten Thousand Eight Hundred and Forty-Nine Naira Two Kobo) only being the 5% per annum profit on the plaintiff’s first investment with the Defendant

for the period between 8th April, 2011 to 9th May 2014 and N3,616.4 (Three Thousand Six Hundred and Sixteen Naira and Four Kobo) only per annum from 9th May, 2014 until the final liquidation of the plaintiff’s investment and the interest thereof.
(iii) N5,000,000.00 (Five Million Naira) only being the Plaintiff’s principal sum on her second investment with the Defendant.
(iv) N1,050,000.00 (One Million and Fifty Thousand Naira) only being the 7% per annum on the Plaintiff’s second investment with the Defendant for the period of April to May 2014 and N350,000 (Three Hundred and Fifty Thousand Naira) only per annum from May 2014 until the final liquidation of the principal investment and the interest thereof.
(v) N1,200,000.00 (One Million Two Hundred Thousand Naira) only being the interest the Defendant cause (sic) the plaintiff to pay on the N6,000,000.00 the Plaintiff was compelled to borrow as a result of the Defendant’s inability to produce the Plaintiff’s fund when dare (sic) need arose.
(vi) N500,000.00 (Five Hundred Thousand Naira) only being the otherwise avoidable sum the Defendant made the plaintiff to incur on solicitor’s fee.

The sum of N50,000,000.00 (Fifty Million Naira) only in favour of the Plaintiff and against the Defendant to the detriment of the plaintiff (as orally amended on 9th March, 2017).
5. 10% post judgment interest until final and full liquidation of the judgment sum.
6. Cost of this proceedings.

Parties filed and exchanged their respective pleadings and the matter proceeded in full hearing. In a considered judgment delivered on the 11th December, 2017, the trial Court entered judgment in favour of the respondent and granted the reliefs sought by the respondent with N50,000.00 cost of this action.

Dissatisfied with the said Judgment, the appellant initiated this appeal vide a Two (2) Ground Notice of Appeal filed on the 18th day of January, 2018. The record of appeal was transmitted to this Court on 21/02/2018.

In line with the rules of this Court, parties filed and exchanged their respective briefs of arguments. Appellant’s Brief of argument was filed on 5/04/2018 while the Respondent’s Brief of Argument was filed on 17/7/2018.

Parties subsequently filed Cross-Appellant and Cross-Respondent’s Briefs of Argument on

17/07/2018 and 22/03/2019, respectively.

The appellant in his brief distilled two issues for determination of this appeal, thus:
1. Was there any evidence before the trial Court to support the award of N1,200,000.00 (One Million, Two Hundred Thousand Naira) in favour of Plaintiff which was claimed to be “interest” on a loan? (Ground 1 of the Notice of Appeal).
2. In the particular circumstances of the case, was the award of N5,000,000.00 (Five Million Naira) as general damages for negligence justified? (Ground 2 of the Notice of Appeal).

In response, counsel for the respondent adopted the two issues formulated by the appellant for the determination of this appeal.

I shall therefore, adopt the two (2) issues formulated by the appellant and adopted by the respondent in deciding this appeal. I now start with issue one.
Issue One:
This issue is – was there any evidence before the trial Court to support the award of N1,200,000.00 (One Million, Two Hundred Thousand Naira) in favour of Plaintiff which was claimed to be “interest” on a loan?

Counsel for the Appellant while arguing this issue submitted that there was no

evidence before the trial judge to support the award of N1,200,000.00 (One Million Two Hundred Thousand Naira) claimed as “interest” on a loan of N6,000,000.00 (Six Million Naira) claimed to have been obtained from an unnamed party and not otherwise supported by any form of documentary evidence. That the Court was not right in the manner it awarded the sum of N1,200,000.00. That the alleged loan was not in any way proved by the Plaintiff who asserted it as a fact and the burden of proof lay squarely on the Plaintiff/Respondent, it was never discharged nor shifted to the Defendant/Appellant. He referred this Court to page 115 of the Record of Appeal on relief 3 and the findings of the trial Court. Where the trial Court held and I quote that: “the plaintiff pleaded this interest N1.2m on N6m loan in paragraph 15 of the statement of claim thus: …I agree with the plaintiff that mere ipse dixit evidence will suffice in this instance. I grant relief 3 (v) to the Plaintiff as prayed”. That pleadings not backed up by evidence goes to no issue. He relied on Ifeta v. S.P.D.C. (2006) 8 NWLR (Pt.983) 585 at 600-601; Woluchem v. Gudi (1981) 5 SC 291;

Uwegba v. A.G. Bendel State (1986)1 NWLR (Pt.16) 303; Jeje v. UBA (2007) All FWLR (Pt.381)1783 at 1793; Yakubu v. UBA Plc (2012) All FWLR (Pt. 611) pg. 1468 @ 1494.

That the Respondent did not produce before the trial Court any loan agreement or offer letter of loan over which interest is payable. That the claim for interest is in realm of special damages which requires specific proof of the entitlement to same. The claim for interest must adduce credible evidence for the entitlement to the interest by credible documentary evidence. He relied on the case of Sani Abacha Foundation for Peace & Unity v. U.B.A. Plc (2010) All FWLR Pt.522 Pg.1668 at page 1674 paras D-E; Int’l Trade Bank Plc v. Kautal Hairu Co. Ltd (2006) All FWLR Pt 292 Pg.116.

Counsel submitted that the Respondent/Plaintiff did not lead evidence to her entitlement of interest throughout the proceedings. He relied on N.S.C. Ltd v. MOJEC International Limited (2005) All FWLR Pt.262 Pg.475 @ 495 and Hausa v. First Bank Plc (2000) FWLR Pt.29 @ Pg. 2516 & 2525. He urged the Court to hold that the respondent is not entitled to any interest.

Counsel submitted that the conclusion of the trial

judge at page 12 of the judgment and page 116 of the Record of Appeal is not supported or backed up by any shred of evidence of the Plaintiff/Respondent. That assuming the position of the law is as stated above, is not in all cases applicable and especially in the instant appeal. Where a claim requires a strict proof, the mere fact that the Defendant does not deny the averment. That the Respondent has a duty to put forward before the trial Court evidence in support of the claim for interest on a loan by the Plaintiff/Respondent. That the conclusion of the trial judge is with due respect misconceived as it is the duty of the Plaintiff/Respondent to prove her case before the Lower Court. He relied on the case A.C.B. Plc v. Haston (Nig) Ltd (1997) 8 NWLR (Pt.515) 110 at 134. That award of interest is in the realm of specific and special damages which cannot be granted as a manner of course. The purported silence of the Appellant (which is not conceded) as reasoned by the trial judge cannot and should not be regarded as assent; or be used as a substitute for proof by evidence.

He maintained that the Appellant/Defendant in the instant appeal traversed all the

averments of the Plaintiff/Respondent at the lower Court. That in the instant case at the lower Court, the trial judge should have considered the general traverse of the Appellant/defendant in the opening paragraph of her statement of defence which was contained in page 57 of the Record of Appeal. He relied on the case of Dairo v. Registered Trustees, T.A.D. Lagos (2017) LPELR-42573 (SC) (pp 14-17, paras C- F); Ugochukwu v. Unipetrol (Nig.) Plc (2002) LPELR-3321 (SC). That the Plaintiff/Respondent before the lower Court had the burden to proof that she actually took the loan in the sum of N6,000,000 (Six Million Naira) from the third party, and paid the sum of N1,200,000.00 (One Million Two Hundred Naira) as interest on the said loan. He cited Yusuf v. Adegoke (2007) All FWLR Pt 385 Pg 384 @ Pg 405. Furthermore, that the Plaintiff/Respondent did not tender or show anything before the lower Court to claim for the interest:
i. The loan agreement if any.
ii. The details of the particular person or institution that coughed out the sum to the Plaintiff/Respondent.
iii. The date the sum was allegedly borrowed.
iv. Whether the person or the

institution is a moneylender as defined, described and in the contemplation of the Moneylenders Act (Section 114) to be entitled to the claim of interest on a borrowed sum (Nwankwo v. Nzeribe (2004) 13 NWLR Pt. 890). That the germane issues/points which would in the normal circumstance weigh and tilt the scale of justice in favour of the Plaintiff/Respondent at the lower Court and the trial judge still awarded the sum to the Plaintiff/Respondent.

Counsel stated that the law is trite that the Court should not speculate on issues that are not before it and when issues are left in doubt, the person on whom the burden of proof lies most fail. He relied on the case of Danjuma v. Dogari (1998) 6 NWLR (Pt.553) P.234 at 237; Buba v. Bukar (2003) FWLR (Pt.183) P.38 @ page 71 paras B-D.

Counsel urged this Court to resolve this issue in favour of the Appellant and against the Respondent. He cited Obiaku v. Ekesiobi (2003) FWLR (Pt.166) P.661 @ 668 paras E-G.

Counsel for the Respondent while canvassing this issue submitted that the Respondent was/is entitled to the award of N1,200,000.00 granted by the trial Court. That it is in evidence that the

respondent was made to incur 20% (i.e. N1,200,000.00) interest on the N6,000,000.00 loan she took as a result of the failure of the defendant to return her investments when she directly needed her monies. (see paragraph 16 of the plaintiffs witness statement on oath at pages 10 and 35 of the record). That the appellant did not either in the statement of defence or in evidence, specifically deny/controvert/challenge this respondent’s claim nor her evidence thereon. The appellant also failed to cross-examine the respondent on the claim to test the veracity or otherwise of such claim despite ample opportunity given during trial. That it is thus safe for the trial Court and of course this Court to rely on the unchallenged evidence of the respondent in awarding the claim. He cited the case of Arabambi v. Advance Beverages Ind Ltd (2006) All FWLR (Pt.295) 581 at 609 E-F; U.B.N. Plc v. Chimaeze (2014) All FWLR (Pt.734) 48 at 72 D-E.

He maintained that the Respondent was/is palpably and justifiably entitled to her head of claim (i.e. the N1,200,000.00 under paragraph 3.v of the relief clause in the statement of claim) having led evidence as to:

How the appellant’s inexplicable failure to return her investments when needed compelled her to take loan of N6,000,000.00 on which she incurred 20% interest;
ii. The specific amount being claimed (i.e. N1,200,000.00); and
iii. The non-challenge of the respondent’s testimony thereon. That it is also settled that where evidence is unchallenged, the Court ought to accept such evidence in proof of a fact in issue. He cited Folorunsho & Anor v. Shaloub (1994) 3 NWLR (Pt.333) P.413 at 433 B-H and un-challenged evidence of special damages is accepted as proof of the claim. He relied on Audu v. Okeke (1998) 3 NWLR (Pt.542) 373 ratio 5 and Int’l Nigerbuild Construction Co. Ltd v. Giwa (2002) FWLR (Pt.107)1312 at 1354 B-D.

Counsel submitted that “in purely commercial transactions, a party who holds on to the money of another for a long time without any justification and thus deprive that other of the use of such funds for the period should be liable to pay compensation by way of interests… even where interest is not claimed in writ, the Court can, in appropriate cases, award interest in the form of consequential order”.

He cited A.G. Ferror & Co. Ltd v. H.C.N.L. (2011) All FWLR (Pt.587) 647 at 657-658 H-A. That the appellant weathered much storm arguing that the uncontroverted and unchallenged averment cum evidence of the respondent on this head of claim was “generally traversed” whereas the settled position of the law is that a general traverse is not enough or effective to deny material facts. He relied on U.B.N Plc v. Chimaeze (supra) at 75-76 H-B.

Counsel urged this Court to discountenance the appellant’s submissions with the cases cited in their entirety and to hold that this Court has no reason to interfere with the findings of the trial Court and resolve this issue against the appellant and in favour of the respondent.

On this issue, the argument is centered on whether the loan of N6M and the 20% interest claimed was proved before the lower Court granted the relief.

In paragraphs 15 and 18 (3)(v) of the Statement of Claim, the Respondent (the Plaintiff at the lower Court) averred in clear terms as follows:
15. The Plaintiff avers that, midway, she was compelled by the inexplicable misappropriation or misplacement of her funds by the Defendant in the preceding paragraphs

to go borrowing the sum of N6,000,000.00 with attendant interest at 20% per annum.
…
18(3)(v) N1,200,000.00 (One Million Two Hundred Thousand Naira) only being the interest the Defendant caused the Plaintiff to pay on the N6,000,000.00 the Plaintiff was compelled to borrow as a result of the Defendant’s mishandling of the Plaintiff’s investments and the Defendant’s inability to produce the Plaintiff’s funds when dare need arose.

The appellant was Defendant at the lower Court averred at paragraph 11 in response to the pleadings of the Respondent as follows:
11. The Defendant vehemently denies paragraphs 16, 17 and 18 of the Plaintiff’s Statement of Claim and further states that she was not a privy to any contractual agreement that Plaintiff had with any third party and denies any liability for any damages consequent upon any alleged breach of contract. The Defendant put the Plaintiff to the strictest proof of the averments contained therein.

Since the averment of the Plaintiff was not admitted in the pleadings, the implication is that the Plaintiff who asserted that he took loan at the interest rate of 20% must prove the

assertion as required. The issue of another loan was not fully pleaded. The particulars of the loan such as which bank or facility and the tenure of the loan was not given. The loan was meant to be a specific claim and it ought to be specifically pleaded and proved. There is not in evidence any document of the grant of the loan. It is therefore, not proven as required that the Respondent took a loan of N6M with a 20% interest thereon. It follows therefore, that issue one can only be resolved in favour of the Respondent.

Issue Two:
This issue is – in the particular circumstances of the case, was the award of N5,000,000.00 (Five Million Naira) as general damages for negligence justified?

Counsel for the appellant while canvassing this issue referred this Court to page 116 of the record of appeal and submitted that the lower Court was not right when it awarded the sum of N5,000,000.00 (Five Million Naira) as damages for negligence before the lower Court. He referred this Court to pages 1-8 of the Record of Appeal which contains the Writ of Summons and Statement of Claim of the Respondent. That there is nowhere in the pleadings that the

Plaintiff/Respondent pleaded and gave particulars of the alleged act of negligence which is the required standard in action founded on Negligence. Counsel submitted that in a case of negligence, the Plaintiff/Respondent must not only plead the particulars of negligence or particularize the negligence acts to enable the other party react to same; he must also lead evidence on the negligent act.

Counsel stated that it is trite that for a party to succeed in a claim of negligence, three (3) things must be proved namely:
1. That the Defendant owed the plaintiff duty of care.
2. That the duty was breached by the Defendant
3. That the plaintiff suffered damage as a result of the breach.

That these three (3) conditions must be met jointly. He relied on the case of First Bank of Nigeria Plc v. Excel Plastic Industry Limited (2003) All FWLR Pt.160 Pg.1624 @ Pg.1655 paras B-F; Ighreriniovo v. S.C.C. Nigeria Limited (2013) Pt. 700 Pg. 1240 @ 1248. That the Plaintiff/Respondent failed to plead and prove negligence against the Appellant/Defendant before the lower Court. Despite this omission, the trial judge awarded the sum of N5,000,000.00

(Five Million Naira) as damages for negligence against the Appellant/Defendant. Damages are not granted in vacuo and must flow from an injury. That the award of damages in a civil claim is guided by well- established principles of law and referred this Court to pages 1- 10 of the record of appeal. That there was nothing before the lower Court to warrant the grant of damages to the Plaintiff/Respondent. That in the instant suit, there was no evidence of any injury suffered by the Plaintiff upon which the trial judge may safely anchor an award of damages. He cited Maja v. Samouris (2002) vol. 8 M.J.S.C. Pg 103 @ 121 paras A; U.B.N. Plc v. Chimaeze (2014) 9 NWLR Pt.1411 Pg. 166 @ 191; Agbi v. Ogbeh (2006) All FWLR Pt.329 Pg.941 @ 988 paras A-B.

Counsel submitted that the act of the trial judge amounts to double compensation and urge this Court to so hold. He cited the case of Tsokwa Motors (Nig.) Ltd v. United Bank for Africa Plc (2008) LPELR-3266 SC. Counsel urged this Court to resolve this issue against the Plaintiff/Respondent and in favour of the Appellant/Defendant.

Counsel for the Respondent while arguing this issue submitted that award of

damages is largely discretionary. The discretion must be exercised judiciously and judicially. He cited the case of Aniekan Amos Peters v. Asst. Insp. General of Police (2001) FWLR (Pt 49) 1449 ratio 1. That it is a trite law that in the event of a defendants (appellant’s) unlawful withholding of a plaintiff’s (respondent’s) money, as in this appeal, award of substantial damages in favour of the respondent becomes necessary. He relied on S.P.D.C Ltd v. Nwabueze (2014) All FWLR (Pt.724)117 at 138 D.F.

Counsel submitted that it is common knowledge that the value of the naira has greatly depreciated as at the year (2017) of the judgment in this appeal compared to its value in 2013. This was admitted by DW1 (a banker and branch manager) under cross-examination when he responded that the value of a naira to dollar in 2011 and 2013 was around N 160/$1 but that a naira to a dollar now (in 2017) was above N300/$1 at page 101 of the record. That the respondent now requires more than double of the sums of money fixed with the appellant to have similar value in her investment had in 2011 and 2013; and to place the respondent on the financial strength she would have

been if she was paid as and when due in the year 2013. That the trial Court was right to have taken judicial notice of the loss of value of naira in its assessment and awarded damages of N5,000,000.00. That it is our position that the award should have been much more than the sum awarded. He relied on A.G. Ferror & Co Ltd v. H.C.N.I. (supra) at 657-658 H-A.

Furthermore, the appellant relating to ingredients of negligence is misplaced in the peculiar circumstance of this appeal. That it is not contention in this case that:
i. The appellant is the banker of the respondent.
ii. The respondent fixed her monies with the appellant.
iii. The respondent called for the liquidation of her investments since 2013.
iv. The appellant could not trace the respondent’s investments and thus failed to pay the respondent on request.
v. The appellant’s failure to act worked great hardship on the respondent.
vi. The respondent’s investments had lost value since 2013 when she made the call for liquidation.

It is undoubtable that the appellant owed the respondent has a duty of care; that duty was breached with is a fortiori for

entitlement of the respondent to damages. That the duty of care is ingrained in banker/customer relationship by operation of law. He relied on Diamond Bank Plc v. Wellcare Alliance Ltd (2015) LPELR-40762 CA 29-30 E-C; S.P.D.C. Ltd v. Nwabueze (supra); A.G. Ferroro & Co. Ltd v. H.C.N.L.(supra) and U.B.N. Plc v. Chimaeze (supra) at 71-72 H-B.

Counsel pointed out that the appellant breached the fiduciary relationship it owed the respondent when it misplaced the respondent’s investments and failed to liquidate and pay up the respondent upon request. Counsel urged this Court to resolve this issue in favour of the respondent and against the appellant.

The relationship between the parties is originally that of contract between the appellant Bank and the Respondent customer of the appellant. Negligence is tort that deals with a breach of duty to take care. “Negligence” is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is a conduct which falls below the standard by law for the protection of others against unreasonable risk or harm. It is also a breach of duty of care which

causes a loss. It is strictly a question of fact which must be decided in the light of its own facts. What amounts to negligence depends on the facts of each case. See Salako v. State (2007) LPELR – 4569 (CA), Odinaka v. Moghalu(1992) LPELR – 2222 (SC) lghreriniovo v. S.C.C. Nig. Ltd & Ors. (2013) LPELR – 20336 (SC).
In the instant case, the Respondent made a claim of negligence. The facts of this allegation must be strictly proved as a matter of facts. The respondent did not prove the issue of the loan of N6M and the interest rate of 20% to enable the lower Court accord him the said relief. This issue two is resolved in favour of the appellant.

From the foregoing, the appeal has some bit of merit. It succeeds in part. The appeal is allowed in part. The sum of N1,200,000 as interest on a loan not proved cannot be awarded by the lower Court. The award is wrong. It is set aside. On the issue of N5M general damages for the tort of negligence which was general damages awarded, the appellant complained that the claim was not proved. The appellant did not disprove or put up any effective or successful defence for the allegation of causing the

respondent loss when his investment was not returned to him on demand. When it comes to award of general damages the law requires that the award will be able to assuage the loss which flows naturally from the act of the defendant.
It is trite law that general damages assuage such a loss which flows naturally from the act of the defendant. General damages is such that the law presumes to be the direct and probable consequence of the act complained of. It is also trite law, that general damages are regarded as damages at large as such a judge/Tribunal can award it simply by taking into consideration of the motive and conduct of the defendant where they aggravate the injury done to the plaintiff. Unlike special damages which must be specifically pleaded and strictly proved, general damages need not be specifically pleaded or proved by evidence. This is because a Court can simply infer the damages and make such award of general damages once it is generally averred.

From the facts before the Court, the money of the respondent which summed up the investment that was trapped was not up to Seven Million naira. What was put in with the interest was N880,000

plus interest of N3,616.4 and N5M plus interest of N350,000. The total claim was about N6,233,616. If this was the total investment trapped, then the general damages of N5,000.00 was excessive.

In our view, the damages which would actually assuage the loss should be N2M. This would have been the adequate amount to be awarded as damages and it is hereby ordered. This be awarded in place of N5M. The damages of N5M awarded is excessive and it is reduced to N2M, which shall be the damages due to the respondent.
Parties to bear their respective costs.

CROSS-APPEAL:
This cross-appeal emanated from parts of the decision of Hon. Justice Chizoba N. Oji of the High Court of the Federal Capital Territory delivered on the 11th December, 2017, in which His Lordship found in favour of the plaintiff (cross-appellant) and granted her various claims but refused the head claim for solicitors’ fee. Also, the general damages awarded by the trial Court, to the cross-appellant, was not commensurate in the circumstances of this case.

The cross-appellant been dissatisfied with parts of the said judgment filed a Notice of cross-appeal on the 8th day of

March, 2018 containing three grounds and transmitted to this Court on 3rd May, 2018.

Cross-appellant’s brief was filed on 17/07/2018 but deemed properly filed on 2/11/2020 while the cross- respondent’s brief was filed on 23/3/2018 and deemed properly filed on 2/11/2020. The Cross-appellant in his brief distilled two issues for determination of this cross-appeal, thus:
1. Whether this honorable Court should not interfere and review upward the general damages of N5,000,000.00 awarded to the cross-appellant by the learned trial judge?
2. Whether the trial Court was not wrong by dismissing the cross-appellant’s relief 3 vi. (i.e. N500,000.00 solicitor’s fee) given the facts and circumstances of this cross-appeal and the latest state of the law on the head of claim.

In response, counsel for the Cross-respondent adopted the two issues formulated by the Cross-appellant for the determination of this Appeal.
Issue One:
This issue is – whether this Honorable Court should not interfere and review upward the general damages of N5,000,000.00 awarded to the cross-appellant by the learned trial judge?

Counsel for the cross-appellant while arguing this issue conceded that the award of damages is largely discretionary. That the discretion must be exercised judiciously and judicially. He relied on Aniekan Amos Peters v. Asst. Insp. General of Police (2001) All FWLR (Pt.49) 1449 ratio 1.

That it is trite that in the event of a defendants(appellant’s) unlawful withholding of a plaintiff’s (respondent’s) money, as in this appeal, award of substantial damages in favour of the respondent becomes necessary. He relied on S.P.D.C Ltd v. Nwabueze (2014) All FWLR (Pt.724)117 at 138 D-F.

Counsel submitted that it is common knowledge that the value of the naira has greatly depreciated as at the year (2017) of the judgment in this appeal compared to its value in 2013. This was admitted by DW1 (a banker and branch manager) under cross-examination when he responded that the value of a naira to dollar in 2011 and 2013 was around N160/$1 but that a naira to a dollar now (in 2017) was above N300/$1 at page 101 of the record. That to achieve the standard set by this honorable Court in S.P.D.C. Ltd v. Nwabueze (supra), it means that the Cross-appellant hereof now requires more than double of the sums

of money (N5,000,000.00) fixed with the cross-respondent to have similar value on her investments had in 2011 and 2013; and to place the cross-appellant on the financial strength she would have been if she was paid as and when due in the year 2013. This being the case and given the facts, evidence and circumstances of this cross-appeal. That the trial Court ought to award at least triple of the sums of the investments to have similar value to the investments had at inception in 2011 and 2013 when liquidation/payment was effectively due to cross-appellant.

Counsel submitted that the trial Court having rightly found and held the cross-respondent liable for the breach of fiduciary relationship that existed between the parties hereof as well the inexplicable ineptitude, crass-unprofessionalism, breach of contract and negligence by the cross-respondent, the trial Court was bound to award substantial damages that could possibly put the cross-appellant in the position she would have been but for the cross-respondent’s act/in action. That the N5,000,000.00 award of damages is not commensurate in the circumstances of this cross-appeal and urged this Court to

graciously review the award upward to the sum of N25,000,000.00 (Twenty-five million Naira) only. He relied on U.B.N. Plc v. Chimaeze (2014) All FWLR (Pt.734) 48 at 76 C.D.

Counsel pointed out that the facts, evidence and circumstances of this cross-appeal that the N5,000,000.00 damages awarded by the trial Court was/is small and there is need to increase same as was done in the case of U.B.N. Plc v. Chimaeze (supra) where this Court increased the trial Court’s general damages award of N100,000.00 (One Hundred Thousand Naira) to N1,100,000.00 (One Million One Hundred Thousand Naira only) and on further appeal, the Supreme Court affirmed the increase.

Counsel urged this Court to resolve this issue in favour of then cross-appellant and increased the award of general damages to N25,000,000.00 (Twenty-Five Million Naira) only.

Counsel for the cross-respondent submitted that the above issue, as formulated by the cross-appellant be answered in the negative. That it is trite and well settled in our jurisprudence that damages are awarded on sound legal footing consequent upon a discharge of the burden of proving the allegation against the other

party. He relied on Yusuf v Adegoke (2007) All FWLR Pt. 385 Pg 384 @ 405.

Counsel submitted that the required standard is that an action is founded on negligence must particularize the alleged acts constituting the alleged negligence. This is the only thing that can form the basis upon which the trial Court can then act. That this was not the case when the trial Court awarded the sum of N5,000,000.00 (Five Million Naira) as general damages in favour of the cross-appellant against the cross-respondent. That in a case of negligence, the Cross-Appellant/Plaintiff must not only plead the particulars of negligence or particularize the alleged negligent acts to enable the other party react to same and also lead evidence on same. That this was not same at the trial Court and it is trite that for a party to succeed in a claim of negligence, three (3) things must be proved namely:
1. That the defendant owed the plaintiff duty of care.
2. That the duty was breached by the defendant.
3. That the plaintiff suffered damages as a result of the breach.

Furthermore, these three (3) conditions must be met jointly.

He relied on First Bank of Nigeria Plc v. Excel Plastic Industry Limited (2003) All FWLR Pt. 160 Pg. 1655 paras B-F and lghreriniovo v. S.C.C. Nigeria Limited (2013) Pt. 700 Pg. 1240 @ 1248. That there was nothing before the lower Court to warrant the grant of damages to the Cross-Appellant/Plaintiff. No proof was submitted to the Court and the existence of indices for the award of the damages is also absent to quantify the grant of same. It is well settled that averments in pleadings not backed by evidence goes to no issue and should be discountenanced. That Courts cannot embark on voyage of discovery for any party to a suit. He relied on Maja v. Samouris (2002) Vol. 8 M.J.S.C. Page 103 @ 121 Para A and U.B.N. Plc v. Chimaeze (2014) 9 NWLR Pt. 1411 Pg 166@191. That the Cross-appellant/Plaintiff having failed to lay before the Court indices of calculation in certain terms to entitle her to damages, the Cross-Respondent is therefore at a loss as to the indices the trial judge used in its computation to arrive at the sum of N5,000,000.00 (Five Million Naira) awarded as damages to the Cross-appellant/Plaintiff. This is necessitated by the fact that a party cannot foist on this Court the enormous

task of speculating the indices to grant damages as the Courts have being enjoined to refrain from. He relied on Agbi v. Ogbeh (2006) All FWLR Pt. 329 Pg 941 @ 988 paras A-B.

Counsel pointed out that the alleged act of negligence was not pleaded or proved anywhere in the statement of claim before the trial Court. That the award of damages is therefore not standing or grounded on any footing which can be sustained by this Appellate Court. It is trite that something cannot be placed on nothing and expect it to stand. He relied on Sken Consult v. Ukey (1981) 1 SC 6 at 27; Macfoy v. UAC (1962) AC 152; S.P.D.C. Ltd v. Nwabueze (2014) All FWLR (Pt.724) Pg. 117 at 138 D-F; A.G. Ferroror & Co. Ltd v. H.C.N.L. (2011) All FWLR (Pt.587) 647 at 657-658 H-A. That the trial judge’s award of the sum of N5,000,000.00 (Five Million Naira) as damages despite the award of the claim of the principal investment together with interest thereon amounts to double compensation which has been decided upon severally that Courts should avoid the grant of double compensation in claims/suit before them.

Counsel submitted that the act of the trial judge amounts to double

compensation and urged this Court to so hold and resolve this issue against the cross-appellant. He relied on Tsokwa Motors (Nig.) Ltd. v. United Bank for Africa Plc (2008) LPELR-3266 (SC).

Issue Two:
This issue is – whether the trial Court was not wrong by dismissing the cross-appellant’s relief 3 vi. (i.e. N500,000.00 solicitor’s fee) given the facts and circumstances of this cross-appeal and the latest state of the law on the head of claim.

Counsel for the Cross-appellant canvassed that the cross- appellant was/is equally entitled to her relief 3vi. (i.e. N500,000.00 solicitors fee) as a head of claim which was amply proved before the trial Court vide Exhibit P8. Exhibit P8-1 to which no-objection was raised by the cross-respondent neither was averment and evidence led on same controverted or challenged by the cross-respondent. He relied on Naude v. Simon (2014) All FWLR (Pt.753) 1878 at 1905 A-B; Folorunsho & Anor v. Shaloub (1994) 3 NWLR (Pt.333) 413 and Audu v. Okeke (1998) 3 NWLR (Pt.542) 373.

He maintained that the cross-appellant complied with the standard of proof required to be entitled to claim solicitors fee having

pleaded and proved same. That the cross-appellant was/is entitled to her claim on solicitor’s fee as the amount claimed is reasonable in the circumstances of this suit. He relied on U.B.N. Plc v. Chimaeze (supra) and Nwanji v. Coastal Services (2004) All FWLR (Pt.219) 1150. That assuming the decision in Nwanji v. Coastal Services (supra) is not so distinguishable; the decision no longer represents the state of our law because it was delivered since Tuesday, 22nd June, 2004 whereas the decision in U.B.N. Plc v. Chimaeze (supra) was delivered Friday, 11th April, 2014; ten years after the decision in Nwanji. That this latter decision of the apex Court takes preeminence and dominance over the former and that the trial Courts decision in dismissing relief 3 vi was/is thus wrong.

Counsel urged this Court to resolve this issue in favour of the cross-appellant and award relief 3 vi. (i.e. N500,000.00 solicitors fee) as claimed in the writ and statement of claim by the cross-appellant before the trial Court.

Counsel for the respondent while canvassing this issue submitted that the trial Court was right when the Court dismissed the claim for solicitor’s fee

considering the state of pleadings and affairs before the lower Court. That the claim for expenses incurred in prosecuting a suit claimed by the cross-Appellant/Plaintiff is in the realm of special damages must be proved strictly. That where same is not proved, the claim must fail even if its unchallenged and uncontroverted. He relied on Pioneer Milling Co. Ltd v. Nansing (2006) 5 NWLR Pt.11 Pg. 91 @ 103 and Divine Ideas Limited v. Umoru (2007) NWLR Pt. 380 Pg. 1468 @ 1509.

He maintained that it has been held that it is unethical and affront on public policy for a litigant to pass the burden of cost of an action including his solicitor’s fees to his opponent in the suit. He relied on Nwanji v, Coastal Services Ltd. (2004) All FWLR Pt. 219 Pg. 1150 @ 1167-1168 paras A-A. That the claim for the cost does not form part of the Cross-Appellant/Plaintiff’s cause of action and same was rightly refused coupled with the non-availability of evidence to substantiate the claim which is in the realm of special damages. Counsel urged this Court to so hold.

RESOLUTION OF THE CROSS-APPEAL.
We have carefully looked into the argument of parties in this

cross-appeal. The issues are in reverse of the issues we have dealt with in the main appeal. With our decision in the main appeal, this cross-appeal has no merit. It is hereby dismissed.
Parties are to bear their respective costs.

PETER OLABISI IGE, J.C.A.: I agree.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I read before now the judgment delivered by my learned brother, Stephen Jonah Adah, JCA, with whose reasoning and conclusion I entirely agree.

In that wise, I abide with the orders made therein and I make no order as to costs.

Appearances:

DAIRU ADEBAYO, ESQ. For Appellant(s)

ABDULHALEEM AMIN, ESQ. For Respondent(s)