ANENE v. ALABI & ANOR
(2022)LCN/16217(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, June 02, 2022
CA/B/332/2019
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
MR. OKAFOR ANENE APPELANT(S)
And
1. MRS. ITOHAN OSUNBOR ALABI 2. MR. PETER EKHATOR EMOVON (For Himself And On Behalf Of Iwogban Community) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE EFFECT OF FAILURE TO SERVE HEARING NOTICE OF PROCEEDING ON A PARTY IN AN ACTION
The law is trite on the effect of failure to serve hearing notice of proceeding on a party in an action. Peter Odili JSC said as follows in Achuzia V. Ogbomah (2016) LPELR – 40050 (SC) “The requirement of fair hearing implies that each party to a dispute before a Court or Tribunal must be accorded adequate opportunity to state his own side of the case under the principle of “audi alteram partem” an immutable principle and the other leg of natural justice. This position was well expatiated in the case of Ariayefah Nwaosu V. Ibejimba Nwaosu (2000) 4 NWLR (Pt. 653) 351 at 359 where it was stated as in this case in hand that the Court cannot without issuing and serving hearing notice on the party affected, proceed to abridge the time and hear evidence in the absence of the party to be affected.”
The impact of the service of process on the Defendant is well captured in the case of Sken Consult Nig. Ltd & Anor V. Sekondy Ukey (1981) 15C 6 wherein the apex Court held:
“The service of the process on the defendant as to enable him appear to defend the relief sought against him and due appearance by the party or the Counsel must be those fundamental condition precedent required before the Court can have competence and jurisdiction. This very well accords with the principle of natural justice.” PER BOLA, J.C.A.
FACTOR TO BE CONSIDERED IN ORDER FOR A PLAINTIFF TO SUCCEED ON A CLAIM OF SPECIAL DAMAGES
In order to succeed on claim of special damages, the Plaintiff must specifically plead each of the items of the special damages he claims and he must also strictly prove each of the said items to the satisfaction of the Court, as the Court is not entitled to make its own estimate of same. Strict proof of damages infact means that the evidence adduced on their proof, must show particularity in accordance with the pleadings and the claim must be based upon precise calculation so as to enable the Defendant assess to the fact which makes such calculation. See FBN PLC V. Associated Motors Coy. Ltd (1998) 10 NWLR (Pt. 569) 227; Okoronkwo V. Chukweke (1992) 1 NWLR (Pt. 216) 175, Ngilari V. Motor Car Ltd (1999) 13 NWLR (Pt. 636). It is trite law that each item of special damages claimed must be specifically proved and such proof must also be characterized by testimony that ties each item with the proof preferred. See Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185. PER BOLA, J.C.A.
THE POSITION OF LAW ON GENERAL DAMAGES
Abiru JCA held in the case Access Bank V. Ugwuh (2013) LPELR – 20735 (CA) thus:
“Now, general damages means such as the law itself implies or presumes to have occurred from the wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily result from the injury or such as are that did infact from the wrong, directly and proximately and without reference to the special character condition or the circumstances of the claimant. General damages are such as the Court may give when the Judge cannot point out any measure by which they are to be assessed, except by the opinion and Judgment of a reasonable man.
Unlike special damages which must be pleaded specially and proved strictly the award of general damages is determined by what is reasonable in the circumstance of the case. Eneh V. Ozor (2016) 16 NWLR (Pt. 1538) 219 at 238. Unlike special damages, it is generally incapable of exact calculation. See Union Bank V. Chimaeze (2014) 9 NWLR (Pt. 1411) 166 at 192 – 193. PER BOLA, J.C.A.
ADEMOLA SAMUEL BOLA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the lower Court delivered on 23rd day of November, 2012 by Hon. Justice V.O. Eborieme of the Edo State High Court of Justice Benin City. The decision was in favour of the 1st Respondent (Claimant) against the 1st Defendant at the lower Court.
Piqued by the decision of the lower Court, the Appellant filed his Notice of Appeal at the trial Court on 15th April, 2019. The Records of Appeal was transmitted to this Court on 31st May 2019.
The Appellant’s Brief of Argument was filed on 4/7/2019 while the 1st Respondent’s Brief of Argument was filed on 21/2/22 and deemed properly filed and served on 30/3/2022. The 2nd Respondent filed no Brief of Argument.
BACKGROUND TO APPEAL
The 1st Defendant now Appellant via a Motion filed a statement of defence on 6th day of April, 2010. By an application filed on the 29th day of November, 2010, the Appellant filed a Consequential Statement of Defence and Counterclaim in response to the Claimant (1st Respondent) Further Amended Statement of Claim. The 2nd Defendant (2nd Respondent) was joined as a party to the suit by the order of Court dated the 8th day of December, 2011. The 2nd Defendant was duly served with all the Court processes.
The Claimant (1st Respondent) in proof of his case testified and called two witnesses. She also tendered some documents. The 1st Defendant now Appellant and the 2nd Defendant now 2nd Respondent did not testify in respect of the suit. Consequently, the trial Judge concluded the case and entered judgment in favour of the Claimant (1st Respondent). The 1st Defendant now Appellant dissatisfied with the judgment appealed by filing a Six ground Notice of Appeal.
ISSUES FOR DETERMINATION: APPELLANT’S BRIEF
The Appellant formulated four issues for consideration in his brief which are:
1. Whether the failure of the learned trial Judge to give the Appellant an opportunity to be heard and/or present his case did not result in a denial of his right to fair hearing as entrenched in the 1999 Constitution of the Federal Republic of Nigeria (Ground 1).
2. Whether the failure of the learned trial Judge to give the Appellant the opportunity to prosecute the counter-claim after the Plaintiff closed her case did not constitute denial of fair hearing and which occasioned a miscarriage of Justice (Ground 2).
3. Whether the learned trial Judge was right when he awarded the Respondent N1,927,000.00 (One Million, Nine Hundred and Twenty Seven thousand Naira as proven items of special damages (Ground 4).
4. Whether the trial Court has correctly applied the principle of law in award of general damages (Ground 5).
From the above, it is clear that no issue emanated from Ground 3 of the Notice of Appeal. The issues distilled flow from Grounds 1, 2, 4 and 5 of the Notice of Appeal. It is settled law that where no issue is formulated from a ground of appeal, the ground will be deemed abandoned. Okereke V. Umahi (2016) 11 NWLR (Pt. 1524) 438 at 464. In other words, any ground of appeal from which no issue has been distilled is deemed abandoned and no argument can be countenanced on such ground of appeal by the Court. The grounds are incompetent. See Saliu V. Wasiu (2016) 5 NWLR (Pt. 1506) 423 at 535, Ibrahim V. Mohammed (2003) 6 NWLR (Pt. 817) 615 at 647. Ground 3 from which no issue is distilled is deemed abandoned and discountenanced accordingly.
ARGUMENT OF ISSUES
In respect of issue no. 1, Appellant Counsel submitted that the issue calls for consideration whether the failure of the trial Judge to direct that hearing notices be issued to put the Appellant on notice from 24/4/2012 when the Plaintiff (1st Respondent) opened his case to 23/11/2012 when judgment was delivered resulted in an infraction of the fundamental rights of the Appellant to fair hearing entrenched in the 1999 Constitution of the Federal Republic of Nigeria. Counsel referred to Section 36 (1) of the Constitution.
It was submitted that the Plaintiff (1st Respondent) opened his case on 24/4/2012 before the trial Judge in the absence of the Defendants and their Counsel. That there was no record showing that hearing notice was served on the Defendants or that they were present in Court on the respective dates of hearing.
It was submitted that all through the trial of the substantive case from 24/4/2012 to 23/11/2012 when judgment was delivered, there was nothing on the records to show that the Appellant was aware of the dates of hearing neither did the Court deem it necessary to put him on notice by ordering the issuance of hearing notice to be served on the Appellant. That there was nothing on records to show the Appellant was ever aware of the hearing dates.
Appellant’s Counsel Harold G. Erhabor submitted that one of the essential elements of natural justice was that both sides to a case should not only be heard, but that they been seen in the true eyes of the law to have been heard or at least given an opportunity to be so heard. Counsel referred to the case Muobike VS. Nwigwe (2000) 1 NWLR (Pt. 642) 620 at 640.
It was submitted that the requirement of the law was that the parties should be afforded reasonable and equal opportunity to present their cases and addresses by the Court in the determination of their civil rights and obligation before a decision is taken. It was argued that where the right had been breached in a Judicial proceeding, its breach vitiates the entire proceeding. Referred to the case Kennedy V. INEC (2009) 1 NWLR (Pt.1123) 614 at 649. Counsel referred to pages 51, 52 to page 54 of the Record of Appeal as to the proceeding at the lower Court between 22/4/2015 to 18/7/2012. That no hearing notice was issued or served on the Appellant or his Counsel uptil when judgment was delivered on 23/11/2012. Counsel cited the cases Akpabuyo L.G. V. Edim (2003) 1 NWLR (Pt. 800) 23 at 44, Guinness (Nig) PLC V. Ufot (2008) 2 NWLR (Pt. 1070) 52 at 82, Obiese V. Obiese (2007) 16 NWLR (Pt. 1060) 223 at 237 and Ajanaku V. Williams (2009) 3 NWLR (Pt. 1129) 617 at 635.
It was submitted that the principle of fair hearing is fundamental to all Court procedure and proceedings and like jurisdiction, the absence of it, vitiates proceedings however well conducted. That where therefore the proceedings of a Court are vitiated, it is the duty of the Court reviewing such a decision to set it aside. Referred to the case Idakwo V. Ejiga (2002) 13 NWLR (Pt. 783) 156. Counsel urged the Court to hold that the Appellant was denied fair hearing, of the opportunity to defend himself and of the opportunity of prosecuting his counter-claim.
Counsel urged the Court to resolve issue one in favour of the Appellant.
Issue No. 2 is whether the failure of the learned trial Judge to give the Appellant the opportunity to prosecute his counter-claim after the Plaintiff closed her case did not constitute denial of fair hearing which occasioned a miscarriage of justice.
It was argued that the failure of the trial Court to give the Appellant opportunity to put up his defence or prosecute his counter-claim was a manifest denial of fair hearing to the Appellant which occasioned miscarriage of justice. That no hearing notice was served on the defendant (Appellant) after the Claimant (Respondent) closed his case. Refer to Alhaji Dan Hausa V. Panatrade (1993) 6 NWLR (Pt. 298) 204 at 215.
That issue 2 should be resolved in favour of the Appellant.
The 3rd issue is whether the trial Court was right when he awarded the Respondent N1,927,900.00 as proves special damages. That a claim for special damages must be specifically pleaded with particularization and strictly proved.
Counsel raised the issue whether the pleading in paragraph 35 (c) of the 1st Respondents statement of claim met the standard of specification and particularization. That there were no details or particulars and basis of how the money was computed and assessed. That the 1st Respondent ought to have gone further to plead the specifics with particularization of the loss cumulating into the amount of N3 Million. It was the Appellant’s contention that the learned trial Judge was wrong in awarding to the 1st Respondent the sum of N1,927,900.00 as proven items of special damages which was not specifically pleaded and strictly proved. He urge the Court to so hold.
The 4th issue is whether the trial Court has correctly applied the principle of law in award of general damages. It was submitted that an appeal Court will not disturb the award of damages of a Court of trial unless it is convinced that the trial Court acted on a wrong principle of law or if the amount so awarded is so high or low that there was an entirely erroneous estimates of damages. Counsel referred to the case of Uwa Printers (Nig). Ltd. V. Investment Trust Coy Ltd. (1988) 5 NWLR (Pt. 92) 110 on the principles to be considered in the award of damages.
It was submitted that the 1st Respondent failed to prove the special and general damages he had pleaded in paragraph 35 of his statement of claim which the trial Judge awarded him. He urged this Court to set aside the award. Referred to the case of Nzeribe V. Dave Engineering Co. Ltd (1994) 8 NWLR (Pt. 361) 124.
Finally Harold G. Erhabor Esq., of Counsel to the Appellant urged the Court to allow the appeal and set aside the Judgment of the lower Court.
1ST RESPONDENTS BRIEF OF ARGUMENT
The 1st Respondent’s Brief of Argument settled by Roland Esekhaigbe Esq., submitted one issue for determination. It is:
Whether or not the Appellant was given fair hearing in the determination of this case.
Roland Esekhaigbe Esq., for the 1st Respondent submitted that under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) in the determination of any person’s civil right and obligation he should be given fair hearing within a reasonable time by a Court or Tribunal.
Counsel submitted that the suit came up before different Judges of the Edo State High Court. Hearing notices were issued and served on the Defendants (Appellant). Two affidavits of service of hearing notices were deposed to on the 29th day of November 2011 and 2nd day of December 2011 which were duly served on the Counsel to the Appellant.
Counsel referred to the case of Okoye V. Nigeria Construction & Furniture Coy Ltd. (1991) 6 NWLR (Pt. 199) 501 at 541 where it was held.
“A party who had the opportunities of being heard but failed to utilize same as herein cannot complain of breach of fair hearing.”
Counsel argued that the Appellant was caught by estoppel by conduct, standing by and inaction. That the Appellant was guilty of estoppel by conduct by deliberately abstaining from the trial of the suit at the lower Court after filing his statement of defence and counter-claim. He referred to Section 169 of the Evidence Act 2011.
That where a party stood by and watch proceedings go on only to come up later to assert his right, such a party will not be allowed because he had waived his right. Reliance was placed on the case of Bankole V. Bankole (1986) 3 NWLR (Pt. 27) 141 at 149. That no man is allowed to profit from his own wrong. Green V. Green (2001) Vol. 45 page 90 at 138. That the law assist the vigilant, not the indolent.
Counsel held that the trial Court was right to have proceeded with the trial in the absence of the Appellant because he failed to take advantage of the opportunity given to him to come to Court to defend the suit and prove his counter-claim.
Finally Respondents Counsel urged the Court to dismiss the appeal.
Flowing from the issues crafted by the Appellant and the Respondent for consideration this Court considers the issues pertinent for determination in this appeal as follows:
1. Whether the trial Court afforded the Appellant fair hearing in the determination of the action at the lower Court.
2. Whether the sum of N1,927,000.00 (One Million, Nine Hundred and Twenty Seven Thousand Naira) awarded as special damages to the Respondent was proved prior to its award by the trial Judge.
3. Whether learned trial Judge applied correctly the principle of law in the award of general damages to the Respondent.
RESOLUTION OF ISSUES
ISSUE NO. 1.
The contention of the Appellant in the first issue is that the Appellant was not given fair hearing at the lower Court prior to the determination of the action between it and the Respondent. The Appellant was the Defendant and counter-claimant at the lower Court.
The Appellant argued that there was no hearing notice served on the Appellant when the Respondent opened his case on 24/4/2012 when the PW1 gave evidence. The same situation applied on 5/7/2012 and 18/7/99, which dates the matter was adjourned to. On these dates, neither the Defendant/counter-claimant nor his Counsel was in Court. No record of what transpired in Court on 22/5/2012. On 18/7/2012, the PW3 concluded his evidence and the Plaintiff closed its case. That all through the trial of 24/4/12 to 23/11/2012 when judgment was delivered, there was nothing in the records to show that the Appellant was aware of the hearing dates neither did the Court deem it necessary to put him on notice by ordering the issuance of hearing notices.
In order to determine whether the appropriate steps were taken towards ensuring that fair hearing was adhered to by the lower Court at the hearing of the action, this Court will examine the record of appeal and the proceedings at the hearing of the substantive matter.
Page 50 of the record reveal that the Plaintiff (Respondent) opened its case on 24/4/2012 when he began to testify. Neither the Defendant (Appellant) nor his Counsel was in Court. No evidence reveal that a hearing notice was ordered to be issued and served on the Defendant/Appellant. On page 51, the matter was adjourned to 22/5/2012 for continuation of hearing. No hearing notice was ordered to be issued and served on the Defendant/Appellant.
Page 52 of the Record reveal that the case came up for continuation of hearing on 5/7/2012 the Defendant (Appellant) was not in Court. The PW1 evidence was concluded. The PW2 commenced his evidence. The matter was adjourned to 18/7/2012 at page 54 of the Record. No hearing notice was ordered to be issued on the Defendant.
It is pertinent to observe that on 22/5/2012 which date the case was adjourned to from 24/4/2012 there is nothing on the record to show that any proceeding took placed on the aforesaid date 22/5/2012. Neither could it be said a hearing notice was ordered to be issued on that day to indicate that the matter was adjourned to 5/7/2012.
Page 55 of the record of appeal shows that the Defendant was not in Court on that day. The PW3 testified and the Plaintiff’s case concluded. The matter was adjourned to 17/10/2012 for judgment. No hearing notice was equally ordered to be issued on the Defendant/Appellant in respect of the matter adjourned.
Judgment reserved for delivering on 17/10/2012 did not take place and it was further reserved till 23/11/2012. No hearing notice of this date was served on the Appellant.
Going through the record of appeal, it could not be said any copy of the hearing notices was served on the Appellant as a Defendant/Counterclaimant at the lower Court.
The sum total of the above reveals and establishes clearly that no hearing notice was served on the Appellant in respect of the dates the matter came up for hearing uptil the delivery of judgment. In the circumstance, can be said the Appellant was afforded fair hearing by the trial Court?
The starting point is this issue of failure to serve the Appellant hearing notices at the hearing of the substantive action at the lower Court. More particularly that the record of appeal show clearly that hearing notices were neither ordered to be served nor served on the Appellant in respect of each adjournment when it was clear that neither the Appellant nor her Counsel was in Court at the proceedings.
The law is trite on the effect of failure to serve hearing notice of proceeding on a party in an action. Peter Odili JSC said as follows in Achuzia V. Ogbomah (2016) LPELR – 40050 (SC) –
“The requirement of fair hearing implies that each party to a dispute before a Court or Tribunal must be accorded adequate opportunity to state his own side of the case under the principle of “audi alteram partem” an immutable principle and the other leg of natural justice. This position was well expatiated in the case of Ariayefah Nwaosu V. Ibejimba Nwaosu (2000) 4 NWLR (Pt. 653) 351 at 359 where it was stated as in this case in hand that the Court cannot without issuing and serving hearing notice on the party affected, proceed to abridge the time and hear evidence in the absence of the party to be affected.”
The impact of the service of process on the Defendant is well captured in the case of Sken Consult Nig. Ltd & Anor V. Sekondy Ukey (1981) 15C 6 wherein the apex Court held:
“The service of the process on the defendant as to enable him appear to defend the relief sought against him and due appearance by the party or the Counsel must be those fundamental condition precedent required before the Court can have competence and jurisdiction. This very well accords with the principle of natural justice.”
Peter Odili JSC said further in Achuzia V. Ogboma (supra) that when there came about that failure to serve notice of the date of hearing on the Appellant it means that the requirement of fair hearing has not been observed and the resultant decision that followed is a nullity and cannot be allowed to stand.
In the appeal under consideration, the Appellant (Defendant/Counterclaim) was clearly left out in the proceedings from 24/4/2012 when the Plaintiff (Respondent) opened his case up till 23/11/2012 when judgment was delivered in the case at the lower Court. Clearly, the right to fair hearing of the Appellant as guaranteed under the provision of Section 36(1) of the 1999 Constitution as amended was breached by the lower Court. This render the whole proceedings at the lower Court a nullity. See also Darma V. Eco Bank Ltd. (2017) LPELR – 41663 (SC) .
Awotoye JCA held in Giwa Osagie V. Obozokhae & Anor (supra) that:
“A party to an action is entitled to be notified of every date of adjournment in the action. Hearing notices must be ordered to be issued and served on all the parties to the action. A Judge is expected to ensure this before taking any further steps in the action as proceedings would be rendered an exercise in futility, if not done.”
Without doubt, failure to serve process where service of process is required is a failure which goes to the root of jurisdiction of the Court.
Against the backdrop of the above fundamental lapses, I am of the firm view that the Appellant was not accorded fair hearing as enshrined in Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 (as amended). The consequence of a breach of one of the rules of natural justice of fair hearing is that the proceedings in the case are null and void. See Adigun V. Attorney General Oyo State (1987) 1 NWLR (Pt. 53) 678. If a principle of a natural justice is violated, it does not matter whether the proceeding was well conducted, the decision would still have been the same; the proceeding will be null and void. In other words, the decision would be declared no decision. An aggrieved party is ex debito justiciae entitled to have such a proceeding set aside. Sken Consult V. Ukey (supra), Emuakpor V. Ukavbe(1975) 12 SC 41.
Arising from the foregoing, this Court holds that the proceeding at the trial Court amounts to a nullity having failed to observe the principle of fair hearing, an abridgement of Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 (as amended). The proceedings at the lower Court being a nullity deserves being set aside ex debito justiciae. This, the Court shall proceed to do.
Issue no. 1 is hereby resolved in favour of the Appellant and against the Respondent.
The second issue relates to the award of the sum of N1,927,000:00 as special damages to the 1st Respondent against the Appellant by the lower Court.
It was the Appellant’s contention that the pleading in paragraph 35(c) of the 1st Respondent’s statement of claim did not meet standard of specification with particularization. That it was not strictly proved.
In paragraph 35(c) of the Amended statement, the Claimant claims “special damages including building materials and labour N2000,000 (Two Million Naira).”
Does the above satisfy the requirement that special damages must be specifically pleaded and strictly proved? This is against the background of the plethora of decisions to the effect that to succeed in a claim for special damages, a party must plead, particularize or itemise it. That it must be claimed specially and proved strictly. See Cameroon Airlines V. Otutuizu (2011) 4 NWLR (Pt. 1238) 512 at 544.
Special damages must be strictly proved by the party who claim such damages. The nature of proof depends on the circumstances of each case. Person claiming special damages must establish his entitlement to the particular type of damages by credible evidence of such character as would suggest that he is entitled to an award under the head, otherwise the general law as to proof of preponderance of evidence operates. See B.B. Apugo & Sons V. Orthopaedic Hospitals M.B. (2016) 13 NWLR (Pt. 1529) 206 at 256.
In order to succeed on claim of special damages, the Plaintiff must specifically plead each of the items of the special damages he claims and he must also strictly prove each of the said items to the satisfaction of the Court, as the Court is not entitled to make its own estimate of same. Strict proof of damages infact means that the evidence adduced on their proof, must show particularity in accordance with the pleadings and the claim must be based upon precise calculation so as to enable the Defendant assess to the fact which makes such calculation. See FBN PLC V. Associated Motors Coy. Ltd (1998) 10 NWLR (Pt. 569) 227; Okoronkwo V. Chukweke (1992) 1 NWLR (Pt. 216) 175, Ngilari V. Motor Car Ltd (1999) 13 NWLR (Pt. 636). It is trite law that each item of special damages claimed must be specifically proved and such proof must also be characterized by testimony that ties each item with the proof preferred. See Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185.
From paragraph 35(1) of the Amended Statement of Claim, it is clear that the 1st Respondent failed to specifically plead each of the items of the special damages he claimed. He did not particularize the items of the damages in the amended statement of claim. The special damages were lumped together under one particular items of building materials and labour which he claimed the sum of N2000,000. The 1st Respondent should have spelt out and itemize the build materials he bought, how much each material cost and the amount spent on labour. All the items or heads must be distinctly distinguished. It is equally germane to note that the special damages awarded by the lower Court was also lumped together. In its finding, the lower Court stated as follows:
“There is evidence before the Court in Exhibit “D, D1, D2 and D3” that the Plaintiff spent a total of one million, nine hundred and twenty-seven thousand nine hundred naira only as cost of material and cost of labour for the foundation of the complex destroyed by 1st Defendant.”
In respect of special damages, the lower Court awarded same as follows:
“(1) …
(2) …
(3) …
(4) Special damages including building material and labour of one million nine hundred and twenty-seven thousand nine hundred Naira only is hereby awarded in favour of Plaintiff against the 1st Defendant.”
It is patently clear from the above, the award of special damages was lumped together. The lower Court failed to make specific award on each item or head of the claims. It is clear that the lump sum awarded was borne out of the pleading of the 1st Respondent lumping together the special damages claimed and also as reflected in the Ipsit dixit of the Plaintiff. It is settled law that the Ipsit dixit (evidence of the Plaintiff) simpliciter led in proof of special damages must be comprehensive and credible and it must also incorporate all the relevant conditions required in proof of special damages. See Unipetrol (Nig) PLC V. Adereje (WA) Ltd. (2004) ALL FWLR (Pt. 231) 1238 at 1290. In respect of this claim for special damages, the Respondent (Plaintiff) testified as follows:
“I brought the receipt with which I build the duplex foundation before it as brought. The receipts are with me. These are the receipts” the three receipts are admitted as Exhibit D – D2
“I came with the picture and the negative of another receipt”
Court: … The last receipt is admitted as Exhibit D3”
The evidence led in proof of the special damages is so scanty and is short of proof of the special damages. It cannot be said that the special damages was strictly proved. The burden of proof was on the Plaintiff (1st Respondent) which he failed to discharge. He could not have succeeded, considering his terse pleading as to special damages.
Against this background, the lower Court was wrong to have entered judgment for the 1st Respondent in respect of the special damages when the damages was not specially pleaded and strictly proved in accordance with settled law and authorities.
The award cannot stand in the circumstance. Consequently, the 2nd issue succeed in favour of the Appellant and resolved against the 1st Respondent.
The 3rd issue is whether the trial Court correctly applied the principle of law in the award of general damages.
The lower Court awarded the sum of N1,000,000.00 only as general damages for his act of trespass to the Plaintiff out of the sum of N3,000,000.00 (Three Million Naira) claimed as general damages by the Respondent.
Abiru JCA held in the case Access Bank V. Ugwuh (2013) LPELR – 20735 (CA) thus:
“Now, general damages means such as the law itself implies or presumes to have occurred from the wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily result from the injury or such as are that did infact from the wrong, directly and proximately and without reference to the special character condition or the circumstances of the claimant. General damages are such as the Court may give when the Judge cannot point out any measure by which they are to be assessed, except by the opinion and Judgment of a reasonable man.
Unlike special damages which must be pleaded specially and proved strictly the award of general damages is determined by what is reasonable in the circumstance of the case. Eneh V. Ozor (2016) 16 NWLR (Pt. 1538) 219 at 238. Unlike special damages, it is generally incapable of exact calculation. See Union Bank V. Chimaeze (2014) 9 NWLR (Pt. 1411) 166 at 192 – 193.
Against the backdrop of the above principles of law, it is the candid opinion of this Court that the 1st Respondent would ordinarily be entitled to the award of general damages having succeeded in his case at the lower Court. The lower Court applied his discretion in the sum awarded. However, I am of the opinion that the sum awarded as general damages was on the high side. This Court, in the circumstance will exercise its appellate jurisdiction in reducing the sum awarded as general damages. Consequently, the amount of N1,000,000 (One Million Naira) awarded as general damages is reduced to N750,000.00. Save for the high amount awarded, this Court holds that the lower Court applied the correct principle of law in the award of general damages. In other words, issue No. 3 is resolved in favour of the Respondent.
Issues No. 1 and 2 having been resolved in favour of the Appellant against the 1st Respondent, this appeal succeeds.
This Court had earlier held that the proceedings at the trial Court amounted to a nullity having failed to observe the principle of fair hearing which constitute an abridgement of Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The proceedings at the lower Court being a nullity deserves being set aside ex debito justiciae. Accordingly, the proceedings and the judgment of the lower Court in the case Suit No: B/668/2009 before Hon. Justice V.O. Eboreime is hereby set aside. The matter is reverted to the High Court of Justice, Edo State for reassignment by the Hon. Chief Judge, Edo State and to be heard by another Judge other than Hon. Justice V.O. Eboreime.
Parties to bear their respective costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I studied before now the lead judgment just delivered by my learned brother, SAMUEL ADEMOLA BOLA, JCA.
I agree with the reasoning and conclusion therein; I too hold that the appeal has merit and the same is hereby allowed. I also set aside the proceedings and judgment of the High Court of Edo State, Holden at Benin City delivered by V.O. Eboreime J., on 23rd November, 2015 in Suit No. B/668/2009; for breach of the Appellant’s right to fair hearing as enshrined in the Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
I abide by the order made as to costs.
JAMES GAMBO ABUNDAGA, J.C.A.: I had the advantage of reading the draft of the judgment delivered by my learned brother, Samuel Ademola Bola, JCA.
His Lordship correctly resolved the issues upon which the appeal is decided. Of those issues, the one that concerns the denial of fair hearing deserves my voice. There is no evidence on record to show that the Appellant as 1st defendant at the lower Court was served hearing notice on the dates the 1st respondent and his witnesses gave evidence. In the circumstances, it cannot be argued that the appellant was denied fair hearing. In such a situation, the judgment resulting from such a hearing no matter how well written cannot be allowed to stand. Confronted with a similar situation, the apex Court in the case of APC v. Nduul (2017) LPELR-42415 (SC) held:
“Whether a hearing can be said to be fair if any of the parties to proceedings is denied an opportunity to be heard or present his case or call evidence. Certainly not. The law is settled that, a hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard or present his case or call evidence. The right to fair hearing is substantially a question of opportunity of being heard. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived in a case. See FBN PLC VS TSA IND. LTD (2010) 4-7 SC (PT.1) 242, BAMGBOYE VS UNIVERSITY OF ILORIN (1999) 6 S.C. (Pt.11) 72, AWONIYI VS THE REGISTERED TRUSTEE OF THE ROSICRUCIAN ORDER AMOC (NIGERIA) (2006) 6 SC (PT.1) 108, ARAKA VS EJEAGWU (2001) 12 SC (PT.11) 99, OKAFOR VS A.G. ANAMBRA STATE (1991) 7 SC (PT.11) 138 AND MOHAMMED VS. OLAWUNMI (1990) 4 SC 40. The failure to serve the motion on notice dated and filed on the 11/4/2016 on the Appellant in the present appeal amounted to a denial of his right to fair hearing. I agree with the lead judgment, that the ruling of the lower Court anchored on the motion stands as null and void.” Per BAGE, JSC (Pp. 35-36, para A)
See also the case of Chywhite (Nig.) Ltd & Anor v. Diamond Bank (2015) LPELR-41695 (CA) pp. 41 – 44 paras. C – A.
It is for this reason and the detailed reasoning of his Lordship in the lead judgment that I too hold that this appeal succeeds and in consequence set aside the judgment of the lower Court delivered on 23rd November, 2012.
I abide by the other consequential orders made in the lead judgment.
Appearances:
Harold Erhabor For Appellant(s)
Roland Esekhaigbe For Respondent(s)
