DANA AIRLINES LTD v. MBONG & ORS
(2022)LCN/16359(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, June 10, 2022
CA/L/1332/2018
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
DANA AIRLINES LIMITED APPELANT(S)
And
1. MRS. GRACE EVENTUS MBONG 2. MISS FRANCISCA EVENTUS MBONG 3. MR. FAVOR EVENTUS EBONG 4. MASTER SAMUEL EVENTUS MBONG (Suing By Their Next Friend Mrs. Grace Eventus Mbong) RESPONDENT(S)
RATIO:
AWARDING GENERAL DAMAGES FOR EMOTIONAL STRESS HAS NO PLACE IN AN ACTION UNDER TORT
The law is settled that awarding general damages for bereavement and emotional stress at large has no place in an action under tort. Such damages arsimply not recoverable. See the case of Eagle Transport Co. Ltd vs. Anyia& Anor (2017) LPELR – 42020. The Supreme Court case in Jenyo vs. Akinreti (1990) 2 NWLR (pt. 135) 633 at 676 Per Wali JSC, held as follows:
“The law is still as stated by Viscount Haldane L. C. in Taff Vail Railway vs. Jenkins (Supra) that the basis is not what has been called solatium that is to say damages given for injured feelings or on the ground of sentiments, but damages based on compensation for pecuniary loss”. A claim for damages must be for quantifiable compensation based on actual pecuniary loss. The test of a reasonable man adopted by the trial Judge is a concept which originates in common law and which is not found in the statutory regime (NCAA 2006) which governs this matter. As such, the test applied by the trial Judge is not applicable in cases of aviation accident, which are sui generis in nature and strictly regulated by the provisions of the enabling Act, the NCAA 2006. There is no place for solatium or damages for injured feelings within the NCAA 2006 because the regime compensates only for damages sustained i.e. actual proven loss.
A CLAIM FOR DAMAGES MUST BE FOR QUANTIFIABLE COMPENSATION
The Supreme Court case in Jenyo vs. Akinreti (1990) 2 NWLR (pt. 135) 633 at 676 Per Wali JSC, held as follows:
“The law is still as stated by Viscount Haldane L. C. in Taff Vail Railway vs. Jenkins (Supra) that the basis is not what has been called solatium that is to say damages given for injured feelings or on the ground of sentiments, but damages based on compensation for pecuniary loss”. A claim for damages must be for quantifiable compensation based on actual pecuniary loss. The test of a reasonable man adopted by the trial Judge is a concept which originates in common law and which is not found in the statutory regime (NCAA 2006) which governs this matter. As such, the test applied by the trial Judge is not applicable in cases of aviation accident, which are sui generis in nature and strictly regulated by the provisions of the enabling Act, the NCAA 2006. There is no place for solatium or damages for injured feelings within the NCAA 2006 because the regime compensates only for damages sustained i.e. actual proven loss. ABDULLAHI MAHMUD BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): The Lagos Division of the Federal High Court, Coram: Obiozor, J., (hereinafter referred to as the lower Court), on 27th September, 2018, delivered its considered judgment in Suit NO. FHC/L/CS/591/2014 partly found in favour of the Respondents and awarded various sums as damages and costs against the Appellant, who was the Defendant, in the suit. The Respondents as Plaintiffs in Suit No. FHC/L/CS/591/2014 commenced the suit against the Appellant (Defendant in Suit No. FHC/L/CS/591/2014) by Writ of Summons, and Amended Statement of Claim dated 12th May, 2015, and other frontloaded processes, sued for themselves and on behalf of the estate of the deceased, the Appellant as a result of the death of their husband and father – Mr. Eventus Samuel Mbong (Deceased) who died on board the Dana Airlines aircraft which crashed on the 3rd of June, 2012 seeking for special and general damages to wit: 1)The sum of US$12,600,361.08 (Twelve Million Six Hundred Thousand, Three Hundred and Sixty One Dollars Eight Cents only) or Naira equivalent as special damages suffered by the 1st – 4th Plaintiffs resulting in the loss of the life of the Deceased – Mr. Mbong Eventus Samuel caused by the negligent act of the Defendant.
2) The sum of N10,000,000.00 (Ten Million Naira only) for general damages incurred by the 1st – 4th Plaintiffs for Bereavement, Emotional Stress, etc, occasioned as a result of the loss of life of the said Deceased.
3) Interest on all the sums now claimed as appropriate at the prevailing Monetary Policy rate as set by the Central Bank of Nigeria in the present circumstances.
4) The costs of this action inclusive of Solicitor’s fees and expenses, which culminated in the institution of this action being N3,000,000.00 (Three Million Naira only). During trial, the Respondents called two witnesses – the 1st Respondent, Mrs. Grace Eventus Mbong, and one Captain Oladapo Majekodunmi who testified as an expert Witness. Twelve (12) Exhibits were tendered in support of their claim. While the Appellant called only one (1) Witness. Judgment was delivered by the lower Court on the 27th September, 2018 wherein the Court found that the Respondents failed to establish their claim for special damages as they did not discharge the burden of proof placed on them by the law for claims in special damages.
Aggrieved, the Appellant filed an amended notice of appeal on 15th August, 2019. The amended Appellant’s Brief was filed on 15th August, 2019 with three issues distilled for determination in the appeal, the issues are:
i. Whether the learned trial Judge erred in law in his interpretation of the provisions of Article 17, 21 (1), 28 (Third Schedule) and Section 48 (3) NCAA 2006, whereupon he awarded US$70,000.00 (Seventy Thousand United State Dollars) to the Respondents having found that the Respondents failed to establish proof of loss/damages and/or quantum thereof to warrant such award.
ii. Whether the learned trial Judge erred in law in awarding the sum of N10,000,000.00 (Ten Million Naira) to the Respondents as General Damages for bereavement and emotional stress which are non-compensatory damages that are not recoverable and are therefore contrary to the provisions of Article 29 (Third Schedule) NCAA 2006.
iii. Whether the learned trial Judge misdirected himself in the exercise of its discretionary powers under Order 25 Rule 2 Federal High Court (Civil Procedure) Rules 2009, when he awarded costs of N1,000,000.00 (One Million Naira) to the Respondents.
The Respondents’ brief of argument which was filed on 22nd January, 2020 with two (2) issues distilled for determination thus:
“a. Whether rules of interpretation allow for the reading into Article 17, 21(1), 28 of the Third Schedule and Section 48(3) any other meaning other than its literal interpretation”.
b. Whether the provisions of Article 22(6) of the Third Schedule does not give the Honourable Judge of the lower Court the right to exercise his discretion summarily to award general damages in cases of tortuous negligence as herein.”
On issue one, learned Counsel for the Appellant asserted that the provisions of Articles 17, 21 and 28 of the 3rd Schedule to the Nigerian Civil Aviation Act, 2006 expressly envisaged a claim for damages below the value of US$100,000.00 and did not contemplate any fixed minimum liability payable. That the provision of Article 17 (which is referred to in Article 21) makes no distinction between death and bodily injury and could not have intended it to be the minimum liability payable.
According to Counsel, by the provisions of Article 17 and 21 of the 3rd Schedule of NCAA, 2006, where damages are proven as sustained and the claim does not exceed the Naira value of US$100,000, a carrier shall not be able to exclude or limit liability. That it is mandatory that all compensation payable in the circumstances must be linked to the actual damage sustained strictly subject to the proof of loss or injury.
That to be entitled to the sum awarded as the judgment sum, the injury/losses complained of must be strictly proven as claimed by the Respondents.
Counsel argued that the provisions of the law were grossly misconceived by the learned trial judge vide decisions in Anyanwu vs. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 SC and Oyerinde vs. Bamigbegbin (2017) LPELR-42378 (CA), and that to be entitled to damages outside of the US$30,000 advance payment, damages must be specifically pleaded and strictly proven with credible and cogent evidence by the Respondents. That the reasoning and conclusion of the lower Court was wrong, and urged the Court to allow the appeal, give the proper interpretation of Article 17, 21(1), 28 (Third Schedule) and Section 48(3) of NCAA 2006.On issue 2, counsel stated that awarding general damages for bereavement and emotional stress has no place in an action under tort. While relying on decisions in Eagle Transport Company Ltd vs. Anyia & Anor (2017) LPELR-42020, he submitted that the award for bereavement and emotional stress, is inconsistent, not only with NCAA 2006, but with the Nigerian law on damages. It was argued that the N10,000,000.00 (Ten Million Naira) award was punitive, as well as being in breach of the provisions of Article 29 (Third Schedule) NCAA 2006. That the test of a reasonable man adopted by the trial judge was inappropriate and not applicable in the instance, being aviation matter. He urged the Court to resolve issue 2 in favour of the Appellant and set aside the award of N10 Million made in favour of the Respondents.
On its issue 3, which borders on the award by the lower Court of N1 Million as the cost of the action in favour of the Respondents, the Appellant contended that the award was quite excessive. Counsel restated that the provision of Article 22 (6) (Third Schedule) of the NCAA and Order 25 Rule 2 of the Federal High Court (Civil Procedure) Rules, 2009, envisage costs to be assessed based on the expenses incurred as well as time and effort imputed by the Respondents – Balogun vs. Akanji (1992) 2 NWLR (Pt. 225) 591 at 606. It was argued that the lower Court failed to judicially and judiciously exercise its discretionary power in awarding the costs in issue.
In their response, the Respondents restated the law to the effect that the Court is precluded from embarking on judicial legislation and not to read, into the provision of a statute, words not intended by the lawmakers – Ehindero vs. F.R.N (2018) All FWLR (Pt. 934) 1150 at 1177-1178. That the lower Court carefully reviewed the provision of Articles 17(1) and 21(1) of the Third Schedule to the NCAA, 2006 and arrived at a correct interpretation thereof. It was contended that in event of death occurring, as in the instant case, and the eventual loss of the Respondents’ breadwinner, same must not be without resultant damage to life sustenance and even expectancy. Counsel submitted that the lower Court was correct in its interpretation of the provisions of Article 17, 21(1) & (2) of the Third Schedule to the NCAA, 2006.
The Respondents argued that the Appellant misconstrued the law when it submitted that, in the circumstance of this case, compensation could only be paid where damages was proved. Counsel argued, on the legal position of the payment of $30,000, that the findings of the lower Court was supported by the provisions of Article 28 of the 3rd Schedule of Nigerian Civil Aviation Act, 2006 (NCAA).
Learned counsel for the Respondents averred that the Appellant missed the mark when it submitted that the claims for special damages, represented by actual compensation cost, under the principle of restituto in intergrum was not awarded, because his lordship opined that not enough proof was adduced to justify the award, hence, the Court resorted to awarding the statutory compensatory limit.
Counsel reiterated that the provisions of Articles 17, 21(1), 26 & 48 of the 3rd Schedule to the Nigerian Civil Aviation Act 2006 (NCAA), are simple, straight forward, clear and unambiguous and ought to be given its simple grammatical meaning. The Court was urged resolve the issue in favour of the Respondents.
On issue 2, it was submitted that the lower Court acted within the confines of law in its decision to award the cost of N1,000,000.00 (One Million Naira) in the suit – Section 11 of the Federal High Court Act and Order 25 Rule 2 Federal High Court (Civil Procedure) and Berliet (Nig.) Ltd vs. Kachalla (1995) 9 NWLR (Pt. 420) 478. It was submitted that the lower Court rightly awarded the said cost in favour of the Respondents. It was argued that the award of N10,000,000.00 (Ten Million Naira) as general damages incurred by the 1st – 4th Claimants (Respondents) for bereavement, emotional stress etc. occasioned as a result of loss of life of the said deceased was nevertheless reasonably compensatory for the death of the deceased which was occasioned by the negligent acts of the Appellant. It was further submitted that the lower Court was temperate in its award of the damages and carefully followed the law. Counsel averred that the appeal was brought in bad faith and urged the Court to dismiss same for being unmeritorious.
In its reply, the Appellant submitted that the reasoning of the lower Court on the award of general damages did not align with either Article 29 of NCAA, 2006 or the various opinions of the Supreme Court. Counsel cited the decision in Sidhu vs. British Airways (1997) 1 ALL ER 193 to submit that the lower Court is precluded from allowing remedy not provided for in NCAA, 2006, as applicable in the instance.
The Court was urged to discountenance the Respondents’ argument in support of the award of general damages and costs in the suit by the lower Court.
RESOLUTION
In the determination of this appeal, I will adopt the three issues for determination formulated by the Appellant, thus:-
1) Whether the learned trial Judge erred in law in his interpretation of the provisions of Article 17, 21 (1), 28 (Third Schedule) and Section 48 (3) NCAA 2006, whereupon he awarded US$70,00.00 (Seventy Thousand United State Dollars) to the Respondents having found that the Respondents failed to establish proof of loss/damages and/or quantum thereof to warrant such an award”.
2) “Whether the learned trial Judge erred in law in awarding the sum of N10,000,000.00 (Ten Million Naira) to the Respondents as General Damages for Bereavement and Emotional Stress which are non-compensatory damages that are not recoverable and are therefore contrary to the provisions of Article 29 (Third Schedule) NCAA 2006”.
3) “Whether the learned trial Judge misdirected himself in the exercise of its discretionary powers under Order 25 Rule 2 Federal High Court (Civil Procedure) Rules 2009, when he awarded costs of N1,000,000.00 (One Million Naira) to the Respondents.”
On issue one, Article 17, Third Schedule to the Nigerian Civil Aviation Act, 2006 provides:-
“The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”
Article 21, Third Schedule NCCA, 2006 further provides:-
“For damages arising under Paragraph 1 of Article 17 not exceeding 100,000.00 United States Dollars for each passenger, the carrier shall not be able to exclude or limit its liability.”
Article 17, Third Schedule to the NCAA 2006, therefore expressly stated that a carrier shall be liable only for damages sustained in the case of death or bodily injury upon condition that the accident which caused the death or injury took place on board the aircraft. Where damages are proven as sustained (Article 17(1)) and, if there is a claim which does not exceed the Naira value of US$ 100,000 (Article 21(1)), a carrier shall not be able to exclude or limit liability. This is further explained in Article 21(2):
“The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 United States Dollars if the carrier proves that:
Such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or such damage was solely due to the negligence or other wrongful act or omission of a third party”. It therefore follows that where a claimant proves damages which do not exceed US$100,000, any defence of a carrier which excludes or limits its liability is shut out. All compensation payable must be linked to actual “damage sustained” (as per Article 17(1) of the Third Schedule) and therefore remains strictly subject to proof of loss. Article 28, Third Schedule states that an advance payment, “shall not constitute a recognition of liability and may be offset against any amount subsequently paid as damages by the carried”.
Combined with Section 48(3) of the NCAA 2006, this article provides for a payment of at least US$30,000 to be paid “to the natural persons who are entitled to claim compensation”. As such, the NCAA 2006 expressly envisages a claim for compensation in the event of an aircraft accident resulting in death or injury of passengers, against which the US$30,000 shall be offset. It is important to note however that there is no reference in the Third Schedule to the NCAA 2006 to any minimum compensation on the basis of no-fault liability. However, the provision in Article 28 makes reference to damages which may become payable through the combined operation of Articles 17(1) and 21. Those provisions however referred to “damages sustained” i.e. damages which are proven pursuant to the usual rules of evidence. Statutory Advance Payment being subject to proof of familial link to the deceased passenger, the Respondents provided documentary evidence in proof of their familial link and consequent entitlement to the sum of US$1 to US$30,000.00 when they provided letters of administration, birth certificates of the Respondents, 1st Respondents declaration of marriage and age and Court order of guardianship of the 2nd to 4th Respondents. (See Pages 13 to 25 Volume I of the Records).
On Page 858, the lower Court held and I quote:-
“In the final analysis and for the reason addressed above, I find that the Plaintiffs claims succeed in part. Accordingly, judgment is hereby entered for the Plaintiff as follows:
“The Defendant shall pay to the Plaintiffs the balance of the basic compensatory payment set by Article 21 of the Third Schedule to the Civil Aviation Act, 2006, being the Naira equivalent of the sum of $70,000 (Seventy Thousand Dollars (US) immediately and at the current/existing and official exchange rate of the Naira to the United States Dollars.”
With the above holding, the lower Court has misinterpreted the strict liability limit of US $100,000.00 within Article 21 (1) Third Schedule to be automatic entitlement of the basic compensatory payment which is not dependent on proof of loss. In other words, the trial Judge has inferred albeit erroneously that the sum of US$70,000.00, awarded as balance of US$100,000.00, is a compensatory payment of damages in respect of losses which need not be proven. Any amount which is claimed in damages outside the US$30,000 advance payment is not automatic as of right it must be proven before such amount is paid as damages:
“Such advance payment shall not constitute an admission of liability and may be offset against any amounts subsequently paid as damages by the carrier” (Article 28).
A careful look and perusal of Articles 17, 21(1), 28 and Section 48(3) shows that all amounts to be paid by the carrier as damages, must be specifically pleaded and strictly proven with credible and cogent evidence by the Respondents – of Anyanwu vs. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 SC, Oyerinde vs. Bamigbegbin (2017) LPELR – 42378 (CA). It is baffling that the trial Judge, awarded US$70,000 as damages (which as quoted above, are subject to proof) when he earlier affirmed in his judgment at Page 839 Volume II of the Records as follows:
“I fail to find credible evidence to justify the grant of special damages itemized in paragraph 19(a) of the Plaintiff Amended Statement of Claim”; and also the last paragraph of Pages 844 to 845 Volume II of the Records, where the trial judge further affirmed as follows:
“It must be remembered that the Plaintiffs paragraph 19 (a) to (d) of the Amended Statement of Claim are in the nature of special damages, which must not only be specifically pleaded but be proved by credible and believable evidence. What I see is a beautifully couched pleadings with little or not much effort to correspondingly match pleadings with credible evidence”. Issue one is therefore resolved in favour of the Appellant and against the Respondents.
Issue two is
“Whether the learned trial Judge erred in law in awarding the sum of N10,000,000.00 (Ten Million Naira) to the Respondents as General Damages for Bereavement and Emotional Stress which are damages for non-pecuniary loss that are not recoverable and which award is contrary to the provisions of Article 29 (Third Schedule) NCAA 2006.”
By way of Writ of Summons and Statement of Claims dated 12th May, 2015, the Respondents have claimed the sum of N10,000,000.00 (Ten Million Naira) as general damages for bereavement and emotional stress occasioned as a result of loss of life of Mr. Eventus Mbong (Deceased) who was onboard the Appellant’s Airplane that crashed on the 3rd of June, 2012. The lower Court held at Pages 847 – 849 of the printed record Vol. 2 thus:-
“General damages is such a loss, which flows naturally from the Defendant’s act. It need not be specifically pleaded. It arises by inference of law and need not be proven by evidence. It suffices if it is generally averred in the pleadings. The Plaintiff claim general damages for bereavement and emotional stress. What is the yardstick with which to access it? There is evidence before the Court the deceased was the husband of the 1st Plaintiff and father of the 2nd to 4th Plaintiffs. Is it reasonable to presume that the Plaintiffs’ bereavement and emotional stress flew from the death of their husband and father on account of the deceased untimely death in the hands of the Defendant’s ill-fated aircraft, which is in issue in this matter, and could the presumption spring from the ordinary expectation of a reasonable man? I answer in the affirmative.”
The law is settled that awarding general damages for bereavement and emotional stress at large has no place in an action under tort. Such damages arsimply not recoverable. See the case of Eagle Transport Co. Ltd vs. Anyia & Anor (2017) LPELR – 42020. The Supreme Court case in Jenyo vs. Akinreti (1990) 2 NWLR (pt. 135) 633 at 676 Per Wali JSC, held as follows:
“The law is still as stated by Viscount Haldane L. C. in Taff Vail Railway vs. Jenkins (Supra) that the basis is not what has been called solatium that is to say damages given for injured feelings or on the ground of sentiments, but damages based on compensation for pecuniary loss”. A claim for damages must be for quantifiable compensation based on actual pecuniary loss. The test of a reasonable man adopted by the trial Judge is a concept which originates in common law and which is not found in the statutory regime (NCAA 2006) which governs this matter. As such, the test applied by the trial Judge is not applicable in cases of aviation accident, which are sui generis in nature and strictly regulated by the provisions of the enabling Act, the NCAA 2006. There is no place for solatium or damages for injured feelings within the NCAA 2006 because the regime compensates only for damages sustained i.e. actual proven loss. The application of the enabling law is well settled by the provisions of Article 29 (Third Schedule) NCAA 2006 which stipulates as follows:
“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention (without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights). In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”
The implication of the provisions of Article 29 (Third Schedule) NCAA 2006 as clearly stated above is to the effect that, in an Aviation claim such as in the present case, any action brought for claims of special or general damages under the Convention or otherwise can only be brought subject to the conditions and limits of liability set out in the NCAA 2006. Therefore, only the provisions of the Convention (as modified) apply, to the exclusion of any other law or procedure. As such the common law principle of the reasonable man test is not applicable. Issue two is therefore resolved in favour of the Appellant and against the Respondents.
Issue three is “Whether the learned trial Judge misdirected himself in the exercise of his discretionary powers under Order 25 Rule 2 Federal High Court (Civil Procedure) Rules 2009, when he awarded costs of N1,000,000.00 (One Million Naira) to the Respondents”. As part of the relief sought before the lower Court, the Respondents claimed for the costs of the action inclusive of solicitor’s fees and all expenses which culminated in the institution of the action being N3,000,000.00 (Three Million Naira). In the award of the N1,000,000.00 as the cost of action the trial judge hinged his decision on Order 25 Rule 2 of the Federal High Court (Civil Procedure) Rules, 2009 and also in accordance with the provisions of Article 22 (6) (Third Schedule) NCAA 2006, which allows the Court to award cost and other expenses incurred subject to the Rules of Court. For clarity purposes, Order 25 Rule 2(1), (2) and (3) of the Federal High Court (Civil Procedure) Rules, 2009 provides:-
1) “In fixing the amount of cost, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been unnecessarily put in the proceeding, as well as compensated for his time and effort in coming to Court. The Court may take into account all the circumstances of the case.”
2) “When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the judge at the time of delivery the judgment or making the order”.
3) “When the judges deem it to be impracticable to determine summarily amount of any costs which the judge has adjudged or ordered to be paid, all questions relating thereto shall be referred by the judge to a taxing officer for taxation.”
Costs as referred to in the above provision is made up of expenses the Respondents have incurred in the proceedings and the time or effort in coming to Court. Thus the crux of the above provisions is to the effect that in fixing the amount of cost, the Respondents is to be indemnified for the expenses they have incurred as well as compensation for their time in coming to Court, and the judge is to take into account all the circumstances of the case. With respect to the costs for expenses incurred by the Respondents which constitutes the first leg of the components of the costs awarded under Order 25 Rule 2(1), the learned trial Judge rightly found that the Respondents did not establish any evidence in support of the claim for expenses incurred when he held at page 845 Volume II of the Records as follows:
“Again costs inclusive of costs of accident investigation report and solicitor’s fees over 15 months of investigation have been claimed as special damages. Where is the evidence from PW1 and PW2 – the only witnesses of the Plaintiffs – on this point? None.”
It is the attitude of the Appellate Courts not to interfere with the award of costs by the trial Court as it is the trial Court’s discretion to exercise such powers. Once such discretion has been exercised judiciously and judicially. The Appellate Court would only interfere, if it is satisfied that the award was arbitrary/excessive or not exercised judicially – HACA Ltd vs. S. M. Daps Brown (1973) 4 SC 149 at 154. The award of N1,000,000.00 (One Million Naira) as cost is excessive in the circumstances. It is hereby set aside. Five Hundred Thousand Naira(N500,000.00) is hereby awarded as cost in favour of the Respondents and against the Appellant. Issue three is therefore resolved in favour of the Respondents and against the Appellant. Having resolved issues one and two that are germane to this appeal in favour of the Appellant, this appeal succeeds in part. Accordingly, the judgment of the Federal High Court, Lagos Division in suit number FHC/L/CS/591/2014 delivered on 27/09/2018, is hereby set aside. No cost is awarded. Parties to bear their respective costs.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Abdullahi Mahmud Bayero, JCA, made available to me a draft copy of the judgment just delivered in which this appeal was allowed in part. I am in agreement with the reasoning and conclusions therein, and adopt the same as mine.
The clear and specific findings made by the learned trial Judge do not justify the damages of $70,000.00 awarded. The further award of N10 million cannot also be justified. I agree with costs of N500,000.00 against the Appellant, setting aside the earlier costs of N1 million awarded by the learned trial Judge.
I therefore allow the appeal in part, and abide by theorders made by my learned brother.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of reading, in advance, the ruling delivered by my learned brother, ABDULAHI MAHMUD BAYERO, JCA. I agree with the reasoning and conclusion reached, and abide by the consequential orders contained therein.
Appearances:
…For Appellant(s)
…For Respondent(s)