DR. UMOH EKPO SAM & ANOR v. NZE PATRICK KALU
(2011)LCN/4335(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of February, 2011
CA/C/125/2010
RATIO
DUTY OF COURT: WHETHER A COURT THAT RAISES AN ISSUE SUO MOTO IS DUTY BOUND TO HEAR THE PARTIES ON THAT ISSUE
A court that raises an issue suo motu is duty bound to hear the parties on that issue, especially the party to suffer the jeopardy that may arise from the decision of the issue so raised. Failure to do so amounts to a breach of fair hearing. See Araka vs. Ejeagwu (2000) 15 NWLR (Pt. 692) 684; Alli vs. Alesinloye (2000) 6 NWLR (Pt. 660) 177; Oshodi vs. Eyifunmi (2000) 13 NWLR (Pt. 684) 298. PER ISAIAH OLUFEMI AKEJU, J.C.A
RELIEF: WHETHER THE COURT CAN GRANT A RELIEF THAT WAS NOT CLAIMED
The court does not do charity or favour. It does not act like Father Christmas by giving to people even when they do not ask. See Att. Gen. Federation vs. A. I. C. Ltd. (2000) 6 SC (Pt. 1) 175; Att. Gen. Abia State & Ors. vs. Att. Gen. Federation (2006) All FWLR (Pt. 338) 604. PER ISAIAH OLUFEMI AKEJU, J.C.A
CONSEQUENTIAL ORDERS: WHETHER THE COURT IS EMPOWERED TO MAKE CONSEQUENTIAL ORDERS
A court is empowered to make a consequential order where such is necessary to give effect to its decision. See Awoniyi vs. AMORC (2006) 6 SC (Pt. 1) 103; Okegbe vs. Chikere (2000) 7 SC (Pt.1) 106.” The consequential order must flow from the circumstances of the decision of the court but cannot be a substitute to the reliefs sought. PER ISAIAH OLUFEMI AKEJU, J.C.A
APPELLATE COURT: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE AWARD OF DAMAGES MADE BY A TRIAL COURT
The award of general damages is within the exercise of the discretion of trial court, and where the discretion has been judicially and judiciously exercised and there has been justice in the award of the damages, the appellate court will not interfere. The appellate court will however interfere where the following circumstances have occurred thereby occasioning injustice: 1. Where the trial court has acted under a mistake of law. 2. Where he has acted in disregard of the relevant principles. 3. Where he has taken irrelevant matters into consideration or has omitted to consider relevant matters. 4. Where he has acted under a misapprehension of facts. 5. Where injustice will result unless the appellate court intervenes. See U.B.A Plc vs. B. T. L. Industries Ltd. (2007) All FWLR (Pt. 352) 1615; Obere vs. Board of Management Eku Baptist Hospital (197A) 6-7 SC 15. PER ISAIAH OLUFEMI AKEJU, J.C.A
JUSTICES
JAFAARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD A. OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. DR. UMOH EKPO SAM
2. NNENA EDIKA Appellant(s)
AND
NZE PATRICK KALU Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State, sitting at Akamkpa delivered on 19th May, 2009 in Suit No. HK/8/2005.
The Respondent as plaintiff commenced the suit against the Appellants for the following reliefs endorsed on the Writ of Summons and stated in the Statement of Claim:
1. The sum of N12,999.00 being rent arrears due for 15 months from January 2004 to March 2005.
2. The sum of N195,000.00 being toss of use plaintiff’s sewing machine for 15 months January 2004 to March 2005.
3. The sum of N250,000.00 as general damages for false imprisonment of the plaintiff.
In response to the plaintiff’s Statement of Claim, the defendants filed a statement of defence and Counter Claim for:
(1) N100,000.00 damages for the wrongful acts of the plaintiff, and
(2) N500,000.00 as general damages.
After hearing the oral evidence of the parties, the learned trial judge granted relief 1 of the plaintiffs’ claim and dismissed relief numbers 2 and 3 as well as the defendants, Counter Claim.
The lower court however proceeded to consider general damages with regards to breach of the tenancy agreement between the parties and ordered that the defendants were liable to pay N88,000.00 as general damages for breach of the tenancy agreement.
The appellants felt dissatisfied with that order for payment of N88,000.00 general damages and appealed on the ground that the general damages of N88,000.00 awarded was not sought by the Respondent.
In the Appellants’ Brief of Argument filed on 1st December, 2010, the learned counsel formulated the sole issue for determination as follows:
Whether the court below was right when it granted general damages for a breach of the tenancy agreement when the Respondent did not claim such relief in his statement of claim and when the court said in its judgment that the Respondent is not entitled to general damages for false imprisonment which the Respondent asked for in his endorsed writ and statement of claim.
He argued that the Respondent did not claim the relief awarded by the learned trial judge and no document was tendered as Tenancy Agreement upon which the lower court based its award but the court wrongly acted as Father Christmas in making the award. He urged this court to allow this appeal and set aside the general damages of N88,000.00 awarded by the lower court.
In his own Brief of Argument, the Respondent’s counsel raised the issue for determination as follows:
Whether considering the facts, the evidence on record and the entire circumstance of the case, the court below was not right when it granted to the Respondent general damages for breach of agreement, as consequential relief, even when the Respondent did not claim such relief in his statement of claim, and when the court had held that the Respondent was not entitled to general damages for false imprisonment which the Respondent actually sought for in his endorsed writ and statement of claim.
The learned counsel argued that a court does not possess the power to grant a relief that is not claimed by the party but the lower court awarded N88,000.00 general damages for breach of Tenancy Agreement as a consequential relief upon findings of fact based on the evidence. He urged this court to uphold the award of N88,000.00 as consequential relief and to dismiss this appeal.
There is no dispute in the brief of argument of the two learned counsel as to be position of the N88,000.00 awarded to the Respondent by the learned trial judge. It was not one of the reliefs sought by the respondent. This is eloquently born out from the reliefs which I earlier quoted in this judgment and the pleading. A perusal of the evidence shows also that the facts of general damages for breach of tenancy agreement were not placed before the lower court.
After making the findings in the case of the respondent, the lower court said at page 76 of the record:
“However, on equitable grounds, general damages shall be considered with regards to breach of the tenancy agreement. The defendants, who were clearly in breach of payment of the rents due, locked the respondent out of his shop, thereby denying him use of the shop either by himself, or from letting same to other tenants.
Therefore, general damages shall be awarded in this respect”.
The learned trial judge then ordered that the appellants were liable to pay to the respondent N98,000.00 as general damages for breach of tenancy agreement.
Obviously the lower court raised the issue of general damages for breach of tenancy agreement suo motu after a full trial of the case and without giving the appellants the opportunity of being heard in that respect. A court that raises an issue suo motu is duty bound to hear the parties on that issue, especially the party to suffer the jeopardy that may arise from the decision of the issue so raised. Failure to do so amounts to a breach of fair hearing. See Araka vs. Ejeagwu (2000) 15 NWLR (Pt. 692) 684; Alli vs. Alesinloye (2000) 6 NWLR (Pt. 660) 177; Oshodi vs. Eyifunmi (2000) 13 NWLR (Pt. 684) 298.
It is difficult to understand the principle of equity the learned trial judge had attempted to please by the award because there is no known principle of equity that avoids doing even justice to the parties.
I am convinced from the record of appeal that the respondent did not seek the relief of N88,000.00 or any amount at all as general damages for breach of tenancy agreement which the lower court granted. What the courts have consistently stated on this issue is that a plaintiff can only get less, but cannot grant more than what the plaintiff has sought.
The court does not do charity or favour. It does not act like Father Christmas by giving to people even when they do not ask. See Att. Gen. Federation vs. A. I. C. Ltd. (2000) 6 SC (Pt. 1) 175; Att. Gen. Abia State & Ors. vs. Att. Gen. Federation (2006) All FWLR (Pt. 338) 604.
The Respondent’s counsel has argued that the award of general damages amounted to a consequential order.
A court is empowered to make a consequential order where such is necessary to give effect to its decision. See Awoniyi vs. AMORC (2006) 6 SC (Pt. 1) 103; Okegbe vs. Chikere (2000) 7 SC (Pt.1) 106.
The consequential order must flow from the circumstances of the decision of the court but cannot be a substitute to the reliefs sought.
Admittedly, the award of general damages is within the exercise of the discretion of trial court, and where the discretion has been judicially and judiciously exercised and there has been justice in the award of the damages, the appellate court will not interfere. The appellate court will however interfere where the following circumstances have occurred thereby occasioning injustice:
1. Where the trial court has acted under a mistake of law.
2. Where he has acted in disregard of the relevant principles.
3. Where he has taken irrelevant matters into consideration or has omitted to consider relevant matters.
4. Where he has acted under a misapprehension of facts.
5. Where injustice will result unless the appellate court intervenes. See U.B.A Plc vs. B. T. L. Industries Ltd. (2007) All FWLR (Pt. 352) 1615; Obere vs. Board of Management Eku Baptist Hospital (197A) 6-7 SC 15.
I can see clearly that there is no basis in law, infact and in equity for the generous and gratuitous award of N88,000.00 as general damages, in the instant case. The course of justice will be adequately served by setting aside the award and it is accordingly set aside.
Consequently I find merit in this appeal and it is allowed.
The order of the lower court granting the sum of N88,000.00 to the respondent as general damages in the judgment delivered on 19th May, 2009 is set aside.
No cost is awarded.
JAFAARU MIKA’ILU, J.C.A.: I have read the draft of the lead judgment of my learned brother Isaiah Olufemi Akeju, JCA. I agree with the reasons given in it and the conclusion reached. I find no reason for the generous and gratuitous award of N88,000.00 as general damages in this case.
The award is hereby set aside.
I find merit in the appeal and I allow it.
I award no cost.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read the draft of the lead judgment of my learned brother, Isaiah Olufemi Akeju, JCA. I also participated in the conference which deliberations, my noble lord admirably and elucidatingly reproduced in the said lead judgment, to the effect that this appeal has merit. I adopt the judgment as mine and allow the appeal on the basis of the fuller reasons advanced in the said lead judgment of my learned brother, Akeju, JCA. I also abide by all the consequential orders made therein inclusive of the one regarding costs.
Appearances
F. E. Ekanem, Esq,For Appellant
AND
E. O. Ezak, Esq.For Respondent
