FIRST BANK OF NIGERIA PLC & ORS v. KINGSLEY EROMOSELE
(2019)LCN/13304(CA)
In The Court of Appeal of Nigeria
On Monday, the 20th day of May, 2019
RATIO
WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE AWARD OF DAMAGES BY THE TRIAL COURT
An award of damages by a trial Court can only be interfered with on appeal when the trial judge acted on some wrong principle of law or the amount awarded was so high or very small to make it an entirely erroneous estimate of the damage suffered by the plaintiff. See MUTUAL AIDS SOCIETY LIMITED V M.A. AKERELE (1965)1 ALL NLR 351; IGHRERINIOVO V. S.C.C. NIGERIA LTD & ORS (2013) 10 NWLR PT. 1361 p. 138. PER AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the defendants at the lower Court against the judgment of Edo State High Court delivered on 7/12/2016.
The Claimant (now respondent) has instituted an action against the defendants claiming as follows:
WHEREOF the claimants claim against the Defendant jointly and severally as follows:
1. The sum of N70,000,00 (Seventy Thousand Naira) only, being cost for the repair of the Claimants damaged vehicle.
2. The sum of N1,000,000.00 (One Million naira) being general damages for the claimants damaged vehicle which occurred as a result of the wrongful acts of the Defendants.
3. The sum of N10,000,000.00 (Ten million Naira) being general damages assault, dehumanizing treatment, harassment and embarrassment, shock, hardship and inconveniences, as a result of the wrongful acts of the Defendants.
4. The sum of N1,000,000 (One Million) as solicitors fees in respect of these proceedings
5. AND for such or other Orders as the Honourable Court may deem fit to make in the circumstances.
Parties filed and exchanged pleadings. The learned trial judge after hearing the parties entered judgment in favour of the claimant as follows:
In conclusion and in view of the foregoing, I find from the preponderance of evidence before Court that the Claimant has proved that the Defendants has failed to exercise the duty of care due to the Claimant as a user of the Benin Lagos Uselu Express Road when the 1st Defendants Security men chased one of her customers that was labeled a mad man unto the express Road causing a collision with the claimants car and damaging the car.
Consequently, I enter judgment for the claimant against the Defendant jointly as follows:
For the ill-treatment, harassment, assault and hardship meted out to the Claimant by the 2nd and 3rd Defendants, agents of the 1st Defendant, I award the Claimant the sum of N4,000.000.00 as general damages. His Claim for N1,000,000 general damages for his car is hereby refused as I do not see the need for it.
The claimant is also claiming the sum of N1,000,000.00 as counsels fees for the prosecution of this matter. He tendered Exhibit 3A and 3B in support for his claim. It is settled that cost will be awarded on the ordinary principle of genuine and reasonable out of pocket expenses and a normal Counsel cost is usually awarded for a leader and one or two juniors. See International Offshore Construction Ltd. v Shoreline Life Nig. Ltd (2003) 16NWLR (Pt. 845) 157. I award the sum of N700,000.00 as Counsels fees for the prosecution of this Suit.
The Claimants claim for N70,000.00 being cost of the repair of the Claimants car is hereby struck out. The counter claim of the Defendants is hereby dismissed, same being, frivolous and lacking in merit.
Dissatisfied with the above decision the appellants filed a Notice of appeal containing 10 grounds of appeal.
GROUNDS OF APPEAL
1. The decision is against the weight of evidence.
2. The Learned Trial Judge erred in law when he held the 1st Defendant liable for the act of a non employee.
3. The Learned Trial Judge erred in law when he held the Defendants liable jointly and severally for assault and damage committed by a stranger.
4. The Learned Trial Judge erred in law when he held the Defendants are liable to the claim
5. The Learned Trial Judge erred in law when he held that from the preponderance of evidence before the Court the Claimant has proved that the Defendants have failed to exercise the duty of care due to the claimant.
6. The Learned Trial Judge erred in law when he held as follows: A reasonable and or prudent man would have recognized the fact that driving the madman unto the high way would portend danger to the madman and the road users. The DW1 and his colleagues did not care.
7. The Learned Trial Judge erred in law when he held that the Defendants jointly breached the duty of care owed the Claimant.
8. The Learned Trial Judge erred in law when he held as follows: I find and hold that the windscreen, the window on the front passenger side and side mirror of the Claimants car was damaged by the action of the 1st Defendants security men.
9. The Learned Trial Judge erred in law when he held that the Claimant received the money under duress.
10. The Learned Trial Judge erred in law when he awarded the sum of N4,000,000.00 as general damages to the Claimant and N700,000 (Seven Hundred Thousand Naira) as Counsels fee.
On transmission of record of appeal to this Court, parties filed and exchanged brief of argument.
SUBMISSION OF COUNSEL
APPELLANT BRIEF OF ARGUMENT
Appellant brief was filed on the 24/2/17 and was settled by UWA OKOH Esq., Appellants counsel raised three (3) issues for determination;
1. Whether the preponderance of evidence or balance of probability the Respondent has made out a case to entitle him to judgment.
2. Whether the learned trial judge was wrong when he held 1st defendant liable for the acts or omission of persons not remotely linked to the 1st defendant
3. Whether the damages awarded by the trial judge ought to be interfered with by the Court of Appeal.
ARGUMENT
ISSUE ONE AND TWO
Appellants counsel argued both issues together. Appellants counsel submitted that the appellant led better and more credible evidence on all issues for determination before the learned trial judge who failed to properly evaluate the evidence and then arrived at a wrong decision.
Appellants counsel submitted that where a trial Court did not properly evaluate the evidence before it, the Court of appeal ought to intervene in this appeal. See the case of TUKUR V UBA (2013) 4 NWLR (PT 1343) 90 @ 129.
Counsel further submitted that the learned trial judge did not properly evaluate the evidence putting into consideration the following points.
1) Did the appellants owe the claimant any duty of care in the entire circumstance of this case?
2) Was the duty of care breached?
3) Was the claimant assaulted, harassed or dehumanized and
4) Can the 1st Respondent be vicariously liable in the entire circumstances of this case?
Counsel to the Appellant submitted that from the totality of evidence adduced, the respondent was unable to show to the Court that the Appellant owed him any duty of care.
Appellants counsel submitted that the duty of care does not exist on the part of the Appellants to the claimant and relied on OLISERV LTD V L.A.I. & CO. NIGERIA LTD (2008) 2NWLR (PT 1070) Pg 194.
He relied on the above decision submitted that the claimant can 1st Appellant are not neighbours.
Appellants counsel argued that there was no carelessness on the part of the 1st Appellant which resulted to the injury to the claimant.
The Appellants counsel argued that the trial judge erroneously concluded that the 1st Appellant owed the claimant a duty of care in the absence of any jot of evidence to that effect.
He submitted that the learned trial judge decision was based purely on emotion and not from evidence. See the case of OKPE V FAN MILK PLC (2017) 2 NWLR (PT 1549)282 @ 310 a Supreme Court judgment.
Counsel submitted further that claimant did not plead facts to the effect that his car which was purportedly damaged was repaired and at what cost.
Appellant counsel argued that the trial judge was in error when he held that the claimant was harassed, dehumanized and intimidated as there was no evidence to that effect.
He submitted that the learned trial judge was in error when he awarded the sum of 4,000,000 (Four Million Naira) to the claimant for ill treatment, assault and hardship meted on him without evidence to that effect.
He further submitted that the unknown policeman referred to by the claimant were not agents of the 1st Appellant.
Issue three
The appellants counsel submitted that where special damage was not specifically pleaded and strictly proved, it would be dismissed even if the defendant had not led evidence. See OMOREGIE V OMIGIE (1990) 2 NWLR (PT 130) 29, GUINNESS (NIG) PLC V NWOKE (2000) 15 NWLR (PT 689) 135 AND ORS.
He relied on the above decided cases and submission, appellants counsel submitted that the claimant did not make out a good case to warrant the grant of damages.
RESPONDENTS BRIEF OF ARGUMENT
Respondents brief of argument was filed on the 29/06/17 and deemed filed on the 19/03/2018. Respondents brief was settled by DENNIS I. OSARETIN ESQ. Respondents counsel submitted two issues for determination which are:
1. Whether the learned trial judge was wrong when he held 1st defendant liable for the acts or omission of the 2nd and 3rd defendants.
2. Whether the damages awarded by the trial judge ought to be interfered with by the court of appeal.
ISSUES ONE AND TWO
Respondents counsel submitted that it was not open to this Court to re-open the case of the Appellant at the lower Court on appeal as that would amount to re-evaluation of evidence. See NDOMA-EGBA V A.C.B (2005) Vol. 131 LRCN 2312 ratio SA-F.
Respondents counsel submitted that the trial Court saddled with the responsibility of evaluating evidence did so properly in this case.
Counsel prayed the Court to resist the call by the appellant to interfere with the findings of facts of the trial Court and relied on the case of ADEKUNLE OLUWAFEMI ALO VS STATE (2015) ALL FWLR PT 775 PG 262 Pp 265 @ 293 Para A-B ratio 2.
Respondents counsel submitted that from the totality of evidence presented before the lower Court, the appellants defence could not withstand the over whelming weight of evidence of the respondent.
Respondents counsel submitted that from the totality of evidence adduced by the respondent, he showed to the trial Court that the appellants owed him a duty of care and was breached by the appellants and its employee, see the case of OLISERV LTD VS L.A.I. & CO. (NIG) LTD (2008) 2 NWLR (PT. 1070) Pg 194.
Counsel further submitted that the issue and argument of the appellants did not in any way support their grounds of appeal rather an attempt to re-open their case which they could not establish at the trial Court.
He further submitted that the Court of Appeal was not a forum for a party to change his case or re-open same. See the case ofMR IBIBIAMA ODOM and 2 Ors VS. P.D.P and 2 Ors (2015) PT 773 ALL FWLR PG 1962 ratio 1, Pp 1976 Para D F. he relied on WEMA SECURITIES AND FINANCE PLC VS NIGERIA AGRICULTURAL INSURANCE CORPORATION (2015) PT 807 ALL FWLR PG 410 ratio 3 and argued that issue (2) formulated by the appellants is incompetent and liable to be struck out.
Counsel to the Respondent argued that from the definition of negligence stated in the case cited by the appellants, the claimant and the appellants were neighbours in law.
He submitted that there was ample evidence that showed carelessness on the part of the 2nd and 3rd appellants during the course of working for the 1st appellant.
Respondents counsel argued that the alleged outburst at Page 121 of the record of appeal was in fact a dictum in the case of FEDERAL MINISTRY OF HEALTH & ORS V CAMET SHIPPING AGENCIES LTD (2011) 196 LRCN 236 @ 265 Per OGBUAGU JSC.
He submitted that the conclusion reached by the trial Court was based purely on sound principles of law and evidence presented by both parties and relied on OKPE V FAN MILK PLC (2017) 2NWLR (PT 1549) 282 @ 310.
Respondents counsel argued that the fact of damage caused to the respondent was admitted by DW1 and proved by the claimant and his witness.
He submitted that the respondent proved the fact he was physically challenged, harassed, dehumanized and intimidated by the appellants and was sufficiently pleaded.
Respondents counsel submitted that the issue of vicarious liability was not canvassed at the lower Court and same could not have emanated from the decision of the lower Court. He further argued that since the 2nd and 3rd defendants was employed by the 1st defendant, they were jointly and severally liable.
ISSUE TWO
Respondents counsel submitted that the trial judge was right when he awarded to the claimant general damages in tandem with well settled principles of law and available evidence and relied on SENATOR IYIOLA OMISORE & 1 OR V OGBENI RAUF ADESOJI AREGBESOLA & 2 ORS (2015) ALL FWLR PT 813 PG 1673 Pp. 1682 ratio 5 @ 1729 Para A.
Counsel argued that the lower Court rightly held that general damages often consisted of items of loss which a claimant was not required to specify in his pleadings in order to allow him recover monetary compensation and cited the case of AKINKUGBE V EWULUM HOLDINGS NIG. LTD & 1 OR (2008) 163 LRCN 119 @ 133.
APPELLANT?S REPLY BRIEF
Appellants reply brief was filed on the 9/4/18 and settled by UWA OKOH ESQ.
Appellants counsel whilst replying to the issues raised by the respondent counsel submitted that respondents brief clearly showed a misconception of the facts and relevant laws as they relate to the appeal.
Appellants counsel argued that from the record it was a mad man that was disrupting the banking activities for that day and not a disgruntled customer. He submitted that there was no evidence on record that 1st appellant security men and policemen were drafted to remove the customer by all means.
Counsel submitted further that there was no evidence that the claimants car was badly damaged, that he was assaulted, ill-treated and dehumanized by the appellants.
Appellants counsel argued that there was exception to the rule that it is not open to the Court to re-open the case of the appellant at the lower Court on appeal that relate to re-evaluation of evidence.
Appellants counsel submitted that the Court of Appeal Rules provided that all matter before it, was taken as a re-hearing.
Appellants counsel argued that for the Court of appeal to intervene in the evaluation of the evidence, the appellant had to show that there was no sufficient evidence to sustain the judgment Appellants counsel relied on EDJEKPO V OSIA (2007) 8 NWLR (PT. 1037) 635 and submitted that this case fell into the exception issues canvassed that did not transpire at the lower Court.
Appellants counsel argued that from when the 1st Defendant (Appellant was sued jointly and severally with the other defendant clearly indicated that the 1st defendant was been sued vicariously for the act or omission.
RESOLUTION
I have deeply considered the submissions of learned counsel on both sides. I have looked at the issues formulated.
To my mind, the issues donated by both counsel are essentially the same. I therefore adopt the two issues distilled by the Respondent, which I consider apposite and apt for the just determination of this appeal.
ISSUE NO 1
WHETHER THE LEARNED TRIAL JUDGE WAS WRONG WHEN HE HELD 1ST DEFENDANT LIABLE FOR THE ACTS OR OMISSION OF THE 2ND AND 3RD DEFENDANTS
In resolving this issue, it must be borne in mind that findings of facts of a trial judge particularly when they relate to assessment of demeanor of witnesses are not to be lightly disturbed unless they are found to be perverse see ISMAIL V STATE (2011) 17NWLR PT 1277 p. 601 RHODES VIVOUR JSC in the case had this to say on finding of facts made by a trial judge.
Findings of facts are made by a trial judge. The trial judge receives evidence that is perception. He proceeds to weigh the evidence in the con of the circumstances of case. That is evaluation. A finding of fact involves both perception and evaluation. Since the appellate Court does not have that advantage of the trial Court, such findings should not be treated lightly.
A look at the judgment of the learned trial judge in the case now on appeal will reveal the following:
The learned trial judge believed the evidence of the claimant and disbelieved that, of the defendant before finding that the security men of the 1st defendant and DW1 chased the mad man out of the bank into the express way causing him to run into the service line of Ugbowo Lagos Express Road which resulted in the collusion with the claimants car.
The learned trial judge saw the witnesses assessed their respective demeanor before arriving at the findings of fact. I see no reason why they should be disturbed in this appeal.
These findings of facts are therefore unimpeachable.
The 2nd defendant is the Chief Security officer at the Ugbowo Branch of the 1st Defendant. The 3rd defendant is the Branch Manager of the 1st defendant and so are agents of the 1st appellant.
Duty of care in an action in negligence was explained by KALGO JSC IN ANYAH V IMO CONCORDE HOTELS LTD (2002) 18 NWLR PART 799 P.377 thus:
I now pause to consider what is meant by duty of case in an action in negligence; and to whom it is owed. The generally accepted principles of negligence is that a person owes a duty of care to his neighbor who would be directly affected by his act or omission. In DONOGHUE V STEVENSON (1932) AC 562 AT 580 lord Atkin said:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neigbour. Who then is your neighbor. The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omission which are called in question.
The appellant in the circumstances of this case owe every road user on the road in front of the bank a duty of care. It ought to have reasonably known or contemplated that chasing a mad man out of the bank premises to a main road might result in an accident when the mad man runs into a moving vehicle.
The acts and omission of the appellant and its agents 2nd and 3rd appellants; caused the accident that led to the damage of the vehicle of the Respondent.
Clearly the 2nd and 3rd appellants were servants of the 1st appellant at the time of the incident. It is therefore vicariously liable for their acts or omissions. See IDERIMA V RIVERS STATE CIVIL SERVICE COMMISSION (2005) ALL FWLR PT 285 PAGE 431; IFEANYI V SOLEH BONEH NIG LTD (2000) 12 WRN 1 at 13.
The reasoning of the learned trial judge and his conclusion when he held the 1st Defendant liable for the acts or omission of the 2nd and 3rd defendants cannot be faulted in my respectful view.
I therefore resolve this issue in favour of the Respondent.
ISSUE TWO
WHETHER THE DAMAGES AWARDED BY THE TRIAL JUDGE OUGHT TO BE INTERFERED WITH BY THE COURT OF APPEAL
The learned trial judge awarded four million naira as general damages and seven hundred thousand naira damages as the counsel fees for the prosecution of the matter.
An award of damages by a trial Court can only be interfered with on appeal when the trial judge acted on some wrong principle of law or the amount awarded was so high or very small to make it an entirely erroneous estimate of the damage suffered by the plaintiff. See MUTUAL AIDS SOCIETY LIMITED V M.A. AKERELE (1965)1 ALL NLR 351; IGHRERINIOVO V. S.C.C. NIGERIA LTD & ORS (2013) 10 NWLR PT. 1361 p. 138.
I have viewed the award of general damages by the learned trial judge in the circumstance of the case. I am convinced the assessment and award of four million naira as general damages was reasonable and fair for the ill-treatment, harassment and hardship suffered by the Respondent.
However, in respect of award of N700,000 as professional fees of the respondents counsel for the prosecution of the matter at the lower Court, I respectfully disagree. As far back as in 2004, the Apex Court had ruled against this type of claim in CHRISTOPHER NWANJI (TRADING IN THE NAME AND STYLE OF FIRESTONE) V COASTAL SERVICES (NIG) LTD (2004) 11 NWLR PT. 885 p.552. See also IHEKWOABA V ACB LTD (1998) 10NWLR (PT. 571) 590 AT 610 611 cited with approval by Supreme Court in NWANJIS case in the lead judgment.
UWAIFO JSC. has this to say in respect of claim for solicitors fees.
It is an unusual claim and difficult to accept in this country as things stand today because as said by Uwaifo JCA in IHEKWOABA V ACB LTD (1998) 10 NWLR (PT 571)590 at 610 611.
The issue of damages as an aspect of solicitors fees is not one that lends itself to support in this country. There is no system of Taxation to get a realistic figure. Costs are awarded arbitrarily and certainly usually minimally. I do not therefore see why the appellants will be entitled to general or any damages against the auctioneer or against the mortgagee who engaged him in the present case on the ground of solicitors cost paid by them.
I am bound by the two decisions. I therefore set aside the award of N700,000.00 for the solicitors fees granted by the lower Court. This appeal succeeds in part. It is hereby allowed. The judgment of Edo State High Court delivered on 7/12/2016 in Suit No. B/472/2014 is hereby varied as follows:
Judgment is hereby entered for the claimant against the defendants jointly as follows:
For the ill treatment, harassment assault and hardship melted out to the claimant by the 2nd and 3rd Defendants, agents of the 1st Defendant. I award the claimant the sum of N4,000,000.00 as general damages. His claim for N1,000,000.00 general damages for his car and N1,000,000 damages as counsels fees for the prosecution of this matter are hereby refused. So also the claim for N70,000.00 being cost of the repair of the claimants car is also refused. The counter claim of the defendants is hereby dismissed, same being frivolous and lacking in merit.
This shall be the judgment of the Court.
Parties are to bear their respective costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now the lead judgment just delivered by my learned brother TUNDE OYEBAMIJI AWOTOYE, JCA.
I am inclined to agree with the reasoning and conclusion contained therein and have nothing extra to add. I also hold that the appeal succeeds in part and it is accordingly allowed in part.
I abide by the consequential orders made in the lead judgment including the order as to cost.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Tunde Oyebamiji Awotoye, JCA. I agree that the appeal is bereft of merit and I also dismiss it.
I abide by all the orders in the leading judgment.
Appearances:
Ehiren Okoh for 1st AppellantFor Appellant(s)
Dennis I OsaretinFor Respondent(s)
Appearances
Ehiren Okoh for 1st AppellantFor Appellant
AND
Dennis I OsaretinFor Respondent
