FIRST INLAND BANK V. CRAFT 2000 LTD. & ANOR
(2011)LCN/4703(CA)
RATIO
WHETHER A PARTY CAN BE ALLOWED TO HAVE DOUBLE COMPENSATION IN RESPECT OF THE SAME TRANSACTION
The law is that a court should not allow the same party to have double compensation in respect of the same transaction. So where a Plaintiff has recovered fully under special damages such a Plaintiff will not be entitled to general damages. See Arison Trading v. Military Governor, Ogun State (2009) All FWLR (Pt. 496) 1819; Artra Industries Ltd. v. N.B.C.I (1998) 3 SCNJ 98. PER ISAIAH OLUFEMI AKEJU, J.C.A.
WHETHER A PARTY IS PERMITTED ON APPEAL TO CHANGE THE CASE HE PRESENTED, ARGUED AND OBTAINED JUDGMENT UPON AT THE COURT OF TRIAL
An appeal does not constitute a fresh suit or action it is a continuation of hearing of the suit commenced at the lower court. A party is therefore not permitted on appeal to change the case he presented, argued and obtained judgment upon at the court of trial. See George vs. Dominion Flour Mills Ltd, (1963) 1 SCNLR 112; Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 498) 165. PER ISAIAH OLUFEMI AKEJU, J.C.A.
CIRCUMSTANCES UNDER WHICH AN AWARD OF GENERAL DAMAGES WILL BE INTERFERED WITH BY AN APPEAL COURT
The award of general damages is a matter for the trial court and an appeal court will not interfere with such an award except in circumstances well recognized by law, among which are where the trial judge has acted under a mistake of law or has acted in disregard of principle and injustice will result if the appeal court does not interfere. See UBN v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 401) 558. PER ISAIAH OLUFEMI AKEJU, J.C.A.
WHETHER THE PARTIES AS WELL AS THE COURT ARE BOUND BY THE PLEADINGS IN A MATTER
The law is settled that the parties and the court are bound by the pleadings. See Adeleke v. Iyanda (2001) 13 NWLR (pt. 729) 1; Adeniran v. Alao (2001) 18 NWLR (pt. 745) 361; Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127; National Investment and Property Company Ltd. v. Thompson Organization Ltd. (1969) 1 All NLR 134. PER ISAIAH OLUFEMI AKEJU, J.C.A.
HOW GENERAL TRAVERSE IN A STATEMENT OF DEFENCE WILL BE CONSIDERED
In the case of Arisons Trading vs. Mil Gov. Ogun State (2009) All FWLR (Pt. 496) 1819 the Supreme Court stated the position of general traverse as follows at page 1850: “It has for long been the practice that such general traverse in a statement of Defence is always given effect along with the whole tenor of the other averments in the other paragraphs of the statement of Defence. Thus it is not the practice to consider each paragraph of the Statement of Defence in isolation, but in conjunction with other paragraphs so that the issue joined in the pleadings can be properly ascertained, Ugochukwu v. Co-operative and Commerce Bank Ltd. (1996) 7 SCNJ 22 at 35 (1996) 6 NWLR (PT. 456) 524; Pan African Co. Ltd. v. NICON Ltd. (1982) 9 SC 1.” PER ISAIAH OLUFEMI AKEJU, J.C.A.
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of July, 2011
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State, sitting at Uyo delivered on 17/6/2010 in Suit No. HU/283/2007. The Respondents as the Plaintiffs before the High Court (hereinafter called the lower court) commenced the action through the Writ of Summons filed with the Statement of Claim on 23/7/2007 for the reliefs endorsed on the Writ of Summons and stated in paragraph 16 of the Statement of Claim as follows:
“Whereof the Plaintiffs claim against the Defendant as follows:
(a) Ten million, one hundred and seven thousand, four hundred and fifteen naira, twenty four kobo (N10,107,415.24) only, in special damages, being money standing to the credit of the plaintiffs in account number 314430280601 opened with the Defendant.
(b) Fifty million naira (50,000,000.00) being general and exemplary damages against the Defendant for breach of contact.”
The Appellant as the Defendant filed a Statement of Defence which was later amended as in the Amended Statement of Defence filed on 10/12/2007. At the trial, the Plaintiffs called one witness and the Defendant too called one witness. After the adoption of written addresses by the learned counsel, the lower court in the judgment delivered on 17/6/2010, granted the Plaintiff’s claim for N10,107,415.24 as special damages and awarded N25,000,000.00 as general and exemplary damages to the Plaintiffs.
The Defendant (hereinafter called the Appellant) felt dissatisfied with the judgment of the lower court and appealed to this court by the Notice of Appeal filed on 23/6/2010 which was later amended. The Amended Notice of Appeal filed with the leave of this court on 28th February, 2011 contains four grounds of appeal from which two issues were formulated for determination in the Appellant’s Brief of Argument settled by Ekpedeme Nelson-Iyoho, learned counsel for Appellants and filed on 30/12/2010 but deemed as properly filed on 28/2/2011.
The two issues in the Appellant’s Brief are as follows:
“1. Whether the order awarding N25m as general and exemplary damages against the Appellant for breach of contract by the trial judge was competent.
2. Whether as shown in evidence there were proper Plaintiffs before the court and if not whether the entire proceedings and judgment of the learned trial judge was competent.
The learned counsel argued on issue 1 that jurisdiction is a threshold issue which any party to a proceeding can raise and even the court itself and that lack of jurisdiction may arise in various ways including, whether a court acted properly in making its orders, or whether relevant formalities, conditions precedent and compliance with the rules of natural justice were present in a court’s proceeding. He cited Momah v. VAB Petroleum Inc. (2000) 2 SC 142. He argued that exemplary damages are not recoverable in an action for breach of contract but in the realm of torts, citing Allied Bank of Nig. Ltd. v. Akubueze (1997) 6 SCNJ 16; Okongwu v. NNPC (1989) 7 SC (pt. 1) 127; Williams vs. Daily Times (1990) I SC 23; Lion Bank Nig. Ltd. v. Amaikom (2008) All FWLR (Pt. 417) 85, He submitted also that exemplary damages must be specifically claimed and proved before it can be awarded relying on Odogwu v. A.G. F & Ors. (1996) All NLR 480.
According to the learned counsel no exemplary damages was proved in the instant case by the Respondents who had already recovered N10,107,415.24 as special damages and the law does not allow for recovery of both special and general damages in breach of contract, citing Gambo v. Ikechukwu (2004) All FWLR (Pt. 202) 178; Artra Industries Nig. Ltd. v. Nig. Bank for Commerce and Industry (1998) 3 SC 98; FBN plc v. Moba Farms All FWLR (Pt. 255) 1120 (sic); Anazodo v. Pazmeck (2008) All FWLR (pt. 432) 1207; Arisongs Trading v. Mil Gov. Ogun State (2009) All FWLR (Pt. 496) 1919.
The learned counsel submitted that the Respondents who had recovered fully under special damages could not recover another N25 million from the same injury under the head of general and exemplary damages for breach of contract, moreso that the general and exemplary damages were lumped together without any justification. He cited Lion Bank of Nig. Ltd. v. Amaikom (supra) at Page 107. He urged court to set aside the award of N25 million general and exemplary damage.
On issue 2, the learned counsel argued that it is important and fundamental that a juristic personality exists in an action and failure to show that the proper parties have been brought to court amounts to putting something on nothing. He argued that the 1st Respondent in this case was allegedly incorporated under the companies and Allied Matters Act, while 2nd Respondent claimed to be Director and chairman of the 1st Respondent but there was no evidence in support of this claim by the Respondents.
The learned counsel submitted that the burden of proving the existence of the 1st Respondent was on the Respondents who failed to lead any evidence at all to that effect especially from the state of the pleadings wherein the Appellant did not admit the legal personality of the 1st Respondent in the pleadings, citing Arisons Trading v. Military Gov. Ogun State (2009) All FWLR (pt. 496) 1819. He submitted with reliance on ACB v. Emostrade Ltd. (2002) FWLR (Pt. 104) 1540 that the only mode of proving the existence of a company has always been through the production of Certificate of Incorporation, and since the 1st Respondent has no prove of existence, the 2nd Respondent who derives title and standing from 1st Respondent is without foundation since the 2nd Respondent admitted that the account belonged to the 1st Respondent. He argued that the claim of the Respondents ought to have failed; citing Registered Trustees of Apostolic v. A.G. Mid Western State (1972) 7 NSCC 247.
He submitted on the other hand that being public documents, the court was wrong to have admitted photocopies of documents of Incorporation of the 1st Respondent which the court admitted as exhibits 6 and 7. He referred to Section 109 Evidence Act and Sections 97 (1) (e) and 97 (2) (c) of the same Act to submit that only a Certified True Copy but no other kind of secondary evidence is admissible, citing Onochie v. Odogwu (2006) All FWLR (Pt. 317) 544; Archibong v. State (2006) All FWLR (Pt. 323) 1747.
He contended that there was no proof that 1st Respondent was a proper Plaintiff that could sue and be sued and the same applied to 2nd Respondent who depended on the existence of the 1st Respondent. The learned counsel then submitted that since there was no proof of proper Plaintiffs before the lower court, then the whole proceedings and judgment was without foundation and amounted to a nullity which ought to be set aside.
He urged this court to allow the appeal.
The Respondents’ Brief of Argument was settled by Aniedi Ben (Mrs.) learned counsel who adopted the two issues for determination as formulated by the Appellant which I earlier set down in this judgment.
The learned counsel argued that the Appellant did not raise any issue from Ground 1 of the Grounds of Appeal and that ground must be deemed as abandoned. He urged that the ground of appeal be struck out, citing Unity Bank Plc. v. Bouari (2008) All FWLR (pt. 416) 1925; Akinsanya v. Longman (1996) 3 NWLR (Pt. 436) 303; Ibrahim v. Mohammed (1996) 3 NWLR (Pt. 437) 453.
On the first issue for determination, Respondents’ counsel contended that the Respondents pleaded and proved the acts of conversion of the Respondents, funds by the staff of the Appellant which acts were calculated to confer underserved benefit on the Appellant and her staff and for which the Appellant was vicariously liable, and there was no evidence in contradiction. On when exemplary damages are proved, the learned counsel referred to Rooks v. Bernard (1964) 2 WLR 269; Ezeani v. Ejidike (1964) 3 NSCC 306; 7up Bottling company Plc. vs. Abiola & Sons (2001) FWLR (pt. 59) 121 and urged court to hold that the Respondents had by evidence established their entitlement to general and exemplary damages.
On the contention of the Appellant that the law does not allow the award of both special and general damages for breach of contract, the learned counsel submitted that the contention does not represent the law, citing the case of New Nigerian Bank Plc. v. Denclag Limited (2004) All FWLR (Pt. 228) 606 and quoting copiously pages 653-654 thereof and contending that the facts of that case are quite similar to the instant one on appeal being the same story of breach of contract by the Appellant leading to loss by the Respondent and by which Respondents are entitled to both special and general damages, the only difference being that in the instant appeal if was the violation of the mandate instructions given by the Respondents to the Appellant as well as conversion of the respondents’ funds in their account both of which were established by the unchallenged evidence of the PW1.
The learned counsel stated that N10,107,415.24 was awarded as special damages for breach of contract while the award of N25,000,000.00 was to compensate for conversion as borne out by the unchallenged evidence of the Respondents. On the claim of the Respondents in paragraph 16 (b) of their Statement of Claim, the learned counsel stated that the claim was erroneously stated to be for “breach of contract” instead of conversion; and submitted that the claim was prepared by the counsel for the Respondents whose error should not be visited on the litigant relying on The Young Shall Grow Motors Ltd. v. Afolabi (2002) FWLR (Pt. 135) 785; Anakwe v. Oladeji (2008) All FWLR (Pt. 399) 571.
It was further contended by the learned counsel that where counsel omits to correctly state the law under which the claim is brought or brings the claim under a wrong law, the claim is not thereby defeated but remains valid and awardable in so far as the remedy sought is known to law and the claim is established by evidence, citing Mercantile Bank of Nigeria Plc v. Feteco Nigeria Limited (1998) 3 NWLR (pt, 540) 143 and urged this court to hold that the award of twenty five million naira award was valid though wrongly claimed as breach of contract instead of the tort of conversion. The learned counsel said the words “for breach of contract” as stated by counsel in the Statement of Claim was reproduced by the learned trial judge while making the award which counsel conceded was an error, but that the error was not significant or sufficient to warrant setting aside the award or a reversal of the lower courts’ decision. Learned counsel submitted that it is not every error in law that entitles the affected party to a reversal of the courts’ judgment, rather for an error in law to lead to setting aside of judgment, such an error must be grave and significant to lead to a miscarriage of justice, citing Bukur v. Kaashima (2005) All FWLR (Pt. 291) 1628; Ultimate Investment Limited v. Castle & Cubicles Limited (2008) All FWLR (Pt. 417) 124; Akpan v. Otong (1996) 12 SCNJ 213 and submitted that the Appellant has not shown any miscarriage of justice occasioned by this “small error” since the Appellant did not lead evidence to challenge the award and did not show that the award was excessive and so must be deemed to have admitted that the Respondents are entitled to the award.
On the contention of the learned counsel for Appellant that exemplary damages are not recoverable in actions for breach of contract but only in the realms of torts, the learned Respondents’ counsel stated that the award of N25 million was for conversion, a tort proved by the Respondents at the trial, and even if it was for breach of contract the Respondents’ claim in general damages for the loss of use of the fund deposited into her account with the Appellant would cover the award on the principle of severance of claim by which the claim for exemplary damages will be discountenanced while the monetary award survives as general damages.
Counsel submitted that this court will not interfere with the quantum of damages awarded by a trial court or alter same, merely because it would have awarded a different sum if it had sat as a trial court, citing National Oil & Chemical Marketing Plc v. Adeusi (2009) All FWLR (Pt. 455) 1669; 7up Bottling Coy. Plc. v. Abiola & Sons Bottling Company (2001) FWLR (Pt. 59) 1216; New Nigerian Bank Plc v. Denclag Limited (2004) All FWLR (pt. 228) 606 and urged this court to hold that the N25 million awarded by the lower court was valid.
On the second issue, the learned counsel submitted that the respondents established the legal capacity of the 1st Respondent as a juristic person and the 2nd Respondent as a natural person which required no evidence having been admitted by the Appellant in both the Statement of Defence and the Amended State of Defence or at least was not denied and must be deemed as established on the authority of New Nigerian Bank Plc vs. Declang Ltd. (2004) All FWLR (pt. 228) 606; Kyari v. Alkali (2001) FWLR (Pt. 60) 1481; Ofoelo v. National Electric Power Plc (2005) All FWLR (Pt. 285) 545. According to counsel, a general traverse does not put a fact specifically pleaded in a Statement of Claim in issue, such fact must be specifically denied. Counsel submitted also that issues are not joined in the Brief of Argument as counsel’s argument, no matter how brilliant or elegant cannot take the place of pleadings and evidence, citing 7up Bottling Coy. Plc v. Abiola & Sons Bottling Co. (2001) FWLR (Pt. 59) 1216.
The learned counsel submitted that the Appellant did not in any part of the Amended Statement of Defence make any averment to the effect that the 1st Respondent was not duly incorporated or raising any doubt about the 1st Respondent’s legal capacity which was known to the Appellant as the record of the 1st Respondent’s account indicates that the Appellant collected a fee search on 1st Respondents’ corporate existence.
The learned counsel stated that the 2nd Respondent who testified as PW1 had given evidence on the status of the 1st Respondent as an incorporated limited liability company which evidence was not challenged, controverted or debunked by the Appellant and it is now too late to try to deny at this stage.
On the admission of photocopies of 1st Respondent’s Certificate of Incorporation and Memorandum and Article of Association, as exhibits 6 and 7, the learned counsel said they were tendered by the Appellant during Cross examination of PW1. Counsel said the documents were not pleaded by any of the parties and they were admitted by the lower court erroneously while this court should reject, discountenance and expunge them from the Record of the court.
Counsel argued that the error of the lower court in admitting the exhibits 6 and 7 which it ought to have reject as not pleaded was not sufficient to set aside or reverse the judgment as no injustice has been shown to have been suffered by the Appellant as a result of the error.
The learned counsel urged this court to hold that proper parties were before the trial court and to resolve this second issue in favour of the respondents while also urging that the appeal be dismissed by this court for lacking merit.
In the Appellant’s Reply Brief filed on 21st March, 2011, the learned counsel for Appellant stated on issue one that the crux of Respondent’s argument was that the award of N25 million general and exemplary damages for breach of contract by the lower court was “error of counsel and of court” and that this court should replace the relief of ‘breach of contract’ with ‘tort of conversion.’
The learned counsel submitted that this court has no jurisdiction to create a fresh cause of action for parties other than that placed before it. He submitted that tort of conversion is a separate cause of action from breach of contract and the parties are bound by their pleadings, citing Marchem Ind. Ltd. v. M. F. Kent (W.A) Ltd. (2005) All FWLR (Pt. 271) 1. He submitted that the Respondents’ case which was fought on breach of contract cannot suddenly be substituted for ‘tort of conversion’ under an alleged error of court or severance of claim as urged by the Respondents, citing Olufeagba v. Abdul-Raheem (2010) All FWLR (Pt. 512) 1033 that it is not the responsibility of the court to set up for the parties a case different from the one brought by their pleadings.
Appellant’s counsel submitted that the case of New Nigerian Bank relied upon by the Respondents did not consider the effect of double compensation as held in Arisons Trading v. Mil Gov. Ogun State (2009) All FWLR (Pt. 495) 1819. He submitted that this court must follow the decision in Allied Bank Ltd. v. Akabueze (1997) 6 NWLR (Pt. 509) 374; Williams v. Daily Times of Nigeria Ltd. (1990) 1 NWLR (Pt. 124) 1 to the effect that as a rule exemplary damages are recoverable in torts but not in an action for breach of contract. He urged court to set aside the award of N25 million exemplary and general damages which was awarded on a wrong principle of law.
On the second issue, the learned counsel submitted that a Plaintiff is put to the strictest proof of paragraphs that are not admitted or that are omitted to have been denied, same having been put in issue by the general traverse. For what is a traverse, he referred court to Arisons Trading v. Military Gov. Ogun State (supra) at 1847-1848 (G-D). He urged this court to find and hold that the juristic personality of the 1st Respondent was not proved at the trial and this should render the entire judgment incompetent as in the case of registered Trustees of Apostolic Church v. A.G. Mid Western State (1972) 7 NSCC 247.
The brief facts of the case that led to this appeal are that in May 2005, the 2nd Respondent as the Chairman and Chief Executive of the 1st Respondent opened an account at Uyo branch of the Appellant bank. The account was a Current Account numbered 314430280601 into which the amount of N10,000,000.00 (ten million naira) was deposited. As at June, 2005, the account had a credit balance of N10,107,415.24 (ten million, one hundred and seven thousand, four hundred and fifteen naira, twenty four kobo) but by September, 2005, the amount in the account had reduced to N75,915.24, The Respondents cried foul and when efforts to recoup the money failed, the Respondents commenced an action at the High Court of Akwa Ibom State, Uyo Division for the reliefs set out in paragraph 16 of their Statement of Claim as follows:
(a) N10,107,415.24 as special damages being the amount standing as credit in the account, and
(b) Fifty million naira being general and exemplary damages for breach of contract.
After hearing the witnesses and the address by the counsel therein, the learned trial judge granted the claim for N10,107,415.24 as special damages and awarded an amount of N25 million as general and exemplary damages for breach of contract.
Issue one in the Appellant’s Brief of Argument which was adopted by the learned Respondents’ counsel is whether the lower court was right in awarding N25 million naira as general and exemplary damages in a claim for breach of contract. As well explained by the Supreme Court in Odogu v. Att. Gen. of the Federation (1996) 6 NWLR (Pt. 456) 508, exemplary damages are usually awarded whenever the defendants’ conduct is sufficiently outrageous to merit punishment such as instances where malice, fraud, cruelty, insolence, flagrant disregard of the law are disclosed. The Supreme Court made it clear in Allied Bank of Nigeria Limited v. Akabueze (1977) 6 SCNJ 116 that exemplary damages are recoverable only in matters in the realm of torts and not in claims for breach of contract with of course the only exception being in an action for breach of promise of marriage. It was also stated in that case that even in the realm of torts, the circumstances in which exemplary damages may be awarded are where the following are shown:
(a) Oppressive, arbitrary or unconstitutional action by the servants, of government;
(b) Where the Defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the Plaintiff;
(c) Where exemplary damages are expressly authorized by statute.
In another breadth, the Appellant’s counsel argued against the award of general damages in an action for breach of contract.
The law is that a court should not allow the same party to have double compensation in respect of the same transaction. So where a Plaintiff has recovered fully under special damages such a Plaintiff will not be entitled to general damages. See Arison Trading v. Military Governor, Ogun State (2009) All FWLR (Pt. 496) 1819; Artra Industries Ltd. v. N.B.C.I (1998) 3 SCNJ 98.
It is noted that at pages 7-8 of the Respondents’ Brief, the learned counsel had argued that the claim for exemplary and general damages was an error of counsel who supplied the law while the learned trial judge merely reproduced the words “for breech of contract.” The learned counsel urged this court to hold that the award of N25 million was valid though awarded under a wrong law as breach of contract instead of for conversion.
An appeal does not constitute a fresh suit or action it is a continuation of hearing of the suit commenced at the lower court. A party is therefore not permitted on appeal to change the case he presented, argued and obtained judgment upon at the court of trial. See George vs. Dominion Flour Mills Ltd, (1963) 1 SCNLR 112; Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 498) 165.
The award of general damages is a matter for the trial court and an appeal court will not interfere with such an award except in circumstances well recognized by law, among which are where the trial judge has acted under a mistake of law or has acted in disregard of principle and injustice will result if the appeal court does not interfere. See UBN v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 401) 558.
The award of N25 million naira as general and exemplary damages for breach of contract by the lower court was an error of law and in disregard of the principle laid down for the award of damages and must be set aside. I therefore resolve this issue in favour of the Appellant.
The second issue is whether there were proper Plaintiffs before the court or whether the entire proceeding was incompetent.
The subject of the Respondents’ action at the lower court was the Current Account of the 1st Respondent with the Appellant. This action was commenced by Writ of Summons and Statement of Claim filed together on 23rd July, 2007 while the (Defendant) Appellant filed a Statement of Defence that was subsequently amended by the Amended Statement of Defence filed on 10th December, 2007. The law is settled that the parties and the court are bound by the pleadings. See Adeleke v. Iyanda (2001) 13 NWLR (pt. 729) 1; Adeniran v. Alao (2001) 18 NWLR (pt. 745) 361; Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127; National Investment and Property Company Ltd. v. Thompson Organization Ltd. (1969) 1 All NLR 134.
In the case of Arisons Trading vs. Mil Gov. Ogun State (2009) All FWLR (Pt. 496) 1819 the Supreme Court stated the position of general traverse as follows at page 1850:
“It has for long been the practice that such general traverse in a statement of Defence is always given effect along with the whole tenor of the other averments in the other paragraphs of the statement of Defence. Thus it is not the practice to consider each paragraph of the Statement of Defence in isolation, but in conjunction with other paragraphs so that the issue joined in the pleadings can be properly ascertained, Ugochukwu v. Co-operative and Commerce Bank Ltd. (1996) 7 SCNJ 22 at 35 (1996) 6 NWLR (PT. 456) 524; Pan African Co. Ltd. v. NICON Ltd. (1982) 9 SC 1.”
In paragraphs 1, 2, 3, 4 and 5 of the Statement of Claim, the Respondents introduced the 1st Respondent as a Limited Liability Company Incorporated under the Companies and Allied Matters Act, 1990, with registered office at No. 1 Aka Itam Street, Uyo Akwa Ibom State while the 2nd Respondent was its Chairman and Chief Executive Officer. It was further averred that the Current Account in issue here was opened by the 1st Respondent through the 2nd Respondent who completed a mandate card with the Appellant.
In paragraph 2 of the Amended Statement of Defence, the Defendant admitted paragraph 5 of the Statement of Defence with additional facts while there was no reference to paragraphs 1, 2, 3 and 4.
The 2nd Plaintiff as PW1 testified in chief in line with the pleadings and thereby discharged any onus placed on him in respect of the legal status of the Respondents. It is the law as laid down by Sections 135, 136 and 137 (1) Evidence Act that he who asserts must prove that which he asserts and civil matters are settled on balance of probabilities whereby if a party discharges the burden of proving a particular fact, the burden shifts to the other party to prove its own assertion as dictated by pleadings. See Daodu v. NNPC (1998) 2 NWLR (Pt. 538) 355. It is clear that it was in the process of establishing the contrary of the Respondents’ case that the documents admitted as exhibits 6 and 7 were admitted on the application of the learned defence (Appellant’s) counsel. It is the same documents the same learned counsel now complains about in this appeal, a clear case of approbating and reprobating, or in another way, acting one script at the trial court and acting another on appeal.
It was the Appellant that failed to adduce cogent evidence in rebuttal of the Respondents’ legal or juristic personality and the second issue is resolved against the Appellant.
In conclusion, this appeal succeeds partially and it is allowed. The award of N25 million general and exemplary damages by the lower court is set aside while the award of N10,107,415.24 special damages remains.
I make no order as to costs.
KUMAI BAYANG AKAAHS, J.C.A.: I read before now the judgment of my learned brother, Akeju, JCA. He dealt with all the issues raised in the appeal and I entirely agree with his reasoning and conclusion.
The Appellant cannot approbate and reprobate. No issue was joined in the pleadings regarding the juristic personality of the 1st Respondent and cannot be made an issue on appeal. If a party acquiesces on the admissibility of a document on the fulfillment of any precondition, he cannot be heard that the conditions precedent was not fulfilled before it was admitted. It is only documents which are inadmissible under any circumstance that can be expunged on appeal if no objection was taken on its admissibility.
On the argument by the Respondent that the award of N25 million as general and exemplary damages for breach of contract was a slip which should be amended to read “N25 million is awarded as damages for conversion”, this amounts to amending the claim in the pleadings and changing the whole complexion of the claim. In paragraph 16(b) of the statement of claim, the Plaintiff now Respondent asked for N50 million as “general and exemplary damages for breach of contract”. The learned trial Judge awarded the damages based on the claim by the plaintiff. The award is wrong in law because general and exemplary damages can be awarded to a party for tortious liability and not for breach of contract. That award must be set aside. The appeal therefore partially succeeds and the N25 million awarded by the lower court is hereby set aside. No order on costs is made.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read in advance while in draft, the judgment of my learned brother, Isaiah Olufemi Akeju, JCA, which has just been delivered. I agree with the reasoning and conclusion reached therein. For the said comprehensive reasons brilliantly marshalled in the lead judgment, I am also of the firm view point that the appeal ought to succeed partially and it is accordingly so allowed. I abide by the consequential orders made therein.
Appearances
Ekpedeme Nelson-IyohoFor Appellant
AND
Aniedi Ben (Mrs.)For Respondent
