GEORGE EMEGHARA v. STERLING BANK PLC
(2018)LCN/12450(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of June, 2018
CA/OW/420/2014
RATIO
DAMAGES: ASSESSMENT AND AWARD OF DAMAGES
“It is settled law that the assessment and award of damages is essentially at the discretion of the trial Court, and being a matter of discretion, an appellate Court should always be wary and/or resist the temptation to tamper with the award of damages made by the trial Court. Therefore, an appellate Court should restrain from interfering with the award of damages made by a trial Court on the basis, that it would have made a different award, had it been that it was in the same position as the trial Court; except where the amount awarded is found to be ridiculously too high or too low or that the trial Court acted or relied on wrong principle of the law when it made its award. See the cases of Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Nwaenang v. Ndarake & Ors. (2013) LPELR 1079) LPELR 20720; A.S.E.S.A. v. Ekwenem (2009) 13 NWLR (Pt. 1158) 410; Onwu v. Nka (1996) 7 NWLR (Pt. 458) 1 and International ile Industries (Nig.) Ltd. v. Aderemi (1999) 8 NWLR (Pt. 614) 268.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
DAMAGES: EXEMPLARY AND PUNITIVE DAMAGES
“Exemplary and punitive damages do not fall into the realm of damages recoverable for breach of contract, except of course if for instance, it is an action founded on breach of promise to marry; tort; specified by statutes or where the defendant’s conduct has been calculated by him to make profit for himself, which may well exceed the compensation payable to the plaintiff. See the cases of Allied Bank of Nig. V. Akubueze (1997) 6 NWLR (Pt. 509) 374 and Odogu v. Attorney General of the Federation (1996) 6 NWLR (Pt. 456) 508.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
Before Their Lordships
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYEJustice of The Court of Appeal of Nigeria
Between
GEORGE EMEGHARAAppellant(s)
AND
STERLING BANK PLCRespondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Imo State, sitting at Owerri (hereinafter referred to as the lower Court) delivered on the 28th day of June, 2013 by Hon. Justice P.O. Nnadi, J.
The suit which gave rise to this appeal was commenced by a writ of summons and statement of claim filed on the 20th day of February, 2008, whereby the plaintiff/appellant (hereinafter referred to as the appellant) sought for the grant of the following reliefs:
(a) An order for Court compelling the Defendant to refund and pay back into the Plaintiff’s account, the sum of N95,000.00 (Ninety Five Thousand Naira) being money received by the defendant to purchase shares for the plaintiff but never used for same or repaid despite repeated demands.
(b) Interest at the rate of 21% per annum on the aforesaid illegally withheld sum of N95,000.00 (Ninety Five Thousand Naira)
(c) A declaration that the continued unlawful and withholding of the plaintiff’s said funds despite repeated demand is illegal.
(d) The sum of N5,000,00.00 (Five Million Naira) being damages for unlawfully withholding the plaintiff’s fund.
(e) The sum of N10,000,000.00 (Ten Million Naira) being damages for breach of contract to buy the agreed shares.
The appellant’s case against the defendant/respondent (hereinafter referred to as the respondent) was that on the 3rd day of September, 2007, he authorized the respondent to make withdrawal of the sum of N95,000.00 from his account, for the purchase of some shares. He claimed that in line with his instruction the respondent made the withdrawal of the money from his account, but did not utilize the same for the purchase of the shares as instructed. He stated that he made several attempts to recover his money back since it was not utilized for the purpose for which it was withdrawn, but his pleas fell on deaf ears and all efforts remained futile. Consequently, he engaged and/or instructed his solicitors to take steps on his behalf to recover the said money with interest. The appellant solicitor’s letter and statement of account confirming the withdrawal were tendered as Exhibits C and D, respectively. The appellant further claimed that his solicitors request was not given requisite attention or even the courtesy of a reply. Thus, he instituted this action to recover his money and accrued interest thereon.
In defence, the respondent filed its statement of defence on the 16th day of July, 2008. The respondent’s defence was centered on the fact that it was only an agent of a disclosed principal. The respondent stated that it was authorized by the appellant to transfer the sum of N95,000.00 from his account to Nigerian Stock Brokers Limited, for the purpose of purchasing shares. The respondent claimed that it duly carried out the appellant’s instruction, and when the shares could not be purchased, as requested and authorized by the appellant, the money withdrawn was remitted back to the appellant’s account, before this action was filed.
At the close of pleadings, the parties led evidence in proof and defence of their respective cases. The appellant testified for himself and tendered some documents as exhibits in a bid to establish his case. The respondent on the other hand, called a single witness and also presented some documentary evidence. Thereafter, the parties closed their respective cases and proceeded to address the lower Court. The learned trial judge after due evaluation of all the pieces of evidence adduced by the parties and legal arguments proffered in support thereof, found that the appellant had satisfactorily proved his case and thereby entered judgment in his favour. Consequently, he ordered as follows:
1. The defendant shall pay interest on the sum of N95,000.00 debited from the account of the claimant at the rate of 21% from the 06/09/07 when the money was debited to the 25/11/2008 when the said sum was credited back to the claimant’s account with the defendant.
2. The defendant shall pay the sum of N150,000.00 being damages for breach of the contract to buy the agreed shares and for unlawfully withholding the claimant’s funds for the purchase of the agreed shares from 06/09/2007 to 25/01/2008.
3. The defendant shall pay cost of N10,000.00 to the claimant.
Although, the appellant accepted the aspect of the decision of the lower Court whereby it entered judgment in his favour, however, he was not happy with the quantum of damages awarded in his favour by the lower Court. Thus, he appealed against the same vide his notice of appeal dated the 2nd day of August, 2013 and filed on the 5th day of August, 2013. The appellant’s displeasure against the award of damages were captured in his two grounds of appeal, which are reproduced below without their particulars as follows:
GROUND ONE
The Learned trial Judge erred in law in awarding only N150,000.00 (One Hundred and Fifty Thousand Naira) as damages for breach of contract and failure to honour the fiduciary duty of care.
GROUND TWO
The Learned Trial Judge erred in law in basing his assessment of damages on wrong principles of law and thereby awarding so very small damages as to make the award of N150,000.00 an entirely erroneous estimate of the damage which the claimant/appellant is entitled to.
To prosecute the appeal, the learned counsel for the parties filed and exchanged their respective briefs of argument. The appellant’s brief of argument dated the 23rd day of October, 2015 was filed on the 26th day of October, 2015. The said appellant’s brief was prepared by Leslie A. Njemanze Esq. The appellant also filed a reply brief on the 30th day of March, 2016 in response to the respondent’s brief of argument. On the other side of the coin, the respondent’s brief of argument dated the 14th day of March, 2016 was filed on the 15th day of March, 2016. The said respondent’s brief of argument was prepared by Chief I. O. Igboanugo (KSM).
For the determination of this appeal, the appellant’s counsel donated a sole issue for resolution. The issue is reproduced below as follows:
‘Did the learned trial judge award proper and commensurate damages in the light of the proved facts of the case’.
The respondent’s counsel on the other hand donated two issues for resolution towards the determination of this appeal. The issues are reproduced below as follows:
(a) Did the learned trial judge award proper and commensurate damages in the light of the proved facts of the case?
(b) Whether the claimant is entitled to any relief(s) in this suit having regard to the fact that the defendant transferred back the sum of N95,000.00 (Ninety Five Thousand Naira) to the claimant’s account before he filed this suit?.
I have carefully examined the issues donated by the learned counsel for the parties and I found the appellant’s issue 1 and respondent’s 1 materially the same and borne out of the appellant’s grounds of appeal. However, the same cannot be said of the respondent’s Issue 2. The said respondent’s Issue 2 was not founded on any grounds of appeal. This Court has for the umpteenth time warned and/or admonished learned counsel for the parties on the need to restrict issues formulated for the determination of an appeal to the grounds of appeal in the appeal matter. In the instant appeal, the respondent’s Issue 2 was neither predicated on any ground of appeal nor form part of the appellant?s complaint. The respondent who has no cross appeal herein cannot competently raise an issue not contemplated by the appellant’s grounds of appeal. See the cases of Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 and Onwumere v. State (1991) 4 NWLR (Pt. 186) 428.
Consequently, the respondent’s Issue 2 and argument in support thereof are struck out by me for being incompetent. The appellant’s sole issue is hereby adopted by me for resolution and the determination of this appeal.
ARGUMENTS ON ISSUE.
The learned counsel for the appellant set out in arguing this issue with the submission that the lower Court, having found that the appellant had proved his case in its entirety, it had a solemn duty to award adequate, compensatory and exemplary damages in the appellant’s favour against the respondent. The learned counsel argued that the lower Court ought to have granted all the appellant’s heads of claims as prayed, because the appellant had proved his claim satisfactorily as required by law. He further argued, that the claims also needed to have been granted as exemplary damages against the unlawful acts of the respondent. He referred us to the case of Obmiami Brick & Stone Ltd. v. ACB Ltd. (1992) 3 NWLR (Pt. 229) 260. Thus, he urged this Court to interfere with the award of damages made by the lower Court for being made on a wrong principle and/or ridiculously low. He supported his submission with the cases of Harold Sodipo& Co. Ltd. v. Daily Times (Nig.) Ltd. (1972) 11 S.C. 69 and Uwa Printers (Nig.) Ltd. v. Investment Trust Co. Ltd. (1988) 5 NWLR (Pt. 92) 110 among others.
Also, the learned counsel for the appellant contended that the learned trial judge ought to have demonstrated in his judgment how he arrived at the assessment of the damages, particularly when he is expected to award appropriate and more reasonable damages considering the circumstances of this case. He referred us to the cases of Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 and Eseigbe v. Agholor (1993) 9 NWLR (Pt. 316) 128. The learned counsel for the appellant contended that the award of damages made by the learned trial judge did not adequately amount to compensation for the loss of investment suffered by the appellant, particularly when consideration is given to the high handedness, oppressive, contemptuous, unprofessional conduct and lack of respect for contract and breach of fiduciary duty meted out by the respondent against and or on the appellant. In essence, the learned counsel for the appellant contended, that the appellant had made out a proper case to entitle him to sufficient compensation in form of exemplary damages against the respondent, and thus urged this Court to set aside the award of damages made by the lower Court and in its place award the appellant the sum of N15,000,000.00 which he sought for in his claim.
In response, the learned counsel for the respondent submitted, that ?the learned trial judge awarded more than proper and commensurate damages having regard to the peculiar facts of this case.? He stated that the learned trial judge in awarding the sum of N150,000.00 in favour of the appellant, clearly considered all the peculiar facts of the case before making his assessment and subsequent award. He argued, that the appellant in his claim neither pleaded nor proved any special damages suffered by him or has in this appeal given any cogent reason why this Court should add anything to the award of damages made by the lower Court.
In addition, the learned counsel for the respondent submitted, that ‘there was no pleading and evidence on adequate, compensatory and exemplary damages. It is only in this Honourable Court of Appeal that the appellant came up with praying for adequate, compensatory and exemplary damages, which he is not entitled.’
Furthermore, the learned counsel submitted, that ‘an exemplary damage is not awarded as a matter of course. A party needs to plead and prove an exemplary damage which was not done in this case.’
He called in aid the cases of G. K.F. Investment (Nig.) Ltd. v. NITEL Ltd. (2006) ALL FWLR (Pt. 299) 1402;Dahiru v. Kamale (2006) ALL FWLR (Pt. 295) 616 at 621 and Odiba v. Azege (1998) 9 NWLR (Pt. 566) 370. Again, the learned counsel for the respondent argued, that the appellant in the instant case has not shown, as required by law, that he would have been in a better financial position than he was when he filed this case, but for the failure of the respondent to perform the contract. Thus, he submitted, that the appellant in the circumstances of this case is only entitled to nominal damages. He supported his position with the decision in the case of Baker Marine (Nig.) Ltd. v. Chevron(Nig.) Ltd. (2006) 13 NWLR (Pt. 997) 276.
Further, the learned counsel for the respondent submitted that the appellant has not demonstrated or made out a proper case to move this Court to interfere with the decision of the lower court. He argued that despite the fact that the appellant did not prove his case to the required standard and especially on the fact that the respondent had re-credited the appellant?s account with the money the subject matter of this action; the learned trial judge in his wisdom still went ahead to award the sum of N150,000.00 as damages in favour of the appellant. He contended that the award of damages as done by the lower Court was proper considering the circumstances of this case, and this Court had no need to interfere with the award made by the lower Court. He placed reliance on the decisions in the cases of Dada v. Faleye (2007) ALL FWLR (Pt. 349) 1144; Tsokwa Motors (Nig.) Ltd. v. Union Bank of Nigeria Plc. (1996) 9 NWLR (Pt. 471) 129 and Fashanu v. Adekoya (1974) 6 S.C. 83 among others.
Again, the learned counsel for the respondent submitted, that the appellant throughout the length and breadth of his pleadings did not seek or make out a case, for ‘adequate, compensatory and exemplary damages’, and that this heading of damages were only introduced by the appellant’s counsel in this appeal. He then submitted, that this new heading of damages having not being pleaded and proved, this Court lacks the jurisdiction to award the same in favour of the appellant. He supported his position with the cases of SPDC v. Okonedo (2007) ALL FWLR (Pt. 368) 1104; Ozor v. Eneh (2005) ALL FWLR (Pt. 264) 927. Finally, he urged this Court to resolve this issue in favour of the respondent.
It is settled law that the assessment and award of damages is essentially at the discretion of the trial Court, and being a matter of discretion, an appellate Court should always be wary and/or resist the temptation to tamper with the award of damages made by the trial Court. Therefore, an appellate Court should restrain from interfering with the award of damages made by a trial Court on the basis, that it would have made a different award, had it been that it was in the same position as the trial Court; except where the amount awarded is found to be ridiculously too high or too low or that the trial Court acted or relied on wrong principle of the law when it made its award. See the cases of Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Nwaenang v. Ndarake & Ors. (2013) LPELR 1079) LPELR 20720; A.S.E.S.A. v. Ekwenem (2009) 13 NWLR (Pt. 1158) 410; Onwu v. Nka (1996) 7 NWLR (Pt. 458) 1 and International ile Industries (Nig.) Ltd. v. Aderemi (1999) 8 NWLR (Pt. 614) 268.
It is to be noted, instructively and significantly too, that award of damages is not done or granted, as a matter of course or just for the asking. A plaintiff to be entitled to damages is required to establish in evidence, the circumstances justifying the award of the damages in his favour. In addition, if a plaintiff so desires, that a particular amount be awarded to him, he is expected to lead evidence to show the extent of financial loss suffered by him, which can only be assuaged by the award of specific amount or sums in that regard, as damages. See the case of Soetan & Anor. v. Ogunwo (1975) 6 S.C. 57 and Ifeta V. S.P.D.C. (Nig.) Ltd. (2006) 8 NWLR (Pt. 983) 585.
In the instant case, the appellant merely stated and/or established in evidence that the respondent breached the contract he had with it, when the respondent failed to buy or purchase the shares he instructed the respondent to buy on his behalf. The second arm of his claim was also that despite the fact that the shares was not purchased, his money was unlawfully withheld. Throughout the length and breadth of the appellant’s pleadings the name or nature of the alleged ‘choice shares’ which the appellant intended to buy was not mentioned. There was equally no pleadings or any iota of evidence to the effect that the appellant can no longer buy the said shares. In addition, the appellant made no effort to show or demonstrate in evidence, the value of the shares he intended to buy at the material time and how it has appreciated before his money was returned to his account. In essence, the appellant has failed to demonstrate in evidence or made any attempt whatsoever to show the actual financial loss which he suffered as a result of the respondent’s act.
Thus, I agree with the learned trial judge that the appellant is only entitled to general damages, and the learned trial judge having awarded N150,000.00 which he considered as being fair in favour of the appellant, I have no inclination to disturb the same, bearing in mind that the appellant has not shown by an iota of evidence or in the slightest form the financial loss suffered by him.
On the issue of exemplary damages, the appellant’s counsel contended that the respondent’s conduct in this case deserved punishment and the learned trial Court did not award adequate, compensatory and exemplary damages. It should be noted that in an action for breach of contract, the plaintiff is mainly entitled to general and special damages or specific performance, (as the case may be). Exemplary and punitive damages do not fall into the realm of damages recoverable for breach of contract, except of course if for instance, it is an action founded on breach of promise to marry; tort; specified by statutes or where the defendant’s conduct has been calculated by him to make profit for himself, which may well exceed the compensation payable to the plaintiff. See the cases of Allied Bank of Nig. V. Akubueze (1997) 6 NWLR (Pt. 509) 374 and Odogu v. Attorney General of the Federation (1996) 6 NWLR (Pt. 456) 508.
In the instant case, apart from the fact that the appellant did not raise any claim for compensatory and/or exemplary damages at the lower Court, he has also failed to make out a case deserving enough for this Court to interfere with the award of damages made by the lower Court and granting him exemplary and/or compensatory damages, above what was awarded in his favour by the learned trial judge. In the premise of all that I have said above, the sole issue is hereby resolved against the appellant and in favour of the respondent.
The sole issue formulated for the determination of this appeal, having been resolved in the manner as done above, this appeal is hereby found by me to be unmeritorious and it is accordingly dismissed. The decision of the lower Court delivered on the 28th day of June, 2013 in Suit No. HOW/112/2008 and the award of damages made therein are hereby confirmed by me. Costs in the sum of N50,000.00 is awarded against the appellant and in favour of the respondent.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, M.A. OREDOLA JCA, in the lead judgment just delivered.
Appellant should always appreciate that amount awardable as general damages is always at the discretion of the trial Court, though it must be exercised judiciously and judicially UBN PLC VS Ajabule & Anor; Ogah & Anor Vs Gidado & Ors (2013) LPELR – 20298 CA.
He should also appreciate that having been awarded interest on the judgment sum at 21%, from the date the money was debited by the bank on 6/62007 to 25/11/2008 when the money was credited back to his account, the trial Court had duly considered the extent of injury suffered and to be compensated
I too dismiss the Appeal and abide by the Consequential orders in the lead judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.
Appearances:
L. A. Njemanze, Esq. with Miss O.J. OdoemenaFor Appellant(s)
I.O. Igboanugo, Esq. with Jordan Okoro, EsqFor Respondent(s)
