LEARN AFRICA PLC v. HON. MOSES OKO
(2018)LCN/11949(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/C/323/2016
RATIO
DAMAGES: AWARD OF DAMAGES
“Let me re-echo here that issues of award of damages have been well addressed in our jurisprudence.
The basic object of an award of damages is to compensate the Plaintiff for the damages, loss or injury he has suffered. The guiding principle is restitution in integrum. The principle envisages that a party which has been damnified by the act which is called in question must be put in position in which he would have been if he had not suffered the wrong which he is now being compensated for. See NEPA VS. R.O. ALLI & ANOR. (1992) 10 SCNJ 34. ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR. VS. EKWENEM (2009) 6 7 (PT. 11) SC 5. See Galadima, JSC in AGU VS. GENERAL OIL LTD. (2015) LPELR 24613 (SC).” PER STEPHEN JONAH ADAH, J.C.A.
COURT AND PROCEDURE: WHERE DECISION OF A COURT IS PERVERSE
“A decision may be perverse where the trial Judge took into account, matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious. It could be seen also where there is absence of proper evaluation of evidence and failure to draw appropriate inference from them. See OKHUAROBO & ORS. VS. AIGBE (2002) LPELR 2449 (SC).” PER STEPHEN JONAH ADAH, J.C.A.
TORT LAW: THE ACT OF NEGLIGENCE
“The subject of negligence and contributory negligence has been part of our laws for a long while now. In the case of EVANS VS. BAKARE (1973) 3 SC (REPRINT) 53; Coker, JSC drew out the principal element of the person suffering loss as contributed by his own negligence to what had eventually happened to him. Where the plea of contributory negligence succeeds, the Court would apportion blame between the parties. The principle is that the measure of damages is to be apportioned according to the proportion, in which the parties are responsible. See OLOLO VS. NIG. AGIP OIL LTD. (2001) 13 NWLR (PT. 729) 88.” PER STEPHEN JONAH ADAH, J.C.A.
JUSTICE
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
LEARN AFRICA PLCAppellant(s)
AND
HON. MOSES OKORespondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Cross River State High Court delivered on 28th day of July, 2016 by O. A. Ogar, J. of the Calabar Division of the Court. The Respondent in this appeal was the Plaintiff while the Appellant was the Defendant at the Court below.
The facts are that sometime in the year 1994, the Respondent sent the typescript of his proposed Novel titled They Died for You to the Appellant for publishing. The Appellant misplaced it and informed the Respondent of that fact making a request that the Respondent should send another copy. The Respondent refused to send another copy but took out a writ of summons of the Court below. In the writ of summons as amended, the Respondent claimed the following reliefs:
1. The sum of N17, 000,000.00 (Seventeen Million Naira) only annually as damages for the proceeds that would have accrued to the Claimant for the publication of his book titled They died for You.”
2. The sum of N50, 000,000.00 (Fifty Million Naira) only as general damages for negligence.”
The Court below heard the claim and at the end of hearing the Court below awarded a sum of Twenty Million Naira (N20,000,000.00) only to the Respondent for the negligence of the Appellant.
Being dissatisfied with the judgment of the Court below the Appellant now appealed to this Court vide his notice of appeal filed on the 29th August, 2016.
The record of appeal was transmitted on 26th October, 2016 and the Appellant filed his Brief on 3rd November, 2016. The Respondent filed his own Brief on 13th October, 2017 but deemed properly filed and served on 16th October, 2017.
The Brief of the Appellant was settled by Adeyinka Olumide-Fusika. In the Brief the Appellant distilled two issues for determination. These issues are arranged as follows:
(1) Did the learned trial Judge determine the case upon the issue properly joined (and canvassed) between the parties, and if not then what is the consequence on the entire judgment? (Ground 1 of the Notice of Appeal dated and filed on 29th August, 2016).
(2) Was the N20m assessment and award in general damages factually and legally well-founded, and not perverse? (Grounds 2 – 6 of the Notice of Appeal dated and filed 29th August, 2016).
The Respondents Brief was settled by Emmanuel Sani. He framed also two issues which are couched as follows:
1. Whether the learned trial Court considered every material issue raised by the parties, having regard to the state of pleadings and evidence adduced before it on record; to arrive at a just determination of the substantive action in accordance with the due process of law.
2. Whether having found the Appellant negligent and in breach of the duty of care owed to the despondent to safeguard his manuscript the learned trial Court rightly in law awarded general damages as it did, in favour of the respondent.
Issues for determination in an appeal are not meant to be issues assumed by the parties as matching to their respective yearnings in the appeal. The issues are a cast or a mould of the complaints of the Appellant as borne out by the grounds of appeal as reflected in the notice of appeal of the Appellant. In a situation where the Respondent did not file Respondents notice or a cross appeal, he must distill his issues from the content and the con of the grounds of appeal filed by the Appellant.
What therefore is required of a Respondent who has not cross appealed is to frame his issues from those contemplated by the Appellant in the grounds of appeal. See NZEKWU & ORS. VS. NZEKWU & ORS (1989) 2 NWLR (PT. 104) 373; EMESPO J. CONTINENTAL LTD. VS. CORONA SHIFAH-RTSGESELLSCHAFT MBH & CO. (2006) 11 NWLR (PT. 991) 365; EZEANAH VS. ATTA (2004) 7 NWLR (PT. 873) 468; DAHIRU & ANOR. VS. APC & ORS. (2016) LPELR-42089 (SC).
In the instant case, the Appellants notice and grounds of appeal upon which this appeal was argued is the notice filed on 29th August, 2016 at pages 154 to 159 of the record of appeal. The notice has six (6) grounds out of which the Appellant distilled three issues. This is in line with the settled position of law of narrowing down issues for determination and avoiding proliferation of issues.
The two issues framed by the Appellant is more encompassing of the whole grounds of his complaint than the two issues raised by the Respondent. It is in this respect and in the interest of Justice to adopt the two issues raised by the Appellant for consideration. These two issues will be considered serially.
ISSUE ONE
This issue deals with whether the Court below determine the case upon the issue properly joined and canvassed between the parties and if not then what is the consequence on the entire judgment.
The Appellant in his argument pointed out that the Respondent had two heads of claim at the Court below. The first head which was for N17m annually as damages was dismissed leaving the second head of claim which was for N50m as general damages for negligence.
The learned Counsel for the Appellant in his brief contended that at the trial, the Claimant testified-in-chief by two written statements on oath (in support of his originating and reply pleadings), the first being the one titled WITNESS STATEMENT ON OATH at pages 8 11 of the record; and the second being the one titled FURTHER WRITTEN STATEMENT ON OATH OF HON. MOSES OKO at pages 41 42 of the record. Importantly, in the paragraph 3 of the second of his said two written statements on oaths (at page 41 of the record), the Respondent admitted the Appellants fundamental point of defence by testifying-in-chief thus:
3. That the Defendant had already in their letters dated 29th April, 1994 and 23rd February, 1995 acknowledged that they received a copy of the Manuscript of my book They Died for You.”
He pointed out also that under cross-examination the Respondent further testified that it is the typed copy I sent to the Defendant, not the hand-written manuscript. (line 15, page 99 of the record).
The learned Counsel contended further that the trial Court reformulated the issues formulated by the parties and that the reformulated issue did not anchor on the dispute placed before the Court of trial.
He canvassed that the case of the respective parties in this case was quite clear. That for the Respondent, it was that he gave to the Appellant the one and only manuscript of his novel They Died for You, and that the Appellant misplaced it and thus thereby throwing 5 years effort of the Claimant to the wind. That for the Appellant, the case pleaded was that the Respondent only gave it a copy of the manuscript, and that its admitted misplacement of the said copy, without more, was incapable of causing the Respondent the kind of wrong on which he based his claim. That the Respondent did not base his claim and the Appellant did not base its defence on Whether the Claimant submitted any written material to the Defendant.”
The learned Counsel then submitted that the failure of the Court below to determine the case according to the issue properly joined between the parties by their pleadings and legal evidence, but on its own reformulation amount to denial of Justice to the Appellant. He relied on the case of OGIDA VS. OLIHA (1986) 1 NWLR (PT. 19) 786 @ 798; EBONGO VS. UWEMEDIMO (1995) 8 NWLR (PT. 411) 22 @ 22 45; D.P.M.S. LTD. VS. LARMIE (2000) 5 NWLR (PT. 655) 138, 158 to say that a Court must limit itself to issues raised by parties at the trial. He urged the Court to resolve this issue in favour of the Appellant.
The Respondent in respect of this issue contended that the reformulation of the issues carried out by the Court below was based on issues joined by the parties. That the essence of formulation of issues is to identify areas of contention for a just disposal of the case.
He cited the case of USIOBAIFO VS. USIOBAIFO (2001) FWLR (PT. 61) 1784, 1800 and the case of MUSA VS. DARAPKAN (2000) SC 178. That the Court is at liberty to formulate issues for determination. That the decision of the Court must be based only upon the facts and materials placed before the Court as well as the issues raised by the parties.
The learned Counsel for the Respondent canvassed further that a Court can re-couch the issues framed as long as the Court does not introduce an entirely different issue or case from that contemplated by the parties. He contended that the reformulation of issues in this case did not in any material sense go outside the issues generated by the parties in their pleadings and evidence on record. That it is the prerogative of the trial Judge to bring out the issue from the presentation of the parties on record to reach a just determination of the case. He submitted that the authorities of EPEROKUN VS. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT. 34) 162; D.P.M.S LTD. VS. LARMIE (supra); and others cited by the Appellants Counsel are not on all fours with the peculiar facts and circumstances of this case. He urged the Court to resolve this issue in favour of the Respondent.
My Lords, the parties to this case have brought a very simple case before the Court but the Counsel representing them have engaged themselves in unnecessary arguments that are not helpful in the resolution of the issues generated in this case.
The Appellant in addressing this issue one went into a long seductive argument, even castigating the learned trial Judge who did a thorough evaluation of the evidence and the claim of the Respondent and dismissed the first leg of the claim. In paragraph 4.1.2, the learned Counsel for the Appellant said:
In the portion of the judgment shown in the penultimate paragraph of page 145 of the record, the learned trial Judge came to the decision (expressed in clearly reluctant language, as if it were a personal loss to his Lordship… (Underlining mine).
I must say right away that it is never an acceptable practice for legal practitioners to use their brief of argument as a means of insulting Judges. That no doubt not only defeats the purpose of brief of argument but a denigration of the hallowed Rules of professional ethics which enjoin legal practitioners to at all times be courteous and show unalloyed respect to the Court. A legal practitioner is a minister in the temple of Justice and as such must maintain the sanctity of the temple to build up the confidence of the public in our system of administration of Justice. When a legal practitioner starts using his brief to run down judges, he is out to run down our judicial process and sabotage the due process of administration of Justice. To say that the trial Judge gave a decision that was clearly expressed in a reluctant language as if it was personal loss to his Lordship is to say the least unfair and unfortunate. It must never be encouraged or tolerated.
The claim of the Respondent from the record of the Court below is that he handed over the manuscript of a new Novel he had finished working on to the Appellant for publication. The Appellant joined issues to the effect that what the Respondent submitted to them was a typescript and not a manuscript. Head or tail, the Appellant admitted that the script given to them was lost in their custody.
The issues in this case therefore are narrowed down to the quantum of liability of the Respondent who admittedly lost a script given to her for consideration towards publication. It is not in contention that what was lost by the Appellant is the property of the Respondent. The consideration of whether it was a manuscript or a typescript is geared towards giving the appropriate quantum of compensation to the party injured by the loss.
Before advancing further in this let me solve one biting issue raised by the Appellant.
The Appellant had all through argued that the trial Court reformulated the issues raised by the parties and that the Court veered off from the case of the parties. In every trial I must say clearly, the Judge is dominus litis. He is in charge of the proceeding and in his taking decision the law allows him wide powers and discretion. In the case of UNION BANK OF NIGERIA PLC VS. ASTRA BUILDERS (WA) LTD. (2010) LPELR 3383 (SC); Adekeye, JSC gave the nature of judicial discretion as follows:
”An exercise of discretion is an act or deed based on ones personal judgment in accordance with ones conscience, free and unfettered by any external influence or suggestions. A judicial discretion means the power exercised in an official capacity in a manner which appeals to be just and proper under a given situation. It must not flow from or be bound by a previous decision of another Court in which a discretion was exercised. It is in short an antithesis to the doctrine of stare decisis. There is no hard and fast rule as to the exercise of a judicial discretion by a Court for if that happens, a discretion becomes fettered. ODUSOTE VS. ODUSOTE (1971) 1 NLR 219 @ PAGE 222; ANYAH VS. AFRICAN NEWSPAPERS OF NIGERIA LTD. (1992) 6 NWLR (PT. 247) PAGE 317.”
The Judge in a trial has that power to do all in the interest of Justice and in sync with the dictates of his conscience. The law has now been settled that parties are free to raise their issues which they expect the Court to determine. The trial Judge is allowed to reformulate the issues without descending into the arena and without departing from the run of the case of the parties before the Court.
In FABIYI VS. ADENIYI & ORS. (2000) LPELR 1220 (SC) Kalgo, JSC held:
”where the issues postulated by the parties are inappropriate or inadequate having regard to the grounds of appeal filed, the Court should, without any hesitation, attempt to identify the appropriate issues in the circumstances of the case. Care must however be taken to ensure that the issue or issues formulated by the Court does not or do not raise new issues not contemplated by the grounds of appeal and not canvassed by the parties unless it is an issue on jurisdiction. See NPA VS. PANALPINA (1974) 1 NMLR 82 @ 75; OLORIODE VS. OYEBI (1984) 1 SCNLR 390; (1984) 5 SC 1; OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508.”
The Judge however must be duly guided by the established principles as held by Chukwuma-Eneh, JSC in:
DUWIN PHARMACEUTICAL & CHEMICAL CO. LTD. VS. BENEKS PHARMACEUTICAL & COSMETICS LTD. & ORS. (2008) 4 NWLR (PT. 1077) 376.
This power is not at large as the Court in such instances has to ensure that the issues so formulated do not raise new ones not covered by the grounds of appeal as canvassed by the parties except it is an issue on jurisdiction. See again FABIYI VS. ADENIYI (2000) 5 SC 31 @ 41; (2000) 6 NWLR (PT. 662) 532.”
In the instant case, the learned trial Judge reformulated the issue framed by the parties but from my assessment of the issues raised and the reformulated one, there is nothing suggestive of introducing any new or strange issue to the case of the parties. The Courts reformulation of the issues therefore does not occasion any miscarriage of Justice in this case.
I now want to return to the issue that is critical here. The issue of manuscript or typescript.
What then is a manuscript and what is a typescript?
A manuscript is in English Dictionary defined as follows:
The noun “manuscript” evolved from the Latin manu scriptus, meaning written by hand. Manu is hand and scriptus is to write. It refers to old documents actually written by hand before books were made, but it can also refer to a writers unpublished work whether it is handwritten or typed. This is different from a typescript.
A typescript is defined as a typewritten copy of a literary composition, document, or the like especially as prepared for a printer. Typewritten matter as distinguished from handwritten or printed matter.
In Blacks Law Dictionary, Eight Edition manuscript is defined as an unpublished writing; an authors typescript or written work product that is proposed for publication. This definition is legal and clearly shows the clear meaning of the words the parties are flirting with. From my own understanding of the words, manuscript and typescript are the same. Manuscript is the handwritten work that is unpublished while typescript is the typed work that is unpublished. The so called dichotomy of defining typescript as a copy of manuscript does not legally hold sway as seen from the earlier definition. So both manuscript and typescript are one and the same thing.
The definition of the two shows they are not different in meaning and in usage. A manuscript is the original document but in longhand while typescript is typed original document. If the manuscript is lost and there is no copy of it the work is forever gone. The same goes with a typescript that has no copy.
It is however, good to know that things are radically changing in this days of computers and electronics. Many writers who are computer literate do not write in long hand any more. They type out directly their work using the computer and where this happens, copies can be made from the computer hosting the work anytime it is required. So when any issue is raised as in this case, the proof of the issue or the assertion is on the person raising it. Under our law a party who makes an assertion must prove the truth of it in order to succeed in the action. See the cases of ADAKE & ANOR. VS. AKUN (2003) 14 NWLR (PT. 840) 418; OLUFOSOYE VS. BAKARE (1993) 1 NWLR (PT. 272) 747; VEE PEE INT. LTD. VS. COCOA IND. LTD. (2008) 13 NWLR (PT. 1105) 486.
In the instant case, the claim of the Respondent is that he gave the Appellant his manuscript.
The Appellant owned up that what she got was not a manuscript but a typescript.
The Court below held that the distinction between manuscript and typescript is that between 6 and a half a dozen. He is right. The position of the law is very clear.
The Respondent alleged that it was manuscript he gave the Appellant but the Appellant is saying what they received was typescript. This was evidenced from their acknowledgement letter of 29th April, 1994 which was admitted by the Court below as Exhibit E. Exhibit E is very fundamental here. It was written with the letter headed paper of the Appellant. The letter reads:
LONGMAN
NIGERIA PLC
Our Ref: AIA/LAO/LNO/
29th April, 1994
Mr Moses Oko
22 mission Road
Igoli
Ogoja
Cross River State
Dear Mr Oko
RE: YOUR TYPESCRIPT THEY DIED FOR YOU
This is to acknowledge receipt of your typescript recently sent to us by hand for publishing consideration.
Please be assured that the script is in safe hands and is being sent to our Ikeja based Publisher responsible for the list and from whom you would be hearing in due course.
Thank you and all best wishes.
Yours faithfully
for: LONGMAN NIGERIA PLC
Chief A. I. Atulomah
(District Manager, East)
The witness for the Appellant, Mr. Gbolagunte Ayodun in his statement on oath before the Court below confirmed and corroborated this letter at paragraph 4 thereof.
In paragraph 5 he testified that the Appellant has lost the typescript the Respondent gave to them. Paragraph 5 of his testimony reads:
5. As we stated in the letter Ref. No. GEN/L/2/89 dated 2nd June, 2006 written on our behalf by our Solicitor, Mr. B. A. Okegbenro, we have been unable to trace the copy (that is, the transcript) of the manuscript that was sent to us despite carrying out extensive search for it in all of our branches. It was for that reason that we requested by the same letter for another copy to be made available to us to revive our consideration of it for publication. This has been ignored till date by the Plaintiff who has instead sued us for the loss of his manuscript that was at no time given to us or kept in our possession.
The Appellant labored under the mistake that manuscript and typescript are not the same. This error does not help in the circumstances of this case. If it is manuscript or typescript should the Respondent not be entitled to claim for the loss of what is his property? The lower Court gave a consideration of this claim and effectively determined the case upon the issue joined and canvassed by the parties.
I am therefore of the firm view that Issue One be resolved in favour of the Respondent and it so resolved.
ISSUE TWO
This issue is whether the sum of N20m assessment and award in general damages factually and legally well-founded, and not perverse?
The Appellant in her brief contended that the award of general damages against the Appellant is perverse because it was counter to the legal evidence adduced and that irrelevant matters were taken into account in reaching the decision and that there was miscarriage of Justice. The learned Counsel relied on the cases of MISR VS. IBRAHIM (1974), 5 SC 47, 55; ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT. 2) 360; INCAR (NIG.) LTD. VS. ADEGBOYE (1985) 2 NWLR (PT. 8) 453; JACK VS. WHYTE (2001) 6 NWLR (PT. 709) 266.
The learned Counsel for the Appellant canvassed that the Court having considered and dismissed the claim of the Respondent under the claim for special damages it was wrong for the Court to turn around and make the same thing the basis of the assessment and award of N20m. He relied on the case of OGBECHIE VS. ONOCHIE (1988) 1 NWLR (PT. 70) 370, 372.
He urged the Court to interfere with the award as it was only awarded on a sympathetic basis that the Claimant needs to be compensated. That the damages awarded was perversely determined.
The Respondent in his brief canvassed that the findings of the Court in negligence was unassailable.
Let me re-echo here that issues of award of damages have been well addressed in our jurisprudence.
The basic object of an award of damages is to compensate the Plaintiff for the damages, loss or injury he has suffered. The guiding principle is restitution in integrum. The principle envisages that a party which has been damnified by the act which is called in question must be put in position in which he would have been if he had not suffered the wrong which he is now being compensated for. See NEPA VS. R.O. ALLI & ANOR. (1992) 10 SCNJ 34. ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR. VS. EKWENEM (2009) 6 7 (PT. 11) SC 5. See Galadima, JSC in AGU VS. GENERAL OIL LTD. (2015) LPELR 24613 (SC).
When it gets to issue of award of damages, it is an exercise of discretion of the lower Court and where discretion is validly exercised an appellate Court must not lightly interfere with it.
In the case of CBN & ORS. VS. OKOJIE (2015) LPELR 24740 (SC), the Supreme Court per Rhodes-Vivour, JSC held that:
Damages are awarded at the discretion of the trial Judge and so an Appeal Court is slow to interfere with how the trial Judge exercises his discretion unless (a) The exercise is tainted with illegality or substantial irregularity. (b) If it is in the interest of Justice to interfere. (c) The discretion is wrongly exercised. See UNIVERSITY OF LAGOS VS. AIGORO (1985) 1 NWLR (PT. 1) PAGE 143; SALU VS. EGEIBON (1994) 8 NWLR (PT. 348) PAGE 27.”
The discretion of every Court must be exercised judicially and judiciously having regard to the facts and circumstances of the case. In the instant case, the basis for the decision of the Court below which the Appellant vehemently attacked is at page 149 of the record it is as follows:
Now to the second head of claim which is N50,000,000.00 general damages for negligence. General damages are damages which the law presumes follow a wrong done to a person. I have already held that the Defendant was negligent in the transaction between it and the Claimant. This took the form of failure on the part of the Defendant to act on the manuscript submitted to it and failure to return same to the Claimant if and when it was not willing or ready to publish same. Above all the Defendant misplaced the manuscript and only got to inform the Claimant of that fact 12 years after, and only after the Claimant mounted pressure on the Defendant to return same. Meanwhile, the Claimant made trips from his place of domicile in Cross River State to Lagos to make enquires about the matter. There is also evidence from the Claimant which was neither challenged nor controverted, to the effect that the manuscript was a product of five (5) years of diligent research and that the negligence of the Defendant has resulted in the Claimants five (5) years effort being thrown to the wind. I believe the Claimant.
A look at the basis for this award from the judgment of the Court below will show that all of the reasons advanced by the learned trial Judge had their foundation in the claim and the evidence before the Court.
The Appellant in his brief itemized the basis for the award at paragraph 4.2.2.1 page 14 of the brief. Five reasons were itemized. (1) and (2) talk of the Appellant being negligent in form of failure by the Appellant to act on the manuscript and failure to return same to the Respondent. He contended that these two are perverse. For a decision of the Court to be dubbed perverse, it must be without foundation or in conflict with the law or evidence given in the case. In ATOLAGBE VS. SHORUN (1985) LPELR 592 (SC), Oputa, JSC held that perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence.
A decision may be perverse where the trial Judge took into account, matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious. It could be seen also where there is absence of proper evaluation of evidence and failure to draw appropriate inference from them. See OKHUAROBO & ORS. VS. AIGBE (2002) LPELR 2449 (SC).
There is honestly in my view in this case no incident of perversity as regards this issue of special and general award of damages. The learned Counsel for the Appellant contended that having dismissed head of claim for special damages the Court ought not to grant general damages.
There is in law differences between the Special Damages and General Damages. In YALAJU-AMAYE VS. ASSOCIATED REGISTERED ENGINEERING CONSTRUCTION LTD. & ORS. (1990) 4 NWLR (PT. 145) 422, Karibi-Whyte, JSC held:
It is well settled law that general damages are the kind of damage which the law presumes to now flow from the wrong complained of. They are such as the Court will award in the circumstances of a case, in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man. See LAR VS. STIRLING ASTALDI LTD. (1977) 11/12 SC 53; OMONUWA VS. WAHABI (1976) 4 SC 3. General damages may be awarded to assuage such a loss which flows naturally from the Defendants act. It need not be specifically pleaded. It arises from inference of law and need not be proved by evidence. It suffices if it generally averred. See INCAR VS. BENSON (1975) 3 SC 117. They are presumed by the law to be the direct and probable consequence of the act complained of. Unlike special damages, it is generally incapable of substantially exact calculation. See ODULAJA VS. HADDAD (1973) 11 SC 357.
This flows with the decision of Ariwoola, JSC in:
UNION BANK OF NIGERIA PLC VS. CHIMAEZE (2014) 9 NWLR (PT. 1411) 166 where he held that:
General damages are damages that the law presumes follow, from the type of wrong complained of and do not need to be specifically claimed. While special damages are damages that are alleged to have been sustained in the circumstances of a particular wrong. To be awardable, special damages must be specifically claimed and proved. See Blacks Law Dictionary, Ninth Edition, pages 445, 446 and 448; SHELL PETROLEUM DEVELOPMENT CO. (NIG.) LTD. VS. TIEBO & ORS. (1996) 4 NWLR (PT. 445) 657 @ 680; IYERE VS. BENDEL FEED & FLOUR MILLS LTD. (2008) 18 NWLR (PT. 1119) 300; (2008) 12 SCM (PT. 1) 66 @ 96; YALAJU AMAYE VS. AREC (1990) NWLR (PT. 145) 422.”
There is no rule of law that denies a Claimant general damages because he could not establish special damages.
The learned Counsel for the Appellant pointed out that the Respondent under cross examination testified:
”After getting my manuscript typed, I did not have anything to do with the manuscript again. It is the typed copy I sent to the Defendant not the hand written manuscript.”
The cross-examination did no havoc to the claim of the Respondent. Rather it tallies with the definition of manuscript and typescript as earlier made in this judgment. Finally, the learned Counsel for the Appellant raised the issue of contributory negligence pleaded in paragraph 9 of the statement of defence.
The subject of negligence and contributory negligence has been part of our laws for a long while now. In the case of EVANS VS. BAKARE (1973) 3 SC (REPRINT) 53; Coker, JSC drew out the principal element of the person suffering loss as contributed by his own negligence to what had eventually happened to him. Where the plea of contributory negligence succeeds, the Court would apportion blame between the parties. The principle is that the measure of damages is to be apportioned according to the proportion, in which the parties are responsible. See OLOLO VS. NIG. AGIP OIL LTD. (2001) 13 NWLR (PT. 729) 88.
I am of the view that the fact that a Defendant is setting up that defence, is a sign post to the fact that he has apparently seen the need to contend that the blame should not be his alone but that of the victim also. In the instant case, the Respondent before the Court below in a further cross-examination admitted that it was not manuscript in longhand he gave to the Appellant. He said it was typed and that accords with the description of the Appellant that what they had was a typescript. Since we have found that a manuscript and a typescript are the same except for the mode of their recording. Manuscript is in long hand while typescript is typed. A typescript as described by the Respondent who testified that he typed out the manuscript could have been copied by the Respondent and a copy kept before parting with the original. Since he failed to do that he has contributed to the loss he is complaining about by his own contributory negligence. This no doubt was sufficient to make the Court below share the blame between the Appellant and the Respondent. The conclusion of the Court below that the plea of contributory negligence if anything is a tacit admission that Appellant was primarily guilty of negligence fell short of the expectation of the law on this issue of contributory negligence.
The Court below ought to have given attention to that plea because it is his defence and make a finding on whether the plea was successful or not. This was not done so the sum of N20m general damages cannot be allowed to stand without occasioning a miscarriage of Justice.
Where a plea of contributory negligence is made the Court must resolve it. It was in the instant case pleaded in paragraph 9 of the statement of defence.
The Justice of the matter will be for this Court under Section 16 of the Court of Appeal Act to look into that plea and resolve it as it ought to be.
The Respondent who did a typescript and sent it to the Appellant ought for any eventuality have made a copy for himself. Since he decided to send the only copy he had to the Appellant he had contributed to his own misfortune or loss and he is partially to be blamed. It is in this wise that the damages of N20m awarded to him cannot be allowed, as I earlier said, to stand since he has a share of the blame. It was not part of the claim of the Appellant that the damages awarded were excessive. So for the contributory negligence of the Respondent the damages is slashed to N10m.
This issue therefore is resolved partly in favour of the Appellant.
From the foregoing therefore this appeal succeeds in part.
The general damages of N20m awarded in favour of the Respondent by the lower Court is set aside and replaced with 10m. A sum of N10m damages is therefore awarded the Respondent in this case.
Parties to bear their respective costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had a pre-view of the judgment just delivered by my learned brother, Adah, JCA. Having read before now the submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the record of appeal, I cannot but concur with the reasoning and conclusion reached in the said judgment to the effect that the instant appeal is meritorious. Thus, its my privilege to adopt the said reasoning as mine and accordingly allow the appeal on the terms of the judgment.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree
Appearances:
A. Olumide-Fusika, Esq. with him, C.O. Ngoka, Esq.For Appellant(s)
N. Onwugharam, Esq. with him, C. E. Eban, Esq.For Respondent(s)
