MATHEW OKANU v. OSITA OKANU & ANOR
(2018)LCN/11853(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/OW/19/2012
RATIO
DAMAGES: GENERAL DAMAGES
“Now, general damages need not be specifically claimed. Fabiyi JSC explained it thus in UBN PLC V AJABULE & ANOR (2011) LPELR-8239 SC. General damages are said to be damages that the law presumed and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or prove. They need not be specifically claimed. They are also termed direct damages necessary damages.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
MATHEW OKANU Appellant(s)
AND
1. OSITA OKANU
2. JONATHAN ONYEACHO Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment):
This is the judgment in respect of the appeal of the 2nd defendant/appellant against the decision of Imo State High Court sitting at Nkwerre Judicial Division in consolidated Suit No. HON/6/99 and HON/8/2000 delivered on 14/10/2010.
The original plaintiff in the consolidated Suit was Sunday Okanu. This was in respect of HON/6/99.
He instituted the action against his senior brother and claimed as follows:
(a) Declaration that ‘ALA UZO OHIA’ situate at Okwu village Nkwerre in the Nkwerre L.G.A. in a family land, jointly inherited by the 2nd defendant and plaintiff who are brothers of full blood, from their father.
(b) Declaration that the plaintiff and the 2nd defendant are jointly entitled to the statutory right in respect of the piece or parcel of land known as ‘ALA UZO OHIA’ situate at Okwu village in Nkwerre L.G.A. of Imo State within jurisdiction.
(c) Declaration for the purported sale of the said land ‘ALA UZO OHIA’ by the 2nd defendant to the 1st defendant without the consent of the plaintiff is illegal null and void and of no effect whatsoever.
(d) N500,000.00 (Five hundred thousand Naira) General damages for the continuing trespass of the 1st defendant.
(e) Perpetual injunction restraining the 1st defendant by himself, his heir, agents, servants and/or workers from further trespass to the said land, entering thereon or doing anything whatsoever on same including continue to erect any permanent structures on the said land.
The plaintiff in Suit No. HON/8/2000 was the 1st defendant in the original Suit i.e. HON/6/99. He filed a counter-action against the plaintiff and 2nd defendant who were brothers and claimed thus:
1. That the land situate and lying at Okwu Village Nkwerre and known as ‘ALA UZO OHIA’ sold to the plaintif by the 1st defendant which said land has been fully developed by the plaintiff is the bona fide property of the plaintiff and that the plaintiff is entitled to the certificate of occupancy to the said property.
2. In the alternative the sum of N5,000,000.00 against the defendant being special and general damages for the fraudulent breach of sale of the said land to the plaintiff.
The two suits were consolidated by order of Court.
The learned trial judge after hearing the parties gave judgment in the following terms.
Whether the 1st defendant is entitled to his claim right of occupancy or in the alternative N5,000,000.00 damages for the fraudulent breach of the sale of the land. As held earlier in this judgment, the deceased claimant is entitled to void the sale of the land by the 2nd defendant without his consent. This therefore, means that the 1st defendant cannot succeed in the 1st arm of his claim for declaration of right of occupancy. As regards the alternative claim for damages for the breach of the sale, I have earlier held that the 1st defendant is entitled to be compensated by the 2nd defendant for his losses on the land. The 1st defendant claim special damages of N3,000,000.00.
In his deposition, he deposed to the contractors charges for the developments on the land and annexed same to the deposition but failed to tender the bill or the charges of the contractor. Since the 1st defendant did not prove the special damages strictly as required by law, no special damages can be awarded to him. See BADMUS VS ABEGUNDE 1999 72 LRCN 2912 at 2925 cited by the claimants counsel. However the 1st defendant claims N5,000,000 damages. When there is a breach of rights, the law implies some damages. When there is a breach of rights, the law implies some damages recoverable arising from such breaches. See ZOBAM COY NIG LTD VS TOFA GENERAL ENTERPRISES LTD 2006 ALL FWLR (Part 317 515 at 527.
In the circumstances judgment is hereby entered as follows:
The claimant as now substituted is entitled to judgment in reliefs (a), (b) and (c). Relief (d) of the claimant is dismissed as the 1st was on the land by virtue of the purported sale by the 2nd defendant which sale is now set aside. As regards the claim for injunction, it is also granted but can only take effect when the 2nd defendant has paid to the 1st defendant damages to be here in after awarded to him for the fraudulent sale.
As regards the counter claim of the 1st defendant in suit No. HON.8.2000, the claim 1 for declaration of right of occupancy is hereby dismissed, In respect of the alternative claim for damages, I award N4,000,000.00 (four million Naira) damages to the 1st defendant for losses suffered by him for the fraudulent purported sale of the land to him by the 2nd defendant.
I make no order as to costs.
Miffed by the above decision the appellant on 14/1/2011 filed Notice of Appeal challenging it on two grounds.
He later with leave of Court on 12/3/2015 filed amended Notice of Appeal which was deemed filed on 22/1/2018. The Amended Notice of Appeal contains four grounds of appeal which read thus:
GROUND ONE- ERROR IN LAW
The learned trial judge erred in law when he held thus:
In respect of the alternative claim for damages, I award N4,000,000 (four million Naira) damages to the 1st defendant for losses suffered by him for the fraudulent purported sale of the land to him by the 2nd defendant.
PARTICULARS OF ERROR
1. That the general damages awarded by learned trial judge against the appellant was manifestly too high and erroneously assessed.
2. The trial Court simply awarded the said damages of N4,000,000 (four Million Naira) without giving reason as to how it arrived thereat.
3. The trial Court in awarding the said damages took into account irrelevant matters.
4. That the said damages awarded by the trial Court were unjustifiable, unfair and unreasonable. There’s no evidence on record on which the trial Court based its award.
5. The 1st Defendant/Respondent had a duty not to increase the damages recoverable by his own voluntary and unnecessary act.
6. The 1st Defendant/Respondent had a duty to do all in his power to minimize his loss.
7. The 1st Defendant/Respondent breached or did not discharge this duty of acting reasonably.
8. The general damages of N4,000,000 was awarded by the learned trial Court against the appellant out of sympathy/sentiment born of extraneous considerations and not on the basis of legal evidence of probative value adduced before the Court.
9. Injustice would result if the Appeal Court does not interfere.
GROUND TWO:
The judgment is against the weight of evidence.
GROUND THREE:
The lower Court erred in law holding as follows:
Having made the 1st defendant to part with his money and develop the property, the 2nd defendant is bound to compensate the 1st defendant for his losses on the land to the detriment of the 2nd defendant/appellant.
PARTICULARS OF ERROR
1. The 2nd defendant/appellant and the 1st defendant agreed for the sum of N150,000.00 (one hundred and fifty thousand naira) for the sale of the land, which the 1st defendant/respondent paid to the 2nd defendant/appellant.
2. During negotiations for the sale transaction between the 2nd defendant/appellant and the 1st defendant/respondent, the then claimant, Sunday Okanu sent emissaries to the 1st defendant/respondent not to buy the land in dispute but he ignored the warning.
3. There is also evidence that when the 1st defendant/respondent made the initial deposit for the purchase of the land, he was warned by Sunday Okanu not to go further in the land transaction but he refused.
4. The 2nd defendant/appellant, his wife and son made several attempts to pay him N2,000,000.00 agreed upon as the cost of the land and survey work done on it but the 1st defendant/respondent made himself unavailable.
5. The 1st defendant/respondent insisted on developing the land in spite of all entreaties, made to him.
6. The lower Court made an order for interlocutory injunction restraining the 1st defendant/respondent from further developing the land but he ignored the order.
7. The lower Court made the order complained of due to its failure to consider these facts and evidence borne out of the Court’s records.
GROUND FOUR
The lower court erred in law by stating thus:
Relief (d) of the claimant is dismissed as the 1st defendant was on the land by virtue of the purported sale by the 2nd defendant which sale is now set aside. As regards the claim for injunction, it is also granted but can only take effect when the 2nd defendant has paid to the 1st defendant damages to be herein after awarded to him for the fraudulent sale.
PARTICULARS OF ERROR:
1. Relief (d) of the claimant at the lower Court ought to be granted following the grant of reliefs a, b and c.
2. The continued stay and activities of the 1st defendant/respondent on the land violated an earlier order made against him by the lower Court.
3. Relief (e) of the claimant at the lower Court ought not be stayed until the payment of the award of four million naira (N4,000,000.00) to the 1st defendant/respondent by the 2nd defendant/appellant as same was not proved.
4. Reliefs (e) is a consequential claim which would give effect to reliefs a, b and c already granted by the lower Court.
5. The 2nd defendant/appellant is greatly prejudiced by this order as it is unreasonable, excessive and unnecessary.
After transmission of record of appeal to this court, parties filed and exchanged briefs of argument.
APPELLANT’S BRIEF OF ARGUMENT
The Appellant Brief of Argument was filed on 29/01/2004. It was settled by his counsel P. U. NNODUM ESQ.
Learned Counsel to the appellant formulated a lone issue for determination:
(1) Whether the lower Court was justified in the award of N4,000,000.00 (four million naira) damages to the 2nd respondent.
Learned Counsel to the appellant submitted that since the trial Court found that the claim of (Three Million Naira) N3,000,000.00) special damage was not proved, it was wrong for it to have awarded damages to the 2nd respondent to the tune of (Four Million Naira) whereas the total claim for general damages was N2,000,000.00 (Two Million Naira) And that the trial Court who in grave error to have awarded a party a sum of money beyond what he claimed because the Court was not a father Christmas.
He submitted that the loses referred to by the trial Court as general damages on the land were the same losses articulated and set out by the 2nd respondent (as claimant) in paragraphs 21(6) of the amended statement of claim in suit No. HON/8/8000 as particulars of special damages; for instance cost of purchase of land, charges, perfection of title deeds etc totaling (three million naira) N3,000,000.00 (See page 3 of the record).
He further submitted that it was the law that award of general damages is improper where the quantum of loss was ascertainable and it was also wrong to take into consideration in awarding general damages matters which should have been considered in awarding special damages. He relied on the cases of UBN LTD V ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PART 421) 558, 586 PARA H P. 600 PARA D.
Learned Counsel to the Appellant contended that there were guiding principles which would matter as appellate Court interfere with an award by a trial Court, where it was clearly shown.
(a) That the trial Court acted upon wrong principles of law
(b) That the amount awarded by the trial Court was ridiculously too high or too low; or
(c) That the amount was entirely erroneous and unreasonable estimate having regard to the circumstances of the case. He relied on the case of UBN PLC V AJABULE (2011) 18 NWLR (PART 1278) 162, (181, PARAS D-F)
Learned Counsel to the appellant contended that from the state of the 2nd respondent pleading at the trial Court, he became aware from the onset that the land he purchased was being questioned by the family members of the appellant and he ought to have warned himself of the risk of developing same and the doctrine of caveat emptor postulated that a purchaser should be aware of what he was purchasing since it was for a party to a contract to take all necessary precautions in order to avoid entering into a bad bargain. He contended further that the 2nd respondent ought to have taken steps to mitigate loss to himself. He relied on the cases of AGEH V. TORTYA (2003) 6 NWLR (PART 816) 385 (PP 395-396, PARAS P A-D OKONGWU V N.N.P.C. (1989) 4 NWLR (PART 115) 296, 305, PARAS C-D.
Learned counsel to the appellant submitted that general damages was not awarded as a matter of cause but on sound and solid legal principles and not on speculations, sentiment or as father Christmas and could not also be awarded as a largesse or out of sympathy borne of extraneous considerations but rather on legal evidence of probation value adduced for the establishment of an actionable wrong or injury. He relied on the case of ADEKUNLE V ROCKVIEW HOTEL LTD (2004) 1 NWLR (PART 853) 161 (175-178, PARAS H-B.
Learned Counsel to the appellant finally submitted that there was no basis for the findings of the trial Court reproduced above because the appellant and the 2nd respondent agreed for the sum of One hundred and fifty thousand naira (N150,000.00) for the sale of the land in dispute which the appellant paid him and evidence also revealed that for the sale transaction, the deceased claimant sent emissaries to the 2nd respondent not to buy the land in dispute but he ignored the warning.
Learned Counsel to the appellant urged this Court to resolve this issue in favour of the appellant.
2ND RESPONDENT BRIEF OF ARGUMENT
The 2nd Respondent’s Brief of Argument was filed on 1/3/2018 it was settled by his counsel COLLINS IWUORIE ESQ.
Learned Counsel to the 2nd Respondent adopted the lone issue formulated by the appellant?s counsel:
(1) Whether the lower Court was justified in the award of N4,000,000.00 (Four Million Naira) damages to the 2nd respondent.
Learned counsel to the 2nd respondent contended that there were two types of damages special and general damages and that the law was trite that every item contained in the claim of special damage must be specifically proved and tied to the claimant?s testimony and in the cause of the trial, the 2nd respondent testified how he spent the huge amount of money in his particulars for special damages to the development of the land in dispute. He relied on the case of ADIM V NBC LTD (2010) VOL. 187 L.R.C.N. at PAGE 90 RATIO 1, ADECENTRO LTD V COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY (2005) 5 KLR (PT. 196).
He submitted that the 2nd respondent, apart from specifically pleading the special damages and proving same in evidence during the trial he particularized the items of special damage with precise calculation within his pleading and evidence. He relied on the case of XTOUDOS SERVICES NIG LTD V TAISEI WEST AFRICA LTD (2006) KLR (PT 221).
Learned counsel to the 2nd respondent contended that contrary to the submission of counsel to the appellant that the trial Court took into consideration in awarding general damages matters which should have been considered in awarding special damages; that the appellant counsel misfired in using special and general damages interchangeably and that the law was trite that where a plaintiff failed to prove special damages he was entitled to general damages. He relied on the case of S.P.D.C. V TIEBO II (2005) 4 NSCR.
Learned Counsel to the 2nd respondent contended that a Court of law had the discretion to award general damages even though not claimed in as much as the party pleaded and proved special damages and this was because general damages was predicated on the proof of special damages. He relied on the case of S.P.D.C. V TIEBO II (Supra).
He contended that contrary to the argument of the appellant’s counsel that the said award of N4,000,000.00 was neither claimed nor proved by the 2nd respondent but the 2nd respondent claimed the sum of N5,000,000.00 in the alternative which was split into N3,000,000.00 special damages and N2,000,000.00 general damages (See page 9 of the record). He relied on the case of N.N.P.C. V. CLIFCO NIG. LTD. (2011) ALL FWLR (PT 583) PG 1875.
Learned counsel to the 2nd respondent submitted that it was a settled principle of law that a Court of law had no jurisdiction to award a relief not claimed but the 2nd respondent not only claimed in the alternative the sum of N5,000,000.00 but also pleaded particulars of special damages. Thus, the trial Court was right in awarding the sum of N4,000,000.00 as damages to the 2nd respondent as the latter specifically pleaded damages of N3,000,000.00 and that the law was trite that a Court had no jurisdiction to entertain a suit which was not substantiated on a claim of special damages but having claimed special damages and pleaded same, the award of N4,000,000.00 to the 2nd respondent by the trial Court was not in vacuum. He relied on the cases of FATUNBI V OLANLOYE (2004) 12 NWLR (PT. 887) 229 AT 256; AGBU V CIVIL SERVICE COMMISSION NASARAWA STATE (2013) ALL FWLR (PT 675) AT PAGE 231.
Learned Counsel to the 2nd respondent finally submitted that trial Court denied its jurisdiction in awarding the said consent of money from the claims of the 2nd respondent before the lower Court and that jurisdiction of a Court was determined by the plaintiff?s claim. He relied on the case of ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD V GARBA (2002) 14 NWLR (PT 788) 538 AT 564.
Learned Counsel to the 2nd respondent urged this Court to resolve this issue in favour of the 2nd respondent and dismiss this appeal as lacking in merit.
APPELLANT’S REPLY BRIEF OF ARGUMENT
The Appellant’s Reply Brief of Argument was filed on 12/3/2018. It was settled by his counsel N. R. CHIBUISI ESQ.
Learned Counsel to the appellant contended that the 2nd respondent brief of argument was not wholly based on the record of appeal in this case as it contained matter which was not verifiable from the record of appeal. Thus, the 2nd respondent stance was at variance with the findings of the lower Court. (See paragraphs 4.05, 4.07 and 4.08 of the 2nd respondent brief of argument) (See also page 246 of the record of appeal).
He further contended that the legal effect of failure of the 2nd respondent to file a cross appeal or a respondent’s notice of contention as provided for by Order 9 of the Court of Appeal Rules 2007 was that the adverse findings made by the lower Court against the 2nd respondent were extant and binding on him and he could not make an argument against those findings. To this end paragraph 9.06, 9.07 and 4.08 of the 2nd respondent brief of argument should be discountenanced.
Learned counsel to the appellant submitted that the law was trite that where a party claimed special damages, the burden was on him to prove the special damages to the last kobo and it was not a matter to be left to conjecture and he had to do this by leading credible evidence in proof of them. He relied on the case of ARISONS TRADING V MIL. GOV. OSUN STATE (2009) ALL FWLR (PART 496) 1819, 1844E, 1854F. That, the 2nd respondent struggled to justify the award by the lower Court in paragraphs 4. 14, 4. 15 and 4. 17 of his brief of argument.
Learned counsel to the appellant submitted that the computation above was erroneous as it could not be justified or did not arise from the judgment of the trial Court which rightly refused the grant of the special damages but went ahead to award general damages of N4,000,000.00 when what the 2nd Respondent requested for was N2,000,000.00 a general damages.
Learned Counsel to the appellant contended that despite the finding of the trial Court that the 2nd respondent failed to prove the special damages, what was left to be considered was the general damages of N2,000,000.00 and that the lower Court seemed to have misconceived the limit of what was claimed before it.
Learned Counsel to the appellant urged this Court to allow the appeal and set aside the decision/judgment of the trial Court.
RESOLUTION OF ISSUE.
I have carefully considered the argument canvassed by learned counsel on both sides. In spite of having been served with appropriate processes the 1st Respondent failed to file a brief of argument. I shall therefore determine this appeal based on the briefs filed by appellant and the 2nd Respondent respectively.
Learned counsel in this appeal are ad idem on the sole issue for determination to wit. WHETHER THE LOWER COURT WAS JUSTIFIED IN THE AWARD OF (Four Million Naira) DAMAGES TO THE 2ND RESPONDENT.
It needs to be stated that the four million naira damages granted in favour of the 1st defendant was general damages. In granting the general damages the learned trial judge explained it this way:
”In respect of the alternative claim for damages, I award N4000,000.00(four million naira) damages to the 1st defendant for losses suffered by him for the fraudulent purported sale of the land to him by the 2nd defendant.”
This is the award being challenged by the appellant. This award drew its foundation from the claim of the 1st defendant as plaintiff in HON/8/2000 where he claimed thus as per his statement of claim.
In the alternative the sum of five million naira against the defendants are as follows:
(1) Three million naira (N3,000,000.00) special damages,
PARTICULARS OF SPECIAL DAMAGES:-
(1) For purchase of land = N150,000.00
(2) Charges, perfection of Title Deeds and Registration = N150,000.00
(3) Works and cost of labour from Foundation to Floor slab (German Floor) = N500,000.00
(4) Works and cost of labour from Floor ? slab
to linter level = N850,000.00
(5) Works and cost of labour from linter level to roofing = N650,000.00
(6) Works and cost of labour for concrete wall fence and Iron-gate. =N700,000.00
(7) Two million naira (N2,000,000.00) general damages for breach of contract and trespass on the land.
Now, general damages need not be specifically claimed. Fabiyi JSC explained it thus in UBN PLC V AJABULE & ANOR (2011) LPELR-8239 SC.
General damages are said to be damages that the law presumed and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or prove. They need not be specifically claimed. They are also termed direct damages necessary damages.
RHODES – VIVOUR JSC in CAMEROON AIRLINES V OTUTUIZU (2011) 4 NWLR 9 Pt 1238) 512 put it this way.
General damages are thus losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved. See UBN LTD V ODUSOTE BOOKSTORE LTD (1995) 9 NWLR PT. 421 p. 558. General damages is awarded by the trial Court to assuage a loss caused by an act of the adversary.
Learned counsel for the appellant’s contention was that the trial Court awarded to the plaintiff a sum of money beyond what he claimed. This in my respectful view is a valid ground for challenging an award of damages by a trial Court.
Where a trial Court acted under misapprehension of the facts of the case, an appellate Court can interfere with the award of damages so made by the trial Court. See AHMED & ORS V CBN (2013) 2 NWLR PART 1339 p. 524; ONWU & ORS V NKA & ORS (1996) 7 NWLR PART 458 p.1.
I have carefully perused the record of appeal and the summary of the facts as framed by the learned trial Judge in his judgment. It appears to me, his lordship mistakenly relied on the endorsement on writ of summons of plaintiff in HOS/8/2000 instead of paragraph 21(c) of his Amended Statement of claim. It is trite law that a statement of claim supercedes a writ of summons. See ABOYEJI V MOMOH & ORS (1994) 4 NWLR PT.341 p.646 EYA & ORS V OLOPADE & ANOR (2011) 11 NWLR (PART 1259) 505.
In GARAN V OLOMU (2013) NWLR PT 1365 p.227, Ngwuta JSC. aptly explained it this way.
”The writ subsists until the statement of claim is filed. The statement of claim is confined to the cause of action endorsed on the writ. Once the statement of claim is filed, it supercedes the writ; See UDECHUKWU V OKWUKA (1956) I.E.C.S 70 (1956) S.C.N.L.R 189. When appellant amended his statement of claim the amended process spoke from the date of the original statement of claim which superceded the writ. Once the order to amend the statement of claim was granted, the original statement of claim was discarded with effect from the date it was filed. See ROTIMI V MACGREGOR (1974) 11 S.C. 133 AT 152; SNEADE V WOTHERTON BARYTES AND LEAD MINUG CO. LTD (1904) 1 KB 295 at 297 ADEWUMI V AG. EKITI STATE (2002) 92 LRCN 43 at 64.”
The learned trial Judge was with due respect under a misapprehension that the plaintiff claimed five million naira as special and general damages as per his writ of Summons but failed to take cognizance of the subsequent amendment in the amended statement of claim which limited the claim for the general damages to two million naira (N2,000,000.00). This was why his lordship awards four million naira damages to the 1st defendant for losses suffered by him in excess of the two million naira general damages claimed. For this reason I shall interfere with the award of damages by reducing it to the two million naira damages claimed. A relief not claimed cannot be granted by the Court. See ALIMS NIGERIA LTD V UBA (2013) S6 NWLR PART 1351 p. 613.
The award of general damages by the lower Court apart from the above cannot be faulted. The sale of the land by the 2nd defendant was fraudulent and the 1st defendant incurred undisputable losses as a result.
This appeal has merit. It is hereby allowed.
The judgment of the lower Court delivered on 14/10/2010 in Suit No. HON/6/99 and HON/8/2000 (CONSOLIDATED) Between OSITA OKANU AND JONATHAN ONYEACHOR & ANOR is hereby varied to read as follows:-
”In respect of the alternative claim for damages, I award N2,000,000 (Two million Naira) damages to the 1st defendant for losses suffered by him for the fraudulent purported sale of the land to him by the 2nd defendant. I make no order as to costs.”
This shall be the judgment of the Court.
Parties are to bear their respective costs in this appeal.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
Appearances:
N. R. Chibuisi, Esq.For Appellant(s)
Peter Anyiam-Osigwe, Esq. – for 1st Respondent
K.O Anyaegbulam, Esq. – for 2nd Respondent.For Respondent(s)
