MR. KOFFY NDUBISI UDEAGHA v. MR. BEN NWOGWUGWU
(2013)LCN/6481(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of November, 2013
CA/K/44/2005
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE ABIRU Justice of The Court of Appeal of Nigeria
Between
MR. KOFFY NDUBISI UDEAGHA – Appellant(s)
AND
MR. BEN NWOGWUGWU – Respondent(s)
RATIO
WHETHER OR NOT A VALID AND COMPETENT NOTICE OF APPEAL FORMS THE NECESSARY FOUNDATION OF A CIVIL APPEAL
This is because a valid and competent notice of appeal forms the necessary foundation of a civil appeal, to invoke the jurisdiction of an appellate Court to entertain the Appeal. See the case of OKONKWO VS. INEC (2004) 1 NWLR (Pt. 854) OR (2003) LEPLR/ EP-CA/E/EPT/85/2003, where the Supreme Court relying on the case of ANADI VS. OKOLI (1977) 7 SC 57, per IDIGBE JSC, at page 58, stated that. “The Notice of appeal is very important document because it is the foundation of the appeal and if it is defective the Court of Appeal has inherent power to strike it out on the ground that it is incompetent …” The same view was expresses by the Supreme Court in the case of AKINLOYE VS. ADELAKUN (2000) 5 NWLR (Pt. 657) 530 at 535, where it held that: “a valid notice of appeal is a sine qua non to the competence of an appeal” See also BILAM DAMBAM VS. ARDO LELE (2000) 11 NWLR (Pt. 678) 413, where the Court of Appeal, per CHUKWUEMEKA-ENEH JCA (as he then was) said:”The crucial position of this document (Notice of Appeal) in our appeal system is akin to the position the writ of summons occupies in ordinary civil action. It (Notice of Appeal) initiates appeal and where it suffers from any serious defect the appeal itself becomes defective and subject to be struck out as incompetent.” See also MOHAMMED VS. MARTINS ELECTRONICS COMPANY LTD (2009) LPELR – CA/K/189/M/06; OREDOLA JCA, graphically, explained: “A notice of Appeal is the fulcrum, foundation, substratum and alpha of any appeal. It is so foundational that where it is lacking or structurally deficient, the entire appeal becomes grounded and remains on the run way like an aircraft without wings and speed to take to air for flight to its destination. Where it manages to gather little speed or momentum, the flight must be aborted or the entire journey will end in fiasco… AGU VS. ODOFIN (1992) 3 SCNJ 161/173; IBETO VS. AMINU (2007) 5 NWLR (Pt.1028) 446; DANMUSA VS. INUWA (2007) 17 NWLR (Pt.1063) 391 and CLEV JOSH LTD. V. TOKIMI (2008) 13 NWLR (Pt.1104) 422” PER MBABA, J.C.A.
WHETHER OR NOT AN APPELLATE COURT CAN ONLY ENTERTAIN VALID GROUNDS OF APPEAL AND ISSUES DISTILLED FROM IT
An appellate Court can only entertain and consider valid ground(s) of appeal and issue(s) distilled therefrom, which relate to and arise from the judgment appealed against, UNILORIN VS. OLAWEPO (2012) 52 WRN 42; OJEMEN VS. MOMODU (1994) 1 NWLR (Pt. 323) 685; See also KOTOYE VS. SARAKI (1992) 11/12 SCNJ 26, where the Supreme Court said: “Where a ground of appeal cannot be fixed and circumscribed within the particular issue in controversy in the judgment challenged such ground of appeal cannot justifiably be regarded as related to the decision” PER MBABA, J.C.A.
WHETHER OR NOT SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED
The law relating to proof of special damage is well defined, that the same must be specially pleaded and strictly proved. SPRING BANK PLC VS. ADEKUNLE (2011) 1 NWLR (Pt. 1229) 581; NNPC VS. WIFCO NIG. LTD (2011) 10 NWLR (Pt. 1255) 209; CAMEROON AIRLINES VS. OTUTUIZU (2011) 4 NWLR (Pt. 1238) 512. PER MBABA, J.C.A.
WHETHER OR NOT A PERSON WHO LODGES A COMPLAINT WITH THE POLICE, MALAFIDE, LEADING TO THE ARREST AND/OR DETENTION OF A RESPONDENT IS ANSWERABLE IN LAW FOR THE HARASSMENT AND INJURIES CAUSED THE RESPONDENT
The law is well developed on the issue that one who lodges complaint with the Police, malafide, leading to the arrest and/or detention of a respondent is answerable in law for the harassment and injuries caused the respondent. See the case of EJIOFOR VS. OKEKE (2000) 7 NWLR (Pt. 665) 363, ratio 4, where it was held: “Where there is an evidence of arrest and detention of an applicant which were done or instigated by the respondent… it is for the respondent to show that the arrest and detention were lawful. In other words, the onus is on the person who admits detention of another to prove that the detention was lawful.” See also AGBAKOBA VS. SSS (1994) 6 NWLR (Pt. 351) 475; In the case of GUSAU VS. UMEZURIKE (2012) 28 WRN 111 at 140 – 141; we held:“Detention, no matter how short, can lie as a breach of fundamental right. But that can only be so if the detention is adjudged wrongful or unlawful, in the 1st place; that is, if there is no legal foundation to base the arrest and/or detention of the applicant.” See also OKONKWO VS. OGBOGU (1996) 5 NWLR (Pt. 499) 420. PER MBABA, J.C.A.
DEFINITION OF FALSE IMPRISONMENT
In the case of UAC OF NIGERIA PLC VS. SOBODU (2007) 6 NWLR (Pt. 1030); (2006) LPELR – CA/501/99, this Court, on what constitutes false imprisonment (the same with unlawful detention), said: “False imprisonment involves the unlawful, illegal and unjustifiable restraint of a person’s right and liberty to move about freely. In cases that usually end up in the Courts, the wrong of false imprisonment consists of acts of arrest and detention or imprisonment of a plaintiff, without lawful justification by the Police or other law enforcement agencies, on complaint or information received in the course of their duties …The position of the law is that it is not enough for a plaintiff in a claim for false imprisonment to plead and provide evidence that the defendant merely made a report against him … but must also plead and establish that there was no reasonable and probable cause for making the report….plaintiff has the legal burden of showing that the report made by the defendant is false, frivolous, without legal foundation and therefore actuated by malice.” BAYOL VS AHEMBA (1999) 7 SC (Pt. 1) 92 (1999) 10 NWLR (Pt. 623) 381; IYALEKHUE VS. OMOREGBE (1991) 3 NWLR (Pt. 177) 941; BALOGUN VS. AMUBIKAHUN (1989) 3 NWLR (Pt. 107) 18 and NWANGWU VS. DURU (2002) 2 NWLR (Pt. 751)265. PER MBABA, J.C.A.
ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against “the judgment of the High court of justice No. 11 Miller Road Kano, dated 17th day of November, 2003,” in suit No. K/238/96. But on the record of Appeal, the suit No. is K/557/96, delivered on the said 17/11/03 by Hon. Justice Mohd H. Abdullahi, of Kano State High Court, whereof the learned trial judge held:
“I am satisfied that the plaintiff has proved the allegation of malicious arrest and detention by the defendant (sic) total 9 days with 4 at Sharada and 5 at CID I therefore assess the damages these (sic) to in favour of the defendant (sic) to be N20,000.00 per day total N180,000.00.”
The plaintiff’s claim at the Lower Court, as per his Amended statement of claim, was for:
“(a) Special Damages of N1,903,196.60 being the value of the skin that was ruined due to the act.
(b) General Damages of N500,000.00 for the arrest and fake imprisonment and
(c) Loss of returns on investment at 35% net profit every two months plus cost of this action.” (Page 98 of the Records)
A brief facts of the case at the Lower Court showed that the plaintiff (now Respondent) was sometime an employee of the Defendant (Appellant herein), until May 1996, when he resigned from the Defendant’s Company and set up his own private business in Kano as skin tanner. On 12/9/96, he was at a Full Gospel Business-men Fellowship in Kano, when he was arrested, in the evening, by the Police in the presence of other members of the Fellowship, pursuant to a complaint/report made to the Police by the Defendant, that he stole processed skin from him (Defendant) valued at N750,000.00; that the said stolen goods were recovered from plaintiff’s son and two other persons at Tan Arewa Tannery, where the plaintiff had purportedly gone to dispose of the goods.
The plaintiff was detained by the Police for a total period of 9 days before he was released on bail, which release angered the Defendant and he threatened further injury against the plaintiff. However, Police investigation revealed that the allegation was false, made without any cause and actuated by malice and bad faith.
The plaintiff called 3 witnesses to prove his case. The Defendant called 4 witnesses. The trial Court held that the plaintiff had proved the allegation of malicious arrest and detention.
Appellant’s notice of Appeal was filed on 26/11/2003, as per pages 151- 156 of the Records of Appeal, wherein Appellant raised 6 grounds of Appeal.
Appellant filed his brief of argument with the leave of Court and the same was deemed duly filed on 16/4/2007. Appellant’s brief did not, however, carry the appeal number, as only “suit No . K/557/96” appeared on the cover pages and page 1 of the Brief. The said “suit No. K/557/96” tallies with the suit No. K/557/96, said to be the suit number of the case at the Lower Court, reflected on the Records of Appeal, (on all the relevant pages thereof) except page 151, which carries the Notice of Appeal filed by the Appellant, wherein Appellant wrote the suit number as “HIGH COURT No. K/238/96″.
In the body of the Notice of Appeal Appellant did not state the suit number of the appeal, nor the judge who decided the case. He did not also state the State High Court that heard the case. The of the Notice of Appeal were as follows:
IN THE COURT OF APPEAL
HOLDEN AT KADUNA
HIGH COURT NO. K/238/96
BETWEEN:
MR. KOFFY NDUBISI UDEAGHA APPELLANT
AND
MR. BEN NWOGWUGWU
(Doing Business under the name RESPONDENT
And style of Benue Holdings)
NOTICE OF APPEAL
TAKE NOTICE that the Appellant herein being dissatisfied with the judgment of the High Court of Justice No. 11, Miller Road, Kano dated the 7th day of November, 2003, hereby appeal upon the grounds stated on paragraph 3 of this Notice and will at the hearing of this appeal see the reliefs stated in paragraph 4 and that the persons directly affected by this appeal are those set out in paragraph 5,
2. PART OF DECISION COMPLAINED OF:
a) The whole of the judgment.
3. GROUND OF APPEAL:
GROUND 1:
i) The Honourable Court erred in law when after holding that the Defendant had failed to prove special damages of the value of the skins alleged to have been ruined still went ahead to award nominal damages to the Respondent…”
I think those were very costly mistakes by the learned Counsel for the appellant, which smack of extreme carelessness and dereliction. Ordinarily, the respondent was expected to be vigilant to spot those errors and to make appropriate applications.
What can this Court do in the circumstances, that the Respondent failed to highlight on the defects? Can the Court close its eyes to them?
On 23/10/13, when the appeal was heard, the understanding was that the appeal number was CA/K/44/2005 and that it was an appeal against the judgment of the Kano State High Court in suit No. K/557/96, as shown on the Records of Appeal, transmitted to this Court for that purpose. But by the Notice of Appeal, which carries suit “HIGH COURT No. K/238/96”, as the suit appealed against by the Appellant, that presents a serious legal problem that cannot be ignored as a mere administrative or procedural error or mistake by Counsel. This is because a valid and competent notice of appeal forms the necessary foundation of a civil appeal, to invoke the jurisdiction of an appellate Court to entertain the Appeal. See the case of OKONKWO VS. INEC (2004) 1 NWLR (Pt. 854) OR (2003) LEPLR/ EP-CA/E/EPT/85/2003, where the Supreme Court relying on the case of ANADI VS. OKOLI (1977) 7 SC 57, per IDIGBE JSC, at page 58, stated that.
“The Notice of appeal is very important document because it is the foundation of the appeal and if it is defective the Court of Appeal has inherent power to strike it out on the ground that it is incompetent …”
The same view was expresses by the Supreme Court in the case of AKINLOYE VS. ADELAKUN (2000) 5 NWLR (Pt. 657) 530 at 535, where it held that:
“a valid notice of appeal is a sine qua non to the competence of an appeal”
See also BILAM DAMBAM VS. ARDO LELE (2000) 11 NWLR (Pt. 678) 413, where the Court of Appeal, per CHUKWUEMEKA-ENEH JCA (as he then was) said:
“The crucial position of this document (Notice of Appeal) in our appeal system is akin to the position the writ of summons occupies in ordinary civil action. It (Notice of Appeal) initiates appeal and where it suffers from any serious defect the appeal itself becomes defective and subject to be struck out as incompetent.”
See also MOHAMMED VS. MARTINS ELECTRONICS COMPANY LTD (2009) LPELR – CA/K/189/M/06; OREDOLA JCA, graphically, explained:
“A notice of Appeal is the fulcrum, foundation, substratum and alpha of any appeal. It is so foundational that where it is lacking or structurally deficient, the entire appeal becomes grounded and remains on the run way like an aircraft without wings and speed to take to air for flight to its destination. Where it manages to gather little speed or momentum, the flight must be aborted or the entire journey will end in fiasco…
AGU VS. ODOFIN (1992) 3 SCNJ 161/173; IBETO VS. AMINU (2007) 5 NWLR (Pt.1028) 446; DANMUSA VS. INUWA (2007) 17 NWLR (Pt.1063) 391 and CLEV JOSH LTD. V. TOKIMI (2008) 13 NWLR (Pt.1104) 422”
By Order 6 Rule 6 of the Court of Appeal Rules, 2011,
“The Court shall have power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”
Also by Order 7 Rule 11 of the Court of Appeal Rules, 2011, “An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the Court below.”
The Notice of Appeal that was filed at the Court below by the Appellant in this appeal, as per the Records of appeal, on pages 151 – 156, was against High Court No. K/238/96, which is a total stranger to the entire proceedings in the High State Court of Kano Suit No. K/557/96, on which the Records of Appeal in CA/K/44/2005 and to all the processes filed in this appeal, predicate.
When this appeal was heard on 23/10/2013 there was no explanation of the defect or anomaly by the Appellant. The situation is made worse by the Appellant’s Brief which was filed in the name of suit No. K/557/96 (without appeal number) and without any reference to the High Court No. 238/96, carried by the Notice of Appeal!
That appears to be the sad end of this appeal; that it should not be considered any further, having not been properly constituted before this Court, as there is no records of appeal in support of the suit High Court No. K/238/96 appealed against, and the Records of appeal before us relates to suit No. K/557/96, on which the Appellant never filed any notice of appeal!
An appellate Court can only entertain and consider valid ground(s) of appeal and issue(s) distilled therefrom, which relate to and arise from the judgment appealed against, UNILORIN VS. OLAWEPO (2012) 52 WRN 42; OJEMEN VS. MOMODU (1994) 1 NWLR (Pt. 323) 685; See also KOTOYE VS. SARAKI (1992) 11/12 SCNJ 26, where the Supreme Court said:
“Where a ground of appeal cannot be fixed and circumscribed within the particular issue in controversy in the judgment challenged such ground of appeal cannot justifiably be regarded as related to the decision”
There is, therefore, no competent appeal before us to invoke the judicial powers of this Court to consider.
Ideally, the appeal should be terminated at this stage, but because ours is not the ultimate Court, and so that it may not be said that the Appellant should not be punished for the sins or errors of his Counsel, I think it is necessary to consider the merits of the appeal, for whatever it is worth, especially as the Respondent never raised any objection to the Notice of Appeal and cannot be said to have been misled by the wrong numbering of the suit number, appealed against
Appellant’s issues for determination, as per his brief, deemed filed on 16/4/07, were:
“Whether the plaintiff by the evidence laid (sic) at the trial Court did prove special or general damages against the Defendant to warrant the award of N20,000.00 as nominal damages and N180,000.00 as general damages. (Grounds 1, 2 and 4)
(2) Whether the judgment of the trial Court was not against the preponderance of evidence rendered in this case therefore resulted in miscarriage of justice.” (Grounds 3, 5 and 6).
The Respondent distilled 3 issues, as per his brief, deemed filed on 26/3/09. These were:
“(1) Whether, the plaintiff has by preponderance of evidence established that his skins illegally seized and exposed had not thereby become damaged and thus required compensation by way of special damages.
(2) Whether the unlawful arrest and detention of the plaintiff first at Sharada Police Station and later at Force C.I.D. Bompai, Kano on the false claim and pressure of the Defendant does not amount to malicious arrest and false imprisonment, thus making the plaintiff entitled to be awarded general damages in the sum of N180,000,00
(3) Whether the Court was right under our laws to close the case of the Defendant as a result of the undue delay and serial applications by the defence to “arrest” the judgment of the Court.”
The appeal shall be considered on Appellant’s two issues, as the Respondent’s 3rd issue appears to be a stranger to the Appellant’s Appeal.
Appellant’s contention was that the nominal damage awarded was not in any way proved by the Respondent; that averment on the issue did not amount to evidence, to prove the same; that judgment must be confined to the evidence raised by the parties in their pleadings. He further argued that the Respondent did not claim nominal damages and never proved same; that the Court is not competent to suo moto, make a case for a party; that there was no basis for the award of N20,000,00 as nominal damage. He relied on MARTCHEM INDUSTRIES NIG. LTD. VS. M.F. KENT (NA) LTD. (2005) ALL FWLR (Pt. 271) 1 at 23 – 24; BUHARI & ANOR VS. CHIEF OBASANJO (2005) ALL FWLR (Pt. 273) 1 at 72.
He added that, in law, special damages must be specifically pleaded and strictly proved. He relied on the case of DUMEZ (NIG.) LTD VS. OGBOLI (1972) 1 ALL NLR (Pt. 1) at 241; GONZEE NIG. LTD VS. NERDC & 2 ORS (2005) ALL FWLR (Pt. 274) 235 at 248.
On whether the judgment was not against the preponderance of evidence and therefore resulting in miscarriage of justice, the Appellant reproduced the claims of the Respondent at the Court below, and some other paragraphs of the statement of claim, as well as the correspondent paragraphs of the statement of defence and said that, in evidence of the Respondent, he said he spent a total of 4 days at Sharada Police Station and 5 days at State CID and therefore claimed N1,903,196.60 as damages for the skins and N500,000.00 as general damages for malicious arrest and detention, and 35% loss of investment; that the onus was on the Respondent to prove his claims, by credible evidence; that he failed woefully to prove special damages or any damage.
The Respondent submitted that the plaintiff had produced credible evidence to prove that the skin seized actually belonged to him and that he was entitled to special damages therefor; that the judge found, as a fact, that the Respondent had proved his ownership of the skin; that there was evidence the skin was reduced to irrecoverable state as per the testimony of the PW2, thus the need for special damages to account for the loss occasioned thereby. He relied on the case of OKONKWO UKATTA & ORS VS. JAMES NDINAEZE & ORS (1997) 4 SCNJ 117; O. ARABAMBI VS. NIG. INDUSTRIAL DEV. BANK LTD (2005) 12 SCNJ 331 at 338.
He submitted that the award of N20,000,00 nominal damage and N180,000.00 general damages was proper and that the same was founded on the evidence adduced before the Court.
The law relating to proof of special damage is well defined, that the same must be specially pleaded and strictly proved. SPRING BANK PLC VS. ADEKUNLE (2011) 1 NWLR (Pt. 1229) 581; NNPC VS. WIFCO NIG. LTD (2011) 10 NWLR (Pt. 1255) 209; CAMEROON AIRLINES VS. OTUTUIZU (2011) 4 NWLR (Pt. 1238) 512.
The determination of what constitutes special damages is therefore not a matter of conjecture, assessment or estimation by the Court and can therefore not be considered in the con of nominal award, as was done by the trial judge in this case, where the sum of N20,000.00 was awarded to the Respondent as “nominal” damage for his claim of N1,903,196.60 as special damages. Even though the evidence had established that the Respondent’s skin were seized by the Police in the course of arrest of the Respondent, and it was mishandled and later released (but not in the state earlier seized), to qualify for special damages, clear evidence needed to be led to establish the actual monetary value of the skins recovered, at the time of release of same to the Respondent, as special damages can only be in respect of ascertainable, proved amount. By making a nominal award of N20,000.00 to the Respondent, the lower Court had expressly admitted absence of the correct basis for the award, and that cannot be in the domain of special damages.
The issue 1 is therefore resolved in favour of the Appellant and the award of N20,000.00 to the Respondent is hereby set aside.
But that cannot be said of the award of N180,000.00 made by the Court as general damages against the Appellant in favour of the Respondent for malicious arrest and false detention. Of course, there was evidence, which was admitted by the Appellant, that the Respondent was arrested and detained by the Police for 9 days as a result of the complaint of the Appellant, which the Police later discovered to have been false and actuated by malice and bad faith. The trial Court, therefore, decided correctly, in my view, when it held the Appellant liable to the Respondent for the malicious arrest and detention in the sum of N180,000.00.
The law is well developed on the issue that one who lodges complaint with the Police, malafide, leading to the arrest and/or detention of a respondent is answerable in law for the harassment and injuries caused the respondent. See the case of EJIOFOR VS. OKEKE (2000) 7 NWLR (Pt. 665) 363, ratio 4, where it was held:
“Where there is an evidence of arrest and detention of an applicant which were done or instigated by the respondent… it is for the respondent to show that the arrest and detention were lawful. In other words, the onus is on the person who admits detention of another to prove that the detention was lawful.” See also AGBAKOBA VS. SSS (1994) 6 NWLR (Pt. 351) 475;
In the case of GUSAU VS. UMEZURIKE (2012) 28 WRN 111 at 140 – 141; we held:
“Detention, no matter how short, can lie as a breach of fundamental right. But that can only be so if the detention is adjudged wrongful or unlawful, in the 1st place; that is, if there is no legal foundation to base the arrest and/or detention of the applicant.” See also OKONKWO VS. OGBOGU (1996) 5 NWLR (Pt. 499) 420.
In the case of UAC OF NIGERIA PLC VS. SOBODU (2007) 6 NWLR (Pt. 1030); (2006) LPELR – CA/501/99, this Court, on what constitutes false imprisonment (the same with unlawful detention), said:
“False imprisonment involves the unlawful, illegal and unjustifiable restraint of a person’s right and liberty to move about freely. In cases that usually end up in the Courts, the wrong of false imprisonment consists of acts of arrest and detention or imprisonment of a plaintiff, without lawful justification by the Police or other law enforcement agencies, on complaint or information received in the course of their duties …The position of the law is that it is not enough for a plaintiff in a claim for false imprisonment to plead and provide evidence that the defendant merely made a report against him … but must also plead and establish that there was no reasonable and probable cause for making the report….plaintiff has the legal burden of showing that the report made by the defendant is false, frivolous, without legal foundation and therefore actuated by malice.” BAYOL VS AHEMBA (1999) 7 SC (Pt. 1) 92 (1999) 10 NWLR (Pt. 623) 381; IYALEKHUE VS. OMOREGBE (1991) 3 NWLR (Pt. 177) 941; BALOGUN VS. AMUBIKAHUN (1989) 3 NWLR (Pt. 107) 18 and NWANGWU VS. DURU (2002) 2 NWLR (Pt. 751)265.
Of course, in this case, it was established that the Appellant’s report to the Police, which led to the arrest of the Respondent, was false and actuated by malice. Appellant was therefore liable, as per the findings of the learned trial Court. And what constitutes general damages (the quantum thereof) is usually at the discretion of the trial Court. See the case of NZERIBE VS. DAVE ENGINEERING CO. LTD. (1994) 8 NWLR (PT. 361) 124; (1994) LPELR-SC 255/1990; ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY VS. EKWEREM (2009) 13 NWLR (PT. 1159) 410.
Accordingly, I resolve the 2nd issue against the Appellant. This appeal therefore succeeds, in part, only to the extent of setting aside the award of N20,000.00 as special damages to the Respondent. In substance, the appeal is dismissed, as the decision of the trial Court on the liability of the Appellant for malicious arrest and detention is up held and the award of N180,000.00, as general damages, therefore, sustained.
Parties shall bear their respective costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read in advance a copy of the leading judgment of this Court delivered by my learned brother, Mbaba, J.C.A., and I agree with the decision in the appeal regarding the substantive issues raised by the parties herein. I must, in passing comment on the issue of the competency of the Notice of Appeal filed by the Appellant raised by my learned brother suo motu in the said judgment. As rightly observed by my learned brother, the Respondent did not bicker over that, it was raised suo motu by my learned brother. I must, however, observe, as I did in the unreported two judgments of this Court in Appeal Nos. CA/K/298/2010, Between Abubakar Alhassan Muhammed & 3 Ors vs. Ahmadu Bello University, Zaria & anor delivered on the 10th July, 2002 and CA/K/212/2009; Between Bauka vs. Bungudu, delivered on the 8th February, 2013 that failure to embody the correct number of the suit being appealed against in the first paragraph or introductory part of the Notice of Appeal but which was conspicuously inserted in the upper section of the Notice of Appeal is not an irregularity that touches on the competency of the Notice of Appeal. It only goes to the form but not the substance of the Notice of Appeal and, which will not affect the hearing of the appeal on the merit. Since the number of the suit being appeal against had already been inscribed on the Notice of Appeal filed by the Appellant, sufficient communication of the judgment being appeal against has been given to the Respondent, and no miscarriage of justice was shown to have been occasioned by that. Consequently, I abide by the conclusion reached in the leading judgment and the consequential orders made therein.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I had the privilege of reading before now the lead judgment delivered by my learned brother, Ita Mbaba, JCA. I agree with the reasoning and abide the conclusions reached by his Lordship on the issues for determination formulated by the parties in the appeal.
The Respondent commenced this action in the High Court of Kano State in Suit No K/577/96 against the Appellants claiming for special damages in the sum of N1,903,196.60, general damages in the sum of N500,000.00 and loss of return on investment. The lower Court delivered judgment in the matter on the 17th of November, 2003 and it found in favour of the Respondent and awarded nominal damages in the sum of N20,000.00 and general damages in the sum of N180,000.00. Counsel to the Appellant filed a notice of appeal dated the 26th of November, 2003, contained in the records of appeal, and it was directed against the “judgment of the High Court of Justice No 11, Miller Road, Kano dated the 17th day of November, 2003”. The suit number contained on the heading of the notice of appeal was High Court Suit No K/238/96, instead of Suit No K/577/96.
The error in the suit number on the heading of the notice of appeal apparently did not mislead the Registrar of Court who compiled the records of appeal as all the court processes in the records, including the judgment, were in respect of a case filed by the Respondent against the Appellant in Suit No K/577/96. The suit number on the records of appeal was K/577/96. There is nothing before this Court showing that the trial Judge who delivered the judgment in the suit was not sitting at High Court 11, Miller Road, Kano as at 17th of November, 2003. Reading through the grounds of appeal in the notice of appeal, it is very clear that they were directed at the findings and the conclusions reached by the High Court in the judgment of 17th of November, 2003 in Suit No K/577/96. In the grounds of appeal, the Appellant quoted findings contained in portions of the judgment which he said amounted to errors in law committed by the lower Court in the said judgment. The issues for determination formulated by the parties in this appeal were distilled from the said grounds of appeal and they were targeted directly at the findings and the conclusions of the High Court in the said judgment in Suit No K/577/96.
The Respondent was not misled by the error in the suit number on the heading of the notice of appeal and his Counsel filed a brief of arguments in response to the Appellant’s brief confirming that this appeal was against the judgment of the lower Court in Suit No K/577/96 and he raised no complaint before this Court about the error on the notice of appeal. The error was not in any way reflected in the briefs of arguments filed by the parties in this appeal and did not compromise the hearing of this appeal in any manner. To treat the said error in the suit number on the notice of appeal as fatal to the consideration of this appeal in the merits, in the circumstances, will, in my view, amount to elevating technicality over the doing of substantial justice in this matter. It is my firm understanding that the sole purpose of a Court is to do substantial justice between the parties that come before it for adjudication of disputes and that it should eschew technical justice as best as it can – Marine Management Associates Inc Vs National Maritime Authority (2012) 18 NWLR (Pt 1333) 506 and Uwazuruike Vs Attorney General, Federation (2013) 10 NWLR (Pt 1361) 105.
Additionally, the issue of the error of the suit number on the heading of the notice of appeal was not raised by any of parties or even by this Court in the course of the hearing of the parties and the views of the parties on the error was not sought by this Court. It is my view that to raise the issue in this judgment and then proceed to treat it as fatal, in the circumstances, will entail this Court going beyond its powers in resolving the issues submitted to it for adjudication by the parties Federal Republic of Nigeria Vs Iweka (2013) 3 NWLR (Pt 1341) 285, Uwazuruonye Vs Governor, Imo State (2013) 8 NWLR (Pt 1355) 28 and Halilco (Nig) Ltd Vs Equity Bank (Nig) Ltd (2013) 12 NWLR (Pt 1367) 1.
It is for these reasons that I am inclined to treat the error of the suit number on the notice of appeal for what it really is, a mistake of Counsel and it amounts to an irregularity in the circumstances of this case. It is not fatal to the consideration of this appeal on the merits.
Part of the issues considered and resolved in the lead judgment concerned the award of damages made by the lower Court – the sums of N20,000.00 as nominal damages and N180,000.00 as general damages. The question that arose for resolution on the award, of the N20,000.00 was whether, having found that the Respondent did not prove the sum of N1,903,196.60 claimed as special damages, the lower Court acted appropriately in going ahead to award the sum of N20,000.00 as damages for the same head of claim. The answer to this question is an emphatic, “No” and it was given by the Supreme Court in the case The Shell Petroleum Development Company of Nigeria Ltd Vs Tiebo VII & Ors (2005) 9 NWLR (Pt 931) 439. Tobi, JSC stated on the point at page 470 B-D thus:
“There is a world of difference between proof of special damages and proof of general damages, and courts of law must not mix up the adjectival or procedural requirements of the two claims. While proof of special damages is strict, proof of general damages does not require the strictness in proof of special damages.
The issue in this appeal is whether a court can award general damages in place of special damages. The answer is, ‘no’. Where a plaintiff is unable to prove special damages, his case crumbles and a trial Judge cannot compensate him by way of general damages. This is because he has not proved the special damages he claimed.”
This position was followed and reiterated by this Court in its unreported decision in Appeal No CA/K/374/2005 – Attiogbey vs United Bank for Africa Plc & 2 Ors – delivered on the 1st of March, 2013. The award of N20,000.00 as nominal damages must thus be set aside.
The award of the sum of N180,000.00 as general damages was for arrest and false imprisonment. As rightly noted in the lead judgment, there was clear evidence before the lower Court that the Respondent was arrested and detained for a total of nine days by the police on the basis of false and mischievous allegations made against him by the Appellant. It was in evidence that when the Police at the Shatada Police Station in Kano discovered the falsity of the allegations against Respondent after four days of his arrest and detention and decided to release him, the Appellant insisted that the police should not except on his terms and when it became obvious that the Respondent would be released, the Appellant got angry and threatened to take the matter further. It was in evidence that the Appellant, true to his threat, took the matter to the police Headquarters, Bompai, Kano and the Respondent was re-arrested and detained for another five days and after which the Police again found that the allegations against the Respondent were false. There was evidence that the allegations made by the Appellant against the Respondent were not made in good faith and that it was on the basis of a story fabricated by the Appellant that the Police arrested and detained the Respondent. The Appellant was thus liable for the arrest and detention – First City Monument Bank Vs Ette (2008) 22 WRN 1 and Onah Vs Okenwa (2010) 7 NWLR (Pt 1194) 512.
There was a proven basis for the lower Court to award general damages against the Appellant for the arrest and false imprisonment of the Respondent. Now, general damages means such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily results from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the claimant. General damages are such as the court may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man – Tanko Vs Mai-Waka (2010) 1 NWLR (Pt 1176) 468, Kopek Construction Ltd Vs Ekisola (2010) 3 NWLR (Pt 1182) 61, Aluminium Manufacturing Co. Nigeria Ltd Vs Volkswagen of Nigeria Ltd (2010) 7 NWLR (Pt 1192) 97.
It is settled law that an appellate Court does not make a habit of interfering with an award of damages made by a trial Court and in order to justify such interference, the appellate Court must be convinced that (i) the trial Court acted upon wrong principles of law; or (b) the amount awarded was so extremely high or very small to make it, in the view of the appellate Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled – Abu Vs Abulime (2007) All FWLR (Pt 396) 683, Usang Vs Hanseatic International Ltd (2009) 11 NWLR (Pt 1153) 522, Oduwole Vs West (2010) 10 NWLR (Pt 1203) 598.
The Appellant did not present this Court with a reason to interfere with the sum of N180,000.00 awarded by the lower Court as general damages for arrest and false imprisonment. The award will thus be affirmed by this Court.
It is for these reasons, and the fuller reasons in the lead judgment, that I find some merit in the appeal. I hereby set aside the award of N20,000.00 nominal damages and affirm the award of N180,000.00 general damages made in the judgment of the High Court of Kano State in Suit No K/577/96 delivered by Honorable Justice Mohammed H. Abdullahi on the 17th of November 2003. I abide the order on cost in the lead judgment.
Appearances
Charles Asogwa Esq.For Appellant
AND
J.A. Ogodi Esq.For Respondent
