MR. SHERIFF OLAYIWOLA SHARAFA v. STANBIC IBTC BANK PLC
(2019)LCN/12897(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of March, 2019
CA/IL/140/2018
RATIO
INTERPRETATION: MEANING OF DAMAGES
“Instructively, the term “damages” denotes money claimed by, or ordered to be paid to a person as compensation for loss or injury. Contrariwise, the term “punitive damages” denotes damages awarded in addition to actual damages when the defendant acted with recklessness, malice, or deceit. See BLACK?S LAW DICTIONARY, 6th Edition, 1999 @ 393 and 396. Invariably, punitive damages, which are usually intended to punish and thereby serve as deterrence to blameworthy conduct, are generally not recoverable for breach of contract. The Supreme Court of the United States of America inBMW OF NORTH AMERICA INC VS. GORE 517 US. 559, 116 SCT. 1589 (1996), held that three guidelines determine whether a punitive damages award violates constitutional due process: (1) The reprehensibility of the conduct being punished; (2) The reasonableness of the relationship between the harm and the award; and (3) The difference between the award and the civil penalties authorized in comparable cases. Also termed exemplary damages; vindictive damages; presumptive damages; added damages; aggravated damages; speculative damages; imaginary damages; smart money; ponies, et al. See BLACK’S LAW DICTIONARY, (Supra) @ 396. The law is trite, that in order to justify an award of exemplary, punitive, or aggravated damages, it is not enough to merely show that the defendant has committed the wrongful act complained of. Indeed, the defendant?s conduct must be shown to be high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff?s rights, or disregarding every doctrine which actuates the conduct of civilized persons. See ANTHONY ODIBA VS. AZEGE (1998) 7 SC (Pt.1) 79; (1998) LPELR ? 2215 (SC) Per Iguh, JSC @ 25 paragraphs B ? D; ELIOCHIN (NIG) LTD VS. MBADIWE (1986) INWLR (Pt. 14) 47.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
COMMERCIAL LAW: AWARD OF DAMAGES
“…the object of an award of damages is twofold: (i) to compensate the complainant (plaintiff) for the harm uncharitably done thereto; and (ii) to punish the defendant for his conduct in inflicting that harm. See BRITISH AIRWAYS VS. ATOYEBI (2014) LPELR 23120 (SC);ELIOCHIN (NIG) LTD VS. MBADIWE (1986) 1 NWLR (Pt. 14) 47 @ 65; ODIBA VS. AZEGE (1998) 9 NWLR (Pt. 566) 370 @ 382 paragraphs D – E.With particular regard to whether a double compensation is grantable under the law, the Apex Court authoritatively held in BRITISH AIRWAYS VS. ATOYEBI (Supra)” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
MR. SHERIFF OLAYIWOLA SHARAFA Appellant(s)
AND
STANBIC IBTC BANK PLC Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.(Delivering the Leading Judgment):
The present appeal is against the judgment of the Kwara State High Court, holden at Ilorin Judicial Division, delivered on May 17, 2018 in suit No. KWS/314/2015. By the Judgment in question, the Court below Coram S. T. Abdulkadir, J; granted the claims of the Appellant (Claimant) in part but dismissed the Appellant?s claim for damages against the Respondent.
BACKGROUND FACTS
The Appellant has been a customer of the Respondent since July 2011, when he opened a salary account. It was the Appellant?s case, that the Respondent had been negligent in managing the salary account thereof. He led evidence to the effect that his salary account was unilaterally re-classified by the Respondent without his consent. That the alleged negligent conduct of the Respondent had exposed the Appellant to economic hardship, psychological trauma, embarrassment and molestation.
Contrariwise, the Respondent?s case was that it was in the obedience to the directive of the Central Bank of Nigeria (CBN) that it altered the classification of the Appellant?s account to Tier I.
On October 16, 2015, the Appellant deemed it expedient to file a writ of summons along with the statement of claim thereof, in the Court below, thereby seeking some declaratory, injunctive and damage reliefs against the Respondent. By the statement of claim thereof, dated October 16, 2015, the Appellant sought against the Respondent the following reliefs:
(a) A declaration that the unilateral changed (Sic) of claimants Account Type Without the claimant prior constituted a flagrant breach of fundamental terms of Banker ? Customer relationship that exists between the claimant and the Defendant.
(b) An order of sum of N5,000,000.00 (Five Million) as punitive, exemplary and aggravated damages for economic hardship, psychological trauma, embarrassment and molestation the claimant had subjected (Sic) in the hands of his employer (ACCOUNT DEPARTMENT, INEC, KWARA STATE) flowing from Defendant?s Negligence to unilaterally change claimant?s Account Type Without Claimant?s Prior Consent/notification.
(c) An order mandating the Defendant to revert claimant?s Account back to its status (Normal Saving Account Contrary to the terms of strange Tier 1 Savings Account) without the claimant having to present again in the Defendants branch (Unity) office to fill or refill any form(s).
(d) An award of N200,000.00 (Two Hundred Thousand Naira) only being cost of travelling to and fro Abuja, including hotel fees, speed post charges and cost of filing the suit.
Contrariwise, by the statement of defence thereof, filed on April 20, 2016, the Respondent vehemently denied the claim and urged upon the Court below to dismiss the claim because it is frivolous, misconceived an attempt at gold digging and unmeritorious.
Pleadings having been duly settled by the respective parties, the suit eventually proceeded to trial. At the end of which, the Court below delivered the vexed judgment on the said May 17, 2018 to the conclusive effect:
It is glaring, that in the circumstance of this case it is a fact that the defendant failed to exercise reasonable care and skill in handing the account opening package of the claimant which resulted in the misplacing of the package, flowing thereto, the unilateral change of the claimant?s account type without the claimants prior consent/notification.
I hold that the defendant was in breach of its duty of care owed to the claimant and was therefore liable to the claimant in negligence.
The next issue to be resolved is whether the damages claimed by the claimant is recoverable. From the totality of the facts of this case no evidence is adduced by the claimant to support the claim of compensatory damages.
There is virtually no evidence before the Court in support of claims which the Court can take in to account to assess or establish on whether tortious conduct of the defendant caused economic hardship, psychological trauma; embarrassment and molestation to the claimant.
The claimant has therefore failed to prove his entitlement to either aggravated, punitive or exemplary damages. Therefore is no basis for the award of relief (b) in the statement of claim it is hereby dismissed…
Acting strictly on the evidence before the Court I find as a fact that the claimant has failed woefully to prove his entitlement to the claim in relief (d) of the statement of claim, same is hereby dismissed.
in finality I find in favour of the claimant andgrant reliefs (a) and (c) of the statement of claim.
Dissatisfied with the judgment in question, the Appellant filed the notice of appeal thereof, on August 7, 2018 thereby urging upon the Court to allow the appeal, set aside the part of the judgment of the Court below dismissing relief [b] of statement of claim, and instead invoke the provision of Section 15 of the Court of Appeal Act to award the said relief [b].
On January 14, 2019, when the appeal came up for hearing, the learned counsel addressed the Court and duly adopted their respective briefs of argument, thus resulting in reserving the judgment. Most particularly, the Appellant’s brief filed on December 5, 2018 spans a total of 6 pages. At page 1 of the said brief, a sole issue is raised:
1. Whether the trial Court was right in holding that the Appellant did not support his claim (relief b or 2) with evidence, the same trial Court having earlier held that the Respondent was liable in negligence to the Appellant.
In a nutshell, answering the sole issue in the negative, it was submitted that the finding of the Court below that the Respondent was negligent in managing and handling of the Appellant’s salary account was supported by abundance of evidence on record and Respondent’s admission in paragraph 4 of the statement of defence thereof.
Further submitted, that the reasoning of the Court below that the principle in awarding damages in an action for negligence is to put the claimant in the position he would have been if the act of negligence had not been committed is a trite principle in breach of contract without exception but not applicable in case of tort of negligence. See EMMANUEL AGBANELO VS. UBN LTD (2000) 7 NWLR (Pt. 666) 534 @ 550; EMIRATE AIRLINE VS. UZOAKU KENECHUKWU NGONADI (2013) LPELR ? 22053 (CA) 58 ? 59 F ? B; BRITISH AIRWAYS VS. ATOYEBI (2015) EJSC 2, 137 @ 141.
It was contended, that the uncontroverted and unchallenged (averments in) paragraphs 4 – 13 (a – d) of the statement of claim and paragraphs 2 – 14 of the written statement on oath adopted as evidence before the Court below clearly established Appellant’s entitlement to relief B (2) dismissed by the Court. Further contended, that paragraphs 8, 9, 10 and 15 of the Appellant’s Reply to the Respondent?s statement of defence and the Additional written statement on oath have clearly established that the conduct of the Respondent towards the Appellant?s salary account was outrageous and a total flagrant (disregard) of the extant provisions of the CBN Act and Regulation, which alone without more entitled the Appellant to punitive exemplary and/or aggravated damages. SeeGFK INV. (NIG) LTD VS. NITEL PLC (2009) 15 NWLR (Pt. 1164) 344.
Allegedly, by the pleadings and abundant evidence led by the Appellant at the trial, highlights of harm done to the Appellant by the negligent act of the Respondent were given. Therefore, had the Court below acted on the unchallenged averments and evidence of the Appellant, the Court would not have found that the Appellant did not prove his claim in relief B (2) resulting in dismissing same. See HERITAGE BANK VS. OKORIE (2017) LPELR 42010 (CA) 21 – 22 B – D. MO KANU SONS & CO. LTD VS. FBN PLC (2006) 5 SC (Pt. 111) 80.
The Court is urged to so hold and resolve the sole issue in favour of the Appellant.
Conclusively, the Court is urged to allow the appeal, as the part of the judgment appealed against is most perverse and liable to be set aside.
Contrariwise, the Respondent?s brief, filed on January 3, 2019, spans a total of 13 pages. At page 2 thereof, a sole issue has been raised, viz:
Whether the lower Court was wrong in its application of the principle binding the award of damages and whether the lower Court had anything with which to base its assessment of damages.
In the main, it was submitted that the Court below was right in its finding (at page 55 of the record) that the principle applicable in awarding damages in an action for negligence is to put the claimant in the position he would have been if the act constituting the negligence had not been committed. See BRITISH AIRWAYS VS. ATOYEBI (2015) ALL FWLR (Pt. 766) 442 @ 464.
It was submitted, that in the present case, the Appellant did not particularise his claims for transportation, hotel expenses and speed post as he should have done for claims. See IMANA VS. ROBINSON (1979) NSCC 121 @ 12 ? 13 (1979) 3 ? 4 SC 1 @ 23 & 197; NGILARI VS. MOTHERCAT (1999) 12 ? SC (Pt.11) 1 @ 17; et al.
It is argued that the list (a) – (g) at page 4 of the Appellant’s brief is not particularization as required by the authorities. That negligence alone does not give a cause of action, damage alone does not give a cause of action, the two must co-exist. SeeIMN LTD VS. NWACHUKWU (2004) 6 ? 7 SC 88 @ 98.
It was equally argued that the actions of the Respondent could not at the same time attract punitive, exemplary and aggravated damages. That the Appellant has woefully failed to prove entitlement to aggravated, punitive or exemplary damages. He must show by evidence the injury or loss he has suffered was due to malicious act of the defendant, and that the defendant was high handed, insolent, vindictive or malicious showing contempt of the claimant’s rights or disregard of every principle which actuated the conduct. See GFK INV. NIG. LTD VS. NITEL PLC (2000) ALL FWLR (Pt. 299) 1402 @ 1418; ZENITH BANK PLC VS. EKEREUWEM (2012) 4 NWLR (Pt. 1290) 207 @ 238; GANIYU BADMUS VS. ABEGUNDE (1999) 7 SC (Pt. 1) 78 @ 82; BRITISH AIRWAYS VS. ATOYEBI (Supra) @ 466 – 467.
It was postulated, that assessment of damages is essentially the duty of the Court below which saw and heard the witnesses. The Court of Appeal would not normally interfere with assessment of damages carried out by the Court below.
The Court is urged to so hold and determine the sole issue in the negative and accordingly dismiss the appeal as unmeritorious.
Having accorded an ample regard upon the submissions of the learned counsel contained in their respective briefs of argument vis–vis the record of appeal, I cannot but appreciate the fact that the sole issue raised in the respective two briefs are not mutually exclusive. In my considered view, however, the sole issue raised by Appellant in the brief thereof is much more Germaine to the two grounds of the notice of appeal than the Respondent?s. Thus, I have deemed it appropriate to adopt the Appellant?s sole issue for the determination of the appeal, anon.
DETERMINATION OF THE SOLE ISSUE
As copiously alluded above, the sole issue raised at page 1 of the Appellant’s brief raises the vexed question of whether the Court below was right in holding that the Appellant did not support his claim (relief B (2) with evidence, the same Court having earlier (in the judgment) held that the Respondent was liable in negligence to the Appellant. The sole issue is distilled from both grounds 1 and 2 upon which the notice of appeal is predicated.
Instructively, the term “damages” denotes money claimed by, or ordered to be paid to a person as compensation for loss or injury. Contrariwise, the term ?punitive damages? denotes damages awarded in addition to actual damages when the defendant acted with recklessness, malice, or deceit. See BLACK?S LAW DICTIONARY, 6th Edition, 1999 @ 393 and 396.
Invariably, punitive damages, which are usually intended to punish and thereby serve as deterrence to blameworthy conduct, are generally not recoverable for breach of contract. The Supreme Court of the United States of America inBMW OF NORTH AMERICA INC VS. GORE 517 US. 559, 116 SCT. 1589 (1996), held that three guidelines determine whether a punitive damages award violates constitutional due process:
(1) The reprehensibility of the conduct being punished;
(2) The reasonableness of the relationship between the harm and the award; and
(3) The difference between the award and the civil penalties authorized in comparable cases.
Also termed exemplary damages; vindictive damages; presumptive damages; added damages; aggravated damages; speculative damages; imaginary damages; smart money; ponies, et al. See BLACK?S LAW DICTIONARY, (Supra) @ 396.
The law is trite, that in order to justify an award of exemplary, punitive, or aggravated damages, it is not enough to merely show that the defendant has committed the wrongful act complained of. Indeed, the defendant?s conduct must be shown to be high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff’s rights, or disregarding every doctrine which actuates the conduct of civilized persons. See ANTHONY ODIBA VS. AZEGE (1998) 7 SC (Pt.1) 79; (1998) LPELR ? 2215 (SC) Per Iguh, JSC @ 25 paragraphs B ? D; ELIOCHIN (NIG) LTD VS. MBADIWE (1986) INWLR (Pt. 14) 47.
Most particularly, in ODIBA VS. AZEGE (Supra), the Apex Court authoritatively held:
Exemplary damages, in particular, also known as punitive or vindictive damages can apply only where the conduct of the defendant merits punishment, and this may be considered to be so where such conduct is wanton, as where it discloses fraud, malice, cruelty, insolence or the like, or where he acts in contumelious disregard of the plaintiff?s rights. But exemplary damages, to some extent, are distinct from aggravated damages whereby the motives and conduct of the defendant aggravating the injury to the plaintiff would be taken into consideration in the assessment of compensatory damages. Per Iguh, JSC @ 25 paragraphs D – G.
The fundamental object of an award of damages is to compensate the complainant for wrong or harm inflicted there upon. A possible secondary object of award of damages is to punish the defendant for his wrongful or harmful conduct thereby causing harm to the complainant. Thus, such a secondary object can be achieved by awarding, in addition to the usual compensatory damages, commonly called punitive, vindictive, retributory damages, et al, whenever the defendants conduct is sufficiently, outrageous to merit or deserve punishment such as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law, et al.
In the instant case, the Court below formidably identified two issues as formulated by the Appellant?s learned counsel, I. K. Iyanda Esq. for determination, viz:
Whether on the evidence and having regard to the pleadings, the defendant is negligent in managing and handing (sic) claimant?s account.
If issue one is in affirmative, whether the claimant is entitled to the reliefs sought.
In the course of determining the first issue, the Court below preliminarily came to the following finding (page 149, lines 12 ? 18 of the record):
Going by the pleadings on record, in the statement of claim filed by the claimant it is crystal clear that the claimant pleaded negligence and gave particulars of the items of negligence at paragraph 11(a) ? (f) thereto, so by the material facts as pleaded I am of the firm view that the crux of this action is dereliction of duty of care or skill of the defendant based on negligent performance. This action is therefore based on negligence and not contract as erroneously submitted by learned counsel.
Consequent upon a painstaking appraisal of the pleadings and evidence of the respective parties, the Court below ultimately came to the conclusive finding:
It is glaring, that in the circumstance of this case it is a fact that the defendant failed to exercise reasonable care and skill in handling the account opening package of the claimant which resulted in the misplacing of the package, flowing thereto, the unilateral change of the claimant?s account type without the claimants prior consent/notification.
I hold that the defendant was in breach of its duty of care owed to the claimant and was therefore liable to the claimant in negligence.
Neither the Appellant nor the Respondent has appealed against the finding in question. So, it is not an issue before the Court in this appeal.
However, with particular regard to the second issue, the Court below found to the conclusive effect:
From the totality of the facts of this case no evidence is adduced by the claimant to support the claim of compensatory damages. There is virtually no evidence before the Court in support of claims which the Court can take into account to assess or to establish on whether tortious conduct of the defendant caused economic hardship, psychological trauma, embarrassment and molestation to the claimant.
The claimant has therefore failed to prove his entitlement to either aggravated, punitive or exemplary damages. Therefore there is no basis for the award of relief (b) of the statement of claim, it is hereby dismissed.
Fundamentally, the object of an award of damages is to compensate the plaintiff for harm done thereto or to punish the defendant for his conduct inflicting that harm thereupon. See ELIOCHIN (NIGERIA) LIMITED VS. MBADIWE (1986) 1 NWLR (Pt. 14) 47 @ 65; ODIBA VS. AZEGE (Supra) @ 382 paragraphs D ? E; BRITISH AIRWAYS VS. ATOYEBI (2014) LPELR 23120 (SC).
Invariably, the rationale inherent in the compensatory theory for the award of damages is predicated upon the trite Latin Maxim Restitution in Integrum. This maxim literally denotes restoration to the previous condition or the status quo. In the ancient Roman jurisprudence, a praetor could accomplish by (willfully) annulling a contract or transaction that was strictly legally valid but inequitable and by restoring the parties to their previous legal relationship. See BLACK’S LAW DICTIONARY (Supra) @ 1315; SPDC (NIGERIA) LIMITED VS. TIEBO VII (1996) 4 NWLR (Pt. 445) 657 @ 680 paragraphs D – E; OKONGWU VS. NNPC (1989) 4 NWLR (Pt. 115) 296; CAMEROON AIRLINES VS. OTUTUIZU (2011) 4 NWLR (Pt. 1238) 512; BRITISH AIRWAYS VS. ATOYEBI (Supra) per Kekere-Ekun, JSC @ 38 – 39 paragraphs F – B.
In the case of HORABIN VS. BRITISH AIRWAYS CORPORATION (1952) 2 ALL ER 1016 @ 1020 paragraphs B ? D, the term willful misconduct was authoritatively postulated upon:
In order to establish willful misconduct, the plaintiff must satisfy you that the person who did the act know at the time that he was doing something wrong, and yet did it, notwithstanding, or alternatively, that he did it quite recklessly, not caring whether he was doing the right thing or the wrong thing, quite regardless of the effects of what he was doing on the safety of the aircraft and of the passengers for which and for whom he was responsible? The element of willfulness is essential in the present case if the plaintiff.
In the instant case, in view of the averments painstakingly alluded to by the Court below in the vexed judgment, there is every cogent reason for me to believe that the paragraphs therein disclose allegation of willful misconduct on the part of the Respondent. Though described as particulars of negligence, the facts set out in paragraphs 11 (a) ? (f), 12 – 13 of the statement of claim are facts tending to imputation of willful misconduct on the part of the Respondent.
The Appellant testified and equally tendered exhibits in support of the pleadings thereof. The Court below found, rightly in my view, that the contents of Exhibit G if holistically perused and digested, strengthens the case of the Appellant (Claimant) and weakens the defence of the Respondent (Defendant). According to the Court below (at page 153 of the record):
The unchallenged evidence on record reveals that even the claimants monthly salary/remittance after deduction of loan as above the sum of N20,000.00 maximum single deposit the tier I account type is to account to make. The defendant has failed to lead credible evidence in support of his pleadings when it averred that when it reviewed its customers account to ascertain the level of each customers KYC compliance the claimants savings account fell among those that were reclassified to tier/saving account.
In the case of HARKA AIR SERVICES (NIG) LTD VS. EMEKA KEAZOR ESQ; the Apex Court aptly postulated on the definition of wilful misconduct:
Wilful misconduct is a deliberate wrong act by a pilot, airline staff, or its agent which gives rise to a claim for damages by passengers. When a staff of an airline act with reckless indifference, such unacceptable behavior especially by a professional person amounts to wilful misconduct.
See (2011) 13 NWLR (Pt. 1264) 320 PER Rhodes Vivour, JSC @ 364.
The Court below has rightly in my view, found that the Appellant?s averments in the pleadings thereof, were unchallenged by the Respondent. Undoubtedly, the Court below relied on the unchallenged and uncontroverted pleadings to grant reliefs 1 and 3 of the Appellant. As aptly postulated by the Appellant?s learned counsel (at page 3 of the brief thereof), the said uncontroverted and unchallenged paragraphs 4 ? 13 (a ? d) of the statement of claim vis–vis the Appellant?s statement on oath adopted as evidence at the trial, clearly established the Appellant?s entitlement to relief 2 erroneously dismissed by the Court below in the vexed judgment.
Indeed, in those unchallenged and uncontroverted pleadings, it is duly established that the attitudinal disposition of the Respondent towards the Appellant, in handling the saving account thereof was outrageous, most reprehensible, and a total flagrant disregard of the extant and relevant provisions of the Central Bank of Nigeria (CBN) Act and Regulation. I would want to uphold the Appellant?s argument, that this outrageous disposition of the Respondent alone without more, ought to have entitled the Appellant to punitive, exemplary, or aggravated damages. Most unfortunately, the Court below in its own wisdom opted not to award any damages at all to the Appellant despite the obvious unchallenged pleadings and evidence on record in favour of the Appellant. In the case of G.F.K INVESTMENT NIGERIA LIMITED VS. NITEL PLC(2009) LPELR ? 1294 (SC), the Apex Court aptly reiterated the trite fundamental doctrine:
Exemplary, punitive, vindictive or aggravated damages where claimed are usually awarded, whenever the defendant or defendant’s conduct, is sufficiently outrageous to merit punishment as where for instance, it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law and the like.
Per Ogbuagbu, JSC @ 31 – 32 paragraphs G – A.
It was the finding of the Court below, that apart from failing to controvert and challenge the said pleadings of the Appellant, the sole witness of the Respondent (DW1) has turned out to shamelessly not to be a reliable witness of truth. As aptly found by the Court below at page 152 of the record:
The Court in this regard formed an opinion that the witness is being economical with the truth. I therefore agree entirely with submission of counsel to the claimant that the witness is not a witness of truth and I so hold?
Continuing further at page 153 of the record, the Court below stated:
It is crystal clear, nowhere is it contained in Exhibit G that the defendant can unilaterally change or re-classify an existing customer account type on the ground of KYC (Know Your Customer) requirements, non-compliance as introduced by Exhibit G. It is my finding that Exhibit G have debunked and rubbished any oral evidence by the defendant to the contrary. I hold that DW1’s statement on oath in this regard is bogus, unreliable and hopelessly discredited by Exhibit G, in this regard argument of counsel to the defendant submitting that the action of the defendant is backed by a directive of Central Bank of Nigeria stands in the air without any legs, to support it.
Yet, despite the foregoing far-reaching unassailable findings, the Court below in its wisdom declined to deem it fit, appropriate and compelling enough to award the exemplary damages of which the Appellant was most deserving in the prevailing circumstances of the case thereof.
In the circumstance, the answer to the sole issue is most undoubtedly in the negative and it is hereby resolved in favour of the Appellant.
Hence, against the backdrop of the foregoing far-reaching postulations thereby resulting in resolving the sole issue in favour of the Appellant, there is no gainsaying that the instant appeal grossly succeeds and it?s hereby allowed by me.
Consequently, the judgment of the High Court of Kwara State holden at Ilorin Judicial Division delivered by S. T. AbdulKadir, J.; on May 17, 2018, in Suit No. KWS/314/2015, with particular regard to the issue of award of exemplary damages, is hereby set aside.
CONSEQUENTIAL ORDERS
In the instant appeal, the reliefs sought by the Appellant are to the following effect:
(i) To allow the appeal and set aside the part of the judgment of the trial Court delivered on 17th May, 2018, refusing/dismissing relief (b) of the Claimant/Appellant and instead invoke Section 15 of the Court of Appeal Act to award the relief (b), that the Court having made a finding on the entire suit.
Instructively, by the provisions of Section 15 of the Court of Appeal Act, this Court is cloaked with a far-reaching power to assume full jurisdiction over the entire proceedings in any given matter before it as if the proceedings had been instituted therein as a Court of first instance. Such power extends to the jurisdictional competence to rehear the matter in whole by considering the evidence or material, addresses of parties filed before the Court or Tribunal below in order to determine the matter as justice demands.
However, before this Court can exercise such special power, certain conditions must exist. One of such conditions is that, the lower Court must have had the legal power to adjudicate in the matter before the appellate Court can entertain it. See OBI VS. INEC (2007) 11 NWLR (Pt. 1046) 565 @ 639 paragraphs F ? C.
It is not at all in doubt, the Court below had jurisdictional competence to entertain and determine the matter before it. Thus, having failed to exercise its jurisdictional power to award damages to the Appellant with particular regard to Relief 2 of the Statement of Claim, this Court is cloaked by the provision of Section 15 of the Court of Appeal Act with jurisdictional competence to award damages to the Appellant.
Fundamentally, the object of an award of damages is twofold: (i) to compensate the complainant (plaintiff) for the harm uncharitably done thereto; and (ii) to punish the defendant for his conduct in inflicting that harm. See BRITISH AIRWAYS VS. ATOYEBI (2014) LPELR ? 23120 (SC);ELIOCHIN (NIG) LTD VS. MBADIWE (1986) 1 NWLR (Pt. 14) 47 @ 65; ODIBA VS. AZEGE (1998) 9 NWLR (Pt. 566) 370 @ 382 paragraphs D ? E.
With particular regard to whether a double compensation is grantable under the law, the Apex Court authoritatively held in BRITISH AIRWAYS VS. ATOYEBI (Supra):
The law is that a person who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head. Per Kerere-Ekun, JSC @ 43 ? 44 paragraphs G B.
Contrariwise, however, in the instant case, unlike in BRITISH AIRWAYS VS. ATOYEBI (Supra) (where the Respondent was adequately compensated), the present Appellant was most regrettably denied exemplary damages (compensation) to which he was undoubtedly entitled for the Respondent reckless dispossession thereto.
Hence, I have deemed it expedient to invoke the power under Section 15 of the Court of Appeal Act (Supra) to award the sum of One Million Naira (N1,000,000.00) only as exemplary damages in favour of the Appellant against the Respondent.
The Appellant shall equally be entitled to Fifty Thousand Naira (N50,000.00) as Costs against the Respondent.
HAMMA AKAWU BARKA, J.C.A.: I had the singular opportunity of reading in draft the judgment of my learned brother Ibrahim Mohammed Musa Saulawa JCA.
I entirely agree with his reasoning and the conclusion arrived at. I equally allow the appeal, and abide on all orders made including that as to costs.
BALKISU BELLO ALIYU. J.C.A.: I read in draft the lead judgment delivered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA, and I agree with the reasoning contained therein and the conclusion reached that the appeal is meritorious and should be allowed. It is the principle of law and indeed the purpose of litigation and adjudication that where there is a wrong, there must be a remedy. See Arulogun Vs. C.O.P. Lagos State & Ors. (2016) LPELR-40190 where Iyizoba JCA aptly put the principle of law thus:
“It is a basic and elementary principle of the law that wherever there is a wrong there ought to be a remedy to redress the wrong, generally expressed in the Latin phrase Ubi Jus ibi remedium which we are all very familiar with.”
It is in the light of the legal maxim ubi jus ibi remedium establishing the principle of law that a wrong must be redressed with a remedy that I also allow this appeal. I award the Appellant the sum of N1,000, 000 (One million Naira) only as general damages against the Respondent. I also abide by the order of cost made in the lead judgment.
Appearances:
I.K. Iyanda, Esq.For Appellant(s)
Toyin Oladapo, Esq.For Respondent(s)
