MRS. SALAMATU U. MOHAMMED v. SEYEN KATYEN & ANOR (2013)

MRS. SALAMATU U. MOHAMMED v. SEYEN KATYEN & ANOR

(2013)LCN/6157(CA)

In The Court of Appeal of Nigeria

On Monday, the 6th day of May, 2013

CA/J/159/2011

RATIO

DAMAGES: DEFINITION IN LAW

In Kopek Construction Ltd. V. Johnson Koleola Ekisola (2010) 3 NWLR (pt. 1182) 618 at 660, my lord Ibrahim Tanko Mohammed J.S.C. said this of damages-
“‘Damage’ in law generally refers to a disadvantage which is suffered by a person as a result of the act or default of another for which a legal right to recompense accrues. Damages are thus the pecuniary recompense given by process of law to a person for the actionable wrong that another has done to him.”PER RAPHAEL CHIKWE AGBO, J.C.A.

TRESPASS ON A PERSON AND THE AWARD OF DAMAGES

In the instant case the trial judge found as a fact that the respondents trespassed on the person of the appellant by battering her. She found that was an unlawful act. This finding was not challenged by the respondents. The Respondents by this finding unlawfully trespassed on the person of the appellant. Where such a finding has been made, the only option available to the trial judge is the award of damages albeit nominal or contemptuous damages. This is because it is only in the award of damages that the court in effect declares the legal injuries sustained by a plaintiff unlawful. It is of course right to say that the award of damages is discretionary. See NPA V. Rahman Bros Ltd. (2010) 17 NWLR (pt. 1221) 101, Ogbiri v. N.A.O.C. Ltd (2010) 14 NWLR (pt. 1213) 208.PER RAPHAEL CHIKWE AGBO, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

MRS. SALAMATU U. MOHAMMED Appellant(s)

AND

1. SEYEN KATYEN
2. KESHAL KATYEN Respondent(s)

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment): Both the appellant and respondents were resident in the same compound in Jos. Their relationship was, to put it mildly, hostile. On 11th February, 2011 the parties were involved in a melee. The Respondents were charged before the Hwolshe Area Court and convicted of assault. The appellant then proceeded to the High Court of Plateau State and claimed against the respondents jointly and severally in paragraph 16 of her statement of claim:-
“(1) N2.0 Million Naira general damages for assault and battery.
(2) N1,010.00 being special damages for the cost of treatment received as a result beating received from the defendants.
(3) Cost of this action.”

Pleadings were exchanged by the parties and the case went to trial.

In her considered judgment the trial judge found that the Respondents did indeed batter the appellant but on the issue of damages adjudged as follows:-
“..I say plaintiff in the case at hand caused or foisted upon herself what happened to her. Proven facts manifestly showed plaintiff continuously goaded the defendants by use of offensive words and even slander over a period of time; calling the defendants family infidels and thieves of a cooking stove, calling their mother a thief and a house girl. It is also a proven fact that on the day of the incident plaintiff continued in these verbal assaults on the defendants’ family, advancing towards the 1st defendant goading him to the point of no return. I think in all due humility, to grant any form of damages to the plaintiff in these circumstances would be unconscionable. In my view the plaintiff foisted upon herself any damage that might have occasioned as a result of what happened.”

The learned trial judge proceeded thereafter to dismiss the claim in its entirety.
Not being satisfied with this judgment, the appellant filed this appeal. The notice of appeal contained three grounds of appeal to wit:-
GROUND ONE
The learned trial Judge erred in law when he held “I think, with the deepest respect that though, the Defendants indeed committed assault and battery against the plaintiff, the evidence discloses facts and circumstances that do not entitle the plaintiff to any damages whether general or special” and thereby occasioned miscarriage of justice.
GROUND TWO
The learned trial Judge erred in law when he held “I think the rigours of the criminal trial culminating in a conviction are enough punishment for the Defendants to learn their lesson. My holding therefore is that the plaintiff is not entitled to any damages and I award none” and thereby occasioned miscarriage of justice.
GROUND THREE
The learned trial judge erred in law when he held “the Plaintiff intentionally set out to provoke the Defendants, and when the Defendants fell (sic) into the trap she triumphantly announced she has succeeded … of a truth the Defendants were too naive and too simple to recognize that the only antidote to the evil behavior of the plaintiff lie in paying heed to the law and that is to report the matter to the police whose duty it is to prevent breach of peace,” and thereby occasioned miscarriage of justice.

Briefs of argument were filed and exchanged. From the grounds of appeal the appellant distilled two issues for determination to wit:-
(1) Whether the learned trial Judge was right to have dismissed the claim of the plaintiff and refused the award of damages to the Plaintiff after having found that tort of assault and battery were committed against the Plaintiff/Appellant (Ground 1 of the Notice and Grounds).
(2) Whether conviction in a criminal trial in the absence of award of compensation and naivety of a party or parties are legally cognizable reasons for refusal of award of damages in favour of a party after proving her case before a court. (Grounds 2 and 3 of the Notice and Grounds).

From the same grounds of appeal the respondents distilled one issue for determination to wit:-
(1) Whether, having regard to the evidence on record, the learned trial judge was right to have refused to award damages to the appellant.

I shall adopt for the purposes of this appeal issue one of the appellant’s issues for determination as comprehensive as it subsumes appellant’s issue two and Respondents’ lone issue.
The appellant in her brief argued that once there is a breach of her rights there must be a remedy. The trial court having found that trespass to her person was committed the court had no option but to award the damages she claimed. Counsel cited Bary v. Eric (1998) 8 NWLR (pt. 562) 404 at 422, Badi v. Agyo (2003) All FWR (pt. 16) 815 at 841 and Anambra State Environmental Sanitation Authority v. Ekanem (2009) 13 NWLR (pt. 1158) 410 at 454. Counsel further argued that as rightly held by the trial court provocation was no defense in allegations of Assault and Battery. The trial court was wrong to have turned back and used the same provocation to ground her dismissal of the appellant’s claim. Counsel posited that R.C.C. v. R.P.C Ltd relied upon by the trial court was a decision on contract of tenancy and the principle of mitigation of contract contained therein is completely different from tortuous offences. Counsel further argued that conviction for a criminal offence is not a mitigating factor in a civil offence and that ignorance of the law is never an excuse.

The respondents’ counsel in answer argued that damages are not awarded on sentimental grounds and that the award of damages to a party is discretionary which discretion ought to be exercised judicially and judiciously. He cited Ogbiri V. N.A.O.C. Ltd (2010) 14 NWLR (pt. 1213) 208 at 225. He further argued that a court considering the award of damages ought to do so in the light of the evidence before it. He cited Gari V. Seirafina Nig. Ltd (2008) 2 NWLR (pt. 1070) 1 at 19. He argued that in the instant case the court reviewed exhaustively the evidence led before it before finally deciding to dismiss the claim for damages. He argued that the appellate court cannot avoid the exercise of discretion by a lower court just because it would have exercised that discretion differently. He cited S.P.D.C.N. Ltd v. Edankwe (2009) 14 NRLR (pt. 1160) 1 at 32. He cited with approval the dictum by Oguntade JSC in R.C.C. (Nig) Ltd v. R.P.C. Ltd. (2005) 10 NWLR (pt. 934) 615 at 638 where the learned jurist said thus:-
“A court would refuse to grant an unreasonable, unconscionable, exaggerated and oppressive claim for damages. Therefore it is an implicit consideration for the award of damages that damages claimed or awarded must be reasonable in the particular circumstance of each case.”

He argued that in the instant case the finding by the trial court that the appellant entrapped and goaded the appellant to a point beyond endurance into committing the act of battery was not challenged by the appellant. He therefore urged the court not to interfere with the refusal of the trial court in the light of the circumstances of this case to award damages.

The appellant has asked the court to set aside the judgment of the trial court, enter judgment for the appellant and grant her the reliefs sought. The trial court had found that the appellant had by her obnoxious disposition entrapped and goaded the respondents into the act of battering her. This finding was not challenged in this appeal. Rather the appellant had argued that provocation is not a defence in a charge of assault. That may be so. But it can be raised in mitigation of damages and the court in the exercise of its discretionary power ought to take that into account. The trial court has found the conduct of the appellant unconscionable and so do I.

My judgment is therefore as follows:-
(a) The judgment of the trial court is hereby set aside.
(b) The Respondents are hereby condemned to N50.00 (Fifty Naira) contemptuous damages for battery.
(c) The prayer for general and special damages is hereby dismissed.
(d) Parties are to bear their costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I have read in advance the leading judgment just delivered by my learned brother, R. C. AGBO, J.C.A. I am in full agreement with his reasoning’s and conclusion therein.
I also abide by the orders made regarding costs.

PETER OLABISI IGE, J.C.A.: I agree with the Judgment just delivered by my Noble Lord Agbo, JCA (PJ) including Order on costs.

Appearances

F.O. Shaibu with him S.A. Tafida, Bola Akor and G.M. KawamFor Appellant

AND

A.A. Adewole with him N.O. Adewole (Mrs.) and E.E. DuniyaFor Respondent