NIGERIA BANK FOR COMMERCE & INDUSTRY V. JOSEPH AJOLA OGBEMI & ANOR.
(2012)LCN/5416(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2012
CA/J/93/2006
RATIO
DAMAGES: THE CONCEPTS OF GENERAL DAMAGES
The law is trite that the concepts of general damages by nature are those damages which the law implies in every breach of contract and in every violation of a legal right. It is in other words a situation where the law addresses the loss or injury which flows naturally from the defendant’s act and which its quantum needed not necessarily be pleaded or specifically proved. It is generally presumed by law and therefore clearly distinguishable from special damages which concept required specific pleading and proof by evidence thereof. The case of Nwachukwu V Egbuchu (1990) 3 NWLR (Pt 139) 433 at 445 is relevant wherein Onu JCA (as he then was) in defining general damages said:
“it is the loss which flows naturally from the defendants act and its quantun need not be pleaded or proved as it is generally presumed by law. The principle of ubi jus ibi remedium will apply here – there is no wrong without a remedy.”
General damages in this concept is therefore that which the law implies or presumed to have accrued from the wrong complaint of, for the reason that they are its immediate, direct and proximate result. or such as did in fact result from the wrong, directly or proximately and without reference to the special character, condition or circumstances of the plaintiff. See the case of Oceanic Bank International (Nig.) Ltd Vs G. Chitex Industries Ltd (2000) 6 NWLR Part 661 P464 at 478.
Also in the case of Uhunmwangho V Uhunmwangho (1992) 2 NWLR (Pt 226) 709 at 714 this court per Akpabio JCA said:
“General Damages are damages which may be given when the court cannot point out any measure by which they are to be assessed except on the opinion of judgment of a reasonable man.” PER CLARA BATA OGUNBIYI, J.C.A.
WORDS AND PHRASES: MEANING OF PUBLIC SERVICE
The concept of the phase “public service of the federation” has succinctly been defined in the case of UTIH V EGORR 5 NWLR (Pt 153) 771 as being service of the federation in any capacity in respect of the Government of the Federation and it includes service as staff of any statutory corporation established by an Act of the National Assembly.
Section 24 of the Pensions Act, also defines Public Service as:
“…service under the Government of the Federation in a civil capacity or such other service in any organization specified in the Schedule 2 to the Act or such other organization as the minister may from time to time by order determine to be civil service for the purposes of the Act and service under any superannuation scheme in respect of which there is a reciprocal arrangement for the acceptance of service as qualifying service under the Act or any regulation made there under.”
The Bank in particular as in this case is on agency of the Federal Government since the Federal Government owns a controlling share therein. See the case of Adekoye V N.S.P.M.C. Ltd (2009) 5 NWLR (Pt 1134) 322 at 341.
Furthermore, the constitutional definition of the term “public service of the federation” supercedes and is supreme to any other definition by any other provisions, law or act of the National Assembly. See again the case of Adekoye V N.S .P.M.C. Ltd supra. PER CLARA BATA OGUNBIYI, J.C.A.
EVIDENCE: EFFECT OF UNCHALLENGED EVIDENCE
The law is trite and very well settled that unchallenged evidence are deemed admitted and ought to be acted thereon by the court before whom it is given. PER CLARA BATA OGUNBIYI, J.C.A.
APPEAL: CIRCUMSTANCES AN APPELLATE COURT WILL INTERFERE WITH THE AWARD OF DAMAGES BY THE TRIAL COURT
An appellate court does not make it its business to interfere with general damages awarded by the trial court unless it is satisfied that the trial Judge acted, in the award of such damages, upon some wrong principle or that the amount was so large or so small as to make it a completely erroneous assessment of damages. See Osondu co. Ltd v Akhigbe (1997) 7 SCNJ 1. PER JUMMAI HANNATU SANKEY, J.C.A
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
NIGERIA BANK FOR COMMERCE & INDUSTRY Appellant(s)
AND
1. JOSEPH AJOLA OGBEMI
2. NIGERIA LIFE & PENSIONS CONSULTANTS LIMITED Respondent(s)
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): The plaintiff/1st Respondent as staff of the Appellant was, vide Exhibit J04 compulsorily retired by the appellant from the appellant’s services on 30/7/1991. The Plaintiff/1st Respondent therefore became a pensioner after his retirement and was initially being paid his pensions by the appellant, and later by the 2nd defendant/2nd respondent in this appeal, a pension consultant engaged by the appellant.
In 2001, the 1st respondent herein as the plaintiff sued the appellant and the 2nd respondent also herein as the 1st and 2nd defendants respectively at the lower court contending that the defendants had refused to increase and pay his monthly pension in line with the various circulars issued by the Federal Government wherein his pension allowances were reviewed, and thus increasing the amount of his earnings.
The 1st respondent/plaintiff claimed that he was placed on pension after his retirement and his first payment was the sum of N532.02 per month, and that pursuant to a Federal Government circular Exhibit J05 his pension was reviewed and increased to N585.22 Per month in 1992. He also claimed that based on two subsequent Federal Government circulars marked Exhibits J06 and J07 respectively, the pension allowance was further increased by 45% and eventually to the sum of N1,306.97 per month.
That Exhibits J08, J09, J010, J011, J012 and J013 are pay slips of the 1st respondent evidencing the increment in his pension allowances based on the said Federal Government circulars J05, J06 and J07.
The plaintiff/1st respondent’s claims against the 1st and 2nd defendants jointly and severally of the court below were as per the reliefs sought for an paragraph 21 at pages 5 and 6 of the record of appeal; which reproduction is as follows:
“21. That the non-implementation by the first and second defendants jointly and severally of the Federal Government circulars/letters as stated above has caused untold hardship to the plaintiff. WHEREOF: The plaintiff claims against the Defendants jointly and severally as follows:
(i) The sum of N279,599.98 (Two Hundred and Seventy-Nine Thousand Five Hundred and Ninety-Nine Naira, Ninety Eight kobo) being cumulative pension arrears between 1st January, 1999 and 30th October, 2000 which the Defendants had jointly and severally failed, neglected and/or refused to pay the plaintiff.
(ii) Monthly pension of N36,341.94 (Thirty Six Thousand, Three Hundred and Forty-One Naira, Ninety-Four Kobo) with effect from 1st November, 2000, until any further review.
(iii) The sum of N200,000.00 (Two Hundred Thousand Naira) being general damages for all the hardship that the plaintiff was made to suffer as a result of the Defendants’ action, as stated above.
(iv) The cost of this action.”
On 28/7/2004, the lower court found and entered judgment in favour of the plaintiff/1st respondent in terms of the reliefs sought for on his statement of claim. Being dissatisfied with the decision of the trial court, the 1st defendant/appellant has now lodged an appeal against the said judgment and filed a notice of appeal on the 2nd August 2004 of pages 107-111 of the record of appeal wherein he raised seven grounds of appeal. The grounds of appeal are hereby reproduced without their particular:
Ground 1
The learned trial judge erred in law, when having agreed that the public documents tendered by the plaintiff, were uncertified, Proceed to hold that “…since all the documents pleaded are admissible as Exhibits in evidence they cannot be expunged in this judgment… However the Court of Appeal held that such documents are admissible without certification.” And hereby occasioned a miscarriage of justice.
Particulars of Error -supplied
Ground 2
The learned trial judge misdirected himself in law when having held, that the plaintiff’s employment is governed by the bank’s conditions of service, he proceeded to find that: “Thus impliedly the plaintiff is entitled to the retirement benefits including pension having regard to period the plaintiff worked for the defendants for eighteen years in my view section 3(1) of the Pensions Act applies” and thereby occasioned a miscarriage of justice.
Particulars of Error – supplied
Ground 3
The learned trial judge misdirected himself on the facts, when he held that the “…plaintiff has shown by credible evidence that defendant is a government parastatal and therefore bound by Federal Government policies and pensions review” and thereby occasioned a miscarriage of justice.
Particulars of Error – supplied
Grounds 4
The learned trial judge erred in law, when he held that the 1st Defendant is a parastatal of the Federal
Government, and therefore as an employee of the 1st defendant, the plaintiff was “…in the public service of the defendant under section 318 of the 1999 Constitution,” and thereby occasioned a miscarriage of justice.
Particulars of Error – supplied
Ground 5
The learned trial judge, misdirected himself in law, when he held that the 1st defendant is bound by the Federal Government, circulars on pension review and thereby occasioned a miscarriage of justice.
a) There was no privity of contract between the plaintiff and the Federal Government, or the Federal Government and the 1st defendant, in respect of Exhibits J05-J07, J015-J018.
b) The plaintiff is a stranger to the Exhibits J05-J07, J015 -J018, and cannot place reliance on it even if made for his benefit.
c) The plaintiff’s case is predicated on the documents issued by the Federal Government.
Particulars of Error – supplied
Ground 6
The judgment is against the weight of evidence.
Ground 7
The trial judge erred in law in awarding the sum of N200,000 as general damages against the 1st defendant, and thereby occasioned a miscarriage of justice.
Particulars of Error – supplied
The record of appeal was transmitted to this court on the 16th May, 2006 and while the appellant’s brief filed on 7th December, 2006 was by the order of this court deemed filed on the 20th October 2011, that of the 1st respondent was also by the order of this court made on the 11th April, 2012 deemed filed and served.
On the said date the 11th April, 2012 when the appeal was called up for hearing, both counsel Messrs S.S. Obende in company of M.A. Dawan Esq. represented the appellant while Mr. A.A. Ibrahim appeared on behalf of the 1st respondent. The 2nd respondent who was however on notice neither came to court nor was it represented by any counsel. No brief of argument was also filed on its behalf. On behalf of the appellant and 1st respondent the counsel adopted and relied on their respective briefs of arguments with the former submitting favour of allowing the appeal, while the latter called upon this court to dismiss same as lacking in merit.
From the seven grounds of appeal, four issues were distilled for determination by the appellant. On behalf of the 1st respondent however, only one issue was raised. The reproduction of the appellant’s issues is as
follows:
1) Whether the award of N200,000 as general damages is justifiable? Relates to Ground 7.
2) Whether the learned trial judge was right in relying on the public documents in its judgment? Relates to
Ground 1.
3) Whether the plaintiff is entitled to claim benefit of the circulars issued by the Federal Government?
Related to Grounds 5 and 6.
4) Whether the learned trial judge was right in holding that the plaintiff is in the public service, and that section 3(i) of the Pensions Act is applicable? Relates to grounds 2, 3 and 4.
The lone issue distilled on behalf of the 1st respondent is all encompassing of the appellant’s four issues and states as follows:
Whether the plaintiff has successfully established his claim on the balance of probabilities of warrant the lower court to have granted all the reliefs. (To cover all the 7 grounds of appeal).
From all indications and with due consideration to the entire formulations by the appellant having regard to the seven grounds of appeal, it is apparent that the formulation of four issues from the grounds amount to mere fragmentation of issues which could all conveniently be subsumed into one main formulation as per that arrived at by the learned 1st respondent’s counsel. In other words, on a careful analysis and scrutiny of the appellant’s four issues, they could all come under the cover of the issue formulated by the 1st respondent. This is because the so called four issues are more of a subdivisions and not eligible to stand independently of the other. I deem it fit in the circumstance therefore to take all the appellant’s issues together and treat each as subdivision but under the umbrella of the main issue as formulated by the 1st respondent.
The 1st question raised by the appellant relates to the claim of the sum of N200,000.00 damages for all the hardship that the plaintiff was made to suffer as a result of the defendants action. Counsel submitted the plaintiff’s failure to plead and lead evidence on the nature of hardship suffered. That even paragraph 21 of the statement of claim in the absence of any evidence led thereon is also deemed abandoned. That it is a mandatory requirement that evidence be adduced in proof of the damages to assist the court in assessing the quantum to be awarded. Cited in support is the case of Afribank (Nig.) Plc V. A.I. Invest Ltd (2002) 7 NWLR (Pt 765) 40 of 68. That in an action predicated on contractual relationship, a claim for general damages is an anathema. That general damages as a relief is unknown to a claim predicated on a contractual relationship between master and servant. See Stragbog Const. Nig. Ltd v Adeyefa (2001) 15 NWLR (Pt 735) 1 at 26.
That where the wrong, damage or loss is not so established, it is submitted that the loss complained of would be held to be too remote, for the court to make an award of general damages. See Gonzee (Nig.) Ltd. V. DERDC (2005) 13 NWLR (Pt. 943) 634 at 648 and 650. That the lower court did not undertake any form of appraisal of the facts or evidence as to justify the award of N200,000.00.
Counsel on the premise urged this court to interfere in an award of damages where such award is unjustifiable. That the pronouncement made by Oguntade (JCA) as he then was in the case of C.B.N. V Ahmed (2004) 5 NWLR (Pt 897) 591 at 607 is very applicable to this case wherein the plaintiff intrinsically links the absence of any attempt to explain the award of N200,000.00 as general damages to the absence of any evidence. That the award of general damages ought not therefore be allowed to stand.
On the 2nd complaint raised the learned counsel submitted that the substance of the plaintiff’s claim fundamentally resolved on Exhibits J015, J016, J017, J018 and J019. That these are circulars variously issued by the office of the Establishment and Management Services of the Presidency, National Salaries, Income and Wages Commission, and the office of the Head of Civil Service of the Federation. That the documents were tendered and marked as exhibits without objection. The question begged by the counsel therefore was whether the admissibility of the documents without objection forecloses the power of the court to expunge the said documents from its record as Exhibit or to discountenance it in its judgment. In citing the case of Modile v Gov. Lagos State (2004) 12 NWLR (Pt. 887) 354 at 377 the learned counsel argued that it is immaterial that the admission of the Exhibits was by the consent or default of the parties complaining, in failing to raise the objection of the appropriate time. That a court is bound at all times, only to act on the basis of admissible evidence and not otherwise. That once a document is absolutely inadmissible, the issue of weight to be attached to the document cannot arise. That the trial court is empowered irrespective of an earlier ruling on the question of admissibility to suo motu raise the issue, if it turns out that the document is not in any event admissible. Learned counsel to buttress his submission cited the case of Shanu v Afribank Plc (2002) 6 SCNJ 454 at 475-476 Per Uwaifo JSC.
Counsel therefore urged this court on the applicable judicial authorities to find that the documents being public in nature are provable only by their certified true copies. That the failure to certify the exhibits had rendered them legally inadmissible, and liable to be expunged or discountenanced. This, counsel reiterated especially when the exhibits form the basis of the learned trial judge entering judgment in favour of the plaintiff. That the legal effect is to render the documents inadmissible and cannot under any circumstance constitute evidence in the case, irrespective of the fact that the documents were admitted without objection. Learned counsel cited in support the cases of Ikaye v. Ofune (1985) 2 NWLR (Pt.5) 1 and Olukade v. Alade (1976) 2 SC 183. A further related authority is the case of National Investment and Property Co. Ltd. v. The Thompson Organization Ltd. (1969) 1 All NLR 138 at 142 – 143.
Learned counsel in a gruesome submission emphatically emphasized that the failure by the lower court to expunge or discountenance the circular tendered as Exhibits J05 – J07, J015 – J019 has occasioned a miscarriage of justice, as no other evidence exist upon which the plank of the plaintiff’s claim can be sustained. Counsel in the circumstance urged us to resolve the point in the negative and set aside the judgment of the lower court by allowing the appeal.
The third complaint questions the propriety of the plaintiff/respondent’s entitlement in claiming benefits of the circulars issued by the Federal Government. Submitting on this point, the learned appellant’s counsel related closely to the several circulars issued by the Federal Government on pension policy matters and contended that the plaintiff/respondent did not plead or lead evidence to show the basis for the defendant/appellant’s to comply with the said circulars. That from the contents of Exhibits J05-7, 15-19, the plaintiff is not shown to be a party to the said documents. Counsel also insisted the absence of the plaintiff leading evidence to show that any of the said Exhibits J05-J07 , 15-19 are addressed, or delivered to the 1st defendant, to make the 1st defendant bound to comply. That in the absence of this evidence the counsel submitted the error by the trial judge to have held at page 102, of the record of appeal that the 1st defendant “therefore is bound by the Federal Government policies on pensions review”. Counsel submitted the trite law that a person who is not a party to an agreement or a contract cannot enforce it, even if the contract was made for his benefit. Reliance was copiously made on the case of Union Beverages Ltd. V. Pepsi Cola International Ltd. (1994) 3 NWLR (Pt.330) 1 Per Adio JSC. That though the plaintiff sought to take benefit of the said circulars, he cannot enforce the contents of the same, not being a party to the exhibits. That the plaintiff cannot therefore seek to enforce the content of the circulars to form a basis for the action, and hence his reliance on the circular must therefore fail.
The 4th and last complaint relates to the provision of Section 3(1) of the pensions Act and its applicability to the plaintiff. In other words whether the trial court was right in holding that the plaintiff is in the public service and therefore comes within the said provision of the Pensions’ Act?
The appellant’s counsel submitted that on the basis of the state of pleadings, and having regard to the plank of the plaintiff’s case being predicated on the several circulars issued by the Federal Government, the issue of whether the plaintiff was entitled to benefit from pension, in accordance with the Pensions’ Act, and as a corollary the circulars becomes material. That to place reliance on the several circulars issued by the Federal Government, it was incumbent on the plaintiff to show that he is covered by the provision of the Pensions’ Act. That the Act is the applicable law regulating matter of pensions in Nigeria.
Copious reference was made to section 1(i) of the Act which counsel submitted expressly regulates the issue of pension on retirement, to pensioners predicated on the public service of the federation.
That to be entitled therefore to claim benefit of the Act, or the circulars issued pursuant to the statute, it is mandatory that the plaintiff established that his employment is of the public service of the federation.
That the court is bound to limit itself and interpret within the words of the law maker. Counsel cited the authorities in the cases of Ogbebor V Danjuma (2003) 15 NWLR (Pt. 843) 403 or 426 and Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) 169. Counsel also cited section 24 as applicable and which defines the concept of public service. That this definition does not take into account any intention to place reliance on the constitutional definition of the term “Public Service of the Federation”. That section 318(1)(e) of the constitution is therefore of no consequence in this regard. The case of Okomu Oil Palm V Iserhieurhien (2001) 3 SCNJ 79 at 96-97 was cited in support. That Schedule 2 of the Pensions’ Act which enumerates organizations which are declared as civil service for the purpose of applicability of the law did not list the defendant as one of such organizations under the Act. That the applicability of the Pensions Act or any circular mode sequel to the Act are not binding on the 1st defendant/appellant. That there is no provision in the Nigerian Bonk for Commerce and Industry Act wherein reference is made to pension, for purposes of ascertaining the applicability of the Pensions Act, or circulars made pursuant to the Act.
Counsel further submitted that the issue before the lower court substantially revolved on whether the circulars were applicable to the 1st defendant’s pensioners, when the organization is not listed by section 15(2), having adopted its independent pension scheme. That Exhibit J04 which states that arrangements were made for plaintiff’s retirement benefits was never suggestive that the applicable regulations were the Federal Government circulars. That the said exhibit only made reference to the existing staff conditions of service of NBC I. That the plaintiff did not predicate his claim of his pension on the basis of the conditions of service, but on the circulars. That the trial judge’s finding on this point is erroneous as it is not borne on evidence and therefore liable to be impeached. That the trial judge also indulged in importing into the Exhibits J01 and J04, matters not expressly contained therein.
That it is incumbent by law that the plaintiff should produce the said bank regulations and conditions of service that entitled him to the application of pension review in accordance with the Federal Government’s circulars. That no such regulation or conditions of service were tendered before the lower court. That in the absence of the conditions of service or any regulations applicable to the plaintiff’s employment, counsel submitted that the plaintiff had failed to prove his claim, and hence his suit ought to therefore be dismissed. Relying on the case of Jack V. Whyte (2001) 3 SCNJ 55, counsel reiterated the burden placed on the plaintiff to prove the applicable conditions of service since he asserts the affirmative.
That by claiming to be in public service, it is also mandatory that plaintiff established the basis of his employment, vis a vis the Federal Civil Service Commission. That section 15(2) of the Pensions’ Act, lists organizations declared as public service under the Act. By excluding the appellant from one of the mentioned organizations, it means that the Act did not contemplate the appellant to fall within the said Act.
That the power to determine matters relating to pensions and also, the amount payable or review some falls within the exclusive jurisdiction of the appellant’s Board of Directors. That if the Pensions’ Act does not include the appellant as one of the institutions regarded as public service, no reference made to the constitution can therefore avail the appellant. That in a similar vein the fact that the plaintiff was in the employment of the defendant being a statutory corporation, it does not per se make the plaintiff a public officer, neither does that fact, automatically entitle the plaintiff to pension on the basis of the Federal Government circulars. Reliance was further made to the case of Ogieva V. Igbinedion (2004) 14 NWLR (Pt 894) 467 at 484-485. That the plaintiff pleaded and tendered Exhibit J01, but did not produce regulations and conditions of service of his employment. Counsel submitted that the failure to produce the document should call for the invocation of section 149(d) of the Evidence Act. He cited in support the case of F.M.F. Ltd V. Ekpo (2004) 2 NWLR (Pt 856) 100 at 128-129. That this court is urged to find that the plaintiff is bound by the conditions of service. That the plaintiff cannot rely on the circulars from the Federal Government, unless he is able to show that the bank’s regulations and conditions of service can accommodate policy or circulars from the Federal Government, which are to be binding on the appellant.
In summary the counsel therefore submitted in favour of allowing the appeal because the plaintiff did not lead evidence, or prove his entitlement to general damages for purpose of justifying the award.
Furthermore that the documents relied upon by the plaintiff and marked as Exhibits J05 to J013 were public documents, which by nature being secondary evidence are inadmissible having not been certified as true copies of the originals. That the lower court in the circumstance acted in error in placing reliance on documents which were inadmissible as a base for the award.
That the appellant is not bound by the circulars from the Federal Government, on review of pensions not being one of the organizations listed in the 2nd schedule to the Pensions’ Act. That the plaintiff did not prove that the appellant is one of the parastatals to which Exhibits J05 to J013 were addressed to. Furthermore that the plaintiff and the defendants were not parties to Exhibits J05 to J013, there being no privity of contract, and the plaintiff cannot take advantage of the circulars so as to enforce them even if made for his benefit.
That the Pensions Act specifically provides for organizations that qualify as public service of the federation, in order that review or harmonization of pension matters should apply to them.
Finally that the Nigerian Bank for Commerce and Industry Act specifically confers powers on matters of pension and retirement benefits on the Board of Directors. There was no evidence that the Board did adopt or consented to the applicability of Government’s circulars on pension matters.
The 1st respondent’s counsel in opposing the appeal deductively submitted and urged us to hold that on preponderance of credible evidence at the lower court the plaintiff/1st respondent had proved his case to warrant the granting of all the reliefs sought for against the defendant/appellant. Counsel therefore proceeded to restate the reasons predicating his submission as follows:
That general damages are such as the law will presume to be direct natural or probable consequence of the act complained of, and are such as the court will award in the circumstance of a case, in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man, and which need not be proved by evidence. That the measure of general damages in terms of money is a matter for a judge see Ononuwa Vs Wahabi (1974) 4 SC 37.
That assuming that Exhibits J05 – J07 and J015 – J019 were wrongly admitted, its wrongful omission of one cannot be a ground for the reversal of the decision of the lower court, in that the evidence so admitted cannot reasonably beheld to hove affected the court’s decision because such decision would have been the some if such evidence had not been admitted.
That the 2nd defendant/2nd respondent as agent and manager of the 1st defendant/appellant has admitted liability in his letter to the plaintiff /1st respondent’s Exhibits J020 and J021 and are bound to implement Federal Government circulars on pension review.
That the 1st defendant/appellant is a statutory corporation crested under the Nigerian Bank for Commerce and Industry Act, wherein the Federal Government owns controlling shares or interest and has the status of public service conferred by Section 318 (1)(e) and (g) of the Constitution 1999.
That the plaintiff /respondent is pensionable public servant and as a public officer, is entitled to pension under the Pensions’ Act, and also any review in accordance with Section 173(3) of 1999 constitution.
That pension is a creation of law, and is not an outcome perse of contract between the plaintiff/respondent and 1st defendant/appellant as to vary and/or alter the provisions of the Pensions’ Act applicable to all pensioners under the said Act.
The first complaint lodged by the appellant questions the award of the general damages awarded the 1st respondent which the appellant contended was not proved by evidence. As a pre-requisite to the resolution of this point it is pertinent to restate the general principle of law relating claim of general damages. The law is trite that the concepts of general damages by nature are those damages which the law implies in every breach of contract and in every violation of a legal right. It is in other words a situation where the law addresses the loss or injury which flows naturally from the defendant’s act and which its quantum needed not necessarily be pleaded or specifically proved. It is generally presumed by law and therefore clearly distinguishable from special damages which concept required specific pleading and proof by evidence thereof. The case of Nwachukwu V Egbuchu (1990) 3 NWLR (Pt 139) 433 at 445 is relevant wherein Onu JCA (as he then was) in defining general damages said:
“it is the loss which flows naturally from the defendants act and its quantun need not be pleaded or proved as it is generally presumed by law. The principle of ubi jus ibi remedium will apply here – there is no wrong without a remedy.”
General damages in this concept is therefore that which the law implies or presumed to have accrued from the wrong complaint of, for the reason that they are its immediate, direct and proximate result. or such as did in fact result from the wrong, directly or proximately and without reference to the special character, condition or circumstances of the plaintiff. See the case of Oceanic Bank International (Nig.) Ltd Vs G. Chitex Industries Ltd (2000) 6 NWLR Part 661 P464 at 478.
Also in the case of Uhunmwangho V Uhunmwangho (1992) 2 NWLR (Pt 226) 709 at 714 this court per Akpabio JCA said:
“General Damages are damages which may be given when the court cannot point out any measure by which they are to be assessed except on the opinion of judgment of a reasonable man.”
Contrary to the submission by the learned appellant’s counsel, it is clear from the foregoing authorities that it is not a mandatory requirement that evidence be adduced in proof of general damages. See also the case of Amaye V A.R.E.C. (1990) 4 NWLR (Pt 145) 422 at page 451 wherein it was held that:-
“general damages may be awarded to assuage such a loss which flows naturally from the defendant’s act. It need not be specifically pleaded. If arises from the inference of law and need not be proved by evidence. If suffices if it is generally averred. They are presumed by the law to be the direct and probable consequence of the act complained of unlike special damages it is generally incapable of substantially exact calculation.”
The foregoing authority serves a clear-cut explanation on the phrase that general damages need not be pleaded. The law generally requires that evidence be given on facts pleaded. The absence of pleading therefore presupposes that no evidence is required to be taken thereon.
At page106 of the record of appeal for instance, the trial court found and held as follows:
“Having carefully considered all the evidence adduced by the parties in this suit, I am satisfied that the plaintiff has successfully established his claim on the balance of probabilities. Accordingly I hereby grant all the reliefs sought to wit the defendants jointly and severally liable to pay to the plaintiff:
1. ……………………..
2. ……………………..
3. The sum of N200,000.00 damages based on the principle in awarding damages in the case of COMMISSIONER OF POLICE ONDO STATE V. OBOLO (1989) 5 NWLR (Pt.120) 130 accordingly.”
The learned appellant’s counsel in his submission levied the absence of proof of damages, also that the plaintiff /1st respondent’s action was predicated on contractual relationship which counsel argued cannot give rise to general damages. With reference to paragraphs 8 – 21 of the statement of claim, the graphic scrutiny of the plaintiff’s claim is very clear and unambiguous: that is to say on harmonization of pension and further review of pension rates based on Federal Government circulars issued on review of pension benefits.
As rightly submitted by the learned 1st respondent’s counsel, the claim is centered on refusal of the defendant/appellant to implement or comply with the circulars of the Federal Government on the review of the amount payable to the plaintiff as pension.
With reference to the record of appeal at pages 75-80 the plaintiff /1st respondent testified as PW1. In his testimony, the witness narrated and gave a very vivid evidence of how the 1st defendant refused to review his monthly pension rates in line with the Federal Government circular, Exhibit J020 which the witness alleged was within the knowledge of the 1st defendant/appellant.
Specifically and in his evidence the plaintiff at page 76 of the record testified thus and said:
“I have written the 2nd Defendant in November, 1999 drawing the attention on these pleaded circulars of the Federal Government calling for harmonization of pension. As agents of the 1st respondent I wrote to them. This is their reply dated 15/12/99 Exhibit J020”.
The contents of Exhibit J020 is very relevant and the reproduction will reveal a gruesome insight:
“RE: HARMONIZATION OF PENSION AND FURTHER REVIEW OF PENSION RATES
Your letter dated 15/11/99 in respect of the above refers.
We are aware of the circulars mentioned in your letter under reference and we have discussed the implication of the circulars with your former employer, the Nigerian Bank for Commerce and Industry (NBCI).
Please note that NL&PC cannot implement the contents of any of the circulars mentioned in your letter except there is a directive from NBCI to implement. As at now, the NBCI’s Scheme Fund level is very low and the Bank is making efforts to get the scheme funded adequately.
The changes in your pensions benefits will be effected as soon as there is enough fund to meet the accrued liabilities.
Yours faithfully.
(signed)
A.O. KOLAWOLE
GENERAL MANAGER (TECHNICAL)”.
I hasten to add that Exhibit J020 is a clear confirmation that the plaintiff/1st respondent’s claim and complaint are firmly centered on 1st defendant/appellant’s refusal to implement or comply with circulars of the Federal Government on review of pension payable and not on any other form of contractual relationship as deliberately sought to portray by the defendant/appellant. This I say because the makers of Exhibit J020 are the agents of the defendant/appellant and acting on their behalf and with their full authority from the tone of the letter. There has been no denial of such holding out by the defendant/appellant.
The question of pension benefits is a statutory provision by law and which is constitutionally covered by section 173(1) and (2) of the 1999 Constitution as follows:
“173(1) Subject to the provisions of this Constitution, the right of a person in the public service of the federation to receive pension or gratuity shall be regulated by law.
(2) Any benefit to which a Person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or allowed to his disadvantage except to such extent as is permissible under any law, including the code of conduct”.
It was submitted on behalf of the 1st defendant/appellant on the one hand that the circumstances under which the plaintiff /respondent left the service of the appellant does not fall into any category of section 3(1) of the Pensions’ Act to enable him benefit from the provisions. That he should not therefore benefit from the said circulars especially in the absence of listing the defendant as one of the organizations per S.15(2) of the 2nd Schedule of the Act wherein the appellant was not bound by the Pensions Act and the circulars. That the plaintiff /1st respondent did not also show that section 3(1) of the Pensions’ Act entitles him to pension. That the issue before the lower court substantially revolved on whether the circulars were applicable to the 1st defendant’s pensioner’s, when the organization is not fisted by section 15(2), having adopted its independent pension scheme.
In his submission on the other hand the plaintiff/1st respondent contends that his employment falls within the public service of the federation.
The next question that begs for answer is whether the plaintiff /1st respondent’s status comes within the public service definition? The answer to this question would call for a referrer to the basics. In other words reference ought to be made to Exhibit J04 the letter of retirement of the plaintiff which the lower court reproduced in part at page 102 of the record. Also of page 102 of the same record, the court on Exhibit J04 said this amongst others:
“The letter is primary documentary evidence admissible under section 93 of the Evidence Act. By this letter the plaintiff was retired based on approval of the Federal Government to have change in the defendant bank regarding restructuring, reorganization and rationalization. The letter also clearly shows the Board of Directors of the 1st Defendant take directive from the Federal Government”.
This conclusion which was arrived at by the trial court is well settled and accepted in the absence of any appeal against such. This was as rightly submitted on behalf of the 1st respondent by his counsel.
The concept of the phase “public service of the federation” has succinctly been defined in the case of UTIH V EGORR 5 NWLR (Pt 153) 771 as being service of the federation in any capacity in respect of the Government of the Federation and it includes service as staff of any statutory corporation established by an Act of the National Assembly.
Section 24 of the Pensions Act, also defines Public Service as:
“…service under the Government of the Federation in a civil capacity or such other service in any organization specified in the Schedule 2 to the Act or such other organization as the minister may from time to time by order determine to be civil service for the purposes of the Act and service under any superannuation scheme in respect of which there is a reciprocal arrangement for the acceptance of service as qualifying service under the Act or any regulation made there under.”
The Bank in particular as in this case is on agency of the Federal Government since the Federal Government owns a controlling share therein. See the case of Adekoye V N.S.P.M.C. Ltd (2009) 5 NWLR (Pt 1134) 322 at 341.
Furthermore, the constitutional definition of the term “public service of the federation” supercedes and is supreme to any other definition by any other provisions, law or act of the National Assembly. See again the case of Adekoye V N.S .P.M.C. Ltd supra. It follows therefore that the definition of “public service of the federation” contained in section 318 (1)(e)(g) of the constitution which is supreme over any definition ought to be applicable. Hence the submission and contention by the learned appellant’s counsel with all respect has failed to capture the supremacy of the constitution in this respect. The said section 318 (1)(e)(g) is supreme over any definition as rightly submitted by the learned 1st respondent’s counsel, including that of section 24 of Pensions’ Act.
The reproduction of section 318(1)(e) and (g) is relevant and state:
“Public service of the federation” means the service of the federation in any capacity in respect of the government of the Federation, and includes service as
(a) ……………………..
(b) ……………………..
(c) ……………………..
(d) ……………………..
(e) Staff of any statutory corporation established by an Act of the National Assembly
(f)
(g) ………………….
(h) Staff of any company or enterprise in which the government of the federation or its agency owns controlling shares or interest… ”
It has been restated earlier in the course of this judgment that questions relating to pension benefits are statutory in nature as provided by law and is constitutional by section 173(1) and (2) of the constitution. In the light of the foregoing and as rightly found and arrived at by the learned trial judge, by the provisions of section 3, 4, 13 and 17 of the NBCI Act, a parastatal under the 1st Defendant is in the public service of the federation under section 318 of the 1999 constitution.
On the question whether the defendant/appellant is one of the organizations listed under Section 15(2) so as to come within the circulars in question, further reference should be related to the averment made by the plaintiff /1st respondent of paragraph 2 of his statement of claim of page 3 of the record of appeal wherein it states:
“2. The first Defendant is a statutory cooperation of and founded by the Federal Government of Nigeria and a body corporate with perpetual succession having its zonal office at Jos, and doing business in Jos, Plateau State, within the jurisdiction of the Honourable Court.”
Section 5(3) and (4) of the Nigerian Bank for Commerce and Industry Act also provides thus:
“5(3) The share capital of the Bank shall be subscribed by the Government and the Central Bank.
(4) The proportion of the share participation of the Government and the Central Bank shall be sixty percent and forty percent respectively or such other proportion as the National Council of Ministers may direct”.
By the provision of section 5(4) above, it is evidently clear that the Federal Government and its agency (the Central Bank) owns controlling share or interest.
Section 1(1) of the Pensions’ Act also provides that:
“subject to this Act, any pension or gratuity granted hereunder to any retirement from the public service of the Federal Government shall be computed on the final pay of the pension entitled thereto and in accordance with the provisions of the first Schedule to this Act.”
From the foregoing deductions, it is clear cut and settled therefore that the issue of pension on retirement to pensioners is predicated on the public service of the federation.
Furthermore, reference need also be closely made to the evidence adduced of the lower court and relating same to the response by the defendant/appellant in respect thereof.
Clearly specified on the record of appeal is the evidence of the plaintiff/1st respondent which speaks volume and for itself. This was a witness who testified as to his being placed on pension by the 1st defendant/appellant and was paid an initial sum of N532.02 per month as his first pension; he also gave evidence of a steadily monthly increase in his pension by the 1st defendant and tendered Exhibits J08 – J013 at pages 14-19 of the record of appeal. The exhibits did not only establish the monthly pension paid by 1st defendant/appellant but went further to confirm that the plaintiff/1st respondent’s monthly and quarterly pensions were increased by the 1st defendant/appellant according to and in line with Federal Government Circulars on pension rates review. At pages 75-76 of the record for instance, the plaintiff as PW1 said thus:
“As at 1991 my emolument was N17,806.00 per year. While I was retired I was advised that I was placed on pension eventually I began to receive pension by the 1st Defendant. My first pension was N532.02 per month.
Subsequently based on circular issued at the confines of Federal Government of Nigeria every pension was increased by 10% and the amount was raised to N585.22 per month in 1992. This is the circular slated 22/7/92 (Exhibit J05).
After that increment there was another increment of 45% based on yet another circular by the Federal Government, I received more money because another circular dated 20/1/1994 which was not based on percentage but range on salary. The two circulars are Exhibits J06 and J07 which I identified. When the two circulars were implemented my monthly pension further increased to N1,306.97 per month.
I can identify some of the pay slip in collecting my pension are 1st defendant dated 18/10/92 (Exhibit J08.
Exhibit J09 dated 25/8/94 pay slip dated 9/12/92 Exhibit J010 slip dated 19/12/98 Exhibit J011 pay slip for the period 1st March 1999 to 30th June, 1999 being quarterly pension EXHIBIT J012 PAY SLIP FOR THE PERIOD 1/10/99 TO 31ST December, 1999 Exhibit J013.”
The learned trial judge without any hesitation placed great reliance on the foregoing testimony which were hard facts and truth by reason of the absence of any denial or contradiction by the defendant/appellant. The evaluation certainly was to tilt the pendulum of the scale of justice in favour of the plaintiff /1st respondent. The law is trite and very well settled that unchallenged evidence are deemed admitted and ought to be acted thereon by the court before whom it is given.
In addition to the Exhibits J08 – J013 herein there is also the document Exhibit J014 which was the plaintiff’s pensioner’s identity card No. NBCI/JS/0082 evidenced at page 20 of the record of appeal.
There is no contrary evidence shown on the record of appeal that the defendant/appellant either contradicted or denied the existence or content of the documents Exhibits J08-J014 as relating to the payment of pensions and payment of increment of pension rates to the plaintiff /respondent based on the Federal Government circulars on review of pension.
Also of paragraph 9 of his statement of claim at page 4 of the record the plaintiff further pleaded thus and said:-
“9. The second defendant took over the payment of the pension with effect from January 1999. TAKE NOTICE that the plaintiff at the trial will rely on the pay-slips and identity card issued to him by the second Defendant. ”
It is intriguing to note that at page 86 of the record of appeal, the foregoing averment was admitted by the 2nd defendant when DW2, by name Cludius Olafemi Banji gave evidence and said:
“we started relating with the 1St defendant since January 1999.
We pay pensioners to the retirees of the 1st defendant based on the instruction given us by the said 1st defendant. We pay this pension quarterly. The plaintiff has been coming to collect his pension as directed by the 1st defendant.”
Also at page 76 of the record of appeal and in his further evidence, the plaintiff/respondent said:
“There was circular on eiliance (sic) pension. The 1st circular was dated 30/1/99 addressed to parastatals
Exhibit J015. The second circular dated 7/1/98 guideline of harmonization of Pension, Exhibit J016. Another circular dated 11/5/99 Exhibit J017, yet another circular 19/7/99 Exhibit J018. A circular dated 17/5/2000 Exhibit J019. I brought the 2nd defendant to court because they are the agents to and managers of pension matters of the 1st defendant. I have written to 2nd defendant in November 1999 drawing the attention on these pleaded circulars of the Federal Government calling for harmonization of pension. As agents of the 1st defendant I wrote to them. This is their reply dated 15/12/99 Exhibit J020.
For failure to implement harmonization I wrote them again and there was a response dated 2/11/2000 Exhibit J021”.
It is pertinent to re-iterate that Exhibit J020 which was dated 15th December, 1999 had been reproduced earlier in the course of this judgment. Exhibit J021 was also written by the same author who wrote Exhibit J020 which was almost a year later and he had this to say on the 2nd November 2000.
“HARMONIZATION OF PENSION AND FURTHER REVIEW OF PENSION RATES
Your letter of 15th June, 2000 and our subsequent telephone discussions on the above refers.
We wish to inform you that in the interim the management of the Bank has approved an upward review of existing pensions with effect from 1st October, 2000. The review is as indicated below.
CATEGORY OF PENSION RATE OF REVIEW
1. Pensions existing as at 31/12/98 50% upward review
2. Pensions existing as at 1/1/99-30/4/2000 10% Upward review
3. Deferred pensions to be adjusted as in 1 & 2
Please note that this is an interim measure pending approval of an acceptable rate of increase by the shareholders.
We shall keep you inform of the further developments.
Best wishes.
Yours faithfully,
For A.O. KOLAWOLE
GENERAL MANAGER (TECHNICAL)”
As rightly argued and submitted by the learned 1st respondent’s counsel, Exhibit J020 is a clear admission of liability by the 2nd defendant/respondent who is an agent and as pension manager of the 1st defendant/appellant to the accrued pension arrears owed to and as claimed by the plaintiff /1st respondent which was in line with the Federal Government circular on upward review of pension rates. This was also clearly in line with the provision of section 173(3) of the 1999 Constitution stating thus:
“173(3) Pensions shall be reviewed every five years or together with any Federal Civil Service Salary reviews, whichever is earlier”.
Recourse should also be had to the admission by the 1st defendant/appellant at the cross examination of DW1 of page 85 of the record of appeal wherein he said:
“The 2nd defendant is the bank agent in pension matters. Such relationship is back to 1999”.
With reference also to page 87 of the record of appeal at lines 28-32 the same 2nd defendant did admit being the author of Exhibits J020 and J021. Under cross examination for instance, this is what the witness Mr. Ekone said as DW2.
“Our organization is the author of Exhibits 20 and 21. Exhibit 21 was written 2nd November, 2000. It pension review contain herein has been paid as directed by the 1st defendant.
To the best of my knowledge we have not received any other letter for review of Pension up to this moment”.
It is a conclusive deduction that from the evidence of the said witness DW2, the 2nd defendant takes instructions from the 1st defendant and acted on the authority given thereto. It is also obvious that the documents Exhibits J020 and J021 supra were as a result of the letters written by the plaintiff/1st respondent to the 2nd defendant/2nd respondent as agent and manager of the 1st defendant’s on pension matters requesting for the upward review of his pension per the Federal Government’s rate as stated in his letter.
Furthermore and with careful and further scrutiny of the document Exhibit J020 the capturing of the following phrase:
“the changes in your pensions benefits will be effected as soon as there is enough fund to meet the accrued liabilities”
gives a very significant signal. In other words the interpretation is to the effect that the 2nd defendant as agent and manager of the 1st defendant/appellant’s pension matters admitted that there exist “accrued liabilities” against the 1st Defendant/appellant in respect of the plaintiff’s pension benefits.
With reference to the authority in the case of Graph Service (Nig.) Ltd. v. Chief Keke Ogbennegweke Eguage (1976) Vol. 6 E.C.S.L.R. 406 at page 411 their Lordships of the apex court per Idigbe JSC said:
“If a man admits that he said something or that he did something which is within his own knowledge, that is, of course, very strong evidence against him, unless he shows why he said so, if it was not true.”
Also in the case of Chief Chukwuemeka Odumegwu Ojukwu v. Dr. Edwin Onwudiwe & Ors. (1984) 2 SC 15 at 88 their Lordships of the apex restated succinctly the principle that, admission made either in words or in writing do not require further prove and that there is no better proof on that which an adversary had wholly and voluntarily own up.
Relying on the foregoing authorities, it goes without further saying that the defendant/appellant is bound by the contents of Exhibits J020 and J021 being an admission against its interest. This is predicated on the admission made on the exhibits therein by the agents of the 1st defendant/appellant and manager of its pension matters and therefore binding. This confirmation is conclusive in the absence of any denial by the 1st defendant/appellant or disassociation of itself from the Exhibits J020 and J021. Having held out themselves thus far, they cannot now be allowed to retract their footsteps. It is far too late in the day. The exhibits speak for themselves and the court is entitled to give effect to their clear grammatical meaning.
The learned appellant’s counsel had extensively submitted the inapplicability of Exhibits J05 – J07, J015 – J019 and argued that though the plaintiff sought to take benefit of the said circulars, he could not however enforce the contents, not being a party to the exhibits. That the plaintiff, learned counsel submitted cannot seek to enforce the contents as to form the basis for action and that the reliance thereon the circulars by the trial judge was erroneous.
At page 101 of the record of appeal the trial court held thus and said:-
“..since all the documents pleaded are admitted as exhibits in evidence they cannot be expunged in this judgment. What the court should do at this stage is to consider the weight attached to each document”.
As rightly submitted by the learned appellants’ counsel, it is not in dispute that the documents in issue are public in nature. By the provision of Section 109(a) of the Evidence Act they are documents forming the acts or records of public officers; the admissibility of such are therefore regulated by section 91(a) of the Evidence Act, which requires proof by certified true copies. The authorities of the cases of Witt & Busch Ltd. v. Godwill & Trust Inv. Ltd. (2004) 8 NWLR (Pt.874) 174 at 203 and Lambert v. Nigerian Navy (2006) 7 NWLR (Pt.980) 514 at 545 – 546 are all relevant in point.
It is trite law therefore that the admissibility of the documents without objection does not foreclose the power of the court to expunge them from its record as exhibits, or discountenance same in its judgment. The power of the court as rightly submitted by the learned appellant’s counsel is not therefore foreclosed. See the case of Okafor v. Okpala (1995) 1 NWLR (Pt. 374) 749 at 758 per Achike JCA (as he then was) where this court said:
“It is a matter of common sense and good practice, for a trial judge who had wrongly admitted certain evidence and on further consideration of the controversial evidence to expunge it in limine from the record where he is properly addressed on the issue, if he is satisfied that such evidence was erroneously admitted.”
See also Abdullahi v. Milad Kaduna State (2004) 5 NWLR (Pt.866) 232 at 250. Similarly in Eghobamein v. Federal Mortgage Bank Nig. (2002) 17 NWLR (Pt.797) 488 at P. 500 the apex court per Mohammed JSC opined thus:
“I do not have to repeat the clear provision of the law that a court of law can only determine an issue on legally admissible evidence. Courts have no discretion to act on evidence made inadmissible by the express provision of a statute even with the consent of the parties”.
Also in the case of I.B.W.A. vs. Imano Ltd. (2001) 3 SCNJ 160 at 177 Iguh JSC reiterated the same point and said:
“It cannot be over-emphasized that a court of law is expected in all proceedings between it to admit and act only on legal evidence. Accordingly where a trial court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So, too if a document is unlawfully received in evidence in the trial court, an appellate court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial did not object to its admission in evidence”.
See also Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65 at 119 on the same principle of law as enunciated. The said contested documents were public in nature and which as rightly submitted by the learned appellant’s counsel were not certified as provided by the Evidence Act.
With all due respect to the appellant’s learned counsel, the determination of this case should not only be limited in isolation to the Exhibits J05 – J07 and J015 – J019 but that they should be read in conjunction and taken together and in totality with, and in the light of the other evidence, oral and documentary. In other words, it has been well expounded earlier in this judgment by the evidence given by the plaintiff that his pension was gradually increased based on circulars issued by the Federal Government in 1992 and in 1994 and raising the rates from N532.02 and eventually the sum of N585,22 to N1,306.97 per month. This evidence was not shown to have been denied by the defendants. The documents Exhibits J08 – J013 were also tendered by the plaintiff/1st respondent being the pay slips showing the payments of his pension per those increments based on the Federal Government circulars on review of pension rates. Even in the absence of certification of the said exhibits it is clear from the evidence that the contents of the documents were those testified to in evidence. There was also no denial by the defendants of the testimony in respect thereof. The crowning evidence are again the documents Exhibits J020 and J021 wherein the plaintiff/1st respondent established, in the absence of any denial that he is entitled to the benefit of the circulars wherein the 1st defendant/appellant was very well aware of same and which binds them on matters relating to the Pension Acts governing same. The 1st defendant/appellant in holding out the 2nd defendant/respondent is very much aware of the circulars and the implications thereof.
Contrary to the submission by the appellant’s counsel therefore, the contention on the binding nature of the circulars on the 1st defendant/appellant is a sheer after thought as rightly submitted by the plaintiff/1st respondents’ learned counsel.
The defendant/appellant in the circumstance is estopped from denying its awareness of the circular on the oral evidence given and especially having admitted liability vide Exhibits J020 and J021 and hence had given the plaintiff/1st respondent the understanding it is bound to implement same to his benefit when funds became available.
It follows therefore that the learned appellant’s counsel was grossly misconceived by his submission that Exhibits J05 – J07 and J015 – J019 had affected the trial Court’s decision. This I say because regardless of the exhibits, there is overwhelming oral and documentary evidence as sufficient proof. The admission of the said contested documents I hold did not in any way have any bearing or effect on the judgment of the lower Court.
The provision of order 4 Rules (3) and (4) of the Rules of Court gives the Court the power to “draw inference of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order(s) as the case may require….” The said power, is not, by rule (4) however limited by notice of appeal. The plaintiff/1st respondent I repeat, with inference drawn to the evidence oral and documentary even in the absence of the contested exhibits had proved his case based on the sufficient facts established at the trial. That is to say in other words the oral testimony and the Exhibits J020 and J021 wherein the 2nd defendant/2nd respondent intimated not having “received any directive yet to comply with the increment stated in the circular…”
The appellant from all indications is seeking to take cover under the umbrella of technicality. The substance of the case is very clear and ought to be given its implementation. To do otherwise would not be justice. Exhibits J020 and J021 are admission against interest and serve as proof of the plaintiff /1st respondent’s case as per paragraphs 11-17 of the statement of claim.
The plaintiff on the balance of probability and on credible evidence had firmly established that his employment is of the public service of the federation and is in effect entitled to the claim as per his statement of claim and rightly arrived at by the trial court, which in my view was right in holding that the Pensions Act was applicable to the case at hand. The Court cannot therefore be faulted on its judgment.
In the result, all the auxiliary issues raised as well the main issue predicated thereon are resolved against the appellant.
The appeal herein is devoid of any merit and is accordingly dismissed. There shall also be costs of N50,000.00 (Fifty Thousand Naira) in favour of the 1st respondent against the appellant.
JUMMAI HANNATU SANKEY, J.C.A: I have had the advantage of a preview of the Judgment just read by my learned brother, Ogunbiyi, J.C.A.
A significant feature of general damages is that it needs not to pleaded. Thus, fact not pleaded requires no evidence to be adduced thereon. Consequently, contrary to the submission of learned counsel for the Appellant, the Respondent was not obliged to have adduced evidence in proof of his claim for general damages.
As opposed to special damages, general damages are a class of damages that are the direct, immediate and a contiguous result of a wrong visited to a party claiming such. It is not capable of exact calculation. General damages are those damages which the law implies in every breach and in every violation of legal right. It is the loss which flows naturally from the defendant’s act and its quantum need not be pleaded or proved seeing that it is, in general, presumed by law. The manner in which general damages are quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. See Acme Builders Ltd. v. Water Board & another (1999) 2 SCNJ 25 @ 43, Nwachukwu v. Egbuche (1990) 3 NWLR (Pt.139) 433 @ 445.
From the evidence before the lower Court, sufficient material was produced upon which the court based its assessment of the award of general damages. PW1, the Respondent, in his evidence before the Court, testified in vivid detail how, despite serial dealings with, and admissions by the 2nd Defendant, (1st Defendant’s agent), the 1st Defendant adamantly and obdurately refused to review his monthly pension rates in line with the Federal Government circulars which it was fully aware of. (Pages 75 – 80 of the Record and Exhibit J020 referred). I therefore hold that the award of N200,000.00 as general damages is justified in the circumstances of the case.
An appellate court does not make it its business to interfere with general damages awarded by the trial court unless it is satisfied that the trial Judge acted, in the award of such damages, upon some wrong principle or that the amount was so large or so small as to make it a completely erroneous assessment of damages. See Osondu co. Ltd v Akhigbe (1997) 7 SCNJ 1.
It is for these reasons and the fuller reasons in the lead Judgment that I too dismiss the Appeal and affirm the Judgment of the lower court, costs in the sum of N50,000.00 is awarded in favour of the 1st Respondent against the Appellant.
PHILOMENA MBUA EKPE. J.C.A: I have had the privilege of reading in draft the well considered lead judgment of my learned brother Clara Bata Ogunbiyi, JCA. The Plaintiff had indeed firmly established the fact that he is entitled to his claim as rightly arrived at by the trial Court.
This appeal is therefore devoid of any merit and is dismissed accordingly. I also award cost of N50,000.00 (Fifty Thousand Naira only) against the Appellant and in favour of the Respondent.
Appearances
S.S. Obende Esq.,
M.A. Dawam Esq.For Appellant
AND
A.A. Ibrahim Esq.For Respondent
