PROMASIDOR NIGRIA LIMITED & ANOR v. MISS RUTH ASIKHIA (2010)

PROMASIDOR NIGRIA LIMITED & ANOR v. MISS RUTH ASIKHIA

(2010)LCN/4114(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 6th day of February, 2019

CA/L/381/2013

RATIO

BURDEN OF PROOF: WHETHER A PERSON WHO DENIES A FACT IS EXPECTED TO PRODUCE ANY PROOF

…he who denies a fact cannot produce any proof:AHMADU BELLO UNIVERSITY vs. MOLOKWU (2004) 2 WRN 166 at 184 and IDEH vs. EJOVWO (2014) LPELR (23321) 1 at 44-46. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

FALSEHOOD : MEANING OF FALSEHOOD

In ONOBA vs. ABUJA BUILDING PRODUCTS LTD (2014) LPELR 22704 (CA) falsehood was stated to be the quality or fact of being untrue or being a lie. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

INSTANCES WHERE AN APPELLATE COURT WILL NOT INTERFERE WITH THE EVIDENCE EVALUATED BY THE TRIAL COURT

An appellate Court will not interfere where the trial Court has justifiably evaluated the evidence as in this case:NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs. SAIBU (1998) LPELR (222) 1 at 19-20. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

DUTY OF THE COURT TO AWARD REMEDY WHERE A LEGAL RIGHT IS ESTABLISHED

The Court is enjoined to provide a remedy where a legal right is established. The Court looks at the substance of the action rather than the form and a party who has established his legal right will not go away empty handed without any remedy: BFI GROUP CORPORATION vs. BPE (2012) LPELR (9339) 1 at 33 and EZE vs. GOVERNOR OF ABIA STATE (2014) LPELR (23276) 1 at 29. The maxim, ubi jus, ibi remedium, is so fundamental to the administration of justice that where there is no remedy provided by common law or statute, the Courts have been urged to create one. The Courts cannot therefore be deterred by the novelty of an action. In other words, it is a hollow concept to imagine a right without a remedy. The law being an equal dispenser of justice leaves none without a remedy, and that is ubi jus, ibi remedium [where there is right there is a remedy], which Courts are enjoined to apply, whether or not the wrong is remedial under a known head of tort or form of action. In FBN PLC vs. ASSOCIATED MOTORS CO. LTD (1998) 10 NWLR (Pt 570) 447, Nsofor, JCA, observed thus: “I decline to formulate the issue… in the terms either of contract or its breach or, in the terms of negligence, forms of action the pleadings severally employed. But why not? Because so to do immediately puts me in mind of Maitland: Forms of action are buried but still they rule us from the grave. But why the government of the living by the dead? Speaking for myself, I do not like it. Why not the dead ever remain in the silent cold comfort of their graves? And we have ever since moved, to and accepted as settled the principle: ubi jus ibi remedium. Therefore, provided there be a dammum cum injuria, a legal wrong, occasioned by or suffered then ex necessitate there ought to flow therefrom a remedium i.e. compensation even though it be minimal, Why? Because there was an injuria or legal wrong.” See also ORIANZI vs. A-G RIVERS STATE (2017) LPELR (41737) 1 at 65-66 and LABODE V. OTUBU (2001) 7 NWLR (PT 712) 256. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

AWARD OF DAMAGES: PRIMARY OBJECT OF AN AWARD OF DAMAGES

The primary object of an award of damages is to compensate the Claimant for the harm done to him. See B.B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 61-62 and AJAYI vs. AKAWA (2018) LPELR (44933) 1 at 28. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

GENERAL DAMAGES : POSITION OF THE LAW ON THE AWARD OF GENERAL DAMAGES

In the award of general damages, a widespread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching. General damages are awarded to assuage the loss which flows naturally from the defendants act. It does not have to be specifically pleaded. It suffices if it is generally averred. The general damages are presumed to be the direct and probable consequence of the act complained of. Unlike special damages, it is generally incapable of exact calculation. It is quantified by relying on what a reasonable mans judgment would be in the circumstance: ELF PETROLEUM vs. UMAH (2018) LPELR (43600) 1 at 27-28, FEDERAL MORTGAGE FINANCE LTD vs. EKPO (2004) 2 NWLR (PT 865) 100 at 132, LAR vs. STIRLING ASTALDI LTD (1977) 11-12 SC 53 and OMONUWA vs. WAHABI (1976) 4 SC 37. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

INTERFERENCE WITH THE AWARD OF DAMAGES : CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE DAMAGES AWARDED

JUSTICE

UGOCHUKWU ANTHONY OGAKWUJustice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria

TOBI EBIOWEIJustice of The Court of Appeal of Nigeria

Between

1. PROMASIDOR NIG LTD
2. MR. JERRY WALTERSAppellant(s)

AND

MISS RUTH ASIKHIARespondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This action was instituted at the High Court of Lagos State by Mr. Festus Asikhia. The cause of action arose from the circumstances surrounding his exit from the 1st Appellant Company. He died during the pendency of the action at the lower Court. The cause of action having survived him, he was substituted with his daughter, Miss Ruth Asikhia. By the 2nd Further Amended Statement of Claim in the said action in SUIT NO. LD/1158/1998: MISS RUTH ASIKHIA vs. PROMASIDOR NIGERIA LIMITED & ANOR., the Claimant claimed the following reliefs:
1. A DECLARATION that in so far as the Original Claimant, Mr. Festus Asikhia, did not write or submit a letter dated 10th March, 1998 or any other letter disengaging his services the 1st Defendants letter dated 10th March, 1998 purporting to accept the Original Claimants letter of resignation dated 10th March, 1998 with effect from 11th March, 1998 is null and void and of no effect.
2. AN ORDER setting aside the 1st Defendants letter dated 10th March, 1998 headed ACCEPTANCE OF RESIGNATION LETTER.

3. AN ORDER that the 1st Defendant do pay to the Claimant being the personal representative of the Estate of the deceased original Claimant all his salaries, allowances and other entitlements which would have been payable to him but for the contents of the said letter of the 1st Defendant dated 10th March, 1998.
4. A DECLARATION that the 1st Defendants policy of preference for a white man as the Companys Workshop Manager instead of the original Claimant who is a citizen of Nigeria and who was hitherto occupying the post is in breach of the provisions of Articles 2, 15 and 28 of the Schedule to the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. 10 Law [sic] the Federation of Nigeria 1990 and Section 391(2) [sic] of the Constitution of the Federal Republic of Nigeria 1979 and therefore is illegal null and void.
5. The sum of N50million being damages for the racial discrimination and degrading treatment meted to the original Claimant by the 1st Defendant at the 1st Defendants premises at 23, Wharf Road Apapa, Lagos on 10th March, 1998.

6. The sum of N5Million being damages for the malicious falsehood contained in the 1st Defendants letter dated 10th March, 1998 when the 1st Defendant falsely alleged that the original Claimant wrote a letter or [sic] resignation of his appointment dated 10th March, 1998.

The parties filed and exchanged pleadings. The Respondent raised a counterclaim. The matter was subjected to a full dressed plenary hearing at which testimonial and documentary evidence was adduced. In its judgment which was delivered on 24th May 2011 the lower Court entered judgment in part for the Claimants claim and also in part for the Defendants counterclaim. So it was a win-win situation. It seemed that there was no victor and no vanquished. The Defendants were however dissatisfied with the part of the decision of the lower Court wherein the sum of N2.5 million was awarded in favour of the Claimant as damages for malicious falsehood. The judgment of the lower Court is at pages 491-501 of the Records, while the Notice of Appeal is at pages 502-504 of the Records.

The Records of Appeal were compiled and transmitted, the Appellants filed their brief of argument but the Respondent failed to file a brief more than five years after the Appellants Brief had been filed and served on her.

The appeal was set down for hearing and at the hearing, even though the Respondent was represented by counsel, he could not be heard in oral argument, having failed to file a Respondents Brief vide Order 19 Rule 10 (1) of the Court of Appeal Rules, 2016.

In the Appellants Brief which was filed on 30th April 2013 but deemed as properly filed on 21st November 2017, three issues were distilled for determination:
1.Whether the tort of Malicious Falsehood is applicable to a Master Servant relationship to warrant the decision of the learned trial judge to have awarded the sum of N2.5M as damages against the Appellants (Ground 1).
2. Whether the learned trial Judge was right to have found and held that the Appellants maliciously procured the letter dated 10th March 1998 when there is no evidence to support the findings of the Court (Ground 2).
3. Whether the award of the sum of N2.5 Million as damages for malicious falsehood against the Appellants was justified considering the total entitlement to the Respondent (Ground 3).

It seems to me that the issues distilled by the Appellants can be considered under a sole coalescent issue as follows:
Whether the lower Court was right to have awarded the sum of N2.5m in favour of the Respondent as damages for malicious falsehood.

It is on the basis of this issue as crafted by the Court which is succinct, apt and encompasses the three issues formulated by the Appellants that I will consider the submissions of the Appellants counsel and resolve this appeal.

SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellants submit that malicious or injurious falsehood consists in the publication of disparaging remarks about a persons goods and or services vide NEWBREED ORGANISATION LTD vs. ERHOMOSELE (2002) 13 NWLR (PT 784) 251. It was contended that the tort of malicious falsehood is inapplicable and unknown to a master and servant relationship, since it relates to a falsehood that causes economic harm/financial loss to the claimant like in property and trade. It was asserted that for damages to be awarded for malicious falsehood, intention/malice was essential; but that in a master and servant relationship the

motive/intention for disengaging the employee is not relevant. The cases of FAKUADE vs. O. A. U. T. H. (1993) 5 NWLR (PT 291) 47 at 50 and JOYCE vs. SENGUPTA (1993) 1 ALL ER 897 were referred to.

It was posited that even if malicious falsehood can be said to apply to master/servant relationship, the Respondent failed to prove or show damages suffered and that proof of special damages is an essential ingredient for the award of damages for malicious falsehood vide: JOYCE vs. SENGUPTA (supra). The lower Court it was stated, erred by considering and applying a wrong principle of law.

The Appellants contend that Exhibit D/G2, which the original Respondent acknowledged receipt of, ought to have been relied upon by the lower Court as showing that the original Respondent accepted that he had resigned and therefore he could not rely on the doctrine/defence of non est factum. The cases of ALLIED BANK vs. AKUBUEZE (1997) 6 NWLR (PT 509) 374 and IGBINOSA vs. AIYOBAGBIEGBE (1969) 1 ANLR 95 were relied upon. It was opined that the lower Court wrongly evaluated the evidence and arrived at the wrong conclusion that Exhibit D/G2 was maliciously

procured and declaring the same null and void. It was stated that the wrong evaluation occasioned a miscarriage of justice and resulted in perverse findings which should be set aside. The cases of ARISONS T. E. LTD vs. MIL. GOV. OGUN STATE (2009) 15 NWLR [no part stated] 26, OKO vs. NTUKIDEM (1993) 2 NWLR (PT 227) 124 and ONWUCHURUBA vs. ONWUCHURUBA (1993) 5 NWLR (PT 292) 185 were cited in support. It was stated that credence should have been given to Exhibit D/G2 as it is documentary evidence which is more reliable and authentic and is the hanger on which to assess oral evidence. Section 83 of the Evidence Act and the cases of FASHANU vs. ADEKOYA (1974) 1 ALL NLR (PT 1) 35 and AIKI vs. IDOWU (2006) 9 NWLR (PT 984) 47 at 65 were called in aid.

The Appellants further submission is that where there is unlawful termination, the employee is only entitled to one months salary in lieu of notice and that the lower Court misdirected itself after having so stated by proceeding to award N2.5 million as damages for malicious falsehood which the Respondent was not entitled to vide KATTO vs. CBN (1999) 6 NWLR (PT 607) 390 at 394. It was further

contended that there was no evidence in proof of the sum awarded as damages for malicious falsehood and that the award was excessive, unjustified and punitive as the lower Court proceeded on a wrong principle of law and made an erroneous estimate. The cases ofIMAH vs. OKOGBE (1993) 9 NWLR (PT 316) 159 at 176-177,MAIDUGURI FLOUR MILLS LTD vs. ABBA (1996) 9 NWLR (PT 473) 506, INTERNATIONAL DRILLING CO NIG vs. AJIJOLA (1976) 1 ANLR 97 among other cases were referred to.

RESOLUTION
The facts of this matter are not convoluted. The original Claimant at the lower Court was employed by the 1st Appellant as a Workshop Manager. The working relationship between the original Claimant and the Management of the 1st Appellant could have been better than it was. The case of the original Claimant is that on 10th March 1998 he was summoned by the 1st Appellants Managing Director and that upon arrival, his official car was impounded and he was given a letter accepting his resignation from the 1st Appellant company but he protested that he had not written any letter of resignation. He stated that thereafter he was not allowed into the premises of the 1st Appellant.

The case of the Appellants is that when the Original Claimants incompetence in the discharge of his duties came to light, he pleaded with the Management of the 1st Appellant to be allowed to resign rather than being terminated or dismissed. The Management of the 1st Appellant acceded to this oral entreaty and then wrote to the Original Claimant accepting his voluntary resignation on the understanding that he was to forward a formal letter of resignation thereafter but he never did.

It is premised on these set of facts that the reliefs sought in this matter which I have already set out were claimed. The Appellants letter accepting the Original Claimants resignation is Exhibit D/G2. The said letter, inter alia, reads as follows:
Please refer to your letter dated 10th March, 1998 on the above subject matter disengaging your services with the company with effect from 11th March 1998.

The Appellants make a kerfuffle of the fact that the Original Claimant acknowledged receipt of Exhibit D/G2, contending that he would not have done so if in fact he had not written a letter of resignation. On the state of the pleadings, the onus

of proving the existence of the letter which the Appellants referred to in Exhibits D/G2 was on them. It was not for the Original Claimant who denied ever writing a letter of resignation to prove the negative. By the nature of things he who denies a fact cannot produce any proof:AHMADU BELLO UNIVERSITY vs. MOLOKWU (2004) 2 WRN 166 at 184 and IDEH vs. EJOVWO (2014) LPELR (23321) 1 at 44-46.
The Appellants failed to prove that there was any such letter of resignation which they referred to in Exhibit D/G2. The evidence is that the Original Claimant refused to forward the formal resignation after his oral request to be allowed to resign was accepted. If indeed the facts are as the Appellants would have the Court believe, then since it is their case that Management of the 1st Appellant was disposed to dismissing the Original Claimant, then he would have been so dismissed instead of claiming to have accepted a non-existent letter of resignation. The fact that the original Claimant acknowledged and signed for Exhibit D/G2 does not change the fact that the letter of resignation referred to therein does not exist and his having signed did not perforce bring the non-existent letter into being.

The bottom line remained that the letter of resignation referred to in Exhibit D/G2 is not a statement of fact. It is an absolute falsehood. In ONOBA vs. ABUJA BUILDING PRODUCTS LTD (2014) LPELR 22704 (CA) falsehood was stated to be the quality or fact of being untrue or being a lie.
In holding that Exhibit D/G2 was null and void, the lower Court reasoned and held as follows:
In the instant case the Claimant alleged that he did not write any letter resigning his appointment with the 1st Defendant upon which the Defendants purported letter dated 10th March 1998, allegedly accepting the termination of appointment of the Claimant.
However the evidence of the Defendants witness is that the Claimant after several complaints of the management on the negligence of the Claimant as the workshop manager in the management of the workshop, the Claimant orally informed the management of the 1st Defendant of his intention to resign his appointment with the 1st Defendant rather than having a dismissal and it is upon this oral entreaty that the management of the 1st Defendant wrote the letter accepting the resignation of his appointment.

However, the Claimant has since then failed to forward his letter of resignation till date.
He stated that by acknowledging the letter dated 10th March 1998, the Claimant had impliedly resigned his appointment.
(See pages 496-497 of the Records)
The lower Court continued and conclusively held as follows at pages 497 -498 of the Records:
The test in determining whether the termination or dismissal of an employee is proper or unlawful is whether the procedure adopted in effecting the termination or dismissal conforms with the conditions laid down in the terms of employment of the aggrieved employee. See Denloye v. Medical and Dental Practitioners Committee (1986) 1 NLR PG 306.
In the instant case, I have carefully considered the terms of the contract of employment between the Claimant and the 1st Defendant; I found that the 1st Defendant did not comply with the terms of the contract by giving the Claimant the requisite one month notice terminating his services with the 1st Defendant. In the course of cross examination of PW1, counsel to the Defendant alleged that the Claimant was

given one months salary in lieu of notice as part of his terminal benefits, but this assertion was denied by the Claimant.
It is however unfortunate that the Defendant in proof of the payment of the one months salary in lieu of notice did not provide any cheque in proof of the payment.
The 1st Defendant also failed to provide this Court with any evidence of the resignation letter of the Claimant upon which the letter dated 10th March 1998, which the Defendants purportedly accepted the resignation of the Claimant.
It was held in the case of University of Benin vs. Erinmwioren (2001) 17 NWLR (Pt 743) Pg. 548, that where there is a contract of service, there is an implied term that the contract can only be terminated by reasonable notice. In the instant case and from the record of proceedings and the exhibits before me, it is obvious that the Defendant did not give the Claimant any notice at all.
In the light of this it is safe to hold that the Defendants failed entirely to comply with the terms of the contract by giving a months notice to the Claimant or payment of one month salary in lieu of notice, thereby making the termination of the Claimant in this regard unlawful.

Consequently, I hold that the letter dated 10th March 1998, purportedly accepting the resignation of the Claimant is hereby declared null and void and of no effect.
The evaluation of the evidence and the findings made by the lower Court have support in the evidence on record. I am therefore unable to accept the Appellants contention that the lower Court wrongly evaluated the evidence. The lower Court properly discharged its primary duty of evaluating the evidence and ascribing probative value thereto. There is no faulting the evaluation of evidence and appraisal of facts by the lower Court. An appellate Court will not interfere where the trial Court has justifiably evaluated the evidence as in this case:NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs. SAIBU (1998) LPELR (222) 1 at 19-20.
In arriving at the decision that the Appellants are liable on the Claim for damages for malicious falsehood, the lower Court held as follows at page 499 of the Records:
From all the facts and evidence adduced before this Court, it is not in doubt as same has been established from preponderance of evidence that the original Claimant did not at anytime write any letter purporting to resign his services from the establishment of the Defendants upon which the letter dated 10th March 1998 is premised.

It is therefore my considered opinion that the Defendants maliciously procured the letter dated 10th March 1998, upon which it based the original Claimants termination. Consequently I hold the Defendants liable to the Claimant on this ground and award the Claimant the sum of N2.5million Naira damages for malicious falsehood on the letter dated 10th March 1998.
Let me iterate that the evidence on record settles the fact that the resignation letter referred to in Exhibit D/G2 does not exist; so the Appellants reference to such a letter is a falsehood. It is untrue and a lie: ONOBA vs. ABUJA BUILDING PRODUCTS LTD (supra). But was that falsehood malicious? Malicious is the adjectival derivative of the noun malice. In SUNDAY vs. AGANA (2010) LPELR – 9159, malice was, inter alia, defined as wrongful intention, any intent which the law deems wrongful and which therefore serves as a ground of liability; the intent, without justification or excuse to commit a wrongful or an illegal act.

Malice is a reckless disregard of the law or of a persons legal rights. The Original Claimant had a right to have his contract of employment with the 1st Appellant determined in accordance with the terms of the contract. The lower Court held that the Original Claimants right in this regard was infringed and that the termination of his employment was unlawful. It is pertinent to state that the wrong arising from the termination of employment is quite distinct from the wrong occasioned by the falsehood on the legal rights of the Original Claimant. The lower Court clearly recognized this in its judgment when after awarding one months salary in lieu of notice as damages for the unlawful termination of the contract of employment, proceeded to consider and award damages for malicious falsehood.
Permit me to be circular and forgive my prolixity. The reference to a letter of resignation written by the original Claimant is a falsehood as such a letter does not exist. The malice in this falsehood is that as a consequence the 1st

Appellant disregarded the law as it relates to termination of a contract of employment and further disregarded the Original Claimants legal rights under the contract. The Appellants make a foofaraw and assert that the tort of malicious falsehood does not apply in master/servant relationship. I am neither enthused nor enamoured by this contention.
The evidence on record established that the Appellants claim that the Original Claimant wrote a letter of resignation is a lie. The evidence further established the malice in this lie as a consequence of which there was a disregard for the law and a disregard for the Original Claimants legal rights. The Latinism is ubi jus, ibi remedium – where there is a right, there is a remedy. The law ensures that where a claimant has a right, he must have the means to vindicate that right and a remedy, if he is injured in the enjoyment or exercise of it. See BELLO vs. A.G OYO STATE (1986) 5 NWLR (PT 45) 828 and LAU vs. PDP (2017) LPELR (42800) 1 at 60-61.
The Original Claimant had legal rights under the contract of employment; if he is wronged as a result of a malicious falsehood, he is entitled to a remedy and the fact that the

tort of malicious falsehood does not apply in master/servant relationship will not stop him from getting his remedy. The Court is enjoined to provide a remedy where a legal right is established. The Court looks at the substance of the action rather than the form and a party who has established his legal right will not go away empty handed without any remedy: BFI GROUP CORPORATION vs. BPE (2012) LPELR (9339) 1 at 33 and EZE vs. GOVERNOR OF ABIA STATE (2014) LPELR (23276) 1 at 29.
The maxim, ubi jus, ibi remedium, is so fundamental to the administration of justice that where there is no remedy provided by common law or statute, the Courts have been urged to create one. The Courts cannot therefore be deterred by the novelty of an action. In other words, it is a hollow concept to imagine a right without a remedy. The law being an equal dispenser of justice leaves none without a remedy, and that is ubi jus, ibi remedium [where there is right there is a remedy], which Courts are enjoined to apply, whether or not the wrong is remedial under a known head of tort or form of action. In FBN PLC vs. ASSOCIATED MOTORS CO. LTD (1998) 10 NWLR (Pt 570) 447, Nsofor, JCA, observed thus:

“I decline to formulate the issue… in the terms either of contract or its breach or, in the terms of negligence, forms of action the pleadings severally employed. But why not? Because so to do immediately puts me in mind of Maitland: Forms of action are buried but still they rule us from the grave. But why the government of the living by the dead? Speaking for myself, I do not like it. Why not the dead ever remain in the silent cold comfort of their graves? And we have ever since moved, to and accepted as settled the principle: ubi jus ibi remedium. Therefore, provided there be a dammum cum injuria, a legal wrong, occasioned by or suffered then ex necessitate there ought to flow therefrom a remedium i.e. compensation even though it be minimal, Why? Because there was an injuria or legal wrong.”
See also ORIANZI vs. A-G RIVERS STATE (2017) LPELR (41737) 1 at 65-66 and LABODE V. OTUBU (2001) 7 NWLR (PT 712) 256.
The Appellants further contend that the N2.5m awarded as general damages by the lower Court was excessive, more so, when there was no evidence in proof of the sum

awarded as damages. Let me make the point that the damages claimed was not special damages so there was no legal obligation to specifically prove the amount claimed. I have already held that based on the maxim ubi jus, ibi remedium, the Original Claimant was entitled to a remedy. The primary object of an award of damages is to compensate the Claimant for the harm done to him. See B.B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 61-62 and AJAYI vs. AKAWA (2018) LPELR (44933) 1 at 28.
In the award of general damages, a widespread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching. General damages are awarded to assuage the loss which flows naturally from the defendants act. It does not have to be specifically pleaded. It suffices if it is generally averred. The general damages are presumed to be the direct and probable consequence of the act complained of. Unlike special damages, it is generally incapable of exact calculation. It is quantified by relying on what a reasonable mans judgment would be in the circumstance: ELF PETROLEUM vs. UMAH (2018) LPELR (43600) 1 at 27-28,

FEDERAL MORTGAGE FINANCE LTD vs. EKPO (2004) 2 NWLR (PT 865) 100 at 132, LAR vs. STIRLING ASTALDI LTD (1977) 11-12 SC 53 and OMONUWA vs. WAHABI (1976) 4 SC 37. It was therefore proper for the lower Court to award the damages for the proven wrong done to the Original Claimant.

An appellate Court will interfere with the damages awarded where the award is manifestly unwarranted, excessive, extravagant, unreasonable and unconscionable, in comparison to the greatest loss that could possibly flow from the wrong done. See UWA PRINTERS (NIG) LTD vs. INVESTMENT TRUST LTD (1988) 5 NWLR (PT 92) 110, OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 296 and ACME BUILDERS LTD vs. KADUNA STATE WATER BOARD (1999) LPELR (65) 1 at 20-21. Applying the test of what a reasonable man would have done to recompense the wrong of a falsehood that a letter of resignation had been written when none was written, it seems to me that the damages of N2.5 million awarded was excessive. More in keeping with appropriate recompense for the wrong is the sum of N1 million. Accordingly, I reduce the amount awarded as damages by the lower Court to N1 million which is an

appropriate amount in the diacritical circumstances of this matter.

In a summation, apart from having reduced the amount awarded as damages I find no legal basis or justification to interfere with the decision of the lower Court. The decision is affirmed. The Appellants having registered relative success in the sense that the damages awarded has been reduced, the appeal succeeds in part and there shall be no order as to costs.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read the lead judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA and I am in agreement with the judgment.

I also hold that the appeal succeeds in part and I abide by the consequential orders in the lead judgment.

TOBI EBIOWEI, J.C.A.: I have read in draft the judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA, just delivered. I agree with the reason and the conclusion reached therein. I have nothing much to add as I adopt it as mine except to say that it makes no sense and does not speak well of the Appellant, a corporate organization to lie that Exhibit D/G2 exist. A fact that they could not prove.

The Appellant should have done better than that. The point the Appellant tried to pull through does not add up and cannot be believed. It is far from reality and more of a movie scene. A Court of law deals with evidence and not sentiment or possibilities. See; C.G.G. (Nig) Ltd vs. Ogu (2005) 2 SC (Pt. 11) 50; PML (Nig) Ltd. vs. FRN (2017) LPELR – 43480 (SC); Okpe vs. Fan Milk Plc & Anor. (2016) LPELR – 42562 (SC).
The evidence that the letter accepting the resignation of the original claimant is based on an oral agreement for him to tender the resignation is not tenable. The burden is on the Appellants to prove such an agreement. The failure to prove that assertion weakens the case of the Appellant.

For the above and the fuller reasons contained in the lead judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA I also allow this appeal in part. I abide by the amount awarded as damages and the order as to cost.

Appearances:

Lanre Balogun, Esq.For Appellant(s)

Peter Okakpu, Esq.For Respondent(s)