TEC ENGINEERING COMPANY NIGERIA LIMITED & ANOR v. AUWALU SALISU
(2018)LCN/12028(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of August, 2018
CA/K/123/2017
RATIO
COURT AND PROCEDURE:THE ISSUE OF CROSS EXAMINATION
“Cross-examination, if I may restate its purport, is a very powerful tool, a lethal weapon in the hands of the adversory to enable him effect demolition of the case of the opposing party. See Oforlete VS The State (2000) 3 NSCQR 243, 268. It has also been described as a potent tool for perforating falsehood. See Ayan VS The State (2013) 15 NWLR (Pt. 1376) 34, 36. It is not only employed to demolish the case of the adversary, it is also used to project and establish the case of the party conducting the cross-examination. See Omisore VS Aregbesola (2015) LPELR 24803 (sc); Borishade VS NBN Ltd (2007) 1 NWLR (pt. 1015) 217, 232. Therefore, the main purpose of cross-examination being to discredit the witness and show that he might not be believed. See Emoga VS The State (1997) 9 NWLR (pt. 519) 25, it follows that where a party fails to employ the lethal weapon against his opponent the presumption is that he admits the truth of the evidence and has no quarrel with the accuracy or veracity of the evidence so adduced. The derivative established legal principle from the preceding presumption of law is that when evidence remains unchallenged or unsuccessfully challenged, and it is in itself not incredible, the Court ought to accept same as proof of the issue in contest. See Okupe VS Ifemembi (1974) 3 SC 97 at 103; Odulaja VS Hadad (1973) 11 SC 35. ” PER AMINA AUDI WAMBAI, J.C.A.
DAMAGES: SPECIAL DAMAGES
“Special damages are the damages which the law does not infer from the nature of an act but are exceptional in character. In UBN Plc VS Ajabule & Anr (2011) LPELR 8239 (SC) the Apex Court in explaining the requirement of specific pleading and strict proof of special damages stated: ‘Special damages denote those pecuniary losses which have been crystalized in terms of cash and value before trial. It is the kind of damages which though based on the discretion of the trial Court, such must be backed up by credible evidence adduced before the Court which strictly proves the plaintiff’s entitlement to the award. It is therefore stated principle of law that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence. Without such proof, no special damages can be awarded.'” PER AMINA AUDI WAMBAI, J.C.A.
DAMAGES: AWARD OF DAMAGES
“An award of damages is ordinarily within the realm of the discretion of the trial Court and an appellate Court can only interfere when:- the trial Court has acted under a mistake of law; the trial Court has acted in disregard of known principles of law or on no principle at all; the trial Court has acted under a mis-apprehension of facts; the trial Court has taken into account irrelevant mattes or failed to take account of relevant matter; the amount awarded is either ridiculously too low or ridiculously too high that it must have been a wholly erroneous estimate of damages; or injustice would result if the appeal Court does not interfere. See Allied Bank VS Akubueze (1997) 6 NWLR (pt. 509) 374; Usong VS Hanseatic International Ltd (2009) LPELR 3434 (SC); CBN VS Aite Okojie (2015) 14 NWLR (pt. 1479) 231.” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
1. TEC ENGINEERING COMPANY NIG. LTD
2. MR. LIU YINMENG Appellant(s)
AND
AUWALU SALISU Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
This appeal before us emanated from the Judgment of Hon. Justice NUHU YAHAYA GALADANCHI in Suit No. K/591/2013 delivered on 22nd March, 2016 which granted the Respondent’s claim against the Appellants.
The Respondent as plaintiff before the lower Court claimed against the Appellants as 1st & 2nd defendants jointly and severally, for an order of this Honourable Court compelling the defendants to pay the plaintiff the sum of Five Million Naira (N5,000,000.00) as general damages for unlawful, unjustifiable and wrongful attack by the 2nd defendant; an order for specific damage in the sum of two Thousand Naira (N2,000.00) being the total sum spent by the plaintiff on drugs of excruciating pain he suffered in his jawbone as a result of unlawful, unjustifiable and wrongful attack by the 2nd defendant; the sum of Five Thousand Two Hundred (N5,200) being the plaintiff’s salary (outstanding balance) from 16th to 23rd of October, 2013 (650 per day); and a costs of this action.
The 1st Appellant is a limited liability construction company and the employer of both the 2nd Appellant and the Respondent at its Kano Branch.
The Respondent’s case is that on 23/10/2013 during the working hours while at work mixing and making concrete slabs, the 2nd Appellant hit him on his back, chest and slapped him whereby he suffered excruciating pain and had to visit the Hospital for treatment. His co-worker, Nafi’u Ya’u (PW2) was also hit by the 2nd Appellant for the alleged reason that both the Respondent and Nafi’u Ya’u left a gap on the slab box.
The 2nd defendant denied the accusation and alleged that it was the Respondent who threatened him with a harmer. The intervention of the officials of the trade union could not settle the parties, hence the institution of the suit before the lower Court vide a wit of summons filed on 05/12/2013.
Upon being served with the said writ, the Appellants filed their joint statement of defence and accompanying processes. At the trial, the Respondent called 3 witnesses and tendered 3 exhibits. Appellant also called 3 witnesses but tendered no exhibit. The learned trial Judge, after reviewing the evidence before the Court, found that the Respondent had sufficiently proved its claim against the Appellants and accordingly, entered judgment in his favour.
Upset by the decision, the Appellant filed a Notice of appeal on the 30th March, 2016 containing a sole ground.
In the Appellants’ brief of argument settled by Sagir Suleiman Gezawa, Esq., filed on 01/11/2017 and deemed on 13/11/2017 two issues were raised for determination to wit:
1. Whether having regards to the evidence led there was proper evaluation of evidence in this case by the learned trial judge?
2. Whether the trial Court had before it unchallenged and credible evidence of any damage suffered by the Respondent which justifies the award of excessive sum of 2,002,000.00k as damages in Respondent’s favour?
The Respondent in its brief of argument filed on 13/12/2017, settled by Abdurrazaq Aikawa, Esq., identified three issues for determination thus:
1. Whether the issues as formulated by the Appellants are competent.
2. Whether the decision of the lower Court is against the weight of evidence.
3. Whether the error(s) complained of by the Appellants constitutes grounds that will warrant this Honourable Court to reverse the decision of the lower Court.
The Appellants filed a reply brief on the 04/04/2018 which was deemed properly filed and served on 26/06/2018.
At the hearing of the appeal on 26/06/2018 both Counsel adopted their respective briefs.
Before settling on the issues for determination, it is apt to first deal with the competence of the two issues formulated by the Appellant’s learned Counsel which have being challenged. The Respondent’s first issue formulated for determination is the subject of that challenge. I must observe straight away that this is not the known and acceptable method of raising such a challenge in the Court of Appeal.
The procedure for raising preliminary objection to the hearing of an appeal in the Appellate Courts and as set out in Order 10 of the Court of Appeal Rules, 2016 is that the Respondent who intends to rely upon a preliminary objection shall file a separate Notice of Preliminary Objection containing the grounds of the objection with 3 days Notice to the Appellant. Our Courts have however relaxed the requirement of filing a separate Notice of Preliminary Objection and have accepted an objection argued in the Respondent’s brief of argument provided that it is served on the Appellant at least 3 clear days before the hearing of the appeal, the primary purpose being not to take the other Party by surprise and to enable him respond to the objection. In Okereke vs James (2012) LPELR 9347 (SC) the Supreme Court per Rhodes-Vivor JSC in reinforcing this stated position of the law held that:
”The Respondent argued a Preliminary Objection in his brief. This is now accepted practice as that procedure obviates the need to file a separate Notice of Preliminary Objection.”
The Respondent herein did not file any separate Notice of Preliminary Objection but has made the point of preliminary objection the subject of his first issue for determination. This is wrong. It is irregular. However, as wrong or irregular as it is, should the Court close its eyes to the obvious, the distilling of two issues from one ground of appeal which is a matter of law? Methinks not. This is so because an Appellate Court has the power, suo moto, to consider and deal with an issue touching on the competence of issues formulated for determination before it.
The Appellant has by his own admission at paragraph 4.1 of his brief of argument, raised two issues from the sole ground of appeal, issue No. I from particulars of error B and issue No. 2 from particular A. In other words, the Appellant’s issues for determination out numbers his sole ground of appeal. This is contrary to the established principles and practice of brief writing and is not permissible in the Appellate Courts. The established practice and law is that a ground of appeal pregnant with a concrete and weighty preposition of law or fact which when resolved in favour of a party to the appeal will entitle that party to the judgment of the Court. See Consortium M.C. (Nig) vs Nepa (1992) 6 NWLR (pt. 246) 132; Okudili Ugo VS. A. Obiekwe & Anor (1989) NWLR (pt. 99) 566, is capable of giving birth to only one issue for determination.
A ground of appeal can only carry one pregnancy of a concrete postulation of law or fact that will give birth to a single child, called an issue for determination. It cannot give birth to twins, triplets or any number of multiple issues for determination. The law is quite settled that two or more issues cannot germinate or be formulated from a single ground of appeal, only one issue can be distilled from a single ground of appeal though two or more grounds of appeal can give birth to an issue for determination. In other words, while an issue can spring out of many grounds of appeal, and this is encouraged, a single ground of appeal cannot donate more than one issue. See Labiyi VS Anretiola (1992) 10 SCNJ 1 at 2. See Nwidenyi & Ors VS Aleke (1996) 4 NWLR (pt. 442) 349; Afribank Nig. Plc VS Yelwa (2011) all FWLR (pt. 585) 299; Oseni VS Bajulu (2010) All FWLR (pt. 511) 813; State VS Omoyele (2016) LPELR 40842 (SC); Adekunle Teriba VS Ayoode T. Adeyemo (2010) 47 WRN 155; Donbraye & Anor VS Preyor & Ors (2014) 25 WRN 44 at 72; Yisi Nig. Ltd VS Trade Bank Plc (2013) 8 NWLR (pt. 1357) 522.
Thus, the practice of formulating more than one issue from a ground of appeal as the Appellant has done in this appeal is tantamount to proliferation of issues and has been deprecated severally. It is undesirable to split issues in a ground of appeal as was done in the Appellant’s brief. See Aniekwe VS Okereke (1996) 6 NWLR (Pt. 452) 60; Orji VS The State (2008) 4 SCNJ 85; Okonkwo VS Okonkwo (2014) 17 NWLR (pt. 1435) 18; Adejumo VS Olawaiye (2014) 12 NWLR (pt. 1421) 252; Access Bank Plc VS Muhammad (2014) 6 NWLR (Pt. 1404) 613.
In Iweka VS SCOA (2000) 7 NWLR (pt. 664) 325 the Apex Court frowned seriously against the practice and held that where more than one issue was formulated from a single ground of appeal, the issues shall be discountenanced by the Court in the determination of the appeal. It has also been held that where more than one issue are formulated from a ground of appeal the issues are incompetent and liable to be struck out. See Okonobor VS D.E. & ST. Co. Ltd (2010) 17 NWLR (pt. 1221) 181 at 189.
The learned Appellant’s Counsel in his reply brief who stated the correct position of the law that issues for determination are formulated from combination of the grounds of appeal, insisted albeit, erroneously and misconceiving the decision in S.M.C. Ltd VS Sterling Bank Plc (2015) All FLWR (Pt. 796) 472 at 474 and Oleksanor VS L.D. Coy. Ltd (2015) All FWLR (Pt. 793) 1824 at 1826, that particulars being integral part of the ground of appeal, can independently donate issues for determination. This submission is a misconception of the law and is not supported by the cases cited by learned Counsel nor do they avail him. The law as earlier stated, is that a ground of appeal and as many as its particulars of error might be, is one and the same, each particular forming the integral part of the said ground. It follows therefore that only a single issue can be distilled from the ground and all its particulars. Neither the ground nor its particulars of error as many as they are, can be split to give rise to more than one issue for determination.
However, in line with the current judicial trends in which substantial justice has taken the centre stage and a pride of place, the Court may strike out one of the issues and allow the other to stand. This is more so, where as in the instant case the striking out the two issues would result in dismissing the appeal without considering its merit.
I have support for this view in several cases including the case of The People of Lagos State VS Umaru (2014) 7 NWLR (Pt. 1407) 584 where Muh’d JSC held:
”In the history of brief writing in appellate Courts, it is incongruous for one ground of appeal to relate to or be split into more than one issue and one of the issues is subject to being struck out. See Madagwa VS The State (1988) 5 (Pt. 92) 60; Agbetoba VS L.S.E.C. (1991) 4 NWLR (Pt. 188) 664.”
I shall, on this authority and several others, strike out issue No. 2.
The Appellant’s sole ground of appeal reads:
”the decision is against the weight of evidence.”
This is what in legal parlance is called the omnibus ground of appeal. It is a complaint against the totality of the evidence adduced before the Court and not against any specific finding of fact or any document. See Ajibona VS Kolawole (1996) 10 NWLR (pt. 476) 22; Breweries Ltd & Ors VS UBN Ltd (2001) 15 NWLR (Pt. 737) 539. When an Appellant employs this phrase that ?judgment is against the weight of evidence?, as the Appellant herein has done in his sole ground of appeal, he is merely saying that there was no evidence which if accepted, would support the findings of the trial Court or the inference which it had made. See Akinlagun VS Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 82 SC; Kwawam VS Akinkugbe (2001) 13 NWLR (pt. 729) 70; Ali VS The State (1988) 1 NWLR (Pt. 68) 1. It could also mean that when the evidence adduced by the Appellant is placed side by side and balanced against that adduced by the Respondent on the imaginary scale of justice, the judgment given in favour of the Respondent would be against the weight which should have been given, having regards to the totality of the evidence before the Court. See Mogaji VS Odofin (1978) 4 SC 94.
It simply connotes that the decision cannot be supported by the weight of evidence adduced by the successful party which the Court either wrongly accepted or from which it drew a wrong inference or reached wrong conclusion based on the accepted evidence. See Osolu VS Osolu (2003) 11 NWLR (pt. 832) 608 SC. In Lt. Colonel P.Y. Awusa VS Nig. Army (2018) LPELR 4437 (SC) Augie JSC held that the complaint is only concerned with appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence. It follows that, the employment of the phrase constitutes an attack on the findings of fact made by the trial Judge and calls upon an appellate Court to make up its mind on the evidence.
Therefore, in view of the connotation of the Appellant’s sole issue for determination, I shall recast issue No. I to properly reflect the issue in contention as follows:
Whether having regards to the evidence adduced at the trial the learned trial judge rightly entered judgment for the respondent.
On this issue, Gezawa Esq., of Counsel for the Appellants submitted that there was no proper evaluation of evidence before the trial Court. That at the trial, the Appellants by the testimonies of the three defence witnesses clearly denied and challenged ever beating or slapping the Respondent as alleged by Respondent’s witnesses. However, surprisingly, the learned trial judge at page 133 of the record held that the Respondent’s evidence were not discredited or challenged during cross examination.
He referred to the case of Anekwe VS Nweke (2014) All FWLR (Pt. 739) 1154 at 1162 to submit that the evidence adduced by the 2nd Appellant before the trial Court which was admissible, relevant, credible, and conclusive, was more probable than that given by the Respondent, but the learned trial judge failed to weigh the totality of the evidence adduced by both parties thereby arriving at a wrong decision.
It was contended that Exhibit 1 relied upon by the trial Court only contained some medical prescription, but there was neither any physical injury on the Respondent nor a medical report that connected the 2nd Appellant to the purported claims of pain allegedly suffered by the Respondent, insisting that Exhibit I fell short of corroborating the testimonies of the PW1, PW2 and PW3. For this, the case of Esi VS CNPC/BGP/Int.l (2014) All FWLR (Pt. 742) 1813 at 1815 and Section 131 of the Evidence Act 2011 were referred to. We were urged to interfere with the findings of the lower Court and to properly re-evaluate the evidence led at the lower Court, on the authority of the cases of Odunewu VS Martins (2010) All FWLR (Pt. 541) 1490 at 1492 and BFI Group Corp VS BPE (2013) All FWLR (pt. 676) 444 at 456 & 7.
On the award of damages by the trial Court, counsel argued that the Respondent was not shown to have suffered either physical or internal damage as a result of the 2nd Appellant’s action of correcting him to do the standard work as required by the company and is thus not entitled to be awarded the sum of N2,000,000:00K as general damages. He cited Yakubu VS Impresit Bakolari Plc (2011) All FWLR (Pt. 598) 827 at 832. Further that where the Respondent as in the instant case, did not suffer any damages, the Court will not award any costs as damages citing the case of Fadeyi VS Owolabi (2015) All FWLR (Pt. 798) 516 at 822. We are urged to interfere and hold that the damages awarded was arrived at upon wrong principles of law, as held in the case of Union Bank of Nig Plc VS Ajabule (2012) All FWLR (Pt. 611) 1413 at 1415.
It was also submitted that assuming without conceding that the trial Court acted upon correct principle of law, the amount awarded is ridiculously too high for the alleged beating on the Respondent. On this, learned counsel referred to the case of Olokunlade VS Ademiloyo (2013) All FWLR (Pt. 658) 947 at 953. Similarly, he argued that the award of N2,000.00 as special damages was given without evidence justifying same contrary to the principle of specific pleading and strict proof reiterated in the case of Union Bank of Nig Plc VS Ajabule (supra).
On the whole, learned counsel urged us to resolve the issue in favour of the Appellants and allow the appeal.
Responding, Aikawa, Esq., the learned Respondent?s counsel submitted that the decision of the lower Court is not against the weight of evidence. He conceded the position of the law that he who asserts must prove, and cited Enemchukwu VS Okoye (2016) LPELR-40027(CA) and Veepee Ind. Ltd. VS Cocoa Ind. Ltd. (2008) NWLR (pt. 1105) 486 to contend that the Respondent did at the lowe Court discharge the burden placed on him by calling witnesses and tendering Exhibits which evidence, counsel contended, was neither challenged nor discredited by the Appellants during cross examination and ought to be accepted by the Court. In urging us to so hold, he relied on Nzeribe VS Dave Engineering Co. Ltd (1994) 8 NWLR (Pt. 351) 124 at 137; Philip VS Nigerian Army (2016) LPELR-40255 (CA).
On the award of damages, he submitted that although special damages need to be specifically pleaded and strictly proved by a claimant, the strict proof required is no more than such as would readily lend itself to quantification of the damages suffered, general damages being implied in every breach and violation of a legal right. Reliance was placed on the cases of Harka Air Services Ltd. VS Keazor (2006) 1 NWLR (Pt. 960) 160; Tom Total (Nig) Ltd VS Skye Bank (2017) LPELR-41953 (CA); Andrew VS MTN Nigeria (2016) LPELR-41181(CA).
He submitted that the Respondent was assaulted, humiliated and injured by the 2nd Appellant, and it is in proof of his claim for special damages of Two Thousand Naira (N2,000.00) that the Respondent testified and tendered Exhibit 1 in not only in proof the injury he sustained, but also of the fact that he was treated at the hospital, and thus entitled to the award of general damages the amount of which he argued, is not ridiculously too high as contended by the Appellant in view of the inconvenience, psychological trauma, humiliation among others suffered by the Respondent.
Finally, the case of Contract Resource Nigeria Ltd VS UBA Plc (2011) LPELR-8137(SC) was relied upon to submit that the error complained by the Appellants did not constitute any ground for the reversal of the decision of the lower Court. We are urged to so hold and dismiss the appeal.
The soul of this appeal is whether on the proper evaluation of all the evidence before the Court, judgment ought to have been entered for the Respondent. In other words, whether there is sufficient evidence on record to support the findings and conclusion of the learned trial Judge in entering judgment for the Respondent.
The law remains trite that the evaluation of evidence and the ascription of value to such evidence have remained the primary function of the trial Court which saw, heard and assessed the witnesses as they testified at the trial in the witness box and observed their demeanour. See Okoye & Anr VS Obiaso & Ors (2010) 8 NWLR (Pt. 1195) 145; Lasisi VS The State (2013) 9 NWLR (Pt. 1358) 74; Osolu VS Osolu (2003) 1 NWLR (Pt. 832) 608.
As elucidated in Yadis Ltd VS Gnic Ltd (2007) 30 1 NSCQR 495 at 518 519 per Onnoghen JSC (as he then was), it is the primary duty of the trial Court to evaluate evidence, make findings of facts and apportion probative value thereto. That function, I must emphasize, is not of an appellate Court as it does not share with the trial Court, the advantage of seeing or hearing the witnesses testify.
An appellate Court deals only with the cold evidence on the records of appeal. It can only step in to evaluate evidence where the trial Court failed in taking the advantage it had to discharge its primary duty or where it makes wrong inferences from the evidence; or when the findings are not supported by evidence. To avert miscarriage of justice, the appellate Court would step into the shoes of the trial Court to right the wrong. See Imah VS Okogbe (1993) 9 NWLR (Pt. 316) 159; Amaremor VS The State (2014) 10 NWLR (Pt. 1414) 1; Cyclops VS Ibaranyaye (2012) 9 NWLR (1305) 233.
However, where a trial Court unquestionably evaluates the evidence and justifiably appraises the facts before it and there is sufficient evidence on record from which the trial Court arrived at its findings of fact, the appellate Court is loath to interfere even if it concludes that the trial Court should have evaluated the evidence of witnesses differently. See Nguma VS A.G. Imo State (2014) 7 NWLR (Pt. 1405) 119; Gbileve VS Addingi (2014) 16 NWLR (1433) 394; Chukwu VS Akpelu (2014) 13 NWLR (1424) 359.
At this stage, it is imperative to pierce through the evidence on record with a view to determining whether the evidence supports the findings and conclusion of the learned trial Judge.
In proof of his claim, the Respondent testified as PW1, called two other witnesses, and tendered three Exhibits. In his written deposition on oath which he adopted, the Respondent deposed at paragraphs 3-6
3. That on 23rd day of October, 2013 around 11:am, during the working hour in the company, the 2nd Defendant came to our site for supervision at Silver Jubilee opposite Audu Bako secretariat.
4. That when the driver of the concrete-mixer truck packed in order to supply us with concrete cement for making slabs, the 2nd defendant, for reason that we left the gap on one slab box started shouting on myself and my co-worker in person of Nafi’u Ya’u (Gajere) that we were not doing the work faster.
5. That no sooner he had gotten closer, than he slapped Gajere on his back and before I knew anything he had already gave me a sudden hit on my back with a clenched fist and when I shockingly stood up and turned, as a result of the impact, the 2nd defendant smashed my chest and followed that up with a back hand slap on my face, which I was almost to fall on the ground.
6. That despite the 2nd defendant humiliation ridicule and utter embarrassment, he added by insulting and abusing me in the presence of my co-employees and other people walking around the site.
8. That I really sustained a severe and excruciating pain by the cruelty of the 2nd defendant’s slapping, I had a sleepless night which left me with no alternative but to visit the dentist at Murtala Muhammed specialist Hospital, Kano for proper diagnosis and treatment.”
On their part, the 2nd Appellant testified for the Appellants as DW3 and called 2 other witnesses who testified as DW1 & DW2. Both in his written and oral testimony at the trial Court, the 2nd Appellant vehemently denied ever beating the Respondent. The case of the Appellants is that it was the Respondent who threatened to hit him with a hammer until restrained by one Bello, his colleague. This was the evidence of the 2nd Appellant. However, that piece of evidence has no support of his witnesses. Neither the Bello (DW2) who the 2nd Appellant said restrained the Respondent from using the hammer nor DW3 made any mention of the Respondent using or handling any hammer or threatening to use any such thing on the 2nd Appellant. Their evidence only stopped at the point that the Respondent got angry when been shouted at by the 2nd Respondent and he, DW2 restrained the Respondent.
It is trite that where the witness called by the defendant gives evidence which does not support his case, and the witness is not treated as hostile witness, the evidence of such a witness may be treated as an admission upon which the claimant is entitled to rely as a further reinforcement of his case. See Okafor VS Idigo (1984) 1 SCNLR 481.
Similarly, in the instant case where the evidence of the witnesses called by the 2nd Appellant does not support his claim that the Respondent threatened to hit him with hammer, the Respondent is entitled to rely on their evidence to reinforce his case that he did not so threaten the 2nd Appellant. The Court is equally entitled to believe the evidence of the 2nd Appellant’s witnesses and disbelief that of the 2nd Appellant to that effect.
On the part of the Respondent he and his two other witnesses, PW1 and PW2, gave account of how the Respondent was beaten by the 2nd Appellant (their supervisor) in the course of their duties with the 1st Appellant for the reason that the 2nd Appellant noticed one of the slab containers was not properly filled with concrete cement. The Respondent’s evidence is that the 2nd Appellant hit him on his back, chest and face. This was confirmed by both PW2 Nafiu Ya’u (Gajere) and PW3 Adamu Shuaibu who were eye witnesses to the incident. Both witnesses were emphatic that they saw the 2nd Appellant, beat the Respondent. PW2 who was also beaten by the 2nd Appellant said the 2nd Appellant hit and beat the Respondent on his chest and slapped him, PW3 through the side mirror of the truck, also saw the 2nd Appellant hit the Respondent and as the Respondent was trying to stand up, the 2nd Appellant slapped him.
The Respondent as PW1 was extensively cross-examined by the learned Appellant’s Counsel as reflected at pages 30 – 34 of the record, but remained solidly fixed on the same spot, unshaken as he was in his evidence in chief. In cross-examination the Respondent maintained that:
”2nd defendant beat me all over my face and I went to the Hospital for my teeth for which I could not be able to sleep the previous night.” (see page 33 of the record).
Instructively also, both PW2 and PW3 who were the eye witnesses to the incident were not cross-examined on the material fact of the actual beating. None of them was asked any question in relation to the beating. For instance PW2 was only asked if he could read and write. Similarly, PW3 was only asked the number and the names of the people who witnessed the incident which he did. He maintained that if any person gave any evidence that there were more than the 4 people he mentioned, the other witness would be a liar. However, the substantiality of the evidence of the Respondent and his witnesses on the fact of 2nd Appellant beating the Respondent was not controverted. It remained solid, unshaken, and unperforated.
It is now very elementary that where a witness testifies on a material fact in controversy, and in this case whether the 2nd Appellant beat the Respondent, the Appellants if they do not accept the witnesses testimony as the truth, should cross-examine the witness on that material fact.
Where this is not done, the Court will be at liberty to accept the evidence as the truth and treat the silence as an acceptance that he does not dispute the fact. See Isah VS The State (2017) LPELR ? 43472 (SC); Daggash VS Bulama (2004) 14 NWLR (Pt. 892) 144 at 420 A – G; Egwumi VS The State (2013) 13 NWLR (Pt. 1372) 525.
Cross-examination, if I may restate its purport, is a very powerful tool, a lethal weapon in the hands of the adversory to enable him effect demolition of the case of the opposing party. See Oforlete VS The State (2000) 3 NSCQR 243, 268. It has also been described as a potent tool for perforating falsehood. See Ayan VS The State (2013) 15 NWLR (Pt. 1376) 34, 36. It is not only employed to demolish the case of the adversary, it is also used to project and establish the case of the party conducting the cross-examination. See Omisore VS Aregbesola (2015) LPELR 24803 (sc); Borishade VS NBN Ltd (2007) 1 NWLR (pt. 1015) 217, 232.
Therefore, the main purpose of cross-examination being to discredit the witness and show that he might not be believed. See Emoga VS The State (1997) 9 NWLR (pt. 519) 25, it follows that where a party fails to employ the lethal weapon against his opponent the presumption is that he admits the truth of the evidence and has no quarrel with the accuracy or veracity of the evidence so adduced.
The derivative established legal principle from the preceding presumption of law is that when evidence remains unchallenged or unsuccessfully challenged, and it is in itself not incredible, the Court ought to accept same as proof of the issue in contest. See Okupe VS Ifemembi (1974) 3 SC 97 at 103; Odulaja VS Hadad (1973) 11 SC 35.
Pronouncing on the same principle of law Iguh JSC in Nzeribe VS Dave Engineering Co. Ltd (Supra) succinctly stated:
”Where evidence given by a party to any proceedings or by his witness is not challenged by the opposite party who has the opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it? This is because in such circumstance the evidence before the trial Court obviously goes one way with the other set of facts or evidence weighing against it. There is nothing in such a situation to put on the other side of that proverbial or imaginary scale or balance, as against the evidence given by or on behalf of the plaintiff. The onus of proof in such a case is naturally discharged on a minimal of proof.”
The lower Court therefore enjoins the blessing of the law to accept and give full weight and value to any such evidence.
I am not unmindful of the fact that the 2nd Appellant denied beating the Respondent. The duty of the trial Court before arriving at the conclusion as to who to believe or disbelieve is to place on one side of the imaginary scale the 2nd Appellant’s evidence, and on the other side, the Respondent?s evidence together with those of PW2, PW3, DW1 and DW2 and weigh them together to see which evidence is heavier not necessarily by number of witnesses but by the quality or probative value of the testimonies of those witnesses. In doing this, regard is to be had to the following factors: (i) Whether the evidence is admissible; (ii) Whether it is relevant; (iii) Whether it is credible; (iv) Whether it is conclusive and (v) Whether it is more probable than that given by the other party.
See Anekwe VS Nweke (2014) All FWLR (pt. 739) 115 at 1162. In the instant case, the evidence adduced for the Respondent which is admissible, relevant, credible and conclusive on the fact in contest, is obviously heavier and more probable than the Appellant?s evidence which did not even have the support of his own witnesses. The learned trial Judge came to the following conclusion at page 133 of the record:
”From the testimony of the evidence before this Court i.e. testimony of PW1, PW2 and PW3 which were not discredited or challenged during cross examination and the testimony of DW1, DW2 and DW3 which did not outrush if the testimony of the plaintiff and the other two witnesses as to the beating suffered by the plaintiff in connection of the act of the 2nd defendant though 2nd defendant denied to have beaten the plaintiff in both oral and written testimonies before the Court.” (Underline for emphasis).
I have no reason to fault but to anoint this finding and conclusion reached by the learned trial Judge. The Judgment entered for the Respondent cannot in the face of the evidence on record, be labelled as being against the weight of evidence.
On the contrary, the weight of the evidence on record fully supports the Respondent’s case and the finding & conclusion of the learned trial Judge that the 2nd Appellant beat the Respondent. On the hard facts on record, we are at one with the trial Court that the Respondent proved that the 2nd Appellant beat him. In civil matters such as this, a fact is established on the preponderance of evidence or balance of probabilities and the Court decides the case on the same standard of balance of probabilities or preponderances of evidence, which is this case as rightly held by the learned trial Judge, preponderances in favour of the Respondent. See Odulaja VS Haddad (1973) 11 SC 367; Fagbenro VS Arobadi (2006) 7 NWLR (Pt. 978) 174.
On the claim for special damages, the Respondent claimed the sum of N2,000.00 (Two Thousand Naira) being the total sum spent by the plaintiff on drugs for the excruciating pain suffered. He pleaded and tendered an out patient hospital card but tendered no receipt evidencing the N2,000.00 (Two Thousand Naira Only) claimed as special damages for the purchased drugs. While there is no doubt that Exhibit I shows a medical diagnosis based on the Respondent’s complaints to the Doctor, as well as the drug prescription for the treatment, it conspicuously falls short of proof of the actual amount of money expended in purchasing the drugs.
The law regarding proof of special damages is clear and has since been settled. It is that they are to be specifically pleaded and strictly proved. See Odinako VS Motison (1992) 5 NWLR (Pt. 239) 102; Abi VS CBN (2012) 3 NWLR (Pt. 1286) 1.
Special damages are the damages which the law does not infer from the nature of an act but are exceptional in character. In UBN Plc VS Ajabule & Anr (2011) LPELR 8239 (SC) the Apex Court in explaining the requirement of specific pleading and strict proof of special damages stated:
”Special damages denote those pecuniary losses which have been crystalized in terms of cash and value before trial. It is the kind of damages which though based on the discretion of the trial Court, such must be backed up by credible evidence adduced before the Court which strictly proves the plaintiff’s entitlement to the award. It is therefore stated principle of law that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence. Without such proof, no special damages can be awarded.”
Though strict proof required in support of a claim for special damages means no more than adducing credible evidence in support of the claim, see S.P.D.C. VS Tiebo VII (2005) NWLR (Pt. 931) 439, credible evidence required to establish a claim for special damages must be evidence of pecuniary loss crystalized in monetary terms and value. It cannot be evidence at large or one that does not lend itself to specification and quantification. While evidence devoid of actual quantification of the actual loss suffered may be and is usually acceptable to prove general damages, such evidence is insufficient in the realm of a claim for special damages. ?strict proof of damages as the name connotes is the strict proof of the actual quantity and value of the items or loss specifically claimed as special damages.
In a situation similar to the present, this Court had occasion to explain what strict proof of special damage entails. It was in the case of Oba Olatoe Oyegade 7 Ors VS Oba James Adeleye Oyelowo & Anor (2012) LPELR 7893 (CA) where Alagoa JCA observed inter alia:
”The term ‘strict proof’ in a claim for special damages means exactly what it connotes i.e. strict proof of the quantity and value of each item of property alleged damaged.”
This also applies to the case at hand, where the Respondent claimed special damages of N2,000.00 for purchase of drugs but did not tender any receipt or any proof in support of the N2,000.00 or any sum of money so expended. Exhibit A, the prescription card, without anything more is insufficient to constitute the required strict proof of that special damage claimed. I am for this reason in agreement with the learned Appellant’s Counsel that the special damages was not proved.
On the general damages claimed, it is settled law that general damages are the losses that naturally flow from the wrong committed by the adversary and it is presumed by law. It needs not be pleaded or specifically proved provided that it flows naturally from the act of the defendant which vests in a trial Court the discretion to award what it deems appropriate in each case bearing in mind the principles guiding the award. See G.K.F. (Nig.) Ltd VS Nitel Plc (2009) 13 NWLR (pt. 1164) 344, 373; UBN Ltd VS Odusote Bookship (1995) 9 NWLR (Pt. 421) 558. This is so because they are damages awarded for injury or loss which are incapable of precise calculation monetarily and which are generally determined by way of estimates. The rationale for the compensatory theory is found in the maxim restitutio in integrum. The award is generally meant to restore the injured party to the position he or she was prior to the injury. See Cameroon Airlines VS Otutuizu (2011) 4 NWLR (Pt. 1238) 512.
An award of damages is ordinarily within the realm of the discretion of the trial Court and an appellate Court can only interfere when:- the trial Court has acted under a mistake of law; the trial Court has acted in disregard of known principles of law or on no principle at all; the trial Court has acted under a mis-apprehension of facts; the trial Court has taken into account irrelevant mattes or failed to take account of relevant matter; the amount awarded is either ridiculously too low or ridiculously too high that it must have been a wholly erroneous estimate of damages; or injustice would result if the appeal Court does not interfere. See Allied Bank VS Akubueze (1997) 6 NWLR (pt. 509) 374; Usong VS Hanseatic International Ltd (2009) LPELR 3434 (SC); CBN VS Aite Okojie (2015) 14 NWLR (pt. 1479) 231.
In the instant case, it is the contention of the Appellant’s Counsel that the award of general damages was made without proof of any damage suffered by the Respondent. This submission is unfounded having regards to the contents of Exhibit I and the oral evidence on record. Further more, the production of a medical report or certificate is not the only means of assessing damages for pain and suffering or loss of amenities of life. In Ediagbonya VS Dumez (Nig) Ltd the Supreme Court held:
”In respect of assessment for personal loss, which includes pain and suffering, and the loss or diminution of the enjoyment of life, the term ‘personal loss’ denotes every kind of harm and disadvantage which flows from a physical injury other than loss of money or property. It therefore necessarily includes loss or impairment of the integrity of the body pain and suffering both physical and mental loss of the pleasures of life: actual shortcoming of life and mere discomfort or inconvenience.”
In the light of this authority and several others, and in consideration of the excruciating pain, the humiliation suffered and his loss of earnings since his dismissal by the Appellant, the sum of N2,000,000.00 awarded as general damages is not excessive as argued in the alternative by the learned Appellant’s Counsel. There is therefore no basis for interference with the exercise of the trial Court’s discretion in the award. After all, the primary object of an award of damages is to compensate the plaintiff for the harm done to him; the damages, loss or injury he has suffered and to put him in the position he would have been if he had not suffered the wrong which he is now being compensated for. See Agu VS General Oil Ltd (2015) LPELR 24613 (SC); NEPA VS Anambra State Environmental Sanitation Authority & Ano VS Ekwenem (2009) 6 ? 7 (Pt. 11) SC 5.
On the whole, except for the award of special damages which was wrongly awarded, I resolve the issue against the Appellants and in favour of the Respondent.
Consequently, the appeal succeeds in part only to the extent of the award of special damages. The judgment of the lower Court including the order for award of general damages in the sum of N2,000,000.00 (Two Million Naira Only) is affirmed. The award of N2,000.00 (Two Thousand Naira Only) special damages is set aside. Parties shall bear the costs.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of reading a draft copy of the leading judgment delivered by my Noble Lord, AMINA AUDI WAMBAI, J.C.A. I am in agreement with the reasoning and decision arrived in allowing the appeal in respect of the award of special damages, and dismissing same in regard to the award of general damages.
For emphasis, let me say a few words on the award of general damages, and what an appellate can do, when there is an appeal against same. The law is trite, the claim of general damages need not be specifically pleaded and or claimed like special damages. The law is trite, once it is established that a plaintiff has been wronged thereby suffered certain disabilities or injuries which do not entitle him to special damages, general damages, damage can be awarded without move. What is general damages? In UBA v. Ogundokun (2009) 6 NWLR (Pt. 1138) P. 450 @ 489, general damages has been defined to be: ”General damages are damages which the law implies or presumes to have accrued from the wrong complained of or as the immediate, direct and proximate result of or the necessary result of the wrong complained of. It is awarded by the Court where it cannot point at any measure to assess the loss caused by the wrong complained of except the opinion and judgment of a reasonable man. Mobil Oil (Nig.) Ltd. v. Akinfosile (1969) NMLR 217; Beecham Group Ltd. v. Essdee Food Products (Nig.) Ltd.(1985) 3 NWLR (Pt. 11) 112; A. G. Oyo State v. Fairlakes Hotels Ltd. (No. 2) (1989) 5 NWLR (Pt. 121) 255; Consolidated Breweries Plc. V. Aisowieren (2001) 15 NWLR (Pt. 736) 424.”
General damages flows generally from the defendant’s wrongful act or omission hence they are implied by law and need not to be specifically pleaded and strictly proved by evidence. See also Hanseatic Int. Ltd. v. Usang (2002) 13 NWLR (Pt. 784) P. 784. It is important to take note that a Court in awarding damages should scrutinized a claim of general damages where a claim for special damages is also claimed and awarded in order to avoid double compensation. If the plaintiff recovers fully under special damages, the claim of general damages should be awarded with caution to avoid double compensation. See UBA Plc. V. Ogundokun supra P. 491.
In awarding general damages the trial Court has discretion when assessing the quantum. The circumstances and the evidence adduced before the Court must be related to the desirability to award general damages, especially the quantum of the damages to be awarded. See Okolo v. Dankobo (2006) 14 NWLR (Pt. 1040) 401 @ 434.
An Appellate Court is not to interfere or disturb the awarding and assessment of general damages unless there is the need to do so under certain circumstances to be proved by the party complaining on whether the assessment was wrongly done or unjustifiable in law. In Ahmed v. CBN (2013) 2 NWLR (Pt. 1339) P. 524 @ 541 the Supreme Court Per Adekeye, J.S.C. enunciated that:
”Award of damages is an exercise of discretion by the trial Court. An appellate Court will not interfere with an award of damages by a trial Court unless it is made under certain peculiar circumstances which include:
1. Where the exercise of discretion by the trial Court is perverse.
2. Where the Court acted under wrong principles of law, or
3. Where the Court acted in disregard of applicable principles; or
4. Where the Court acted in misapprehension of facts; or
5. Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award or
6. Where injustice will result if the appellate Court does not act; or
7. Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages.” Zik’s Press Ltd. v. Ikoku (1951) 13 WACA pg. 407; Bola v. Bankole (1986) 3 NWLR (Pt. 27) P. 141; Elf (Nig.) Ltd. v. Sillo (1994) 6 NWLR (Pt. 350) P. 258.
For the forgoing adumbration, and the move detailed resolution of the issues for determination in the appeal, I totally agree that the appeal partially succeeds. I abide by the order made on costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I am in agreement with the lead Judgment of my learned brother, Amina Audi Wambai JCA, as to the success of this appeal in part, with regard to the award of special damages. I accordingly set aside the award of special damages. Save as aforesaid, the Judgment of the lower Court is affirmed. Parties shall bear their respective costs.
Appearances:
Sagir S. Gezawa, Esq.For Appellant(s)
Abdurrazaq A. Esq.For Respondent(s)
