TOM TOTAL NIGERIA LIMITED v. SKYE BANK PLC (2017)

TOM TOTAL NIGERIA LIMITED v. SKYE BANK PLC

(2017)LCN/9602(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of March, 2017

CA/L/456/2007

RATIO

NEGLIGENCE: ESSENTIAL ELEMENTS THAT MUST BE PROVED TO SUCCEED IN AN ACTION FOR NEGLIGENCE

In law, negligence is constituted of three essential elements, namely: a) The duty of care owed the Claimant by the Defendant; b) The breach of that duty of care by the Defendant; and c) The resultant damages. Thus, the Claimant in an action for negligence must show that he had suffered damage as a consequence of the Defendant’s failure or breach of the Defendant’s duty of care owed to the Claimant. See: MTN v. Mundra Ventures (Nig) Ltd. (2016) LPELR – 40343 (CA) per Georgewill JCA @pp. 36 – 37. See also Olam (Nigeria) Ltd V International Bank Ltd (2009) LPELR – 8275 (CA); Koya v. UBA Ltd (1997) 1 NWLR (Pt. 481) 41; Osigwe V Unipetrol Ltd. (2005) 5 NWLR (Pt. 918) 261. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

DUTY OF A BANK: WHETHER A BANK HAS THE DUTY TO EXERCISE REASONABLE CARE AND SKILL IN CARRYING OUT ITS CUSTOMER’S INSTRUCTIONS

It is now well settled that generally in law a Bank in its dealings with its customers owes to them a duty of care and thus negligence if proved is a ground for liability against a Bank by its customer. It follows therefore that between the Respondent, a Bank and its customer, the Appellant, negligence will arise as rightly found by the Court below where the bank breaches the implied duty to observe the standard expected of a reasonable banker in respect of dealings with the customer’s account and the onus, which onus the Respondent failed to discharged as was also rightly found by the Court below, of proving that it is not negligent lies on the Bank.he Appellant as Claimant pleaded and led evidence that the Defendant had breached the duty of care created by the relationship of Banker/Customer in relation to the opening of the four letters of credit, out of only one LC 6/84 was allocated foreign exchange by the CBN while the others LC 3/84, LC 13/85 and LC 17/85 were misplaced and later found in a corner at Defendant’s head office in Lagos and a reversal of some of the debit notes made by the Respondent in favor of the Appellant. There is no gainsaying that where a Bank, such as the Respondent, is required to obtain foreign exchange allocation from the CBN on behalf of the customer, such as the Appellant, which is crucial for the carrying out business transactions and any adverse or commission could be fatal or jeopardize the interest of the customers, the Bank owes as a duty of care to exercise utmost care in handling such Letters of Credit. Thus, as rightly found by the Court below, where in handling such it is shown that there was manifest negligence the duty of care is clearly breached or broken. Interestingly, these findings by the Court below are not even being disputed by the Respondent in the instant appeal that it owed a duty to the Appellant to carry out its instructions by applying to the CBN for foreign exchange allocation for Claimant’s foreign customers and which duty it failed woefully to observe and hold in utmost good faith in relation to the three Letters of Credit but rather observed in the breach. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

SPECIAL/GENERAL DAMAGES: DISTINCTION BETWEEN SPECIAL DAMAGES AND GENERAL DAMAGES

My lords, the law as I understand it, is that damages being a constituent part of the tort of negligence, once proved, is not limited or circumscribed to special damages alone, as it does appear to be the line of thinking and reasoning of the Court below in refusing reliefs iv – ix, particularly reliefs vi, vii, vii & ix claimed by the Appellant against the Respondent. In law, as buttressed by a plethora of decided cases as are replete in our Law Reports, is that there is a distinction and very wide divide between special damages and general damages. These differences includes, though not intended as an exhaustive list of these differences, the following namely: 1: General damages need not be pleaded but special damages must be specifically pleaded; 2: General damages need not be proved but special damages must be specially proved; 3: In General damages the assessment is the duty of the Court but in special damages its assessment is based on what is specifically proved; 4. General damages refer to those damages, which flows naturally from the wrongful act of the Defendant but special damages are those damages which denotes those pecuniary losses which have crystallized in terms of cash and values before the trial. See ljebu Ode Local Government V. Adedeji Balogun & Co (1999) 1 NWLR (Pt. 166) 36. See also Bello v. AG Oyo State (1986) 5 NWLR (Pt. 45) 828; UBN Ltd V. Odusote Book Stores Ltd (1995) 9 NWLR (Pt.421) 558; The law is thus well settled that though there is need to specifically plead and strictly prove special damages, the rule requiring anyone asking for special damages to prove strictly that he did suffer such damages as he claimed, it does not means that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. However, is required to establish entitlement to special damages is credible evidence of such a character as would suggest that he indeed is entitled to an award under that head otherwise the general law of evidence as to proof by preponderance or weight as usual in civil cases operates. Thus, General damages are such as the Court may give when the judge cannot point out any measure upon which they are to be measured except the opinion and judgment of a reasonable man. They are losses which flow naturally from the Defendant and the quantum need not even be pleaded or proved as it is generally presumed by law. They are presumed to flow from the negligence complained of and proved and in appropriate and deserving cases shall be awarded to assuage the injury done to the successful Claimant against the Defendant. It is for this reason, the award of general damages is improper when quantum of loss is ascertainable. It is to be taken into account in awarding general damages matters which have been considered in awarding special damages. On the other hand, Special damages are those damages which are given in respect of any consequences reasonably and probably arising from the breach complained of. Thus they denote those pecuniary losses which have crystallized in terms of cash and values at the trial and must be specifically pleaded and strictly proved. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

SPECIAL/GENERAL DAMAGES: WHETHER THE LAW FORBIDS THE AWARD OF BOTH SPECIAL DAMAGES AND GENERAL DAMAGES

In all however, there is no principles of law that forbids, in appropriate and deserving cases in an action founded in tort unlike in contract, from granting both special damages as pleaded and proved and general damages as found flowing naturally and directly from the injury done to the Claimant by the Defendant, in so far as in the circumstances of the case it does not amount to double compensation. See ljebu Ode Local Government V. Adedeji Balogun & Co (1991) 1 NWLR (Pt. 166) 36. See also Bello v AG Oyo State (1986) 5 NWLR (Pt. 45) 828; UBN Ltd v Odusote Book Stores Ltd (1995) 9 NWLR (Pt. 421) 558; Oshinjirin V Elias (1970) All NLR 153; Warner International V. Federal Housing Authority (1993) 6 NWLR (Pt. 298) 148. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

DOUBLE COMPENSATION: WHETHER A PLAINTIFF CAN BE COMPENSATED IN RESPECT OF THE SAME INJURY UNDER ANOTHER HEAD OR CLAIM

In relation to relief ix, claiming yet again damages for negligence, as already claimed relief vi, which I had held was made out and the quantum already determined in this judgment, would in my finding clearly amount to double compensation if granted since in law, once a party is fully compensated under one head of damages, it would amount to double compensation to award him damages in respect of the same injury under another head or claim. See Onagba V. Micho & Co, (1961) All NLR 324. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

DETINUE: ESSENTIAL INGREDIENTS A PLAINTIFF MUST PROVE TO SUCCEED IN A CLAIM FOUNDED IN DETINUE

The above claim appears to me to be founded on detinue and in law for a Claimant, as in the instant case the Appellant, to succeed in a claim founded in detinue, he must plead and adduced credible, admissible and sufficient evidence to establish the constituent elements or essential ingredients of the tort of detinue, namely; 1. That he is the owner of the chattel or property in question; 2. That he has an immediate right to the possession of the chattel or property; 3. That the Defendant is or was in active possession of the chattel or property; 4: That the Plaintiff has made a proper demand on the Defendant to deliver up the chattel or property to the Plaintiff and 5: The Defendant has unjustifiably refused to deliver up possession of the chattel or property to the Plaintiff. See generally the following cases; Umoru V. Ijunu Local Government Council & Anor. (2010) LPELR 19759, per Bada, JCA. See also Sodimu v NPA, (1975) 4 SC 15 P. 27; Guinness Nig. Plc. v. Mooke (2001) FWLR (Pt. 36) 981; W.A. Oilfields Ltd v. UAC (2000) 13 NWLR ( 685) 68; UBA Ltd v. Osezua (1997) 2 NWLR (Pt 485) 28; Shuwa V CBDA (1991) 7 NWLR (Pt 205) 550. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

TOM TOTAL NIGERIA LIMITED Appellant(s)

AND

SKYE BANK PLC Respondent(s)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State, Coram: Ojikutu – Oshode J., in Suit No: LD/2758/1996: Tom Total Nigeria Limited V. Afribank Nigeria Plc (Later Skye Bank Plc) delivered on 25/2/2005, in which some of the claims of the Appellant as Claimant were granted against the Respondent as Defendant.

The Appellant was not completely satisfied with said judgment, even though entered in his favor, and had appealed to this Court vide his Original Notice of Appeal dated 10/5/2005 on a sole ground of appeal at pages 167 – 168 of the Record of Appeal. The 2nd Amended Notice of Appeal on three grounds of appeal was filed on 18/2/2016 but deemed properly filed on 16/5/2016. The 2nd Amended Appellant’s brief was filed on 18/2/2016 but deemed properly filed on 16/5/2016. The Respondent’s brief was filed on 23/11/20l2 but deemed properly filed on 23/912014.

At the hearing of this appeal on 13/2/2017, O. A. Okunowo Esq., learned counsel for the Appellant adopted the 2nd Amended Appellant’s brief as their arguments in this appeal and urged

the Court to allow the appeal. On its part, the Respondent though served with hearing notice on 6/2/2017 did not appear at the hearing of this appeal. The Respondent’s brief was thus deemed argued pursuant to Order 19 Rule 9 (a) of the Court of Appeal Rules 2016.

The Appellant, who was the Claimant before the Court below, carries on the business of suppliers of medical and scientific equipment and chemical and was at all material times to the filing of the suit before the Court below a customer of the Respondent at operating a current Account No. 35-000-129 and Fixed Deposit Account No. 70-100- 040 thereat. On various dates between 1984 and 1985, the Appellant had requested the Respondent to open four (4) letters of Credit, namely; LE 3/84, LE 6/84, L/020/00013/85 and L/020/00017/85 on the Appellant’s behalf with the Central Bank of Nigeria in favor of its overseas suppliers, out of which allocation of foreign exchange by the CBN was made to Letters of Credit No. LE 6/84, while the nothing was heard on the other three letters of credit, namely; LE 3/84, L/020/00013/85 and L/020/00017/85. The Appellant alleged that by reasons of the aforesaid, it suffered

loss of earning in anticipated profits from its business as it could not transact any business for the period the delay on the part of the defendant lasted. Subsequently, on 2/9/1996 the Appellant instituted an action before the Court below seeking the following reliefs, namely:
1) The sum of N207, 585.25 plus interest calculated at the Defendant’s applicable interest for different time and year from 21/5/1987 till date, then at the rate of 21% per annum from the date of filling of this Writ till payment of the Judgment debt.
2) The sum of N40, 000, 000. 00 as damages for loss of business transaction with oversea customers.
3) Immediate refund of the Claimant’s N100,000.00 Fixed Deposit with the Defendant plus interest calculated at the Defendant’s applicable interest rate for different time and year from 15/8/1986 till date, then at the rate per annum from the date of filing of this Writ till payment of the judgment debt.
4) The sum of N40,000,000.00 as damages for:
a) The embarrassment, shock and distress received from the Defendant’s Solicitors letters demanding for money not owed.
b) Wrongfully withholding the two Deeds of Titles

deposited by the Claimant with the Defendant.
c) The profits the Claimant must have made from business transaction if the N100,000.00 Fixed Deposit and Deed of Titles are made available to them on request.

Subsequently, on 10/1/2003, the Appellant sought and obtained the leave of the Court below and filed its 2nd Amended Statement of Claim seeking nine reliefs, including declarations, orders and damages against the Respondent. See pages 1 – 2, 44 -53 of the Record of Appeal. On its part, the Respondent, as Defendant before the Court below, denied in the main, the claims of the Appellant pleading and relying on several defence including lack of proper documentations, exchange rate fluctuation and indemnity. See pages 54 – 59 of the Record of Appeal. Trial commenced on 30/1/2002 when the Appellant called its only witness, one Engineer Amos Olasupo Tomori, its MD who testified as PW1 and tendered several documents admitted in evidence as Exhibits A – OT “1” and closed its case on 8/5/2003. The Respondent opened its defense on 2/10/2003 and also called only one witness, one Mr. Ilesanmi Jegede who testified as DW1 and tendered some documents admitted in

evidence as Exhibits OT2 – OT4 and closed its case on 20/1/2004. On 21/9/2004, the parties through their respective counsel adopted their final written addresses and on 25/2/2004, the Court below delivered its judgment granting reliefs i, ii & iii in the 2nd Amended Statement of Claim in favor of the Appellant against the Respondent. See pages 71-91, 93 – 101 and 131 -166 of the Record of Appeal.

ISSUES FOR DETERMINATION:
In the 2nd Amended Appellant’s brief, three issues were distilled as arising for determination in this appeal, namely:
“1. Whether the Appellant is entitled to the award of damages for the negligent handling of his accounts by the Respondent? (Distilled from Ground 1)
2. Whether the Appellant is entitled to interest on the money fixed from 1987 or from the date of judgment? (Distilled from Ground 2)
3. Whether the Appellant is entitled to award of damages in respect of his two title deeds wrongfully withheld by the Respondent for 8 years? (Distilled from Ground 3)”

In the Respondent’s brief, three issues were also distilled as arising for determination in this appeal, namely:
“1. Whether or not having

awarded the sum of N207, 585.25 as claimed by the Appellant, the Court below ought to have awarded General Damages in addition? (Distilled from Ground 1)
2. Whether the Appellant is entitled to interest on the money fixed from 1987 or from the date of Judgment? (Distilled from Ground 2)
3. Whether the Appellant is entitled to award of Damages in respect of its two title deeds said to be wrongfully withheld by the Respondent for 8 years? (Distilled from Ground 3)”

My lords, I have taken time to calmly review the pleadings and evidence led by the parties as can be gleaned from the Record of Appeal, particularly as to the issues of facts joined therein. I have also calmly reviewed the submissions of counsel in their respective briefs in the light of the findings and orders in the judgment of the Court below appealed against and it does appear to me that there are no much disputes as to the findings of the Court below save in a very limited ambit dealing with the award or non award of damages and commencement of payment of interest on the judgment sums. I therefore, would set down the Respondent’s issue one and the Appellant’s issues two and three as

the three apt issue for determination in this appeal. In accepting the Respondent’s issue one in place of the Appellant’s issue one, I have borne it in mind that the claims of the Appellant were founded on breach of contract and not in the realm of torts. However, I shall consider issues one and three, dealing with the award of damages, together and resolve them in one fell swoop.

ISSUES ONE AND THREE (Taken together)
“1. Whether or not having awarded the sum of N207, 585. 25 as claimed by the Appellant, the Court below ought to have awarded General Damages in addition?
3. Whether the Appellant is entitled to award of damages in respect of his two title deeds wrongfully withheld by the Respondent for 8 years?”

APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, the Appellant’s counsel had submitted that the Court below having held that the Respondent was negligent in handling the account of the Appellant it was automatic that damages should follow there from and contended general damages are losses which flow naturally from the Defendants acts and is thus implied in law and need not be specifically pleaded and proved by evidence and urged

the Court to hold that the Court below was in error not to grant general damages for the Respondent’s negligence proved by the Appellant. Counsel relied on A.C.B Ltd. V Apugo (2001) 2 SC 215 @p. 229; Bhojsons Plc. v Daniel – Kalio (2006) 5 NWLR (Pt. 973)330 @ p.359; Kareem & Ors. v Ogunde & Anor. (1972) 1 All NLR 73 @p. 80; Agbanelo v. UBN (2000) 4 SC (Pt.1) 233; SPDC. (Nig) Ltd. V. Tiebo VII (2005) 9 NWLR (Pt 931) 439 @p. 466; Brawal Shipping (Nig) Ltd v. Onwadike (2000) FWLR (Pt. 23) 1254; Unipetrol Nigeria Plc V. Adireje (W.A.) Limited (2005) 14 NWLR (Pt. 946) 563.

On his issue three, the Appellant’s counsel had submitted that the Appellant gave unchallenged evidence through its sole witness that the Appellant’s two Title Deeds were with the Respondent between 1985 – 1994 despite several letters for their return, the Respondent refused to release them to the Appellant, which wanted to use the Title Deeds to obtain other loans from the banks to run its business and contended that in law this evidence which remain un-controverted and unchallenged ought to be believed and acted upon by the Court below in finding for the Appellant but which the

Court below failed to so do and urged the Court to allow the appeal. Counsel relied on Akhigbe v. Osundu (1999) 7 SC (Pt. 1) 1 @ p. 9; Oduntan v. Akibu (2000) 7 SC (Pt. 11) 106 @ p.140; Union Bank of Nigeria Limited V. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, the Respondent’s counsel had submitted that the Court below having awarded the sum of N207,585.25 as claimed by the Appellant was right in not awarding any amount as general damages in addition and contended that though the Appellant was able to establish and it was found that the Respondent was negligent in mishandling, operating and management of Appellant’s account in respect of the three (3) letters of credit (i.e. LE 3/84, L/020/00013/85 and L/020/00012/85, the Appellant failed to establish or prove by any credible evidence what injury or damage it suffered as a result of the Respondent’s negligence, since in law negligence is only actionable if actual damage is proved and thus there is no right of action for nominal damages and it is not that act or the failure to act but the consequences on which the tortuous act is founded

that add together for award of damages. Counsel relied on Makwe V Nwukor (2001) 14 NWLR (Pt. 733) 356; UBA v. Ogundokun (2009) 31 WRN 21 @ pp. 28 – 29.

The Respondent’s counsel submitted, alternatively, that the sum of N207,585.25 awarded by the Court below suffices in the circumstance as general damages in that as rightly held by the Court below the principles guiding the award of damages in tort are different from those guiding the award of damages in contract and the object of damages in tort is to put the Claimant in the position he would have been if the tort had not been committed, whereas, the object of damages in contract is to put the claimant in a position he would have been if the contract had been satisfactorily performed and urged the Court to affirm the findings of the Court below and to dismiss the appeal. Counsel referred to Charlesworth & Percy on Negligence Paragraphs 4 – 41 @P. 281; Clerks & Lindsel on Torts, 15th Edition Paragraph 5.04 @P. 207.

On his issue three, the Respondent’s counsel had submitted that it was in evidence before the Court below that the two Title Deeds of the two properties do not belong to the

Appellant but to a third party, who was not made a party to the suit and the Appellant failed to tender any of the several letters that it alleged was written to the defendant to demand for the return of the title deeds coupled with the absence of any evidence to show what the Appellant actually suffered as a result of the none return of the two title deeds and contended that in the circumstances of the instant appeal it was therefore proper for the Court below not to have awarded damages in favor of the Appellant and urged the Court to dismiss the appeal.

RESOLUTION OF ISSUES ONE AND THREE
My lords, issues one and three deal, in the main, with the issues of proof, entitlement, assessment and quantum of damages. In the judgment of the Court below, these issues were so comprehensively dealt with and some of the reliefs claimed by the Appellant as Claimant were granting. The Court below had reasoned and held inter alia thus:
“However since the Defendant had reversed all the debit entries….made in error in the claimant’s account, the only item remaining is the refund of the naira equivalent paid by the Claimant to the Defendant at the time it

submitted the LCS for foreign exchange allocation by the CBN….The question now is: What then is the consequence that should follow from the findings now made in response to the issue of damages….Also I have held that Defendant refund to the claimant the sum of N207, 585.25. I have also held that Defendant refund to the claimant the sum of N100,000.00 together with all accrued interest being the outstanding balance in its Fixed Deposit Account No. 70-100-040. However, turning to claims in paragraph 55 of the 2nd Amended statement of claim of the claimant claims (iv)-(ix) failed and is hereby refused and same has not been by any credible documentary evidence before the Court during the trial of this matter. The Defendant has been using for profit the money, which ought to have been paid to the Defendant since 1987 it is only equitable that interest be paid. In accordance with the Rules of this Court, the claims in paragraph 53 (ii) & (iii) of the 2nd Amended Statement of Claim shall at the rate of 10% per annum and the same shall be paid by the Defendant to the Claimant from the day of Judgment until final liquidation of the judgment sum.

Consequently, JUDGMENT is hereby entered in favor of the claimant against the Defendant per paragraph 53 (i), (ii) & (iii) of the 2nd Amended statement of claim.”

The crux of the complaint of the Appellant forming the basis of issues one and three relates to the refusal of the Court below to grant general damages for the claim and ultimately found proved negligence of the Respondent and also for the Respondent’s continued detention of the two Title Deeds for 8 years before its release to the Appellant, despite not granting the loan sought for which the Appellant deposited those Title Deeds. Now, there is no dispute and I take it that both parties are agreed and bound by the findings of the Court below that the Respondent was negligent in its handling, operation and management of the Appellant’s business affairs in relation to the three letters of credit not opened despite the payment made by the Appellant to service them leading to the complete collapse of the Appellant’s business as claimed in relief I in paragraph 55 of the 2nd Amended Statement of Claim and duly granted by the Court below. See pages 55 and 162 – 166 of the Record of Appeal.<br< p=””

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In law, negligence is constituted of three essential elements, namely: a) The duty of care owed the Claimant by the Defendant; b) The breach of that duty of care by the Defendant; and c) The resultant damages. Thus, the Claimant in an action for negligence must show that he had suffered damage as a consequence of the Defendant’s failure or breach of the Defendant’s duty of care owed to the Claimant.
See: MTN v. Mundra Ventures (Nig) Ltd. (2016) LPELR – 40343 (CA) per Georgewill JCA @pp. 36 – 37. See also Olam (Nigeria) Ltd V International Bank Ltd (2009) LPELR – 8275 (CA); Koya v. UBA Ltd (1997) 1 NWLR (Pt. 481) 41; Osigwe V Unipetrol Ltd. (2005) 5 NWLR (Pt. 918) 261.

customer’s account and the onus, which onus the Respondent failed to discharged as was also rightly found by the Court below, of proving that it is not negligent lies on the Bank. The Appellant as Claimant pleaded and led evidence that the Defendant had breached the duty of care created by the relationship of Banker/Customer in relation to the opening of the four letters of credit, out of only one LC 6/84 was allocated foreign exchange by the CBN while the others LC 3/84, LC 13/85 and LC 17/85 were misplaced and later found in a corner at Defendant’s head office in Lagos and a reversal of some of the debit notes made by the Respondent in favor of the Appellant. There is no gainsaying that where a Bank, such as the Respondent, is required to obtain foreign exchange allocation from the CBN on behalf of the customer, such as the Appellant, which is crucial for the carrying out business transactions and any adverse or commission could be fatal or jeopardize the interest of the customers, the Bank owes as a duty of care to exercise utmost care in handling such Letters of Credit. Thus, as rightly found by the Court below, where in handling such business transaction

it is shown that there was manifest negligence the duty of care is clearly breached or broken. Interestingly, these findings by the Court below are not even being disputed by the Respondent in the instant appeal that it owed a duty to the Appellant to carry out its instructions by applying to the CBN for foreign exchange allocation for Claimant’s foreign customers and which duty it failed woefully to observe and hold in utmost good faith in relation to the three Letters of Credit but rather observed in the breach.

the following namely: 1: General damages need not be pleaded but special damages must be specifically pleaded; 2: General damages need not be proved but special damages must be specially proved; 3: In General damages the assessment is the duty of the Court but in special damages its assessment is based on what is specifically proved; 4. General damages refer to those damages, which flows naturally from the wrongful act of the Defendant but special damages are those damages which denotes those pecuniary losses which have crystallized in terms of cash and values before the trial. See ljebu Ode Local Government V. Adedeji Balogun & Co (1999) 1 NWLR (Pt. 166) 36. See also Bello v. AG Oyo State (1986) 5 NWLR (Pt. 45) 828; UBN Ltd V. Odusote Book Stores Ltd (1995) 9 NWLR (Pt.421) 558;
The law is thus well settled that though there is need to specifically plead and strictly prove special damages, the rule requiring anyone asking for special damages to prove strictly that he did suffer such damages as he claimed, it does not means that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish

entitlement to special damages. However, is required to establish entitlement to special damages is credible evidence of such a character as would suggest that he indeed is entitled to an award under that head otherwise the general law of evidence as to proof by preponderance or weight as usual in civil cases operates. Thus, General damages are such as the Court may give when the judge cannot point out any measure upon which they are to be measured except the opinion and judgment of a reasonable man. They are losses which flow naturally from the Defendant and the quantum need not even be pleaded or proved as it is generally presumed by law. They are presumed to flow from the negligence complained of and proved and in appropriate and deserving cases shall be awarded to assuage the injury done to the successful Claimant against the Defendant. It is for this reason, the award of general damages is improper when quantum of loss is ascertainable. It is to be taken into account in awarding general damages matters which have been considered in awarding special damages. On the other hand, Special damages are those damages which are given in respect of any consequences

reasonably and probably arising from the breach complained of. Thus they denote those pecuniary losses which have crystallized in terms of cash and values at the trial and must be specifically pleaded and strictly proved.

The Court below having found as fact that the Respondent was liable in negligence only granted the declaration in relief i and the special damages claimed in reliefs ii & iii but declined to grant the general damages

claimed in reliefs vi, viii & ix, holding that. However, coming to claim 55 of the 2nd Amended Statement of Claim of the Claimant, claims (iv) – (ix) failed and is hereby refused and same has not been proved by any credible documentary evidence before this Court during the trial of this matter.” The Appellant’s counsel had contended vehemently that the claim for general damages was refused in error by the Court below and had urged this Court to grant same as flowing from the negligence of the Respondent and the resultant damages caused to the Appellant’s business. On the other hand, the Respondent’s counsel had contended that the Court below had granted all that the Appellant was entitled to and that at best all that is required was an application to correct the orders made to reflect the reliefs as already granted by the Court below in favour of the Appellant.

My lords, having earlier reiterated the applicable and guiding principles of law on the grant or refusal of general damages and more especially the well settled position of the law that general damages need not be pleaded or proved, I find the refusal of the Court below to grant general

damages on the reason that it was not proved as gravely in error, as it does not represent the correct position of the law on general damages, which principles the Court below had earlier so eloquently expounded in its judgment. There is the finding by the Court below that the negligent action of the Respondent in failing to process with due care and diligence three out of the four letters of credit had occasioned damages to the business of the Appellant. In my finding, therefore, the grant of the reliefs i, ii & iii did not in any way obviate the need to consider and assess what may be adequate as general damages to assuage the losses occasioned to the Appellant by the Respondent’s negligence. It is also my finding that in the circumstances of the instant appeal on the proved evidence before the Court below as in the Record of Appeal, a grant of general damages claimed in relief vi would not amount to double compensation. The Appellant is therefore, in my finding entitled to general damages under relief vi, which I assess at N5, 000,000.00.

In relation to reliefs iv, v, viii & ix, the Court below was perfectly right in refusing it either for lack

of evidence in proof thereof or as in my finding amounting to double compensation. Now, in relation to relief viii, it is in the nature of a claim for damages for defamation of which no scintilla of evidence was led by the Appellant and was thus rightly refused by the Court below. In relation to relief ix, claiming yet again damages for negligence, as already claimed relief vi, which I had held was made out and the quantum already determined in this judgment, would in my finding clearly amount to double compensation if granted since in law, once a party is fully compensated under one head of damages, it would amount to double compensation to award him damages in respect of the same injury under another head or claim. See Onagba V. Micho & Co, (1961) All NLR 324.

I shall now consider the refusal by the Court below to grant relief vii on the ground of lack of evidence. By paragraph 55 (vii) of the Amended Statement of Claim at page 52 of the Record of Appeal, the Appellant as claimant claimed as follows:
“The sum of N20,000, 000.00 only being damages for loss of use of the two Deeds of title wrongfully withheld by the Defendant for about 8 years

thus preventing the use of the title deeds to obtain facilities from other financial institutions.”

Osezua (1997) 2 NWLR (Pt 485) 28; Shuwa V CBDA (1991) 7 NWLR (Pt 205) 550.

The Court below found, and quite rightly too, that the Appellant as Claimant did not adduce any evidence sufficient enough to warrant the granting of this relief. I agree with the Court below and hold that it was perfectly in order when it refused to grant relief ix in favor of the Appellant against the Respondent. In the circumstances therefore, and in the light of my findings above, I hold that the Court below was wrong when it refused to grant relief vi of the Appellant’s claim by declining to consider general damages resulting from the negligent acts of the Respondent and due to the Appellant. I therefore resolve issue one in the affirmative in favor of the Appellant against the Respondent, while I resolve issue three in the negative against the Appellant in favor of the Respondent.

ISSUE TWO
“Whether the Appellant is entitled to interest on the money fixed from 1987 or from the date of Judgment.”

APPELLANT’ S COUNSEL SUBMISSIONS
On his issue two, the Appellant’s counsel had submitted that the Court below having held that the Defendant has been using for

profit the money which ought to have been paid to the claimant since 1987, it is only equitable that interest be paid, ought to have awarded to the Appellant pre-judgment interest on the two accounts from 1987 until the date of judgment and contended that the Respondent is a licensed Commercial Bank and thus bound by the trade custom to give interest on money lodged with it and urged the Court to allow the appeal and to award pre – judgment interest in favor of the Appellant. Counsel relied on U.B.N Ltd V. Salami (1995) 3 NWLR (Pt. 538) 347; Idakula V Richards (2000) FWLR (Pt. 14) 2439; Jelico Ltd. V. Owoniboys Tech. Serv. Ltd. (1995) 4 NWLR (Pt. 391) 534 @p. 550.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue two, the Respondent’s counsel had submitted that the Court below having granted reliefs (ii) & (iii) in paragraph 55 of the 2nd Amended Statement of Claim, had granted the pre – judgment interest as claimed therein by the Appellant and contended that in the circumstance, the appeal on this ground was most unnecessary as all that the Appellant ought to have done was to have brought an application before the Court below to correct the mistake

or the inconsistencies in the said last two paragraphs of the Judgment in which the interest was restricted to post – judgment interest. Counsel referred to Paragraph 42.31 of Practice & Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria, 2nd Edition By T. Akinola Aguda @P. 570.

The Respondent’s counsel further submitted that in law generally the Courts have the power to award pre-judgment interest but contended that such pre-judgment interest can only be awarded based on credible evidence placed before it by the Claimant, which the Appellant failed to do and was thus not so entitled and urged the Court to allow the appeal. Counsel relied Petgas Resources Ltd. V Louis N. Mbanefo (2007) NWLR (Pt. 1031) 545 @ p. 549; Consolidated Resources Limited V. Abofor Ventures Nigeria Limited (2007) 6 NWLR (Pt. 1030) 225

RESOLUTION OF ISSUE TWO
My lord, the fulcrum of issue two is simply when in an action can pre – judgment interest be claimed and granted by the Court. This issue deals mostly with the applicable law. The law on pre – judgment interest is that it is to be awarded where there is an agreement for payment of

interest or under mercantile custom or under principle of equity, as in breach of fiduciary duty. In all such cases the law is that pre-judgment interest is as of right. However, in all other cases the law requires the person claiming such right to pre – judgment interest to so plead and prove it at the trial. In all therefore, it is never granted as of course, it must either be part of the contemplation of the parties by virtue of their contract terms or mercantile custom or fiduciary duty or it is specifically pleaded and proved. In Ferrero &- Company Ltd..L V. Henkel Chemicals Nigeria Ltd (2011) LPELR – 12 (SC), His lordship, Onnoghen,. JSC (as he then was, Now Ag. CJN) had expatiated on the rationale behind this principle of law inter alia thus:
“It follows that before a party can claim pre-judgment interest he has to plead not only his entitlement to the interest but the basis of the entitlement either by Statute or contract/agreement between the parties, or mercantile custom or principle of equity, such as breach of fiduciary relationship. It is not for the Court to speculate or conjecture or assume the facts relevant to the claim. The relevant

facts must be pleaded, as fact not pleaded goes to no issue. In addition to the requirement of pleading the relevant facts, the Plaintiff must adduce evidence at the trial in proof of the relevant facts. Where there is no evidence in proof of the facts, then the pleadings are deemed abandoned.”
See also UBA Plc. v. Oranuba (2013) LPELR – 20692 (CA). See also Hausa v. FBN Plc. (2000) 9 NWLR (Pt. 671) 64; Ekwunife v. Wayne W/A Ltd (1989) NWLR (Pt. 122) 422; Himma Merchant Ltd v. Alhaji Inuwa Audu (1994) NWLR (Pt.347) 667 @ pp. 676 – 677; Stabilini Visioni Ltd. V. Metalum Ltd. (2007) LPELR – 8661 (CA).

In the instant appeal, the Appellant as Claimant duly pleaded and claimed pre-judgment interest for reliefs ii & iii, which relief were granted by the Court below but which went on to state and order as follows:
“As the Defendant has been using for profit the money which ought to have been paid to the claimant since 1987, it is only equitable that interest is paid. In accordance with the Rules of Court the said sums in paragraphs 53 (ii) & (iii) of the 2nd Amended statement of claim shall carry interest at the rate of 10% per annum and the

same shall be paid by the Defendant to the claimant from the day of judgment until final liquidation of the judgment sum.”

My lords, on the pleadings, facts and circumstances of this appeal, it is not in doubt that payment of interest was clearly an integral part of the transactions between the Appellant, a Customer, and the Respondent his Bankers. There was therefore both the mercantile custom of transactions with Bank attracting interest and the fiduciary relation that existed between the Appellant and the Respondent that payment of interest is a sine quo non and taken for granted between the parties. The Court below, which had granted reliefs i & ii as claimed by the Appellant as Claimant, and which reliefs included pre – judgment interest, regrettably in making its final orders somersaulted or more appropriate forgot to keep in view the reliefs ii & iii it had earlier granted, and proceeded to limit the interest payable on the judgment sum to post – judgment interest as allowed by its Rules. I find that the Court erred in so directing and converting the pre – judgment interest claimed and proved by the Appellant to post judgment interest only

and I hereby set aside that order of the Court below. In its stead, I hold and so order that that the pre – judgment interest payable on the judgment sums under reliefs ii & iii, excluding the general damages of N5,000.000. 00 granted in this judgment, shall begin to run from 21/5/1987 at the rate of 8. 5% PA in respect of relief ii and from 8/6/1986 at the rate of 8.5% PA in respect of relief iii, until the date of the judgment of the Court below and thereafter at the rate of 10% PA from the date of the judgment of the Court below until the these judgment sums are liquidated by the Respondent as allowed by the Rules of the Court below. As regards the judgment sum of N5,000,000.00 awarded in this judgment as general damages, post judgment interest at the rate of 10% PA as allowed by the Rules of the Court below shall be paid from date of the judgment of the Court below until the entire judgment sum is liquidated by the Respondent

?In the circumstances therefore, I hereby resolve issue two in favor of the Appellant against the Respondent and hold firmly that interest rate on the judgment sums in respect of reliefs ii & iii shall be pre – judgment

interest rate and not post – judgment interest rate as ordered in error by the Court below. On the whole therefore, this appeal has merit and ought to succeed. Consequently, it is hereby allowed.

In the result, the judgment of the High Court of Lagos State, Coram: Ojikutu – Oshode J., in Suit No: LD/2758/1996: Tom Total Nigeria Limited V Afribank Nigeria Plc (Later Skye Bank Plc) delivered on 25/2/2005, in which some of the claims of the Appellant as Claimant were granted against the Respondent as Defendant is partly set aside and it is ordered as follows:
1. There shall be pre – judgment interest payable on the judgment sums under reliefs ii & iii, which shall run from 21/5/1987 at the rate of 8. 5% PA in respect of relief ii and from 8/6/1986 at the rate of 8.5% PA in respect of relief iii, until the date of the judgment of the Court below and thereafter at the rate of 10% PA from the date of the judgment of the Court below until these judgment sums are liquidated by the Respondent as allowed by the Rules of the Court below.
2. There shall be post-judgment interest payable on the general damages of N5,000,000.00 awarded in this judgment

at the rate of 10% PA as allowed by the Rules of the Court below from date of the judgment of the Court below until the entire judgment sum is liquidated by the Respondent.

There shall be no order as to cost.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in print the judgment prepared by my learned brother, Biobele Abraham Georgewill, J.C.A., with which I agree with nothing extra to add.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I have had the privilege of reading in draft the leading judgment just delivered by my learned brother, Biobele Abraham Georgewill, JCA and I agree that there is substance in this appeal and that the same should be allowed in part.

For the same reasons set out in the said judgment, I too, allow this appeal in part and abide by the consequential orders including those as to costs therein contained.

?Appeal succeeds in part

Appearances

O. A. Okunowo, Esq.For Appellant

AND

The Respondent was not represented by counsel.For Respondent

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