LawCare Nigeria

Nigeria Legal Information & Law Reports

U.B.A. PLC v. EZE (2020)

U.B.A. PLC v. EZE

(2020)LCN/15608(CA)

In the Court of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/E/181/2016

 

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

 

Between

UNITED BANK FOR AFRICA PLC APPELANT(S)

And

HYACINTH OSONDU EZE RESPONDENT(S)

 

RATIO:

MEANING AND NATURE OF GENERAL DAMAGES

In YALAJU V. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD. & ORS (1990) LPELR-3511(SC) AT 47 (B-E), the Supreme Court Per KARIBI-WHYTE, J.S.C stated the meaning and nature of general damages as follows:
“It is well settled law that general damages is the kind of damage which the law presumes to now flow from the wrong complained of. They are such as the Court will award in the circumstances of a case, in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man. See Lar v. Stirling Astaldi Ltd. (1977) 11/12 S.C.53; Omonuwa v Wahabi(1976) 4.S.C.3 MISITURA OMODERE BOLAJI-YUSUF, J.C.A.

THE AWARD OF DAMAGES IS AT THE DISCRETION OF THE COURT

“It is now trite that an appellate Court does not ordinarily alter or interfere with an award of damages made by the lower Court except where the award is shown to be either manifestly too high or manifestly too low or where it was based on a wrong principle. The award of damages is at the discretion of the trial Court. An appellate Court will not interfere with an award of damages by a trial Court only because it is inclined to make a different award. MISITURA OMODERE BOLAJI-YUSUF, J.C.A

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the High Court of Enugu State delivered in suit no. E/56/2011 on 8/2/16 Coram. R.N. Onurah, J. The respondent was a customer of the appellant bank. He took a loan of N12,000.00 (Twelve Thousand Naira) from the appellant sometime in 1998. He deposited the originals of this Bachelor of Education Degree Certificate issued by the University of Ibadan, National Youth Service Discharge Certificate and National Directorate of Employment Certificate as collateral for the loan. Having fully repaid the loan in January, 2001, the respondent made several demands for the return of his certificates. The appellant failed to return the certificates. The respondent then instituted the suit at the Court below and sought the following reliefs in his amended statement of claim filed on 201/1/2012:
“An order of specific performance compelling the defendants to return to the plaintiff forthwith the three certificates deposited as collateral by the plaintiff, namely, B.Ed certificate from the university of Ibadan, NYSC discharge certificate and National Directorate of Employment certificate.
In the alternative N100M (One Hundred Million Naira) compensation for permanent loss of the three certificates.
N5M (Five Million Naira) damages for detention.”

By its statement of defence filed on 16/7/2014, the appellant stated that it had made it clear to the respondent that the certificates were missing and the strenuous efforts were being made to trace them and would be returned to the respondent as soon as they are found.

The respondent testified as PW1. He called no other witness. The appellant called only one witness who testified as DW1. In its considered judgment, the Court below entered judgment in favour of the respondent as follows:
“1. N12,000.00 (Twelve Thousand Naira) as compensation for the loss of the certificates.
1. N4,000,000.00 (Four Million Naira) general damages for unlawful detention and loss of the plaintiff’s certificates by the defendant.
2. Defendant shall pay to the plaintiff the sum of N8,000.00 as cost including out of pocket expenses.”

Being dissatisfied, the appellant filed a notice of appeal against the judgment on 30/3/2016. The four (4) grounds of appeal contained in the notice without their particulars are as follows:
GROUND 1
“The lower Court misdirected itself in law when it classified the respondent’s cause of action in the suit as one sounding in the tort of detinue instead of an action for breach of contract, and awarded damages to the respondent, as plaintiff on that basis.
GROUND 2
The lower Court erred in law when it awarded damages to the respondent in the sum of Four Million Naira (N4,000,000) in the suit, being an action for breach of contract.
GROUND 3
The lower Court erred in law when it awarded Four Million Naira (N4,000,000) as general damages to the respondent for loss of the certificates, after assessing the monetary value of the lost certificates as Twelve Thousand Naira (N12,000) and awarding the said amount to the respondent “as compensation for the loss of the certificates.”
GROUND 4
The lower Court erred in law when it awarded Four Million Naira (N4,000,000) as general damages to the respondent for loss of the certificates in the absence of any evidence to show any special loss suffered by the respondent in consequence of the loss of the certificates.”

Pursuant to an application filed on 2/1/2020, the appellant was granted leave to raise and argue fresh issues which according to counsel were not raised at the Court below. The fresh issues already raised in the grounds of appeal and argued in the appellant’s brief were deemed as properly raised and argued by the order of this Court made on 3/6/2020. The appellant’s brief of argument was filed on 24/6/2016. The respondent/cross appellant’s brief of argument was filed on 1/7/2019 and deemed as properly filed and served on 2/7/19. Appellant’s reply brief to the respondent’s brief of argument was filed on 2/6/20 and deemed as properly filed and served on 3/6/20.

The appellant’s counsel formulated the following issues for determination:
1. “Whether the lower Court was right when it classified the respondent’s cause of action as a tort of detinue instead of an action for breach of contract and granted damages in his favour on that basis. (distilled from ground 1 of the notice of appeal).
2. Whether the lower Court was right when it awarded general damages to the respondent in the sum of Four Million Naira (N4,000,000) being an action for breach of contract. (distilled from ground 2 of the notice of appeal.)
3. Whether the lower Court was right when it awarded Four Million Naira (N4,000,000) as general damages for loss of the certificates after assessing the monetary value of the lost certificates as Twelve Thousand Naira (N12,000) and awarding the said Twelve Thousand Naira (N12,000) to the respondent “as compensation for the loss of the certificates.” (distilled from ground 3 of the notice of appeal)
4. Whether the lower Court was right when it awarded Four Million Naira (N4,000,000) as general damages for loss of the Certificates in the absence of any evidence to show any special loss suffered by the respondent in consequence of the loss of the certificates. (distilled from ground 4 of the notice of appeal).”

The respondent’s counsel formulated the following issues for determination:
1. “Whether the learned trial judge was wrong in treating this suit as one coming under the tort of detinue and whether by so doing he has occasioned any miscarriage of justice to the appellant?
2. Whether the trial judge was wrong in awarding general damages of N4M to the plaintiff for the permanent loss of his certificates by the appellant.”

I have carefully considered the grounds of appeal, the judgment of the Court below and the argument of counsel on both sides. I am of the view that the issue which call for determination in the main appeal is whether the Court below was right when it awarded the sum of N4,000,000:00 as general damages for the loss of the respondent’s certificates by the appellant.

The learned counsel for the appellants argued that since the respondent’s suit had its root in the loan contract between the appellant and the respondent, the suit as constituted is an action in contract and not in tort. Therefore, the Court below was wrong when it classified the suit as an action in the tort of detinue and awarded damages on that basis. He referred to EAGLE SUPER PACK LTD V. A. C. B. (2006) 12 KLR (PT. 226) 3537, 3558-3559, ISHOLA INVESTMENT LTD. V. AFRIBANK PLC (2013) 2 KLR (PT. 325) 1025, 1038-1040. ARMEL TRANSPORT LTD. V. TRASCO (NIG) LTD. (1974) 11 SC 173. Counsel further submitted that the right classification would have affected the nature and quantum of damages the Court below awarded as the measure of damages in an action in tort is not the same as measure of damages in an action for breach of contract. He referred to G. F. K. INV. LTD. V. NITEL (2009) 7 KLR (PT.270) 1899 AT 1927, NRC V. UMERA (2006) 17 NWLR (PT. 1008) 277.He submitted that there is no room for award of general damages in an action for breach of contract, it is damages simpliciter for loss arising from breach of contract and the loss must be within the contemplation of the parties. Counsel argued that the award of N4,000,000 (Four Million Naira) as general damages for unlawful detention and loss of the appellant’s certificate amount to double compensation which is prohibited in law even if the suit was rightly classified as an action in tort. He referred to AGU V. GENERAL OIL LTD (2015) LPELR-24613 (SC), TSOKWA MOTORS NIG. LTD. V. UBA PLC (2008) 2 NWLR (PT. 1071) 347, (2008) LPELR-3266 (SC), OGBONNA V. OGBONNA & ANOR (2014) LPELR-22308 (CA). He finally submitted that the Court below was wrong when it awarded N4,000,000 (Four Million Naira) as general damages for loss of the certificates in the absence of any evidence showing any special loss suffered by the respondent in consequence of the loss of the certificates. He referred to ACB ANOR V. NDOMA-EGBA (2000) LPELR-10532 (CA), BAKER MARINE NIG. LTD V. CHEVRON NIG. LTD (2006) 6 KLR (PT. 220) 2035, 2055, ODUMOSU V. A. C. B. LTD. (1976) 11 SC 55.

In response, the learned counsel for the respondent submitted that by the appellant’s averments in the amended statement of claim, the appellant understood the respondent’s claim to be an action in detinue as the parties never joined issues on whether or not the detention of the respondent’s certificates despite several demands was a breach of contract. He submitted that the trial judge was right to have treated the respondent’s claim as an action in detinue and in awarding N4M damages for the permanent loss of the certificates. He referred to ODUMOSU V. A.C.B. LTD (1976) 11 SC 55, A.C.B. LTD. V. NEKA B.B.B. MANUFACTURING CO. LTD. (1996) 4 NWLR (PT. 444) 564. SECTIONS 72, and 103 (1) of TORTS LAW, CAP 150, REVISED LAWS OF ENUGU STATE, 2004.

In reply, the appellant’s counsel submitted that if the Court below had properly applied the principle of law laid down by the Supreme Court in EAGLE SUPER PACK LTD V. A. C. B. LTD to the undisputed facts of this case, the Court would have reached a conclusion that the action was a breach of contract and would not have awarded general damages in favour of the respondent.

RESOLUTION:
The crux of this appeal is on the nature of the respondent’s suit and the basis of the assessment of the damages awarded in favour of the respondent. The gist of the appellant’s argument is that the Court below wrongly classified the respondent’s suit as an action in detinue and thereby based his assessment of damages on wrong principle of law. At page 144 of the record of appeal, the Court made a specific finding that the appellant were unable to locate and retrieve the three certificates therefore implying that they are lost. There is no appeal against that finding. In law, the appellant is deemed to have accepted that finding as correct. On the nature and quantum of damages that should be awarded, the Court held as follows at pages 143-144 of the record:
“As regard the issue of whether the general damages to be awarded in this case should be norminal or substantial, I am of the view that it depends on the circumstances of the case. Where the goods or chattel still exists but being detained by the defendant in which case it is returnable to the plaintiff, award of norminal damages. On the other hand, if the good or chattel is missing or lost in which case it is not returnable as in this case, it is my view that adequate remedy to be awarded is substantial general damages. This appears to be the intendment of the decision in ODUMOSU V. A.C.B. LTD (SUPRA). In that case, the supreme Court of Nigeria said “A claim in detinue is basically for the return of the specific chattel or its value (as known or assessed), general damages for unlawful detention may, if any is established, be awarded and even then, they are generally normal, unless the evidence establishes a case of substantial award under this head of damages.” It is obvious from the view of the Supreme Court reproduced above, that even where the chattel or its value is returnable, substantial damages may be awarded if established in evidence. If substantial damages can be awarded even where the chattel still exists and is returnable it goes without saying that where evidence has established that the chattel is lost or missing, substantial damages should be awarded as compensation for the loss.’’

I agree with the appellant’s counsel that the respondent’s claim has its root in the contractual relationship between the appellant and the respondent as the law is settled that the relationship between a bank and its customer is contractual in nature. See U. B. N. V. AJABULE & ANOR. (2001) LPELR-8239 (SC) AT 39 (C), U.B.N. V. CHIMAEZE (2014) LPELR-22690 (SC) AT 42 (E-G). The contractual relationship may arise in a number of ways in the course of carrying on business of banking. See BANK OF THE NORTH LTD V. YAU (2001) LPELR-746 (SC) AT 45-46 (D-A) where the Supreme Court per Ayoola JSC stated some of the contractual relationships that may arise in the course of carrying on business of banking and the need to be clear on which of the contractual relationship form the basis of an action as follows:
“In the course of carrying on business of banking, a bank enters into several contractual relationships and performs various roles. It is important in an action between bank and customer to be clear which of the several contractual relationships forms or form the basis of the action. In this case, it is pertinent to note only four of these possible relationships, namely: (i) the relationship of creditor and debtor that arises in regard to the customer’s funds in the hands of the bank; (ii) the relationship of creditor and debtor that arises when the bank loans money to the customer or allows him to overdraw on his account; (iii) the relationship that arises from the role of the bank as a collecting bank of cheques drawn on other banks or branches of the same bank by a third person, and (iv) the possible role of the bank as a holder for value of a negotiable instrument.”
See also ECO BANK V. ANCHORAGE LEISURE LTD. & ORS (2018) LPELR-45125 (SC) AT 28-31 (F-A). In whatever manner the relationship of a banker and customer arises, the law imposes a duty on the bank to exercise reasonable and skill in carrying out the customers instruction or in the performing its own side of a contract. The relationship between the appellant and the respondent is that of creditor and debtor which arose from the loan transaction between them.

There is a consensus between both sides that the certificates were deposited with the appellant as collateral for the loan obtained by the respondent. The appellant was duty bound to return the certificates to the respondent upon a full repayment of the loan. It is implied in that loan contract that the appellant would exercise reasonable care, skill and diligence in keeping the documents deposited with it as collateral safe. The loss of the certificates raised a presumption that the bank failed to exercise reasonable care, skill and diligence expected of it as a banker in keeping the certificates safe. It is presumed that they were lost by negligence. See A.C.B. LTD. V. NEKA B.B.B. MANUFACTURING CO. LTD. (SUPRA) AT 580 (A-H). ROYAL PET. CO. LTD. V. F.B.N. LTD. (1997) 6 NWLR (PT. 510) 584 AT 607 (A-H). In law, the fact of presumed negligence needs not be pleaded because the fact speaks for itself. The principle of res ipsa locuitor applies. See Sections 217, 218, 219, 224 and 226 of the TORTS LAW OF ENUGU STATE, CAP 150, REVISED LAWS OF ENUGU STATE, 2004 which provide as follows:
217. “Negligence as civil wrong shall consist of breach of legal duty to take care which results in damages, which may not have been desired or even contemplated by the person committing the breach, to the person to whom the duty is owing.
218. Subject to this law, every person shall have a duty to take reasonable care to avoid any act or omission which he is reasonably expected to foresee as likely to injure persons who are so closely and directly affected by his acts or omissions that he ought reasonably to have them in contemplation as being so affected when he is directing his mind to any such act or omission.
219. (1) A person shall be liable for damages for the tort of negligence if-
(a) He fails to take reasonable care to avoid such acts or omissions as he has a duty to avoid under Section 179 of this law; and
(b) The failure to a breach of the duty to take care as provided in that section and result in damage to the person to whom he owes such duty.
(2) Whether a given set of facts giving rise to an allegation of negligence creates a legal duty or results in a redressible damage is for the Court trying the issue to decide having regard to the particular circumstances of each case, and in deciding this the Court shall be guided by the provisions of this Law and any other principle of law in force in the state.
224. Where a person possesses special skill or hold himself out as possessing such skill, it shall be his duty to exercise such care as a normal skilful member of his trade or profession is reasonably expected to exercise, and where he is alleged to have been negligent in so exercising it, his performance shall be judged in the light of the normal standard reasonably expected of an ordinary person with the requisite skill in a similar profession or business.
226. Where a thing which brought about an injurious incident is shown to be under the management of the person charged with negligence or his servant, and the incident is such as in the ordinary course of thing does not happen if the person who has such management uses proper care, this shall be deemed to be sufficient evidence, unless the contrary is shown, that the incident arose from his want of care.” See also A. C. B. LTD. V. NEKA B. B. B. MFG. CO. LTD (SUPRA) AT 579-580 (H-D). Where this Court per Akpabio held as follows:
“I have critically looked at the claim of the respondent to see whether it was truly a claim in Detinue or one in Negligence. I find that respondent was himself not too sure of the basis of his claim. Because at the last paragraph of P.8 of respondent’s brief there was this statement.
“From the above facts, the respondents had actionable rights in detinue and or negligence or breach of duty of care.”
From the above statement, it will appear that there was three causes of action, whereas in fact there was only one. The appellants on the other hand came down heavily in favour of one and said they were found liable in negligence by the learned trial judge, and ordered to pay N6,000.00 as general damages, and they have not appealed that order.
Having regard to the pleadings in this case, I am myself of the view that the cause of action in this case was Negligence and not Detinue. Although “Particulars of Negligence” were not itemised as in other case of Negligence, it will appear however that this was a case of “res ipsa loquitur.” The appellants on their own admission failed to produce and re-deliver the title deeds in question to the respondent, when asked to do so. The presumption therefore is that they were lost due to appellant’s carelessness, which in our law amounts to Negligence. There is also the fact that unlike the position in Odumosu v. A.C.B. Ltd (supra) the title deeds in this case were not delivered to appellant “for safe custody” but by way of equitable mortgage to guarantee a loan. The appellants were therefore under a duty to return the title Deeds immediately on repayment of the loan. Their failure to do that rendered them liable in damages for negligence.”

The appellant’s counsel forcefully submitted that where an action in tort is based on a contract, the action must be seen as an action in contract. He placed reliance on EAGLE SUPER PACK LTD. V. A.C.B. (SUPRA), ISHOLA INVESTMENT LTD. V. AFRIBANK PLC (SUPRA) and ARMEL TRASPORT LTD. V. TRANSO (NIG.) LTD. (SUPRA).

In EAGLE SUPER PACK LTD V. A.C.B (SUPRA), the appellant approached the respondent its banker to create an irrevocable letter of credit in favour of the appellant’s customers in Tokyo Japan in the sum of US $16,180.00 for raw materials to be imported. The respondent through the appellant sourced from the second tier foreign exchange market the said sum of US $16,180.00 for which it paid N55,699,65. The appellant gave the respondent all the documents needed and paid all the charges and commission demanded to enable the transfer to be effected. The respondent failed to carry out the instruction of the appellant. The appellant instituted the action and claimed the sum of Two Million Naira as special and general damages against appellant. The claim was in negligence and alternatively for breach of contract. The learned trial judge held that the respondent did not create letter of credit as agreed. The respondent was found to liable for breach of contract and a total sum of One million, sixty three thousand, five hundred and sixty seven Naira, seventy seven kobo (N1,063,567.77) representing special and general damages were awarded against the respondent. The respondent appealed to this Court. The appeal was allowed and for the reasons stated in the judgment, this Court ordered that the case be retried de novo and also ordered the respondent to pay to the appellant the sum of US$16,180.00. Both parties were dissatisfied with the judgment. They both appealed to the Supreme Court. On the nature of the action, the Supreme Court agreed with the trial jugde that respondent was liable for breach of contract and held per Oguntade, JSC that:
“Where a plaintiff who brings an action in tort is driven to rely on a contract to sustain his suit, the action must be seen as an action in contract.”

In AMINU ISHOLA INVESTMENT LTD V. AFRIBANK (SUPRA), the respondent in or about August, 1988 at its Ilorin branch opened for the appellant a fixed deposit account No. 70-100-029 wherein the appellant lodged a bank draft/cheque in the sum of N467,000.00. By its letter dated the 12th August, 1988 the appellant authorized the respondent to transfer the sum of N467,000,00 into the deposit account. In its reply to the appellant’s said letter of 12th August, 1988 the respondent by its letter dated 15th August, 1988 confirmed to the Plaintiff the opening of the deposit account . In its letter dated the 31st October, 1988 the appellant gave notice to the respondent of its intention to withdraw the sum of N467,000.00 from the deposit account for the purposes of procuring for sale some second hand Peugeot vehicles. In response to the appellant’s said letter, the respondent’s Ilorin branch in its letter dated 31st October, 1988 refused to accede to the appellant’s request on the ground that they had received directive from their head office to stop payment on the account because the CBN Cheque No. 009661, for N471,548,44 with which the proceeds were transferred into the account was in dispute. The appellant stated that the sum of N467,000,00 paid into the deposit account was transferred from its current account with the respondent at its Ilorin Branch and not by any CBN Cheque. The appellant averred in its Further Amended Statement of Claim that the respondent wrongfully detained and still detains the appellant’s money in its deposit account. The learned trial Judge held that the case is founded on detinue since the respondent had wrongfully detained the appellant’s funds and ordered a refund of the deposit made by the appellant with interest and the sum of N2,000,000.00 (Two Million Naira) was also awarded as damages in favour of the appellant. The respondent’s appeal to the Ilorin Division of this Court was allowed. The award of general damages was set aside. Aggrieved by the decision, the appellant appealed to the Supreme Court. The Supreme Court held that the refusal by a banker to pay a customer’s cheque when the customer has sufficient funds in his account to cover the amount on the cheque amounts to breach of contract not detinue. The Supreme Court affirmed the judgment of this Court in respect of damages.

In ARMEL TRANSPORT LTD V. TRANSCO (NIG.) LTD (SUPRA), the claim was for the sum of 6,525 (Six thousand Five Hundred and Twenty Five pounds) as special and general damages suffered by the plaintiffs as a result of the negligent repairs of the plaintiff’s lorry by the Defendants. The learned trial judge awarded: (a) 1,325 Special damages. (b) 3,777:6:8d Special damages (Loss of use) (c) 500 General damages. The Supreme Court held that where a plaintiff is asking for damages and begins by setting out specific items of damages and then adds a claim under the heading of general damages for a sum which will bring the total claimed to a round figure, his claim should always be carefully scrutinised both by the defendant and by the Court in order to see whether he is in fact asking to receive compensation more than once for the same cause of action. The Court also held that the measure of damages in action in contract is not the same as an action in tort but the rule against double compensation remains the same.

The basis for each of the actions in the above cases was failure of the bank to perform the contract as agreed by the parties. The basis of the respondent’s claim in this case is the failure of the appellant to exercise reasonable care and diligence to prevent the loss of the respondent’s certificates in its custody which amount to negligence. It is not all the cases of negligence by a bank in handling the affairs of its customer that must be treated as a breach of contract. The nature of a suit depends on the peculiar facts and circumstances disclosed in the particular case. Loss of a customer’s document deposited with the bank either for safe keeping or as a collateral for loan amount to negligence which is actionable perse. See A. C. B. LTD V. NEKA B. B. B. MFD. CO. LTD (SUPRA) AT 579- 580 H-D). This Court affirmed the decision of the Court below and the award of general damages made in favour of the plaintiff for the loss of title deeds deposited with the defendant for a loan. The award of special damages was set aside for lack of evidence. The Supreme Court affirmed the judgment of this Court in NEKA B. B. B. MFG. CO. LTD. V. A. C. B. LTD. (2004) LPELR-1982 (SC). In MAINSTREET BANK LTD V. JUUMANWIN NIG. LTD. (2013) LPELR-21855 (CA) AT 29 (B-D).

The Court below may have wrongly classified the respondent’s suit as an action in detinue, but the wrong classification would not automatically result a reversal of the award of general damages for the loss of the respondent’s certificates. The law is settled that it is not every error in the judgment of the trial Court that would warrant a reversal of the judgment. For an error in the judgment of a reversal of the judgment, the error must be substantial and must have occasioned a miscarried of justice. See OLONADE & ANOR V. SOWEMIMO (2014) LPELR-22914 (SC) AT 23 (A-E) where the Supreme Court per MUHAMMAD, JSC held as follows: “It is a trite principle that it is not every error of law that is committed by a trial or Appellate Court that justifies the reversal of the particular Court’s judgment on appeal. For an appellant to secure the reversal of the judgment he appeals against, beyond establishing the error he hinges his complaint upon, he must go the extra mile of establishing that the error complained of and established has substantially affected the result of the decision and/or occasioned miscarriage of Justice. Thus where in spite of the error made out by the appellant the decision appealed against would not be any different the appeal would fail. In such an instance the judgment appealed against would not be disturbed. See A.G. Leventis Nig Plc V. Chief Christian Akpu (2007) 6 SCNJ 242, Oguntayo V. Adelaja & Ors (2009) 6-7 SC (Pt 111) 91 and Chief Ikedi Ohakim & Anor v. Chief Martin Agbaso & 4 Ors (2010) 6-7 SC 85.”

The law is settled that assessment of damages in an action must be predicated on the nature of claim. See AGBANELO V. UBN LTD(2000) LPELR-234 (SC) AT 20 (B), 42 (B-C). If the claim is in tort as it is in the instant case assessment of damages depends on the nature of the wrong alleged. In the instant case, irrespective of whether the respondent’s action is in detinue, negligence or breach of contract, the undisputed fact is the loss of the respondent’s document deposited with the appellant as collateral for a loan which has been fully repaid. Where a bank is unable to return a document used as collateral to obtain a loan due to the loss of the document, the bank is liable to pay damages to the customer. See ROYAL PET. CO. LTD. V. F. B. N. LTD. (1997) 6 NWLR (PT. 510) 584 AT 607 (H), NUTRI FOOD & BEVERAGES LTD V. ACCESS BANK (2019) LPELR-47291 (CA) AT 18-28. MAINSTREET BANK LTD V. JUUMANWIN NIG. LTD. (SUPRA). To allow this appeal is to leave the respondent without a remedy for the wrong done to him by the appellant on technical ground. Ubi jus Ubi Remedium, where there is a right the Court must provides the means to vindicate that right and a remedy. See BFI GROUP CORPORATION V. B. P. E (2012) LPELR-9339 (SC) AT 33 (A-D) where the Supreme Court per FABIYI, JSC held as follows:
“Literally ubi jus ibi remedium means where there is a right, there is a remedy. It is said that the rule of primitive law was the reverse. Where there is a remedy there is a right. The Court is enjoined to provide a remedy where a legal right is established. The Court should look into the substance of the action rather than the form. As has been held by this Court in Bello v. Attorney -General Oyo state (supra), the respondent had a duty to the appellant which was breached by unwarranted abrogation of their contract. The injury suffered by the appellant was not too remote. Same stares both parties in the face and must be redressed by the Court. The appellant should not be made to go away empty handed without any remedy.”
In any case, this Court was emphatic in A.C.B. LTD V. NEKA B. B. B. MFD. CO. LTD (SUPRA) AT 577(F-H) that the measure of damages in detinue and negligence are basically the same. The principles which guide the Court in the assessment of damages in either of the two actions were stated as follows:
“I have carefully considered all the facts of this case, as well as the legal argument of learned counsel on both sides, and also read most of the decides cases cited in this case, and must observe that the appellant did not dispute the fact that the title deeds of respondent in respect of its Enugu property, were lost in its custody. As to whether such failure to return the title deeds would make the action to be one founded in Detinue or Negligence, did not also appear to be a disputed pointed as the measure of damages in both Detinue and negligence are basically the same namely:-
(1) The specific restitution of the property which is lost detained, if it is capable of such restitution or its market value:
(2) Where the property lost or detained was an article of trade being used to earn income, then the amount of income or profit which that property could have made during the period of detention.
(3) If the property was not an article of trade as in (2) above, then general damages only will be awarded for the loss or unlawful detention of the said property.
(4) Where damages for loss of use, as in (2) above, have been awarded, it is not useful to award general damages – as to do so would amount to double compensation.”
By the pronouncement of this Court and the Supreme Court in the cases referred to above, the law is settled that the respondent is entitled to substantial general damages. In assessing the quantum of damages the respondent is entitled to, the Court below considered the nature and the importance of the documents which the appellant negligently lost and held at pages 144-145 of the record of appeal as follows:
“The defendant, in its statement of defence at paragraph 5 did not mince words that the three certificates are missing. The defendant, also in that paragraph 5 of the statement of defence averred that strenuous efforts were being made to trace the missing certificates. The plaintiff demanded in writing in 2010 the release of his certificates by the defendant. In the same 2010 the defendant informed him that the efforts were being made to retrieve the certificates and that the efforts were being made to retrieve the certificates and that as soon as they were found the plaintiff would be communicated.
The plaintiff instituted this action in 2011 after waiting for about one year for the defendant to communicate him on the situation regarding his certificates
It is obvious from the scenario in this case that the defendant has been unable to locate or retrieve the three certificates therefore implying that they are lost. Therefore, on the authority of the ODUMOSU V. A. C. B LTD(SUPRA), I hold that the damages to be awarded in this case is substantial and not nominal.
I agree with the learned counsel for the plaintiff, it will be inappropriate to order the return of the certificates of the plaintiff as they have been shown to have been lost.
To my mind, the sum of N5,000,000.00 (Five Million Naira) being claimed as general damages for the detention of the plaintiff’s certificate is not excusive for the reason that they are lost. Although the certificates can be obtained by the plaintiff from the institutions that issued them, the certificates can only be obtained as certified copies and not the originals. Again, it will involve time and expenses in terms of money to obtain them.
On the issue that whether the plaintiff has any use for the lost certificates, i agree that issues were not joined on it therefore, I discountenance whatever answer that came from the plaintiff in respect of that issue. Even if issue were joined on that, the plaintiff answered that he needs his certificates were not used for anything would that be enough reason for losing them by the defendant? My answer is in the negative. The plaintiff has an inalienable right to the certificates he so laboriously obtained and is therefore entitled to damages if anyone other than himself cause their loss as in this case.”

The circumstances or grounds upon which an appellate Court would interfere with award of damages by the trial Court have been stated in a plethora of cases. See IGHRERINIOVO V. S.C. C. NIGERIA LTD & ORS(2013) LPELR-20336 (SC) AT 26 (C-F) where the Supreme Court per MUHAMMAD, JSC held as follows:
“It is now trite that an appellate Court does not ordinarily alter or interfere with an award of damages made by the lower Court except where the award is shown to be either manifestly too high or manifestly too low or where it was based on a wrong principle. The award of damages is at the discretion of the trial Court. An appellate Court will not interfere with an award of damages by a trial Court only because it is inclined to make a different award. In order to justify interference with the trial Court’s award of damages, the appellate invariably must be satisfied that:- (a) The trial Court had acted upon wrong principle of law or under a mistake of law. (b) The award is arbitrary or perverse. (c) There has been an element of wrong exercise of discretion in the award or (d) Injustice could occur if the appeal Court does not interfere.”
In the instant case, the certificates which got lost are the Bachelor of Education degree Certificate issued by the University of Ibadan, National Youth Service discharge Certificate and National Directorate of Employment Certificate. There is no doubt that an education certificate is an invaluable and precious property to which this society attaches so much importance. There is no clear, cogent and credible evidence that any of the institutions which issued those certificates can issue another original or a replacement or a certified true copy. In any case the certificates lost by the appellant are originals and I do not know how the institutions can issue certified true copies of documents of which the originals are not in their custody. I am of the firm view that no amount of damages is too high to assuage the loss of the respondent’s certificates.

In YALAJU V. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD. & ORS (1990) LPELR-3511(SC) AT 47 (B-E), the Supreme Court Per KARIBI-WHYTE, J.S.C stated the meaning and nature of general damages as follows:
“It is well settled law that general damages is the kind of damage which the law presumes to now flow from the wrong complained of. They are such as the Court will award in the circumstances of a case, in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man. See Lar v. Stirling Astaldi Ltd. (1977) 11/12 S.C.53; Omonuwa v. Wahabi (1976) 4 S.C. 3. General damages may be awarded to assuage such a loss which flows naturally from the defendant’s act. It need not be specifically pleaded. It arises from inference of law and need not be proved by evidence. It suffices if it is generally averred. See Incar v. Benson (1975) 3 S.C.117. They are presumed by the law to be the direct and probable consequence of the act complained of. Unlike special damages, it is generally incapable of substantially exact calculation. See Odulaja v. Haddad (1973) 11 S.C.357.”
The submission of the appellant’s counsel that the respondent is only entitled to nominal damages because there is no evidence to show any special loss suffered by the respondent in consequence of the loss of the certificates is totally misconceived. The loss of three original important Educational Certificates in itself is a special loss for which the appellant is liable to pay compensation in form of substantial general damages. Inconveniences and psychological trauma are presumed by the law to be probable consequences of the loss of the appellant’s original certificates. It need not be specifically pleaded or established by evidence. See U.B.N PLC. V. AJABULE & ANOR (2011) LPELR-8239 (SC) AT 32 (C-D) where the Supreme Court per FABIYI JSC held as follows:
“General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages.” Considering the nature of the documents, the loss of same and the consequences of the loss, the award of N4,000,000:00 (Four Million Naira) is not excessive. The appeal fails and it is hereby dismissed.

CROSS-APPEAL:
The respondent filed a notice of cross-appeal on 17/3/2017. The notice of cross-appeal was deemed as properly filed and served on 2/7/2019. The sole ground of the cross-appeal without its particulars is that:
“The trial judge erred in law by assessing the value of the three certificates which the plaintiff deposited as collateral with the defendant and which the defendant negligently lost to be N12,000 (Twelve Thousand Naira) only.”

The cross-appellant formulated the following issues for determination in the cross-appeal:
“Whether the learned trial judge was right to use the sum of N12,000 borrowed by the respondent in 1998 as parameter for placing the value of the three certificates at N12,000,00 in 2016 when the judgment was delivered?”

The argument in respect of the cross-appeal was incorporated in the respondent’s brief. The cross respondent filed its  cross–respondent’s brief on 2/6/20. It was deemed as properly filed and served on 3/6/20. The cross-appellant’s contention is that the Court below unilaterally and wrongly placed a value of N12,000:00 (Twelve Thousand Naira) on the respondent’s three certificates being the amount of loan obtained from the cross-respondent in 1998. He submitted that it is common knowledge that the value of the Naira keeps nose-diving on a regular basis from 1998-2016 when the judgment was delivered. According to counsel, it is also common knowledge that banks as a matter of practice accepts only things that are of higher value than the actual amount borrowed as collateral, therefore, there is no gain saying that the respondents’ certificates are worth more than N12,000:00. He urged the Court to vary the judgment of the Court below in the following terms:
a. “N4,000,000 (Four Million Naira) as compensation for the loss of the certificates.
b. N12,000 (Twelve Thousand Naira) general damages for unlawful detention of the certificates.
c. N8,000 cost.”

In response, the cross-respondent’s counsel submitted that the Court below was right in not taking into consideration any depreciation in the value of naira as depreciation in the value of naira is a question of fact which was not pleaded or established by evidence. He referred toIFEANYI CHUKWU OSUNDU CO. LTD. V. AKHIGBE(1999) 11 NWLR (PT.625) 1 AT 20-21. Counsel further submitted that the alleged banking practice of accepting things that are of higher value as collateral for a loan could not have been taken into consideration by the Court below as the requirement of the law is that the party seeking to rely on a banking practice or custom must specifically plead and prove it. He referred to UBN PLC. V. IFEATU AUGUSTINE NWOYE (1996) 3 NWLR (PT.435) AT 143. He urged the Court not to interfere with the exercise of the discretion of the trial Court.

RESOLUTION:
In coming to the conclusion that the monetary value of the three certificates lost by the appellant is N12,000:00, the Court below held as follows:
“I agree with the learned counsel for the defendant that the certificates are not profit making chattels. On whether the certificates have monetary value, I, with respect, disagree with the learned counsel for the defendant that they do not. The DW1, in his evidence under cross-examination said that the defendant placed value on the certificates and that was why the defendant accepted the certificates as collateral for the loan. Even if there was no evidence to the effect that the defendant placed value on the certificates for the loan to the plaintiff, it would have been inferred from the transaction for the simple reason that the defendant would not have accepted the certificates as collaterals if it did not attach any value to them. In this case, my view is that although the market value of the certificates cannot be ascertained, their monetary value could be inferred from the transaction in respect of the loan. The defendant accepted the certificates as collateral for the loan of N12,000,00 (Twelve Thousand Naira). Therefore, the monetary value of the certificates could be equated to the sum of N12,000,00 at the time the loan was granted.
In my humble opinion, what i have done above i.e assessing the value of three lost or missing certificates is in tandem with Section 93 of the Torts Law, Cap. 150, Revised Laws of Enugu, 2004 cited by the learned counsel for the plaintiff. That section provides “93. Subject to the provisions of Sections 90, 91 and 92 of this law, where there is no market in the goods, the value is assessed at what the plaintiff could get by sale to a solvent buyer or at any other value which the Court may find reasonable having regard to the nature of the goods and what is just and equitable in the circumstance of a particular case.” In the circumstance of this case therefore, i hold that the three missing or lost certificates had value and their value was N12,000.00 the amount of the loan advanced to the plaintiff in 1988.”
The Court below erred in law in awarding N12,000.00 (Twelve Thousand Naira) as compensation for the loss of the certificates. A plaintiff who has been adequately compensated under a particular head of damages will not be allowed to claim under another head of damages for the same loss. The respondent having been awarded N4million as general damages for the loss of the certificates, the award of N12,000.00 (Twelve Thousand Naira) as compensation for the loss of the certificates amount to double compensation which the law prohibits whether in an action in tort or in contract.
From the forgoing, it is clear that the Court below acted under a mistake of law when it awarded the sum of N12,000.00 (Twelve Thousand Naira) as compensation for the loss of the certificates after the award of 4 MILLION NAIRA for the same loss which has occasioned a miscarriage of justice. Secondly, an educational certificate is a highly precious and invaluable property, an inherently priceless possession to which no amount of monetary value can be attached. It is not on the same standing with a title deed. This is the more reason why nominal damages cannot meet the justice of this case and precisely why the law stipulates an award of substantial general damages. For the foregoing reasons the cross-appeal succeeds. The award of N12,000:00 in favour of the respondent as the value of the three (3) certificates is hereby set aside.

In conclusion, the appellant’s appeal fails. It is dismissed. The award of N4,000,000:00 (Four Million Naira) as general damages for the loss of the respondent’s certificates is hereby affirmed. The cross appeal succeeds. The award of N12,000.00 as compensation for the loss of the certificates is hereby set aside. Parties shall bear their respective costs.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I hereby dismiss it.
I equally adopt the consequential orders in the lead judgment as mine.

ABUBAKAR SADIQ UMAR, J.C.A.: It has been a pleasure to have a preview of the lead judgment which involved Banker and Customer relationship. In the lead judgment, my learned brother, MISITURA OMODERE BOLAJI-YUSUF, JCA, considered all the issues exhaustively, that are germane in this appeal. The conclusion reached in the lead judgment accord with my thought on the appeal, thereby making me to concur with the said judgment.

I also agree with the conclusion expressed in the said leading judgment that the Respondent having been awarded N4,000,000 (Four Million Naira) as general damages for loss of certificates, the award of N12,000 (Twelve Thousand Naira) as compensation for the loss of the certificates amount to double compensation which the law prohibits whether in an action in tort or in contract.

For the above reasons and the fuller reasons given in the leading judgment, which I adopt as mine, I dismiss the appeal. The award of N4,000,000 (Four Million Naira) as general damages is affirmed. The award of N12,000 (Twelve Thousand Naira), as compensation is hereby set aside. No order as to cost.

Appearances:

Gabriel Onovo For Appellant(s)

C. C. Okoro For Respondent(s)